Originally published with The New Americana.
Yeah, if everyone could stop getting outraged and focus on how the law actually works, that’d be great.
Attorney General Sessions announced on July 25 that federal funding under the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) has been officially barred from cities refusing to comply with federal immigration law. Rahm Emanuel, Chicago mayor and former Obama Chief of Staff, responded on Sunday by threatening a lawsuit against the Department of Justice, which was filed on Monday. For context, a Ninth Circuit judge illegally struck down President Trump’s executive order in January which more broadly prohibited funds to sanctuary cities (like the policy or not, that’s not how the judiciary works. Somebody actually has to file a case).
The DOJ swiftly replied to Emanuel’s pushback: “In 2016, more Chicagoans were murdered than in New York City and Los Angeles combined. So it’s especially tragic that the mayor is less concerned with that staggering figure than he is spending time and taxpayer money protecting criminal aliens and putting Chicago’s law enforcement at greater risk,” said department spokeswoman Sarah Isgur Flores.
Predictably, this story is being touted Left and Right with the utmost virtue signaling, so much so that no news outlet seems to have even considered which side has the best legal footing. It can be hard to keep our knee-jerk grandstanding to ourselves, so let’s put all that to rest before we move on to the more substantive material:
This article will not address crime rates among illegal immigrants, the Chicago prison system already teeming with complications and which would be decluttered with the deportation of illegals, nor the dubious research on whether sanctuary cities experience any significant change in crime rate.
But that goes both ways. I would also appreciate if the other side would calm down about accusations that Sessions has somehow violated the Constitution and Rahm’s “fundamental rights,” that this measure betrays the moral values of the city of Chicago, that it’s akin to blackmail, or that the withholding of a measly 0.03% of the city budget will “make the people of Chicago less safe” and “[undermine Chicago’s] actual safety agenda” in any serious way. It’s not about kindness, the American Dream, or being a “welcoming city.” It’s about the law.
Lastly, I won’t dive into a discussion about the virtue or even legality of sanctuary cities — federal law is supreme and cities must follow it as it pertains to them, whether they like it or not. But that’s not the item in question.
To address this story adequately, we need to consider the core issue: does the Department of Justice have the authority to rescind its contract with the city of Chicago? Consenting parties have a constitutional right to enter into a contract, so if Sessions has violated his end, then Emanuel might have a case.
When accepted for this grant program, states (and subsequently cities) enter into a contract with the DOJ. States apply to the Byrne JAG Program and are awarded funding based on a formula calculated by the Bureau of Justice Statistics involving population and violent crime stats. As this is a federal grant, the money can only be used for its stated purpose in a few specified areas. If a city or state refuses to comply with those terms, then no deal. They don’t lose any money; they just don’t qualify for additional funding because they won’t use it for its intended purpose.
This touches on a critical point: the DOJ isn’t holding outside money hostage. They’re not refusing funding for education, infrastructure, or anything unrelated so as to ostensibly treat police officers like “political pawns in a debate,” as Emanuel has alleged. This is money exclusively set aside for law enforcement, and the DOJ is refusing it based on concerns regarding law enforcement.
Next we have to ask whether Chicago intended to uphold their federal contract anyway by allotting the funds to an approved category. Chicago had reportedly planned on using its promised $3.2 million to buy police vehicles, which arguably qualifies under Byrne JAG specifications as “equipment,” so that appears to check out.
As far as I can tell, Chicago was in total compliance with the stated restrictions of the grant until the attorney general’s announcement, which makes it the only part that truly matters.
On July 25, Sessions declared in part, “From now on, the Department will only provide Byrne JAG grants to cities and states that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities. This is consistent with long-established cooperative principles among law enforcement agencies.” He cited “tak[ing] down MS-13 and other violent transnational gangs” as impetus for the policy change, and the department later issued further details concerning the new additions.
Under these restrictions, Chicago most certainly does not qualify for the Byrne JAG. So where does Sessions stand? It all depends on whether the attorney general has the authority to transparently adjust the terms of a financial contract while such is already in place.
To my knowledge, yes. He didn’t do it in secret and bust anyone for a law they didn’t know about, and, more importantly, it’s not legislation; it’s DOJ policy, and Sessions is the head of the DOJ. The contract comes from the DOJ, so only the DOJ can alter it, and there’s no reason they can’t alter it (it would be silly to claim that once a policy is established it has to stay that way forever).
I know of no legal argument against Sessions’s ability to amend department policy, and I haven’t seen any publication or politician even attempt to present one. We’ll just have to see if virtue signaling (from both sides) outweighs the legal question.