1 Harry Sandicic - University of Houston Law Center...Michael D. Schwartz PATTERSON BELKNAP WEBB &...

10147679v.1

BRIEF AMICI CURIAE OF LAW SCHOLARS

Case No. 17-cv-4701-WH

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Harry Sandick

Jamison Davies

Michael D. Schwartz

PATTERSON BELKNAP WEBB & TYLER LLP

1133 Avenue of the Americas

New York, New York 10036

Telephone: (212) 336-2000

Attorneys for Amici Curiae

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

STATE OF CALIFORNIA, ex rel, XAVIER BECERRA, in his official capacity as Attorney General of the State of California

Plaintiff,

vs.

JEFFERSON B. SESSIONS, in his official capacity, as Attorney General of the United States; ALAN R. HANSON, in his official capacity as Acting Assistant Attorney General; UNITED STATES DEPARTMENT OF JUSTICE; and DOES 1-100,

Defendants.

Case No. 17-cv-4701-WHO

BRIEF AMICI CURIAE OF ADMINISTRATIVE LAW, CONSTITUTIONAL LAW, AND IMMIGRATION LAW SCHOLARS IN SUPPORT OF PLAINTIFF'S MOTION FOR A PRELIMINARY INJUNCTION

Hearing Date:

December 13, 2017 Time:

2:00pm Complaint Filed:

August 14, 2017 Trial Date:

Not Set

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Harry Sandicic

Jamison Davies

1Vlichael D. Schwartz

PATTLRSON BELKI'~1AP WEBB &TYLER LLP

1133 Avenue of the Americas

New Yorlc, New York 10036

Telephone: (212) 336-2000


UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNfA

STATE OF CALIFORNIA, ex rel,x11VIER ~3ECERRA, in his officialc~ipacity as Attorney Ueneral of the Stateof California

Plaintiff,

vs.

JEFFERSON B. SESSIONS, in hisoff cial capacity, as attorney General ofthe United States; ALAN R. IIANSOI~T,in his official capacity as ActingAssistant Attorney Ue~neral; iJNITEDSTATES DEPARTMENT OF JUSTICE;and DOES 1-1U0,

Case No. 17-cv-4701-VVHO

BRIEF AMICI CU~.IAE OFADMINISTRATIVE LA~V,CONSTIT~JTI01~1AL LAW, A1~DIMMIGRATION LAW SCH~LAR~ INSUPPORT OF PLAINTI~,F'S MOTIONFOR A PRELIMINARY INJUNCTION

Hearing Date:Time:Complaint filed:Trial Date:

Defendants.

December 13, 20172:OOpmAugust 14, 2017Not Set

BRIEF AMICI CURIAE OF LAW SCHO]

Case No. 17-cv-4701-

1014767Iv.1

Case 3:17-cv-04701-WHO Document 47-1 Filed 11/29/17 of 25

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES ii

PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENT 1

ARGUMENT 2

I. THE ATTORNEY GENERAL HAS DISREGARDED

CONSTITUTIONAL LIMITS ON THE EXERCISE OF FEDERAL

SPENDING POWER THAT PROTECT STATES AND LOCALITIES 2

A. The Administration Has Repeatedly Sought to Unilaterally

Impose Conditions on Byrne JAG Funding Without Legal Authority 3

B. The Attorney General's Section 1373 Condition Violates the

Spending Clause's Germaneness Requirement 6

II. THE ATTORNEY GENERAL'S SECTION 1373 CONDITION

RAISES SERIOUS CONSTITUTIONAL QUESTIONS UNDER THE

TENTH AMENDMENT 10

CONCLUSION 12

10147679v.1

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TA.RLE OF CONTENTS

TABLE OF CONTETvTTS ................................................................................................... i

TABLE OF AUTHO?ZITIES ............................................................................................ ii

PRELIMINARY- STATEMENT AND SUMMARY OF ARGUMENT .........................1

ARGUMENT.................................................................................................................... 2


CONSTITUTIONAL LIMITS ON TIIE EXERCISE OF FEDERAL

SPENDING POWER THAT PROTECT STATES AND LOCALITI~S .............2

A. the Administration Has Repeatedly Sought to Unilaterally

Impose Conditions nn Byrne JAG Funding Without Legal Authority.......3

B. The At~orney General's Sectzon 1373 Condition Violates the

Spending Clause's Germaneness Requirement ..........................................6

II. THE ATTORh1EY GENEIZ~L' S SECTION 13.73 CONDITION


TENTH AMENDMEI~TT .....................................................................................10

CONCLUSION:..............................................................................................................12

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TABLE OF AUTHORITIES Page(s)

Cases

City of Chicago v. Sessions, 2017 U.S. Dist. LEXIS 149847 (N.D. Ill. Sept. 15, 2017) 2, 5

City of New York v. United States, 179 F.3d 29 (2d Cir. 1999) 12

City of Philadelphia v. Sessions, 2017 U.S. Dist. LEXIS 188954 (E.D. Pa. Nov. 15, 2017) 2, 4, 6, 10

Cty. of Santa Clara v. Trump, 250 F. Supp. 3d 497 (N.D. Cal. 2017) 1, 3, 4

N. M. Chapter of Assoc. Builders & Contractors, Inc. v. Lavin, 431 F.3d 1004 (7th Cir. 2005) 7

New York v. Trump, No. 1:17-cv-05228 (E.D.N.Y. Sep. 6, 2017) 9

New York v. United States, 505 U.S. 144 (1992) 10, 11

NFIB v. Sebelius, 567 U.S. 519 (2012) 11

Pennhurst State Sch & Hosp. v. Halderman, 451 U.S. 1 (1981) 4

Printz v. United States, 521 U.S. 898 (1997) 2, 11

South Dakota v. Dole, 483 U.S. 203 (1987) 2, 5, 7

Steinle v. San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017) 6

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TABLE Q~' AUTHORITIESPages}

C:a~es

City of ClZzcago v. Sessions,2017 U.S. Dist. LEXIS 149847 (N.D. Ill. Sept. 15, 2017) ......................................2, 5

City of New York v. United States,179 F.3d 29 (2d Cir. 1999) ........................................................................................12

City of Philadelphia v. Sessions,2017 U.S. Dist. LEXIS 188954 (E.D. Pa. Nov. 15, 2017) ............................2, 4, 6, 10

Cty. of Santa Cla~^a v. T~u~np,250 F. Supp. 3d 497 (N.D. Cal. 2017) .................................................................1, 3, 4

N. Ill. ChapteN of Assoc. Builders 8z Contractor^s, Inc. v. Lavin,431 F.3d 1004 (7th Cir. 2005) .....................................................................................7

New Yo~~k v. TrzcYnp,No. 1:17-cv-052213 (E.D.N.Y. yep. 6, 2017) ............................................................;.:9

New YoJ~Iz v. United States,505 U.S. 144 (1992) ............................................................................................10, 11

NIi1B v. Sebelius,567 U.S. 519 (20].2) ..................................................................................................11

Penl~lzu~^st State Sch. & Hosp. v. Halderman,451 U.S. 1 (1981) ........................................................................................................4

Printz v. United States,521 U.S. 898 (1997) ..............................................................................................2, 11

South Dakota v. Dole,483 U.S. 203 (1987) ............................................................................................2, 5, 7

Steinle v. San Francisco, .......................................................................230 F. Supp. 3d 994 (N.D. Cal. 2017). • 6

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Constitution, Statutes & Executive Orders

U.S. Const. art. I, § 8, cl. 1 1, 3

U.S. Const., art. I, § 9, cl. 7 3

U.S. Const., Amend. X 2, 10, 11, 12

8 U.S.C. § 1373 passim

34 U.S.C. § 10152 7, 8

34 U.S.C. § 10152(a)(1) 8

34 U.S.C. § 10152(d) 8

34 U.S.C. §§ 10153 8

34 U.S.C. § 10153(a) 7

34 U.S.C. § 10153(a)(5)(D) 4, 5

Exec. Order 13,768, Enhancing Public Safety in the Interior of the United States, 82 Fed. Reg. 8799 (Jan. 25, 2017) 4

Cal. Gov't Code § 7282 2, 10

Cal. Gov't Code § 7283 2, 10, 11

Cal. Gov't Code § 7284 2, 10, 12

Legislative History

Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. (2015) 7

11.R. Rep. No. 109-233 (2005) 8

Immigration Act of 1990, Pub. L. No. 101-649, tit. V, § 507(a), 104 Stat. 4978 (1990) 7

Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub. L. No. 102-232, tit. III, § 306(a)(6), 105 Stat. 1733 (1991) 7

Stop Sanctuary Cities Act, S. 1814, 114th Cong. (2015) 7

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Constitution, Statutes &Executive Orders

U.S. Const. art. I, § 8, cl. 1 ............................................................................................1, 3

IJ.S. Const., art. I, § 9, cl. 7 ...............................................................................................3

U.S. Const., Amend. X ....................................................................................2, 10, 11, 12

8 U.S.C. ~ 1373 ..........:.............................................................................................passim

34 U.S.C. § 10152 .........................................................................................................7, 8

34 U.S.C. § 10].52(a)(1) ....................................................................................................8

3~ U.S.C. § 10152(d) ........................................................................................................ 8

34 U.S.C. §§ 10153 ...........................................................................................................8

34 U.S.C. § 101S3(a) ........................................................................................................7

34 U.S.C. ~ 10153~a~~5)~D) ..........................................................................................4, 5

Fxec. Order 13,768, Enhancing Public Safety in the Interior of tlae United

States, 82 Fed. Reg. 8799 (Jan. 25, 2017) ................................................................... 4

(~al. Gov't Code § 7282 ..............................................................................................2, 10

Cal. Gov't Code § 7283 ........................................................................................2, 10, 11

Cal. Gov't Code § 7284 ........................................................................................2, 10, 12

3C.egislative History

enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. (2015) .................... 7

F .R. Rep. I~To. 109-233 (2005) ..........................................................................................8

Immigration Act of 1990, Pub. L. No. 101-649, tit. V, § 507(a),

104 Stat. 4978 (1 ~90) .................................................................................................. 7

N~iscellaneous and Technical Immigration and Naturalization Amendments

of 1991, Pub. L. I~1o. 102-232, tit. III, § 306(a)(6), 105 Stat. 1733 (1991) .................7

S-top Sanctuary Cities Act, S. 1$14, 114th Cong. (2015) .................................................7

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10147679v.1


Other Authorities

The Federalist No. 48 (James Madison) (Clinton Rossiter ed., 1961) 3

Christopher Ingraham, Trump says sanctuary cities are hotbeds of crime. Data say the opposite, The Washington Post (Jan. 27, 2017) 9

