Updated at 5:50 p.m. ET
The U.S. Justice Department, in a letter Thursday to the U.S. Court of Appeals for the Seventh Circuit, threatened to go to the U.S. Supreme Court if the appellate court doesn’t rule by Monday on the government’s effort to block a nationwide injunction that restricts the power of the department to deny certain funds to so-called sanctuary cities.
Top Justice Department officials, including U.S. Attorney General Jeff Sessions, have railed on the abundance of nationwide injunctions imposed on Trump administration policies. The U.S. Supreme Court, in the government’s travel-ban case, Trump v. Hawaii, has a chance to weigh in on the propriety of these types of injunctions. The court heard arguments in April.
The Seventh Circuit on Thursday evening refused to issue an immediate ruling on the government’s request to put the injunction on hold.
“The court has decided to await the Supreme Court’s resolution of Trump v. Hawaii, which we anticipate will occur in the coming weeks,” the appeals court said in an order. “Because that case raises similar issues, we expect that the court’s opinion may facilitate our disposition of the pending motions.”
A three-judge panel of the Seventh Circuit on April 19 upheld the district court injunction in Chicago v. Sessions. The trial court had blocked the enforcement of two conditions that the Justice Department imposed on local governments seeking federal funds under the Byrne Memorial Justice Assistance Grant Program.
The appellate panel concluded the Justice Department did not have authority to impose those conditions. Judge Ilana Rovner, writing for the panel, said: “The attorney general in this case used the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement. But the power of the purse rests with Congress, which authorized the federal funds at issue and did not impose any immigration enforcement conditions on the receipt of such funds. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power.”
Senior Judge Daniel Manion said the Justice Department lacked power to impose conditions on the grants, but he objected to the nationwide injunction. He said the injunction should have been limited to Chicago and not been extended nationally.
The Justice Department sought a rehearing by the full Seventh Circuit and renewed its motion to freeze the injunction. On June 4, the full Seventh Circuit said it would take up the question of whether the district court was wrong to grant a nationwide injunction.
Although the injunction only blocks the imposition of two conditions for receiving the grants, the Justice Department told the appeals court Thursday that it has withheld the award of grant funds to an estimated 1,000 applicants.
“Because the department believes that it has the lawful authority to impose the conditions and that the conditions serve important purposes, we have awaited the results of these proceedings before issuing the grant funds, which would otherwise have been issued last fall,” the Justice Department’s Katherine Twomey Allen told the circuit court.
Allen added: “Given the importance to the government of issuing the grants to the jurisdictions throughout the nation that have been delayed in receiving them because of the nationwide injunction in this case, we respectfully request that this court rule on our stay motion by the close of business on June 18, 2018. If it has not done so, the Solicitor General has determined that we will promptly seek relief from the Supreme Court.”
Lawyers for Chicago were not immediately reached for comment Thursday. The city is represented by its city attorney office, and additionally by a pro bono team from Wilmer Cutler Pickering Hale and Dorr. including partners Jamie Gorelick, David Ogden and Debo Adegbile.
The Justice Department’s letter to the appeals court is posted below:
Update: This report was updated to include a response from the Seventh Circuit.