City of Chicago v. William P. Barr

In the

United States Court of Appeals
For the Seventh Circuit
____________________
Nos. 18-2885 & 19-3290
CITY OF CHICAGO,
Plaintiff-Appellee,

v.

WILLIAM P. BARR, Attorney General
of the United States,
Defendant-Appellant.
____________________

Appeals from the United States District Court for the
Northern District of Illinois, Eastern Division.
Nos. 1:17-cv-05720 & 1:18-cv-06859 — Harry D. Leinenweber, Judge.
____________________

NO. 18-2885 ARGUED APRIL 10, 2019,

NO. 19-3290 SUBMITTED FEBRUARY 6, 2020

DECIDED APRIL 29, 2020
AMENDED JUNE 4, 2020
____________________

Before BAUER, MANION, AND ROVNER, Circuit Judges.
2 Nos. 18-2885 & 19-3290

ROVNER, Circuit Judge. In this appeal from two
consolidated cases, we consider for a second time the legality
of conditions imposed by the Attorney General on the
Edward Byrne Memorial Justice Assistance Grant Program
(“Byrne JAG”). See 34 U.S.C. § 10151 et seq. (formerly 42
U.S.C. § 3750). Previously, the district court granted a
preliminary injunction as to two conditions—known as the
notice and access conditions—imposed by the Attorney
General on the FY 2017 Byrne JAG grant applicants. We
upheld the preliminary injunction and its nationwide scope
in City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018)
(“Chicago I”).
The Attorney General then took the rare step of seeking en
banc review limited to only the nationwide scope of the
injunction, excluding the determination that injunctive relief
was proper as to the notice and access conditions, and we
granted en banc review. During the pendency of that review,
the district court granted a permanent injunction, and in light
of that superseding relief we vacated the decision granting en
banc review. City of Chicago v. Sessions, No. 17-2991, 2018 WL
4268814, at *2 (7th Cir. Aug. 10, 2018). The district court again
determined that the notice and access conditions imposed by
the Attorney General were unlawful and unconstitutional,
but also determined that a third condition—the compliance
condition—was unconstitutional as well. City of Chicago v.
Sessions, 321 F. Supp. 3d 855 (N.D. Ill. 2018). The court
extended the injunction to apply to all FY 2017 grant
recipients program-wide, but in light of our prior grant of en
banc review regarding the scope of the injunction, stayed the
injunction to the extent that it applied beyond the City of
Chicago.
Nos. 18-2885 & 19-3290 3

The Attorney General appealed that determination, and
while it was pending in this court, the district court granted a
permanent injunction in a second case brought by the City of
Chicago, this time challenging the Attorney General’s impo-
sition of conditions on the FY 2018 Byrne JAG grant. City of
Chicago v. Barr, 405 F. Supp. 3d 748 (N.D. Ill. 2019). Those con-
ditions included the same notice, access, and compliance con-
ditions that the district court enjoined as to the FY 2017 grant,
as well as some new conditions. The district court enjoined
the imposition of all of the challenged conditions as to the FY
2018 Byrne JAG grant and all future years, and once more
stayed the injunction as to grantees other than the City of Chi-
cago. Id. at 770. The Attorney General again appealed to this
court, and we consolidated the two cases for the purposes of
the appeal.
The stakes in this case are high. Chicago, like many local
governments, has determined that: (1) effective law enforce-
ment requires the cooperation of its undocumented residents;
(2) such cooperation cannot be accomplished if those resi-
dents fear immigration consequences should they communi-
cate with the police; and, therefore, (3) local law enforcement
must remain independent from federal immigration enforce-
ment. The Byrne JAG grant was enacted by Congress to sup-
port the needs of local law enforcement to help fight crime,
yet it now is being used as a hammer to further a completely
different policy of the executive branch—presenting a city
such as Chicago with the stark choice of forfeiting the funds
or undermining its own law enforcement effectiveness by
damaging that cooperative relationship with its residents.
The Attorney General repeatedly expresses frustration
that Chicago, or any other jurisdiction, can “simultaneously
4 Nos. 18-2885 & 19-3290

accept federal law enforcement grants, yet maintain local pol-
icies that frustrate federal immigration enforcement.” Appel-
lant’s Brief 1-3-20 at 1. It is a sentiment echoed by the only
circuit—of the five that have considered it—to uphold the
challenged conditions thus far. See State of New York v. Dept. of
Justice, 951 F.3d 84, 107 (2d Cir. 2020) (“there is something dis-
quieting in the idea of States and localities seeking federal
funds to enforce their own laws while themselves hampering
the enforcement of federal laws, or worse, violating those
laws.”) But states do not forfeit all autonomy over their own
police power merely by accepting federal grants. And the At-
torney General’s perception of the urgency of immigration
enforcement does not corral for the executive branch the pow-
ers entrusted to the legislative branch. The executive branch
has significant powers over immigration matters; the power
of the purse is not one of them. This tendency to overlook the
formalities of the separation of powers to address the issue-
of-the-day has been seen many times by the courts, and it is
no more persuasive now than it was in those cases. As the Su-
preme Court has stated, repeatedly:
Much of the Constitution is concerned with set-
ting forth the form of our government, and the
courts have traditionally invalidated measures
deviating from that form. The result may ap-
pear ‘formalistic’ in a given case to partisans of
the measure at issue, because such measures are
typically the product of the era’s perceived ne-
cessity. But the Constitution protects us from
our own best intentions: It divides power
among sovereigns and among branches of gov-
ernment precisely so that we may resist the
Nos. 18-2885 & 19-3290 5

temptation to concentrate power in one location
as an expedient solution to the crisis of the day.
Printz v. United States, 521 U.S. 898, 933 (1997), quoting New
York v. United States, 505 U.S. 144, 187 (1992).
We conclude again today, as we did when presented with
the preliminary injunction, that the Attorney General cannot
pursue the policy objectives of the executive branch through
the power of the purse or the arm of local law enforcement;
that is not within its delegation. It is the prerogative of the
legislative branch and the local governments, and the Attor-
ney General’s assertion that Congress itself provided that au-
thority in the language of the statutes cannot withstand scru-
tiny.
I. Facts and District Court Rulings
In Chicago I, we discussed at length the Byrne JAG pro-
gram and Chicago’s Welcoming Ordinance, as well as their
respective purposes. See Chicago I, 888 F.3d at 276–82. In short,
the Byrne JAG grants are awarded annually to address the
needs of state and local law enforcement. They are the pri-
mary source of federal criminal justice enforcement funding
for state and local governments. This lawsuit stemmed ini-
tially from the Attorney General’s decision to attach three
conditions to those grants—the notice, access and compliance
conditions, which as set forth by the district court provide re-
spectively:
(1) A State statute, or a State rule, -regula-
tion, -policy, or -practice, must be in place
that is designed to ensure that, when a State
(or State-contracted) correctional facility re-
ceives from DHS a formal written request
6 Nos. 18-2885 & 19-3290

authorized by the Immigration and Nation-
ality Act that seeks advance notice of the
scheduled release date and time for a partic-
ular alien in such facility, then such facility
will honor such request and—as early as
practicable—provide the requested notice to
DHS.
(2) A State statute, or a State rule, -regula-
tion, -policy, or -practice, must be in place
that is designed to ensure that agents of the
United States acting under color of federal
law in fact are given [] access [to] any State
(or State-contracted) correctional facility for
the purpose of permitting such agents to
meet with individuals who are (or are be-
lieved by such agents to be) aliens and to in-
quire as to such individuals’ right to be or
remain in the United States.
(3) The applicant local government must
submit the required ‘Certification of Com-
pliance with 8 U.S.C. § 1373’ (executed by
the chief legal officer of the local govern-
ment).
City of Chicago v. Sessions, 264 F. Supp. 3d 933, 937–38 (N.D. Ill.
2017). In short:
 the notice condition requires that state or lo-
cal officials honor requests to provide fed-
eral agents advance notice of the scheduled
release date and time for aliens in custody;
Nos. 18-2885 & 19-3290 7

 the access condition requires state or local
correctional facilities to give federal agents
access to aliens in their custody;
 and the compliance condition requires the
state or local governments to certify their
compliance with 8 U.S.C. § 1373 (hereinafter
“§ 1373”), which prohibits state and local
governments from restricting their own offi-
cials from communicating information re-
garding the citizenship or immigration sta-
tus of any individual to the Immigration and
Naturalization Service.1
All of those conditions were imposed on applicants for the
FY 2018 Byrne JAG grant as well, but three new conditions
were added. The first was virtually identical to the compli-
ance condition, except that it referenced 8 U.S.C. § 1644 (here-
inafter § 1644) rather than 8 U.S.C. § 1373 which contains es-
sentially the same language:
 the § 1644 compliance condition requires
certification that the “program or activity”
funded under the Byrne JAG award com-
plies with § 1644, which provides “[n]ot-
withstanding any other provision of Federal,
State, or local law, no State or local govern-
ment entity may be prohibited, or in any

1 The Homeland Security Act of 2002 completely dismantled the Immigra-

tion and Naturalization Service and created a new cabinet level agency—
the Department of Homeland Security—under which Immigration and
Customs Enforcement (ICE) now operates. See Homeland Security Act of
2002, Pub. L. No. 107–296, 116 Stat. 2135.
8 Nos. 18-2885 & 19-3290

way restricted, from sending to or receiving
from the Immigration and Naturalization
Service information regarding the immigra-
tion status, lawful or unlawful, of an alien in
the United States.”
The Attorney General concedes that the two compliance
conditions are equivalent and that our disposition as to one
will control as to the other.
The Attorney General imposed two additional conditions
on the FY 2018 Byrne JAG grant that were distinct from those
imposed on the FY 2017 grant, which have been termed the
“harboring” condition and the “additional certification” con-
dition:
 The harboring condition prohibits the recip-
ient jurisdiction from making any “public
disclosure … of any federal law enforcement
information in a direct or indirect attempt to
conceal, harbor, or shield from detection any
fugitive from justice under 18 U.S.C. ch. 49,
or any alien who has come to, entered, or re-
mains in the United States in violation of
8 U.S.C. ch. 12—without regard to whether
such disclosure would constitute (or could
form a predicate for) a violation of 18 U.S.C.
1071 or 1072 or of 8 U.S.C. 1324(a).”
 The additional certification condition re-
quires the certification that “neither the ju-
risdiction nor any entity, agency, or official
of the jurisdiction has in effect … any law,
rule, policy, or practice that would apply to
Nos. 18-2885 & 19-3290 9

the ‘program or activity’ to be funded … that
would or does—(a) impede the exercise by
federal officers of authority under 8 U.S.C.
§ 1357(a); or (b) impede the exercise by fed-
eral officers of authority relating to 8 U.S.C.
§ 1226(a) or (c), 8 U.S.C. § 1231(a), or 8 U.S.C.
§ 1366(1) or (3).”
Chicago, 405 F. Supp. 3d at 754–55.
Those conditions conflict with the Welcoming City Ordi-
nance, which reflects Chicago’s determination that the coop-
eration of all persons, whether documented or undocu-
mented, “’is essential to achieve the City’s goals of protecting
life and property, preventing crime and resolving problems.’”
Chicago I, 888 F.3d at 279 (quoting Chicago Municipal Code,
Welcoming City Ordinance (the “Ordinance”), § 2-173-005
“Purpose and Intent”). Toward that end, the Ordinance sets
forth standards which include prohibitions on requesting or
disclosing information as to immigrant status, as well as a
prohibition on detaining persons solely based on a belief as to
their immigration status or on immigration detainers based
solely on violations of civil immigration laws. Chicago I, 888
F.3d at 279; Ordinance, § 2-173-020, -030, -042. The Ordinance
further provides that “unless acting pursuant to law enforce-
ment purposes unrelated to the enforcement of civil immigra-
tion law, no agency or agent shall permit Immigration and
Customs Enforcement (ICE) agents access to a person being
detained or permit the use of agency facilities for investigative
interviews, nor can an agency or agent while on duty expend
time responding to ICE inquiries or communicating with ICE
as to a person’s custody status or release date.” Chicago I, 888
F.3d at 279; Ordinance § 2-173-042. Those restrictions in the
10 Nos. 18-2885 & 19-3290

Ordinance are inapplicable when the subject of the investiga-
tion “has an outstanding criminal warrant, … has been con-
victed of a felony, … is a defendant … where … a felony
charge is pending, … or has been identified as a known gang
member either in a law enforcement agency’s database or by
his or her own admission.” Ordinance, § 2-173-042(c); Chicago
I, 888 F.3d at 279–80.
A. Challenge to FY 2017 grant
In the first of the two cases before us, Chicago challenges
the conditions imposed on the FY 2017 grant, alleging: that
the conditions were unconstitutional because the Byrne JAG
statute does not provide the Attorney General with the statu-
tory authority to impose the conditions, and that the imposi-
tion is therefore ultra vires and a violation of the separation of
powers; that the conditions violate the Spending Clause of the
Constitution; and that, independent of the Byrne JAG grant,
§ 1373 is an impermissible federal conscription of state power
and is unconstitutional under the anticommandeering doc-
trine of the Tenth Amendment. Chicago also sought a declar-
atory judgment providing that even if § 1373 is constitutional,
Chicago is in compliance with it. Finally, Chicago alleged that
the imposition of the conditions was arbitrary and capricious
in violation of the Administrative Procedures Act and vio-
lated the Paperwork Reduction Act.
The Attorney General sought dismissal of the complaint
in its entirety, arguing that the complaint was insufficient to
state a claim and that the court lacked subject matter
jurisdiction. As to subject matter jurisdiction, the Attorney
General asserted that the Department of Justice had not yet
consummated any final agency action that was ripe for
judicial review because it had not reached a final decision as
Nos. 18-2885 & 19-3290 11

to whether to award Chicago funds under the Byrne JAG
grant. Chicago responded that its challenge was not to the
Attorney General’s pending decision as to whether to award
the grant funds, but rather to the decision to attach the
conditions to the grant in the first instance. The district court
agreed with Chicago as to the nature of the challenge, noting
that the complaint requested that the court “[d]eclare that all
three immigration-related conditions for the FY 2017 Byrne
JAG are unlawful.” City of Chicago, 321 F. Supp. 3d at 865. The
court noted that in order for an agency action to be final, two
criteria must be satisfied: it must mark the consummation of
the agency’s decision-making process and not merely a
tentative or interlocutory decision; and it must be one by
which rights or obligations of the challenging party have been
determined or from which legal consequences will flow. Id. at
865 (citing Bennett v. Spear, 520 U.S. 154, 177–78 (1997)). The
court held that the action was not merely tentative or
interlocutory, because the Attorney General stated in his
declaration that every FY 2017 award would include
conditions identical to the ones in the grant already awarded,
which included all of the challenged conditions. Id. at 865. In
addition, the court noted that the FY 2017 grants were
awarded based on a solicitation that clearly imposed the
challenged conditions. Id. The court held that the second
criteria was met as well, because the conditions force Chicago
to choose between accepting the award with those conditions,
or forgoing the grant and the corresponding law enforcement
benefit in favor of maintaining the policies that it believed
would maximize law enforcement goals. Id. at 866.
Chicago moved for partial summary judgment as to three
counts, arguing that the Attorney General acted ultra vires in
imposing the conditions, and in violation of the separation of
12 Nos. 18-2885 & 19-3290

powers, and contending that even if the compliance condition
was valid, Chicago was not in violation of § 1373. The district
court granted the motion and determined that § 1373 was fa-
cially unconstitutional under the Tenth Amendment’s anti-
commandeering principle, that the Attorney General ex-
ceeded the authority delegated by Congress in the Byrne JAG
statute, 34 U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a)(6),
and that the Attorney General violated the principle of the
separation of powers in attaching conditions to the FY 2017
Byrne JAG grant. The court enjoined the imposition of the
three conditions program-wide, but stayed the injunction be-
yond the City of Chicago pending the appeal. Id. at 882. The
Attorney General now appeals that decision as to all three of
the conditions.
B. Challenge to FY 2018 grant
In the second of the two cases consolidated in this appeal,
Chicago raises identical challenges to the notice, access and
compliance conditions, and also challenges the harboring
condition and the additional certification requirement.2 The
district court held that the notice, access, and compliance con-
ditions were materially identical to the conditions it had al-
ready enjoined in the case challenging the FY 2017 grant con-
ditions, and that the new compliance condition referencing
§ 1644 was indistinguishable from the § 1373 compliance con-
dition and therefore unlawful under the same reasoning. As

2 Although one additional claim was dismissed without prejudice, the
City of Chicago has informed the court that it disavows any right to fur-
ther pursue that claim in this action, and therefore the judgment is review-
able under § 1291. See West v. Louisville Gas & Elec. Co., 920 F.3d 499, 506
(7th Cir. 2019).
Nos. 18-2885 & 19-3290 13

to the additional certification requirement, the court first rec-
ognized that the Executive possesses no inherent authority to
impose conditions on the payment of federal funds author-
ized by the Legislature, and that the Attorney General had
failed to identify any source of authority as to the imposition
of the additional certification requirement. The district court
nevertheless proceeded to analyze whether any statutory ba-
sis for the Attorney General’s authority was apparent.
The court first noted that the Byrne JAG statute itself pro-
vided no such authority, and in fact strictly delineated the for-
mula for the distribution of grant funds. The court then noted
that it had already held, with respect to the notice and access
conditions, that § 10102(a)(6) did not provide such authority.
The court further held that the statutes enumerated in the ad-
ditional certification requirement applied only to the federal
government and did not require cities or localities to do any-
thing, and therefore the Attorney General could not require
compliance with those statutes as an “applicable federal law”
under § 10153(A)(5)(D). Finally, the court addressed the har-
boring condition. After again noting that § 10102(a)(6) cannot
provide a source of such authority, the court considered the
Attorney General’s argument that 34 U.S.C. §§ 10102(a)(2)
and (4) authorize the imposition of the harboring condition.
Those sections require the Assistant Attorney General to
maintain liaison with the executive and judicial branches of
the federal and state governments, public and private educa-
tional and research institutions, state and local governments,
and governments of other nations, relating to criminal justice.
The district court held that §§ 10102(a)(2) and (4) contain no
delegation of authority to place a harboring condition on
Byrne JAG grantees, but rather are more plausibly read as an
14 Nos. 18-2885 & 19-3290

instruction that the Assistant Attorney General maintain bi-
lateral communications with state and local governments.

II. Analysis—Overview
As we discussed in Chicago I, this appeal is not about opti-
mal federal or state immigration policies. That is not for the
court to discuss or decide. Rather, the issues before us today
concern the spheres of power that reside in the state rather
than in the federal government, and the critical balance of
power between the executive, legislative, and judicial
branches of the federal government. Chicago, in deciding that
its law enforcement needs would be better met if its undocu-
mented residents could report crimes and communicate with
its police force without fear of immigration consequences, is
exercising its police power—an area of power long recog-
nized as resting with the states. The Attorney General now
seeks to pursue the federal government’s interest in enforcing
its immigration laws. Regulating immigration into this coun-
try is a legitimate federal interest, and the executive branch
including the Attorney General has authority to enforce the
nation’s immigration laws. But the methods the executive em-
ploys in pursuit of those legitimate ends must be lawful and,
in this case, the means the Attorney General has chosen are
not lawful. The federal government cannot merely conscript
the police forces of the state or local governments to achieve
its ends; that would eviscerate the principles of federalism
that rest at the very foundation of our government.
The Attorney General’s use of extra-statutory conditions
on federal grant awards as a tool to obtain compliance with
his policy objectives strikes at the heart of another core value,
Nos. 18-2885 & 19-3290 15

which is the separation of powers among the branches of the
federal government. The authority to pass laws and the
power of the purse rest in the legislative not the executive
branch. The composition of the legislature—with elected
representatives and dual chambers—provides institutional
protection from the abuse of such power. But no such
institutional protection from abuse exists should such power
be concentrated in the executive branch, where one
individual—whether the President or the Attorney General or
another official—determined to impose his or her policy
preferences regardless of the will of Congress, could proceed
unimpeded by the types of institutional checks present in the
legislative body. Such a concentration of power would allow
tyranny to flourish, and our system of government is wisely
set up by the Founders to foreclose such a danger. The
executive branch has significant powers of its own—
particularly in matters such as immigration—but the power
to wield the purse to alter behavior rests squarely with the
legislative branch. Congress has thus far refused to pass
legislation that would do precisely what the Attorney General
seeks to do here. “Respecting the separation of powers
forecloses no substantive outcomes. It only requires us to
respect along the way one of the most vital of the procedural
protections of individual liberty found in our Constitution.”
Gundy v. United States, 139 S. Ct. 2116, 2145 (2019)(Gorsuch, J.,
dissenting).
Article I of the Constitution vests the power to legislate
with Congress, not the Executive. Id. at 2123. Therefore,
“when Congress confers decisionmaking authority upon
agencies Congress must ‘lay down by legislative act an intelli-
gible principle to which the person or body authorized to [act]
is directed to conform.’” (emphasis in original) Whitman v.
16 Nos. 18-2885 & 19-3290

Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001), quoting J.W.
Hampton, Jr., & Co. v. United States, 276 U.S. 394, 409 (1928).