Christopher N. Lasch, Sanctuary Cities and Dog-Whistle Politics, 42 New Eng. J. on Crim. & Civ. Confinement 159 (2016) 9

Robert A. Mikos, Can the States Keep Secrets from the Federal Government?, 161 U. Pa. L. Rev. 103 (2012) 11

Nat'l Academies of Sciences, Engineering, and Medicine, The Integration of Immigrants into American Society (2015) 9

Ruben Rumbaut & Walter Ewing, Immigration Policy Center, The Myth of Immigrant Criminality and the Paradox of Assimilation (2007) 9

S. Karthick Ramakrishnan & Pratheepan Gulasekaram, The Importance of the Political in Immigration Federalism, 44 Ariz. St. L.J. 1431 (2012) 9

Donald J. Trump, Donald Trump's Contract with the American Voter (Oct. 2016), available at haps ://assets.donalditrump . corn/ Jandings/contract/O-TRU-102316- Contractv02.pdf 3

Tom Wong, The Effects of Sanctuary Policies on Crime and the Economy, National Immigration Law Center (Jan. 26, 2017), available at https://perma.cc/B57Q-XGTE 8

Full Text: Donald Trump Immigration Speech in Arizona (Aug. 31, 2016), available at http://www.politico.com/story/2016/08/donald-trump- immigration-address-transcript-227614

Here's Donald Trump's Presidential Announcement Speech, Time (June 16, 2015), available at http://time.com/3923128/donald- trump-announcement-speech/ 9

Letter from Acting Assistant Attorney General Alan R. Hanson to Veronica Ferguson, County Administrator for Sonoma County (Nov. 15, 2017), available at https://www.justice.gov/opa/press- release/file/1011571/download 6

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Other Authorities

The Federalist No. 48 (James Madison) (Clinton Rossiter ed. 1961)

I~ Chxistopher Ingraham, Trump says sanctuary cities are hotbeds of crime.

Data ,say the opposite, The Washington Post (Tan. 27, 2017) ..................................... 9

Christopher N. Lasch, Sanctuary Cities and Dog-Whistle Politics, 42 New

Eng. J. on Crim. &: Civ. Confinement 159 (2016) ...................................................... 9

Robert A. Mikos, Can the States Keep Secrets from the Federal

Government?, 161 U. Pa. L. Rev. 103 (2012) ...........................................................11

Nat'l Academies of Sciences, Engineering, and Medicine,The Integratiovr of Immigrants into American Society (2015) .................................... 9

Ruben Rumbaut &Walter Ewing, Immigration Policy Center, The Mytlz ofIrnmig~ant Criminality and the Paradox of Assimilation (2007) ...............................9

S. Karthicic Ramalcrishnan & Pratheepan Gulasekaram, The Importance of

the Political ~ Irr~migratio~z Federalism, 44 Ariz. St. L.J. 1431 (2012) ..................... 9

Donald J. Trump, Donald Trump's Contract with the American Voter

(Oct. 2016), available athttps://assets.donaldjtrump.com/_landings/contract/O-TRU-102316-

Contractv02.pdf ........................................................................................................... 3

Tom Wong, The Effects of Sanctuary Policies on Crime ana'the Economy,

National Immigration Law Center^ (Jan. 26, 2U 17), available athttps://perma.cc/L' S7Q-XGTE ..................................................................................... 8

Full Text: Donald Trump Immigration Speech in Arizona (Aug. 31, 2016),

available at http://www.politico.com/story/2016/08/donald-trump-immigration-address-transcript-227614 '

Here's Donald Trump's Presidential Announcement Speech,Time (June 16, 2015), available at http://time.com/3923128/donald-trump-announcement-speech/ ..................................................................................... 9

Lettei from Acting Assistant Attorney General Alan R. Hanson to Veronica

Ferguson, County ~Administratoi• for Sonoma County (Nov. 15, 2017),

available at https://www.justice.gov/opa/press-release/file/101171/download ...................................................................................6

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Letter from Acting Assistant Attorney General Alan R. Hanson to Kathleen Howard, Exec. Dir., California Board of State and Community Corrections (Nov. 1, 2017), ECF. No. 27-3, Ex. P • 6, 10

Letter to Bob Goodlatte, Chairman, Committee on the Judiciary, U.S. House of Representatives (Sept. 26, 2016), available at http://docs.house.gov/meetings/JU/JU01/20160927/105392/HHRG-114- JU01-20160927-SD003.pdf (cataloguing constitutional concerns) 11

"Police Chiefs to Trump: Don't Punish Sanctuary Cities," NBC News (Mar. 29, 2017), available at https://penna.cc/L4BD-7G9H 8

U.S. Dept. of Justice, Attorney General Jeff Sessions Delivers Remarks (Mar. 27, 2017), available at https://www.justice.gov/opa/speech/attorney-general-jeff-sessions- delivers-remarks-sanctuary-jurisdictions 9

U.S. Dept. of Justice, Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs (July 25, 2017), available at https://vvww.justice.gov/opa/priattorney-general-sessions-announces- immigration-compliance-requirements-edward-byrne-memorial 4

U.S. Dept. of Justice, Justice Department Provides Last Chance for Cities to Show Section 1373 Compliance (Oct. 12, 2017), available at https://www.justice.gov/opa/pr/justice-department-provides-last-chance- cities-show-1373-compliance 5

U.S. Dept. of Justice, Justice Department Sends Letters to 29 Jurisdictions Regarding Their Compliance with 8 U.S.C. 1373 (Nov. 15, 2017), available at https://www.justice.gov/opa/pr/justice-department-sends- letters-29-jurisdictions-regarding-their-compliance-8-usc-1373 5

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Letter from Acting Assistant Attorney General Alan R. Hanson to KathleenHoward, Exec. Dir., California Board of State and CommunityCorrections (Nov. 1, 2017), ECr. No. 27-3, Ex. P ..• ....................:........................6, 10

Letter to Bob Goodlatte, Chairman., Committee on the Judiciary, U.S.House of Representatives (Sept. 26, 2016), available athttp://docs.house.gov/meetings/JU/JU01/201 b0927/105392/HHRG-114-JU01-20.160927-SD003.pdf (ca.taloguing constitutional concerns) ..........................11

"Police Chiefs to Trump: Don't Punish Sanctuary Cities;"NBC News (Mar. 29, 2017), available at https://perma.cc/L4BD-7G9H .................. 8

U.S. Dept. of Justice, Attorney General Jeff Sessions Delivers Remarks(Mar. 27, 2017), available athops://www. j ustice.gov/opa/speech attorney-general-j eff-sessions-delivers-remarks-sanctuary-jurisdictions ....................................................................9

U.S. Dept. of Justice, .Attorney General Sessions Announces Immigration

Compliance Requirements for l~dward Byrne Memorial Justice

Assistance Grant 1 rograms (July 25, 2017), available at',, https://www.justice.gov/opa/pr/attorney-general-sessions-announces-

immigration-compliance-requi~~ements-edwa.rd-byrne-memorial ...............................4

U.S. Dept. of Justice,. Justice Department Provides Last Chance for Cities

to Show Section 1373 Compliance (Oct. 12, 2017), available athops://www.justice.gov/opa/pr/justice-department-provides-last-chance-

cities-show-1373-compliance ...................................................................................... 5

U.S. Dept. of Justice, Justice llepartment Sends Letters to 29 Jurisdictions

Regarding Their Compliance with $ U.S.C. 1373 (Nov. 15, 2017),

available at hops://www.justice.gov/opa/pr/justice-department-sends-letters-29-jurisdictions-regarding-their-compliance-8-usc-1373 ................................ 5

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t0147679v.1


PRELIMINARY STATEMENT AND SUMMARY OF ARGUMENT

This case concerns the limits on the federal executive branch's authority to co-opt

states and localities into administering the executive's regulatory agenda rather than

addressing their own public safety priorities. The Constitution protects federalism by

limiting the types of conditions Congress may impose on federal grants and the manner in

which they may be imposed. As this Court has held, federal "funds conditioned on

compliance with [8 U.S.C. § 1373] must have some nexus to immigration enforcement,"

and any such conditions may not be used to "circumvent the Tenth Amendment's direct

prohibition against conscription" of state officials by the federal government. Cty. of

Santa Clara v. Trump, 250 F. Supp. 3d 497, 532, 534 (N.D. Cal. 2017). The Attorney

General's threat to deny California law enforcement funding under the Edward Byrne

Justice Assistance Grant ("Byrne JAG") program and the Community Oriented Policing

Services ("COPS") program ignores these basic constitutional principles.

Amid, who are listed in Appendix A, are 56 scholars of administrative,

constitutional, and immigration law. They have an interest in the proper construction and

enforcement of constitutional and statutory limits on federal executive power. Amici

submit this brief to address some of the important constitutional principles raised in this

litigation.

Article I of the Constitution grants the power of the purse to. Congress, not to the

President or to the Attorney General. U.S. Const. art. I, § 8, cl. 1. The Department of

Justice does not have freewheeling constitutional authority to impose spending conditions

independent from Congress. And for good reason. Over the course of the last eleven

months, the Administration—in an effort to fulfill the President's campaign promise to

"end" sanctuary citiesl —has already tried to bypass the limits on the federal spending

power multiple times,. The Attorney General's announcement of sweeping and intrusive

Full Text: Donald Trump Immigration Speech in Arizona (Aug. 31, 2016) (hereinafter "August Speech"), available at http://www.politico.comistory/2016/08/donald-trump-immigration-address-transcript-227614.

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PRELIMIN~I,.RY STATEMENT AND SUMMARY OF ARGUMENT

This case concerns the limits on the federal executive branch's authority to co-opt

states and localities into administering the executive's regulatory agenda rather than

addressing their own public safety priorities. The Constitution protects federalism by

lirriiting the types of conditions Congress may impose on federal grants and the manner

which they may be irYtposed. As this Court has held, federal "funds conditioned on

compliance with. (8 U.S.C. § 1373] must have some nexus to immigration enforcement,"

and any such conditions may not be used to "circumvent the Tenth Amendment's direct

i prohibition against conscription" of state officials by the federal government. Cty. of

Santa Clara v. Trump, 250 F. Supp. 3d 497, 532, 534 (N.D. Cal. 2017). The attorney

General's threat to deny California law enforcement funding under the Edward Byrne

Justice Assistance Grant ("Byrne JAG") program and the Community Oriented Policing

Services ("COPS") program ignores these basic constitutional principles.

