Deconstructing “Sanctuary Cities”: The Legality of Federal Grant Conditions That Require State and Local Cooperation on Immigration Enforcement
Deconstructing ?Sanctuar y Cities?: The Leg ality of Federal Grant Conditions Th at Require State and Local Cooperation on Immigration Enforcement
Peter Margulies 0 1
0 Roger Williams University School of Law
1 Thi s Article is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information , please contact , USA
Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Administrative Law Commons, Immigration Law Commons, and the Law Enforcement and Corrections Commons Recommended Citation Peter Margulies, Deconstructing ?Sanctuary Cities?: Th e Legality of Federal Grant Conditions Th at Require State and Local Cooperation on Immigration Enforcement, 75 Wash. & Lee L. Rev. 1507 (2018), https://scholarlycommons.law.wlu.edu/wlulr/vol75/iss3/10
Deconstructing ?Sanctuary Cities?: The
Legality of Federal Grant Conditions
That Require State and Local
Cooperation on Immigration
* Professor of Law, Roger Williams University School of Law; B.A.,
Colgate; J.D., Columbia Law School.
Certain terms seem destined to obscure more than they
illuminate; ?sanctuary city? is a case in point. Determining which
cities qualify for the label rests on the political predilections of the
person making the judgment, not on law or facts.1 Rather than
compound the confusion, this Article analyzes legal issues
surrounding sanctuary cities as reflecting divergent
interpretations of three values: compliance, coordination, and
equity. Against the backdrop of these contested values, the Article
considers federal agencies? power to impose immigration
enforcement-related conditions on state and local receipts of
1. See Jane Chong, Sanctuary 101, Part I: What Trump?s Executive Order
Doesn?t Do, Cannot Do, and Has Little to Do With, LAWFARE (Mar. 13, 2017),
(last visited Aug. 12, 2018)
application of President Trump?s Executive Order in Miami-Dade County) (on file
with Washington and Lee Law Review).
federal funds.2 This Article concludes that the U.S. Department of
Justice (DOJ) can condition receipt of certain federal grants on
recipients? compliance with a statute promoting
information-sharing on the immigration status of criminal
suspects.3 Courts, however, should read that statute against the
backdrop of cooperative federalism,4 resulting in a narrower
interpretation than the one sought by the DOJ.
Focusing on compliance, coordination, and equity helps clarify
the issues regarding Attorney General Jeff Sessions? proposed
conditions on certain federal funds.5 The DOJ and some
sub-federal entities6 disagree on compliance, which I define here in
terms of the relationship between immigration enforcement and
ordinary law enforcement. The DOJ argues that the link is
invariably positive, while sub-federal entities resisting the DOJ?s
conditions7 argue that cooperation with federal immigration
2. Several courts have considered this issue in the past year. See, e.g., City
of Chicago v. Sessions, 264 F. Supp. 3d 933, 933
(N.D. Ill. 2017)
nationwide injunction against imposition of certain conditions on cities and
states); City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 614 (E.D. Pa. 2017)
(narrowing scope of federal agency authority to impose conditions on cities and
states); California ex rel. Becerra v. Sessions, 284 F. Supp. 3d 1015, 1019 (N.D.
Cal. Mar. 5, 2018) (denying state?s request for preliminary injunction against
federal agency?s delay in awarding of certain federal funds, while suggesting that
as case progresses, state may be able to show that federal agency has only limited
authority to impose conditions); see also Steinle v. City & Cty. of San Francisco,
230 F. Supp. 3d 994, 1015?16
(N.D. Cal. 2017)
(reading narrowly a statute that
purports to limit city and state efforts to curb cooperation with federal
3. See 8 U.S.C. ? 1373 (2012) (prohibiting government officials and entities
from restricting transfer of information between other officials and entities and
the Immigration and Naturalization Service); see also Orde F. Kittrie,
Federalism, Deportation, and Crime Victims Afraid to Call the Police, 91 IOWA L.
REV. 1449, 1460?62 (2006) (discussing deportation provisions).
enforcement by the Department of Homeland Security (DHS) and
Immigration and Customs Enforcement (ICE) impedes state and
local law enforcement by driving victims underground.8
Coordination refers both to vertical coordination between the
states and the federal government and to horizontal coordination
among the several states. The Supreme Court has long viewed the
Constitution as making federal law supreme in the immigration
realm.9 As Madison noted in his discussion of naturalization,
disparate state regimes of immigration control could undercut the
national interest and yield unintended adverse
consequences?what economists call ?negative
externalities?10?for some jurisdictions.11 On the other hand, the
Framers? vision of federalism contemplates that the states retain
certain aspects of sovereignty, including the police power.12 In that
role, each state has a legitimate interest in the health and safety
of its own residents, including undocumented noncitizens.13
efforts. The label is purely descriptive and does not imply any positive or negative
normative position on these entities? stance.
9. See Chae Chan Ping v. United States (The Chinese Exclusion Case), 130
U.S. 581, 609 (1889) (?If there be any just ground of complaint on the part of
China, it must be made to the political department of our government, which is
alone competent to act upon the subject.?); Harisiades v. Shaughnessy, 342 U.S.
580, 588?89 (1952) (?It is pertinent to observe that any policy towards aliens is
vitally and intricately interwoven with contemporaneous policies in regard to the
conduct of foreign relations, the war power, and the maintenance of a republican
form of government.?).
10. See, e.g., Lisa Grow Sun & Brigham Daniels, Externality
Entrepreneurism, 50 U.C. DAVIS L. REV. 321, 330 (2016) (noting that in the land
use arena, a landowner who destroys wetlands causes negative externalities such
as increased flooding for neighbors).
11. See THE FEDERALIST NO. 42, at 271 (James Madison) (Clinton Rossiter
ed., 1961) (?The dissimilarity in the rules of naturalization has long been
remarked as a fault in our system . . . .?).
12. See Randy E. Barnett, The Proper Scope of the Police Power, 79 NOTRE
DAME L. REV. 429, 453 (2004) (?The Framers of the Constitution were rigorously
consistent in referring to the ?powers? of government and to the ?rights? of the
people. The Constitution refers to powers?and only powers?being delegated to
government . . . .?).
13. Cf. Santiago Legarre, The Historical Background of the Police Power, 9
U. PA. J. CONST. L. 745, 794 (2007) (stating that the general welfare, which
The realities of federal?sub-federal coordination with respect
to immigration enforcement contrast sharply with the rhetoric
from both sides. Certain sub-federal officials and entities have
taken to trumpeting their separation from federal immigration
enforcement, while federal officials including President Trump and
Attorney General Sessions have deplored what they view as
sub-federal resistance.14 In fact, virtually all sub-federal entities
regularly cooperate with the federal government on immigration
enforcement concerning serious crime,15 although the current
polarized political climate hinders acknowledgment of this ground
truth by either side.
Finally, equity has a substantial role in assessing the
propriety of federal conditions requiring greater sub-federal
cooperation in immigration enforcement. Equity here has a
capacious meaning, including considerations of fairness, equality,
and belonging.16 All levels of government have a legitimate concern
in unbiased law enforcement. Resistant sub-federal entities
believe that greater cooperation will lead to more profiling of their
includes social interests, is within the police power).
14. See Maria Sacchetti, Defiance, Resistance: The Front Lines of California?s
War Against the Trump Administration, WASH. POST (Mar. 11, 2018),
Sept. 12, 2018)
(documenting California?s battle with the Trump Administration
over immigration enforcement) (on file with the Washington and Lee Law
15. See City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 603?05
(?[P]olicies at issue here do not interfere with the federal government?s legal
ability to deport individuals convicted of serious crimes.?). Moreover, any arrest
by sub-federal personnel has ramifications for immigration enforcement, because
biometric data gathered by sub-federal officials in the course of an arrest is
communicated to federal databases, including those monitored by federal
immigration officials. See Anil Kalhan, Immigration Policing and Federalism
Through the Lens of Technology, Surveillance, and Privacy, 74 OHIO ST. L.J. 1105,
1122?26 (2013) (?Although maintained by the FBI, most records and queries come
from other law enforcement agencies, which access the system?s multiple
databases millions times each day, usually with rapid responses, during routine
encounters with the public and other ordinary law enforcement duties.?).
16. See Christopher N. Lasch et al., Understanding ?Sanctuary Cities?, 59
B.C. L. REV. 1703, 1769 (2018) (?The diversity and inclusivity rationale is related
to but distinct from the more legalistic emphasis on equality and
nondiscrimination that is seen in some disentanglement policies.?).
residents, based on residents? perceived national origin or
ethnicity.17 In addition, resistant sub-federal entities tend to view
undocumented noncitizens as having ?equity? in their U.S.
residence?shared stake or membership.18 Officials in the Trump
Administration, including Attorney General Sessions, disagree.19
While resistant sub-federal entities have invoked limits on the
Spending Clause,20 this Article argues that Spending Clause
jurisprudence does not support current challenges to federal
efforts. The Supreme Court has observed that conditions imposed
by Congress should be related to the purpose of the grant, must
provide adequate notice, and must not be coercive.21 However,
NFIB v. Sebelius,22 the only modern Supreme Court decision
curbing Congress?s spending power, involved grants exponentially
greater than the relatively modest sums at issue in the
17. See, e.g., Kavitha Surana, How Racial Profiling Goes Unchecked in
Immigration Enforcement, PROPUBLICA (June 8, 2018), https://www.
(last visited Aug. 1, 2018)
(documenting an instance of racial profiling in
immigration enforcement) (on file with the Washington and Lee Law Review).
18. See, e.g., DAVID H.K. NGUYEN, EQUITY BY DESIGN: EXAMINING LAW AND
POLICY FOR UNDOCUMENTED IMMIGRANT STUDENTS THROUGH THE PK-20 PIPELINE
1?2 (2017), https://files.eric.ed.gov/fulltext/ED580791.pdf (citing Plyler v. Doe,
457 U.S. 202 (1982)) (explaining the education rights of undocumented students).
19. See Dara Lind, Trump Made and Immigration Crackdown a Priority. Jeff
Sessions Made it a Reality., VOX (May 23, 2018, 8:00 AM),
(last visited Aug. 1, 2018)
(?Sessions isn?t just an immigration hawk who rejects
?amnesty? for unauthorized immigrants who have settled in the US; he has long
advocated that the federal government has an obligation to ?end illegality? in the
immigration system, full stop.?) (on file with the Washington and Lee Law
immigration context.23 Absent the ?gun to the head? applied in
NFIB, the Court seems content to leave grant conditions to the
byplay between federal and sub-federal officials, mediated by each
state?s representatives in Congress.24 Indeed, the more
interventionist approach urged by resistant sub-federal entities
and some scholars would distort the necessary negotiations
between federal and sub-federal officials, impairing both
Congress?s flexibility in supporting favored initiatives and
sub-federal innovation.25 The risk of that structural spillover from
the immigration context to broader federal?sub-federal
relationships is reason enough to reject the wholesale
constitutionalizing of federal grant-making that advocates of
Similarly, the constitutional anticommandeering doctrine is a
blunt instrument for addressing federal?state cooperation on
immigration enforcement. As the Supreme Court indicated
recently in Murphy v. National Collegiate Athletic Association
(NCAA),26 the federal government cannot compel state legislatures
to ?require or prohibit? activity such as sports gambling.27 Under
the Tenth Amendment, Congress also cannot ?conscript? state
governments to administer a regulatory scheme that Congress
could delegate to federal agencies.28 Section 1373, the statute
barring sub-federal officials? and entities? limiting of
communication with federal officials regarding ?immigration
23. See id. at 576 (?In light of the expansion in coverage mandated by the
[Affordable Care] Act, the Federal Government estimates that its Medicaid
spending will increase by approximately $100 billion per year . . . .?).