III. Notice, Access, Harboring and Additional
Certification Conditions
For his authority to impose the conditions, the Attorney
General points to 34 U.S.C. § 10102, which sets forth the duties
and functions of the Assistant Attorney General as follows:
(a) Specific, general and delegated powers
The Assistant Attorney General shall--
(1) publish and disseminate information on the
conditions and progress of the criminal justice
systems;
(2) maintain liaison with the executive and judi-
cial branches of the Federal and State govern-
ments in matters relating to criminal justice;
(3) provide information to the President, the
Congress, the judiciary, State and local govern-
ments, and the general public relating to crimi-
nal justice;
(4) maintain liaison with public and private ed-
ucational and research institutions, State and lo-
cal governments, and governments of other na-
tions relating to criminal justice;
(5) coordinate and provide staff support to co-
ordinate the activities of the Office and the Bu-
reau of Justice Assistance, the National Institute
Nos. 18-2885 & 19-3290 17

of Justice, the Bureau of Justice Statistics, the Of-
fice for Victims of Crime, and the Office of Juve-
nile Justice and Delinquency Prevention; and
(6) exercise such other powers and functions as
may be vested in the Assistant Attorney General
pursuant to this chapter or by delegation of the
Attorney General, including placing special
conditions on all grants, and determining prior-
ity purposes for formula grants.
34 U.S.C. § 10102.
The Attorney General argues that §§ 10102(a)(2), (4), and
(6) provide authority for him to impose the substantive con-
ditions on the Byrne JAG grant. Specifically, he points to
§ 10102(a)(6) as allowing virtually unlimited authority to
place conditions on grants and therefore allowing the imposi-
tion of the notice, access, harboring and additional certifica-
tion conditions. He further points to the provisions in
§§ 10102(a)(2) and (4) empowering the Assistant Attorney
General to “maintain liaison” as further authority for the har-
boring condition.
A. Section 10102(a)(6)
We turn first to the notice and access conditions, which we
previously addressed in the appeal from the grant of a pre-
liminary injunction. Chicago I, 888 F.3d 272. The district court
imposed a preliminary injunction as to those notice and access
conditions, and in Chicago I we upheld that preliminary in-
junction. The standard for preliminary injunctive relief re-
quires only a showing of a likelihood of success on the merits,
whereas permanent relief requires a determination on the
merits. Amoco Prod. Co. v. Vill. of Gambell, AK, 480 U.S. 531, 546
18 Nos. 18-2885 & 19-3290

n.12 (1987). As to the challenge to the notice and access con-
ditions, however, this is a distinction without a difference.
Our reasoning in Chicago I established Chicago’s entitle-
ment to relief on the merits, not merely a likelihood of success.
The Attorney General relied on 34 U.S.C. § 10102(a)(6) as
providing the statutory authority to impose both of those con-
ditions.
Subsection (a)(6) provides that the Assistant Attorney
General shall “exercise such other powers and functions as
may be vested in the Assistant Attorney General pursuant to
this chapter or by delegation of the Attorney General, includ-
ing placing special conditions on all grants, and determin-
ing priority purposes for formula grants.” § 10102(a)(6) (em-
phasis added). During the first appeal, we held that the plain
meaning of that language was to delineate the subcategory of
powers and functions that the Assistant Attorney General
could exercise when vested in the Assistant Attorney General
either by the terms of this chapter or by delegation of the At-
torney General. Chicago I, 888 F.3d at 285; accord New York, 951
F.3d at 102, City of Philadelphia v. Atty. Gen. of United States, 916
F.3d 276, 287 (3d Cir. 2019), City & Cnty. of San Francisco v.
Sessions, 372 F. Supp. 3d 928, 943 n.4 (N.D. Cal. 2019). The “in-
escapable problem” with the Attorney General’s interpreta-
tion, however, was that he did not even claim that the power
exercised here was authorized anywhere in the chapter, nor
could he claim that the Attorney General possesses that au-
thority and could delegate it to the Assistant Attorney Gen-
eral. Chicago I, 888 F.3d at 285. And the plain language of
§ 10102(a)(6) precludes an interpretation that it is a stand-
alone grant of power unrelated to the authority granted in the
chapter or the authority granted to the Attorney General. Id.
Nos. 18-2885 & 19-3290 19

We further noted that our plain reading of the statute was
consistent with the structure of § 10102 and the Byrne JAG
program itself. Id. at 285–86. In contrast to discretionary
grants, the Byrne JAG program was a formula grant program,
with strictly-circumscribed provisions allocating award
amounts and penalties. An interpretation of § 10102(a)(6) that
would authorize the wholesale denial of all grant funds
would be a radical departure from the otherwise carefully-
delineated rules for the awarding and the withholding of
funds, and one would expect such a significant power to be
unmistakable in its language and to be connected to the Byrne
JAG (or grant awards in general) by reference. We noted that
‘[a] clause in a catch-all provision at the end of
a list of explicit powers would be an odd place
indeed to put a sweeping power to im-
pose any conditions on any grants—a power
much more significant than all of the duties and
powers that precede it in the listing, and a
power granted to the Assistant Attorney Gen-
eral that was not granted to the Attorney Gen-
eral. … As the Supreme Court has repeatedly
held, ‘Congress … does not alter the fundamen-
tal details of a regulatory scheme in vague terms
or ancillary provisions—it does not, one might
say, hide elephants in mouseholes.’
Id. at 285–87, quoting Gonzales v. Oregon, 546 U.S. 243, 267
(2006); Philadelphia, 916 F.3d at 288. We will not repeat that
analysis here, but it applies equally in the context of a perma-
nent injunction. No new meritorious arguments have been
raised by the Attorney General as to those conditions in this
appeal. Accordingly, we adopt and incorporate the reasoning
20 Nos. 18-2885 & 19-3290

from Section III of that opinion in this appeal. Chicago I, 888
F.3d at 282–87. For the reasons stated in Chicago I, the district
court did not err in granting permanent injunctive relief as to
the notice and access conditions. The Attorney General relies
on § 10102(a)(6) as the authority to impose the additional cer-
tification and harboring conditions as well, and our rejection
of that argument in Chicago I forecloses the argument as to
those conditions as well.3
B. Sections 10102(a)(2) and (4)
The Attorney General attempts to salvage the harboring
condition by pointing to a different portion of § 10102—the
subsections that instruct the Assistant Attorney General to
maintain liaisons with other entities—in (a)(2), “with the ex-
ecutive and judicial branches of the Federal and State govern-
ments in matters relating to criminal justice,” and in (a)(4)
“with public and private educational and research institu-
tions, State and local governments, and governments of other
nations relating to criminal justice.” That language entrusts
the Assistant Attorney General with maintaining lines of

3 In the course of his argument that § 10102(a)(6) authorizes the imposition

of the additional certification condition, the Attorney General also states
in a parenthetical that the additional certification condition “also involves
the provision of programmatic information to the extent that any active
impeding takes the form of withholding information, see 34 U.S.C.
§ 10153(A)(4).” Appellant Brief, No. 19-3290, at 22; see also City of Provi-
dence v. Barr, 2020 WL 1429579 at *7 (1st Cir. March 24, 2020) (rejecting the
argument that the “programmatic information” language in § 10153(A)(4)
provided authority for the conditions). That is the sole reference to
§ 10153(A)(4) as a basis to support the imposition of the additional certifi-
cation condition, and is insufficient to raise the argument before this court.
See Sauk Prairie Conservation All. v. United States Dep't of the Interior, 944
F.3d 664, 674 (7th Cir. 2019).
Nos. 18-2885 & 19-3290 21

communication with other entities, and is sandwiched be-
tween a recitation of other relatively-ministerial duties of the
Assistant Attorney General including the power to: “publish
and disseminate information on the conditions and progress
of the criminal justice systems [in (a)(1)], … provide infor-
mation to the President, the Congress, the judiciary, State and
local governments, and the general public relating to criminal
justice [in (a)(3),] … [and] coordinate and provide staff sup-
port to coordinate the activities of the Office and the Bureau
of Justice Assistance, the National Institute of Justice, the Bu-
reau of Justice Statistics, the Office for Victims of Crime, and
the Office of Juvenile Justice and Delinquency Prevention [in
(a)(5)].” 34 U.S.C. §§ 10102(a)(1), (3), (5); Chicago I, 888 F.3d at
287.
Nothing in that language even references, let alone au-
thorizes, the Assistant Attorney General to impose conditions
on the distribution of funds authorized by Congress. See State
of Oregon v. Trump, 406 F. Supp. 3d 940, 969 (2019) (holding
that the definition of liaison does not even hint at a punitive
aspect, “let alone a discretionary authority to completely dis-
solve relations when one side does not abide by the wishes of
the other,” and that the structure of the statute also weighs
against the Attorney General’s interpretation); San Francisco,
372 F. Supp. 3d at 944 (noting that “[t]he structure of Section
10102 does not support the contention that ‘maintain liaison’
in Section 10102(a)(2) provides more than a ministerial duty
on the Attorney General to maintain communication with
other Federal and State agencies.”). It would strain statutory
interpretation to the breaking point to interpret a provision
that requires the fostering of communication as handing to
the Assistant Attorney General the power to withhold the en-
tire Byrne JAG award for the failure to comply with
22 Nos. 18-2885 & 19-3290

substantive conditions imposed by the Attorney General—
particularly given that the language in the Byrne JAG grant
sets forth highly detailed and precise circumstances that
would justify the withholding of funds and the percentages
that can be withheld. See Chicago I, 888 F.3d at 286–87.
Moreover, the language in subsections (a)(2) and (4) could
not support the harboring condition even if we were to ignore
the problem that the language itself does not authorize the
imposition of conditions. Both subsections address the power
to maintain liaisons relating to criminal justice matters. But the
harboring condition that the Attorney General seeks to im-
pose on the Byrne JAG grant is explicitly not targeted to crim-
inal matters. The harboring condition prohibits the recipient
jurisdiction from making any “public disclosure … of any fed-
eral law enforcement information in a direct or indirect at-
tempt to conceal, harbor, or shield from detection any fugitive
from justice under 18 U.S.C. ch. 49, or any alien who has come
to, entered, or remains in the United States in violation of
8 U.S.C. ch. 12—without regard to whether such disclosure would
constitute (or could form a predicate for) a violation of [federal crim-
inal law provisions] 18 U.S.C. 1071 or 1072 or of 8 U.S.C. 1324(a).”
(emphasis added) Chicago, 405 F. Supp. 3d at 754–55. Thus, it
would withhold funds even regarding disclosures that re-
lated only to civil immigration and not the more narrow cate-
gory of criminal immigration matters. And it is being used by
the Attorney General to target Chicago’s Welcoming City Or-
dinance, which explicitly allows the City to cooperate in crim-
inal, as opposed to civil, immigration matters. The Attorney
General cannot rely on a provision encouraging communica-
tions as to criminal justice matters as authority to deny funds
for disclosures related only to civil matters. See San Francisco,
372 F. Supp. 3d at 945 (holding that the scope of the harboring
Nos. 18-2885 & 19-3290 23

condition exceeds the ministerial duty to maintain liaison).
For that reason as well, §§ 10102(a)(2) and (4) do not provide
authority for the harboring condition.
IV. Compliance Condition
We turn, then, to the compliance condition, which re-
quires the state or local government to certify that it will not
restrict its own officials from communicating information re-
garding the citizenship or immigration status of any individ-
ual. The burden of that requirement is not insignificant. For
instance, in City & Cnty. of San Francisco v. Sessions, 349
F. Supp. 3d 924, 952 (N.D. Cal. 2018), considering only de-
tainer requests, the district court noted that “California’s law
enforcement agencies experienced double the detainer re-
quests from ICE in one year—from 15,000 in fiscal year 2016
to 30,000 in fiscal year 2017.” Under the Attorney General’s
compliance condition, a state or local government could not
instruct its own employees that they must devote their time
to law enforcement tasks that it deems a higher priority rather
than respond to those information requests from ICE.
The compliance condition was not before this court in the
prior appeal. The district court had denied preliminary relief
as to that condition and Chicago did not cross-appeal that is-
sue to this court. At the permanent injunction stage, however,
the court reversed course and granted injunctive relief as to
that condition as well based on the Supreme Court’s decision
in Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461
(2018), which had been issued in the interim.
A. District Court Analysis
In the “Overview of Legal Requirements Generally Appli-
cable to OJP [Office of Justice Programs] Grants and
24 Nos. 18-2885 & 19-3290

Cooperative Agreements - FY 2017 Awards,” (hereinafter
“Overview of Legal Requirements”), the Attorney General
declared that he was imposing the compliance condition
“[c]onsistent with OJP’s statutory authority to impose grant
conditions, including 42 U.S.C. 3712 [now found at 34 U.S.C.
§ 10102].” See Dist. Ct. R. 26, Exh. M. As with the notice and
access conditions, the Attorney General points to § 10102(a)(6)
as authorizing the Assistant Attorney General to place special
conditions on all grants and determine priority purposes for
formula grants. We rejected that interpretation in Chicago I as
to the notice and access provisions, and we have adopted that
rationale in this appeal as well. The Attorney General’s reli-
ance on § 10102(a)(6) fails for the same reason when applied
to the compliance condition.
Despite his declaration that the grant condition would be
imposed pursuant to his power under § 10102, in the district
court and on appeal the Attorney General primarily anchors
the compliance condition to 34 U.S.C. § 10153(A)(5)(D) (here-
inafter “§ 10153”). That provision states that in a request for a
grant, the application “shall include … [a] certification, made
in a form acceptable to the Attorney General … that … the
applicant will comply with all provisions of this part and all
other applicable Federal laws.” (emphasis added) The Attorney
General argues that the italicized portion allows him to re-
quire that applicants certify compliance with 8 U.S.C. § 1373.
Section 1373 provides:
(a) In general
Notwithstanding any other provision of Fed-
eral, State, or local law, a Federal, State, or local
government entity or official may not prohibit,
Nos. 18-2885 & 19-3290 25

or in any way restrict, any government entity or
official from sending to, or receiving from, the
Immigration and Naturalization Service infor-
mation regarding the citizenship or immigra-
tion status, lawful or unlawful, of any individ-
ual.
(b) Additional authority of government entities
Notwithstanding any other provision of Fed-
eral, State, or local law, no person or agency
may prohibit, or in any way restrict, a Federal,
State, or local government entity from doing
any of the following with respect to information
regarding the immigration status, lawful or un-
lawful, of any individual:
(1) Sending such information to, or requesting or
receiving such information from, the Immigra-
tion and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other
Federal, State, or local government entity.
(c) Obligation to respond to inquiries
The Immigration and Naturalization Service
shall respond to an inquiry by a Federal, State,
or local government agency, seeking to verify or
ascertain the citizenship or immigration status
of any individual within the jurisdiction of the
agency for any purpose authorized by law, by
26 Nos. 18-2885 & 19-3290

providing the requested verification or status
information.
Under the Attorney General’s reasoning, Congress itself
incorporated § 1373 into the Byrne JAG program by requiring
compliance with “all other applicable federal laws.” And the
Attorney General interprets the requirements of § 1373 in-
credibly broadly, maintaining that the information as to “citi-
zenship or immigration status” incorporates information be-
yond an individual’s immigration status, including, for in-
stance, an alien prisoner’s release date.
The district court interpreted the term “all other applica-
ble federal laws” as encompassing all federal law. City of Chi-
cago, 321 F. Supp. 3d at 875. The court held that if Congress
wanted to limit the term to include just a specific body of fed-
eral grant-making laws, it could have done so, but that the
language “all other applicable federal law” includes any fed-
eral law that applies to Chicago. Id. Because § 1373 is a federal
law, the court held that § 10153 would require applicants to
certify compliance with it. Id.
But the district court then considered whether § 1373 was
itself constitutional, reasoning that an unconstitutional law
could not constitute an “applicable law” under § 10153. The
court held that § 1373 violated the anticommandeering
doctrine of the Tenth Amendment in light of the Supreme
Court’s decision in Murphy, 138 S. Ct. 1461. City of Chicago, 321
F. Supp. 3d at 866–73, 875. In Murphy, the Court made clear
that regardless of whether a federal law commands state
action or precludes it, Congress cannot issue direct orders to
state legislatures. Murphy, 138 S. Ct. at 1478. Accordingly, the
language in § 1373 could be problematic under the Tenth
Amendment even if it merely operated to preclude the state
Nos. 18-2885 & 19-3290 27

from taking certain actions. The district court then considered
the language of § 1373, which bars any government entity or
official from prohibiting, or in any way restricting, any other
government entity or official from exchanging information
with federal immigration authorities, and also prohibits any
person or agency from doing the same. The court held that
Chicago had challenged § 1373 as an independent statute, and
concluded that it was unconstitutional under the anti-
commandeering doctrine of the Tenth Amendment. City of
Chicago, 321 F. Supp. 3d at 867, 869. The court noted that a
state’s ability to control its offices and employees is at the
heart of state sovereignty and that § 1373 violates that in a
number of ways: first, it supplants local control of officers,
precluding Chicago and other localities from limiting the
amount of paid time its employees use to communicate with
federal immigration authorities; second, it indirectly
constrains local rule-making by precluding local lawmakers
from passing laws that implement the localities’ preferred
policies, such as the Welcoming City Ordinance, which run
counter to § 1373—a concern squarely addressed in Murphy;
third, it redistributes local decision-making power by
transferring that power from local policymakers to line-level
employees who are empowered to decide for themselves
whether or not to communicate with immigration authorities;
and finally, because it eliminates the ability of a locality such
as Chicago to control its employees’ communications with
federal immigration authorities, § 1373 prevents that locality
from extricating itself from federal immigration enforcement,
thus foreclosing the “critical alternative” recognized in New
York v. United States, 505 U.S. 144, 177 (1992), of the option of
non-participation in a federal program. City of Chicago, 321 F.
Supp. 3d at 869–70. The court concluded that § 1373 was
28 Nos. 18-2885 & 19-3290

unconstitutional on its face and, as an unconstitutional law, it
could not be considered an “applicable federal law” for
purposes of § 10153. Id. at 875–76. It rejected the Attorney
General’s baseless argument that even an unconstitutional
law could be considered an “applicable federal law” under §
10153.
B. Section 10153
The Attorney General challenges those conclusions on ap-
peal, but we need not address the district court’s compelling
analysis of that Tenth Amendment issue, because we hold
that the term “all other applicable federal law” cannot be con-
strued so broadly as to encompass § 1373. Pearson v. Callahan,
555 U.S. 223, 241 (2009) (noting the court’s long-time practice
of “constitutional avoidance,” where courts do not pass on
questions of constitutionality unless such adjudication is un-
avoidable). Our analysis begins with the plain language of
§ 10153, interpreted not in a vacuum, but in light of the con-
text and the statutory structure as a whole. Gundy, 139 S. Ct.
at 2126; Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1,
18–19 (1981). Proper interpretation considers not only the spe-
cific context in which the language is used, but the overall
structure of the statute as a whole, as well as its history and
purpose. Gundy, 139 S. Ct at 2126.
1. Plain Language
The Attorney General argues that the term “all other ap-
plicable federal law” incorporates all federal law that applies
to states or localities. The immediate problem with that inter-
pretation is that it renders the words “other applicable” su-
perfluous. See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001)
(quoting Duncan v. Walker, 533 U.S. 167, 174 (2001)) (“[i]t is ‘a
Nos. 18-2885 & 19-3290 29

cardinal principle of statutory construction’ that ‘a statute
ought, upon the whole, to be so construed that, if it can be
prevented, no clause, sentence, or word shall be superfluous,
void, or insignificant.’”); Philadelphia, 916 F.3d at 289 (“the
canon against surplusage counsels us to read the term ‘appli-
cable’ in a way that gives it some independent heft.”) If Con-
gress meant to incorporate all law that applies to States or lo-
calities, that would be accomplished by requiring compliance
with “all federal law.” Any federal laws that did not apply to
states or localities would simply be irrelevant in considering
compliance, in that an entity could not fail to comply with a
law that does not impose any legal obligations on it, and
therefore the term would not be overinclusive. By including
only “applicable” federal laws, the provision encompasses
only laws that apply by their terms to the award itself.
The natural reading of the phrase considers the language
in the subsection as a whole:
(A) To request a grant … the … State or unit of local
government shall submit an application to the
Attorney General … in such form as the Attor-
ney General may require. Such application shall
include the following:
…
(5) A certification, made in a form acceptable to the
Attorney General and executed by the chief ex-
ecutive officer of the applicant (or by another of-
ficer of the applicant, if qualified under regula-
tions promulgated by the Attorney General),
that—
30 Nos. 18-2885 & 19-3290