Amici, who are listed in Appendix A, are 56 scholars of administrative,

constitutional, and immigration law. They have an interest in the proper construction and

enforcement of constitutional and ~tatutoiy limits on federal executive power. Amicz

submit this brief to audress soiree of the important constitutional principles raised in this

litigation.

article I of t11e Constitution grants tl~e power of the puz•se to Congress, not to the

President or to the Attorney General. U.S. Const. art. I, § $, cl. 1. The Department of

Justice does not have freewheeling constitutional authority to impose spending condition

independent from Congress. And for good reason. Over the course of the last eleven

months, the Administration—in an effort to fulfill the President's campaign promise to

"ena" sanctuary citiesl—has already tried to bypass the limits on the federal spending

power multiple times. The Attorney General's announceme:~t of sweeping and intrusive

~ Full Text: D~r~ald Trump Immigration Speech in Arizona (Aug. 31, 2016) (hereinafter

"August Speech"), available cat http://www.politico.com/story/2016/08ldonald-trump-immigration-address-transcript-227614.

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10147(79v.1


demands on states and localities that receive Byrne JAG and COPS grants is only one of

the latest examples.

The Attorney General can no more circumvent the constitutional limits on

conditional spending than can Congress. The Constitution precludes Congress from

placing conditions on federal funding that are unrelated "to the federal interest in

particular national projects or programs." South Dakota v. Dole, 483 U.S. 203, 207

(1987). Even if Congress had authorized the Attorney General to condition Byrne JAG

funding on compliance with 8 U.S.C. § 1373, such a condition would violate the

relatedness requirement. The Attorney General's Section 1373 condition and his

apparent interpretation of Section 1373 also raise serious Tenth Amendment concerns

under the Supreme Court's anti-commandeering precedents. See City of Philadelphia v.

Sessions, 2017 U.S. Dist. LEXIS 188954, at *170-71 (E.D. Pa. Nov. 15, 2017) (finding

Philadelphia raised serious questions about whether Section 1373 complies with the

Tenth Amendment); City of Chicago v. Sessions, 2017 U.S. Dist. LEXIS 149847, at *37

(N.D. Ill. Sept. 15, 2017) (explaining that "practically limit[ing] the ability of state and

local governments to decline to administer or enforce a federal regulatory program" could

run afoul of the Court's anti-commandeering rule in Printz v. United States, 521 U.S. 898

(1997)). This Court should avoid these serious constitutional questions and should

construe California's Values, TRUST, and TRUTH Acts, as well as its confidentiality

statutes, as complying with Section 1373.

ARGUMENT


CONSTITUTIONAL LIMITS ON THE EXERCISE OF FEDERAL

SPENDING POWER THAT PROTECT STATES AND LOCALITIES

Article I of the Constitution grants Congress the power to "lay and collect Taxes,

Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and

general Welfare of the United States." U.S. Const., art. I, § 8, cl. 1. Congress "alone has

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demands on states and localities that receive Byrne JAG and COPS grants is only one of

the latest examples.

The Attorney General can no more circumvent the constitutional limits on

conditional spending than can Congress. The Constitution precludes Congress from

placing conditions on federal funding that are unrelated "to the federal interest in

particular national projects or programs." South Dakota v. Dole, 483 U.S. 203, 207

(1987). Even if Congress had authorized the Attorney General to condition Byrne JAG

funding on compliance with 8 U.S.C. § 1373, such a condition would violate the

relatFdness requirement. The Attorney General's Section 1373 condition and his

apparent interpretatio~~ of Section 1373 also raise serious Tenth amendment concerns

under the supreme C~~urt's anti-commandeering precedents. See City of Philadel~Izia v.

Sessions, 2017 U.S. Laist. LEXIS 1 8954, at *170-71 (T.D. Pa. Nov. 15, 2017) (f~.nding

Priladelphia raised serious questions about whether Section 1373 complies with the

Tenth Amendment); amity of Chicago v. Sessions, 2017 U.S. Dist. LEXIS 149847, at *37

(N.D. I11. Sept. 15, 2017) (explaining that "practically limiting] the ability of state and

local governments to decline. to administer or enforce a federal regulatory program" coulc

run afoul of the Court's anti-commandeering rule in Printz v. United States, 521 U.S. 898

(1997)). This Caurt should avoid these serious constitutional questions and should

construe California's Values, TRUST, and TRUTH Acts, as well as its confidentiality

statutes, as complying with Section 1373.

AR~~TMENT

~. THE ATTa~NEY G~NFRAL HAS DISREGARDED►

~'ONST~T~J~:~ION~,~ I~IT~/IITS ~N ~'~3~+ E~~RCISE 4F FED~p2AL .

SPENDING SOWER '~'HA.T PRO~E~T ST~~ES -AND LOC~,L~TIE~

Article I of the Constitution grants Congress the power to "lay and collect Taxes,

Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and

general Welfare of the United States.," U.S. Const., art. 1, § 8, cl. 1. Congress "alone has

2

10147679v.1


access to the pockets of the people"—the executive branch has no authority to spend

under Article I, for "[n]o money shall be drawn from the Treasury, but in Consequence of

Appropriations made by law." The Federalist, No. 48, at 305 (James Madison) (Clinton

Rossiter ed., 1961); U.S. Const., art. I, § 9, cl. 7. The Framers adopted a carefully

calibrated separation of powers that protects both individual liberty and federalism by

limiting the authority of each branch of the federal government. These constitutional

limits protect states and localities against the very sort of executive branch dysfunction

on display in this case, culminating in the Attorney General announcing new conditions

on Byrne JAG grants unilaterally and without authority. The Attorney General's

announcement that Byrne JAG funding is conditioned on compliance with Section 1373

violates the constitutional requirement that spending conditions premised on Section

1373 have "some nexus to immigration enforcement." Santa Clara, 250 F. Supp. 3d at

532.

A. The Administration Has Repeatedly Sought to Unilaterally

Impose,Conditions on Byrne JAG Funding Without Legal

Authority

From the inception of the Byrne JAG program until 2016, the, federal government

dispersed hundreds of millions of dollars of grant funds without conditioning funding on

compliance with Section 1373. The Attorney General's imposition of the challenged

conditions was a substantial departure from past practice, with high stakes for states and

localities. "End[ing]" so-called "sanctuary cities" has been a preoccupation of President

Trump since before he took office. See supra note 1.2 To that end, the Administration

has tried several times to bypass limits on executive authority to threaten such

jurisdictions with funding cut-offs, without regard for congressional intent or for state

and local sovereignty.

2 See also Donald J. Trump, Donald Trump's Contract with the American Voter (Oct. 2016), available at https://assets.donaldjtrump,comLlandings/contract/O-TRU-102316-Contractv02.pdf (promising to "cancel all funding to sanctuary cities" in the first 100 days of his presidency).

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access to the pockets of the people"—the executive branch has no authority to spend

under Article I, for "[n]o money shall be drawn from the Treasury, but in Consequence

Appropriations made by law." The I'edera.list, No. 48, at 305 (James Madison) (Clinton

~I l~ossiter ed., 1961); U.S. Const., ai-t. I, § 9, cl. 7. The Framers adopted a carefully

~' calibrated separation ~of powers that protects both individual liberty and federalism by;. . alimiting the authority of each branch of the federal government. These constitutional

~ limits protect states and localities against the very sort of executive branch dysfunctior~i

nn display in this case, culminating in the Attorney General announcing new conditions

on Byrne JAG grants unilaterally and without authority. The Attorney General's

ai7nouncement that Byrne JAG funding is conditioned nn compliance with Section 1373

violates the constitutional requirement that spending conditions premised on Section

1373 have "soiree nexus to immigration enforcement." Santa Clara, 250 F. Supp. 3d at

~ 532.

A. The A~~ninistration Has Re~eattedly ~ou~ht to Unilaterally

Impose,ConditiQns on Byrne JAG Fundin~Without Legal

Authoa~~ty

Frorn the inception of the ~3yrne JAG program unti12016, the, federal government

c.~i.spersed hundreds of millions, of dollars of grai.t funds without conditioning funding on

compliance ~~vith Sec~:,ion 1373.. Ttie Attorney General's imposition of the challenged

conditions was a substantial departure From past practice, with high. stakes for states and

localities. "Fnd[ing]" so-called "sanctuary cities" has been a preoccupation of President

Trump since before k~.e took office. See supra note 1.2 To that end, the Administration

has died several times to bypass limits on executive authority to threaten such

jurisdictions with funding cut-offs, without regard for congressional intent or for state

~ and local sovereignty.

2 See also Donald J. Trump, Donald Trump's Contract with the American Voter (Oct.

2016), available at https;//assets.donaldjtrump.com/_landings/contract/O-TRU-1 Q2316-Contractv02.pdf (pro~:iising to "cancel alI 'funding ~o sanctiiary cities" in the frst~ 100 days of his

presidency). _

3

I~ 1 U 147679v.1


Within one week of taking office, the President issued Executive Order 13,768,

which directed Administration officials to "ensure that jurisdictions that . . . refuse to

comply with 8 U.S.C, § 1373 . . . are not eligible to receive Federal grants."3 In April

2017, this Court found that plaintiffs were likely to succeed on the merits of their

constitutional challenge to the Executive Order and entered a nationwide preliminary

injunction. Santa Clara, 250 F. Supp. 3d at 539-40.

Undeterred, the Administration then switched course. In July 2017, the Attorney

General announced three Byrne JAG funding conditions, including the Section 1373

condition challenged in this case.4 No act of Congress contains the type of clear

statement required to permit the Attorney General to condition Byrne JAG funds on

compliance with Section 1373. See Pennhurst State Sch. & Hosp. v. Haider/Ilan, 451

U.S. 1, 17 (1981) (TN Congress intends to impose a condition on the grant of federal

moneys, it must do so unambiguously"); cf. Santa Clara, 250 F. Supp. 3d at 531

("Section 9 [of Executive Order 13,768] is particularly problematic because Congress has

repeatedly, and frequently, declined to broadly condition federal funds or grants on

compliance with Section 1373 or oth,-r federal immigration laws."); see also City of

Philadelphia, 2017 U.S. Dist. LEXIS 188954, at *159 (finding "all applicable Federal

laws" language in 34 U.S.C. § 10153(a)(5)(D) to be too "malleable" to provide the type

of "clear notice that would be needed" for a spending condition).5 Nevertheless, the

Attorney General pressed on.