24. See id. at 581 (discussing that Congress?s actions were more than
?relatively mild encouragement?).
25. See Lasch et al., supra note 16, at 1772 (?Our research reveals that
sanctuary cities are pursuing affirmative policy choices that are theirs to
make . . . [D]isentanglement is not simply an attempt to frustrate federal policy,
but an effort to ensure that local governments and the federal government can
operate independently in their respective policymaking arenas.?).
26. 138 S. Ct. 1461 (2018).
27. Id. at 1476?77 (citation omitted).
28. See Printz v. United States, 521 U.S. 898, 935 (1997) (invalidating law
compelling state background checks for prospective buyers of firearms); New York
v. United States, 505 U.S. 144, 188 (1992) (striking down statute that required
states to engage in specific regulation of nuclear waste or take title to the waste
status,?29 is not a conscription of state government in this sense.
Read narrowly, ? 1373 does not unduly interfere with sub-federal
officials? control over their employees.30 Instead, ? 1373 merely
permits communication between different levels of government.
The Court has never viewed such permissive exchanges of
information as commandeering.31
A more promising avenue for curbing undue federal power lies
in the statutory arena. The Supreme Court interprets federal
statutes against the ?backdrop? of federalism values.32 That
backdrop narrows the scope of 8 U.S.C. ? 1373,33 in which Congress
restricted sub-federal officials? and entities? ability to curb
communication with federal officials regarding ?immigration
status? information.34 A broad reading of ? 1373 would clash with
this backdrop of federalism principles, obviating sub-federal
entities? power to both supervise their employees and promote fair,
effective policing practices. In particular, construing ? 1373 as
barring sub-federal entities from curbing communication about
victims? or witnesses? immigration status would subvert efforts to
generate information about criminal conduct. This and other
29. 8 U.S.C. ? 1373 (2012).
30. Several federal district courts have disagreed with the conclusion in the
text, and instead found that ? 1373 constitutes impermissible commandeering.
See, e.g., City
of Chicago v. Sessions, 2018
U.S. Dist. LEXIS 125575, at *18?29
(N.D. Ill. July 27, 2018)
(explaining holding that ? 1373 violates the Tenth
Amendment because it dragoons states into enforcement of federal immigration
31. See Reno v. Condon, 528 U.S. 141, 143?45 (2000) (describing the
common practice of congressionally requiring data-sharing between
federal and sub-federal agencies in the course of upholding federal law
requires states and other private and public entities to implement privacy
32. See Bond v. United States, 134 S. Ct. 2077, 2088 (2014) (suggesting that
even clear text ?must be read against the backdrop of established interpretive
33. 8 U.S.C. ? 1373.
34. See id. ? 1373(a) (?[A] Federal, State, or local government entity or
official may not prohibit, or in any way restrict, any government entity or official
from sending to, or receiving from, the Immigration and Naturalization Service
information regarding the citizenship or immigration status, lawful or unlawful,
of any individual.?).
byproducts of a broad reading would thus undermine equity,
compliance with law, and sustainable coordination.
The better approach is a narrower reading of ? 1373, stressing
its protection of operational values in law enforcement. For
example, consider the work of a joint federal?sub-federal task force
on organized crime or drug-trafficking. The immigration status of
certain suspects may give investigators useful leverage with which
to secure a conspirator?s cooperation or, if necessary, incapacitate
a suspect. In a fluid investigation of this kind, it may be impossible
to neatly parse roles so that only federal agents address the
immigration status of certain suspects. California law expressly
recognizes this operational dimension, as do the practices of other
This operational conception also fits with the grant programs
that the DOJ has intertwined with new enforcement-minded
conditions. Consider the Edward Byrne Memorial Justice
Assistance Grant (JAG) Program,36 which rests on a bottom-up
view of law enforcement in which innovations at the state and local
level gradually transform policing.37 A one-size-fits-all approach
imposed by the DOJ would be antithetical to the Byrne Program?s
aims. In contrast, an operational conception would leave room for
useful federal?sub-federal coordination, while respecting
sub-federal entities? concerns with compliance and equity.
This approach would reject two of the DOJ?s conditions: first,
requiring that sub-federal entities provide notice that is
practicable of the release of any suspect flagged by federal
immigration officials, and second, requiring that sub-federal
entities provide federal officials with dedicated space in jails to
interview all inmates.38 Each of these conditions would adversely
affect noncitizens arrested for minor crimes and those who were
released without being charged with a crime, thus providing
minimal benefits for compliance. Indeed, compliance would
decrease, because immigrant victims and witnesses aware of
adoption of these policies would be far less likely to cooperate with
sub-federal authorities. Each policy would also encourage biased
line-level policing. For ? 1373, an operational approach would
allow sub-federal entities to bar disclosure of the immigration
status of victims and witnesses, as well as the addresses and
release dates of minor offenders and persons not charged with a
This Article proceeds in five Parts. Part II provides a history
of recent federal?sub-federal cooperation and confrontation on
immigration enforcement, including measures undertaken by the
Trump Administration. Part III offers a path to understanding the
issue of cooperation, centering on three values: compliance,
coordination, and equity. Part IV considers whether the DOJ?s
conditions would exceed Congress?s power under the Spending
Clause. Part V proposes a statute-centered analysis of immigration
cooperation. It suggests an operational approach to reading ? 1373.
Part VI elaborates on the statute-centered analysis, applying it to
the DOJ?s conditions on Byrne Program funds.
II. Federal Initiatives Promoting Cooperation with Sub-Federal
A short primer on state, local, and federal interaction on
immigration enforcement helps set the stage. Some of those
interactions happen automatically, as part of the arrest process,
and are mandated by federal law. Other interactions happen
pursuant to agreements between federal and sub-federal entities.
Justice Assistance Grant Programs (July 25, 2017) (?From now on, the
Department will only provide Byrne JAG grants to cities and states that comply
with federal law, allow federal immigration access to detention facilities, and
provide 48 hours? notice before they release an illegal alien wanted by federal
authorities.?) (on file with the Washington and Lee Law Review); City of Chicago
v. Sessions, 321 F. Supp. 3d 855, 861 (N.D. Ill. 2018) (detailing the DOJ?s
conditions for Byrne grants).
39. See 8 U.S.C. ? 1373 (2012) (prohibiting sub-federal entities from
restricting the transfer of citizenship information to federal entities).
A. Anatomy of an Arrest: The Tacit Yet Pervasive Cooperation
Built into Basic State and Local Law Enforcement
The gap between rhetoric and reality on federal?sub-federal
immigration cooperation is most pronounced in the mundane
domain of every day law enforcement activity by states, cities, and
counties all over the United States. In today?s polarized
environment, federal officials do not acknowledge the abundant
immigration-related information that ordinary law enforcement
provides, because that would undercut the current
Administration?s efforts to paint resisting localities as ?sanctuary
cities.?40 Sub-federal entities also rarely stress this feature,
because it limits the utility of immigrant-friendly policies that
those entities usually highlight.41 Each side?s rhetoric has obscured
the practical aspects of cooperation on immigration enforcement.
Whenever an arrest occurs in the United States, the arresting
officer notifies the National Crime Information Center (NCIC)
database.42 The NCIC developed as both Congress and law
enforcement agencies at all levels of government increasingly
believed that a single large, readily searchable body of data would
be helpful.43 Easily accessible by any law enforcement officer,
NCIC handles millions of queries per day from over 90,000 law
enforcement agencies.44 The NCIC includes criminal histories of
millions of individuals.45 It also includes fingerprints and
information about suspected gang members, registered sex
offenders, and persons subject to court orders because of incidents
of domestic violence.46 In addition, the NCIC now includes a broad
range of immigration-related data, including information about
noncitizens who have remained in the United States despite being
subject to final orders of removal.47 Many federal law enforcement
agencies monitor the NCIC, including the DHS, which is in charge
of immigration enforcement.48
Local law enforcement officers interact with the vast NCIC
database in myriad ways. If they make an arrest, they send
information about the arrestee to NCIC.49 The NCIC, however, also
fields countless queries that do not involve an actual arrest. For
example, a stop based on reasonable suspicion will frequently
entail a check of NCIC.50 In addition, license plate queries and
automated law enforcement querying tools, such as license plate
readers, interact with the NCIC database.51 Whenever DHS
officials receive an NCIC hit, they have the opportunity to respond
by asking local law enforcement to detain the suspected
in the NCIC); Kalhan, supra note 15, at 1122?26 (detailing the expansion of the
45. See Kalhan, supra note 15, at 1124 (?Today, the NCIC consists of over
eleven million records in twenty-one files.?).
46. See id. (?[T]he NCIC?s scope has expanded to include other noncriminal
records, including information on suspected gang members and terrorists,
registered sex offenders, and subjects of domestic violence protection orders.?).
47. See id. at 1125 (?In late 2001, the government began entering records
concerning individuals who it has termed ?absconders? or ?fugitives?: individuals
with prior removal orders who are believed to remain in the United States.?).
48. See id. at 1108 (explaining how the federal ?Secure Communities?
program integrates DHS and NCIC databases).
