The Truth About the Administration’s Anti-Sanctuary Campaign

by Pratheepan Gulasekaram, Professor of Law, Santa Clara University

Last week, Attorney General Jeff Sessions issued a “last chance” warning to several “sanctuary cities.” The letters - sent to Cook County, Illinois; Chicago, Illinois; New Orleans, Louisiana; New York, New York; and Philadelphia, Pennsylvania – informed local officials that their policies regarding investigation of an individual’s immigration status, or their reporting of the same, may be in violation of federal law. Further, if they do not provide additional assurances that they are in compliance with the specified federal law by October 27th, they risk losing certain law enforcement grants (Byrne/JAG funds) that the Department of Justice (DOJ) administers to localities to augment their policing, equipment, prosecution, corrections, drug treatment plans, victim or witness programs, or other related efforts. 

These ominous letters, with accompany rhetoric from the Attorney General, continue the Trump Administration’s months-long campaign against cities that have exercised their constitutionally-protected prerogative to decline participation in federal immigration enforcement efforts. As has become routine for Sessions, this latest round includes the same misrepresentations linking immigrants and criminality that he and the President have consistently spewed, with the Attorney General repeating the falsehood that sanctuary policies make cities more dangerous.

In addition to having to rely on unsupportable claims linking immigrants to systemic public safety threats, it is also telling that the DOJ is forced to undertake this crackdown through administrative fiat, rather than with broad congressional support. Indeed, the executive branch has been forced to go it alone precisely because it has not been able to get federal legislative backing for its heavy-handed approach to sanctuary cities. Sessions himself is no stranger to these failed legislative efforts, having introduced an anti-sanctuary measure in 2005 as part of a homeland security bill when he was a Senator. More recently, Republican House members have introduced bills that might strengthen the Administration’s ability to conscript state and local governments and institutions in the manner proposed by Sessions, but all have failed to pass both houses or make it out of committee. This lack of urgency would seem odd if reality was even close to as the dire picture painted by Sessions and Trump: A state of lawlessness and rampant criminality in our cities, fueled by the presence of unauthorized immigrants.

Not surprisingly, the Administration’s unilateral anti-sanctuary crusade has suffered defeat after defeat in courts. A few courts have now held that localities violate the Constitution when they hold noncitizens solely for immigration purposes, thereby limiting the Administration’s attempts to force jurisdictions to honor federal immigration detainer requests. Further, in suits by San Francisco and Santa Clara counties, a federal district court ruled that Trump’s vague threat to strip away unspecified federal funding from cities that maintained non-communication and anti-detainer policies was unlawful. Even after Sessions attempted to narrow the scope of the federal grants at issue by issuing a DOJ memorandum, that court declined to change its order or the scope of its injunction. More recently, in a suit by the city of Chicago, another federal district court enjoined the DOJ’s implementation of any new conditions on the receipt of Byrne/JAG funds. Specifically, the court rejected the DOJ’s unilateral attempt to add “notice” and “access” conditions, which would have required local authorities to notify federal authorities about the release date of immigrants in their custody, and required localities to provide immigration authorities access to local correctional facilities.

Last week’s letter to the five jurisdictions relies on the one part of the DOJ’s plan that the Northern District of Illinois opinion left in place, pending further litigation: That court did not preliminarily enjoin the ability of the DOJ to require compliance with 8 USC 1373 as a condition of receiving Byrne/JAG funds. Section 1373 is a prohibition on a prohibition; it is a federal law that prevents states and localities from stopping voluntary communication between their officers and the federal government on immigration status or citizenship of individuals. The provision has no remedy or penalty attached as part of its text, and has, until recently, only been used to preempt conflicting local law.

The DOJ’s current attempt to specify compliance with § 1373 as a condition of receiving federal grants will certainly be challenged and will provide federal courts an opportunity to opine on the underlying constitutionality of § 1373 and the DOJ’s unilateral attempt to leverage it. Although I do not address those concerns here, others have argued that the DOJ’s attempt to use § 1373 in that manner may be unconstitutional as a matter of anti-commandeering, Spending Clause, and separation of powers principles. Indeed, even the Illinois district court, in leaving the DOJ’s use of § 1373 intact, suggested reasons why a higher court might find the provision unconstitutional.