3 Exec. Order 13,768, Enhancing Public Safety in the Interior of the United States § 9(a), 82 Fed. Reg. 8799, 88N (Jan. 25, 2017), available at https://www.whitehouse.govithe-press-office/2017/01/25/pre&dential-executive-order-enhancing-public-safety-interior-united.

4 U.S. Dept. of :ustice, Attorney General Sessions Announces Immigration ComPliance Requirements for Edwg,rd Byrne Memorial Justice Assistance Grant Programs (July 25, 2.017), available at https://www.justice.gov/opa/priattorney-general-sessions-announces-immigration-compliance-requirements-edward-byrne-memorial.

5 The Attorney General argues that because Byrne JAG grantees must certify compliance with "applicable Federal laws," he may condition Byrne JAG funding on compliance with his expansive interpretation of Section 1373. But 34 U.S.C. § 10153(a)(5)(D) does not clearly impose compliance with every potentially applicable federal law as a condition on Byrne JAG funding. See 34 U.S.C. 10153(a)(5)(D). Further, "all other applicable Federal laws" plainly does

4

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Within one wenl< of taking office, the President issued Executive Order 13,768,

which directed Administration officials to "ensure that,jurisdictions that ... refizse to

comply with ~ U.S.C, § 1373 ... are not eligible to receive Federal grants."3 In April

2017, this Court found that plaintiffs were likely to succeed on the merits of their

constitutional challenge to the Executive Order and entered a nationwide preliminary

injunction. Santa ClaNa, 250 F. Supp. 3d at 539-40.

Undeterred, the Administration then switched course. In July 2017, the Attorney

General announced three Byrre JAG funding conditions, including the Section 1373

condition challengedzn this case.4 No act of Congress contains the type of clear

statement required to hermit the Attorney General to condition Byrne JAG funds on

c~mplialace with Section 1373. See Pennhurst State Sch. & Hosp. v. Halderman, X51

U.~. 1, 17 (1981} ("[.]f Congress intends to impose a condition on the grant of federal

moneys, it rriust do s~ unambiguously"); cf. Santa Clara,. 250 F. Supp. 3d at 531

("Section 9 [of executive Order 13,768] is particularly problematic because Congress has

repeatedly, and frequently, declined to broacily condition federal funds or grants on

compliance with Section 1373 or other federal immigration laws."); see also City of

Philadelphia, 2017 U.S. Dist. LEXIS 188954, at * 159 (finding "all applicable Federal

laws" language in 34 U.S.C. § 10153(a)(5)(D) to be too "malleable" to provide the type

of "clear notice that ~~~ould be needed" for a spending condition).5 Nevertheless, the

i;torney General pressed on.

3 Exec. Order 1x,768, Enhancing Pz~blic Safety in the Interior of the Ul~ited States § 9(a),

!i2 Fed. Reg. 8799, 88~ 1 (Jan. 25, 2017), available at https://www.whitehouse.gov/the-press-

office/2017/01 /25/press dential-executive-order-enhancing-public-safety-interior-united.

~ U.S. Dept. of ~~ustice, Attorney General Sessions ~`:nnounces Immigration Compliance

I'.equiren~ents fa: Edwr-;rd, Byrne Memorial Justice Assistance Grant Programs (July 25, X017),

available at https://ww•~.~v.justice.gov/opa/pr/attorney-general-sessions-announces-immigration-

compf lance-requireme~~ts-edward-byi•ne-memorial.

5 The Attorney general argues that because Byrne JAG grantees must certify compliance

with "applicable federal laws," he may condition Byrne JAG funding on compliance with 11is

eX~ansive interpretatiotl of Section 1373. But34 U.S.C. ~ IO1S3(a)(5)(D) does not clearly

impose compliance with every potentially applicable federal law as a condition on Byrne JAG

funding. See 34 U.S.C. 10153(a)(5)(D). Further, "all other a' pplicable Federal laws" plainly does

l 0 ] 47679v.1


Further, the Attorney General adopted an expansive interpretation of Section 1373

that would effectively conscript state officials into implementing the Administration's

deportation policies.6 This expansive interpretation would effectively allow the

Administration to implement conditions that a district court enjoined it from imposing

directly. See infra § Chicago, 2017 U.S. Dist. LEXIS 149847, at *22-23 (enjoining

the Attorney General from imposing conditions that would require states and localities to

provide access to their correctional facilities and to notify federal immigration officials of

detentions of individuals suspected of immigration violations).

The Administration's attack on so-called sanctuary jurisdictions appears to be part

of a broader policy platform of mass deportations, itself marked by a tendency towards

executive overreach. To achieve its policy end, the Administration recognizes that it

must obtain the acquiescence of state and local jurisdictions, including the state of

California, and persuade them to redirect resources towards immigration enforcement. In

its quest to maximize deportations, the Administration has thus gone to extraordinary

lengths to press state and local criminal justice actors into the service of the federal

immigration enforcement machinery. The Administration's war on so-called sanctuary

jurisdictions is also a, war on the constitutional prerogatives of states and localities. It

not mean all federal la's. More likely, the language refers to laws that—like other "provisions of the Byrne JAG program with which grantees must certify compliance, see Section 10153(a)(5)(D)--apply to federal grantees as grantees or are otherwise intrinsic to administration of the pr. ogram. Moreover, the meaning of "applicable Federal laws" is informed by the Constitution's requirement that spending conditions be "related" to the federal purposes that the grant program was established to pursue, Dole, 483 U.S. at 207-08. The Attorney General's interpretation of the phrase to extend to provisions of the U.S. Code that are not germane to the purposes Byrne JAG program (such as Section 1373) cannot be squared with that constitutional limit. See § I.B, infra.

6 See U.S. Dept. of Justice, Justice Department Provides Last Chance for Cities to Show Section 1373 Compliance (Oct. 12, 2017), available at https://www.justice.gov/opa/pr/justice-department-provides-last-chance-cities-show-1373-compliance; U.S. Dept. of Justice, Justice Department Sends Letters to 29 Jurisdictions Regarding Their Compliance with 8 U.S.C. 1373 (Nov. 15, 2017), available at https://www.justice.gov/opa/pr/justice-department-sends-letters-29 jurisdictions-regarding-their-compliance-8-usc-1373.

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Further, the At~orney General adopted an expansive interpretation of Section 1373

tr.~t would effectivel~~ conscript stale officials into implementii~~ the Administration's

deportation policies. This expansive interpretation would effectively allow the

Administration to implement conditions that a district court enjoined it from imposing

directly. See infra § '.B; Chicago, 2017 U.S. Dist. LE1~IS 149847, at *22-23 (enjoining.

the Attorney General from imposing conditions that would require states and localities to

provide access to their correctional facilities and to notify federal. imznagration officials n

~'~ detentions of individ~:als suspected of immigration violations).

The Administration's attack on so-called sanctuary jurisdictions appears to be part

of a broader policy platform of mass deportations, itself marked by a tendency towards

executive overreach. to achieve its policy end, the Administration recognizes that it ~~,

must obtain the acquiescence of state and local jurisdictions, including the state of

California, and persL~ade them to redirect resources towards immigration enforcement. In

its quest to maximize deportations, the Adnlinistration,lzas thus, gone to extraordinary

lengths to press state and local criminal justice actors into the. service of the federal

izilmigration enforcerx:ent machinery. The Administration's war on so-called sanctuary

jurisdictions is also a ~,~ar on the constitutional. prerogatives of states and localities. It

not mean all federal la~»s. More likely, the language refers to laws that—like o+her "provisions

of the Byrne JAG pro; ram with which grantees must certify compliance, see Section1~1 ~3(a)(S)(D)--apply to federal gra~ltees as grantees or a~~e other~~~ise intrinsic toadministration of tl.e program. Moreover, the meaning of "applica~~le Federal laws" is informed

by the Constitution's r~,~uirement that spending conditions be "related" to the federal purposes

that the grant program ~,-vas established to pursue, Dale, 483 U.S, at 207-08. The Attorney

Genera's interpretatio~r of the phrase to extend to provisioiys of the U.S. Code that are not

germane to the purposes Byrne JAG program (such as Section 1373) cannot be squared ~~vith that

constitutional limit. Sep § I.B, ii~fi°a.

~ See U.~. Dept: of Justice, Justice Department Provides Last Cl~ance for Cities to Show

section 1373 Compliance (Oct. 12, 2017), available at https://www,justice.gov/opa/pr/justice-department-provides-last-chance-cities-show-1373-compliance; U.S. Dept. of Justice, Justice

Department Sends Letters to 29 Jurisdictions Regarding Their Compliance with 8 U,S.C, 1373

(Nov. 15, 2017), avails:•ble at hops://www.justice.gov/opa/pr/justice-department-sends-letters-29•

jurisdictions-regarding-their-coiripliance-8-usc-1373. .

1 P 147679v.1

5


will not stop unless the judiciary enforces constitutional limits on the executive's

authority.

B. The Attorney General's Section 1373 Condition Violates the.

Spending Clause's Germaneness Requirement

The danger of allowing the Department of Justice to determine unilaterally what a

law like 8 U.S.C. § 1373 means for states and localities—and withhold funding on that

basis—became clear when the Department sent Byrne JAG § 1373 letters to jurisdictions

around the country, including a number of California counties, preliminarily finding their

policies to be in violation of the statute. See supra note 6. Even though § 1373's plain

text is limited to information about "citizenship or immigration status,"7 see Steinle v.

San Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017) (holding that "no plausible

reading of [Section 1373] encompasses the release date of an undocumented inmate"),

the Department criticized policies limiting the circumstances .in which local officials can

provide federal immigration authorities with advance notice of a person's release from

custody.8

When Congress authorizes a spending condition, it must comply with several

constitutional limits on its spending power. Spending conditions must not only be. clearly

authorized,9 but also be designed to promote the general welfare, be "germane[]" to

7 Section 1373 provides: "Notwithstanding any other provision of Federal, State, or local law, 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 [federal immigration authorities] information regarding the citizenship or immigration status, lawful or unlawful, of any individual."

8 E.g., Letter from Acting Assistant Attorney General Alan R. Hanson to Veronica Ferguson, County Administrator for Sonoma County (Nov. 15, 2017), available at https://www.justice.go-./opa/press-release/file/1011571/download, at 45; Letter from Alan R. Hanson to Kathleen HoWard, Exec. Dir., California Board of State and Community Corrections (Nov. I, 2017) ("November 1 § 1373 Letter"), Request for Judicial Notice, ECF. No. 27-3, Ex. 13.

