Deconstructing “Sanctuary Cities”: The Legality of Federal Grant Conditions That Require State and Local Cooperation on Immigration Enforcement

Washington and Lee Law Review, Nov 2018

By Peter Margulies, Published on 11/05/18

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https://scholarlycommons.law.wlu.edu/cgi/viewcontent.cgi?article=4617&context=wlulr

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 Enforcement Peter Margulies* * Professor of Law, Roger Williams University School of Law; B.A., Colgate; J.D., Columbia Law School. I. Introduction 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), https://www.lawfareblog.com/sanctuary-101-part-i-what-trumps-executive-orderdoesnt-do-cannot-do-and-has-little-do (last visited Aug. 12, 2018) (discussing the 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) (granting 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 immigration enforcement). 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), https://www.washingtonpost.com/local/immigration/defiance-resistance-the-frontlines-of-californias-war-against-the- trump-administration/2018 /03/11/45e7833e2309-11e8-86f6-54bfff693d2b_story.html?utm_term=.1eec3b59d437 (last visited Sept. 12, 2018) (documenting California?s battle with the Trump Administration over immigration enforcement) (on file with the Washington and Lee Law Review). 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. propublica.org/article/racial-profiling-ice-immigration-enforcement-pennsylvania (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), https://www.vox.com/2018 /5/23/17229464/jeff-sessions-immigration-trump-illegal (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 Review). 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 resistance recommend. 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 themselves). 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 law) . 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 safeguards). 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 presumptions?). 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 sub-federal entities.35 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 crime.39 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 Entities 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 NCIC). 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 enforcement duties.?). 50. See id. (explaining how police officers can quickly access NCIC during routine encounters). 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 individual?). 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), https://www.newsweek.com/ice-accused-wrongly-detaining-hundreds-americancitizens-holding-some-years-906746 (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/ homeland-security-foreigners-overstayed-visas.html (last visited Aug. 1, 2018) (documenting overstayed visas in 2017) (on file with the Washington and Lee Law Review). 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, https://www.nolo.com/legal-encyclopedia/crimes-that-will-make-immigrantdeportable.html (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 probable cause?). 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 request.69 65. See Kate Linthicum, Obama Ends Secure Communities Program as Part of Immigration Action, L.A. TIMES (Nov. 14, 2014, 4:00 AM), http://www.latimes.com/local/california/la-me-1121-immigration-justice20141121-story.html (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., https://www.ice.gov/sites/default/files/documents/Document/2017/I-247A.pdf (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, https://www.ice.gov/detainer-policy (last updated Mar. 29, 2017) (last visited Aug. 1, 2018) (?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 Law Review). 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 officers). 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 state authority. 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 2018). 83. See Arizona, 567 U.S. at 413?15 (addressing concerns of prolonged detention). 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 to it). 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 Clause test. 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), https://www.npr.org/sections/codeswitch/2017/05/12/479070535/where-icealready-has-direct-lines-to-law-enforcement-databases-with-immigrant-d (last 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 Communication 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. C. Summary 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 matters.229 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). 236. Id. 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 equity values.245 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. 243. Id. 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 communities). 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. cbslocal.com/2017/09/28/anne-arundel-county-gang-violence-ms13-joint-task-force/ (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, 12:05 AM) , http://www.latimes.com/politics/la-pol-sac-police-sanctuary-state20170312-story.html (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) (Cal. 2017) (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 such cooperation. 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 denying 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? information-sharing. 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 witnesses.263 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, https://www.ncja.org/ncja/byrne-jaginvestments-and-impact/expenditures-by-project-type (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 return home.?). 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 continuation of Byrne JAG funding through 2012 emphasized the 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 congressional 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.?). 274. Id. 275. Id. 276. Id. 277. Id. 278. Id. 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 286. Id. 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 enforcement issues.?). 288. Id. 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 needs. 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 ? 1373.295 290. S.B. 54, 2017?2018 Leg. Sess. ? 7284.6(e) (Cal. 2017) . 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 AM), https://lawfareblog.com/sanctuary-101-part-ii-what-sanctuary-jurisdictionlets-stop-mystifying-answer (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 notice.302 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 Program?s goals. 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 Program?s objectives. 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- sanctuary /cities-say-trumps-sanctuary-policy-is-unconstitutional-idUSKBN171361 (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,


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Peter Margulies. Deconstructing “Sanctuary Cities”: The Legality of Federal Grant Conditions That Require State and Local Cooperation on Immigration Enforcement, Washington and Lee Law Review, 2018,