(A) the programs to be funded by the grant meet all
the requirements of this part;
(B) all the information contained in the application
is correct;
(C) there has been appropriate coordination with
affected agencies; and
(D) the applicant will comply with all provisions of
this part and all other applicable Federal laws.
34 U.S.C. § 10153(A)(5). This provision relates to the grant ap-
plication itself and conformance to all of its requirements. It
provides for an assurance that the programs to be funded by
the grant meet all the requirements, that the information in
the grant application is correct, that appropriate coordination
with agencies affected by the grant has occurred, and that the
applicant will comply with all provisions of this part and “all
other applicable Federal laws.” The most natural reading of the
last provision is that “all other applicable” laws refers to the
many federal laws that apply specifically to grants or grant-
ees. That is consistent with the structure of the provision as a
whole which addresses requirements related to the grant and
the application for the grant itself. See City of Providence v. Barr,
2020 WL 1429579 at *11 (1st Cir. March 24, 2020); Philadelphia,
916 F.3d at 289 (noting that those four subsections all relate to
the programs that will be funded under the grant, thus coun-
seling against a broader interpretation of the applicable laws
clause); San Francisco, 349 F. Supp. 3d at 954 (noting that all of
the conditions preceding it apply to the grant itself). This
reading also tracks more closely to the language of
§ 10153(A)(5)(D) itself, which requires certification that the
“applicant” will comply with all provisions of this part and
Nos. 18-2885 & 19-3290 31

all other applicable federal laws, thus signaling that the re-
quirement is tethered to the status of the state and locality as
a grant applicant and not merely as a governmental entity.
2. Consistency with Other Statutes Applied
The language at issue is mirrored in a subsequent sub-
chapter that also applies on its terms to the Byrne JAG pro-
gram, and provides:
Whenever, after reasonable notice and oppor-
tunity for a hearing on the record in accordance
with section 554 of Title 5, the Bureau of Justice
Assistance, the National Institute of Justice, and
the Bureau of Justice Statistics finds that a recip-
ient of assistance under this chapter has failed
to comply substantially with—
(1) any provisions of this chapter;
(2) any regulations or guidelines promulgated
under this chapter; or
(3) any application submitted in accordance
with the provisions of this chapter, or the provi-
sions of any other applicable Federal Act;
the Director involved shall, until satisfied that
there is no longer any such failure to comply,
terminate payments to the recipient under this
chapter, reduce payments to the recipient under
this chapter by an amount equal to the amount
of such payments which were not expended in
accordance with this chapter, or limit the avail-
ability of payments under this chapter to
32 Nos. 18-2885 & 19-3290

programs, projects, or activities not affected by
such failure to comply.
(emphasis added) 34 U.S.C. § 10222. Again, the statute speaks
in terms of the “recipient of assistance under this chapter”
complying with “the provisions of any other applicable Fed-
eral law,” thus signaling that the laws that would be “appli-
cable” are laws that refer specifically to grant recipients, not
any laws that apply generally to states or localities. The refer-
ence to “other” applicable Federal law is a nod to the require-
ments that precede it, which all relate to the grant itself and
regulations relating to it. Specifically, preceding the “all other
applicable Federal law” provision are the requirements that
the recipient of assistance comply substantially with provi-
sions of that chapter, regulations or guidelines promulgated
under that chapter, and applications submitted in accordance
with the provisions of this chapter. All of those requirements
directly relate to the requirements specific to the subject mat-
ter of the grants. The most natural reading of the phrase “all
other applicable Federal law,” then, is that it includes laws re-
lating to grant recipients that appear outside this specific chap-
ter of the United States Code.
And that is true of the same language in § 10153(A)(5)(D)
as well. Because many federal laws explicitly apply to federal
grantees, the most natural reading of § 10153 as a whole is that
it requires the applicant to certify that it will comply with all
of those federal laws that apply, by their terms, to successful
grant applicants. That is consistent with the other listed pro-
visions in § 10153(A)(5) which relate to the grant itself—either
in assuring that it is awarded based on correct information, or
that it is pursued in proper coordination with affected agen-
cies, or, in the part at issue here, that it will be in compliance
Nos. 18-2885 & 19-3290 33

with all the grant requirements in this part or other parts of
federal law. It is also reflected in the OJP’s own explanation
of grant requirements as set forth in its Overview of Legal Re-
quirements, which explains that “[e]ach recipient of an OJP
grant or cooperative agreements must comply with all fed-
eral statutes and regulations applicable to the award, as well
as the particular award conditions included in the award doc-
ument.” (emphasis added) Dist. Ct. R. 26, Exh. M.; see also id.
(providing applicant an overview of statutes and award con-
ditions “that apply to many (or in some cases, all) OJP grants
and cooperative agreements awarded in 2017”) (emphasis
added). As that language makes clear, the connection of the
law to the award itself is what renders a particular federal law
“applicable.”4
Such statutes directly applying to grants and grant recipi-
ents are plentiful, and the Byrne JAG program explicitly iden-
tifies a number of them in its application. In fact, a review of
the other federal laws referenced in the application reveals a
clear pattern of laws that explicitly apply to those receiving
federal funds. The Edward Byrne Memorial Justice Assistance

4 The Attorney General argues that some federal laws and regulations in-
clude language modifying “applicable,” and that absent such language
the term should be interpreted as unbounded (citing 42 U.S.C.
§ 16154(g)(1) (“generally applicable Federal laws and regulations govern-
ing awards of financial assistance, contracts, or other agreements”) and
Pub. L. No. 113-121, § 1043 (a)(3)(C)(ii)(II), 128 Stat. 1193, 1246 (2014) (“all
applicable Federal laws (including regulations) relating to the use of the
funds”)). It is not at all clear that such language serves to narrow rather
than to clarify, but regardless, the use of modifying language in other stat-
utes does not alter our conclusion that the context, language and structure
of this statute defines the phrase as including only laws relating to grants
and grantees.
34 Nos. 18-2885 & 19-3290

Grant Program FY 2017 Local Solicitation directs applicants
to the web pages accessible through the “Overview of Legal
Requirements Generally Applicable to OJP Grants and Coop-
erative agreements – FY 2017 Awards” for a general overview
of the important statutes and regulations that apply to the
grant. Appellant’s Appendix, No. 18-2885, at A175. That
source identifies a number of federal laws that apply to the
grant, and those laws are identified in the grant award itself
as well. See id. at A50–A69. Unlike § 1373, however, those laws
by their very language apply expressly to grants and recipi-
ents of grants. For instance, the laws include:
18 U.S.C. § 1913—Lobbying with appropriated
moneys, which provides that “[n]o part of the
money appropriated by any enactment of Con-
gress shall, in the absence of express authoriza-
tion by Congress, be used directly or indirectly
to pay for any personal service, advertisement,
[etc.] … intended or designed to influence in
any manner a Member of Congress … .“
22 U.S.C. § 7104—Prevention of trafficking,
which in § 1704(g) provides that “the President
shall ensure that any grant … provided or en-
tered into by a Federal department or agency
under which funds are to be provided to a pri-
vate entity, in whole or in part, shall include a
condition that authorizes the department or
agency to terminate the grant … if the grantee
or any subgrantee … engages in … (1) severe
forms of trafficking in persons … .”
41 U.S.C. § 4712(a)(1)—Enhancement of con-
tractor protection from reprisal for disclosure of
Nos. 18-2885 & 19-3290 35

certain information, providing that “[a]n em-
ployee of a … grantee, or subgrantee … may
not be discharged, demoted or otherwise dis-
criminated against as a reprisal for disclosing to
a person or body described in paragraph (2) in-
formation that the employee reasonably be-
lieves is evidence of gross mismanagement of a
Federal contract or grant … .”
28 C.F.R. § 54.100—Title IX regulation “de-
signed to eliminate (with certain exceptions)
discrimination on the basis of sex in any educa-
tion program or activity receiving Federal fi-
nancial assistance, whether or not such pro-
gram or activity is offered or sponsored by an
educational institution … .”
28 C.F.R. § 42.102-42.105—Title VI of the Civil
Rights Act—prohibits discrimination on the
ground of race, color, or national origin and
“applies to any program for which Federal as-
sistance is authorized under a law adminis-
tered by the Department,” with Federal finan-
cial assistance defined as including “grants and
loans of Federal funds.” It also requires that
“[e]very application for Federal financial assis-
tance to which this subpart applies … shall, as a
condition to its approval and the extension of
any Federal financial assistance pursuant to the
application, contain or be accompanied by an
assurance that the program will be conducted or
the facility operated in compliance with all
36 Nos. 18-2885 & 19-3290

requirements imposed by or pursuant to this
subpart.”
31 U.S.C. § 1352—Limitation on use of appro-
priated funds to influence certain Federal con-
tracting and financial transactions, providing
that “[n]one of the funds appropriated by any
Act may be expended by the recipient of a Fed-
eral … grant … to pay any person for influenc-
ing or attempting to influence an officer or em-
ployee of any agency, a Member of Congress, an
officer or employee of Congress, or an employee
of a Member of Congress in connection with
[federal contracts].”
(emphasis added). Those statutes and regulations also
provide specific remedies tailored to each provision for
violations—ranging from civil penalties to abatement
measures to grant termination—in contrast to §1373 for which
the Attorney General himself has determined that wholesale
withholding of the entire grant is the remedy for
noncompliance. See, e.g., 31 U.S.C. § 1352(a)–(c) incorporated
by reference in 18 U.S.C. § 1913, 22 U.S.C. § 7104(g), 41 U.S.C.
§ 4712(c). Section 1373, therefore, represents a departure from
the other federal law incorporated into the grant. In fact, the
Third Circuit in Philadelphia, 916 F.3d at 290, considered the
history as to which laws the Justice Department included
under the applicable laws clause, and noted that “[e]very
condition that is authorized by the Applicable Laws Clause
applies specifically to programs funded under the grant, not
more generally to the grantee.”
Nos. 18-2885 & 19-3290 37

C. Problems with AG’s Interpretation
The Attorney General’s interpretation of the compliance
provision, in contrast, would expand that provision far be-
yond the context of the grant and its application, to encom-
pass the broad, unrelated array of federal laws that apply to
states or local governments regardless of their connection to
this or any grant. Moreover, as we will explain, the Attorney
General’s interpretation would: (1) allow the executive to im-
pose conditions that Congress repeatedly declined to institute
itself; (2) allow the Attorney General in his discretion to im-
pose a substantive qualifying condition on a grant that Con-
gress explicitly established as a formula rather than a discre-
tionary grant; (3) render irrelevant or illogical other provi-
sions in the Byrne JAG statute and raise constitutional con-
cerns; and (4) conflict with another statutory provision. As
such, it is inconsistent with the bedrock principles of separa-
tion of powers and federalism, and the district court properly
granted injunctive and declaratory relief.
1.
Although the Attorney General interprets § 10153 as re-
quiring compliance with § 1373, Congress has repeatedly re-
fused to pass legislation that would do precisely that, as we
recognized in Chicago I:
In the past few years, numerous pieces of legis-
lation were introduced in the House and Senate
seeking to condition federal funding on compli-
ance with 8 U.S.C. § 1373—which was intended
to address “sanctuary cities” and prohibit fed-
eral, state or local government officials or enti-
ties from restricting the exchange of information
38 Nos. 18-2885 & 19-3290

with the immigration authorities regarding citi-
zenship or immigration status. None of those ef-
forts were passed by Congress. See, e.g., Stop
Dangerous Sanctuary Cities Act, H.R. 5654,
114th Cong. § 4 (2016); Stop Dangerous Sanctu-
ary Cities Act, S. 3100, 114th Cong. § 4 (2016);
Enforce the Law for Sanctuary Cities Act, H.R.
3009, 114th Cong. § 3 (2015); Mobilizing Against
Sanctuary Cities Act, H.R. 3002, 114th Cong. § 2
(2015); Stop Sanctuary Policies and Protect
Americans Act, S. 2146, 114th Cong. § 3(a)
(2015); Stop Sanctuary Cities Act, S. 1814, 114th
Cong. § 2 (2015) (all available at
https://www.congress.gov). see also Annie Lai
& Christopher N. Lasch, Crimmigration Re-
sistance and the Case of Sanctuary City Defunding,
57 Santa Clara L. Rev. 539, 553 n. 87 (2017) (list-
ing eight pieces of legislation introduced during
that time, all of which were unsuccessful).
Chicago I, 888 F.3d at 277–78. The Attorney General’s reading
would thus allow the Executive Branch to override Congress’
refusal to endorse § 1373 compliance and would effectively
“legislate” a different result.
2.
Second, the Attorney General’s interpretation would vest
the executive branch with unbridled power to identify select
federal laws and impose them as a precondition for the receipt
of federal grant money allocated by Congress. That discre-
tionary authority is fundamentally inconsistent with the na-
ture of the Byrne JAG grant as a formula grant, located in a
separate section of the Act than the discretionary grants. See
Nos. 18-2885 & 19-3290 39

generally Bureau of Justice Assistance Grant Program, 34
U.S.C. § 10151 et seq. As a formula grant rather than a discre-
tionary grant, the grant awarded is a function of the state or
local government’s proportionate crime rate and population,
and is incompatible with the sort of unbridled discretion that
the Attorney General’s interpretation would yield. See Phila-
delphia, 916 F.3d at 290 (noting that Congress structured the
Byrne JAG program as a formula grant, and that allowing the
withholding of funds “because a jurisdiction does not certify
compliance with any federal law of the Attorney General’s
choosing undermines the predictability and consistency em-
bedded in the program’s design, thus turning the formula
grant into a discretionary one.”).5
The Attorney General dismisses this as a non-issue, de-
claring that the States and local governments were already
subject to those laws and therefore the certification of compli-
ance imposes no burden or barrier. He disclaims any role in
determining which laws will be applied, stating that his inter-
pretation “does not require compliance with laws ‘selected at
the Attorney General’s uncabined discretion.’” Reply Brief,
No. 18-2885, at 5. Instead, he declares that he is “not urging
that the Attorney General has discretion to select applicable
laws; rather, Congress has made laws applicable to Chicago,
and Chicago must comply with them.” Id. at 5–6. But that ar-
gument is utterly inconsistent with the application process

5 As we noted in Chicago I, the provision for discretionary grants is located

in a different subpart of the same statute, and “imbues the Director (who
reports to the Assistant Attorney General) with the authority to award
funds on terms and conditions that the Director determines to be con-
sistent with that subpart.” Chicago I, 888 F.3d at 286.
40 Nos. 18-2885 & 19-3290

that the Attorney General has actually implemented and is
meritless.
First, the grant application does not purport to track com-
pliance with the entire universe of federal law. Instead, the
Attorney General has singled out particular federal laws
which act as a gatekeeper to control and limit access to the
grant. That is apparent in the language of the application—
which identifies specific statutes—and also in the Attorney
General’s apparent absence of concern with the multitudes of
other federal laws that apply by their terms to states and cit-
ies, such as OSHA requirements or EPA regulations or any
other federal constitutional, statutory or regulatory law. In
fact, the Attorney General has singled out § 1373 and required
a separate certification of compliance for that statute alone,
with penalties for false statements or omissions ranging from
civil penalties to criminal prosecution. Rather than condition-
ing the award of the grant on evidence that the state or local
government is in compliance with all federal laws that by
their terms apply to states or local governments, the Attorney
General conditions the award on a certification that the state
or locality is in compliance with one specific law—§ 1373—as
is trumpeted in the following notice to grant applicants:
Alert: New Requirements for Certain FY 2017
Programs
Consistent with OJP’s statutory authority to
impose grant conditions, including 42 U.S.C.
3712, OJP will include—in an award document
sent to a prospective FY 2017 Edward Byrne
Justice Assistance Grant (“Byrne JAG”)
recipient for acceptance—express award
conditions concerning ongoing compliance
Nos. 18-2885 & 19-3290 41

with 8 U.S.C. 1373, throughout the award
period, in the “program or activity” funded by
the award. (In general, section 1373 bars
restrictions on communication between State
and local agencies and officials and the
Department of Homeland Security (and certain
other entities) with respect to information
regarding the citizenship or immigration status
of any individual.) States and units of local
government that apply for awards under the FY
2017 Byrne JAG Program will be required—
prior to award acceptance—to submit a specific
certification from the chief legal officer of the
jurisdiction regarding the applicant’s
compliance with 8 U.S.C. 1373(a) and (b).
Interested applicants may view a sample
certification document at
https://ojp.gov/funding/Explore/SampleCertific
ations-8USC1373.htm.
In addition, consistent with OJP’s statutory au-
thority, OJP will include in any FY 2017 Byrne
JAG award (as part of the award document) ad-
ditional express conditions that, with respect to
the “program or activity” that would be funded
by the FY 2017 award, are designed to ensure
that States and units of local government that
receive funds from the FY 2017 Byrne JAG
award: (1) permit personnel of the U.S. Depart-
ment of Homeland Security (“DHS”) to access
any correctional or detention facility in order to
meet with an alien (or an individual believed to
be an alien) and inquire as to his or her right to
42 Nos. 18-2885 & 19-3290

be or remain in the United States; and (2) pro-
vide at least 48 hours’ advance notice to DHS re-
garding the scheduled release date and time of
an alien in the jurisdiction’s custody when DHS
requests such notice in order to take custody of
the alien pursuant to the Immigration and Na-
tionality Act.
Overview of Legal Requirements, Dist. Ct. R. 26, Exh. M. That
alert to future grant applicants expressly recognizes that the
OJP has selected one federal statute to impose as a grant con-
dition with requirements of certification that are specific to
that statute. Its contention that Congress, rather than the At-
torney General, has selected the laws that will constitute con-
ditions of the grant is patently false.
The argument that the certificate of compliance imposes
no burden because government entities were already
required to follow the law fails for an additional reason. The
identification of a federal law as an “other applicable law” for
receipt of the grant imposes a penalty on the violation of that
law that would otherwise not exist. It transforms every
federal legal obligation into a potential basis to withhold
funding that has been designated by Congress for
disbursement to state and local governments for law
enforcement. Yet that penalty for non-compliance is not a
penalty set forth by Congress in those other statutes.
Therefore, the interpretation by the Attorney General which
could transform any federal law into a condition of the grant
would indeed impose a burden not already provided by the
federal law itself, in the form of a steep financial penalty. In
fact, that “penalty” could extend well beyond the denial of the
Byrne JAG grant if the Attorney General’s interpretation of
Nos. 18-2885 & 19-3290 43

“all other applicable federal law” is adopted. It would allow
the Attorney General to withhold myriad other grants that
have been authorized by Congress because that precise term
is used in numerous other statutes—often as part of a
statutory section that mirrors the one in the Byrne JAG grant
at issue here—including statutes providing grants under: the
Comprehensive Opioid Abuse Grant Program, 34 U.S.C.
§ 10702; Matching Grant Program for School Security, 34
U.S.C. § 10552; Career and Technical Education Assistance to
the States, 20 U.S.C. § 2322; and the Byrne JAG discretionary
grants, 34 U.S.C. §10181.
Interpreting that language as potentially incorporating
any federal law would vest the Attorney General with the
power to deprive state or local governments of a wide variety
of grants, based on those entities’ failure to comply with
whatever federal law the Attorney General deems critical. Yet
there is nothing in those statutes that even hints that Congress
intended to make those grants dependent on the Attorney
General’s whim as to which laws to apply, cabined only by
the requirement that the laws apply generally to states or lo-
calities. That anomalous result is avoided if we interpret the
term “all other applicable federal law” to incorporate federal
laws that explicitly apply to grants or grant recipients. As to
those federal laws, Congress clearly intended them to apply
to states and local governments applying for federal grants,
and to impact those grants.
The potential for abuse is apparent. Here, the Attorney
General has used the broad interpretation of “other applicable
law” as a means of hijacking the legislatively-established
Byrne JAG program to further particular policy goals of the
Executive, despite the repeated refusal of Congress to impose
44 Nos. 18-2885 & 19-3290

such a prerequisite itself. The open-ended ability to choose
federal laws at will would allow the targeting of states or pol-
icy issues if the Attorney General chose to do so. For instance,
the Attorney General could effectively isolate specific states
by requiring certification of compliance with federal law re-
garding controlled substances, thus disqualifying states or lo-
cal governments that have legalized or decriminalized mari-
juana, or by requiring a certification of compliance with fed-
eral constitutional law such as Roe v. Wade, 410 U.S. 113 (1973),
thus eliminating grant funding for states that recently have
passed “heartbeat bills” and other legislation designed to
challenge Roe. That would transform the highly-structured
formula grant into one that vested total in the Attorney Gen-
eral to impose barriers to the grant through his choice as to
which other federal laws to target as grant conditions.6
3.
The Attorney General’s identification of a specific law—
and the conditioning of the grant on compliance with it—falls
far astray from the language, context and structure of the stat-
ute itself. And a reading of the statutory language in a manner
promoted by the Attorney General would raise potential