9 In the Phi/ack:phia litigation, the court held that the City was likely to prevail on its argument that the Section 1373 compliance requirement was not unambiguously imposed by Congress in part because "applicable Federal laws" is subject to several conflicting interpretations. City of Philadelphia, 2017 U.S. Dist. LEXIS 188954, at *87-88, 150-51.

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will not stop unless tk~r~ judiciary enforces constitutionG:l limits nn the executive's

auti~o~~ity.

B. The At~orney Ganer•al's Section X373 Condition '~iola~es the.

Spendi~~ Clause's C:erinaneness Req;uirerr~ent

rl lie danger of allowing the Department of Justice to determine unilaterally •what a

la~~v like 8 U:S.C. § 1373 means for states and localities—and withhold funding on that

basis—became clear when the Department sent Byrne JAG ~ 1373 letters to jurisdictions

'~ around the country, including a numl~er of California counties, preliminarily rinding their

j policies to be in violation of the statute. See supra note 6. Even though ~ 1373's plain

~~i text i, limited to info.~nation about "citizenship or immigration status,"~ see Steinle v,

ICI Sa~~ Francisco, 230 F. Supp. 3d 994, 1015 (N.D. Cal. 2017) (holding that "no plausible

~~eading of [section 1?73] encompasses the release date of'an undocumented inmate"),

t1~e Department criticized policies limiting the circumstances jn which local officials can

pr~.~ide federal iinini~;ration authorities with advance ~~otice of a person's release from

c~,istody.8 s

'Vhen Congress authorizes a spending conditio:l, it must comply with several

constitutional limits .~:~ its spending power.. Spending conditions must not only be,clearly

aut~lorized,9 but also be designed to promote the general welfare, tie "germane[]" to

~ 5cction l 373 ;provides: "Notwithstanding any other provision of Federal, State, or'local

law, a Federal, State, or local government entity or official may not prohibi+, or in any way

restrict, any government entity or of~ciat from sending to, or receiving from [federal

immigration authori~tie~] information regarding the citizenship or immigration status, lawful or

unlawful, of any individual."

g E.g., Letter fr~,m Acting Assistant Attorney General Alan R. Hanson to Veronica

I'erguson, County Adn~~.inistrator for Sonoir~a County (Nov. 15, 201.7}, al~azlable at ~

htt~is://www..justice.go°:~/opa/press-release/ale/1011571/c1o~Nnload, at 45; Letter from ~Slan R.

Manson to Kathleen Howard, Exec. llir., California Board of State and Comiilunity Corrections

~ (,Nov,,1,,2017) ("Nove~~~.Zber 1 § 1373 Letter"), Request for,Judiciall~Iotice, ECF. No. 2?-3, Ex.

I'.

~ In the Philade phza litigatio~l, the court held that t'ie City ~v~s likely to prevail on. its'

arg~umcl;t that the Section 1373 compliance rec~Liireixient w~►s nod unambiguously unposed byCongress in pari because "applicable Federal laws" is subject to several conflictingintet-peerations. Cily ~j'~~hzladelpl~aa, 2017 U.S. Dist. LF,~XIS 1889SA, at *~7~-88, i 50-51'.

6

1014 i 679v. I


Congress's public purpose in spending the funds, and not be subject to an independent

constitutional bar. Se ,, Dole, 483 U.S. at 207-08, 211. If the condition is not germane to

the grant's public pur/poses, the condition is an unconstitutional regulation of states and

localities. See N. Ill. Chapter of Assoc. Builders & Contractors, Inc. v. Lavin, 431 F.3d

1004, 1006 (7th Cir. '.!:005) ("Conditions on spending may become regulation if they

affect conduct other than the financed project."). Here; the Section 1373 condition is not

germane to the purpose of Byrne JAG grants and so violates the Spending Clause.

The Byrne JAG grant is a criminal justice program intended to provide states and

localities with flexibility in criminal justice policy. There is no indication in the Byrne

JAG statute that Congress intended for the Attorney General to have any authority to

impose immigration-related requirements on grantees of the type contemplated here.

Indeed, the statutory text does not even authorize the Department of Justice to impose

criminal justice mandates on local law enforcement actors, much less to leverage Byrne

JAG funding to require participation in the enforcement of civil immigration laws.

Since 2005, when Congress created the program, its focus has been on improving

the criminal justice system, including policing, adjudication, and incarceration, not on

immigration policy. See 34 U.S.C. § 10152. It would run counter to the program's

purpose to permit the: Attorney General to use the program as a tool to carry out the

Administration's immigration agenda. In fact, Congress has declined to adopt any

conditions on Byrne -SAG funding related to immigration enforcement, despite numerous

attempts to do so by individual legislators. See, e.g., Enforce the Law for Sanctuary

Cities Act, H.R. 3009, 114th Cong. § 3(b) (2015.); Stop Sanctuary Cities Act, S. 1814,

114th Cong. § 2(b)(2) (2015). To the contrary, in 2006 Congress repealed the only

arguably immigration-related requirement in the Byrne JAG statute: the requirement that

grantees provide certified records of "criminal convictions of aliens." See Immigration

Act of 1990, Pub. L. No. 101-649, tit. V, § 507(a), 104 Stat. 4978, 5050-51 (1990);

Miscellaneous and Technical Immigration and Naturalization Amendments of 1991, Pub.

L..No. 102-232, tit. III, § 306(a)(6), 105 Stat. 1733, 1751 (1991) (repealed in 2006); 34

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Congress's public purpose in spending the funds, and not be subject to an independent

constitutional bar. Sep Dole, 483 U.S. at 207-08, 211. If the condition is not germane to

the grznt's public pu: ~~oses, the condition is an unconsi;itutional regulation of states and

l~~alities. See N. Ill. /'hapter of Assoc. Builders &Contractors, Inc. v. Lavin, 431 F.3d

l OQ4, 1006 (7th Cir. ".005) ("Conditions on spending may become regulation if they

~fI'ect conduct other t'r~an the financed project."). Here; the Section 1373 condition is not

~~ germane to the.purpo e of Byrri~ JAG grants and so violates the Sending clause.

"The Byrne JAG grant is a criminal justice program intended to provide states and

localities with flexibility in criminal justice policy. There is no indication in the Byrne

J~SG statue that Congress intended for the Attorney General to have any authority to

I, impose immigration-~~elated requirements on grantees of the type contemplated here.

Indeed, the statutory text does not even authorize the Department of Justice io impose

crimr.'nal justice man~~tes on local law enforcement actors, much less to leverage Byrne

JAG Funding to require participation in the enforcement of civil immigration laws.

Since 2005, v~~k~en Congress created the program, its focus has been on improving

t]Ze ~,riminal justice system, including policing, adjudication, and incarceration., not on

i2l~migration policy. ~~ee 34 U.S.C. ~ 10152. It would run counter to she pro~;iam's

pur,~ose to permit the: Attorney General to use the program as a tool to carry out the

~,cin:iriistration's immigration agenda. In fact, Congress has declined to adopt airy

conditions on Byrne .~~AU funding related to immigration enforcement, de pite numerous

attempts to do so by individual legislators. See, e.g., Enforce the Law for Sanctuary

Cities pct, H.R. 300n, 114th Cang, ~ 3(b) (2015.); Stop Sanctuary Cities Act, S. 1814,

114th Cong. § 2(b)(2 .(2015). To the contrary, in 2006 Congress repealed the only

azgt~ably imr~igratioz~-related requirement in the Byrne JAG statute: the requirement that

grantees pro~~ide cert;~ied records of "criminal convictions of aliens." .See Immigration

pct of 1390, Pub. L. Igo. 101-649, tit. V, ~ ~07(a), 104 Stat. X978, 5050-51 (1990);

Misc~;llaneous and Technical Immigration and Naturalization Amendments of 1991,, Pub.

L..No. 102-232, tit: I1_~, § 306(,a)(6}, 105 Stat. 1733, 1751 (1991) (repealed in 20Q6); 34

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U.S.C. § 10153(a). Thus, Congress has deliberately declined to impose immigration-

related mandates in the current Byrne JAG program.

The Byrne JAG program is largely a formula grant created for criminal law,

enforcement, and the statutory structure reflects that purpose. See 34 U.S.C.

§ 10152(a)(1) (authorizing the Attorney General to "make grants to States and units of

local government" to support "criminal justice," but "in accordance with the formula

established under section 3755 of this title"). By statute, the Attorney General may

design a "form" for Byrne JAG applications, "reasonably require" applicants to "maintain

and report . . . data, records, and information (programmatic and financial)," and develop

a "program assessment component." See id.; 34 U.S.C. §§ 10152-53. Congress specified

a few prohibited uses of Byrne JAG funding, but generally allows states and localities to

adapt the program's funding to their specific needs. See 34 U.S.C. § 10152(d) (listing

prohibited uses); H.R.Rep. No. 109-233, at 89 (explaining that Congress's purpose was

to "give State and local governments more flexibility"). Options, not mandates, are the

bedrock of the Byrne JAG program.

The Section 1373 condition is unrelated to, and indeed inconsistent with, that

purpose. Immigration enforcement is not co-extensive with crime control, and should not

be treated as such. Indeed, as the International Association of Police Chiefs recently

explained, entangling local police with immigration enforcement may impede efforts to

combat violent crime. "Police Chiefs to Trump: Don't Punish Sanctuary Cities," NBC

News (Mar. 29, 2017), available at https://perma.cc/L4BD-7G91-1.1 ° The

Administration's effort to paint immigrants with a broad brush of criminality has, been

part and parcel of its strategy to maximize immigration enforcement. President Trump

10 • See also Toni: Wong, The Effects of Sanctuary Policies on Crime and the Economy, Notional Immigration Law Center, at 6 (Jan. 26, 2017), available at https://perma.cc/1357Q-XGTE (finding that "[c]rime is ... significantly lower in sanctuary counties compared to nonsanctuary counties").

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U.S.C. ~ 10153(a). T~~us, Congress has deliberately declined to impose im:~ligration-

relatee~ mandates in the current Byrne JAG program.

The Byrne JA{r program is largely a formula grant created for criminal law,

enforcement, .and the statutory structure reflects that purpose. See 34 U.S.C.

§ l 0152(a)(1) (authorizing the Attorney General to "make grants to States and units of

local government" to support "criminal justice," but "in accordance with the formula

established under sec`~ion 3755. of this title"). By statute, the Attorney General nlay

design a "form" for F3yrne JAG applications, "reasonably require" applicants to "maintair,

a.nd report ... data, records, and information (programmatic and financial)," and develop

a "program assessme~~t component." See id.; 34 U.S.C. ~§ 10152-53. Congress specified

a few prohibited uses of Byrne JAG funding, but generally allows states and localities to

adapt-the program's lunding to their specific needs. See 34 U.S.C. ~ 10152(d) (listing

prohibited uses); H.ff. Rep. No. 109-233, at 89 (explaining that Congress's purpose was

to "give State and lo~~l governments more flexibility"~. Options, not mandates, are the

bedrock of the Byrne JAG program.