49. See id. at 1122?23 (?Although maintained by the FBI, most [NCIC]
records and queries come from other law enforcement agencies, which access the
system?s multiple databases millions of times each day, usually with rapid
responses, during routine encounters with the public and other ordinary law
50. See id. (explaining how police officers can quickly access NCIC during
51. See id. at 1125?26 (?Increasingly, suspicionless license plate inquiries
may be conducted by automated plate readers, which, in addition to tracking
vehicle location and movements, may facilitate NCIC searches on a larger scale.?).
immigration violator.52 In addition, DHS can also use the
information provided, which indicates the individual?s location and
may include other data that local law enforcement officers enter to
narrow their own NCIC queries, such as the individual?s home
address or workplace.53 Local law enforcement enter this
information as a matter of course, even before they know or suspect
anything about a particular individual?s immigration status.54
This tacit yet ubiquitous cooperation in ?street-level? law
enforcement has two key effects. First, it means that all
sub-federal law enforcement entities provide substantial
assistance to federal immigration officials. Resistant sub-federal
entities provide this assistance, merely by virtue of the operation
of ordinary law enforcement procedures. Other policies pursued by
resistant entities may limit the impact of this assistance, but do
not decrease the baseline cooperation built into law enforcement at
all levels of government in the United States. Second, as we shall
see, at least until quite recently, the federal databases on
immigration violators were often inaccurate, including high
numbers of false positives?persons wrongly believed to be
violators, including U.S. citizens, who by definition are subject to
immigration enforcement activity.55 Those facts are useful in
assessing other types of federal?sub-federal cooperation, which I
turn to below.
52. See MIGRATION POLICY INST., BLURRING THE LINES: A PROFILE OF STATE
AND LOCAL POLICE ENFORCEMENT OF IMMIGRATION LAW USING THE NATIONAL
CRIME INFORMATION CENTER DATABASE, 2002?2004 12 (2005) (stating that if DHS
?confirms that the individual has an immigration violation, it will issue an
immigration ?detainer notice? requesting that the police department hold the
53. See Kalhan, supra note 15, at 1132?33 (discussing the ?informational end
run? for which DHS uses NCIC data).
54. See id. at 1125 (discussing sub-federal law enforcement officers? sending
?wanted person? inquiries to NCIC).
55. See, e.g., Chantal Da Silva, ICE Accused of Wrongly Detaining Hundreds
of American Citizens, NEWSWEEK, (May 5, 2018, 9:35 AM),
(last visited Sept. 12, 2018)
(discussing a case
where a mistake in immigration databases led to a U.S. citizen?s detention) (on
file with the Washington and Lee Law Review).
B. DHS Immigration Detainers
Detainers involve a request by DHS to detain an individual
who has already been arrested by state and local authorities.56
Immigration officials ask for an additional period of detention
beyond that person?s expected release.57 Using that additional
time, immigration officials investigate a person?s immigration
status. They may also seek custody if that person is in one of two
categories. First, the person might be an undocumented foreign
national?an individual without lawful immigration status or any
other basis for being lawfully present in the United States.58
Undocumented people typically have either entered the country
without inspection or a visa, or have overstayed after expiration of
a nonimmigrant visa, such as a visa given to students or tourists.59
Some have reentered the United States after receiving a final order
56. See 8 C.F.R. ? 287.7 (2011) (?A detainer serves to advise another law
enforcement agency that the Department seeks custody of an alien presently in
the custody of that agency, for the purpose of arresting and removing the alien.?).
57. See id. (explaining how DHS can request that local law enforcement
detain an alien for an additional period to allow DHS to gain custody of the alien).
58. The United States confers lawful immigration status in a variety of ways.
Noncitizens can be lawful permanent residents (LPRs), a status typically
acquired because of close relatives who are citizens or LPRs, or through a
government finding that the noncitizen has unique occupational talents or skills
useful in particular employment that citizens or LPRs cannot provide. Victims of
crime or human trafficking are also eligible for adjustment to LPR status, as are
minors abandoned by their families in their country of origin. In addition,
refugees and asylum grantees are eligible for LPR status, as are winners of the
diversity lottery. The United States also authorizes the entrance of millions of
nonimmigrant visitors for business, pleasure, and academics. In many cases, the
United States considers applicants for forms of legal status, such as asylum, to be
lawfully present pending adjudication of their applications. Moreover, the United
States grants temporary protected status to persons who would face a range of
serious difficulties in returning to their country of origin because of political strife
or natural disasters. The United States also grants deferred action to noncitizens
because of various factors that would make removal unduly harsh or inefficient.
A full description of the varieties of legal status and lawful presence is beyond the
scope of this Article.
59. See Ron Nixon, 629,000 Overstayed U.S. Visas Last Year, Homeland
Security Says, N.Y. TIMES, (May 22, 2017), https://www.nytimes.com/2017/05/22/us/
(last visited Aug. 1, 2018)
(documenting overstayed visas in 2017) (on file with the Washington and Lee Law
of removal, which constitutes a federal felony.60 Second, an
individual might be a former or current lawful permanent resident
(LPR) who is now removable or has already been ordered removed
because of certain criminal convictions accrued after admission to
the United States.61
Past detainers were often imprecise as to the length of time for
holding persons beyond their expected release date and sometimes
mistaken about whether that person was undocumented or even a
foreign national, as opposed to a naturalized citizen.62 In part
because of these problems, several courts found that compliance
with the specific detainers at issue violated the Fourth
Amendment.63 Moreover, as we shall see, detainers often
concerned low-level offenders, or even individuals whom local
officers decided not to charge at all.64 These issues contributed to
the end of the Secure Communities program, under which federal
60. See 8 U.S.C. ? 1326 (2012) (criminalizing reentry into the United States
after having been deported).
61. See Crimes That Will Make an Immigrant Deportable, NOLO,
(last visited Aug. 1, 2018)
(?All immigrants, including those with
green cards, can be deported if they violate U.S. immigration
laws . . . . Specifically, immigrants are at risk of being deported if they are
convicted of either what is called a ?crime of moral turpitude? or an ?aggravated
felony.??) (on file with the Washington and Lee Law Review).
62. See Galarza v. Szalczyk, 745 F.3d 634, 640?41 (3d Cir. 2014) (explaining
that detainer requests are not mandatory, and that custody cannot exceed
forty-eight hours); Morales v. Chadbourne, 793 F.3d 208, 222?23 (1st Cir. 2015)
(denying qualified immunity to ICE agents who had ?either formulated and
implemented a policy of issuing detainers against naturalized U.S. citizens
without probable cause or were deliberately indifferent to the fact that their
subordinates were issuing detainers against naturalized U.S. citizens without
63. See Michael Kagan, Immigration Law?s Looming Fourth Amendment
Problem, 104 GEO. L.J. 125, 128 (2015) (discussing a ?new wave of federal cases?
that have found ?constitutional weakness with the way in which immigrants are
taken into custody, not just with how long they are detained?). But see City of El
Cenizo v. Texas, 885 F.3d 332, 354?57 (5th Cir. 2018) (finding no Fourth
Amendment violation in typical federal practice of conducting immigration
arrests without a judicial warrant).
64. See Thomas J. Miles & Adam B. Cox, Does Immigration Enforcement
Reduce Crime? Evidence from Secure Communities, 57 J.L. & ECON. 937, 955
(2014) (noting that detained immigrants often have low level or no convictions).
officials had sought to require local entities to hold individuals
upon receipt of DHS detainers.65
Recently, DHS has made an effort to improve its practice with
respect to detainers by making detainers more tailored and
precise.66 Currently, detainers provide more specific information
about the subject named, stating that the subject is subject to
pending removal proceedings or a final order of removal, that the
government has biometric or other information indicating that the
individual is unlawfully present, or that the subject?s statements
or other ?reliable evidence? indicate that the subject is removable.67
Moreover, current detainers request additional detention of the
subject for no more than forty-eight hours pending a transfer of
custody to federal officials.68 These changes have ameliorated some
of the most egregious flaws of detainers. However, sub-federal
entities are still not required by federal law to honor any detainer
65. See Kate Linthicum, Obama Ends Secure Communities Program as Part
of Immigration Action, L.A. TIMES (Nov. 14, 2014, 4:00 AM),
(last visited Aug. 1, 2018)
(documenting the replacement of
the Secure Communities program with a program which targets only convicted
felons) (on file with the Washington and Lee Law Review).
66. See Immigration Detainer?Notice of Action, U.S. DEP?T HOMELAND SEC.,
(advising the detainee of his or her rights in the detainer process).
67. See id. (requiring the DHS official to list a reason creating probable cause
that the suspect is a removable alien).
68. See id. (?DHS has requested that the law enforcement agency that is
currently detaining you maintain custody of you for a period not to exceed 48
hours . . . . If DHS does not take you into custody during this additional 48-hour
period, you should contact your custodian . . . .?).
69. Cf. Detainer Policy, U.S. IMMIGR. & CUSTOMS ENFORCEMENT,
(last updated Mar. 29, 2017)
(last visited Aug.
(?When law enforcement agencies fail to honor immigration detainers
and release serious criminal offenders, it undermines ICE?s ability to protect
public safety and carry out its mission.?) (on file with the Washington and Lee
C. The 287(g) Program
Congress has also enacted Section 287(g) of the Immigration
and Nationality Act (INA),70 which authorizes agreements on
immigration enforcement between federal and sub-federal
entities.71 Section 287(g) programs come in two varieties. The first
type of program, called the task force model, contemplates
cooperation in the field between federal, state, and local
authorities.72 Agreements under this rubric are relatively rare,
although task forces under other statutory authority, such as
counterterrorism, are more common and more informal
cooperation also occurs in the field, as the statute itself
recognizes.73 The more common kind of 287(g) activity is called the
jail program.74 Under the jail program, state and local officials
interview inmates regarding immigration status.75 This program
has been especially effective at channeling undocumented
noncitizens into the immigration system.76 For the most part, the
70. 8 U.S.C. ? 1357(g) (2012).
71. See Kalhan, supra note 15, at 1118?19 (?[I]n 1996, Congress adopted
Section 287(g) . . . which authorizes federal authorities to enter agreements
enabling state and local law enforcement officers . . . .?); RANDY CAPPS ET AL.,
MIGRATION POLICY INST., DELEGATION AND DIVERGENCE: A STUDY OF 287(G) STATE
AND LOCAL IMMIGRATION ENFORCEMENT 8 (2011) (?Section 287(g) authorizes the
Attorney General . . . to enter into written agreements with state and local
officials? that authorize state and local officials to perform duties of immigration
72. See Huyen Pham, A Framework for Understanding Sub-federal
Enforcement of Immigration Laws, 13 U. ST. THOMAS L.J. 508, 516 (2017) (?[T]he
task force model . . . grants broader authority to [law enforcement agencies] to
conduct immigration enforcement tasks during their regular law enforcement
activities in the field . . . .?).
73. See 8 U.S.C. ? 1357(g)(10) (explaining that the subsection does not
obligate ?any officer or employee of a State or political subdivision of a State? and
the Attorney General to enter communication agreements).
74. See CAPPS ET AL., supra note 71, at 2 (?Contrary to public perception,
287(g) is almost entirely a jail program. . . . [J]ail models accounted for 90 percent
of detainers issued . . . .?).
75. See Pham, supra note 72, at 516?17 (discussing the potential drawbacks
of the jail program). A related program involves DHS officials interviewing jail
inmates. Id. at 517?19.
