Petitions of the week: Federal funding for sanctuary cities and another dispute about the border wall

This week we highlight cert petitions that ask the Supreme Court to delve further into contentious issues of immigration policy. One group of cases challenges the Trump administration’s attempt to crack down on so-called sanctuary cities. Another case involves certain construction projects that are part of the U.S.-Mexico border wall. If the justices take up the border-wall case, it will be the second case added to the court’s docket this term involving the legality of border-wall construction.

Three petitions ask the justices to review disputes between the Department of Justice and state or local governments that do not cooperate with federal immigration authorities. The disputes involve the Edward Byrne Memorial Justice Assistance Grant program, the largest source of federal funds for state and local criminal-justice efforts.

In 2017, the Department of Justice adopted three conditions for program eligibility, which the department describes as notice, access and certification. The notice condition requires state and local governments to adopt policies to ensure that jailed and other detention facilities provide, upon request by the Department of Homeland Security, advance notice of the scheduled release date and time for particular noncitizens. The access condition requires policies to give federal authorities access to detention facilities to meet with noncitizens. Finally, the certification condition requires grant recipients to certify compliance with 8 U.S.C. § 1373, which generally bars state and local governments from restricting the sharing of “information regarding the citizenship or immigration status … of any individual” with federal immigration authorities.

In Barr v. City and County of San Francisco, California, the Department of Justice seeks review of a decision by the U.S. Court of Appeals for the 9th Circuit that the department lacked authority to impose the notice and access conditions. In addition, the 9th Circuit concluded that the department may not withhold the funds from California and the city and county of San Francisco for noncompliance with the certification condition because their “sanctuary laws do not violate 8 U.S.C. § 1373.” In New York v. Department of Justice and City of New York v. Department of Justice, after a district court ruled for the challengers, the U.S. Court of Appeals for the 2nd Circuit reversed and allowed the conditions. New York City, New York state and several other states seek review of that decision.

In October, the Supreme Court agreed to hear oral argument in Trump v. Sierra Club, a dispute over the funding for portions of President Donald Trump’s border wall. That case involves the administration’s transfer of funds between Department of Defense appropriations accounts under Section 8005 of the Department of Defense Appropriations Act. In November, the administration filed a separate cert petition, also called Trump v. Sierra Club, on a slightly different border-wall issue. The new petition concerns whether a president’s declaration of a national emergency authorizes the secretary of defense to “undertake military construction projects … not otherwise authorized by law that are necessary to support such use of the armed forces” under 10 U.S.C. § 2808. In both cases, the U.S. Court of Appeals for the 9th Circuit ruled against the administration.

These and other petitions of the week are below:

Birt v. United States
20-291
Issue: Whether the term “covered offense” in the First Step Act of 2018 includes violations of 21 U.S.C. § 841(a) involving crack cocaine to which apply the penalties in Subparagraph (b)(1)(C) (as the U.S. Courts of Appeals for the 1st, 4th and 7th Circuits have determined) or not (as the U.S. Courts of Appeals for the 3rd, 6th, 10th and 11th Circuits have held).

Thompson v. Clark
20-659
Issues: (1) Whether the rule that a plaintiff must await favorable termination before bringing a Section 1983 action alleging unreasonable seizure pursuant to legal process requires the plaintiff to show that the criminal proceeding against him has “formally ended in a manner not inconsistent with his innocence,” as the U.S. Court of Appeals for the 11th Circuit decided in Laskar v. Hurd, or that the proceeding “ended in a manner that affirmatively indicates his innocence,” as the U.S. Court of Appeals for the 2nd Circuit decided in Lanning v. City of Glens Falls; and (2) whether, when a Section 1983 plaintiff brings a Fourth Amendment claim for unlawful warrantless entry of his home and the government pursues a justification of exigent circumstances, the government has the burden to prove exigency existed (as the U.S. Courts of Appeals for the 3rd, 6th, 9th and 10th Circuits have held), or whether the plaintiff has to prove its non-existence (as the U.S. Courts of Appeals for the 2nd, 7th and 8th Circuits have held).

Barr v. City and County of San Francisco, California
20-666
Issues: (1) Whether the Department of Justice has statutory authority to impose notice and access conditions on grantees that accept Edward Byrne Memorial Justice Assistance Grant awards, a program that provides millions of dollars in financial assistance to law enforcement; and (2) whether the department may withhold Byrne JAG funds from the city and county of San Francisco, California for noncompliance with 8 U.S.C. 1373, which generally bars state and local governments from restricting the sharing of “information regarding the citizenship or immigration status … of any individual” with federal immigration authorities.

Trump v. Sierra Club
20-685
Issues: (1) Whether the Sierra Club has a cognizable cause of action to obtain review of the secretary of defense’s compliance with 10 U.S.C. § 2808 in reprioritizing appropriated but unobligated funds for the military construction projects involving border barriers being authorized; and (2) whether the secretary exceeded his statutory authority under Section 2808 in reprioritizing appropriated funds for the military construction projects following the president’s declaration of a national emergency requiring the use of the armed forces at the southern border.

New York v. Department of Justice
20-795
Issue: Whether Congress authorized the Department of Justice to condition funding for the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) program — which sets aside funds for state and local criminal justice priorities — on acceptance of DOJ’s new requirements that state and local government grant recipients (1) respond to ad hoc requests from federal officials for the release dates of non-citizens in grantees’ custody, (2) provide federal agents with access to grantees’ jails and police stations in order to question suspected non-citizens, and (3) certify compliance with 8 U.S.C. § 1373, which purports to prohibit state and local governments from regulating when their employees may share information with federal officials regarding a person’s citizenship or immigration status.

City of New York v. Department of Justice
20-796
Issue: Whether Congress authorized the Department of Justice to condition funding for the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) program — which sets aside funds for state and local criminal justice priorities — on acceptance of DOJ’s new requirements that state and local government grant recipients (1) respond to ad hoc requests from federal officials for the release dates of non-citizens in grantees’ custody, (2) provide federal agents with access to grantees’ jails and police stations in order to question suspected non-citizens, and (3) certify compliance with 8 U.S.C. § 1373, which purports to prohibit state and local governments from regulating when their employees may share information with federal officials regarding a person’s citizenship or immigration status.