The Section 1~~73 condition zs unrelated t~, and indeed inconsistent with, that

purpose. Immigration enforcement is not co-extensive with crime control, and should not

be treated as such. Indeed, as the International Association of Police Chiefs recently

explained, entangling local police with immigration enforcement may impede e~~orts to

com'~at violent crime. "Police Chiefs to Trump: Don't Punish Sanctuary Crties," NBC

News (Mar. 29, 2017,1, available at https://perma.cc/L~BD-7G9H.10 The ,

P_~xninistration's effort to .paint immigrants with a broad brush of criminality leas, been

part and parcel of its strategy to maximize immigration enforcement. President Trump?

10 See also Torn Wong, TI~e Effects of SancCua~ y Policies on CJ^ime a~~d the Economy,IVcrtioraal In~»~igration Lczw Center, at 6 (Jan. 26, 201.7}, avrrilablc al https://peima.cc/S57Q-XGT~ (i~iildin~ th~~t "[c]rime is ...significantly lower in sanctuary counties compared totzonsanctuary counties'°).

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10147C79v.1


began his campaign by branding Mexican immigrants as rapists and drug dealers.11 He

then perpetuated this identification of immigrants with criminality in his attack on

sanctuary cities and the "needless deaths" they have supposedly caused,12 comments that

the Attorney General echoes when he blames sanctuary cities for the deaths of

"[c]ountless Americans."13 While the myth of immigrant criminality which at times

has taken on an explicitly racialized tonem—may be a particularly persistent one,15 it is

unsupported by empirical evidence and "undermin[es] the development of reasoned

public responses to both immigration and crime." Ruben Rumbaut & Walter Ewing,

Immigration Policy Center, The Myth of Immigrant Criminality and the Paradox of

Assimilation 1 (2007); see also Nat'l Academies of Sciences, Engineering, and Medicine,

The Integration of Immigrants into American Society 326-31 (2015). It does not provide

a sound basis upon which to conclude that the Attorney General's spending conditions

are germane to the purposes of the Byrne JAG program.

The Attorney General suggests that immigration enforcement should be deemed

related to law enforcement simply because there are "provisions of the INA [that] link

these two subjects." Def.'s Opp. Mem., ECF No. 42, at 10. But just because criminal

11 Here's Donald Trump's Presidential Announcement Speech, Time (June 16, 2015), available at http://time.com/3923128/donald-trump-announcement-speech/.

12 August Speech, supra note 1; see also Christopher Ingraham, Trump says sanctuary cities are hotbeds of came. Data say the opposite, The Washington Post (Jan. 27, 2017), available at haps ://wwW.washingtonpost.com/news/wonk/wp/2017/01/27/trump-says-sanctuary-cities-are-hotbeds-of-crime-data-say-the-oppositc/.

13 U.S. Dept. of Justice, Attorney General Jeff Sessions Delivers Remarks (Mar. 27, 2017), available at https ://www. justice.gov/opa/speech/attorney-general-j eff-sessions-delivers-remarks-sanctuary-jurisdictions.

14 See Christopher N. Lasch, Sanctuary Cities and Dog-Whistle Politics, 42 New Eng. J. on Crim. & Civ. Confinement 159, 173-75 (2016) (describing use of death of Kate Steinle during the Trump campaign); Complaint, New York v. Trump, No. 1:17-cv-05228, ECF No. I IN 239-52 (E.D.N.Y. Sep. 6, 2017) (recounting Trump's "history of disparaging Mexicans").

15 See S. Karthick Ramakrishnan & Pratheepan Gulasekaram, The Importance of the Political in Immigration Federalism, 44 Ariz. St. L.J. 1431, 1452-53, 1474-75 (2012) (explaining why myths about immigrant criminality and sanctuary cities persist).

9

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began his campaign by branding Mexican immigrants as rapists and drug dealers.l l He

then perpetuated this identification of immigrants with criminality in his attack on

sanctuary cities and tie "needless deaths" they have supposedly caused,'Z comments that

the Attorne}~ General echoes when he blames sanctuary cities for the deaths. of

"[c]ountless Americ~~s."13 While the myth of immigrant criminality—which at times

has taken on an explicitly racialized tone's—may be a particularly persistent one,15 it is

unsupported by empirical evidence and "undermin[es] the development of reasoned

public responses to ~cth immigration and crime." Ruben Rumbaut &Walter swing,

Immigration Policy Center, The Myth of Immigrant Cramznality and the Paradox of

Assi~~~ilation 1 (2007); see also Nat'l Academies of Sciences, Engineering, and Medicine,

Tine Inte~^atio~z of Irn,nigrants iazto A~raer^ican Society 326-31 (2015). It does not provide

a souzzd basis upon wtzich to conclude that the Attorney General's spending conditions

are germane to the purposes of the,Byrne JAG program.

The Attorney Jeneral suggests that immigration enforcement should be deemed

related to law enforcement simply because there are "provisions of the INA [that] link

these two subjects." De£'s Opp. Mem., ECP No. 42, at 10. But just because criminal

~ ~ Here's Donald Trump's Presidential flnnouncement Speech, Time (June 16, 2015).

available at 11ttp://time:com/392312&/doiiald-trump-announcement-speech/.

~? August Speer.-h, supra note 1; see also Christopher Ingraham, Trump says sanctuary

cities are hotbeds of came. Data say d~he oppo.s~'te, Tire Washington Post (Jan. 27, 2017),

avaclable at https://www.washingtonpost.com/news/wonk/wp/2017/01/27/trump-says-sanctuary-

cities-are-hotbeds-of-crime-data-say-the-opposite/.

13 U.S. Dept. of.'Justice, Attorney General Jeff Sessions Delivers Remarks (Mar. 27;

2C1i7), av~zil~zble at htt~s://www.justice.gov/opa/speech/attorney-ge:~eral Jeff-sessions-delivers-

remarlcs-sanctuary jurisdictions.l4 Sec Christopb.er N. Lasch, .S'anctuary Cities and Doi-y~l~istle Politics, ~2 New Eng. J.

on Crim. & Civ. Con~:iement 159, 173-75 (2016) (describing use of death of Kate Steinle during

the Trump campaign); Complaint, New Yos~k v. Trump, No. 1:17-cv-05228, ECF No. 1 ¶¶ 239-52

(L.D.I~T.Y. yep. 6, 2017} (recounting Trump's "History of disparaging Mexicans").

15 See S. Karth ck Ramalcrishnan & Pratheepan Gulasekaram, The Importance of the

Political in Immigratio~a Federalism, 44 Ariz. St. L.J. 1431, 1452-53, 1474-75 (2012) (explaining

w11y myths about immi7rant criminality and sanctuary cities persist).

E

1 b147(79v.1


history can trigger immigration consequences, it does not follow that the federal

government's immigration agenda should drive criminal justice functioning, particularly

at the local level. City of Philadelphia, 2017 U.S. Dist. LEXIS 188954, at *147

(analyzing relatedness of Section 1373 to JAG program purposes and concluding that

"[t]he federal interest in enforcing immigration laws falls outside of the scope of the

Byrne JAG program").

II. THE ATTORNEY GENERAL'S SECTION 1373 CONDITION


TENTH AMENDMENT

The Attorney General's Section 1373 condition also raises Tenth Amendment

problems. Compliance with his interpretation of Section 1373 would deny states and

localities the ability to supervise their officials and could cripple their ability to "regulate

in accordance with tty views of the local electorate," in violation of the Tenth

Amendment. New Y crk v. United States, 505 U.S. 144, 169 (.1992). This Court need, not,

however, reach this serious constitutional question, because California's laws, properly

construed, do not viot.ate Section 1373.

According to the Department of Justice, the California's Values Act "may violate"

Section 1373, depending upon its interpretation. See November 1 § 1373 Letter, supra

note 8; .Cal. Govt. Code § 7284, et seq, But the Values Act, as well as the TRUST and

TRUTH Acts—adopted as a reasonable response to the federal government's attempt to

entangle state and local agencies in federal immigration enforeement16—do not violate

Section 1373. The Values Act limits the sharing of information about "a person's release

date ... . [or] home address," not the, sharing of immigration status information, and

contains a savings clause that expressly "does not prohibit" a state or local official from

exchanging information with the federal government "pursuant to Section[] 1373." Cal.

Gov'.t Code § 7284.6(c). The TRUST Act concerns only local law enforcement's

16 See, e.g., Cal. Gov't Code § 7284.2 (among other things, noting that entanglement raises concerns that California residents could be targeted on the basis of race or ethnicity).

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history can trigger in,~~igration consequences, it does not follo~~v that the federal

government's immigration agenda should drive criminal justice functioning, particularly

at'the local level. City of Philadelphia, 2017 U.S. Dist. LEXIS 188954, at * 147

~a.nalyzing relatedness of Section 1373 to JAG program purposes and concluding that

"[t]he federal interest in enforcing immigration laws falls outside of the scope of the

Byrne JAG program" j.

I~. THI: ATTORNEY GEl"1ERAL'~ SECTION 1373 CONDITION

RAISES- SEP.?OUS CONSTITUTIONAL QUESTIONS UND~E12 THE

TENT~~ AM~~NDMENT

The Attorney :ieneral's Section 1373 condition. also raises Tenth Amendment

~rcbic.ins. Compliance with his interpretation of Section 1373 would deny states and

loca?.hies the ability to supervise their officials and could cripple their ability to "regulate

ire accordance _with the views of the local electorate," in violation o~ the Tenth

Aaanendment. New YcT~k v. Ui~zted States, 505 U.S. 144, 169 (.1992)...This Court need, not,

however, reach this sF;rious constitutional question, because California's laws, properly

cc~i.strued, do not vio'.ate Section 1373.

According to t;~e Department of Justice, the California's Values Act "may violate"

Section 1373, depending upon its interpretation. See NovemUer 1 § 1373 Letter, supra

note 8; .Cal. Govt. Ccr~e § 7284, et seq. But the Values Act, as well ~s the TRUST and

TRIJTI3 ~-,cts—adop~~d as a reasonable response to t11~; federal government's attempt to, 3

entangle .state and local agencies. in federal immi~ratien enforcement16—do not volat~

~eciiorz 1373. The Values Act limits the sharing of information about `a person's release

date .., . [or] home a~.~ress," not the. sharing of immigration status informatio!~, and.

contains a savings clew:zse that expressly "does not proribit" a state or local official from

exchanging informat,~n with the federal government "pursuant to section[] ..1373." Cal.