Moreover, even if § 1373, and the DOJ’s conditioning of Byrne/JAG grants on compliance with it, are both ultimately upheld in court, very little may turn on it. As I have written before for this blog, the overwhelming majority of state and local sanctuary policies do not institute gag orders for their officers and thus do not violate the provision. Most sanctuary policies instead limit information collection during investigations or arrests, or limit the use of local resources for such communications. The DOJ admitted as much last year when it responded to Representative John Culberson’s (R-TX) letter asking the DOJ to look into § 1373 violations. Thus, the DOJ’s recent warnings may turn out to be more bark than bite, even if courts ultimately give § 1373 - and the DOJ’s leveraging of it – a generous interpretation.

Beyond the losses in court, the current state and local legislative landscape suggests that the Administration’s anti-sanctuary crusade is backfiring. Rather than breaking the will and budgets of localities, Sessions’ efforts have pushed states and cities to dig in their heels, passing non-cooperation and anti-detainer policies that are broader in scope and clearer than before, and undertaking litigation that has repeatedly chastened the Administration’s tactics. Indeed, city policies that arguably run afoul of § 1373 may be the least of Session’s concerns come January, when California’s SB 54 – the state sanctuary act – goes into effect. The “California’s Values Act” creates statewide prohibitions on certain types of cooperation with federal authorities, and signals the state’s clear intention to oppose any heightened federal enforcement efforts. Perhaps more importantly, as I have recently detailed in a co-authored draft article (“Sanctuary Networks”, with Professor Rose Villazor), the Trump/Sessions anti-sanctuary campaign has galvanized a host of non-governmental forms of sanctuaries from a variety of institutions and organizations. These educational institutions, employers, social network groups, and religious organizations cannot be coerced and bullied by the threat of removing DOJ grants.

The reality is that while immigrants generally, and sanctuary policies specifically, do not present the public safety threats claimed by the Administration, the existence of sanctuary cities and institutions do discredit the legitimacy and truthfulness of Trump’s campaign promises and nativist misrepresentations promoted by immigration ideologues like Sessions. The emerging policy and judicial responses to these types of crackdowns suggest that sanctuaries are not only here to stay, but that they are expanding and becoming more resolute.

Senators Finally Have a Chance to Grill Jeff Sessions on Abrupt Turnarounds at Justice

by Dan Froomkin

Attorney General Jeff Sessions has a perplexingly contradictory view of civil rights law when it comes to transgendered people.

On the one hand, he is enthusiastic about prosecuting murder cases in which the victims were allegedly targeted because of their gender identity. On the other hand, he went out of his way to give employers a green light to discriminate against transgender people in the workplace; rejected the Obama administration interpretation that nondiscrimination laws require schools to allow transgender students to use the bathrooms of their choice;  and defended Donald Trump's half-baked tweet in favor of banning transgender troops.

The backtracks on transgender protections are among several stark and abrupt reversals from practices during the Obama era that have come under Sessions's watch. One on level, that's not so surprising, coming from the attorney general for a president who on Monday described himself, accurately, as "very opposite" from his predecessor.

But some reversals have violated decades of Justice Department precedent – and others have come against a backdrop of consistent forward movement on social issues.

Members of the Senate Judiciary Committee on Wednesday get their first chance to question Sessions since his confirmation hearings more than nine months ago. And in order to explore how dramatically the Justice Department has changed in that time, they should ask the attorney general to explain those turnarounds, and how they came to be.

So, for instance:

Q. It seemed obvious to former Attorney General Eric Holder that the law prohibiting discrimination "because of sex" extends to discrimination because of an employee's gender identification. Why do you see things differently?

Q. If you consider the targeting of transgender people for violence to be a civil rights issue, why is discriminating against them at the workplace not a civil rights issue?

Holder in a 2014 memo, argued the legal interpretation of "sex", as cited in Title VII of the Civil Rights Act of 1964, had evolved over time. "[C]ourts have interpreted Title VII's prohibition of discrimination because of 'sex' as barring discrimination based on a perceived failure to conform to socially constructed characteristics of males and females," he wrote.

