LA Fights Justice Department Grant Conditions at Ninth Circuit

(AP Photo/LM Otero, File)

PASADENA, Calif. (CN) – A Trump administration attorney told a Ninth Circuit panel Wednesday that the Justice Department has broad authority to impose special conditions on a policing grant – like tying funds to cities’ compliance with immigration policy – and that a nationwide injunction barring the action should be lifted.

The government brought the appeal after U.S. District Judge Manuel Real ruled in April 2018 that the feds cannot deny Los Angeles and other cities the Justice Department’s Edward Byrne Memorial Justice Assistance Grant if they do not comply with the Trump administration’s immigration policies.

Real also granted the nationwide injunction, blocking the federal government from imposing conditions on Justice Department grants and other funds.

Los Angeles and other cities around the country sued the agency after former Attorney General Jeff Sessions announced in July 2017 that grantees would be required to open their jails to federal immigration officials, share individuals’ immigration status and provide notice when an undocumented immigrant would be released from prison.

LA – which had received about $1 million each year to fund prosecutors and anti-gang programs – argued complying with the Justice Department’s conditions would damage community relationships with law enforcement and jeopardize public safety.

On Wednesday, Justice Department attorney Jesse Panuccio told a Ninth Circuit panel it is common for the agency to impose conditions on grantees, including requirements that they share relevant law enforcement data or standardize certain trainings materials.

Panuccio said the agency’s authority rests on the text of Section 10102A6 of the Byrne JAG grant, which says the assistant attorney general has authority to impose conditions to grantees, “including placing special conditions on all grants, and determining priority purposes for formula grants.”

U.S. Circuit Judge Sandra Ikuta told Panuccio the term “special” is not the same as a standardized condition and that it made it seem as though the conditions could only apply to a single grantee.

“Do you believe Congress authorized the [Justice Department] to impose any condition?” Ikuta, a George W. Bush appointee, asked Panuccio. “Could they require a grantee to construct a hospital?”

Panuccio said the conditions follow an “unbroken chain of agency action” that comply with authority granted to it in the Violence Against Women Act of 2005, which created the current version of the Byrne JAG grant.

In court papers, the agency argued that grantees have never challenged other conditions in the grant – which include requirements to purchase body armor for law enforcement – and that the requirements are meant to ensure that grantees won’t impair federal immigration activities.

Neema Sahni of Covington & Burling, an attorney representing Los Angeles, told the panel the 10102A6 clause is not part of the grant but rather a set of powers delegated to the agency.

Sahni said the agency misinterpreted the term “including” in the text of the clause, adding Congress meant to describe a larger set of authorities already vested in the assistant attorney general.

“Congress does not hide elephants in mouseholes,” Sahni said. “And it did not hide in this ancillary provision a sweeping authority to make significant policy demands on grantees.”

Sahni said that the agency’s new interpretation of Section 10102A6 – that it authorizes the agency to impose new conditions – is flawed, and the Justice Department has not offered any evidence it invoked the clause to impose special conditions in the past.

In court papers, the city argued the agency overstepped its authority – which they argue was carefully articulated and defined by Congress – and that the immigration-related grant restrictions “violate the separation of powers” lawmakers sought adherence to.

“Congress’s purpose in enacting the Byrne JAG program – to give states and localities flexibility in solving their local problems – is at odds with DOJ’s imposition of a one-size-fits-all federal immigration-enforcement mandate on Byrne JAG grantees,” the city argued in court papers.

U.S. Circuit Judges Jay Bybee and Kim McLane Wardlaw – appointed by George W. Bush and Bill Clinton, respectively – rounded out the panel, which did not indicate when it will rule.

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