76. See id. (describing the jail program as ?the primary mechanism through
which ICE removes people from the U.S. interior? (internal quotation omitted)).
foreign nationals affected have been persons arrested for minor
crimes, not crimes involving serious violence.77
D. Other State Efforts
In addition, some states have sought to authorize state and
local law enforcement officers to cooperate with federal authorities
on immigration outside the context of the programs described
above. Section 287(g) permits this, under certain circumstances.78
Some state initiatives, however, inevitably come into conflict with
the discretion that the INA grants to federal officials. For example,
Arizona enacted legislation that purported to give its law
enforcement personnel authority to stop and detain persons upon
a ?reasonable suspicion? that those individuals were not lawfully
present in the United States.79 In addition, the Arizona law
purported to give law enforcement officers authority to arrest
LPRs whom the officers believe had committed ?public offenses?
that made those individuals removable under the INA.80 The
Supreme Court, in an opinion by Justice Kennedy, limited this
In Arizona v. United States,81 Justice Kennedy wrote for the
majority, stating that law enforcement officers could only inquire
about immigration status once they had made an arrest for an
offense designated as criminal under Arizona law.82 In other
words, suspicion about immigration status was not in itself a valid
basis for an arrest. Second, when sub-federal law enforcement
officials seek guidance from federal officials about a suspect?s
immigration status, sub-federal law enforcement officials must
still charge or release the suspect within forty-eight to seventy-two
hours.83 The Court held that federal law preempted any wider
reading of the Arizona law, because a wider reading would have
impinged on the discretion that federal officials have to enforce
immigration law, including the discretion to decline to place
someone in removal proceedings or to discontinue those
proceedings.84 Third, the Court held that the ?public offense?
portion of the Arizona statute was preempted by federal law.85
E. President Trump and Attorney General Sessions Enter the Fray
President Trump signaled early in his Administration that he
would expect more from cities and states that had previously
resisted cooperation on immigration enforcement. He issued an
Executive Order (EO) which announced that the DOJ would
compile information on so-called ?sanctuary cities? and seek to
terminate federal funding in appropriate circumstances for
sub-federal entities that failed to comply with federal law.86
President Trump?s Attorney General, former Senator Jeff
Sessions, informed courts considering challenges to the EO that
the Administration would not seek to terminate all the federal
funding received by any city or state that the Administration
determined was violating applicable federal laws. In a series of
public actions culminating in revisions to the grant process and
83. See Arizona, 567 U.S. at 413?15 (addressing concerns of prolonged
84. See id. at 413?14 (interpreting the Arizona law in a way that avoids
preemption and prolonged detention issues).
85. See id. at 410 (ruling that the Arizona law allowing state and local law
enforcement to engage in immigration enforcement is preempted by federal law).
86. See Exec. Order 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017); see also City
of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 597?98 (E.D. Pa. 2017)
(discussing the issuance of the Executive Order and various jurisdictions? reaction
crimes.213 At least above a certain threshold, sub-federal and
federal entities agree that linking immigration and ordinary law
enforcement is sensible.214 That agreement is enough to rebut
arguments that the jail program condition fails the Spending
If that argument were not enough, consider also that effecting
an orderly transfer of custody is safer and more efficient for federal
officers. Apprehending an individual in the community takes more
time and may require larger numbers of agents to secure the area
around the arrest. In contrast, the risk of injury is minimal during
a transfer of an individual noncitizen already in custody in a city
or county jail. When Congress assists sub-federal law enforcement
personnel through the Byrne Program, the Constitution does not
require that Congress remain indifferent to the safety and
efficiency of federal law enforcement personnel. Congress could
reasonably view increasing the safety and efficiency of federal
agents as a ?cross-cutting condition? related to federal funds
assisting sub-federal criminal justice efforts.215
2. The Practicable Notice Provision
The arguments for the relatedness of the practicable notice
provision are similar. Take the case of low-level property crime,
such as burglary or car theft. If federal immigration officials can
213. See Jennifer C. Critchley & Lisa J. Trembly, Historical Review, Current
Status and Legal Considerations Regarding Sanctuary Cities, 306-JUN N.J. LAW.
32, 32 (2017) (?Sanctuary cities have . . . been described as municipalities that
have adopted ?laws or policies that limit government employees, particularly local
police officers, from inquiring or disseminating information about the
immigration status of immigrants whom they encounter, except in the case of a
serious criminal offense.?? (emphasis added) (citations omitted)).
214. See George Joseph, Where ICE Already Has Direct Lines to
Law-Enforcement Databases with Immigrant Data, NPR (May 12, 2017, 1:44 PM),
visited Sept. 12, 2018)
(?[L]aw enforcement in hundreds of jurisdictions
nationwide, including major sanctuary cities like Seattle, Washington, D.C. and
Los Angeles, are feeding information into regional databases that can be combed
through by ICE.?) (on file with the Washington and Lee Law Review).
215. Cf. Pasachoff, supra note 151, at 271?74 (discussing cross-cutting
conditions, while not commenting specifically on immigration-related conditions).
arrange an orderly transfer of an individual noncitizen, that
promotes safety and efficiency. Moreover, the removal of low-level
offenders will provide at least a marginal benefit for crime rates.216
These factors are not compelling, but the Supreme Court?s
Spending Clause jurisprudence requires only a modest nexus.217
3. Section 1373 and Curbing Restrictions on Sub-Federal
Section 1373 presents a more complex question under the
Spending Clause. Much depends on how one reads the provision.
A narrow reading will almost certainly be constitutional. A broad
reading may not be.
To illustrate this point, first consider a broad reading, under
which a sub-federal entity loses the ability to direct how an
employee spends his or her time. Under this broad reading, a
sub-federal entity would have no recourse if an employee chose to
spend all of his or her time communicating with federal officials.
After all, under a broad reading, any attempt to dial back the time
the employee spent in this activity would be a ?restrict[ion]? that
would violate the statute.218 This reading would be manifestly
unreasonable. Congress cannot reasonably expect a sub-federal
entity to give up the authority to direct its employees? activities.
Such a surrender would skew accountability across different levels
of government and unduly discount sub-federal entities? interest in
running orderly and productive workplaces.
However, a narrower reading of the statute would not raise
problems under the Spending Clause. Suppose that one read the
statute as simply allowing sub-federal employees to contact federal
officials with immigration status information if the employee
reasonably believed this communication provided accurate
information to federal officials and might promote an orderly
transfer of custody. In that event, complying with ? 1373 would
216. See supra notes 101?107 and accompanying text (discussing the impact
of illegal immigrants on crime rates).
217. See infra notes 230?238 and accompanying text (explaining the Supreme
Court?s nexus jurisprudence).
218. 8 U.S.C. ? 1373 (2012).
promote the same goals as the conditions described above.
Spending Clause jurisprudence requires no more.
In sum, resistant states and their allies in the academy have
vastly overstated the ?bite? of Spending Clause jurisprudence on
the DOJ?s immigration conditions. Those conditions generally stay
on the right side of the Constitution, regardless of their merit as
policy or their fit as a matter of statutory interpretation. It is to
that statutory domain that we now turn.
V. A Statute-Centered Approach: Reading Section 1373 Against the Backdrop of ?Our Federalism?
If the Constitution does not preclude the DOJ?s conditions, the
next stop is the more prosaic but often fruitful path of statutory
interpretation. The first step in this inquiry is a matter alluded to
above: the scope of ? 1373. After determining ? 1373?s scope, it will
be useful to consider the propriety of conditioning Byrne Program
grants on certification of compliance with ? 1373 and on the two
other conditions set by the DOJ.
A. Section 1373 Nested in a Federalism Context
Properly interpreting ? 1373 requires consideration of its
overall context.219 That includes overarching values such as
federalism. A needlessly broad interpretation of ? 1373 that runs
roughshod over federalism values fails the test of context.
As Justice Frankfurter commented over seventy years ago,
interpreting a statute ?demands awareness of certain
219. See FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132 (2000)
(?In determining whether Congress has specifically addressed the question at
issue, a reviewing court should not confine itself to examining a particular
statutory provision in isolation. The meaning?or ambiguity?of certain words or
phrases may only become evident when placed in context.?).
presuppositions.?220 Congress ?legislates against the backdrop? of
overall understandings about the structure of American
governance.221 One key ?background principle? is federalism.222
Before the courts infer that Congress has sought to ??radically
readjust the balance of state and national authority,?? they should
require a clear statement from Congress.223
This interpretive caution is particularly apt when a federal
statute addresses ?areas of traditional state responsibility.?224 Core
matters concerning the ?punishment of local criminal activity?225
are integral to this essential state domain. In Bond, the Supreme
Court held that ?basic principles of federalism?226 counseled
against a ?boundless reading? of a federal statute implementing
the Chemical Weapons Convention.227 The broad reading the Court
avoided would have supplanted state responsibility for certain
garden-variety criminal prosecutions.228 Rejecting this
interpretation, the Court opted for a more modest reading of the
federal statute that preserved state responsibility over such
B. Section 1373 Through an Operational Prism
Section 1373 does not literally address matters of state
prosecution and punishment of crime. However, it cuts very close
to those core state functions, particularly on a broad reading of its
text. As noted above, a broad reading would suggest that a
sub-federal employer cannot control the terms of employment for
its personnel. In addition, the DOJ?s reading of ? 1373 would
apparently apply not merely to information about suspects, but
also to information about witnesses and victims. This reading
would clash with state judgments about how to nurture state
residents? cooperation with law enforcement. Judgments about the
optimal circumstances for effective deterrence, investigation, and
prosecution of crime are integral to sub-federal law enforcement.
Reading ? 1373 to interfere with these judgments would trench on
time-honored canons of statutory interpretation.
A reading of ? 1373 tailored to these canons would stress an
?operational nexus? between the grant at issue and the
administrative condition that the agency seeks to impose. The
attenuated conception of relatedness that suffices under the
Spending Clause does not fit this test.230 An operational nexus
requires a more concrete link between the condition specified and
the regular activities underwritten by the grant program.231
As a good example of an operational link, consider the agency
condition upheld by the Supreme Court in Lau v. Nichols.232 In
Lau, the Court, in an opinion written by Justice Douglas, found
that the Secretary of the cabinet department then known as
Health, Education, and Welfare (HEW)233 could require that school
districts receiving federal money take steps not merely to
eliminate intentional discrimination, but to eliminate practices
with discriminatory effects.234 The statute at issue, known as Title
VI of the 1964 Civil Rights Act,235 declared only that, ?No
person . . . shall, on the ground of race, color, or national origin, be
excluded from participation in, be denied the benefits of, or be
subjected to discrimination? in any ?program or activity? receiving
federal funds.236 HEW had construed Title VI to prohibit not
merely acts taken by a federal grantee with a discriminatory
purpose, but also acts with discriminatory effects.237 Under HEW?s
construction of Title VI, a grantee?s mere omission?the failure to
act affirmatively to aid a group?could be discriminatory, because
it would ?[r]estrict an individual . . . in the enjoyment of any
advantage or privilege enjoyed by others receiving any service?
funded by federal dollars.238
In Lau, HEW had interpreted its regulation to require that
school districts address the need for children from other countries
to learn English in order to benefit from education in the
substantive subjects in the curriculum.239 The Court upheld this
interpretation.240 Justice Douglas cited the legislative history of
Title VI, which reinforced the operational link between HEW?s
condition and the statute?s language.241 According to Senator
Hubert Humphrey, one of the primary sponsors of Title VI, ?Simple
justice requires that public funds . . . not be spent in any fashion
opportunity to participate in the educational program?all earmarks of the
discrimination banned by the regulations.?).