"The most straightforward reading of Title VII is that discrimination 'because of ... sex' includes discrimination because an employee's gender identification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex."

In July, Sessions's Justice Department filed a brief in a case in which it wasn't even a party, arguing that Title VII doesn't protect employees from discrimination based on sexual orientation.

And a few months later, Sessions sent out a memo countermanding Holder's expansive view of "sex" with a more literal, and anachronistic, reading.

“Title VII does not prohibit discrimination based on gender identity per se," because it doesn't explicitly refer to gender identity, Sessions wrote. Rather than citing new legal precedents or evidence, he simply insisted that " 'Sex' is ordinarily defined to mean biologically male or female."

But in what Matt Apuzzo of the New York Times on Sunday called an example of the "nuance" of Sessions's approach to civil rights, Sessions has been enthusiastic about fighting individual cases of violence against transgender individuals.

Sessions voted against the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2010, which amended federal hate-crime law to include crimes motivated by a victim's actual or perceived "gender, sexual orientation [and] gender identity".

But as attorney general, Sessions praised the first conviction under the new statute of a transgender murder, and has sent a DOJ lawyer to help Iowa prosecutors try a man charged with murdering a transgender high school student last year

By all accounts he even responded with alarm to a letter this March from six House Democrats, asking him to investigate the recent murders of seven African-American transgender women.

"I personally met with the Department’s senior leadership and the Civil Rights Division to discuss a spate of murders around the country of transgender individuals," he said in June.

Q. Do you think it's possible that giving the green light to a certain kind of discrimination in one circumstance might encourage it in another?

And consider Sessions's approach to civil rights violations by police officers. As with victimization of transgender people, he seems aggrieved by individual cases, but utterly heedless of the possibility that there can be a pattern and practice of bad conduct.

For instance, Sessions promised to "punish any police conduct that violates civil rights." But in a March memo that effectively halted the federal review of troubled law enforcement agencies, he wrote that "The misdeeds of individual bad actors should not impugn or undermine the legitimate and honorable work that law enforcement officers and agencies perform in keeping American communities safe."

Q. Why do you acknowledge that there are individual violations of civil rights, but you do not seem able to acknowledge that there are also collective, institutional violations that could and should be addressed? Are you willing to acknowledge those are possible, and actually exist?

In February, Sessions was said to be behind the formal rejection of the Obama administration’s position that nondiscrimination laws require schools to allow transgender students to use the bathrooms of their choice.

Q. Did you see the Obama administration's position as part of an expansion of gay, lesbian and transgender rights? What do you consider the appropriate limits on those rights?

Sessions will rightly and inevitably face a slew of questions about his encounters with Russian officials during his time with the Trump campaign, and his role in possible obstruction of justice, including the firing of FBI Director James Comey.

Matthew Miller has suggested some good questions to that end at Lawfare; Just Security has published an excellent timeline of the various obstructions, with plenty of appearances by Sessions.

It would certainly be worth getting Sessions to state clearly what exactly he has recused himself from, and why he thinks that didn't include participating in the firing of FBI Director James Comey.

Keeping to the theme of asking Sessions about reversals, senators should also  ask him about the sudden settlement in May in a case involving Russian businessman Denis Katsyv, one of whose other lawyers was Natalia Veselnitskaya, a Russian attorney who had held a secret meeting in June 2016 with Trump’s son, son-in-law and then-campaign manager.

Democrats on the House Judiciary Committee in July asked Sessions some fine questions about that:

Q. Was Natalia Veselnitskaya involved at any point in the settlement negotiations of U.S. v Prevezon Holdings Ltd.?

Q. Why was the case settled for $6 million just two days before trial was scheduled to begin? 

Q. Was there any contact between President Trump, White House personnel, the Trump family, or the Trump campaign with the Department of Justice regarding the Prevezon case? 

Q. Did you discuss the Prevezon case with anyone associated with the transition team at any point during the time you were under consideration for Attorney General?

