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Appeals Court Rules DOJ Can Withhold Funds from Jurisdictions Not Cooperating with ICE

A panel of three judges on the 2nd Circuit Court of Appeals ruled Wednesday that the Justice Department has the authority to withhold criminal justice funding from jurisdictions that do not work with federal law enforcement.

Connecticut, Massachusetts, New Jersey, New York, Rhode Island, Virginia and Washington sued over the DOJ’s 2017 announcement that Edward Byrne Memorial Justice Assistance Grant Program funds would be withheld if local governments refused to cooperate in the form of honoring detainers or sharing information on immigrants with federal authorities.

The attorney general at the time, Jeff Sessions, declared that Byrne grants would only be made available to cities and states “that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities.”

A district court ruled in favor of the states, but the 2nd Circuit Court of Appeals panel found that the “plain language of the relevant statutes authorizes the Attorney General to impose the challenged conditions” and “nor can we agree with the district court that the challenged conditions impermissibly intrude on powers reserved to the States.”

“As Chief Justice John Marshall wrote over 200 years ago, ‘the states have no power, by taxation or otherwise, to retard, impede, burden, or in any manner control, the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government,'” said the ruling. “This fundamental principle, a bedrock of our federalism, is no less applicable today. Indeed, it pertains with particular force when, as here, Congress acts pursuant to its power under the Spending Clause.”

Sanctuary jurisdictions don’t have an official definition, but they are generally a state, county or city that tends to fall under “don’t enforce,” “don’t ask” or “don’t tell” policies when it comes to an agency’s relations with federal immigration enforcement efforts. Jurisdictions offer various reasons for such policies including potential civil liability or costs associated with assisting federal efforts and concerns that immigrant populations will cease to cooperate with local law enforcement out of fear. Jurisdictions have take to court Trump administration executive actions intended to compel them to work with federal immigration enforcement, arguing that they’re unconstitutional.

“Lawful policies that avoid entanglement between local police departments and the enforcement of federal immigration laws can improve public safety — allowing local agencies to focus their limited resources on fighting serious and violent crimes, and encouraging greater cooperation with law enforcement by immigrants and their family members,” 10 attorneys general wrote in a brief filed in 2017 in the U.S. District Court for the Northern District of California.

But federal officials argue that sanctuary jurisdictions are unnecessarily using their law enforcement’s time and resources while putting public safety at risk.

“It is safer and more effective for ICE to take custody of criminal aliens in the secure confines of a local jail, as opposed to pursuing them while they are at large,” said Acting Immigration and Customs Enforcement Director Albence. “These efforts require significantly more time and resources and, worst of all, while we’re still out looking for these criminals, many of these criminals commit further crimes, further victimizing the very communities these uncooperative jurisdictions are purporting to protect.”

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Bridget Johnson is the Managing Editor for Homeland Security Today. A veteran journalist whose news articles and analyses have run in dozens of news outlets across the globe, Bridget first came to Washington to be online editor and a foreign policy writer at The Hill. Previously she was an editorial board member at the Rocky Mountain News and syndicated nation/world news columnist at the Los Angeles Daily News. Bridget is a senior fellow specializing in terrorism analysis at the Haym Salomon Center. She is a Senior Risk Analyst for Gate 15, a private investigator and a security consultant. She is an NPR on-air contributor and has contributed to USA Today, The Wall Street Journal, New York Observer, National Review Online, Politico, New York Daily News, The Jerusalem Post, The Hill, Washington Times, RealClearWorld and more, and has myriad television and radio credits including Al-Jazeera, BBC and SiriusXM.

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