Circuit Split on Sanctuary Cities and Byrne Grants

Yesterday the U.S. Court of Appeals for the Second Circuit decided in favor of the federal government in New York v. USDOJ, No. 19-267. The court upheld the authority of DoJ to withhold federal funds for state and local law enforcement in the Byrne Grant program from jurisdictions that refuse certain cooperation with enforcement of federal immigration law.

This decision creates a split of authority among the federal circuits, as the Seventh, Third, and Ninth Circuits have decided differently. Unless the full Second Circuit overrules the three-judge panel, the Supreme Court is likely to resolve the issue.

The unanimous opinion was written by Senior Circuit Judge Reena Raggi and joined by Senior Circuit Judge Ralph Winter and Circuit Judge José Cabranes. A decision to hear the case en banc (i.e., by the full court rather than a panel) would be made by the active (not senior) judges of the court plus the two senior judges on the panel, minus any judges who may be recused from the case. If rehearing is granted the case would be decided by the same group of judges.

Note that this decision did not fall along party lines of the appointing presidents. Judge Cabranes was appointed to the Connecticut District Court by President Carter in 1979 and to the Second Circuit by President Clinton in 1994.

It is also worth noting, as the panel opinion does, that the interpretation of the statutes in question as requiring compliance as a condition of Byrne Grants was first made by DoJ during the prior administration.

While possible, I think a reversal by the en banc court is unlikely. With a circuit split on an issue of great national interest such as this one, decision by the Supreme Court is generally likely. Of course, it is possible that the issue could be mooted by the November election before the Court resolves it.