THE DOJ’S INCLUSION OF IMMIGRATION-RELATED SCORING FACTORS IN IMPLEMENTING THE COPS GRANT WAS CONSTITUTIONAL AND WITHIN ITS STATUTORY AUTHORITY

Courtesy of James R. Touchstone, Esq.

In July 2019, the Ninth Circuit Court of Appeals, in City of L.A. v. Barr,[1] reversed a District Court’s summary judgment in favor of the City of Los Angeles in an action challenging the U.S. Department of Justice’s (“DOJ”) use of illegal-immigration-related factors in determining scores for applicants to a competitive grant program. In reaching its conclusion, the Court found that the DOJ did not exceed its broad authority nor violate the Constitution’s Spending Clause or Tenth Amendment.

Background

Congress enacted the Violent Crime Control and Law Enforcement Act[2] (“VCCLEA”) in 1994. The goal of the VCCLEA is to provide a range of federal assistance to state and local law enforcement. The Public Safety Partnership and Community Policing Act of 1994[3] (the “Act”), enacted as part of the VCCLEA, authorizes the DOJ to administer a competitive grant program that allocates a limited pool of funds to state and local applicants whose applications are approved by the Attorney General. The Community Oriented Policing Services (“COPS”) grant program is codified at 34 U.S.C. sections 10381 to 10389.

COPS Grant Program

The COPS grant program provides the DOJ with broad discretion to allocate grants and administer the program for twenty-three different purposes specified in Section 10381(b). Each of these purposes generally is tied to the goal of enhancing the crime prevention function of state and local law enforcement through working with the community. The DOJ is authorized to “promulgate regulations and guidelines to carry out”[4] the grant program, and can prescribe the required form and content of grant applications through regulations or guidelines.

Section 10381(c)(1) permits the DOJ to give “preferential consideration, where feasible,” on specified grounds. The DOJ may give preferential treatment to a state that has enacted certain laws designed to combat human trafficking, for example. Sections 10381(c)(2),(3)

Congress has regularly made appropriations for grants administered under this statute. The DOJ has determined that Congress intended these appropriations to be used for two of the twenty-three purposes set forth in Section 10381: (1) rehiring law enforcement officers laid off due to budget reductions for deployment in community-oriented policing,[5] and (2) “to hire and train new, additional career law enforcement officers for deployment in community-oriented policing across the Nation.”[6]

Grant Application and Application Guidelines

Within its broad discretion, the DOJ developed combined guidelines and an application form for those seeking to apply for a grant to hire or rehire officers for community-oriented policing. See COPS Office Application Attachment to SF-424 (“Application Guidelines”). The Application Guidelines define “community policing” as “a philosophy that promotes organizational strategies that support the systematic use of partnerships and problem-solving techniques to proactively address the immediate conditions that give rise to public safety issues such as crime, social disorder, and fear of crime.”

The Application Guidelines contain questions and instructions that allow an applicant to explain why it is seeking a grant and why it is best qualified to receive one. One such instruction requires that an applicant specify its law enforcement and community policing strategy, including a “crime and disorder problem/focus area.” The applicant must pick one of eight focus areas: “illegal immigrations,” “child and youth safety focus,” “drug abuse education, prevention and intervention,” “homeland security problems,” “nonviolent crime problems and quality of life policing,” “building trust and respect,” “traffic/pedestrian safety problems,” and “violent crimes problems.” The Application Guidelines for the illegal immigration focus area states – “Please specify your focus on partnering with the federal law enforcement to address illegal immigration for information sharing, [§] 287(g) partnerships, task forces and honoring detainers.”[7]

Points Scoring System

The DOJ evaluates and scores the submitted applications, then awards grant funds to the highest scoring applicants. The DOJ gives points according to statutory criteria to applicants that best demonstrate “a specific public safety need” and show an “inability to address the need without Federal assistance,” 34 U.S.C. sections 10382(c)(2), (c)(3), and to applicants that best “explain how the grant will be utilized to reorient the affected law enforcement agency’s mission toward community-oriented policing or enhance its involvement in or commitment to community-oriented policing,” id. Section 10382(c)(10). The DOJ also scores applicants on how their proposals relate to that year’s federal goals.

In 2017, the DOJgave additional points to applicants that focused on the federal priority areas of homeland security, violent crime, and illegal immigration. An applicant could also in 2017 choose to receive additional points by submitting a “Certification of Illegal Immigration Cooperation” (the “Certification”) in which the applicant agreed that (1) the applicant will implement rules, regulations, or practices ensuring DHS personnel access to the applicant’s correctional or detention facilities in order to meet with an alien, and (2) the applicant will implement rules, regulations, policies, or practices to ensure that the entity’s correctional or detention facilities provide notice “as early as practicable (at least 48 hours, where possible) to DHS regarding the scheduled release” of an alien in custody.