6 In addition to the impropriety of such discretion in a formula grant gen-
erally, the discretion to set conditions here is also problematic because the
certification provided in § 10153(A)(5) is only a certification “in a form ac-
ceptable to the Attorney General” that the applicant will comply with all
other applicable federal laws. The statute, then, grants discretion only
over the form of the certification, not the content as the Attorney General
seeks to assert here. Compare 13 U.S.C. § 141 (providing that “[t]he Secre-
tary shall … take a decennial census of the population … in such form and
content as he may determine … .”) (emphasis added); accord City of Provi-
dence, 2020 WL 1429579 at *11.
Nos. 18-2885 & 19-3290 45

constitutional and statutory concerns. First, as we have al-
ready discussed, the statute cited as providing the authority
for the imposition of the condition grants no such power to
the Attorney General. Moreover, the vesting of such discre-
tionary authority in the hands of the Attorney General would
render irrelevant or illogical the statute’s exacting delineation
of the formula for grant awards and the precise limits on the
extent to which the Attorney General can deviate from that
distribution, as we discussed in Chicago I, 888 F.3d at 286:
The ability of the Attorney General to depart
from the distribution mandated by the formula
is strictly circumscribed. For instance, of the to-
tal amount available in a given fiscal year, the
Attorney General is authorized to reserve “not
more than 5 percent, to be granted to 1 or more
States or units of local government” for one or
more of the allowed statutory purposes, “pur-
suant to his determination that the same is nec-
essary (1) to combat, address, or otherwise re-
spond to precipitous or extraordinary increases
in crime, or in a type or types of crime; or (2) to
prevent, compensate for, or mitigate significant
programmatic harm resulting from operation of
the formula … .” 34 U.S.C. § 10157(b). Moreo-
ver, the Attorney General is authorized by other
statutes to reduce the funding in certain circum-
stances, but even then the amount of the reduc-
tion is set by statute. For example, the Sex Of-
fender Registration and Notification Act man-
dates a 10 percent reduction in JAG funding if a
state fails to substantially implement its provi-
sions. 34 U.S.C. § 20927(a). And the Prison Rape
46 Nos. 18-2885 & 19-3290

Elimination Act of 2003 stipulates that a state
that does not certify full compliance with its na-
tional standards can forfeit 5 percent of JAG
funds unless it certifies that no less than 5 per-
cent of such funds will be used solely to achieve
compliance. 34 U.S.C. § 30307(e)(2)(A).
In contrast to those carefully delineated reductions for
specific circumstances, the Attorney General’s interpretation
would allow the Attorney General to withhold 100% of funds
based on his determination as to which federal law to target.
In addition to the dissonance with the statutory structure,
the selective targeting of specific statutes without regard to
the statute’s relation to the grant or its purposes could present
constitutional concerns. First, we note that as the Supreme
Court reaffirmed in Gundy, 139 S. Ct. at 2129, a statutory del-
egation of authority “is constitutional so long as Congress has
set out an ‘intelligible principle’ to guide the delegee’s exer-
cise of authority … [o]r in a related formulation, the Court has
stated that a delegation is permissible if Congress has made
clear to the delegee ‘the general policy’ he must pursue and
the ‘boundaries of [his] authority.’” Although courts rarely
second-guess the degree of policy judgment left by Congress
to those responsible for executing the law, the term “applica-
ble” by itself is so devoid of any definition or guidance that,
if the Attorney General were relying on that provision as a
delegation of authority to impose the conditions, it would
vest discretion unmoored by any legislative general policy or
boundaries of authority.
In fact, the Supreme Court in Gundy recognized the
constitutional issues presented by statutory provisions
vesting such broad discretion, in considering the Sex Offender
Nos. 18-2885 & 19-3290 47

Registry Notification Act (“SORNA”) which provided that
“[t]he Attorney General shall have the authority to specify the
applicability of the requirements of this subchapter to sex
offenders convicted before the enactment of this chapter …
and to prescribe rules for the registration of any such sex
offender.” Id. at 2122. Although the Justices in the plurality
decision in Gundy could not agree as to the outcome, a
majority recognized that such a provision, if read as granting
the Attorney General discretion to determine whether to apply
SORNA to offenders rather than the mechanics of how to
apply it, would present constitutional nondelegation
problems. See Gundy, 139 S. Ct. at 2123, 2128 (plurality)
(discussing the whether/how distinction and noting that it
would present a nondelegation question if, as Gundy argued,
the provision in the SORNA statute “grants the Attorney
General plenary power to determine SORNA’s applicability
to pre-Act offenders—to require them to register, or not, as
she sees fit, and to change her policy for any reason and at any
time”) and 139 S. Ct. at 2143, 2145 (dissenting) (noting that the
provision “gave the Attorney General unfettered discretion to
decide which requirements to impose on which pre-Act
offenders” and that “[m]ost everyone, the plurality included,
concedes that if SORNA allows the Attorney General as much
authority as we have outlined, it would present ‘a
nondelegation question.’”).
Here, the Attorney General’s interpretation of the “other
applicable federal law” language would grant the type of un-
fettered discretion to determine whether a particular federal
law will be a precondition of the grant that seven Justices of
the Grundy Court recognized presents a constitutional non-
delegation issue. Accordingly, the language of the statute, if
read as delegating the authority to the Attorney General to
48 Nos. 18-2885 & 19-3290

choose which federal laws would constitute conditions of the
grant, would raise grave constitutional concerns.
But the Attorney General has not relied on that language
in that manner. Instead, the Attorney General asserts that
Congress, with the “other applicable law” provision, itself im-
posed the condition on the grant under its Spending Clause
power because Congress thereby incorporated all federal
laws as grant conditions. Yet among the requirements for the
constitutional exercise of such spending power, is the require-
ment that Congress, if it desires to condition the receipt of fed-
eral funds, “’must do so unambiguously …, enabl[ing] the
States to exercise their choice knowingly, cognizant of the
consequences of their participation.’” South Dakota v. Dole, 483
U.S. 203, 207 (1987), quoting Pennhurst, 451 U.S. at 17. A state
cannot knowingly accept the conditions of the federal fund-
ing if that state is unaware in advance of the conditions or un-
able to ascertain what is expected of it, and therefore we insist
that Congress must speak with a clear voice. Pennhurst, 451
U.S. at 17. An interpretation of “other applicable federal laws”
that is limited to laws that expressly apply to grantees is
clearly ascertainable, in contrast to the broader interpretation
of the Attorney General which is unbounded—which would
literally include thousands of federal statutes and regulations.
The Second Circuit, in adopting the broad interpretation
of the language that the Attorney General seeks,
acknowledges—even celebrates—the unbounded authority
that such an interpretation would provide, and makes clear
that the interpretation will allow denial of the grant for
federal laws entirely unrelated to the purposes of the grant
such as environmental laws:
Nos. 18-2885 & 19-3290 49

Indeed, whether a grant is awarded by formula
or by discretion, there is something disquieting
in the idea of States and localities seeking fed-
eral funds to enforce their own laws while
themselves hampering the enforcement of fed-
eral laws, or worse, violating those laws. One
has only to imagine millions of dollars in Byrne
funding being sought by a locality that is simul-
taneously engaged in persistent, serious viola-
tions of federal environmental laws. The for-
mula nature of the Byrne Program does not dic-
tate that such an applicant must be given federal
money even as it continues to flout federal law.
To the contrary, § 10153(a)(5)(D) authorizes the
Attorney General to condition the locality’s re-
ceipt of a Byrne grant on its certified willingness
to comply with all federal laws applicable to that
locality, which includes environmental laws.
New York, 951 F.3d at 107–08.
We do not agree with that interpretation of the language.
Congress, under its spending power, can attach only condi-
tions that “bear some relationship to the purpose of the fed-
eral spending,” and the universe of all federal laws as pro-
moted by the Attorney General would necessarily include
many laws that fail to meet that standard—once again render-
ing the conditions ambiguous. New York v. United States, 505
U.S. 144, 167 (1992), citing South Dakota, 483 U.S. at 207–08 and
n.3. Thus, the more narrow reading of the language is not only
more consistent with the structure of the statute, but it avoids
potential constitutional questions.
50 Nos. 18-2885 & 19-3290

4.
Moreover, the narrower interpretation that we adopt to-
day also avoids a conflict with 34 U.S.C. § 10228, which ap-
plies to the chapter that includes the Byrne JAG grant provi-
sions. Section 10228 provides:
(a) General rule
Nothing in this chapter or any other Act shall be
construed to authorize any department, agency,
officer, or employee of the United States to ex-
ercise any direction, supervision, or control over
any police force or any other criminal justice
agency of any State or any political subdivision
thereof.
The incorporation of § 1373 as a condition of the Byrne
JAG grant directly conflicts with § 10228. Through § 1373, the
Attorney General seeks to prohibit the state or political sub-
division from providing certain instructions and limitations
on the actions of its own police force, thus exercising “direc-
tion, supervision, or control” over that police force. Nor does
it matter that § 1373 prohibits the state from taking an action,
as opposed to requiring an action. As the Supreme Court rec-
ognized in Murphy (in considering a claim under the anticom-
mandeering doctrine of the Tenth Amendment), it does not
matter whether a law commands a state to take an affirmative
action or prohibits a state from taking an action—either situ-
ation involves the exercise of control over the state. Murphy,
138 S. Ct. at 1478. Section 1373 declares that a state or local
government may not prohibit or restrict its own officials from
communicating information regarding the citizenship or im-
migration status of any individual to the INS. That restriction
Nos. 18-2885 & 19-3290 51

of the state or local government would constitute direction or
control over the communications by the state or local police
force. Because § 10228 declares that “[n]othing in this chapter
or any other Act shall be construed to authorize” such direc-
tion or control, we should not construe § 10153 in a manner
that would incorporate § 1373 as a condition of the grant. See
Philadelphia, 916 F.3d at 291 (noting that § 10228 may be a stat-
utory limit to which laws are “applicable”).
Accordingly, based on the language, structure, and pur-
pose of the Act, the reference to “all other applicable federal
laws” in § 10153 should be read as referencing any federal law
that by its terms applies to federal grants or grantees in that
capacity. Accord Providence, 2020 WL 1429579 at *12. Because
we so hold, we need not consider the alternative argument
that § 1373 cannot be considered an “applicable federal law”
even under the broader reading by the Attorney General be-
cause it is unconstitutional under the anticommandeering
doctrine of the Tenth Amendment. See Pearson, 555 U.S. at 241
(noting that we generally should avoid constitutional ques-
tions if possible). The holding that § 1373 is not an “applicable
federal law” equally dooms the argument that § 1644 pro-
vides authority for the compliance condition, as the parties
concede that § 1644 is identical to § 1373.
V. Relief
We turn, then, to the final issue in this case, which is
whether the district court erred in extending the injunction
beyond the City of Chicago. In its Final Judgment and Order
in the FY 2017 litigation, the district court granted declaratory
and injunctive relief to Chicago. The district court ordered
that “the Attorney General’s decision to attach the Conditions
to the FY 2017 Byrne JAG grant is set aside and shall have no
52 Nos. 18-2885 & 19-3290

legal effect” and enjoined the Attorney General from “deny-
ing or delaying issuance of any FY 2017 Byrne JAG award in-
sofar as that denial or delay is based on the Conditions.” Dist.
Ct. Final Judgment and Order, R. 211 at 3. The court further
held that “[t]his Order applies to the Attorney General’s im-
position of the Challenged Conditions on the Byrne JAG grant
program as a whole. Its effects run to the benefit of all Byrne
JAG applicants and recipients are not limited to the City of
Chicago and its sub-grantees.” Id. at 4. The court stayed the
order as to all areas of the country beyond Chicago in light of
the stay our court had granted pending the since-vacated
grant of an en banc rehearing.
The court declared that § 1373 violated the Tenth Amend-
ment’s anticommandeering principle and was therefore fa-
cially unconstitutional, that the Attorney General exceeded
the authority delegated by Congress in the Byrne JAG statute,
34 U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a)(6), and
that the Attorney General’s decision to attach the conditions
to the FY 2017 Byrne JAG grant violated the constitutional
principle of separation of powers. Dist. Ct. Final Judgment
and Order, R.211 at 2. In the subsequent challenge to the
FY 2018 grant conditions, the district court held that §§ 1373
and 1644 violate the Tenth Amendment’s anti-commandeer-
ing principles and are therefore facially unconstitutional, that
the Attorney General exceeded the authority delegated by
Congress in the Byrne JAG statute and in § 10102(a) in attach-
ing the challenged conditions to the FY 2018 Byrne JAG grant,
and that the decision to attach those conditions to the grant
violated the constitutional principle of separation of powers.
The district court extended the permanent injunction it had
imposed as to the FY 2017 Byrne JAG grant to include FY 2018
and all future years, enjoining the Attorney General from
Nos. 18-2885 & 19-3290 53

denying or delaying issuance of the Byrne JAG award insofar
as that denial or delay is based on the challenged conditions
or materially identical conditions. Dist. Ct. Final Judgment
and Order, Appellant Appendix, No. 19-3290, at SA50. The
court stayed the injunction to the extent that it applied to
grantees other than the City of Chicago.
The district court’s decision to extend the injunctive relief
to include future years reflected the history of litigation and
the positions taken by the Attorney General. In the litigation
challenging the FY 2017 injunction, the Department of Justice
attorney representing the Attorney General [hereinafter “DOJ
attorney”], asserted that it would be premature to enjoin con-
ditions in FY 2018 or the years to follow because those condi-
tions were “still in formation and … will be different in some
respects from the 2017 conditions.” Dist. Ct. Transcript of Pro-
ceedings, Doc. 213 at 5. The DOJ attorney then stated that alt-
hough disagreeing with the district court’s analysis, “we’ve
certainly taken it to heart. And so we are looking at the con-
ditions for next year against the backdrop of your prior deci-
sion.” Id. He argued to the district court that relief beyond the
specific year was improper because the issue was not yet ripe,
arguing:
[DOJ attorney]: Your Honor, two things. One,
the solicitation is not – are not the actual condi-
tions. This is an invitation to seek a grant. It
doesn’t expressly state what the conditions are.
Two, I’ve told you that we’re looking at those
conditions and that we are taking to heart your
prior decision. And three, I think your point
about, if we impose the exact same conditions
without notice and force them to affirmatively
54 Nos. 18-2885 & 19-3290

file a case, there might be other remedies avail-
able to the plaintiffs in that context.
[District court]: That would mean their lawyers
would get paid.
Id. at 5–6. Despite these assurances made by the DOJ attorney
to Judge Leinenweber, the Attorney General nevertheless im-
posed the very same conditions again in the FY 2018 grant ap-
plication, and indeed also added yet another condition that
was identical to the § 1373 compliance condition as well as
two more conditions that relied on the same statutory author-
ity that the district court and this court rejected. In its FY 2018
Byrne JAG application, Chicago included an addendum indi-
cating that it would not comply with those conditions. The
Department of Justice began announcing grant recipients in
the fall of 2018, issuing 752 Byrne JAG local awards by Octo-
ber 12, but still had not granted Chicago’s application; at that
time Chicago filed a complaint challenging the FY 2018 con-
ditions. About a month after Chicago filed suit, on November
20, the Department of Justice informed Chicago that it was
awarded the grant. The Department of Justice subsequently
announced that in light of the ongoing litigation, it would not
enforce the notice, access, compliance, and additional certifi-
cation conditions against Chicago, but that it retained the
right to enforce the harboring condition.
The temporal scope of the injunctive relief in this case is
proper. Injunctive relief is forward-looking, and a plaintiff
injured by an unconstitutional or unlawful action in one year
does not need to suffer injuries repeatedly in each ensuing
year—and separately sue after each injury—to obtain relief
from the unlawful actions. See United States v. Oregon State
Med. Soc., 343 U.S. 326, 333 (1952) (“[t]he sole function of an
Nos. 18-2885 & 19-3290 55

action for injunction is to forestall future violations”); see
generally § 2942 Availability of Injunctive Relief—In General,
11A Fed. Prac. & Proc. Civ. § 2942 (3d ed.) (noting
that injunctive relief looks to the future and is designed to
deter rather than punish, and that even if the defendant
claims the conduct has been discontinued, the court will deny
injunctive relief only if there is no reasonable expectation of
future injurious conduct). Injunctive relief is designed to
prevent precisely that scenario. Once an injury is shown in the
imposition of the grant conditions sufficient to demonstrate
standing, Chicago can challenge the imposition of those
conditions in the Byrne JAG grant, and that challenge is not
temporally limited—at least where, as here, the challenge is
not in any way related to the timing of the conditions. And of
course, the Attorney General’s indication to the district court
that it would alter the conditions in future grants proved
false. See Oregon State Med. Soc., 343 U.S. at 333 (“It is the duty
of the courts to beware of efforts to defeat injunctive relief by
protestations of repentance and reform, especially when
abandonment seems timed to anticipate suit, and there is
probability of resumption.”). The district court need not await
yet another round of the same conditions and the same
rejected justifications before enjoining the future conduct.
A. Injunctive Relief Beyond City of Chicago
The Attorney General argues that, even if we agree with
the district court on the merits, the court erred in extending
injunctive relief beyond the City of Chicago. In Chicago I, 888
F.3d 272, the panel addressed a similar issue as to the prelim-
inary injunctive relief, with the majority holding that nation-
wide injunctive relief was proper and with one panel member
dissenting. Our court granted rehearing en banc to consider
56 Nos. 18-2885 & 19-3290

only the issue of the proper scope of the injunction, but that
rehearing was vacated when the district court’s grant of the
permanent injunction superseded the preliminary injunction.
We now are presented again with the issue of the proper
scope, although in the different context of a permanent rather
than a preliminary injunction.
At the outset, we note that a remand is necessary for the
district court to consider whether any additional injunctive
relief is appropriate as to the unlawful imposition of the com-
pliance condition. The court imposed declaratory relief as to
the constitutionality of § 1373, and injunctive relief as to the
imposition of that condition. But because we have determined
that the term “all other applicable Federal law” encompasses
only law that by its terms applies to federal grants or grantees
in that capacity, we have not reached that Tenth Amendment
issue. A remand is required to allow the district court to de-
termine whether any additional injunctive relief is appropri-
ate for the violation as we have framed it. For instance, the
declaratory relief would no longer be necessary because
§ 1373 is inapplicable here, but other injunctive relief might
be proper, such as enjoining the Attorney General from inter-
preting the phrase “all other applicable federal law” to in-
clude laws that do not explicitly apply by their terms to the
grant or grantees. The Attorney General relied on that misuse
of § 10153 to impose the § 1373 compliance condition on Chi-
cago. In the FY 2018 grant, the government continues to re-
quire a certification of compliance with § 1373, but perhaps
anticipating the foreclosure of that option, added the require-
ment of certification of compliance with the parallel provision
in § 1644.
Nos. 18-2885 & 19-3290 57

That FY 2018 condition leaves no doubt that the Attorney
General intends to continue to interpret § 10153 as allowing
the incorporation of federal laws unrelated to the grant or
grantees. Because the injury to Chicago in this case, in relation
to the compliance conditions in both § 1373 and § 1644, is
caused by the Attorney General’s unsupportable interpreta-
tion of § 10153 as allowing the incorporation of all federal law
as a condition of the grant, proper relief in this case could in-
clude an injunction preventing the Attorney General from in-
corporating federal law unrelated to grants or grantees as a
condition of the grant under § 10153. The proper scope of any
additional relief, however, is for the district court, not this
court, to determine as an initial matter, and we remand for the
district court to consider whether to order any other relief as
to the unlawful imposition of the compliance condition in
light of our decision. We review such decisions only for an
abuse of discretion. eBay Inc. v. MercExchange, L.L.C., 547 U.S.
388, 391 (2006). We may consider, however, the propriety of
the injunctive relief that has already been granted as to all of
the challenged conditions
1. Authority of the Court
Courts and commentators, particularly recently, have rec-
ognized serious concerns with imposing injunctive relief that
extends beyond the parties before the court to include third
parties. In fact, the question as to the authority of a court to
issue such nationwide, or universal, injunctions, as well as the
propriety of such injunctions, has spawned a veritable cottage
industry of scholarly articles in the past few years. See e.g.
Mila Sohoni, The Lost History of the “Universal” Injunction, 133
HARV. L. REV. 920, 924–25 N. 16 (2020) [hereinafter Sohoni, Lost
History], citing: Spencer E. Amdur & David Hausman,
58 Nos. 18-2885 & 19-3290

