CHICAGO (CN) – Seventh Circuit Judge Ilana Rovner confessed Wednesday that her concern for the separation of powers haunts her dreams during oral arguments in the Trump administration’s second appeal of an injunction blocking its attempt to financially punish so-called sanctuary cities for refusing to enforce federal immigration laws.
“I am so worried about the separation of powers that I dream about it every night,” Rovner told the Justice Department’s attorney Daniel Tenney.
She raked Tenney over the coals for the Trump administration’s continued imposition of immigration-related conditions on grant funding, despite numerous court rulings finding it unconstitutional.
“Thus far, the executive office has seemed unmoved by those decisions,” Rovner said. “Where does this end? Help us.”
Two years ago, as part of President Donald Trump’s anti-immigration policy, former Attorney General Jeff Sessions announced the Justice Department would no longer award $385 million in grants to cities and states that refuse to help federal agents detain undocumented immigrants at local jails.
Chicago sued over the move in fall 2017.
The federal government provides the money through the Edward Byrne Memorial Justice Assistance Grant, which aims to reduce gun violence, equip officers with body cameras, improve mental health services, and reduce unnecessary incarceration.
But the Justice Department changed the conditions of this grant in a manner that “would require Chicago (1) to detain its own residents and others at federal immigration officials’ request, in order to give the federal government a 48-hour notice window prior to an arrestee’s release; and (2) to give federal immigration officials unlimited access to local police stations and law enforcement facilities in order to interrogate any suspected noncitizen held there, effectively federalizing all of the city’s detention facilities,” according to Chicago’s August 2017 lawsuit.
A federal judge in Chicago issued a preliminary nationwide injunction in September 2017 against the new requirements, agreeing with the city that the attorney general exceeded his authority by tying these two conditions to the Byrne grant.
The Seventh Circuit upheld this decision in April 2018, in an opinion issued by a panel of three Republican-appointed judges and written by Judge Rovner.
“The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government,” Rovner wrote in her 2018 opinion.
She continued, “If the executive branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken.”
On remand, the district court granted the city a permanent injunction, but stayed the nationwide scope of the injunction in deference to U.S Circuit Judge Daniel Manion’s partial dissent from Rovner’s opinion, in which he said the nationwide injunction was an overstep of the court’s authority.
The Department of Justice appealed again, but, facing the same panel at oral arguments Wednesday, offered to skip the merits argument given that the judges already made a decision on this issue last year, and only addressed the scope of the injunction.
“We’ve been here once before,” Judge Manion told Tenney
But Rovner cajoled, “You have to keep an open mind, you have to keep an open mind.”
“It’s hard,” Manion grumbled. “Especially this early in the morning.”
Rovner repeatedly said that she struggled with Attorney General William Barr’s argument that he could compel compliance with any federal law, even one held unconstitutional, as long as it was a grant condition rather than an independent directive.
“When I read that, I was breathless,” Rovner said. “And as you can tell, I’m never breathless.”
In response to a question from Rovner, city attorney Benna Ruth Solomon said that five district courts and two federal appeals courts – the Seventh and Third Circuits – have found that the attorney general lacks the authority to impose conditions on the Byrne grants. No court has found the conditions constitutional.
Solomon also sought to change Manion’s mind regarding the nationwide scope of the injunction.
She argued that the lower court only found the nationwide injunction appropriate because of the “flagrant unconstitutionality” of the administration’s conditions, and noted that the injunction has not interfered with the attorney general’s operations – in fact, the Justice Department imposed the same conditions already found unconstitutional in fiscal year 2017 on fiscal year 2018 Byrne funds.
Senior U.S. Circuit Judge William Bauer also sat on the panel but, as usual, did not ask any questions.
The panel is expected to issue a ruling in the case within three months.