235. 42 U.S.C. ? 2000d (2012).
237. See Lau, 414 U.S. at 563, 568 (citing a regulation prohibiting any act or
omission that had ?the effect of defeating or substantially impairing
accomplishment of the objectives of the program as respect individuals of a
particular race, color, or national origin?).
238. Id. at 567 (citing 45 C.F.R. ? 803(b)(1)(iv)).
239. Id. at 568.
240. The Court did not require a specific mode of language instruction, such
as English as a Second Language (ESL) or bilingual education. Particular modes
of instruction have been controversial. See Horne v. Flores, 557 U.S. 433, 471?72
(2009) (reversing decision upholding denial of relief to state that had argued that
changed circumstances warranted modification of decree requiring certain kinds
of remedial language instruction).
241. See Lau, 414 U.S. at 568 (?Where inability to speak and understand the
English language excludes national origin-minority group children from effective
participation in the educational program offered by a school district, the district
must take affirmative steps to rectify the language deficiency.?).
which encourages, entrenches, subsidizes, or results in racial
discrimination.?242 Senator Humphrey?s use of the term,
?entrenches,? seems to best capture the concern of both HEW and
Justice Douglas: if school districts received federal funds, they
entered into a contract.243 In that contractual arrangement, the
consideration for the receipt of federal funds was a commitment on
the school district?s part to use that money in a fashion that
eliminated historic effects of discrimination and allowed
schoolchildren with limited knowledge of English to benefit from
the educational benefits provided to others.244 According to this
analysis, that construction best captured Congress?s intent:
permitting programs to receive federal dollars without making
such a commitment would have impaired both coordination and
Another operational link may reside in the sense that
requiring recipients of federal funds to identify, monitor, and
address the results of discrimination would make it harder for
recipients to create ?plausible deniability? of discriminatory
intent.246 Rather than remain shielded by plaintiff?s difficulty in
showing intent, school districts and other recipients of federal
funds would have to make an affirmative showing that they were
actually doing something about discrimination.247 Because
recipients of financial aid have superior access to information
242. Id. at 569.
244. Cf. Ming Hsu Chen, Governing by Guidance: Civil Rights Agencies and
the Emergence of Language Rights, 49 HARV. C.R.-C.L. L. REV. 291, 311?15 (2014)
(discussing mobilization around this issue in minority and civil rights
245. See Lau v. Nichols, 414 U.S. 563, 568?69 (1974).
246. See id. at 568 (Stewart, J., concurring) (describing the San Francisco
school district?s ?laissez-faire? attitude towards non-English speaking students).
247. Other scholars have advanced an analogous systemic approach as a
justification for affirmative action in employment that makes race or other
attributes a ?plus factor? in employment decisions. See Michael J. Yelnosky, The
Prevention Justification for Affirmative Action, 64 OHIO ST. L.J. 1385, 1396 (2003)
(?Where employees understand that merit criteria predominate in decision
making and that race and gender are simply ?plus? factors or tie-breakers,
affirmative action programs are more likely to be viewed as fair . . . .?).
about any intent to discriminate on their part, flipping the
presumptions was both appropriate and efficient.
In the immigration context, a full acknowledgment of
operational nexus entails acknowledging the overlap between
immigration and ordinary law enforcement. While immigration
enforcement does not inevitably intersect or overlap with ordinary
enforcement, areas of overlap are significant. For example, take
joint federal, state, and local efforts targeting the criminal gang,
MS-13.248 In joint task forces, law enforcement officials at the
federal, state, and local level work together to address drug
trafficking, violent crime, and other offenses committed by MS-13
members.249 As the Supreme Court explained in Muehler v.
Mena,250 joint task forces addressing such issues may also have
occasion to inquire about an individual suspect?s immigration
status.251 Sometimes that status will provide leverage over the
suspect, who is either undocumented or an LPR whose status
248. The threat posed by MS-13 may be exaggerated. The Article assumes
only that MS-13 members on occasion commit crimes, regardless of the overall
volume of such offenses.
249. See Anne Arundel County Leaders Launch Joint Task Force to Target
Gang Violence, CBS BALT. (Sept. 28, 2017, 6:18 PM), https://baltimore.
(last visited Aug. 18, 2018)
(noting that local law enforcement will be working
with the FBI) (on file with the Washington and Lee Law Review); cf. Marsh v.
United States, 29 F.2d 172, 173 (2d Cir. 1928) (citing ?universal practice of police
officers in New York to arrest for federal crimes, regardless of whether they are
felonies or misdemeanors?); Orin S. Kerr, Cross-Enforcement of the Fourth
Amendment, 132 HARV. L. REV. (forthcoming 2018) (manuscript 57)
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3141086 (noting that,
?[s]ince the time of the Founding, Congress has looked to state and local law
enforcement to help enforce federal criminal laws?) (on file with the Washington
and Lee Law Review). Marsh does not stand for the proposition that states have
inherent power?even in the absence of federal authorization?to enforce federal
law, including civil immigration law. See Gabriel J. Chin & Marc L. Miller, The
Unconstitutionality of State Regulation of Immigration Through Criminal Law,
61 DUKE L.J. 251, 279?82 (2011) (critiquing broad reading of Marsh). This Article
cites Marsh only to demonstrate the long history of express and implicit federal
designation of state law enforcement officers as federal agents.
251. See id. at 96 (observing that local police asked immigration officers to aid
them in conducting a search of a suspected gang safehouse, because police were
?aware that the . . . gang was composed primarily of illegal immigrants?).
would be jeopardized by a criminal conviction.252 In other
situations, a suspect may have reentered the United States after
receiving a removal order, thus violating the criminal prohibition
in the INA.253 On those occasions, it would be unwieldy to prohibit
state and local officials from inquiring about immigration status or
informing federal officials about what they know. A tailored
reading of ? 1373 would bar sub-federal entities from restricting
their employees? communication in this context.254
Reading ? 1373 as only applying to task forces would have
several benefits. Viewed as applying only to the work related
operation of task forces, ? 1373 would not unduly burden
sub-federal entities in a fashion that would conflict with Congress?s
252. See Jazmine Ulloa, Here?s Why Law Enforcement Groups Are Divided on
Legislation to Turn California into a ?Sanctuary State?, L.A. TIMES
(Mar. 12, 2017,
(last visited Aug. 18, 2018)
(?[T]he legislation raises
questions about their involvement in task forces, where local and state officers
can serve as translators for federal immigration officials, help carry out
immigration arrests and leverage information on immigration status during
interrogations.?) (on file with the Washington and Lee Law Review).
253. See 8 U.S.C. ? 1326(a) (2012), cited in S.B. 54, 2017?2018 Leg. Sess.,
? 7284.6(b)(1), (b)(3)
(conducting ?investigative duties? associated with
a joint law enforcement task force, including ?sharing of confidential
information?); cf. City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 603 (E.D.
Pa. 2017) (finding that city ?will continue to cooperate with federal authorities in
investigating and apprehending immigrants suspected of criminal activities? and
will share information necessary for such cooperation).
254. Some courts have asserted that ? 1373 is insufficiently related to law
enforcement because it also requires that sub-federal entities and officials do not
restrict information regarding citizenship status. See City of Philadelphia v.
Sessions, 280 F. Supp. 3d at 622. For these courts, inquiries about U.S. citizenship
are per se irrelevant to law enforcement. However, this argument is an unduly
literal reading of ? 1373?s use of the term ?citizenship.? That term needs to be read
in conjunction with the term, ?immigration status.? The most logical reading of
the term is that it allows sub-federal entities or officers to share information about
whether or not a given individual is a foreign national or a U.S. citizen. If the
individual is a foreign national, the range of immigration law remedies comes into
play; some may be helpful, depending on law enforcement?s need for leverage
against that person. Indeed, that is the only logical meaning of the term in
context. A law enforcement officer will have no need to ever communicate to
federal officials that an individual is a U.S. citizen, except where a question has
arisen over whether his citizenship status can provide leverage, in the event that
the individual is a foreign national. Beyond this situation, a gratuitous
communication to federal officials that an individual is a U.S. citizen would serve
no purpose at all. Congress should not be presumed to intend a nullity.
background understanding of ?our federalism? or with
anticommandeering doctrine.255 State and local law enforcement
would not have to tolerate employees who spent entire working
days on communications with federal officials that distracted from
their assigned duties. This operational construction would
optimize compliance with the criminal law?at least in the area of
major crimes?and preserve coordination between state and
federal law enforcement agencies. Moreover, viewed in this
narrower frame, ? 1373 would be consistent with equity.
Sub-federal entities could still monitor and discipline employees
who applied invidious criteria such as accent or appearance to
target individuals for arrest. Section 1373 would merely ensure
that state and local officials could participate in joint task forces
without interference from state and local laws purporting to limit
While two district courts have interpreted the Court?s decision
in Murphy v. NCAA as indicating that ? 1373 violates the
anticommandeering doctrine,256 that view reads Murphy too
broadly. Compared with ? 1373, the statute that the Court
invalidated in Murphy was a far more direct and comprehensive
dragooning of state sovereign processes. The statute at issue in
Murphy forced states to prohibit sports gambling instead of
asserting direct federal control over wagering in that sphere.257 In
255. See generally Printz v. United States, 521 U.S. 898 (1997) (discussing
federalism principles under Tenth Amendment); New York v. United States, 505
U.S. 144 (1992)
256. City of Chicago v. Sessions, No. 17-C-5729, 2018 U.S. Dist. LEXIS
125575, at *18?29 (N.D. Ill. July 27, 2018); see also City of Philadelphia v.
