WilmerHale achieved a major victory for the city of Chicago when a US District Court judge issued a permanent nationwide injunction effectively barring the Department of Justice (DOJ) from withholding law-enforcement money from cities like Chicago to punish them for refusing to have their own police officers participate in federal immigration enforcement efforts.
US District Court Judge Harry Leinenweber’s July 27 opinion was a resounding rejection of the federal government’s assertion that Chicago’s position violated federal law and was contrary to US Supreme Court decisions. Judge Leinenweber reaffirmed his prior ruling that two of the three conditions imposed by the DOJ on cities eligible for federal law-enforcement grants—requiring local governments to provide notice to US Immigration and Customs Enforcement (ICE) before local detainees are released, and allowing ICE to access local jails and detention facilities—violated the Constitution’s Separation of Powers Clause because Congress did not give the attorney general authority to impose them.
Judge Leinenweber also held that a third condition—that cities must comply with Section 1373 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996—is unlawful because Section 1373 is unconstitutional. Among other things, Section 1373 prevents state and local officials from withholding information about a person’s immigration status to federal officials. Chicago and the WilmerHale team argued that Section 1373 was unconstitutional because, among other reasons, it ties the hands of local governments to manage their own personnel and offends basic federalism principles. Judge Leinenweber’s opinion embraced that reasoning.
“A state’s ability to control its officers and employees lies at the heart of state sovereignty…” the court stated. The law “requires local policymakers to stand aside and allow the federal government to conscript the time and cooperation of local employees. This robs the local executive of its autonomy and ties the hands of the local legislature… Section 1373 is unconstitutional and cannot stand.”
The DOJ has used its conditions to stop Chicago and some cities and states from receiving money under the Edward Byrne Memorial Justice Assistance Grant program. Those grants support crime-fighting initiatives that include additional personnel, equipment and training. Chicago intends to use the funds it was supposed to receive in 2017—which weren’t distributed due to the immigration fight—to expand its use of “ShotSpotter” acoustic surveillance. That technology allows police officers to rapidly determine and respond to neighborhood locations where gunfire occurred.
The injunction of all three conditions will take immediate effect in Chicago. In his ruling, Judge Leinenweber stayed the injunction beyond Chicago, since the national scope of his earlier preliminary injunction, which enjoined two of the three challenged conditions, is currently on appeal before the US Court of Appeals for the Seventh Circuit, sitting en banc. Earlier this year, Chicago and the WilmerHale team scored a victory in that appeal before a panel of the Seventh Circuit.
The WilmerHale team included Partners Jamie Gorelick, David Ogden and Debo Adegbile; Counsel Ari Holtzblatt, Ari Savitzky and Adriel Cepeda Derieux; Senior Associates Molly Jennings and Jack Starcher; and former Senior Associate Bridget Fahey. WilmerHale was co-counsel with Ed Siskel, Benna Solomon, Andrew Worseck, Scott Spears and Justin Houppert of the city of Chicago’s General Counsel’s Office and Ron Safer, Nick Kahlon, Matt Crowl, Laura Kleinman and Tal Chaiken of the Chicago law firm of Riley Safer Holmes & Cancila LLP.
“We are gratified that Judge Leinenweber conclusively rejected all three grounds on which the Justice Department sought to dictate how Chicago and other localities protect public safety and interfere with their choices to foster safe and welcoming communities,” says Holtzblatt. “The ruling recognizes that the attorney general’s policy is inconsistent with Congress’s intent in enacting local law enforcement grant programs and with the Constitution’s mandate that the federal government respect the autonomy of state and local governments.”