Response, Nationwide Injunctions and Nationwide Harm, 131
HARV. L. REV. F. 49 (2017) [hereinafter Amdur & Hausman,
Nationwide Injunctions]; Samuel L. Bray, Multiple Chancellors:
Reforming the National Injunction, 131 HARV. L. REV. 417, 419
(2017) [hereinafter Bray, Multiple Chancellors]; Zachary D.
Clopton, National Injunctions and Preclusion, 118 MICH. L. REV.
1 (2019); Amanda Frost, In Defense of Nationwide Injunctions,
93 N.Y.U. L. REV. 1065 (2018) [hereinafter Frost, In Defense];
Suzette M. Malveaux, Class Actions, Civil Rights, and the Na-
tional Injunction, 131 HARV. L. REV. F. 56 (2017) [hereinafter
Malveaux, Class Actions]; Michael T. Morley, De Facto Class
Actions?: Plaintiff- and Defendant-Oriented Injunctions in Voting
Rights, Election Law, and Other Constitutional Cases, 39 HARV.
J.L. & PUB. POL’Y 487 (2016); Michael T. Morley, Nationwide In-
junctions, Rule 23(b)(2), and the Remedial Powers of the Lower
Courts, 97 B.U. L. REV. 615 (2017); Zayn Siddique, Nationwide
Injunctions, 117 COLUM. L. REV. 2095 (2017); Alan M. Tram-
mell, Demystifying Nationwide Injunctions, 98 TEX. L. REV. 67
(2019); Howard M. Wasserman, “Nationwide” Injunctions Are
Really “Universal” Injunctions and They Are Never Appropriate,
22 LEWIS & CLARK L. REV. 335 (2018) [hereinafter Wasserman,
Nationwide Injunctions]. 7 Those articles are a response to the
perceived increase in the utilization of universal injunctions
in the past few decades. It is a question for another forum

7 The terms “nationwide” and “universal” injunctions are both used by
courts and commentators to describe injunctions for which relief extends
beyond the plaintiff, see Wasserman, Nationwide Injunctions at 352–53, and
we use these terms interchangeably in this opinion. As to the relief pro-
vided in this case, we use “program-wide” injunction because it is more
descriptive of the actual reach of the injunction here.
Nos. 18-2885 & 19-3290 59

whether any such increase signals an expanding judicial over-
reach or an increasing executive autocracy.
As to the authority to issue such injunctions, some urge
that injunctions extending beyond the parties before the court
are a recent invention, first appearing in the 1960s, and that
the absence of such equitable relief before that time should
cause us to question the legitimacy of that remedy. See e.g.
Trump v. Hawaii, 138 S. Ct. 2392, 2425 & 2428 (2018) (Thomas,
J. concurring) (indicating that the first universal injunction
emerged “a century and a half after the founding,” in 1963,
and “appear to be inconsistent with longstanding limits on
equitable relief and the power of Article III courts”); see also
Bray, Multiple Chancellors at 437–38; Wasserman, Nationwide
Injunctions at 353.
But recent scholarship casts doubt on that constricted win-
dow of universal injunctions, exhaustively documenting the
use of injunctions that extend beyond the plaintiff going back
over a century, from a Supreme Court decision in 1913 to the
present. See Sohoni, Lost History, 133 Harv. L. Rev. 920, 924
(2020); see also Samuel Bray, A Response to The Lost History of
the “Universal” Injunction, 36 Yale J. on Reg.: Notice & Com-
ment (Oct. 6, 2019) available at: https://www.yalejreg.com/nc/
a-response-to-the-lost-history-of-the-universal-injunction-
by-samuel-bray/ (last visited 4/7/2020) (discussing “four seri-
ous problems” with Sohoni’s analysis), and Mila Sohoni, A
Reply to Bray’s Response to The Lost History of the “Universal”
Injunction, 36 Yale J. on Reg.: Notice & Comment (October 10,
2019) (http://perma.cc/P8BA-2UJ6 (last visited 4/7/2020) (re-
futing Bray’s concerns). Sohoni meticulously examines equi-
table remedies in the past century, documenting the equitable
relief that extended to non-parties throughout that history,
60 Nos. 18-2885 & 19-3290

and reaching the conclusion that universal injunctions are
consistent with those traditional equitable remedies. Id.
That conclusion has found support as well in an amicus
brief submitted to this court by a group of legal historians,
professors at Stanford and Columbia Law Schools and Prince-
ton University, who concluded that “[n]ot only did equity
courts have the equitable power to grant injunctions that look
like modern nationwide injunctions (save they did not run
against the federal government itself),8 but they in fact issued
injunctions of astonishing scope.” Brief of Amici Curiae Legal
Historians In Support of Plaintiff and Appellee the City of
Chicago [hereinafter “Amicus”], No. 18-2885, at 6. That wide
scope included even exercising “their equity powers at na-
tionwide scale in the 19th and early 20th centuries, to enjoin
the activities of hundreds of thousands of individuals, includ-
ing thousands of non-parties.” Amicus at 18. Bray, a leading
opponent of universal injunctions, disagreed with their con-
clusions, but nevertheless acknowledged the gravitas of the
authors of that amicus brief, characterizing the authors as “an
all-star cast of legal historians and historians of the early Re-
public” and recognizing that “[t]hese historians have written
some of the leading scholarship on American equity.” Bray,
National Injunctions: Historians Enter the Lists, THE VOLOKH

8 They subsequently explained that injunctions restraining the “United
States” from nationwide enforcement of a law could not happen until after
1976, when the United States enacted its first general waiver of sovereign
immunity, and that suits to restrain high level executive branch officials
like the Attorney General were difficult to bring because “[i]n the absence
of the modern venue statute, and because of doctrinal barriers that no
longer exist, a modern nationwide injunction could only have been
brought in Washington, D.C.” Amicus at 18–19.
Nos. 18-2885 & 19-3290 61

CONSPIRACY (Nov. 17, 2018, 2:21 PM), https://rea-
son.com/2018/11/17/national-injunctions-historians-enter-th/
(last visited 4-7-2020). Those historians examined the relief
provided in equity from the 18th century onward, such as
bills of peace as well as ordinary bills for injunctions includ-
ing injunctions to abate nuisances, and concluded that “equity
courts had the equitable powers to issue nationwide injunc-
tions in the early republic,” and “have long issued injunctions
that protect the interests of non-parties.” Amicus at 6, 8. In
fact, the historians noted periods of time in which the equita-
ble remedies were much more drastic, extending as far as en-
joining non-parties (which it noted would not be accepted to-
day) and including a period of time in which injunctions were
so broad they were called “omnibus injunctions” and “Gat-
ling-gun injunctions.” Amicus at 16–17. They noted that those
omnibus injunctions were repeatedly upheld by the Supreme
Court, and ultimately Congress used its power to restrain
their issuance. Amicus at 17. Although concluding that na-
tionwide injunctions are historically grounded, the legal his-
torians cautioned against an approach that would anchor eq-
uitable remedies too closely to the “notoriously difficult sub-
ject” of history, noting that the continuity of some traditional
equity practices should not foreclose adapting equitable rem-
edies to modern circumstances. Amicus at 25; see also Frost, In
Defense at 1081.
2. Consistency with Supreme Court Law
Therefore, there is a substantial historical basis for the
concept of injunctive relief that extends to the benefit of non-
parties. The Attorney General and the dissent in this case
nevertheless argue that universal injunctions are inconsistent
with the Supreme Court’s decision in United States v. Mendoza,
62 Nos. 18-2885 & 19-3290

464 U.S. 154 (1984). The Mendoza Court held that the
government in that case should not be subjected to
nonmutual offensive collateral estoppel because the
“economy interests underlying a broad application of
nonmutual collateral estoppel are outweighed by the
constraints which peculiarly affect the government.” Id. at
162–63. The Court was concerned with the impact on the
government if one decision could bind the government as to
that legal issue in any subsequent cases brought by other
litigants. The Attorney General and the dissent argue that the
same danger is presented in a universal injunction.
There are, however, important distinctions between non-
mutual offensive collateral estoppel and a universal injunc-
tion. First, as is obvious, the legal concepts at issue here are
not identical, so the Court’s decision as to an estoppel issue is
in no way dispositive of the question as to the availability of
universal injunctions. The significance of Mendoza must come
from its reasoning, then. But the very different contexts make
Mendoza of less relevance to this question. As to collateral es-
toppel, “once a court has decided an issue of fact or law nec-
essary to its judgment, that decision is conclusive in a subse-
quent suit based on a different cause of action involving a
party to the prior litigation.” Id. at 158. The principle would
apply to litigation remote in time, involving different under-
lying causes of actions, and regardless of whether the litigant
in the subsequent suit was similarly situated to the one in the
past case.
That expansive reach presented issues uniquely problem-
atic for the government. Whereas in disputes over private
rights between private litigants, there was “’no sound reason
for burdening the courts with repetitive litigation,’” the
Nos. 18-2885 & 19-3290 63

position of the government is not identical to that of the pri-
vate litigant. Id. at 159–60., quoting Standefer v. United States,
447 U.S. 10, 24 (1980). The government is more likely to be
involved in cases with significant legal issues and is likely to
be sued more often than a private party, thus increasing the
potential for estoppel to be invoked. Id. at 160. In addition to
depriving the government of the benefit of multiple courts of
appeal weighing in on the issue, the application of estoppel
would force the government to appeal every time it disagreed
with a legal issue regardless of the significance of the case in
which it was presented, or risk being bound by that holding
in a later case of more importance to the government. Id. at
160–61. Finally, the use of estoppel would prevent subsequent
Administrations from altering the government’s position on
a legal issue, thus upsetting the ability of the Executive Branch
to adapt to the changing philosophies of subsequent political
leaders. Id. at 161–62. In light of those concerns unique to the
government as a litigant, the Court held that “[t]he conduct of
government litigation in the courts of the United States is suf-
ficiently different from the conduct of private civil litigation
in those courts so that what might otherwise be economy in-
terests underlying a broad application of collateral estop-
pel are outweighed by the constraints which peculiarly affect
the government.” Id. at 162–63.
The concerns expressed by the Court as to the use of es-
toppel against the government are not equally present in the
context of the universal injunction. Of course, both situations
present the concern with one court’s decision preventing the
percolation of the issue in different courts. But unlike the col-
lateral estoppel context, the universal injunction by its nature
will concern an issue that is common to all parties bound by
it who will be similarly-situated, will involve an issue of
64 Nos. 18-2885 & 19-3290

obvious and significant impact (thus not presenting the gov-
ernment with the need to appeal every adverse legal decision
in even minor cases), and will not interfere with the ability of
future Administrations to change policies (because the impact
of the universal injunction will be felt in one ongoing case that
would be appealed, not in unlimited, unforeseeable cases in
the future). Its restriction on the government’s ability to relit-
igate an issue will be limited to that case and will not raise the
prospect of impacting future unforeseeable situations remote
in time. Therefore, the reasoning of Mendoza counsels an out-
come as applied to universal injunctions. See Frost, In Defense
at 1113. To the extent that Mendoza identifies factors relevant
to both estoppel and universal injunctions, the weighing of
the factors should occur—as it routinely does—in the district
court’s discretionary determination as to the appropriate eq-
uitable relief. The situations are not similar enough to support
a blanket prohibition of universal injunctions under the rea-
soning of Mendoza.
And the decisions of numerous courts post-Mendoza, in-
cluding the Supreme Court itself, support that conclusion.
The historical underpinning for the argument that courts
have the power to issue universal injunctions is comple-
mented by the actual allowance of injunctions benefitting
non-parties more recently. As we noted in Chicago I, the Su-
preme Court in Trump v. Intern. Refugee Assistance Project, 137
S. Ct. 2080 (2017) (“IRAP”), allowed an injunction to remain
in place that applied to non-parties. 888 F.3d at 289. In IRAP,
the Court denied in part a request for a stay of a nationwide
injunction in a challenge to an Executive Order that sus-
pended entry of foreign nationals from seven countries. The
Court recognized that “[c]rafting a preliminary injunction is
an exercise of discretion and judgment, often dependent as
Nos. 18-2885 & 19-3290 65

much on the equities of a given case as the substance of the
legal issues it presents.” IRAP, 137 S. Ct. at 2087. The Court
granted the government’s request to stay the injunction as to
foreign nationals who lacked any bona fide relationship with
a person or entity in the United States, but refused to stay the
injunction not only as to the respondents in the case, but also
as to persons not parties to the case who were similarly situ-
ated. Id. at 2088. If the lower court was without the power to
impose an injunction that provided relief to non-parties, and
thus relief greater than that necessary for the parties before
the court, then the Supreme Court’s decision to allow the in-
junction to remain in place as to those non-parties would be
inexplicable.
The concurring and dissenting justices in IRAP would
have stayed the injunction entirely, but particularly argued
that the injunctions should not have remained in place as to
“an unidentified, unnamed group of foreign nationals
abroad” for whom no class had been certified and in a case in
which neither party had asked for the scope of relief applied
by the Court. Id. at 2090 (Thomas, J. concurring in part, dis-
senting in part). They further asserted that the role of courts
was to provide complete relief only to the plaintiffs, and not
to non-parties. Id. The IRAP Court’s refusal to stay the injunc-
tion as to similarly-situated individuals, in light of those ar-
guments in the dissent, should put to rest any argument that
the courts lack the authority to provide injunctive relief that
extends to non-parties. See Frost, In Defense at 1086.
3. Propriety of Injunctive Relief
Therefore, both historical and current practice lends sup-
port to a determination that the courts possess the authority
to impose injunctions that extend beyond the parties before
66 Nos. 18-2885 & 19-3290

the court. The propriety of such an injunction, in a given case,
is another matter.
Such injunctions present real dangers, and will be appro-
priate only in rare circumstances. For instance, a nationwide
injunction can truncate the process of judicial review, elevat-
ing the judgment of a single district court. That effect, how-
ever, is not absolute. As a practical matter, the issuance of
such an injunction is unlikely to dramatically foreclose all
other review, because the possibility of a stay while seeking
review in the court of appeals—as happened here—limits the
immediate impact on litigation in other jurisdictions, and en-
sures review by multiple judges in short order. See Amdur &
Hausman, Nationwide Injunctions at 53 n.27 (providing exam-
ples in which nationwide injunctions did not foreclose perco-
lation). But even if the impact is not absolute, it is nonetheless
a concern and has the clear potential to narrow the input from
different judicial panels. Moreover, the potential for forum
shopping is a real hazard and alone should caution against
such broad injunctive relief. See e.g. Bray, Multiple Chancellors
at 457; Frost, In Defense at 1104.
That does not, however, mandate a conclusion that uni-
versal injunctions are never proper. See Frost, In Defense at
1105 (noting that “[a]bolishing nationwide injunctions is both
an over- and under-inclusive response to that problem”). In
some circumstances, universal injunctions can be necessary
“to provide complete relief to plaintiffs, to protect similarly-
situated nonparties, and to avoid the chaos and confusion that
comes from a patchwork of injunctions.” Id. at 1101. Just as
the percolation through the courts is a valid consideration, so
too the desire to avoid a multiplicity of suits has long been a
consideration in equity, which even the opponents of
Nos. 18-2885 & 19-3290 67

universal injunctions acknowledge. See Bray, Multiple Chan-
cellors at 426; Hawaii, 138 S. Ct. at 2427 (Thomas, J, concurring).
An outright prohibition of such injunctions, however,
would handcuff the ability of courts to determine the relief
that is proper in exceptional circumstances. Any number of
factors could influence a court’s determination as to the
proper scope of an injunction, including the nature of the vi-
olation, the extent of the impact, the urgency of the situation,
the multiplicity of litigation, and the ability of others to even
access the courts. IRAP presented the type of situation in
which the remedy of a universal injunction can be particularly
crucial. 137 S. Ct. 2080. As we stated above, in that case, the
Supreme Court denied in part a request for a stay of a nation-
wide injunction in a challenge to an Executive Order that sus-
pended entry of foreign nationals from seven countries. The
travel ban was imposed suddenly, impacting an immense
number of people immediately—including people who were
already on planes to the United States—and the ability of per-
sons affected by the ban to access the courts individually for
redress was extremely limited. In such a circumstance, a court
that in its discretion determines that the equities of the case
and the substance of the legal issues justifies an injunction,
should not be limited to imposing that relief only as to those
few persons who could obtain attorneys or present them-
selves in court.
Nor is the presence of the vehicle of a class action a realis-
tic alternative in such a case. The difficulties, expense and de-
lay inherent in pursuing a class action would render it inade-
quate for the type of situation presented in IRAP. As noted by
Frost,
68 Nos. 18-2885 & 19-3290

[d]emonstrating these prerequisites [of numer-
osity, commonality and typicality and the ade-
quacy of the named plaintiff to represent the
class] is difficult and time consuming and has
been getting harder as a result of recent court
decisions and federal legislation. Courts have
heightened the evidentiary standard for class
certification, requiring hearings and sometimes
significant amounts of evidence on the merits of
the case before certifying the class. In recent
years, courts have started to deny class certifica-
tion if they think there has been a flaw in class
definition. These courts typically deny certifica-
tion without first allowing the plaintiffs to
amend that definition in response to the court’s
concerns. Under Federal Rule of Civil Proce-
dure 23(f), defendants can seek interlocutory re-
view of a court’s decision to certify a class, add-
ing further delay and expense to the certifica-
tion process. Noting these difficulties, one com-
mentator has described the class certification
process as a “drawn-out procedural bog,”
which comes with significant expense and delay
for the would be class member.
(footnotes omitted) Frost, In Defense at 1096–97, quoting Sam-
uel Issacharoff, Private Claims, Aggregate Rights, 2008 SUP. CT.
REV. 183, 208; see also Malveaux, Class Actions at 59 (describing
the increasing hurdles to class actions and arguing that
“Bray’s concession that ‘the requirements for a class action
will not always be easy to meet’ understates the significant
hurdles erected over the last fifty years”). The class action
Nos. 18-2885 & 19-3290 69

mechanism is not an adequate substitute for a universal in-
junction in the proper case.
Absent the ability to grant injunctive relief that extends be-
yond the particular party, courts will have little ability to
check the abuse of power that presents the most serious threat
to the rule of law—such as that which is swift in implementa-
tion, widespread in impact, and targeted toward those with
the least ability to seek redress. Although circumspection is
appropriate in ascertaining whether such relief is appropriate,
an outright ban of such injunctions is neither required by his-
tory nor desirable in light of the range of situations—some as
unpredictable and impactful as the sudden travel ban—that
courts may confront.
That said, it is a more difficult question as to whether the
nationwide injunction is proper in this case. In exercising its
discretion to impose the permanent injunction nationwide,
the district court identified a number of factors that strongly
weighed in favor of an injunction that included more compre-
hensive relief. The court first noted that compliance with the
Attorney General’s conditions would damage the relation-
ship between local law enforcement and immigrant commu-
nities, and would decrease the cooperation with those com-
munities that is critical to preventing and to solving crimes.
The court held that the loss of trust, which once lost is not eas-
ily restored, would cause irreparable harm that could not be
remedied with money damages. Moreover, the court held
that the balance of hardships favored Chicago, noting that the
Attorney General could distribute the funds without impos-
ing the conditions, and nothing in the injunction would pre-
vent any state or local government from coordinating its local
law enforcement with the federal authorities absent those
70 Nos. 18-2885 & 19-3290

unlawful conditions. Finally, the court recognized that the
public interest was served by an injunction in that it acts as a
check on the executive’s encroachment of congressional
power that violates the separation of powers.
The Attorney General does not address those factors and
does not question the court’s determination that injunctive re-
lief is proper. Instead, the Attorney General focuses his chal-
lenge on the scope of the injunction, asserting injunctive relief
must be limited to that necessary to provide complete relief to
the plaintiff and cannot extend to non-parties. But as we have
already discussed, courts have the authority to extend injunc-
tive relief to non-parties, and therefore those arguments fail.
The district court identified a number of considerations
that supported extending injunctive relief in this case
program-wide and to include future years. Among those
considerations was the Attorney General’s repeated
imposition of the conditions despite adverse court rulings.
Upon our decision affirming the grant of the preliminary
injunction in this case, the Attorney General took the highly
unusual step of seeking en banc review only as to the scope of
the injunction, declining to present for en banc consideration
our holding that the Attorney General’s claim to lawful
authority was unfounded. And despite his failure to seek
rehearing as to the preliminary injunctive relief to Chicago
itself, the Attorney General continued to refuse to release the
grant funds to Chicago, choosing instead to withhold the
grant of all funds to all recipients. See U.S. Department of
Justice FY 2020 Performance Budget Office of Justice
Programs March 2019,
https://www.justice.gov/file/1144566/download, at 99–100
(last visited 4-8-20) (noting that of the $403 million available
Nos. 18-2885 & 19-3290 71

for Byrne JAG grants in FY 2017, only $254.4 million had been
awarded and similarly only $256 million of the $415.5 million
available had been awarded in FY 2018, and explaining in a
footnote that some FY 2017 and FY 2018 formula grants had
not been released to grantees as a result of “concerns
regarding compliance with federal immigration laws and
ongoing litigation related to those matters.”) Because of that
conduct, the district court explicitly enjoined the Attorney
General from denying or delaying the issuance of the grant
funds in the permanent injunction.
Moreover, as described earlier, the Attorney General as-
sured the district court that the permanent injunction need
not cover future years, because the conditions imposed in fu-
ture years would reflect a careful consideration of the court’s
holdings as to their legality. The court accepted that assur-
ance, and yet the Attorney General proceeded to impose the
identical conditions on the grants for the next year, issuing an
award to Chicago that was not dependent on satisfaction of
the unlawful conditions only after Chicago filed suit yet
again. See City & Cty. of San Francisco, 372 F. Supp. 3d at 940–
41 (“There is no dispute that certain challenged conditions in
the fiscal year 2018 Byrne JAG Program are functionally the
same as the notice, access, and Section 1373 certification con-
ditions in the fiscal year 2017 Byrne JAG program at issue in
the previous related litigation.”). Despite choosing to forgo en
banc review as to the unlawfulness of the grant conditions,
and with no change in the legal basis for those conditions, the
Attorney General persists in his determination to impose con-
ditions on the Byrne JAG grant that we held unlawful and that
Congress itself has failed to impose. Those actions make man-
ifest that each and every state and local government will have
to bring its own suit in order to obtain relief (and possibly for
72 Nos. 18-2885 & 19-3290

each new grant year, given the Attorney General’s penchant
for adding new statutory authorizations—even ones identical
in language to rejected ones), leaving behind those who can-
not afford such litigation. The concern with multiplicity of lit-
igation is a valid factor in assessing the appropriate scope of
injunctive relief.
As the district court held, the nature of the violation also
supports the scope of the injunction here, in that it involves a
violation of the separation of powers doctrine. The nature of
the injury is a valid consideration in determining the proper
scope of injunctive relief. Whether deemed a statutory or a
constitutional violation, the executive’s usurpation of the leg-
islature’s power of the purse implicates an interest that is fun-
damental to our government and essential to the protection
against tyranny. See Dalton v. Spector, 511 U.S. 462, 472 (1994)
(distinguishing ultra vires claims, alleging an action that ex-
ceeded the authority, from constitutional claims, alleging an
absence of any authority).
At its core, this case implicates principles of federalism—
involving federal intrusion into spheres of power possessed
by states—and, more directly, principles of the separation of
powers between the executive, the legislative, and the judicial
branches.
Why did the framers insist on this particular ar-
rangement? They believed the new federal gov-
ernment’s most dangerous power was the
power to enact laws restricting the people’s lib-
erty….. Some occasionally complain about Arti-
cle I’s detailed and arduous processes for new
legislation, but to the framers these were bul-
warks of liberty.
Nos. 18-2885 & 19-3290 73