Sessions, 309 F. Supp. 3d 289, 327?34 (E.D. Pa. 2018)
(finding that ? 1373
violated Tenth Amendment, but also noting alternative holdings that ? 1373 did
not require compliance with the Attorney General?s notice or jail-access conditions
and that city was in substantial compliance with those conditions)
; cf. United
States v. California, 314 F. Supp. 3d 1077, 1099?1104 (E.D. Ca. 2018)
in pertinent part federal government?s request for preliminary injunction against
various state laws, finding that ? 1373 raises concerns under Tenth Amendment
but then holding that narrow interpretation of ? 1373 does not clash with state
provisions challenged by federal government)
; Jessica Bulman-Pozen, Preemption
and Commandeering Without Congress, 70 STAN. L. REV. 2029, 2045?47 (2018)
(arguing that ? 1373 is invalid under anticommandeering doctrine).
257. See Murphy v. NCAA, 138 S. Ct. 1461, 1465 (2018) (?The Professional
and Amateur Sports Protection Act (PASPA) makes it unlawful for a State . . . ?to
sponsor, operate, advertise, promote, license, or authorize by law or compact?
contrast, ? 1373 deals only with the far more limited realm of
contingent information-sharing by state and federal officials.
Section 1373 does not require that a state or state official share
information. It merely provides that if state officials possess
information about immigration status, state or local law cannot
restrict sharing of that information with federal authorities. The
federal government still has responsibility for arresting and
detaining foreign nationals under the INA, determining whether
those individuals are removable, and then effecting their removal
from the United States. Unlike the schemes struck down in Printz
and New York, ? 1373 does not require states to administer a
federal enforcement program. Unlike the statute that the Court
invalidated in Murphy, ? 1373 does not mandate that the state
legislature prohibit a wide swath of activity engaged in by private
individuals. The provision?s contingent impact on
information-sharing is consistent with the Court?s precedents
upholding federal constraints on states? information practices.258
Moreover, when read in the narrow fashion suggested in this
Article, ? 1373 does not appreciably affect sub-federal entities?
control over their employees. For example, under ? 1373, a
sub-federal entity is free to prohibit its employees from inquiring
about an individual?s citizenship or immigration status. A
sub-federal entity is limited only by the bar on restricting sharing
of information on immigration status that happens to be possessed
. . . competitive sporting events . . . . But PASPA does not make sports gambling
itself a federal crime.? (citations omitted)).
258. See Reno v. Condon, 528 U.S. 141, 141 (2000) (upholding federal statute
requiring states and other entities to adopt privacy safeguards); see also Printz,
521 U.S. at 918 (reserving issue of constitutionality of statutes that ?require only
the provision of information to the Federal Government?). In Murphy, the Court
noted that Condon?s upholding of the statute at issue in that case rested on the
law?s applicability to both state and private actors. Murphy, 138 S. Ct. at 1478?79.
Even under this more limited view of Condon, ? 1373 passes muster. While ? 1373
does not expressly bar states from restricting private individuals? sharing of
immigration status information with federal officials, state attempts at such
restrictions would clash with both the INA and the First Amendment. See Arizona
v. United States, 567 U.S. 387, 399?400 (2012) (observing that preemption
doctrine invalidates state laws that serve as an ?obstacle? to the execution of
federal law) (citation omitted). Section 1373 merely clarifies that prohibitions on
state interference with private individuals? sharing of information with the
federal government also apply to state interference with sub-federal officials?
by sub-federal officials. Restricting the sharing of such information
would hinder joint federal?sub-federal law enforcement operations
that even resistant states such as California recognize as vital.259
Section 1373?s contingent prohibition, enacted against the
backdrop of federal?state cooperation on criminal law enforcement
and broad, ongoing federal responsibility for regulation of
immigration, does not constitute impermissible commandeering.260
259. See CAL. GOV?T CODE ? 7284.6(b)(3) (West 2018) (permitting performance
of ?investigative duties? for a joint law enforcement task force, including ?sharing
of confidential information? related to immigration).
260. For the same reason, courts should narrowly interpret President
Trump?s Executive Order on sanctuary cities. See Exec. Order 13,768, 82 Fed.
Reg. 8,799 (Jan. 30, 2017). While the Ninth Circuit asserted that the avoidance
canon did not apply to Executive Orders, that view is shortsighted. See City &
Cty. of San Francisco v. Trump, 897 F.3d 1225, 1234 (9th Cir. 2018) (?In contrast
to the many established principles for interpreting legislation, there appear to be
few such principles to apply in interpreting executive orders.?). An unduly broad
reading of an executive order triggers structural risks for both the judiciary and
the executive branch. For the courts, an unduly broad reading sacrifices judicial
economy, which Justice Brandeis recognized as a key benefit of the avoidance
canon. See Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 345?48 (1936)
(Brandeis, J., concurring) (?The Court has frequently called attention to the ?great
gravity and delicacy? of its function in passing upon the validity of an act of
Congress . . . .? (citations omitted)). Courts save themselves the needless
institutional stress and strain of a constitutional adjudication if they can read an
executive order more narrowly and thus avoid the issue. In addition, read
narrowly, an executive order may serve entirely legitimate goals. For example, an
executive order may articulate the President?s policy views. The bully pulpit is a
traditional appurtenance of presidential leadership; courts should hesitate long
and hard before chilling the President?s ability to wield this effective rhetorical
weapon. Admittedly, much of President Trump?s rhetoric has been both
outrageous and polarizing. However, the Framers did not envision the federal
courts as policing presidential rhetoric. Indeed, in the travel ban case, which
involved rhetoric far more disturbing and blatantly biased than anything in the
sanctuary cities Executive Order, the Supreme Court warned that courts should
be wary of the ?delicate? task of parsing presidential statements. See Trump v.
Hawaii, 138 S. Ct. 2392, 2418 (2018) (recalling other instances when Presidents
have spoken to citizens in significant ways). The Supreme Court may have gone
too far with this warning, insulating even invidious presidential rhetoric off the
table in the adjudication of intent. Cf. Peter Margulies, The Travel Ban and the
Twilight of Judicial Craft: Taking Statutory Context Seriously 8?17 (Roger
Williams Univ. Legal Studies, Paper No. 183, 2018),
https://ssrn.com/abstract=3238087 (discussing treatment of campaign and
presidential statements in travel ban case). Nevertheless, as a tribunal obliged to
follow Supreme Court precedent, the Ninth Circuit should have paid more heed
to the Court?s caution. Cf. City & Cty. of San Francisco, 897 F.3d at 1245?50
(Fernandez, J., dissenting) (faulting majority for unduly broad reading of
VI. DOJ Conditions and the Byrne Program
In making available grants to sub-federal entities through the
Byrne Program, Congress did not intend to promote a ?one size fits
all? model of criminal justice.261 The Byrne Justice Assistance
Grant Program arose from the merger of two previous programs:
the Edward Byrne Memorial State and Local Law Enforcement
Program and Local Law Enforcement Block Grants.262 Congress
set up a formula that allocated grants, based on a state?s
population, for a range of purposes, including law enforcement,
prosecution and court, prevention and education, and
assistance?other than compensation?to crime victims and
Innovation and equity are twin pillars of the Byrne
Program.264 Congress wished to underwrite what Brandeis called
?laboratories of federalism?: sites in which state and local officials
closer to the people could try out new solutions and share best
practices.265 Moreover, the legislative history and saga of
congressional oversight suggest that Congress wished to reduce
bias in policing.266 The DOJ?s conditions would frustrate
President Trump?s Executive Order).
261. See Byrne JAG Spending Data: National Byrne JAG Spending in 2016
by Project Type, NAT?L CRIM. JUST. ASS?N,
(last visited Oct. 3, 2018)
(documenting over seventeen different categories of criminal justice related
funding) (on file with the Washington and Lee Law Review).
262. See generally Pub. L. No. 109-162, 119 Stat. 2960, 3094 (2006).
263. See id. at 3095 (providing that states awarded funding may use the grant
to partner with neighborhood and community groups).
264. See H.R. REP. NO. 110-729, at 2 (2008) (?These innovations [in crime
control] demonstrate that the best crime policy incorporates programs that help
at-risk youth avoid criminal behavior, and prepares prisoners for reentry into
society so they have meaningful and productive alternatives to crime when they
265. See New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932) (Brandeis,
J., dissenting) (?[A] single courageous state, may, if its citizens choose, serve as a
laboratory; and try novel social and economic experiments without risk to the rest
of the country.?).
266. See infra notes 273?88 and accompanying text.
Congress?s intent on the first point and exacerbate its concerns on
the second issue.
Before exploring this issue, it is worthwhile to consider the
statutory authority for the DOJ?s imposition of conditions. DOJ
contends that its ? 1373 certification condition is authorized as an
?applicable law? with which a Byrne grantee must comply.267 It
argues that the forty-eight-hour notice and jail space conditions
are authorized as ?special conditions? to set priorities under
formula grants.268 The most logical reading of ?all other applicable
laws? is construing it as a reference to laws ?outside? the Byrne
Program that govern interactions between sub-federal entities and
the federal government.269 The meaning of ?special conditions? is
less clear, because that appears in a different part of the statute
establishing DOJ funding programs.270 For that reason, courts
have found that the ?special conditions? provision does not
authorize conditions?such as the forty-eight-hour notice or jail
space conditions?not already enacted into law.271 However, the
?special conditions? provision may be more capacious, because it
authorizes the Assistant Attorney General heading the Criminal
Division to place such conditions on ?all grants.?272 This broad
language resists judicial cabining. To fully explore possible judicial
outcomes, this Article will assume that each of DOJ?s conditions
meet at least one of these threshold tests. However, that still
leaves the matter of determining whether any of the conditions is
substantively compatible with the Byrne Program.
267. See 34 U.S.C. ? 10153(a)(5)(D) (2012) (providing application deadlines);
see also City of Chicago v. Sessions, 264 F. Supp. 3d 933, 943?45
(N.D. Ill. 2017)
(discussing the Byrne JAG application requirements).
268. See 34 U.S.C. ? 10102(a)(6) (explaining duties of the Attorney General);
see also City of Chicago, 264 F. Supp. 3d at 941?42 (reviewing the extent of
executive authority under the Byrne JAG statute).
269. City of Chicago, 264 F. Supp. 3d at 943?45.
270. See generally U.S. DEP?T JUSTICE, DOJ GRANTS FINANCIAL GUIDE (2017).
271. See City of Chicago, 264 F. Supp. 3d at 941?42 (analyzing allowable and
substantive conditions on grants).
272. 34 U.S.C. ? 10102(a)(6) (emphasis added).
A. The Byrne Program?s Guiding Premises
To understand the objectives that Congress took to heart in
crafting the Byrne Program, a look at legislative history is helpful.