Gov'.? Code ~ 7284.E• e). The TRUST Act concerns or_ly local law enforcement's

~~ See, e.g., Cal. Gov't Code § 7284.2 (among other things, noting that entanglementraises concerns that C1~lifornia residents could be targeted on the basis of race or ethnicity).

10

10147679v.1


response to a detainer request, id. § 7284.6(a)(1)(C), and the TRUTH Act, which requires

transparency when a local law enforcement agency interacts with federal immigration

authorities, has nothing to do with Section 1373. Id. § 7283, et seq.

Moreover, any reading of what Section 1373 requires must be made against the

backdrop of the Tenth Amendment limits on federal conscription of state officials."

"The Federal Government cannot compel the States to enact or administer a federal

regulatory program." • New York, 505 U.S. at 188. Nor may it use spending conditions to

coerce states into adopting a "federal regulatory system as their own." NFIB v. Sebelius,

567 U.S. 519, 578 (212). The Attorney General's broad interpretation of Section 1373

fails to respect these constitutional principles of state sovereignty.

Construed to reach California's laws, Section 1373 would deny states and

localities the prerogative to decline "to provide information that belongs to the State and

is available to [officers] only in their official capacity." Printz v. United States, 521 U,S.

at 932 n.17 (striking down statute with information-sharing provision). Further, the

Attorney General's demands could easily lead to the diversion of the resources of several

full-time employees in a large police force or corrections agency. This would inflict the

very harms that the Supreme Court's anti-commandeering prohibition is designed to

prevent. Denying states the authority to adopt reasonable and targeted policies to protect

individuals' private information may diminish political accountability, and requiring

states and localities to provide the federal government with notification of inmate release

dates would shift regulatory burdens to the states:8

Nothing in Section 1373, however, requires this Court to conclude that

California's targeted policies concerning information-sharing violate conditions on Byrne

17 See, e.g., Ledfn. to Bob Goodlatte, Chairman, Conimittee on the Judiciary, U.S.'HOuse of Representatives et al. (Sept. 26, 2016), available at http://docs.house.gov/trz-:etings/jU/JU01/20160927/105392/HHRG-114-JU01-20160927-SD003.pdf (cataloguing constitutional concerns).

18 See Robert A.. Mikos, Can the States Keep Secrets from the Federal Government?, 161 U. Pa. L. Rev. 103, 159-64 (2012) (arguing that information-sharing statutes such as Section 1373 violate anti-commandeering principle of Printz).

