Today, the U.S. Circuit Second Circuit Court of Appeals ruled that the retry in New York was denied against the Department of Justice, an important case of protection cities filed by several state governments led by New York and New York City. Therefore, the earlier decision of a committee with three judges from the entire second circle (which has a total of twelve active judges) is not re-examined. The panel's decision was the Trump administration's only win in a long series of cases resulting from its attempts to enforce immigration laws to state and local governments receiving Byrne Memorial Justice Assistance Grants to support law enforcement efforts to impose. The first, third, seventh and ninth circuits have made all the decisions that put the terms down, as they were never approved by Congress, which alone controls the power of the wallet. Numerous district court decisions on these issues have come to the same conclusion.
I have summarized the shortcomings of the decision of the Second Circuit Panel here in detail. The decision was also heavily criticized in the recent First and Seventh Circle decisions dealing with the same subject.
The second circuit rarely grants a comprehensive review of panel decisions. This case is unusual in how close it came to it. Six of the twelve active judges voted to refuse the re-examination without expressing concern about the panel's decision (two of them wrote defense opinions). Four others agreed to the repeat petition, joining opinions that explained why they felt the panel's decision was poor. In a concurrent opinion from Judge Hall, Judge Raymond Lohier said that he only agreed to refuse to repeat the repetition en banc because the Supreme Court could resolve the problem more quickly:
To date, every single judge who has examined the questions raised by this appeal has resolved them in the same way. That's twelve judges – including a former Supreme Court judge – appointed by six different presidents and sitting in four separate circles. They represent a remarkable variety of views and backgrounds and are responsible for approximately forty percent of the US population, all of whom have said the same thing when asked whether the attorney general can impose the conditions under attack: No.
The committee, unimpressed, breaks the course in an opinion that is as new as it is misguided. As my colleagues explain in their opposition to the refusal to repeat in Banc and how Judge Souter and Judges Selya, Barron, Rendell, Ambro, Scirica, Rovner, Bauer, Manion, Wardlaw, Ikuta and Bybee have jointly demonstrated the panel's opinion wrongly interprets the legal text, misinterprets the constitutional doctrine and confuses the conclusion that it prefers the statutory one. The task of correcting these very serious mistakes now lies with the Supreme Court. I vote against a repetition in Banc so that this happens sooner rather than later. Indeed, if there is one panel decision that the Supreme Court should review from that circuit in the next term, it is this …
This error leads to an important division of the circuit, which has to be repaired finally and now. Unfortunately, the split occurs at the end of our term. Our already cumbersome process of continuing in Banc, which is being slowed down by a pandemic, is unlikely to fix anything soon. And even if we corrected the panel's mistake, encouraged by the panel's decision, the department would continue to pass its false and distorted theory on to the remaining circuits that have not yet exposed it. In these circumstances, I think it is better if the Supreme Court grants and reverses certiorari. It can do this faster than we do, and it alone can prevent this serious error from spreading.
The four dissenting judges also ask the Supreme Court to accept the case. More interestingly, Judge Jose Cabranes, one of the judges who endorsed the panel's decision, also appears to do so in his consistent opinion, which supports the refusal to repeat the repetition en banc. "There can be little doubt," he writes, "that the conflict between the circuits will be resolved by our highest tribunal in the fullness of time. "
As judge Lohier explains, the decision of the second circle panel is an unusual departure from decisions made by other circles on the same subject, including prominent conservative judges such as Bybee, Rovner, Selya and Manion. He also rightly points out that the really big problem in this case is not the precedent for the Byrne program, but the way in which the executive would be able to use an apparently ambiguous legal language to state and impose new grant terms on local states governments that have never been authorized by Congress. This type of executive power is a threat to both federalism and the separation of powers.
The dispute over the terms of the Byrne Grant is only part of a broader dispute over the jurisdiction of protected areas, which includes a number of other issues. I discussed it in this Texas Law Review article. As I explained in the article and elsewhere, the legal dispute here has important effects on federalism that go far beyond the specific problem of protection cities. If this allows the executive to seize Congress' power over the wallet, it would have broad leverage over states and locations on a variety of issues. Conservatives who might be happy to see Donald Trump use this power to attack protection cities may be less pleased to see what Joe Biden does to him if he wins the 2020 election.
I usually agree with the judges of the Second Circuit that the Supreme Court is likely to accept this case. The questions raised are important, and the Second Circuit judgment creates a division between the circuits that the Court often tries to resolve. However, these are not normal times.
Recently, the court rejected the Trump administration's petition to review the Ninth Circle decision in favor of California in the government's lawsuit against California's Sanctuary State law. There are a number of possible explanations for this decision. However, one possibility is that the Court is currently not ready to accept a case of shelter cities.
If Joe Biden wins the November election – a very plausible result given the current poll trends – he and his attorney general will almost certainly abolish the Trump administration's immigration-related Byrne Grant terms. That could argue the case before the Supreme Court has a chance to rule on it. Even if the court makes an application for confirmation relatively soon, the case is unlikely to be discussed until the end of autumn, and a decision will likely not be taken until next year.
If Biden becomes president and eliminates the dubious immigration conditions, the Second Circuit ruling will have little effect on this special grant program. But it would still be a dangerous precedent for other seizures of power on condition that the executive grants them.
Of course, the Supreme Court could try to hear and decide the case on an accelerated schedule. I think that's unlikely, but I could be wrong. It is also possible that they are willing to take the risk that the case will be discussed in the event of a Biden victory.
At the moment, I am of the opinion that there is indeed a significant likelihood that the Court will take up the case. However, this likelihood is not as high as it would have been if the same type of circuit splitting had occurred in an important topic under less unusual circumstances.
NOTE: I joined an Amicus letter requesting a repeat, which was submitted on behalf of myself and several other lawyers.
NOTE 2: I call this a "protected area city" case, although it was actually brought mainly by state governments, since "protected area city" has become a generic term for protected area courts and is less clunky than "protected area jurisdiction" or other alternatives that I imagine can.