Q. Did you discuss the Prevezon case with Ambassador Kislyak, or any other Russian official, at any time?

When it comes to voting rights, one Sessions about-face wasn't simply a rejection of Obama administration policy, it was a reversal of more than two decades of consistent Justice Department enforcement of the rule in question. The brief was signed exclusively by political appointees. By contrast, a group of former political appointees and career lawyers filed an amicus brief with the Supreme Court to represent the historical view.

Q. Why did no career Justice Department lawyers sign the brief your solicitor general filed in July doing a 180 on the Department's traditional position on its interpretation of a key element of the Voting Rights Act?

In a key labor relations case, the Justice Department in June not only abandoned its previous position, it actually filed an amicus brief on behalf of the companies that were formerly its targets. The issue was whether arbitration agreements can bar employees from suing their employers. The Obama administration argued no; the Trump administration argued yes.

The brief, with admirable transparency, explained that "After the change in administration, the Office reconsidered the issue and has reached the opposite conclusion."

Q. What factors played a role in the department's reversal on whether arbitration agreements can bar employees from suing their employers?

The Solicitor General has often been called "the Tenth Justice" in light of the office's tradition of honoring the doctrine of precedent. It isn't supposed to switch positions on the interpretation of federal law willy-nilly.

Q. What sort of process is there to determine whether the Solicitor General should abandon a previously held interpretation of the law?

Q. How high is the bar?

Under Obama, the Justice Department was defending a new rule regarding hydraulic fracturing operations on public lands. But when it was time for oral arguments, the Trump administration had already started dismantling the rule. So a Justice Department lawyer told a 10th Circuit panel that his bosses didn't want to win the case anymore – but also didn't want to lose it, either, because that might set a bad precedent.

1984 Supreme Court decision requires judges to defer to administrative agencies’ interpretations of ambiguous federal law.

Q. Are you concerned that abrupt reversals in interpretations of federal laws could lead the courts to reconsider the normal cannons of deference?

Sessions has ordered prosecutors to abandon Obama-era leniency when it comes to prison sentences for nonviolent drug offenses, returning to the drug-war tactics that led to the current state of mass incarceration.

Q. Do you think the Drug War has worked?

Q. Do you disagree that mass incarceration has a disproportionate impact on people of color?

There's been an emerging consensus on the right and left that civil asset forfeiture by law enforcement agencies is widely abused, wildly unfair, and probably unconstitutional.

In July, Sessions rolled back Obama-era curbs on asset forfeiture and announced the federal government will seize more cash and property from suspected criminals, whether or not they have been charged with a crime.

But his move was so unpopular in both parties that the House overwhelmingly passed an amendment that would roll back the Sessions rollback.

Q. What prompted you to try to reopen the civil asset forfeiture spigot?

Q. Who, besides you, thinks that letting the government seize innocent people's property without charging them with a crime is a good idea?

Every new administration wants to put their stamp on the Justice Department. But the way Sessions is reversing course at times seems not very well thought out. Making Sessions answer for those actions is what congressional oversight is all about.

Former Justice Department Lawyers Fire Back on Voting-Rights Reversal They Say Betrays Two Decades of Enforcement

by Dan Froomkin

The Justice Department's recent about-face on a voting rights case was such a betrayal of long-standing DOJ policy that a group of former political appointees and career lawyers filed an amicus brief with the Supreme Court on Friday, citing more than two decades of consistent enforcement of the rule in question – until Trump.

In a possibly unprecedented move, the former Justice lawyers essentially made an argument on behalf of the Department as an institution, representing itself in opposition to its current leadership.

"Amici submit this brief in their individual capacities to provide the Court with the Department’s longstanding view of the Question Presented, the view the current administration has abandoned," the brief says.

At issue is an Ohio law that calls for purging voters from the registration rolls if they fail to vote during three election cycles then don't respond to a mailing. The American Civil Liberties Union sued in April 2016 to prevent the state from purging potentially hundreds of thousands of registrations before the presidential election.

The Justice Department then filed an amicus brief -- signed by two career lawyers from the Civil Rights Division as well as political appointees -- urging the Sixth Circuit Court of Appeals to block the purge, which it did.