…
If Congress could pass off its legislative power
to the executive branch, the “[v]esting [c]lauses,
and indeed the entire structure of the Constitu-
tion,” would “make no sense.” Without the in-
volvement of representatives from across the
country or the demands of bicameralism and
presentment, legislation would risk becoming
nothing more than the will of the current Presi-
dent. And if laws could be simply declared by a
single person, they would not be few in number,
the product of widespread social consensus,
likely to protect minority interests, or apt to pro-
vide stability and fair notice. Accountability
would suffer too.
…
[E]nforcing the separation of powers isn’t about
protecting institutional prerogatives or govern-
mental turf. It’s about respecting the people’s
sovereign choice to vest the legislative power in
Congress alone. And it’s about safeguarding a
structure designed to protect their liberties, mi-
nority rights, fair notice, and the rule of law. So
when a case or controversy comes within the ju-
dicial competence, the Constitution does not
permit judges to look the other way; we must
call foul when the constitutional lines are
crossed. Indeed, the framers afforded us inde-
pendence from the political branches in large
part to encourage exactly this kind of “fortitude
74 Nos. 18-2885 & 19-3290

… to do [our] duty as faithful guardians of the
Constitution.”
Gundy, 139 S. Ct. at 2134–35 (Gorsuch, J., joined by the Chief
Justice and Thomas, J., dissenting). In our case, the executive
branch has usurped the power of the legislature to determine
spending and to set conditions on that spending. It has done
so to conscript the police power of the states to serve the civil
immigration goals of the federal government. The challenged
actions strike at the heart of the vital principles of separation
of powers and federalism and comity for state’s rights.
That is particularly true in this case where the revolving
door of statutory provisions relied upon by the Attorney Gen-
eral as authorization for the withholding of funds upends the
process. Like a whack-a-mole game at a carnival, the Attorney
General has presented the courts with one statutory “author-
ization” after another for the decision to withhold all Byrne
JAG funding from sanctuary cities—from § 10102(a)(6) ini-
tially to §§ 10153(A)(4), 10153(A)(5)(C), and 10155 before the
First and Second Circuits for the notice and access conditions;
from § 1373 to § 1644 for the federal law supporting the com-
pliance condition; and from § 10102(a)(6) to § 10153(A)(5)(D)
as the catch-all for the conditions. See e.g. City of Providence,
2020 WL 1429579 at *6–9. By relying on a moving target of
statutory provisions, the Attorney General undermines his
own argument that the conditions were a response to a legis-
lative grant of authority rather than an executive policy in
search of a legislative “hook.” The nature of the violation in
this case strongly weighs in favor of more comprehensive re-
lief, both because respect for the separation of powers is fun-
damental to our government, and because the willingness to
add new “statutory authorizations” every time a court strikes
Nos. 18-2885 & 19-3290 75

one down—and to reimpose conditions on jurisdictions in en-
suing years that have already been rejected—portends a mul-
tiplicity of litigation that would be a drain on the resources of
the courts. At this point in time, five circuits have weighed in
on the issues, diluting the benefit of any additional “percola-
tion” through the courts. Those factors provide a strong argu-
ment in favor of the district court’s determination that pro-
gram-wide relief extending to non-parties is proper.
B. Injunction as Providing Complete Relief to Plaintiff
But we should avoid deciding that more expansive issue
if a more narrow approach is available, and it is available
here. It is widely accepted—even by self-professed opponents
of universal injunctions—that a court may impose the equita-
ble relief necessary to render complete relief to the plaintiff,
even if that relief extends incidentally to non-parties. See Cali-
fano v. Yamasaki, 442 U.S. 682, 702 (1979); Wasserman, Nation-
wide Injunctions at 360–61; see, e.g., McKenzie v. City of Chicago,
118 F.3d 552, 555 (7th Cir. 1997) (noting that “in reapportion-
ment and school desegregation cases, for example, it is not
possible to award effective relief to the plaintiffs without al-
tering the rights of third parties”); Gill v. Whitford, 138 S. Ct.
1916, 1930 (2018) (recognizing, for instance, in two malappor-
tionment cases, that “the only way to vindicate an individual
plaintiff’s right to an equally weighted vote was through a
wholesale ‘restructuring of the geographical distribution of
seats in a state legislature’”). Here, because of the statutory
structure of the grant calculations, an injunction limited to
providing complete relief to the plaintiff alone will have the
practical impact of preventing the application of the condi-
tions program-wide, thus ameliorating the equitable concerns
76 Nos. 18-2885 & 19-3290

expressed above, without the need to extend injunctive relief
beyond the plaintiff itself to non-parties.
The Byrne JAG grant is a formula grant, not a discretion-
ary grant. The determination of the funds that will be pro-
vided to a grantee is based upon a very structured, precise
calculation that is set forth by Congress at 34 U.S.C. § 10156
(formerly 42 U.S.C. § 3755), and the amount received by a spe-
cific state or locality is dependent on the calculations related
to the other states and localities. Therefore, to provide com-
plete and accurate relief to Chicago now and in the future, and
ensure that it receives the allocation that it would receive if
the Attorney General did not apply the unlawful conditions,
the allocations as a whole must be lawfully determined. In this
formula grant, the unlawfully-imposed conditions must be
rendered inapplicable program-wide in order for the grant
amounts to be properly calculated for the plaintiff itself.
Before delving into the minutia as to the structure of the
Byrne JAG awards and the interrelationship of the grants, it
might be helpful to provide a brief overview. If every grantee
was allocated a set grant amount, independent from each
other, then relief for Chicago could be calculated and
awarded in a vacuum. There would be no need to enjoin the
conditions beyond Chicago to redress the monetary injury,
because the imposition of the conditions beyond Chicago
would not impact Chicago’s grant award. But that is not the
case. The slice of the Byrne JAG pie that Chicago receives is
related to the slices received by Illinois and other states, and
if the imposition of the unlawful conditions eliminates Illinois
or other states from receiving their own awards, then that can
impact Chicago’s award as well. The grant awards are statu-
torily interrelated.
Nos. 18-2885 & 19-3290 77

The Byrne JAG program allocates grant amounts to some
localities directly, and also allocates grant amounts to each
state, which then must pass on a certain percentage to other
localities. If a state is unable to qualify to receive funds under
the program, that state’s award is redistributed to the locali-
ties. In that way, the amount a locality can receive is con-
nected to the amount the state is awarded and to the ability of
the state to participate in the program. And the amount that
the state is awarded is itself impacted by the amounts
awarded to other states. In a number of ways, Byrne JAG
funds can be redistributed from some states to other states,
thus decreasing some states’ awards and increasing the
award for the other states.
The Byrne JAG conditions challenged here disrupt the en-
tire distribution plan, because they can prevent the states
from even applying for an award—and clearly prevent the
states from receiving a Byrne JAG award—if they cannot com-
ply with the unlawful conditions at issue in this case. Because
the awards to states are interrelated, and the award for local-
ities is also related to the award to states, the imposition of the
unlawful conditions impacts the proper calculation of all
awards, including awards to localities such as Chicago.
As we will see, the Attorney General does not really con-
test that Chicago’s award could be impacted by the imposi-
tion of conditions on states. Instead, the Attorney General ar-
gues that we need not be concerned with that because the im-
position of the unlawful conditions on other grant applicants
would be a windfall to Chicago, resulting in a higher grant
amount than it would otherwise receive, and Chicago cannot
complain of receiving a higher amount. As we will discuss,
the impact on Chicago if the unlawful conditions are applied
78 Nos. 18-2885 & 19-3290

to the states would not necessarily be an increase in its grant
amount; it could operate to decrease the grant to Chicago as
well. Moreover, even an improper increase in its award
would be problematic. Once we have concluded that the At-
torney General is without the authority to impose the chal-
lenged conditions, the court’s role should be to ensure that
Chicago receives the grant it would have been entitled to ab-
sent the unlawful conditions. Courts should not impose relief
that makes Chicago an involuntary beneficiary of the very
conduct that it seeks to enjoin. That can only be assured if the
Byrne JAG awards as a whole are calculated absent the impo-
sition of the unlawful conditions.
1. Statutory Formula for Allocation
That is the overview. We turn, now, to the details. As an
initial matter, it is important to understand the statutory for-
mula for calculating grants, with its awards to states and lo-
calities. In this subpart, we describe the statutory formula for
the initial allocations of funds as to states and localities. That
is the base, from which subsequent redistributions will occur,
which we discuss in subsections 2 and 3. The dissent argues
that we misunderstand § 10156(d) and (e) as making Chi-
cago’s award contingent on any governing body’s compliance
with the unlawful conditions. We do not argue that
§ 10156(d)-(e) has any such effect. Those provisions set forth
the formula for the allocation of funds at the outset, which is
determined proportionally and therefore will inform redistri-
butions of funds as well. Subsections 2 and 3 demonstrate the
redistributions of funds that are provided in the statute, and
explain how the imposition of the unlawful conditions on
states can alter that redistribution and thereby impact Chi-
cago’s Byrne JAG grant award.
Nos. 18-2885 & 19-3290 79

Consideration of the precise formula delineated by Con-
gress in § 10156 makes clear the need for program-wide
treatment. Under that statute, the Attorney General first de-
termines the initial allocations to states and U.S. territories
(hereinafter collectively referred to as “states”), allocating
half of the available funds based on the ratio of a state’s pop-
ulation to the national population, and half allocated based
on the ratio of a state’s share of violent crime to that of the
nation. 34 U.S.C. § 10156(a)(1). If that number falls below the
minimum allocation provided in § 10156(a)(2), reflecting
0.25% of the total Byrne JAG allocation, the state is awarded
that minimum allocation. The population and crime data
from those states receiving the minimum allocation is ex-
cluded in calculating the ratios in § 10156(a)(1). With the ex-
ception of the U.S. territories and the District of Columbia,
60% of the total allocation to a state is retained by the state,
with 40% set aside for local governments. § 10156(b). The
amounts allocated to local governments are calculated based
on their share of all violent crimes reported in the state.
§10156(d). If the local government is entitled to an award
greater than or equal to $10,000, then that unit of local gov-
ernment is eligible to receive the award directly. § 10156(c)–
(e). If the amount allocated to a unit of local government is
less than $10,000, that amount is returned to the state gov-
ernments for redistribution to state law enforcement agen-
cies and local governments. Id. Moreover, units of local gov-
ernment may not receive a Byrne JAG award that exceeds
that local government’s total expenditures on criminal jus-
tice services for the most recently completed fiscal year, and
therefore award amounts in excess of that total expenditure
are reallocated proportionally among other units of local gov-
ernment. § 10156(e)(1).
80 Nos. 18-2885 & 19-3290

The formula for grant distribution also recognizes that, in
some circumstances, a disparity can exist between the fund-
ing eligibility of a county and its associated municipalities.
The three types of disparity include: a zero-county disparity,
when one or more municipalities within a county are eligible
for a direct award but the county is not, yet the county is re-
sponsible for providing criminal justice services for the mu-
nicipality and therefore should be entitled to part of the mu-
nicipality’s award; a disparity in which both a county and a
municipality within it qualify for a direct award, but the
award amount for the municipality exceeds 150% of the
county’s award amount; and a disparity in which a county
and multiple municipalities within that county are all eligible
for direct awards, but the sum of those awards exceeds 400%
of the county’s award amount. § 10156(d)(4); see also BJA
Technical Report, Justice Assistance Grant Program, 2016,
https://www.bja.gov/JAG/pdfs/JAG-Technical-Report.pdf at
2–6 (“BJA Technical report”) (last visited 4-8-2020); BJA Ed-
ward Byrne Memorial Justice Assistance Grant Program Fre-
quently Asked Questions https://bja.ojp.gov/sites/g/files/
xyckuh186/files/media/document/JAGFAQ.pdf at 23–24 (last
visited 4-8-2020). Jurisdictions subject to such disparity must
identify a fiscal agent to submit a joint application for the ag-
gregate of funds to which the units of local government are
eligible, and that joint application must specify the amount of
funds to be distributed to each of the units of local govern-
ment and the purposes for which the funds will be used. Id.
Accordingly, the statutory formula for distribution of
Byrne JAG funding includes both direct and indirect distribu-
tions to states and units of local government, and in some cir-
cumstances requires a unit of local government to submit a
joint application on behalf of itself and specified
Nos. 18-2885 & 19-3290 81

geographically constituent units of local government. Chi-
cago falls within those provisions, and therefore it files its ap-
plication for Byrne JAG funding on behalf of itself but also on
behalf of eleven other neighboring units of local government.
Chicago I, 888 F.3d at 292. For instance, the City of Evanston,
which is currently pursuing its own challenge to the Byrne
JAG conditions along with the United States Conference of
Mayors, receives its funds indirectly through an application
submitted by the City of Chicago.
The statute therefore employs a precise formula for deter-
mining the amounts to be awarded to applicants, including
states and units of local governments. Because the amounts
allocated are based on percentages, the actual amount that a
unit of local government such as Chicago will receive is de-
pendent on the number of applicants and the local govern-
ment’s share of all violent crimes reported in the state relative
to those other applicants. Nor is the award a static one that,
once awarded, is automatically and permanently distributed
to the applicants. The awards themselves are for a four-year
period of time. During that time, the award requires of each
applicant ongoing compliance with the terms of the award,
which according to the Attorney General, includes the re-
quirement of compliance with § 1373. An inability to comply
with § 1373 during that time can result in the loss of the
award. As we will explain, when a state is forced to relinquish
its award or cannot qualify for an award in the first place for
any reason including the unlawful conditions, that situation
can impact the award amount provided both to localities and
to other states.
Essentially, application of the unlawful conditions to the
Byrne JAG program can impact Chicago’s grant in any of
82 Nos. 18-2885 & 19-3290

three different ways: (1) if applied to Chicago, it will eliminate
its grant entirely; (2) if applied to Illinois, it could disqualify
Illinois from receiving a grant and increase Chicago’s grant
award as described in subsection 2; (3) if applied to other
states, it can impact Illinois’ award either by increasing or de-
creasing the award that Illinois otherwise would get as de-
scribed in subsection 3. And again, that altered amount can
impact Chicago’s award as described in subsection 2—even if
the unlawful conditions were not applied to Illinois.
2. Redistribution from State to Locality
First, a state’s inability to participate in the Byrne JAG pro-
gram for any reason, including the inability to comply with
the unlawful conditions, can result in an increase in the grant
received by the locality. In that way, the grant for the locality
is interconnected with the grant to the state.
Section 10156(f) explicitly provides for additional funding
to units of local government, where a state is unable or un-
willing to comply with the program’s requirements during
that time, as follows:
(f) Funds not used by the State
If the Attorney General determines, on the ba-
sis of information available during any grant
period, that any allocation (or portion thereof)
under this section to a State for such grant pe-
riod will not be required, or that a State will be
unable to qualify or receive funds under this
part, or that a State chooses not to participate
in the program established under this part,
then such State’s allocation (or portion
thereof) shall be awarded by the Attorney
Nos. 18-2885 & 19-3290 83

General to units of local government, or com-
binations thereof, within such State, giving
priority to those jurisdictions with the highest
annual number of part 1 violent crimes of the
Uniform Crime Reports reported by the unit of
local government to the Federal Bureau of In-
vestigation for the three most recent calendar
years for which such data are available.
(emphasis added). Thus, even after the initial award, during
that four-year period of the grant the Attorney General could
determine that a State no longer qualifies to receive funds,
and those funds will be redistributed to the units of local gov-
ernment, as long as that allocation does not exceed the local
government unit’s total expenditure on criminal justice ser-
vices for the most recently completed fiscal year for which
such data is available. § 10156(e)(1). That can result in a redis-
tribution of funds from Illinois to its localities for any of a
number of reasons; one of those possible reasons is if the un-
lawful conditions were applied to Illinois and it was unable
to comply with those conditions.
The possibility of that provision impacting Chicago’s
grant amount is far from negligible. The State of Illinois, for
instance, recently passed the Keep Illinois Families Together
Act, 5 ILCS § 835/1, which forbids local law enforcement agen-
cies or officials from participating in the federal 287(g) pro-
gram, an ICE program that allows local law enforcement offi-
cials to identify and remove undocumented residents from
the United States. Id. at § 835/5. If the Attorney General were
to determine that the law operated to restrict a local govern-
ment official’s ability to send or receive information regarding
immigration status in violation of § 1373, or if Illinois were to
84 Nos. 18-2885 & 19-3290

extend its protections of its families to prevent all communi-
cations regarding immigration status, then under § 10156(f)
the funds awarded to the State of Illinois could be redistrib-
uted to units of local government.
Regardless of whether the State of Illinois is in compliance
with the unlawful conditions, the point here is that the award
to a unit of local government such as the City of Chicago can
be impacted by the award and compliance status of the state
and the other units of local government, not just in the grant
year but in the three years following it. That would require, at
a minimum, that injunctive relief extend to the state level. But
an injunction prohibiting the application of the unlawful con-
ditions to Illinois would not itself ensure that Chicago re-
ceives the proper grant amount because, under § 10156(f), any
number of scenarios can result in the redistribution of Illinois’
grant award to its localities. And the grant that Illinois re-
ceives, which can then be redistributed to its localities, is itself
impacted by the enforcement of the unlawful conditions as to
the other states. That is because the structure of the Byrne JAG
program renders the grants at the state level interrelated as
well. See City and County of San Francisco v. Trump, 897 F.3d
1225, 1244 (9th Cir. 2018); Wasserman, Nationwide Injunctions
at 387–88 (acknowledging that the Ninth Circuit properly al-
lowed the injunction to run to non-party California because
the state grant could impact San Francisco’s grant).
3. Redistribution from State to State
Byrne JAG grant awards to each state are not determined
in isolation from each other. First, the awards are based on the
statistics of each state relative to that of the others. If states are
no longer eligible for the grant program based on the unlaw-
ful conditions, the allocations could be calculated excluding
Nos. 18-2885 & 19-3290 85

those states, resulting in a higher amount for the remaining
states. That is a hypothetical possibility, not a certainty, be-
cause it is possible that the initial allocations would still be
calculated as to all states—even those rendered ineligible for
funds—and the states would be excluded only at the award
stage. If that was the only redistribution, we would remand
to the district court for further fact-finding to determine
whether the initial grant allocations will be impacted by the
ineligibility of states due to the unlawful conditions. But we
need not remand here because the state Byrne JAG awards are
interrelated in other ways that do not require factual develop-
ment.
What is clear, even without factfinding, is that other
statutorily-mandated redistributions of Byrne JAG funds
among states will be upended by the imposition of the
unlawful Byrne JAG conditions. Just as recipients of Byrne
JAG grants have to certify compliance with anti-lobbying
statutes and other grant-related requirements in order to be
eligible for their grant award, grantees also can have their
grant award reduced or increased based on their compliance
with the Sex Offender Registration and Notification Act
(SORNA), 34 U.S.C. § 20927(a), and the Prison Rape
Elimination Act (PREA), 34 U.S.C. § 30307(e)(2)(A). In
contrast to the award conditions imposed in this case by
executive fiat, the conditions of compliance with SORNA and
PREA are legislatively-authorized, in explicit statutory
language. See 34 U.S.C. § 20927(a),(c), and § 30307(e)(2)(A),
(E).
As described above, in the Byrne JAG program, initial al-
locations of Byrne JAG funds are made to states and, after the
states submit their applications with the required
86 Nos. 18-2885 & 19-3290

