PHILADELPHIA (CN) — Defending the city’s sanctuary status, an attorney for Philadelphia urged the Third Circuit on Wednesday to affirm that its position should not come at the cost of federal funding.
Hogan Lovells partner Neal Katyal said the Department of Justice lacked the authority to enforce “an absolute cut off of these funds,” both under the U.S. Constitution and the funding statute, known as the Edward Byrne Memorial Justice Assistance Grant.
Representing Philadelphia, Katyal emphasized that the grant came from Congress. He said the separation-of-powers doctrine bars the Justice Department from withholding the funds, and that the statue says you can only have this immigration function “to the extent that its consistent with state and local law.”
“It’s a mandatory grant program,” Katyal said. “It’s not one that gives the attorney general discretion. If you adopt their discretion, you do massive destruction.”
The government appealed to the Third Circuit after U.S. District Judge Michael Baylson sided with the city this June, ruling that Attorney General Jeff Sessions violated the spending clause of the U.S. Constitution, Supreme Court precedent and the Administrative Procedures Act in cutting off Philadelphia’s grant access.
Maintaining that Baylson overstepped, Justice Department attorney Katherine Allen argued that compliance is necessary so that the U.S. government ensures that it is not funding a police department that does not comply with the federal government’s law-enforcement efforts.
“That simply won’t work if states are releasing the individuals without notifying the federal government,” she said. “It’s much safer for the federal government to transfer custody of these individuals than try to pick them up on the street, which poses threat to the general public.”
But Katyal said in his argument that the city is, in many cases, unable to provide federal authorities 48 hours notice before immigrants in state custody are released, since most are detained for under 14 hours.
Katyal further argued that providing notice to federal authorities, so they could follow deportation measures, would discourage immigrants from seeking out local law enforcement and disempower local officials to reduce crime.
“When you require things like notice, it starts to blur the line between ICE and the city and encourages people not to seek social services,” he said.
U.S. Circuit Judges John Scirica, Thomas Ambro and Marjorie Rendell did not indicate when they will rule. Ironically, the hearing occurred as Attorney General Jeff Sessions resigned Wednesday afternoon at the request of President Donald Trump.