A 2008 House Judiciary Committee Report recommending
of Byrne JAG funding through 2012
program?s reliance on local ?innovations.?273 That same report also
stressed the need for a ?collaborative? relationship between federal
and state entities in reducing biased policing.274
The 2008 House Judiciary Report revealed a healthy
skepticism about a monolithic approach based on coercion or
punishment.275 The House Report highlighted the successes of
community-based alternatives to incarceration, including ?drug
courts, gang prevention strategies, and prisoner re-entry
programs,? explaining that ?the best crime policy . . . help[s]
at-risk youth avoid criminal behavior? and ensures that prisoners,
once released, have ?meaningful and productive alternatives to
crime.?276 In a telling reference, the Judiciary Committee Report
noted that Byrne Program funds supported at least one task
force?in Tulia, Texas?where a rogue officer arrested a
substantial number of African-Americans on false drug charges.277
In addition, the Committee discussed a number of instances in
which Byrne funds had supported task forces oriented toward
?low-level drug arrests,? and indicated displeasure with this
particular allocation of federal funds.278
Earlier oversight efforts on a predecessor to the Byrne
Program underline the importance of local flexibility and the
counterproductive nature of federal mandates. A
hearing in 1994
on the Byrne Grants that Congress later combined
with another funding stream to assemble the current program
273. See H.R. REP. NO. 110-729, at 2 (2008) (?Nationwide, the Byrne-JAG
grant program has resulting in major innovations in crime control, including drug
courts, gang prevention strategies, and prisoner re-entry programs, all which
provide proven and highly effective crime prevention.?).
provides a flavor of Congress?s sentiment.279 When the Clinton
Administration proposed replacing the Byrne Grant Program with
a new program that would reflect federal priorities, Congress
pushed back.280 In a hearing called to contest this move, the Chair
of the House Subcommittee conducting oversight cast the Byrne
Program as consistent with the Clinton Administration?s overall
approach, which the Chair described as aiming to ?empower
communities? through approaches that ?respect bottom-up
initiatives rather than top-down requirements.?281 In his prepared
statement, the Chair asked whether the proposed replacement to
the Byrne Program would be sufficiently ?flexible? to meet local
needs.282 Providing an example, the Chair cited the Byrne Grant
Program?s role in helping local law enforcement address
immigrants? concerns.283 According to the Chair, a California
county used Byrne funds to hire a ?South East Asian Gang
suppression officer to work within the Hmong immigrant
community.?284 A tailored approach that entailed listening to
immigrant communities? concerns was thus part and parcel of the
Byrne Program, per its congressional overseers.
The ranking minority member?a Republican?of the House
Subcommittee conducting the 1994 Hearing echoed the Chair?s
concerns.285 In a slap at the Clinton Administration?s proposal to
replace the Byrne Grant Program with one that was driven more
by specific federal priorities, the ranking member cautioned about
the ?one-fits-all pattern? of many federal programs and highlighted
the importance of programs that are ?flexible enough . . . [to] deal
with problems that are unique? at the local level.286 Warming to
his theme in a way that reflected the bipartisan nature of support
for the Byrne Program?s flexible style, the ranking member
assured his audience that ?law enforcement folks have a better
idea of how these funds can be spent than do people here in
Washington.?287 The ranking member described the Byrne
Program?s flexibility and ability to let local law enforcement
?adjust these funds to meet their changing needs? as ?critical.?288
B. Assessing DOJ?s Conditions in Light of the Byrne Program?s
History and Purpose
With this background, we can more readily evaluate whether
the DOJ?s conditions harmonize with the Byrne Program?s history
and logic. The operational view of ? 1373 meets this test. Notably,
however, virtually every relevant sub-federal entity substantially
complies with this narrow reading of ? 1373.289 In contrast, both
the forty-eight-hour notice and jail space conditions are
inconsistent with the Byrne Program?s local focus.
1. Section 1373 Certification
For the reasons stated earlier, an operational view of ? 1373
matches the logic and history of the Byrne Program. Tailored to
the operational needs of joint task forces investigating gang
activity or other concerted lawbreaking, ? 1373 honors sub-federal
interests in compliance and equity. At the same time, the
287. See id. (?Our law enforcement officials know what the problems are, and
they are telling us that flexibility is the key to combatting violent crime and drug
289. See City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 613 (E.D. Pa.
2017) (?Any lack of strict compliance is de minimis, as Philadelphia policies
provide no safe harbor nor sanctuary for any criminal alien.?).
operational view ensures baseline coordination, meeting federal
In the main, sub-federal entities already comply with ? 1373.
For example, California law tracks ? 1373?s language, expressly
disclaiming any effort to, ?prohibit or restrict any governmental
entity or official from sending to, or receiving from, federal
immigration authorities, information regarding the citizenship or
immigration status, lawful or unlawful, of an individual . . . .?290 In
addition, California law expressly exempts ?[c]onducting
enforcement or investigative duties? arising from a joint law
enforcement task force, including ?sharing . . . confidential
information,? as long as the task force?s ?primary purpose? is
something other than immigration enforcement.291 Even outside
the task force setting, California law also permits disclosure of
release date information, as long as that information is ?available
to the public.?292 In addition, California cooperates in all respects
with federal immigration enforcement regarding transfer of
custody of offenders convicted of serious crimes.293 When
immigration officials wish to interview a jail inmate to ascertain
whether that individual is a noncitizen who may be removable,
California expressly permits this access, although it also ensures
that inmates have relevant information about the purpose and
consequences of such interviews.294 Most other sub-federal entities
make comparable undertakings regarding compliance with
290. S.B. 54, 2017?2018 Leg. Sess. ? 7284.6(e)
291. Id. ? 7284.6(b)(3).
292. Id. ? 7284.6(a)(1)(C); see also id. ? 7284.6(a)(1)(D) (authorizing release of
personal information, such as home or work address, if that information is
?available to the public?).
293. Id. ? 7282.5(a).
294. Id. ? 7284.6(b)(5). However, California law bars provision of the regular,
dedicated jail space that immigration officials seek and DOJ wishes to require as
a condition of receipt of Byrne Program grants. Id. ? 7284.6(a)(5).
295. See generally Jane Chong, Sanctuary 101, Part II: What is a ?Sanctuary
Jurisdiction?? Let?s Stop Mystifying the Answer, LAWFARE (Mar. 14, 2017, 9:00
(last visited Sept. 11, 2018)
(on file with the
Washington and Lee Law Review).
However, California is not in compliance with the broader
view of ? 1373 adopted by the DOJ. On this view, ? 1373 includes
a categorical bar on sub-federal rules limiting disclosure of both
release dates and personal information, such as home and work
addresses.296 That broader view is problematic for several reasons.
First, it stretches the language of the statute, which only protects
communications ?regarding? immigration status.297 Immigration
status is a legal term dependent on judicial and administrative
findings in a particular case; it has no inherent relationship to
either a suspect?s release date or his or her personal information.298
The statute does not expressly designate such data as information
?regarding? immigration status.299 Moreover, the federalism canon
outlined earlier would counsel against this broad interpretation.300
The DOJ?s position would unduly intrude on sub-federal entities?
police powers, including their ability to promote compliance by
building trust in immigrant communities and ensure equity by
limiting officers? reliance on invidious criteria. Moreover, federal
immigration officials already have access to a vast amount of
personal information through the NCIC database that sub-federal
officers trigger with every arrest.301 In addition, sharing release
dates for suspects from pre-trial facilities is often impracticable,
because release is often contingent on a court setting bail on short
In sum, the operational view of ? 1373 fits with the Byrne
Program. Most sub-federal entities already comply. The broader
view advanced by DOJ would adversely affect the compliance and
296. See California ex rel. Becerra v. Sessions, 284 F. Supp. 3d 1015, 1024
(N.D. Cal. 2018) (addressing the state?s statutory provisions).
297. 8 U.S.C. ? 1373 (2012).
298. See Steinle v. City & Cty. of San Francisco, 230 F. Supp. 3d 994, 1015
(N.D. Cal. 2017)
(?Nothing in 8 U.S.C. ? 1373(a) addresses information concerning
an inmate?s release date. The statute, by its terms, governs only ?information
regarding the citizenship or immigration status, lawful or unlawful, of any
individual.?? (quoting 8 U.S.C. ? 1373(a))).
299. Id. at 1015?16.
300. See supra Part IV.
301. See City of Philadelphia v. Sessions, 280 F. Supp. 3d 579, 611 (E.D. Pa.
2017) (noting that ICE ?has no need for the City to designate individuals who are
subject to a specific release date?).
302. Id. at 608.
equity values discussed above. Furthermore, it would give
immigration officials little additional usable information.303
303. In addition to the provisions on law enforcement cooperation described
above, California has also enacted laws regulating private employers and
authorizing the California Attorney General?s access to records of certain
immigration detention facilities. See United States v. California, 314 F. Supp. 3d
1077, 1092?98 (E.D. Ca. 2018) (describing various California regulations
surrounding employer conduct and information access). California?s
authorization of Attorney General investigations of facilities run by the private
sector or state governmental subdivisions, CAL. GOV?T CODE ? 12532(c) (West
2017), is not the kind of ?obstacle? that triggers preemption. Cf. Arizona v. United
States, 567 U.S. 387, 399?400 (2012) (discussing the ?obstacle? theory of
preemption). Nor is a violation of the intergovernmental immunities doctrine
under the Constitution?s Supremacy Clause. The California statute does not give
the Attorney General the power to preclude such private or governmental units
from operating detention facilities. Instead, it merely authorizes access to records.
Those records could be useful in serving legitimate state purposes, including
determining whether state personnel improperly profiled individuals who ended
up in detention. That legitimate state purpose is sufficiently compelling for the
measure to survive preemption and intergovernmental immunity analysis. In
addition, California has imposed three significant limits on employers, barring
voluntary consent to immigration searches, CAL. GOV?T CODE ?? 7285.1, 7285.2
(West 2018); requiring notice to employees of pending federal record checks, CAL.
LAB. CODE ? 90.2 (West 2018); and barring employers from reverifying employees?
permission to work. Id. ? 1019.2. Each of these provisions is problematic under
preemption doctrine. The consent requirement is an obstacle to enforcement of
federal immigration law, because it precludes employers from providing consent,
even though federal law imposes no such requirement. Although a district court
has found that the notice requirement passes muster, that holding rests on a
cramped view of federal law. United States v. California, 314 F. Supp. 3d 1077,
1097 (E.D. Ca. 2018). Requiring notice to employees obviously undermines federal
enforcement efforts, because employees who have submitted fraudulent
identification documents will presumably leave the employer quickly after they
have received such notice, rather than remain on the job for a federal
investigation that will probably discover their unlawful status. If such
out-of-status employees leave prior to a federal search, that will also deprive
investigators of one valuable source of evidence regarding employer compliance
with federal law. As for the reverification bar, that measure impedes employers
from acting on a reasonable suspicion that an employee submitted false
documents. Id. at 1098. While the California provision has a savings clause that
permits reverification when this task is required by federal law, employers may
still be confused about their respective liability under state and federal law,
leading to a failure to inquire even when such inquiries stem from a reasonable
suspicion. Id. That disincentive clearly impedes the enforcement of federal law
and is thus preempted.
