Alito, Gorsuch Rulings This Term Worked Against DOJ in Latest Sanctuary City Fight

A large crowd rallies on the steps of the U.S. Supreme Court, led by top Democrat lawmakers, to denounce President Donald Trump’s executive order banning immigration from 7 Muslim-majority countries, on January 30, 2017.
A rally at the U.S. Supreme Court against the Trump administration’s effort to ban immigration from seven Muslim-majority countries. Credit: Diego M. Radzinschi/ ALM

U.S. Supreme Court decisions this term on sports betting and immigration bolstered a Philadelphia federal judge’s ruling Wednesday that the U.S. Justice Department’s sanctuary city policies are unconstitutional.

In the case Philadelphia v. Sessions the city challenged three of 53 special conditions the Trump administration imposed in order for the city to receive Justice Assistance Grant program funds.

The conditions require the city to, among other things, provide access to city prisons for interviews by U.S. Immigration and Customs Enforcement and to provide advance notice to ICE of release from city prisons of certain immigrants.

Judge Michael Baylson

Three Supreme Court decisions—two about immigration and the other about gambling—were significant in U.S. District Judge Michael Baylson’s ruling that a statute purporting to limit the power of cities to restrict communication with the government was unconstitutional.

The high court’s 6-3 decision last month in Murphy v. National Collegiate Athletic Association provided a key basis for Baylson’s ruling. Baylson also relied on the Supreme Court’s rulings this term in Jennings v. Rodriguez and, in particular, Justice Neil Gorsuch’s concurring opinion in Sessions v. Dimaya. The Justice Department prevailed in Jennings and lost in Dimaya.

In the sports betting case, Justice Samuel Alito Jr., writing for the majority, struck down the federal Professional and Amateur Sports Protection Act, which prohibited states from authorizing and licensing sports gambling schemes.

In the Philadelphia challenge, Baylson rejected Justice Department arguments that Murphy “has no bearing on this case” and that the spending clause provided the appropriate way to analyze the city’s claims.

The PASPA unlawfully told state legislatures what they can and can’t do, and Baylson found commonality in the “plain terms” of §1373 of the federal code. That law says cities and states can’t prohibit or restrict sending information to federal authorities about the citizenship or immigration status of any individual.

Baylson also rejected the department’s argument that the U.S. government has sole authority to regulate immigration. Baylson wrote: “However, the Supreme Court in Murphy made clear that, for a statute to preempt state law, it must not only ‘represent the exercise of a power conferred on Congress by the Constitution,’ but also ‘be best read as a provision that regulates private actors,’ rather than governmental entities or officials.” Section 1373′s provisions, he said, can be read as regulating private actors.

“On their face, they regulate state and local governmental entities and officials, which is fatal to their constitutionality under the Tenth Amendment,” Baylson said. “Because Section 1373 directly tells states and state actors that they must refrain from enacting certain state laws, it is unconstitutional under the Tenth Amendment.”

In the immediate aftermath of the high court’s decision in Murphy, some legal experts believed the ruling would support states in any efforts to legalize medical and recreational use of marijuana. Federal law criminalizes the use of marijuana.

Joshua Geltzer, executive director of Georgetown University Law Center’s Institute for Constitutional Advocacy and Protection, said Baylson’s reliance on Murphy “normalizes in some ways the legal issues around sanctuary cities and takes them out of the realm as distinctive.”

Geltzer, whose institute is defending Gary, Indiana, in sanctuary city litigation, said Baylson takes the sanctuary city issue and fits it into “the broader category of case law and how the federal government can and cannot interact with the states. It is to the judge’s credit that he does this and does it with recent Supreme Court decisions.”

Ilya Somin of George Mason University Antonin Scalia Law School said, “Both the law struck down in Murphy and [§]1373 are attempts to circumvent the anti-commandeering rule. The Supreme Court made clear it won’t look favorably on such circumventions. Before Murphy, federal courts had split on this issue of [§]1373. Murphy makes the case against it stronger.”

Baylson also looked to the high court’s two recent immigration decisions—Jennings and Dimaya—in finding that Philadelphia complied with grant conditions.

Jennings and other decisions, Baylson said, show federal law distinguishes in material ways between undocumented immigrants and those charged with crimes.

The judge said the Supreme Court’s ruling in Dimaya—and Gorsuch in his concurring opinion—emphasize the importance of “fair notice” in considering due process protections for immigrants facing removal proceedings. In Dimaya, Gorsuch, who joined liberal colleagues in the majority striking down a deportation law, wrote: “Vague laws invite arbitrary power.”

Baylson said Philadelphia had committed to notify federal immigration or law enforcement officials before the release of an immigrant facing charges if those officials presented a detainer request signed by a judge or magistrate. But, he said, the Justice Department was unwilling to limit its application of the grant conditions to those immigrants charged with crimes and seeks to remove any and all undocumented immigrants.

“Although this policy may be justified in some localities in the United States, it is not justified in Philadelphia,” Baylson wrote. “Moreover, the court finds that it is inconsistent with the spending clause, which requires a discernible relationship between the JAG Program and the conditions that are attached to JAG grants. Such a relationship is indiscernible insofar as it is not limited to criminal aliens.”


Judge Baylson’s ruling is posted in full below:


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