But in one of the most abrupt of several reversals by the Trump-era Justice Department, the acting solicitor general in early August filed a brief – with no career lawyers signing – that argued the exact opposite, to the Supreme Court.

Historically, the Justice Department has explained to states that the National Voter Registration Act of 1993 (NVRA) very clearly prohibits them from removing people from the rolls simply for not voting. (There are, after all, a lot of reasons someone may choose not to vote.)

The law does allow for states to strike people from the rolls after they have already been identified as possibly dead or moved away – "and then" the person has not voted in two or more election cycles.

Seen in that order, the act of not voting simply confirms the person isn't there anymore. It's not the precipitating factor.

But in July's filing, the acting solicitor general announced that the department had changed its mind. "After this Court’s grant of review and the change in Administrations, the Department reconsidered the question. It has now concluded that the NVRA does not prohibit a State from using nonvoting as the basis for sending a Section 20507(d)(2) notice," he wrote.

"A lot of folks who had worked at the Department on the NVRA were very upset by the change of course," said Samuel Bagenstos, a University of Michigan law professor who served as the No. 2 official in the Civil Rights Division for two years during the Obama administration. "And it seemed very notable that there were no career attorneys signed on the brief."

Bagenstos drafted a response. The 17 signatories include senior Justice Department officials under Obama and Clinton, such as Eric Holder, Tom Perez, and Bill Lann Lee, as well as longtime Civil Rights Division career attorneys James P. Turner, who served from 1965 to 1994, and J. Gerald Hebert, who served from 1973 to 1994.

Former Justice Department officials routinely file amicus briefs, but Bagenstos said he couldn't recall another example like this one, with such a variety of signatories, and to the Supreme Court.

"I think this is certainly an unusual filing because we think that the Solicitor General's Office is really betraying a longstanding position of the department," he said. "It's not something that's been batted back and forth by administration after administration."

Bagenstos said part of the motivation was the filing of a brief filed by the Antonin Scalia Law School Supreme Court Clinic in March entitled "Brief of former attorneys of the Civil Rights Division of the United States Department of Justice."

Its six signatories included Bradley Schlozman and Hans von Spakovsky. The two men are considered notorious in voting-rights circles for their zealous attempts to establish the existence of non-existent voter fraud and throw people off the voter roles – a practice known to disproportionately affect minority and elderly voters who tend to vote Democratic.

Both were political appointees in the George W. Bush administration's Civil Rights Division. A DOJ Inspector General's report found that Schlozman had violated federal law by screening new hires for their political views and lying to Congress about it.

Von Spakovsky was most recently in the news for his futile attempt to deny authorship of an email he wrote on behalf of the Heritage Foundation. The email demanded that no Democrats, mainstream Republicans or academics should be allowed to join him on Trump's much-mocked Advisory Commission on Election Integrity -- because then it would fail at its mission to conclude that voter fraud exists.

Ironically, the Civil Rights Division even under Schlozman and von Spakovsky continued to interpret voting law as prohibiting the purging of voters for not voting.

"That is pretty much during the time of peak efforts by the Bush Administration to politicize voting rights enforcement, and yet even then you have a continued articulation of the same position, that laws such as Ohio are inconsistent with federal law," Bagenstos said.

The one exception the Schlozman/von Spakovsky brief claims to find is a 2007 settlement agreement with the City of Philadelphia, primarily about providing Spanish-language assistance. But Bagenstos said that agreement was "very clunkily written" and did not reflect a change in the policy.

Bagenstos said he and the other former lawyers were particularly concerned that the Solicitor General's Office, which had presumably signed off on the earlier appellate-court brief opposing the Ohio law, had now reversed course.

"It's not that often that the Solicitor General's Office changes a longstanding position in the Supreme Court," Bagenstos said. "Usually the Solicitor General's office takes that kind of thing extremely seriously, even across administrations. They feel a strong pull to the precedent made by their office."

The Solicitor General is often referred to as the "Tenth Justice" as a result of frequent appearances before the Supreme Court representing the executive branch. The office typically recognizes that to maintain the deference the Court gives it, it must not swing from one position to another when administrations change.