2. Notice Provision
In contrast, the two other DOJ conditions do not fit the Byrne
Program?s logic or purpose. The initial requirement of
forty-eight-hour notice amounts to a kind of detainer mandate.
That mandate is unduly onerous, because it may require holding
an individual after the person posts bail or charges are dropped.304
Like the Secure Communities program discussed earlier, the
forty-eight-hour notice provision would sweep in many petty
offenders or those never charged with a crime.305 These results
could alienate immigrant communities, drying up cooperation with
law enforcement while achieving only minimal improvements in
crime prevention. Such consequences would undermine the Byrne
3. Jail Space Program
The same can be said for DOJ?s jail space condition. The jail
program?s primary utility is finding low-level offenders, such as
drunk drivers. The Byrne Program?s preference for local flexibility
is inconsistent with federal mandates on low-level offenders. Here,
too, sub-federal entities will pay a compliance price through the
increased alienation of immigrant communities whose cooperation
is necessary for effective law enforcement. Conditioning receipt of
304. See Eagly, supra note 165, at 272 (?[Detainer is] a written request to hold
the immigrant for up to forty-eight hours beyond the regular scheduled release
from criminal custody (e.g., after posting bond, having a criminal case dismissed,
or completing a sentence) so that immigration officials have time to transfer the
person into immigration detention.?).
305. See supra notes 64?65 and accompanying text. The Attorney General?s
subsequent change to requiring only notice that is ?practicable? does not
materially change this analysis. City of Chicago v. Sessions, No. 17-C-5720, 2018
U.S. Dist. LEXIS 125575, at *7 (N.D. Ill. July 27, 2018). Admittedly, requiring
only notice that is practicable does not impliedly require holding individuals after
they have posted bail or sub-federal officials have dropped charges. In this
respect, the amended notice condition is less of a burden on the liberty of such
individuals and on sub-federal entities, which will not have to foot the bill for
additional confinement or find space to hold individuals flagged by federal
officials. Nevertheless, any notice to federal officials regarding the release of petty
offenders or those not charged at all will adversely affect community cooperation
with sub-federal law enforcement and hinder accomplishment of the Byrne
Byrne funds on an award of dedicated jail space for immigration
officials would undermine the community-centered approach at
the heart of the grant program.
II. Federal Initiatives Promoting Cooperation with Sub-Federal Entities...................................................... 1516 A. Anatomy of an Arrest: The Tacit Yet Pervasive Cooperation Built into Basic State and Local Law Enforcement ............................................................. 1517 B. DHS Immigration Detainers................................... 1520 C. The 287(g) Program ................................................. 1523 D. Other State Efforts .................................................. 1524 E. President Trump and Attorney General Sessions Enter the Fray ......................................................... 1525
III. Intergovernmental Conflict and Concord on Immigration Enforcement: Core Values ....................... 1527 A. Compliance............................................................... 1528 B. Coordination............................................................. 1533 C. Equity ....................................................................... 1541
IV. The Spending Clause and Tailoring DOJ's Conditions: A Blunt Instrument Unsuited to the Task ................... 1544 A. Overarching Concerns: Avoiding Intrusive Policing of the Spending Power............................... 1544 B. Specific DOJ Conditions .......................................... 1548 1. Giving Federal Officials Dedicated Space in Jails to Interview Inmates................................. 1548 2 . The Practicable Provision.................................. 1550 3 . 1373 and Curbing Restrictions on Sub-Federal Communication .................................................. 1551
C. Summary .................................................................. 1552
V. A Statute-Centered Approach : Reading Section 1373 Against the Backdrop of ?Our Federalism ? .................. 1552 A. Section 1373 Nested in a Federalism Context ....... 1552 B. Section 1373 Through an Operational Prism......... 1553
VI. DOJ Conditions and the Byrne Program...................... 1562 A. The Byrne Program's Guiding Premises ................ 1564 B. Assessing DOJ's Conditions in Light of the Byrne Program's History and Purpose ................... 1566 1 . Section 1373 Certification ................................. 1566 2 . Notice Provision ............................................... 15702 3 . Jail Space Program ............................................ 1570
VII. Conclusion ...................................................................... 1571 4 . See Bond v. United States , 134 S. Ct . 2077 , 2094 ( 2014 ) (cabining the
reach of federal statutes) . 5. Federal-state interaction on immigration enforcement has long been a
Heather K. Gerken , Uncooperative Federalism, 118 YALE L.J. 1256 ( 2008 );
106 MICH. L. REV. 567 ( 2008 ) ; Peter J. Spiro , The States and Immigration in an
Era of Demi-Sovereignties, 35 VA. J. INT'L L . 121 ( 1994 ). 6. I use the term ?sub-federal entities? to describe states and their
governmental subdivisions, including cities, counties, and towns. 7. I describe these entities as ?resistant? to flag their opposition to DOJ's 8 . See Daniel I. Morales, Transforming Crime-Based Deportation , 92
N.Y.U. L. REV . 698 , 715 - 23 ( 2017 ) (arguing that aggressive deportation of
criminal noncitizens would be counterproductive) . 20 . See Alison Frankel, Cities Say Trump's Sanctuary Policy is Unconstitutional,
REUTERS (Mar. 30 , 2017 , 5 :51 PM), https://www.reuters.com/ article/us-otc-
(last visited Sept . 16 , 2018 ) (reporting that American cities have sued the Trump
Review) . 21 . See South Dakota v. Dole , 483 U.S. 203 , 211 ( 1987 ) (outlining the limit
of Congress's power to impose conditions on receipt of federal funds ). 22 . 567 U.S. 519 ( 2012 ). 35 . See CAL. GOV'T CODE ? 7284 . 6(b)(3) (West 2018) (prohibiting, with limited
exceptions, sub-federal spending on immigration enforcement) . 36 . 34 U.S.C. ? 10152 ( 2012 ). 37 . See The Byrne JAG Grant Program , NAT'L CRIM. JUST. ASS'N ,
https://www.ncja.org/ncja/policy/about-byrne -jag (last visited Oct . 2 , 2018 ),
Washington and Lee Law Review). 38 . See Press Release, Dep't of Justice, Attorney General Sessions
Announces Immigration Compliance Requirements for Edward Byrne Memorial 40 . See Connie Bruck, Inside California's War on Trump, NEW YORKER (Mar .
26, 2018 ), https://www.newyorker.com/magazine/2018/03/26/inside-californias-
war-on-trump (last visited Sept . 11 , 2018 ) (discussing California Governor Jerry
Lee Law Review) . 41 . See Kalhan, supra note 15 , at 1122-26 ( noting extent of state cooperation
in routine law enforcement) . 42 . See 28 U.S.C. ? 534 ( 2012 ) (requiring the Attorney General to collect
arrest information via the NCIC) . 43 . See National Crime Information Center (NCIC), FBI ,
https://www.fbi.gov/services/cjis/ncic (last visited Aug. 1 , 2018 ) (documenting the
history of the NCIC) (on file with the Washington and Lee Law Review) . 44 . See Laura Sullivan, Comment, Countering the Threat Posed to Sanctuary
Center Database , 97 CALIF. L. REV. 567 , 584 ( 2009 ) (?Accessible in stationhouses
requests per day for more than 90,000 law enforcement agencies .?); Jennifer M.
Chac?n , Immigration and the Bully Pulpit , 130 HARV. L. REV . F. 243 , 250 - 51
( 2017 ) (discussing the ramifications of including immigration-related information 77 . See Guillermo Cantor, Mark Noferi & Daniel E. Martinez, ENFORCEMENT
OVERDRIVE: A COMPREHENSIVE ASSESSMENT OF ICE'S CRIMINAL ALIEN PROGRAM 1
( 2015 ), https://www.americanimmigrationcouncil.org/sites/default/files/research/
crimes the Federal Bureau of Investigation (FBI) classifies as serious . ?) . 78 . See 8 U.S.C. ? 1357 (g) ( 2012 ) (permitting the Attorney General to enter
into enforcement agreements with state and local law enforcement agencies ). 79 . See Arizona v. United States , 567 U.S. 387 , 411 ( 2012 ) (discussing the
limits of the state's provision) . 80. Id. at 394 . 81. 567 U.S. 387 ( 2012 ). 82 . See id. at 413 (? Detaining individuals solely to verify their immigration
Texas statute similarly in City of El Cenizo v . Texas. 885 F.3d 332 , 349 ( 5th Cir . 220 . Bond v. United States , 134 S. Ct . 2077 , 2088 ( 2014 ) (citing Felix
Frankfurter , Some Reflections on the Reading of Statutes , 47 COLUM. L. REV. 527 ,
537 ( 1947 )). 221 . Id . 222 . Id . 223 . Id. at 2089 (citing Felix Frankfurter, Some Reflections on the Reading of
Statutes , 47 COLUM. L. REV. 527 , 539 - 40 ( 1947 )). 224 . Id. at 2088 . 225. Id . 226 . Id. at 2090 . 227. Id . 228 . See id. at 2091 (discussing the potential ramifications of an overly broad
reading of the statute) . 229 . See id. at 2093 - 94 (? Absent a clear statement of that purpose, we will
state authority.?) . 230 . See , e.g., South Dakota v. Dole , 483 U.S. 203 , 208 - 09 ( 1987 ) (discussing
the concept of relatedness) . 231 . See id. at 2013 ( ?Congress may condition grants under the spending
see also Cty. of Santa Clara v . Trump , 250 F. Supp . 3d 497 , 532 (N.D. Cal .)
(?[F]unds conditioned on compliance with Section 1373 must have some nexus to
immigration enforcement.?) , reconsideration denied, 267 F. Supp . 3d 1201 (N.D .
Cal . 2017 ), appeal dismissed as moot sub nom . City & Cty . of San Francisco v.
Trump , No. 17 - 16886 , 2018 WL 1401847 ( 9th Cir. Jan. 4 , 2018 ). 232 . 414 U.S. 563 ( 1974 ). 233 . These departments were separated after Lau into Health and Human
Services and Education, respectively. 234. See Lau v. Nichols , 414 U.S. 563 , 568 ( 1974 ) (?It seems obvious that the
majority from respondents' school system which denies them a meaningful 279. See generally Federal Assistance to State and Local Law Enforcement:
on Info. , Justice , Transp. , & Agric. of the H. Comm. on Gov't Operations , 103d
Cong. ( 1994 ). 280 . See id. at 2 (statement of Rep . Gary Condit, Chairman, H. Subcomm . on
elimination of the Byrne Program) . 281. Id. at 2. 282. Id. at 4 . 283. Id . 284 . Id . 285 . See id. at 5 (statement of Rep . Craig Thomas, Ranking Minority Member,