certifications, awards of the grant are issued. If a state seeking
a Byrne JAG grant is non-compliant with the requirements of
SORNA, then its Byrne JAG grant award is reduced by 10 per-
cent. Those funds are then reallocated as an addition to the
Byrne JAG grant award to other, SORNA-compliant states in
the following fiscal year unless the non-compliant state seeks
reallocation of those funds to its own Byrne JAG grant award
by certifying that the funds will be used solely to obtain
SORNA compliance and that request is approved. 34 U.S.C. §
20927(c). The amounts at stake in that redistribution can be
significant. For FY 2016, the 10% penalty applied to SORNA-
non-compliant states reduced Byrne JAG grants by more than
$6 million, with approximately $5 million reallocated to the
SORNA-non-compliant states that applied for the funds to
promote SORNA implementation, and over a million dollars
reallocated as a bonus award to SORNA-compliant states. See
Justice Assistance Grant Program, 2016 Technical Report at 7,
at https://bja.ojp.gov/sites/g/files/xyckuh186/files/media/doc-
ument/jag-technical-report.pdf (last visited 4-8-2020).
Accordingly, a state’s Byrne JAG award can be increased
or decreased based on that state’s own compliance with
SORNA and based on whether other states are non-
compliant. Because the penalty is assessed when the Byrne
JAG grant is awarded, it will not be assessed as to states that
either cannot even apply for the award because they cannot
certify that they are in compliance with the unlawful
conditions, or that apply and are denied an award because
they are not in compliance with those conditions. See Office of
Justice Programs SMART, Byrne JAG Grant Reductions
Under SORNA at
https://smart.gov/byrneJAG_grant_reductions.htm (last
Nos. 18-2885 & 19-3290 87

visited 4-8-2020)(noting that the 10 percent reduction is
imposed when the awards are made).
That is a real problem if the unlawful Byrne JAG condi-
tions challenged in this case are imposed upon the states.
States that cannot or will not comply with those unlawful con-
ditions will not be able to receive any award under the Byrne
JAG grant. In fact, even filing an application for the Byrne JAG
grant is problematic for such states. The application require-
ments and penalties leave potential applicants in “sanctuary”
or “welcoming” jurisdictions with few options. The chief ex-
ecutive of each state or unit of local government must certify
that the unit of government will comply with all Byrne JAG
provisions and all applicable federal laws, and must include
the certification of compliance with § 1373. The solicitation for
Byrne JAG applications makes clear that the certification is
subject to review by DOJ, and that a false statement or con-
cealment or omission of a material fact may result in criminal
prosecution, and also may trigger civil penalties and admin-
istrative remedies including suspension or termination of the
award, placement on the DOJ high risk grantee list (with at-
tendant consequences), disallowance of costs, and suspension
or debarment of the recipient. See Edward Byrne Memorial
Justice Assistance Grant Program FY 2017 Local Solicitation
CFDA # 16.738 at 8–9, Appellant’s Appendix, No. 18-2885, at
A153–54. In the amicus briefs in this case alone, fourteen
states have challenged the conditions, which indicates that
the number of states that could be impacted by the imposition
is significant. That likelihood is apparent as well in the De-
partment of Justice’s Byrne JAG Application and Award His-
tory, which as of March 2019 indicated that approximately
$150 million of the $400 million in Byrne JAG funds each year
for FY 2017 and FY 2018 still had not been released to grantees
88 Nos. 18-2885 & 19-3290

“as a result [of] concerns regarding compliance with federal
immigration laws and ongoing litigation related to these mat-
ters.” U.S. Dept. of Justice, FY 2020 Performance Budget, OJP
March 2019, https://www.justice.gov/file/1144566/download
at 100 (last visited 4-8-2020).
If states cannot apply for or receive Byrne JAG awards,
then that impacts the SORNA penalties collected from and re-
distributed to the remaining states in the Byrne JAG grants.
For instance, if SORNA-non-compliant states can no longer
qualify for Byrne JAG funds because of the unlawful condi-
tions challenged here, then the 10 percent SORNA penalty
will not be assessed as to them because they will have no
award. Therefore the penalty amounts will not be redistrib-
uted to the Byrne JAG grant the following year to SORNA-
compliant states, thus lowering the Byrne JAG grant awards
that the remaining states would have received. Those
SORNA-compliant states will not receive the additional funds
that would have been reallocated from the award of those
non-compliant states. Similarly, if SORNA-compliant states
are unable to participate in the Byrne JAG program because
they cannot comply with the unlawful conditions, then the re-
maining SORNA-compliant states will receive a larger share
of the SORNA penalty funds solely because the unlawful con-
ditions forced the exclusion of those states and impacted the
number of SORNA-compliant states left in the redistribution
mix. The inability of SORNA-non-compliant states to seek re-
allocation of the penalty to their own Byrne JAG award, in
years for which the unlawful conditions deprive them of any
award, will also skew the calculations.
Whether states experience a loss or a windfall, the result is
that the imposition of the unlawful Byrne JAG conditions, by
Nos. 18-2885 & 19-3290 89

precluding states from eligibility for Byrne JAG awards, will
alter the Byrne JAG grant amounts for other states, and there-
fore can alter amounts for localities as well. In other words, if
the unlawful conditions are imposed upon the states so as to
render some of them ineligible for the Byrne JAG award, the
Byrne JAG award for other states will be impacted because
the Byrne JAG award for each state is impacted by the
amounts redistributed from other states.
A similar redistribution of funds between states occurs
based on compliance with the PREA. The PREA stipulates
that a state that does not certify full compliance with its na-
tional standards can forfeit 5 percent of Byrne JAG funds un-
less it certifies that no less than 5 percent of such funds will be
used solely to achieve compliance. See 34 U.S.C.
§ 30307(e)(2)(A). In FY 2019, as a result of the PREA compli-
ance requirement, nearly $3 million in Byrne JAG grant funds
were reallocated, held in abeyance, or reduced. See Impact of
PREA on Justice Grants, FY 2019 at https://bja.ojp.gov/
sites/g/files/xyckuh186/files/media/document/FY2019-PREA-
Grant-Impact.pdf (last visited 4-8-2020). If states are unable to
comply with certain PREA requirements, the PREA provides
that “the Attorney General shall redistribute the funds of the
State held in abeyance to other States to be used in accordance
with the conditions of the grant program for which the funds
were provided.” 34 U.S.C. § 30307(e)(2)(E)(iii).
States that are ineligible for Byrne JAG funds because they
cannot comply with the challenged conditions will not be
awarded Byrne JAG funds, and therefore the redistribution of
Byrne JAG funds that would occur for non-compliance with
the PREA will be disrupted. Once again, the impact of the
challenged conditions will impact not only the individual
90 Nos. 18-2885 & 19-3290

state’s Byrne JAG grant amount, but will impact the grant
amount of other states as well. Just as the Byrne JAG grants
for localities are impacted by the grants for states and each
state’s ability to comply with the challenged Byrne JAG con-
ditions, so too the grants for states are impacted by the ability
of each other state to comply with those Byrne JAG condi-
tions.
4. Complete Relief to Plaintiff
Complete relief to the plaintiff requires the calculation of
its Byrne JAG grant as if the conditions were universally in-
applicable. As set forth above, based on our analysis of the
structure of the statute, the only way to ensure that the plain-
tiff receives, now and in the future, the Byrne JAG grant
amount that it would be entitled to in the absence of the un-
lawful conditions, is to calculate the amounts for grant recip-
ients as a whole absent the unlawful conditions. Like a river
that flows throughout an entire region, in which an impact on
one part cannot be separated from the whole and relief for in-
jury to the part must target the whole, relief for one grantee in
the Byrne JAG program must target the whole program. Com-
plete relief to Chicago requires that in calculating its grants
the unlawful grant conditions are not applied program-wide.
The dissent asserts that SORNA and PREA are irrelevant
to a claim involving the Byrne JAG grant. But the focus here
is not on the source of the redistribution of Byrne JAG funds;
rather, the relevant question is whether that required redistri-
bution renders Byrne JAG funding intertwined, such that the
elimination of some states from the Byrne JAG program as a
result of the unlawful conditions can impact the funds re-
ceived by other states and localities in that program. In other
words, the relevant question is whether the formula for
Nos. 18-2885 & 19-3290 91

calculating the Byrne JAG award renders one state’s and one
locality’s award dependent on the award for other states, and
whether the imposition of the unlawful conditions challenged
in this lawsuit disrupts that calculation. If the imposition of
the unlawful Byrne JAG conditions on the states as a whole
could alter the award that a state (and therefore a locality)
would receive, then a program-wide disregard of those con-
ditions is necessary in order for Chicago to receive the award
that it would be entitled to in the absence of the unlawful con-
ditions. Chicago’s award is impacted not only if the unlawful
conditions are applied to its own Byrne JAG application, but
if they are applied to deny Byrne JAG awards to Illinois or to
other states. Accordingly, the relief that would eliminate the
impact of those unlawful conditions on Chicago’s Byrne JAG
grant is an injunction preventing the consideration of those
unlawful conditions program-wide in the awarding of Chi-
cago’s Byrne JAG grant. A program-wide application is nec-
essary to provide complete relief to the plaintiff, and therefore
is proper.
Notably, the Attorney General has never tried to establish
that the grant awards are not interdependent. In his brief, the
Attorney General addressed “the panel majority’s belief that
‘the structure of the Byrne JAG program itself’ supports entry
of nationwide injunction.” Appellant’s Brief, No. 18-2885, at
54. But rather than challenge the assumption that the Byrne
JAG funds would be redistributed from jurisdictions that lost
funding, the Attorney General declared that the panel major-
ity “failed to explain how that redistribution required a na-
tionwide injunction to protect Chicago’s interests,” because
such redistribution would benefit Chicago by increasing its
grant. Id. at 54–55. At oral argument, the Attorney General
again declared only that it is “unclear” whether funds from
92 Nos. 18-2885 & 19-3290

another applicant could increase Chicago’s award if the con-
ditions rendered that applicant unable to retain or obtain a
Byrne JAG award, but again argued that such redistribution
would be a windfall of which Chicago could not complain.
Under the Attorney General’s theory, then, even if Chicago
would receive more funds if the unlawful conditions are ap-
plied to other Byrne JAG applicants, that would constitute a
surplus and Chicago could not complain that it failed to ob-
tain all relief to which it is entitled. The notion that a plaintiff
cannot complain if it becomes a beneficiary of the unlawful
actions it is challenging is an odd one. It is the equivalent of
arguing that a victim of an unlawful pyramid scheme can re-
ceive proper relief from the illegal conduct if that victim is
given a cut of the profits of that very same ongoing unlawful
scheme. Chicago seeks a remedy that provides redress for the
unlawful conduct, not one that allows it to profit from the
continued imposition of that unlawful conduct as to others. A
remedy that essentially makes the City complicit in the action
it seeks to prohibit is no remedy at all, and certainly not one
that can, by any measure, constitute a remedy grounded in
equity.
Courts have an obligation to award proper relief, and a
windfall achieved by the imposition of unlawful conditions
on other applicants is not proper relief. This is not a situation
in which it is impossible to ensure that Chicago receives the
award it would be entitled to without the unlawful condi-
tions; it requires only that the unlawful conditions not be ap-
plied to the Byrne JAG awards at all. That relief is the proper
and complete relief here, and it does not cease to be proper
merely because other, non-plaintiffs, may thereby be relieved
of the unlawful conditions that would otherwise be applied
to their grant awards. In fact, relief that requires consistency
Nos. 18-2885 & 19-3290 93

in the application of conditions to all Byrne JAG grants is truer
to the statutory structure. Particularly where, as discussed
above, the other equitable factors also weigh in favor of broad
relief, there is no reason in equity to deny the remedy that will
provide complete relief to Chicago.
Moreover, as discussed above, the impact of the unlawful
conditions on the other states would not necessarily result in
a windfall. It could also result in a lower grant award than
would be proper absent the impact of those unlawful condi-
tions. If, for example, SORNA-non-compliant states cannot
receive a grant award, then the 10 percent penalty cannot be
imposed on their award and redistributed to other states. That
will decrease the awards to other SORNA-compliant states,
and as set forth above, the state award can impact the local
award. The assumption, then, that Chicago could only expe-
rience a windfall is unsupported as the statutory formula is
structured.
We have determined that the Attorney General lacked the
authority to impose the challenged conditions. The proper re-
lief to Chicago is to enjoin the imposition of the conditions to
the extent necessary to ensure that Chicago receives the grant
award that it would be entitled to if the unlawful conditions
were not imposed. In a formula grant structure such as the
one presented here, in which grant amounts are based on per-
centages and the award amounts are interrelated and interde-
pendent, an injunction requiring the Attorney General to dis-
regard the challenged conditions program-wide is necessary
to ensure that Chicago itself receives proper relief. Because we
hold that program-wide application is necessary to provide
complete relief to Chicago itself, the injunction should reflect
that limitation, which is the narrowest relief that will redress
94 Nos. 18-2885 & 19-3290

the injury. Any impact on other grantees in that context is in-
cidental, rather than direct, and the injunction does not pro-
vide those grantees with independently-enforceable rights.
To clarify that focus, we direct the court on remand to
modify the language of the injunction to require the Attorney
General to calculate the City of Chicago’s Byrne JAG grant as
if the challenged conditions were universally inapplicable to
all grantees. This modification is true to our focus on provid-
ing the plaintiff with complete relief, while keeping the in-
junction as narrow as possible. As a practical matter under
our analysis above, that injunctive relief under the current
statutory structure can only be accomplished by requiring the
elimination of the conditions program-wide. That is because
the grant calculation is not an isolated annual action without
impact beyond that year, such that a calculation could be
made separately as to Chicago alone. Proper calculation of
grant amounts under the Byrne JAG program is not a static
process in which grants, once awarded, are permanently and
automatically distributed to the applicant and not subject to
further redistribution. The behavior of the states following the
awarding of grants impacts the redistributions under SORNA
and PREA. Therefore, the continued imposition of the unlaw-
ful conditions on those states at any time interrupts the pro-
cess such that the redistribution among states and localities
cannot be properly calculated.
For that reason, it will be difficult if not impossible to
properly calculate Chicago’s grant without eliminating the
conditions for all grantees. We have explained the structural
reasons above, but perhaps an example will illustrate the in-
capability of separating the calculations. Suppose that in 2019,
the government calculates Chicago’s grant by determining
Nos. 18-2885 & 19-3290 95

what each state and locality would get absent the unlawful
conditions, giving Chicago its proper amount for that year
with the unlawful conditions disallowed, but then proceeds
to apply the unlawful conditions to the other states’ grant de-
terminations. Now, under that scenario, State A does not get
a grant that year because it cannot comply with the unlawful
conditions. We now move to 2020-2023. The government can-
not properly calculate Chicago’s grant “absent the unlawful
conditions,” because the actions State A would have taken
with respect to its grant in 2019 and beyond are unknowable,
and those actions could have impacted Chicago’s grant. State
A’s 2019 grant would have spanned four years if it had re-
ceived a 2019 Byrne JAG award. Upon receiving that award,
it could have sought reallocation of any SORNA penalty to be
used for the purpose of SORNA implementation, and that re-
quest could have been granted or denied. Furthermore, dur-
ing the ensuing years, even if State A was granted that reallo-
cation of the SORNA penalty, it could have had the funds
withheld if it subsequently failed to properly use them for
SORNA implementation. In short, the factors that would im-
pact the redistributions among states cannot be known if the
unlawful conditions continue to be imposed on other states,
requiring that the conditions need to be eliminated program-
wide for all grantees. We nevertheless narrow the language of
the injunction to allow for the possibility that the Attorney
General can establish to the district court, now or in the fu-
ture, that Chicago’s grant can be separately calculated in a
manner that would allocate funding to Chicago taking into
account all of the redistributions of funds set forth above as if
the conditions were inapplicable to the Byrne JAG program
as a whole.
96 Nos. 18-2885 & 19-3290

Because we hold that the challenged conditions must be
considered inapplicable program-wide for the purpose of cal-
culating Chicago’s grant, we need not consider Chicago’s ar-
gument that program-wide relief is proper under the Admin-
istrative Procedure Act’s authorization that unlawful agency
actions should be “set aside.” See D.C. v. U.S. Dep't of Agric.,
___ F.3d ___, 2020 WL 1236657, at *34 (D.D.C. Mar. 13, 2020)
and cases cited therein (discussing a line of cases all holding
that “the APA’s instruction that unlawful agency actions be
‘set aside’ is ordinarily read as an instruction to vacate, wher-
ever applicable, unlawful agency rules”); see also Sohoni, Lost
History at 991 n.466.
VI. Conclusion
Once again, we address the need to preserve the separa-
tion of powers between the legislative and executive branch.
The separation of powers is a foundation of our government,
not a formality to be swept aside on the path to achieving
goals that the executive branch deems worthy. The Attorney
General’s nod to checks and balances rings hollow in light of
the changing justifications provided here for the conditions,
with a new purported legislative “authorization” whenever
another is deemed baseless by the court. Rather than an exer-
cise of authority granted to it by the legislature, the conditions
imposed here are an executive usurpation of the power of the
purse. See Providence, 2020 WL 1429579 at *8 (“[i]t is nose-on-
the-face plain that [C]ongress intended Byrne JAG to operate
as a formula grant program. … Congress did not make an al-
lowance for any deviation that would justify the actions un-
dertaken by the DOJ in this case.”)
The imposition of the challenged conditions in this man-
ner is an abrogation of the legislative process. Preservation of
Nos. 18-2885 & 19-3290 97

the separation of powers is paramount if our democracy is to
survive.
Accordingly, we affirm the grants of declaratory relief as
to the declarations that the Attorney General exceeded the au-
thority delegated by Congress in the Byrne JAG statute, 34
U.S.C. § 10151 et seq., and in 34 U.S.C. § 10102(a), in attaching
the challenged conditions to the FY 2017 and FY 2018 grants,
and that the Attorney General’s decision to attach the condi-
tions to the FY 2017 and FY 2018 Byrne JAG grants violated
the constitutional principle of separation of powers. In light
of our determination as to the language in § 10153, it is unnec-
essary to reach the constitutionality of § 1373 under the anti-
commandeering doctrine of the Tenth Amendment. We re-
mand for the district court to modify the injunction to require
the Attorney General to calculate the City of Chicago’s Byrne
JAG grant as if the challenged conditions were universally in-
applicable to all grantees. As set forth in this opinion, as the
grant is currently structured and implemented, that would re-
quire program-wide elimination of the conditions in the
awarding of the grants unless the Attorney General estab-
lishes in the district court an alternative that would satisfy the
injunction. Although that may have the practical impact of al-
tering the grants of all grantees program-wide, that is an inci-
dental effect of the injunctive relief that we uphold today,
which is limited in scope to the plaintiff itself and does not
grant relief directly to other grantees. We affirm the extension
of injunctive relief to include the application of the challenged
conditions to the Byrne JAG grant now and in the future,
which included enjoining the Attorney General from denying
or delaying issuance of the Byrne JAG award to grants in FY
2017, FY 2018, FY 2019 and any other future program year in-
sofar as that denial or delay is based on the challenged
98 Nos. 18-2885 & 19-3290

conditions or materially identical conditions. We remand for
the district court to determine if any other injunctive relief is
appropriate in light of our determination that § 10153 cannot
be used to incorporate laws unrelated to the grants or grant-
ees. Finally, because the injunctive relief is necessary to pro-
vide complete relief to Chicago itself, the concern with im-
properly extending relief beyond the particular plaintiff does
not apply, and therefore there is no reason to stay the appli-
cation of the injunctive relief.
Nos. 18-2885 & 19-3290 99

MANION, Circuit Judge, concurring in the judgment.
Today’s amended opinion holds unlawful several condi-
tions attached to the Byrne JAG program and affirms injunc-
tive relief for Chicago alone. While I concur in the judgment
as a whole, I do not agree that Chicago’s relief is a function of
the awards of all other Byrne JAG applicants. I also write sep-
arately to underscore the importance of limiting injunctive re-
lief to the plaintiff, Chicago.
I.
The Attorney General challenges the district court’s con-
clusion that the notice, access, and § 1373 compliance condi-
tions required of FY 2017 and FY 2018 Byrne JAG applicants
are unlawful. He also challenges the same finding regarding
three new conditions placed on FY 2018 grant applicants: the
§ 1644 compliance condition; the harboring condition; and the
additional certification condition. These requirements all con-
flict with Chicago’s “Welcoming City Ordinance,”1 which,
broadly speaking, forbids the city’s agencies or agents from
cooperating with federal immigration authorities unless the

