Cities and localities within the state of New York, like many across the nation, receive federal funding from the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) Program to help enhance public safety as they see fit.  Byrne JAG grant amounts are calculated using a statutory formula keyed to the jurisdiction’s population and violent crime rate, and there are minimal limits on the public safety and criminal justice uses to which funds may be allocated.  Despite this, the Attorney General sought to mandate new funding conditions for every Byrne JAG award in an attempt to coerce cities into changing their immigration policies.  The State of New York sued, challenging the Attorney General’s authority to impose the new conditions.  The district court decided in favor of the State of New York and ordered that all 2017 Byrne JAG funds be released.  A three-judge panel of the Second Circuit, however, reversed this decision.

CAC filed a brief on behalf of members of Congress arguing that the Second Circuit should rehear the case en banc because the panel erred in upholding the conditions.  Our brief explained that in establishing the Byrne JAG grant program, Congress neither imposed the challenged conditions on grant recipients, nor authorized the Attorney General to impose them.  Congress designed the program as a formula grant to ensure that cities and localities would have maximum flexibility in determining how to best improve public safety in their respective jurisdictions.  The Attorney General’s coercive conditions are not only at odds with this flexibility but also undermine public safety in states like New York by decreasing trust and cooperation between the police force and crime victims and witnesses in many neighborhoods.  Moreover, as we explained, the statute on which the Attorney General principally relied does not concern either the Byrne JAG program or the Attorney General and thus provides no support for what he is attempting to do.  Finally, we argued that the Attorney General’s attempt to administratively write into law new grant conditions runs afoul of fundamental constitutional principles.  The Framers recognized the dangers of concentrated power in the hands of a single government branch, and thus gave the authority to impose conditions on the receipt of federal financial assistance to Congress.  The Attorney General’s coercive actions cannot be squared with the constitutional separation-of-powers principles or the Framers’ decision to give Congress the power of the purse.

The Second Circuit denied the petition for en banc review, but the plaintiffs have announced that they will seek Supreme Court review in this case.