Chicago’s Immigration Lawsuit

August 14, 2017
University of Illinois College of Law

You’ve probably heard that the City of Chicago has sued U.S. Attorney General Jeff Sessions over the Trump Administration’s get-tough attitude toward so-called sanctuary cities. Let’s dig into the suit and some of the issues it raises.

The Administration, and specifically Sessions’s Department of Justice, or DOJ, wants to force Chicago and other cities to help with immigration enforcement. The DOJ attached several new conditions to grants it’s been administering for more than ten years—grants that help cities with law enforcement needs like new police cars and drug treatment programs. Some of the new conditions were announced barely a month before applications for the grants were due. They include requirements such as letting federal immigration officials enter Chicago’s jails and interrogate detainees about their immigration status, and giving federal officials at least 48 hours’ notice before releasing certain detainees.

In its lawsuit, Chicago argues that the DOJ can’t use the threat of withholding grant money to cudgel cities into complying with its demands. Chicago’s overall point is that, as a matter of policy going back at least to the 1980s, the City does not get involved in immigration enforcement. The City says it wants immigrants to feel comfortable cooperating with police, including by providing information about crimes. If the DOJ forces Chicago to help fight illegal immigration, the City says, that kind of cooperation will be well-nigh impossible.

Chicago attacks the new conditions on several legal grounds. First, the City says Congress never gave the DOJ authority to impose new substantive conditions on the grants. Relatedly, Chicago says the new conditions reflect a separation-of-powers problem: the DOJ, which is part of the Executive Branch, can’t just decide to change a grant program that Congress created.

Cutting more deeply, Chicago argues that even Congress couldn’t impose these particular conditions. Here, the City relies on a complicated body of case law governing Congress’s power to attach strings to money it grants to state and local governments. Congress imposes such conditions all the time; for example, in the 1970s and 80s, it required states to lower speed limits and raise drinking ages as a condition for receiving federal highway funds. But the Supreme Court has said some kinds of conditions are not allowed. For example, one strand of Chicago’s argument is that the DOJ’s conditions would require the City to violate other people’s constitutional rights, by detaining them for 48 hours or more even though the City had no reason to suspect them of committing any crime.

Chicago’s lawsuit also says the DOJ conditions amount to something the Supreme Court has called “commandeering,” which happens when the federal government tries to force state or local governments to implement federal laws. One Supreme Court decision about commandeering held that the feds couldn’t require state law enforcement officers to perform background checks that federal law required for handgun purchases. Chicago says forcing the City to help enforce immigration law crosses that same line.

Chicago also raises several other arguments, such as that the DOJ didn’t follow the right procedures in adopting the new grant conditions. It’s early days for the lawsuit, but it could turn into a blockbuster test of cities’ power to keep themselves out of the immigration-enforcement business.