Oregon Judge Mulls Feds’ Conflation of Immigration and Grant Money

EUGENE, Ore. (CN) – A federal judge seemed sympathetic Friday to Oregon’s claim that the federal government wrongly withheld law enforcement grants based on the state’s refusal to carry out federal immigration policy.

The federal government withheld two years of money from the congressionally funded Edward Byrne Memorial Justice Assistance Grant – about $2 million per year that the state uses to bolster its law enforcement coffers.

Until last week.

But lawyers for the state say last week’s award approval makes no difference in their case, since the money comes with the same attached illegal conditions that it is challenging in the lawsuit.

Oregon says Congress didn’t impose any requirement on states to help with federal immigration enforcement in order to get the grant money. And it says withholding the grant money is a violation of the Tenth Amendment, which gives states powers not constitutionally reserved for the federal government. That’s exactly what Oregon did with its immigration policy when it enshrined in a 1987 law that state law enforcement money cannot be used to help enforce federal immigration laws. Voters affirmed the law last November, days before the state filed the complaint.

Numerous similar lawsuits are pending around the country.

In April 2018, the Seventh Circuit affirmed a district court ruling prohibiting the federal government from requiring the city of Chicago to alert federal authorities before releasing undocumented immigrants from prison in order to be eligible for Byrne grants. The circuit court found that Congress had laid out a precise formula for distribution of the grant money and limited the attorney general’s wiggle room in deviating from that formula.

In October, a federal judge in San Francisco issued a nationwide injunction barring the federal government from tying its immigration enforcement rules to Byrne grant funding. The nationwide aspect of that injunction was later stayed. The government’s appeal is currently pending in the Ninth Circuit.

And in Los Angeles, a federal judge ruled that the government can’t withhold community policing grants from cities that refuse to let ICE agents into jails to ask detainees about their immigration status.

But the Ninth Circuit reversed that decision, finding that the Trump administration could legally withhold such grants.

Mark Abrams, lead attorney for the state of Oregon, argued Friday that the Ninth Circuit ruling in the Los Angeles case is an outlier because it pertained to grants that are awarded on a competitive basis, in a process where Congress specifically gave the Department of Justice discretion to choose recipients. Byrne grants, on the other hand, are “formula grants,” where Congress approved a specific equation based on population and violent crime rates to determine the amount awarded.

While questioning Assistant U.S. Attorney Daniel Mauler about the Ninth Circuit ruling, U.S. District Judge Michael McShane appeared to agree.

“Isn’t the big difference that that was a competitive grant process and the agency had to have some authority to determine who gets it? And Congress has already laid out what we have here in the formula?”

Mauler called that “a distinction without a difference.”

“Sees like the fundamental difference in my mind,” McShane said.

McShane said it would be at least a few weeks before he issued his ruling, but he gave some hints.

He implied that he would deny the government’s motion to dismiss, “I’m going to rule consistently with other courts on this issue and find that the plaintiffs have alleged an injury-in-fact.”

He also said that if he were to issue an injunction in the case, it likely would not be the nationwide injunction plaintiffs sought.

“It seems to me this is really a specific Oregon issue, specific to the parties,” McShane said. “I can tell you that I have a high discomfort level for turning this into a nationwide injunction.”

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