Unusually Combative Second Circuit Denies Review of a Controversial Sanctuary City Case

This week the Second Circuit declined to review en banc a case involving the withholding of federal grant funds to so-called “sanctuary" cities and states. In New York v. DOL, the full Second Circuit left in place a unanimous decision upholding the Trump Administration's policy of withholding Byrne Memorial Justice Assistance Grants to enforce certain federal immigration policies. The decision not to review is noteworthy because it leaves in place a split among federal appellate courts, and also because of the unusually unrestrained language the court used in the accompanying opinions.

Byrne Memorial Grants Tied to Immigration Enforcement

In 2017, then-Attorney General Jeff Sessions tied Byrne Memorial Justice Assistance Grants, which provide funding for local law enforcement, to three immigration-related conditions involving the detention of undocumented immigrants and notification to the Department of Homeland Security.

So far, the First, Second, Third, Seventh and Ninth Circuits have all heard similar cases. The issue is whether the Executive Branch has the authority to tie grant funds to an unrelated regulatory policy. If Congress holds the power of the purse, is withholding these funds without Congressional approval a violation of the separation of powers?

Of the five circuits to weigh in, only the Second Circuit has held that the Attorney General has the broad authority to withhold the grant funds. 

An Unusually Combative Court

While an important decision in its own right, the denial is also noteworthy for strong language of the dissents and concurring opinions. Judge Raymond Lohier , who concurred in the denial have rehearing en banc only so the Supreme Court could hear the case sooner, noted that every other circuit court to decide the issue has held the other way. Judge Lohier wrote: “[T]he panel breaks course in an opinion as novel as it is misguided." He called on the Supreme Court to overturn the panel decision, writing "[i]t can do so faster than we can, and it alone can forestall the spread of this grievous error."

Judge Richard Sullivan wrote a concurring opinion as well, for the sole purpose of contesting “an erroneous and, to my mind, gratuitous point raised in Judge Lohier's concurrence." Judge Sullivan took issue with Judge Lohier's implication that the conservative judges on the Second Circuit were being hypocritical in deciding this case for the Trump Administration.

A dissenting opinion written by Judge Rosemary Pooler was similarly vehement. “The opinion . . . ignores the words of the statute, the relevant legislative history, and the conclusions of our sister circuits. I am, frankly, astounded that my colleagues did not find this a case of exceptional importance warranting en banc review."

Chief Judge Robert Katzmann also dissented separately, writing that while he usually does not support en banc review, he did so in this case because the panel decision differed both substantively from sister courts and procedurally from usual Second Circuit cases.

Meanwhile, the majority (including the three panel judges who wrote the decision) fought back, stating “There is nothing 'astonishing' here about a disagreement among sister circuits, much less anything deserving the castigation by another colleague who asserts that our panel's decision is wrong, wrong, and wrong again."

Calls for Supreme Court Intervention

Since the Second Circuit's decision results in a split among federal appellate courts, the Supreme Court may be incentivized to take up the case. As Chief Judge Katzmann wrote, “All of my participating colleagues also seem to agree that Supreme Court review is now inevitable."

However, it may not be as inevitable as it would appear. For one, a new administration may end the policy before the Supreme Court has a chance to take up the case. That alone may be enough for the Supreme Court to decline cert. However, the decision could impact other potential grant-withholding policies, meaning that the Supreme Court may still be interested in resolving a split among lower courts.

Related Resources

• Government Can't Withhold Grants From Sanctuary City (FindLaw's U.S. Third Circuit)
• 9th Circuit Upholds California's Sanctuary Law (FindLaw's U.S. Ninth Circuit)
• 3 Important Facts About Sanctuary Cities for Immigrants and Opponents (FindLaw's Law and Daily Life)