The Trump administration’s attack on sanctuary cities has failed. Again.
On Wednesday, U.S. District Judge Michael Baylson ruled that Attorney General Jeff Sessions may not withhold federal funds from Philadelphia due to the city’s “sanctuary” policies, which bar local law enforcement from sharing residents’ immigration status with the federal government. Baylson’s sharply worded decision marks yet another blow to Sessions’ failed quest to penalize sanctuary jurisdictions by stripping them of cash. And, in case there was any ambiguity before, it confirms that a recent decision by the U.S. Supreme Court should render this particular Trump administration crusade obviously illegal.
The conflict between Sessions and Philadelphia revolves around the Edward Byrne Memorial Justice Assistance Grant, through which the federal government helps to fund local law enforcement. In 2017, Sessions declared that cities would only receive JAG grants if they cooperated with Immigration and Customs Enforcement. Specifically, every city had to give ICE access to its prisons, give ICE advance notice when releasing an undocumented immigrant, and provide ICE with the immigration status of detainees. Philadelphia refused, asserting that the community would lose trust in its police if officers were compelled to help enforce federal immigration law. In doing so, it risked losing about $1.6 million, much of which would have equipped officers with the drug Narcan to help to counteract opioid overdoses.
Instead of forfeiting the funds, Philadelphia sued, alleging that Sessions’ directives were unlawful. A number of federal courts agreed—and in November, Baylson did too, issuing a preliminary injunction against Sessions in the Philadelphia case. Now he has issued a permanent injunction indefinitely barring the Trump administration from denying JAG grants to Philadelphia because of its sanctuary policies.
Baylson found that Sessions’ rules were illegal for a number of reasons. First, and perhaps most obviously, they are simply “ultra vires”—beyond his authority to impose. It is Congress, not the executive branch, that has authority to attach conditions on spending. And Congress in no way indicated that the Justice Department, an executive agency, may use these grants to dragoon municipalities into colluding with ICE. Second, and relatedly, Baylson held that Sessions’ conditions violated the constitutional separation of powers, as well as the Constitution’s Spending Clause, by restricting the distribution of federal funds without congressional approval. Third, Baylson found the conditions to be “arbitrary and capricious” in violation of the Administrative Procedure Act, because the DOJ provided no rational reason to hold JAG grants hostage in order to secure local cooperation with ICE.
Fourth, and most importantly, Baylson ruled that Sessions had run afoul of the 10th Amendment’s bar on federal “commandeering” of the states. The Supreme Court recently reaffirmed this rule in Murphy v. NCAA, a 7–2 decision striking down the federal ban on sports betting. In Murphy, Justice Samuel Alito explained that the Constitution prohibits the federal government from compelling state officials to implement federal policy. Thus, Congress may not forbid states from legalizing sports gambling. The cardinal rule, Alito noted, is that while the federal government may regulate private actors—individuals, businesses, and the like—it may not regulate states themselves or, by extension, state officials.
Yet that, Baylson held, is precisely what Sessions has attempted to do here. “On their face,” he wrote, Sessions’ conditions “regulate state and local governmental entities and officials, which is fatal to their constitutionality under the Tenth Amendment.” The Constitution grants states (and their political subdivisions) the prerogative to pass and enforce their own laws free of heavy-handed federal meddling. And so, under Murphy, Sessions may not lawfully coerce Philadelphia into adopting the executive’s preferred anti-sanctuary policies.
There is a great deal of irony in the fact that Baylson relies upon an opinion by Alito—a staunch opponent of immigrant rights—to protect immigrants in Philadelphia. But that’s how the federalism cookie crumbles: When the presidency veers right, states retain their sovereign authority to swing left and protect their most vulnerable residents against federal abuse.
Baylson’s lengthy opinion bristles with irritation toward the executive branch’s massive overreach on immigration issues. But at bottom, his opinion merely expresses the growing judicial consensus that Trump may not punish jurisdictions that refuse to participate in ICE’s nationwide crackdown.