11

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~, response to a detainei request, id. F 7284.6(a)(1)(C), and the TRUTH Act, which requires

~~~i transparency when a Kcal law enforcement agency interacts with federal immigration

authorities, has nothir.~g to do with Section 1373. Id. § 7283, et seq.

Moreover, any reading of what Section 1373 rea~uires must be made against the

backdrop of the Tentis, Amendment limits on federal conscription of state officials,1 ~

"The Federal Govern.Y~ent cannot compel the States to enact or. administer a federal

regulatory program.",~~New Yoi°Iz, 5~5 U.S. at 188. Nor~may it use spending condi~ions to

caei~ce states into ada?~ting a "federal regulatory systerl as their own." NFIB v. Sebelizcs,

567 U.S. 519, 578 (2, 12). The Attorney General's bread interpretation of Section 1373

fail; to respect these canstitutional principles of state sovereignty.

~:onstrued to r~;~ch California's laws, Section 1373 would deny stages and

lo~a]itif.;~~ the prerogative to decline "to provide informa~ion that belongs to the State and

is a~~ailal~le to ,[officers] only in their ~fiicial capacity." Printz v. United States, 521 U,S.

~,t 932. n.17 (striking down stab.~te with inE'ormation-sharing provision). Further, the.

~ttoiiiey General's demands could. easily lead to the diversion ~~the resources of several

full-time employees i:~ a large police force or corrections agency.. This would inflict the

very harms that the Supreme Court's anti-commandeering prohibition is designed to

prevent. Denying stw~ es the authority to adopt reasonable and targeted policies to protect

individuals' private i nformation may diminish political .accountability, .and requiring

states and localities to provide the federal government with notification of inmate release

dates would shift re~~.~~.latory burdens to the states:18

Nothing.in Section 1373, however, ,requires t~1is Coui~: to conclude that

Califoz~~ia's targeted r~olicies concerning information-sharing violate conditions en Byrnf

~~ See, e:g., Leiter to Bob' Uoodlatte, Chairman, Co~iirilittee on the Judiciary, U.S: Houseof ~.epresent~tives et al. (Sept. 26, 2016), available crthttp://does.j~ouse.gov/.r_~etings/JLi/JL101/20160927/105392/HHRG-114-JU01-2.0160927-SD003.p~f (cataloguin:r; constitutiona? concerns).

~8 See Robert ~... Mikos, Can the States Keep Secrets from the Federal Governrrrent?, 161U. Pa. L. Rev. 1.03, 15;'-64 (2012) (arguing that information-s}~aring statutes such as Section1373 Violate anti-comr~aildeering principle of Printz).

1 1

1 0147679v.1


JAG funding. California has not adopted a general policy of "non-cooperation" with

federal officials. Cf. City of New York v. United States, 179 17.3d 29, 36-37 (2d Cir. 1999)

(declining to strike down 8 U.S.C. § 1373 on its face but explaining that a Tenth

Amendment challenge could succeed if forced disclosure of confidential information

would make performahce of government functions "difficult or impossible"). Indeed, the

state has expressly not prohibited its officials from sharing information "pursuant to

Section[] 1373." Cal: Gov't Code § 7284.6(e). To avoid an interpretation of federal

statutory law that would infringe upon state sovereignty, this Court should conclude that

California law does not conflict with Section 1373.

CONCLUSION

The Attorney General's broad interpretation of Section 1373 does not respect the

constitutional principles of state sovereignty or the requirement that spending conditions

be related to the public purposes of congressional grants. Amici urge the Court to reject

the. Attorney General's latest bid to conscript states and cities into immigration

enforcement and to grant the State of California's motion for a preliminary injunction

Dated: November 29, 2017

Patterson Bel nap, ebb & T?ler LLP

By: Hai Sandick Jamison Davies Michael D. Schwartz 1133 Avenue of the Americas New York, New York 10036 Telephone: (212) 336-2000


12

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JRG funding. California has not adopted a general po!~cy of "non-cooperation" with

federal. off cials. Cf. Ciry of New York v. United States, 179 F.3d 29, 36-37 (2d Cir. 1999;

(declining to strike dawn 8 iJ.S.C. § 1373 on its face but explaining that a Tenth

Amendment.challeng~; could succeed if forced disclosure of confidential information

v~~ould male performance of government functions "difficult or impossible"). Indeed, the

state has expressly nog prohibited its officials from sharing information "pursuant to

Section[] 1373." Cal: Uov't Code ~ 7284.6(e). To avoid an interpretation of federal

statlztory law that would infringe upon state sovereignty, this Court should conclude that

California law does not conflict with Section 1373.

COIeTCLUSION

The Attorney General's broad interpretation of Section 1373 does not respect the

constitutional principles of state sovereignty or the requirement that spending conditions

be related to the public purposes of congressional grants. Amr'ci urge the Court to reject

tlie.~lttoi-ney General's latest bid to conscript states and cities into immigration

,enforc~inent and to grant the State of California's motion fog a preliminary injunction.

Dated:' November 29, 2017 Patterson Be/,

A11a


10147679x.1

Jamison DaviesMichael D. Schwartz1133 Avenue of the AmericasNew York, New York 10036Telephone: (212) 336-2000


APPENDIX A*

Muneer I. Ahmad Clinical Professor of Law and Deputy Dean for Experiential Education Yale Law School

Amna Akbar Assistant Professor of Law The Ohio State University Moritz College of Law

Sabi Ardalan Assistant Clinical Professor Harvard Law School

Caitlin Barry Assistant Professor of Law Villanova University Charles Widger School of Law

Lenni B. Benson Professor of Law New York Law School

Jason A. Cade Associate Professor of Law University of Georgia Law School

Kristina M. Campbell Jack and Lovell Olender Professor of Law Co-Director, Immigration and Human Rights Clinic University of the District of Columbia David A. Clarke School of Law

Benjamin Casper Sanchez Director, James H. Binger Center for New Americans University of Minnesota Law School

R. Linus Chan Associate Clinical Pi ofessor of Law University of Minnesota Law School

Arnici curiae appear in their individual capacities; institutional affiliations and titles are provided here for identification purposes only.

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.APPENDIX A*

Muneer I. AhmadClinical Professor of Law and Deputy Dean for Experiential Education

Yale Law School

', Amna Akbar~I Assistant Professor of LawThe Ohio State University Moritz College of Law

~ Sabi ArdalanAssistant Clinical Professor~Iarvard Law School

~ C~itlin'f3arry~ ~,.ssist~nt Professor off` Law~'illanova University Charles Widger School of Law

Lenni B. BensonProfessor of LawNew York Law School

Jason A. CadeAssociate Professor of LawUniversity of GeorgiU. Law School

Kri~tina M. Can~pbel~Jack and Lovell Olerder Professor of LawCo-Director, Immigration and Human Rights Clinic

University of the Dis~rict of Columbia David A. Clarke School of Law

Feizjamin Casper SanchezDirector, .lames H. B:nger Center for New AmericansUliversi'ty of Minnesota Law School

R. Linus ChanAssociate Clinical Pi afessor of LawUniversity of Minnesota La~~v School

Arrricd cui^iae ,appear in their individual capacities; institutional affiliations and titles are

provided here for idenCification purposes only.

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Erwin Chemerinsky Dean and Jesse H. Choper Distinguished Professor of Law University of California, Berkeley School of Law

Ericka Curran Clinical Professor Florida Coastal School of law

Seth Davis Assistant Professor o-f Law University of California, Irvine School of Law

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Ingrid V. Eagly Professor of Law UCLA School of Law

Richard Frankel Associate Professor of Law Drexel University Thomas R. Kline School of Law

Cesar Cuauhtemoc Garcia Hernandez Associate Professor of Law University of Denver Sturm College of Law

Denise Gilman Clinical Professor Director, Immigration Clinic University of Texas School of Law

Dina Francesca Haynes Professor of Law New England Law

Laila L. Hlass Professor of Practice Tulane University Law School

Geoffrey A. Hoffman Clinical Associate Professor and Director University of Houston Law Ctr. Immigration Clinic

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10147679v.1

1 Erwin ChemerinsicyDean and Jesse H. Ch~per Distinguished Professor of Law

2 University of California, Berkeley School of Law

3ErYct<a Curran

4 Clinical Professor5 Florida Coastal School of law

6 Seth Davis,~ Assistant Professor o~ Law

University of California, Irvine School of Law

89 Ingrid V. Eagly

Professor of Law

10 UCLA School of Law

1 1 ~~~chard FrankelIZ associate Professor cf Law

Drexel University Thamas R. Kline School of Law13

14 Cesar Cuauhtemoc Garcia Herran~.~ezAssociate Professor of Law

15 Utliversity of Denver Sturm College of Law

16Denise ~~ilman

1 ~ C;linical Professor1 ~ Director, Immigration Clinic

L'riiversity of Texas :~ ~hool of La~~v19

2~ Di11a Francesca Hayr..esProfessor of Law

21 New England Law

22Laila L. ~Ilass

23 Professor of Practice2~ Tulane University Law School

25 ~-'eaffrey A. Hoffman

26 ~linieal Associate Professor and L)irectorUrirversity'of Houston Law Ctr: Immigration Clinic

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Kari Hong Assistant Professor and Founder, Ninth Circuit Appellate Program Boston College Law E;chool

Aziz Hug Frank and Bernice J. Greenberg Professor of Law University of Chicago Law School

Anil Kalhan Associate Professor of Law Drexel University Thomas R. Kline School of Law

Ramzi Kassem Professor of Law CUNY School of Law

Elizabeth Keyes Associate Professor University of Baltimore School of Law

Jennifer Lee Koh Professor of Law Western State College of Law

Hiroko Kusuda Clinic Professor Loyola New Orleans College of Law

Annie Lai Assistant Clinical Professor of Law University of California, Irvine School of Law

Christopher N. Lasch Associate Professor of Law University of Denver Sturm College of Law

Jennifer J. Lee Assistant Clinical Pn3fessor of Law Temple University B nsley School of Law

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Kari HongAssistant Professor aid Founder, Ninth Circuit ~ippellate Pz•ogram~3ostoil College Law ~~chool

Ariz I~uqFrank and ~3ernice J. Greenberg Professor of LawUniversity of Chicago Law School

Aril Kalhanflssociate Professor of LawDrexel University Thomas R. Kline School of Law

Ramzi KassemProfessor of LawLUNY school of La~~v

1Jlizabeth ILeyes~.sscciate ProfessorIJri~versity of Baltimore School of Law

rennifer Lee KohProfessor of LawWestern State College of Law

H:irolco Kusudaclinic ProfessorLoyola New Orleans ~~ollege of Law

~iu~ie Lai.Assistant Clinical Professor of LawUrAiversity of California, Irvine School of Law

,Christopher N. Lasch~~ssociate Processor ~f LawUniversity of Denver• Sturm College of Law

Jennifer J. Lee~ssist~nt Clinical Pr:~fessor of Lain~'err~ple University ~ asley Sczlocl of Law

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Peter L. Markowitz Professor of Law Kathryn 0. Greenberg Immigration Justice Clinic, Director Benjamin N. Cardozo School of Law

Toni M. Massaro Regent's Professor and Milton 0. Riepe Chair in Constitutional Law University of Arizona James E Rogers College of Law

Elizabeth. McCormick Associate Clinical Professor of Law University of Tulsa College of Law

Vanessa Merton Professor of Law Elisabeth Haub School of Law at Pace University

Nancy Morawetz Professor of Clinical Law Co-Director, Immigrant Rights Clinic NYU School of Law

Hiroshi Motomura Susan Westerberg Prager Professor of Law School of Law University of California, Los Angeles

Karen Musalo ProfesSor University of California, Hastings College of the. Law

Nina Rabin Clinical Professor of Law Director, Bacon Immigration Law and Policy Program University of Arizona James E. Rogers College of Law

Andrea Ramos Clinical Professor of Law Direetor of Immigration Law Clinic Southwestern Law School

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'10147679.v.1

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Peter L. MarkowitzProfessor of LawKathryn O. Greenber Immigration Justice Clinic, Director

.Benjamin N. Cardozo School of Law

I Toni M, Massaro~'~ P.ege~t's Professor and Milton O. Riepe Chair in Constitutional Law~, University of Arizona James E Rogers College of La~v

'I ~li~abeth McCormic?-:Associate Clinical Prgfessor of LawUniversity of Tulsa C;,ollege of Law

~ Vanessa MertonProfessor of Law

~ Llisal~~th Haub School of Law at Face University

I~lancy MorawetzProfessor of Clinical LawCo-Director, Immigrant Rights ClinicNYI7 School of Law

Hiroshi iVlotoinuraSusan Westerberg P~~ger Professor of Lawacllool of LawUni~~ersity of California, Los Angles

~:~ren I~✓IusaloPr<~fessorUnivErsity of Califon=:ia, Hastings College of the Law

Nina RabinClinical Pr~fe:;sor of ~ .awI~irect~r, Bacon Imrr_ gration Law and Policy ProgramUniversity of Arizona. James E. R~~gers College of Lav✓

An~r. ea RamosClinical Yrofesso~• of 1 awDirector of Immigration Lavv Cliniciouthwesterri Law School

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Victor C. Romero Maureen B: Cavanaugh Distinguished Faculty ASsociate Dean for Ac,ademic Affairs Scholar Professor of Law Penn State Law (University Park)

Carrie Rosenbaum Adjunct Professor Golden Gate University School of Law

Rachel E. Rosenbloom Professor of Law Co-Director, Immigrant Justice Clinic Northeastern University School of Law

Ragini N. Shah Clinical Professor of Law Suffolk University Law School

Rebecca. Sharpless Clinical Professor Roger Schindler Fe11.6w Director, Immigration Clinic University of Miami School of Law

Sarah Sherman-Stokes Lecturer and Clinical Instructor Associate Director, Immigrants' Rights and Human Trafficking Program Boston University School of Law

Ilya Somin Professor of Law George Mason University, Antonin Scalia Law School

Juliet P. Stunipf Robert E. Jones Profc;ssor of Advocacy and Ethics Lewis Clark Law L'.chool

David B. Thronson Professor of Law Associate Dean for Experiential Education Michigan State University College of Law

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Victor C. Romeroih✓Ia~lreen B: Cavanaugh Distinguished Faculty~~ssociate pean for ?,~,ademic Affairs ScholarProfessor of La~~vPenn State Law (University Park)

Carrie RosenbaumAdjunct. ~'rofessorholden Gate University School of Law

I Ylachel Z. Rosenblo~r:iProfessor of LawCo-Director, Immigrant Justice ClinicNortheastern University School of Law

Ragini N. 5hal~Clinical Professor of ~,awStzffoll: University L:~w School

Rebecca ~harplessClinical ~'rofessarR.oge~• Schindler FellowT~iz•ec~or, Immigration ClinicL'riiversity of Miami school of Law

Sa~~h Sherman-StokesLectuier and Clinical InstructorAssociate Director; Ir~migraiits' Rights and Human Trafficking Program

Roston University ~c'~ool of Law

Ilya. SoininProfessor of LawGeorge 1Vlason Univr.rsity, Antonin Scalia Law School

~ Juliet ~'. StumpfI:obey t E. Jones Profr,ssor of Advocacy and TthicsLewis &. Clark Law ~' drool

David B. TrironsonProfessor of Lawassociate Dean for Experiential Education1Vlic~iigan State University College of Law

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Philip L.. Torrey Managing Attorney Harvard Immigration. and Refugee Clinical Program Harvard Law School

Laurence H. Tribe • Carl M:Loeb Univer,ity Professor and Professor of Constitutional Law Harvard Law School

Enid'Trucios-Haynes Professor of Law Brandeis School of Law

Yolanda Vazquez Associate Professor of Law University of Cincinnati College of Law

Shoba Sivaprasad Wadhia Samuel Weiss Faculty Scholar Director, Center for Immigrants' Rights Clinic Penn State Law (University Park)

Jonathan Weinberg Professor of Law Wayne State University

Virgil Wiebe Professor of Law Robins Kaplan Director of Clinical Education University of St. Thcinas (MN)

Michael J. Wishnie William O: Douglas Clinical Professor of Law Yale Law School

Stephen Wizner William 0. Douglas Clinical Professor Emeritus Yale Law School

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Philip L;. TorreyIVlanaging AttorneyHarvard Immigration and Refugee Clinical ProgramHarv~ rd I,aw School

Laurence H. TribeCarl M.' Loeb University Professor and Professor of Constitutional LawHarvard Law School

Enid "Frucios-HaynesProfessor of LawBrandeis School of Law

Yolanda VazquezAssociate Professor of LawUniversity of Cincinnati College of Law

Shoba Sivapra.sad W~~dhia5anauul ~~eiss Facult~~ ScholarDirector, Ceritei for Immigrants' Rights Clinic~'ei~n State Law (1Jni~~ersity Park)

Jonatllaii WeinbergProfessor of LawWayne State Univers~.ty

Vigil WiebeProfessor of L~~vrobins I~apl~tl Direc'::or of Clinical EducationUniversity of St. Thc~nas (MN)

Michael J. 'VishnieWilliam O.~ Douglas clinical Professor of LawYale Law School

Stephen Vizner~vVilliam O. Douglas :~linical Professor EmeritusYale Taw School

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10147C79v.1

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CERTIFICATE OF SERVICE

I hereby certify that on November 29, 2017, I electronically filed the foregoing

Brief Amici Curiae of Administrative Law, Constitutional Law, and Immigration Law

Scholars in Support of Plaintiff's Motion for a Preliminary Injunction using the CM/ECF

system, which will send notification of such filing to all parties of record.

/s/ Jamison Davies Jamison Davies Attorney for Amici Curiae

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C~I2Tg~+ICATF OF SERVICE

I hereby certif~~ that on November 29, 2017, I electronically filed the foregaing

Brief Amici Curiae of Administrative Law, Constitutional Law, and Immigration Law

Scho.ars in Support of Plaintiff's Motion for a Preliminary Injunction using the CM/ECF

s;~stem, which will se~id notification of such filing to all parties of record.

/s/Jamison .DaviesJamison DaviesAttorney for Amici Curiae

10 I47679v.1


1 Harry Sandicic - University of Houston Law Center...Michael D. Schwartz PATTERSON BELKNAP WEBB &...

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