1 Although Chicago’s ordinance places the city among other so-called
“sanctuary” jurisdictions, Chicago creatively labels itself a “welcoming
city,” perhaps to avoid prosecutorial suspicion over whether its elected
officials are committing a federal harboring offense. Federal law makes it
a crime for any person, “knowing or in reckless disregard of the fact that
an alien has come to, entered, or remains in the United States in violation
of law,” to “harbor” that alien. 8 U.S.C. § 1324(a)(1)(A)(iii). The same stat-
ute also criminalizes encouraging or inducing an alien to “come to, enter,
or reside in the United States,” knowing that such entry or residence
would be in violation of law. Id. § 1324(a)(1)(A)(iv). With the right facts, a
policy like Chicago’s could very well facilitate harboring or at least en-
courage and induce aliens to enter and reside unlawfully in the United
States.
100 Nos. 18-2885 & 19-3290

individual subject to federal inquiry has an outstanding crim-
inal warrant, a pending felony charge, or gang affiliations.
Chicago, Ill., Mun. Code § 2-173-042. This ordinance, in my
opinion, spoils the many inherent values gained when local
and federal law enforcement agencies collaborate, yet the city
claims this measure is necessary to foster cooperation be-
tween local law enforcement and “undocumented” immi-
grants, i.e., those here illegally, who might otherwise fear de-
tention and removal (legal consequences) after coming for-
ward as criminal witnesses. The city further insists the coop-
eration of illegal aliens “is essential to achieve the City’s goals
of protecting life and property, preventing crime and resolv-
ing problems.” § 2-173-005. I find this logic unconvincing
when, in 2018, Chicago’s self-reported clearance rates (cases
in which a suspect was arrested, charged, and prosecuted) for
murder (44.42 percent) and aggravated assault (38.42 percent)
fell substantially below the national clearance average for
those crimes (62.3 and 52.5 percent, respectively).2 Clearly,
willing witnesses are lacking in Chicago despite its “welcom-
ing” policies.
We already addressed the notice and access conditions in
City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) (“Chi-
cago I”), where we rejected the Attorney General’s reliance on
§ 10102(a)(6) of the Byrne JAG statute and upheld the district

2 Compare 2018 CHI. POLICE DEP’T ANN. REP., at 62 (2019), available at
http://home.chicagopolice.org/wp-content/uploads/2019/07/2018Annu-
alReport-05July19.pdf (last visited June 4, 2020), with FED. BUREAU OF
INVESTIGATION, CRIME IN THE UNITED STATES 2018, Table 25: Percent of Of-
fenses Cleared by Arrest or Exceptional Means, available at
https://ucr.fbi.gov/crime-in-the-u.s/2018/crime-in-the-u.s.-2018/topic-
pages/tables/table-25 (last visited June 4, 2020).
Nos. 18-2885 & 19-3290 101

court’s grant of a preliminary injunction regarding those two
requirements. Here, the Attorney General relies on
§ 10102(a)(6) once again, this time maintaining the provision
extends to support the new harboring and additional certifi-
cation conditions. But he raises no new meritorious argu-
ments regarding § 10102(a)(6) in this appeal, so I agree with
the court that our earlier reasoning warrants the same result
here. I also agree that §§ 10102(a)(2) and (a)(4) do not support
the harboring condition. Those provisions only permit the As-
sistant Attorney General to “maintain liaisons” with govern-
ment agencies regarding criminal justice matters, not to im-
pose conditions on grant money.
That still leaves the Attorney General’s § 1373 compliance
condition.3 Section 1373 prohibits states and localities from re-
stricting the flow and maintenance of information regarding
the citizenship or immigration status of any individual.
8 U.S.C. § 1373. According to the Attorney General, condition-
ing Chicago’s grant award on the city’s compliance with this
law is proper under § 10153 of the Byrne JAG statute. Section
10153 requires applicants to certify, among other things, com-
pliance with the program’s provisions and “all other applica-
ble Federal laws.” 34 U.S.C. § 10153(A)(5)(D). The Attorney
General argues this language captures § 1373, but such logic
depends on a revision to the statutory language, one that re-
quires certified compliance with “all Federal laws,” not just
the applicable ones.
There are thousands of federal laws. Adopting the Attor-
ney General’s literal position would condition a grant award

3 As the court notes, the Attorney General concedes the two compli-
ance conditions—§ 1373 and § 1644—rise and fall together.
102 Nos. 18-2885 & 19-3290

on certifying compliance with each and every one of them.
That cannot be the case. Under its spending power, Congress
can attach only those conditions that “bear some relationship
to the purpose of the federal spending” and must do so un-
ambiguously. New York v. United States, 505 U.S. 144, 167, 172
(1992) (citations omitted). The Attorney General’s unbounded
interpretation ignores this concept. His oversight makes a dif-
ference because the relevant statutory context limits
§ 10153(A)(5)(D)’s “all other applicable Federal laws” lan-
guage to federal grant applicants. Reading § 10153 as a whole
makes this clear. Indeed, the immediately preceding subsec-
tions, (A)–(C), all require certification of items pertaining di-
rectly to the Byrne JAG application itself. Moreover, the Byrne
JAG program’s FY 2017 solicitation literature directs appli-
cants to specific federal laws that the applicants need to abide
by. Those laws, unlike § 1373, by their very language pertain
expressly to federal grants and grant recipients, further indi-
cating that compliance with § 1373 represents a departure
from the grant’s statutory requirements.
The Attorney General’s conditions, viewed in isolation,
are perfectly reasonable. Federal officers have a basic duty to
ensure enforcement of and compliance with our country’s im-
migration laws. That the federal government would require
cooperation with its agencies in exchange for grant funds
should come as no surprise. Nevertheless, the Constitution
places the power to spend money in the legislative branch. See
U.S. Const. art. I, § 8, cl. 1 (“The Congress shall have Power …
to pay the Debts and provide for the … general Welfare of the
United States … .”). The spending power also comes with the
ancillary authority to place conditions on the receipt of federal
funds. Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 576
(2012). So, the executive lacks authority to place conditions on
Nos. 18-2885 & 19-3290 103

the receipt of federal funds unless Congress vests it with such
power. See generally La. Pub. Serv. Comm’n v. F.C.C., 476 U.S.
355, 374 (1986) (“[A]n agency literally has no power to act …
unless and until Congress confers power upon it.”). Here,
context clashes with the Attorney General’s expanded read-
ing of § 10153(A)(5)(D), and he has received no such assign-
ment of power from Congress. Holding Byrne JAG applicants
to § 1373, therefore, is not supported by law.
II.
I agree with my colleagues that the injunction here must
be limited to Chicago.4 But I do not share their approach to
calculating Chicago’s deserved grant award amount. In a nut-
shell, the court claims the Byrne JAG statute’s structure ren-
ders the award amounts of all applicants—localities and
states—interconnected. Therefore, according to the court,
proper relief requires the Attorney General to calculate Chi-
cago’s award as if the challenged conditions do not apply
across-the-board.
The court misinterprets the statute. With one exception,
none of the provisions invoked by the court—read singly or
in combination—make Chicago’s award contingent on any
other governing body’s compliance with the Attorney Gen-
eral’s conditions. See generally 34 U.S.C. § 10156. For example,
any reallocated funds Chicago receives under § 10156(e)(1)
come from excess awards granted to other local governments,
not from those jurisdictions’ noncompliance. And, the joint

4 I also agree with the court’s decision to affirm the injunction’s tem-
poral scope, i.e., “all future years.” And I concur with remanding for the
district court to consider proper injunctive relief regarding the compliance
condition.
104 Nos. 18-2885 & 19-3290

application process described in § 10156(d)(4) is likewise si-
lent on whether one local government’s failure to comply can
alter the grant awards of its fellow “geographical constituent
units.”
Furthermore, the court theorizes that the disqualification
of a given locality (for failing to comply with the Attorney
General’s conditions) can alter Chicago’s award amount be-
cause Chicago’s funds depend on both “the number of appli-
cants” and its “share of all violent crimes reported in the state
relative to those other applicants.” Maj. Op. at 81 (emphasis
added). That’s not what the statute says. Subsection
10156(d)(2)(A) governs grant allocations to localities. It directs
the Attorney General to allocate an amount equal to the ratio
of (1) the average number of violent crimes reported by the
applicant over the three most recent years for which such data
is available to (2) the number of “violent crimes reported by
all units of local government in the State in which the [applicant]
is located … for such years.” Id. (emphasis added). By its own
language—“all units of local government”—§ 10156(d)(2)(A)
simply compares the applicant’s violent crimes against those
reported by all localities within the applicant’s state. In other
words, even if another Illinois locality fails to comply with the
notice and access conditions, its violent crime statistics are not
removed from § 10156(d)(2)(A)’s formula; they are still used
to calculate Chicago’s award. The ratio remains the same re-
gardless of any other locality’s noncompliance, and the yield
for Chicago, therefore, is not affected.
The one exception, foreshadowed above, is § 10156(f).
That subsection provides:
If the Attorney General determines … that a
State will be unable to qualify or receive funds
Nos. 18-2885 & 19-3290 105

under this part … then such State’s allocation
(or portion thereof) shall be awarded by the At-
torney General to units of local government, or
combinations thereof, within such State … .
Id. (emphasis added). So, if a state falls out of compliance, any
redistribution of funds benefits that state’s local governments.
But if, for example, California refuses to comply with the At-
torney General’s conditions, then California’s allocation
would not go to Chicago or otherwise change Chicago’s
award at all. The states’ allocations are siloed by state; in this
example, California’s allocation (or portion thereof) would be
redistributed only to compliant localities within its borders.
The court showcases the Keep Illinois Families Together
Act, 5 ILCS 835, to emphasize that “[t]he possibility of [§
10156(f)] impacting Chicago’s grant amount is far from negli-
gible” because the Attorney General may determine the legis-
lation runs afoul of his unlawful requirements. Maj. Op. at 83.
Maybe so. But while the possibility of an Illinois law impact-
ing Chicago’s Byrne JAG award is “more than negligible” un-
der § 10156(f), the possibility of another state’s law impacting
Chicago’s award is zero.
My colleagues’ reliance on the reallocation clauses in
SORNA and PREA is similarly lacking. SORNA and PREA
each provide that jurisdictions failing to implement the stat-
utes’ mandates will be penalized with a reduction to their
Byrne JAG award. 34 U.S.C. § 20927(a) and § 30307(e)(2)(A).
Those reductions are redistributed among SORNA- and
PREA-compliant jurisdictions. Id. § 20927(c) and
§ 30307(e)(2)(E)(iii). The court’s theory is that, if states other
than Illinois both (1) are held ineligible for a Byrne JAG grant
because of the Attorney General’s unlawful conditions and (2)
106 Nos. 18-2885 & 19-3290

fail to implement SORNA and PREA, then Illinois—and per-
haps by extension, Chicago—will miss out on the reallocated
penalties.
But Illinois and Chicago are not guaranteed reallocated
funds in the first place; that depends on whether any other
jurisdictions fail to implement SORNA and PREA. Even still,
how much money would Chicago stand to receive? Any real-
located penalties, while not small sums themselves, are a drop
in the bucket compared to all Byrne JAG funds. As the court
notes, in FY 2016, reallocated SORNA penalties exceeded $6
million across the country. Reallocated PREA penalties in FY
2019 exceeded $3 million. Compare those amounts with
nearly $275 million in Byrne JAG funds distributed for FY
2016 and over $252 million for FY 2019.5 Describing the real-
located SORNA and PREA penalties as “significant” over-
states the matter.
Since other state and local governments’ compliance with
the Attorney General’s conditions does not affect Chicago’s
award amount, the purported need to calculate Chicago’s
award as if the challenged conditions were universally inap-
plicable disappears.

5 See https://www.bjs.gov/content/pub/pdf/jagp16.pdf (last visited
June 4, 2020); https://external.ojp.usdoj.gov/selector/title?solicitationTi-
tle=BJA%20FY%2019%20Edward%20Byrne%20Memorial%20Justice%20
Assistance%20Grant%20(JAG)%20Program%20-
%20State%20Solicitation&po=BJA (last visited June 4, 2020); https://exter-
nal.ojp.usdoj.gov/selector/title?solicitationTi-
tle=BJA%20FY%2019%20Edward%20Byrne%20Memorial%20Justice%20
Assistance%20Grant%20(JAG)%20Program%20-
%20Local%20Solicitation&po=BJA (last visited June 4, 2020).
Nos. 18-2885 & 19-3290 107

III.
Nevertheless, the injunctive relief directed by the court to-
day avoids overstepping the well-established maxim that “in-
junctive relief should be no more burdensome to the defend-
ant than necessary to provide complete relief to the plaintiffs,”
not to non-litigant third parties. Califano v. Yamasaki, 442 U.S.
682, 702 (1979) (emphasis added); see also Int’l Kennel Club of
Chi., Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1094 (7th Cir. 1988)
(holding that the geographic scope of an injunction “must not
exceed the extent of the plaintiff’s protectable rights.”) (em-
phasis added); California v. Azar, 911 F.3d 558, 584 (9th Cir.
2018) (“The scope of [injunctive relief] must be no broader
and no narrower than necessary to redress the injury shown
by the plaintiff[s].”) (emphasis added).
The “usual rule,” after all, is “that litigation is conducted
by and on behalf of the individual named parties only.” Cali-
fano, 442 U.S. at 700–01. Thus, the court’s approach also keeps
with “American courts’ tradition of providing equitable relief
only to parties … .” Trump v. Hawaii, 138 S. Ct. 2392, 2427 (2018)
(Thomas, J., concurring) (emphasis added). As Justice Thomas
outlined:
For most of our history, courts understood judi-
cial power as fundamentall[y] the power to ren-
der judgments in individual cases. Misuses of
judicial power, Hamilton reassured the people
of New York, could not threaten the general lib-
erty of the people because courts, at most, adju-
dicate the rights of individual[s].
108 Nos. 18-2885 & 19-3290

Id. at 2427–28 (alterations in the original) (internal quotation
marks and citations omitted).6
Today’s holding also guards against a decision premised
on faulty assumptions: that the parties presented the district
court with the very best arguments on the merits; that no
other jurisdictions’ standards for injunctive relief would yield
different results than in this case; that what goes for a
Chicago-specific ordinance goes for all others; and that no
trial judge sitting in the 93 other districts could possibly reach
a different decision on these issues.
The Supreme Court cautioned against these same kinds of
assumptions in United States v. Mendoza, determining that a
judicial holding against the federal government in one case
could not be used by another party in another case “to pre-
clude relitigation of issues … .” 464 U.S. 154, 162 (1984). The
Court was concerned that allowing parties to use preclusion
in this way “would substantially thwart the development of
important questions of law by freezing the first final decision
rendered on a particular legal issue,” thereby depriving the
Court of the benefit it receives when the various circuits ex-
plore and address difficult legal issues. Id. at 160. Thus, in bar-
ring the use of such nonmutual offensive collateral estoppel
against the government, the Court sought to promote “thor-
ough development of legal doctrine by allowing litigation in
multiple forums.” Id. at 163.

6 In the analogous context of Article III standing, the Supreme Court
has also “caution[ed] … that ‘standing is not dispensed in gross’: A plain-
tiff’s remedy must be tailored to redress the plaintiff’s particular injury.”
Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018) (citing DaimlerChrysler Corp. v.
Cuno, 547 U.S. 332, 353 (2006)).
Nos. 18-2885 & 19-3290 109

While the Court in Mendoza did not address its concerns
within the framework of nationwide injunctions, its reasoning
nonetheless applies here. Indeed, the Fourth and Ninth Cir-
cuits have overruled nationwide injunctions as preventing the
development of divergent views and outcomes. See Va. Soc’y
for Human Life, Inc. v. Fed. Election Comm’n, 263 F.3d 379, 393
(4th Cir. 2001) (remanding nationwide injunction in favor of
more limited relief because such a broad measure encroaches
on other circuits’ ability to develop their own precedent, rely-
ing on Mendoza), overruled on other grounds by Real Truth About
Abortion, Inc. v. FEC, 681 F.3d 544, 550 n.2 (4th Cir. 2012); East
Bay Sanctuary Covenant v. Barr, 934 F.3d 1026, 1029–30 (9th Cir.
2019) (criticizing nationwide injunctions for depriving other
parties of the ability to litigate issues in other jurisdictions, in-
terfering with judicial decisionmaking, and preventing the
percolation of legal issues and the development of the law,
citing accordance with Mendoza in a footnote); Azar, 911 F.3d
at 583–84 (determining nationwide injunction overbroad, cit-
ing Mendoza’s concerns).7
Affirming the district court’s nationwide injunction here
would block the underlying issues from percolating through
the lower courts. This would hinder the issues’ development,
prevent divergent legal views and opinions from coming to
the fore, and force all future litigants in this country to accept

7 We have also invoked Mendoza in the Rule 23 context to uphold a
geographically limited class in light of “the Supreme Court’s admonition
that certification of a nationwide class may have a detrimental effect by
foreclosing adjudication by a number of different courts and judges, and
of increasing, in certain cases, the pressures on [the Supreme Court’s]
docket.” Shvartsman v. Apfel, 138 F.3d 1196, 1201 (7th Cir. 1998) (alteration
in the original) (internal quotations and citation omitted).
110 Nos. 18-2885 & 19-3290

the determination of one district judge who was presented
with one city’s ordinance and who took arguments from one
set of parties. These are real, tangible harms that impair our
federal legal system. See Hawaii, 138 S. Ct. at 2425 (Thomas, J.,
concurring) (“[Nationwide] injunctions are beginning to take
a toll on the federal court system—preventing legal questions
from percolating through the federal courts, encouraging fo-
rum shopping, and making every case a national emergency
for the courts and for the Executive Branch.”). And the fact
that five circuits have now sounded off on the Attorney Gen-
eral’s conditions does not lessen the need for other courts to
do so. Diversity of thought and opinion that flows from per-
colation is meant to benefit not only the Courts of Appeals,
but our Supreme Court as well. See Arizona v. Evans, 514 U.S.
1, 23 n.1 (1995) (Ginsburg, J., dissenting) (“[W]hen frontier le-
gal problems are presented, periods of ‘percolation’ in, and
diverse opinions from, state and federal appellate courts may
yield a better informed and more enduring final pronounce-
ment by this Court.”). Why should the judiciary call it a day
after only five circuits weigh in, especially when they are
split?
The phenomenon of nationwide injunctions began to
emerge in the latter half of the twentieth century but has “ex-
ploded in popularity” in recent years. Hawaii, 138 S. Ct. at
2429 (Thomas, J., concurring). Indeed, in the public domain,
the Attorney General has represented that, as of September
2019, the current administration had already faced at least
forty such injunctions, compared with twenty total
Nos. 18-2885 & 19-3290 111

throughout the previous administration’s eight years.8 That
figure has since gone up.
The nationwide injunction trend has also received scru-
tiny from the academy, and as Justice Thomas cautioned, the
Supreme Court will be “dutybound to adjudicate” the lower
courts’ authority to issue such “legally and historically dubi-
ous” injunctions should the practice continue. Hawaii, 138 S.
Ct. at 2429 (Thomas, J., concurring).
Last year, when ordering a limited injunction to ensure re-
lief to the sole plaintiff before him, Judge Bennett of the Dis-
trict of Maryland observed:
It is clear that most of the nationwide injunc-
tions issued against the federal government in
the past two years have come from United
States District Courts in states less favorably in-
clined politically to the current administration.
It is also clear that most of the nationwide in-
junctions against the federal government in the
years before also came from United States Dis-
trict Courts in states less favorably inclined po-
litically to the previous administration. It is im-
portant that the federal judiciary not allow itself to
become part of underlying policy debate.
Mayor & City Council of Baltimore v. Azar, 392 F. Supp. 3d. 602,
619 n.12 (D. Md. 2019) (emphasis added) (internal quotations
and citations omitted). Considering the recent flood of nation-
wide injunctions, I echo Judge Bennett in emphasizing this

8 William Barr, End Nationwide Injunctions, The Wall Street Journal,
Sept. 5, 2019, http://www.wsj.com/articles/end-nationwide-injunctions-
11567723072 (last visited June 4, 2020).
112 Nos. 18-2885 & 19-3290

final point: we must not allow nationwide injunctions to serve
as pretext for judicial activism.
An injunction is a “drastic and extraordinary” remedy,
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 165 (2010),
outdone only by an injunction issued on a national scale. This
type of relief should be issued only when absolutely neces-
sary and the court rightly recognizes it is far from necessary
here. This is a funding case at its core, not an immigration
case, where a nationwide injunction may, in very limited cir-
cumstances, be appropriate. See, e.g., Int’l Refugee Assistance
Project v. Trump, 857 F.3d 554, 605 (4th Cir. 2017) (upholding
a nationwide injunction on the President’s “travel ban” be-
cause plaintiffs were “dispersed throughout the United
States” and there existed a need to apply immigration laws
uniformly). Those circumstances are not present here.