2017 Grant Cycle and Los Angeles Application

DOJ received more requests for funding than it was able to grant in the 2017 grant cycle. While applicants requested almost $410 million, Congress had allocated roughly $98.5 million in grant funding. A total of 90 large jurisdictions and 1,029 small jurisdictions applied. DOJ awarded grant funds to 30 large jurisdictions and 149 small jurisdictions. An applicantdid not need to select the illegal immigration focus or submit the Certification to receive funds. Of the seven applicants that chose illegal immigration as a focus area, only one large jurisdiction and one small jurisdiction received an award. Of the successful applicants, only 19 of the 30 large jurisdictions and 124 of the 149 small jurisdictions received bonus points for submitting the Certification.

Los Angeles submitted an application for COPS funding in 2017 but did not achieve a high enough score and was not successful in securing any funding. Los Angeles chose “building trust and respect” as its focus area and chose not to submit the Certification.

In September 2017, Los Angeles filed a complaint to enjoin DOJ’s practice of awarding points to applicants that chose the illegal immigration focus area and to applicants that completed the Certification. Los Angeles argued that these two elements of DOJ’s scoring system were unlawful because they (1) violated the United States Constitution’s Spending Clause, (2) violated constitutional principles of separation of powers and exceed DOJ’s lawful authority, and (3) were arbitrary and capricious under the Administrative Procedure Act. The District Court agreed on each of the city’s claims, and entered a permanent injunction against the challenged practices. The DOJ appealed.

Discussion

The Ninth Circuit initially held that the appeal was not moot because although there was no longer a live controversy regarding the 2017 grant program, the situation was an “exceptional situation[]” that was “capable of repetition yet evading review.”[8] The Court explained that any one grant cycle was too short to provide for meaningful review[9] prior to the end of the cycle, and that Los Angeles was likely to repeat its application for a DOJ grant in the future as it had done in the prior two consecutive years.

The Court also held that Los Angeles had standing to bring the appeal. Los Angeles stated that it “has made a longstanding decision that it can best protect public safety by not participating in federal civil immigration enforcement.” Los Angeles claimed it was thus disadvantaged compared to other applicants that had such options when the city applied for the grant, which constituted a concrete and particularized injury. The Court concluded that Los Angeles’s competitive disadvantage was slight, but sufficient to meet the required low threshold to give Los Angeles standing in this action.

Turning to the merits, the Court explained that neither choosing the illegal immigration focus area nor submitting the Certification are prerequisites to receiving COPS grant funding, and many applicants who received grants did not make these illegal-immigration-related choices. Moreover, a number of applicants who chose the illegal immigration focus area or submitted the Certification did not receive a grant. The Ninth Circuit then addressed each of Los Angeles’s three claims challenging DOJ’s points system pertaining to the illegal immigration focus area and the Certification.

Spending Clause Claim

The Court explained that the Spending Clause[10] empowers Congress “to grant federal funds to the States, and may condition such a grant upon the States’ ‘taking certain actions that Congress could not require them to take.’“ Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 576 (2012) (“NFIB”) (quoting Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 686 (1999)). Although Congress has broad power to attach conditions to the receipt of federal funds, the power is not unlimited. South Dakota v. Dole, 483 U.S. 203, 207 (1987). First, “[t]he exercise of the spending power must be in pursuit of the general welfare.” Id. (internal quotation marks omitted). Second, Congress must impose such conditions in an unambiguous manner that enables the States “to exercise their choice knowingly, cognizant of the consequences of their participation.” Id. (alteration in original; internal citation omitted).

Moreover, the federal government may not attach conditions to the receipt of federal funds if “the financial inducement offered by Congress might be so coercive as to pass the point at which pressure turns into compulsion,” Dole, 483 U.S. at 211 (internal quotation marks omitted). In South Dakota v. Dole, Congress encouraged states to adopt a minimum drinking age of twenty-one years by warning states that failure to do would result in a five percent cut to their federal highway funding. Id. at 211. The SupremeCourt in Dole held this was only “relatively mild encouragement to the States,” and therefore “a valid use of the spending power.” Id. at 211-12.

Here, the Ninth Circuit found that DOJ’s method of extra points allocation to applicants that chose an illegal immigration focus or that agreed to the Certification at most, “encourage[d]” applicants to focus on these federal priorities. The Court found that the “mild encouragement” directly reducing funds to a state in Dole was nonetheless far greater than the “coercion” here, because a COPS grant applicant was free to choose other focus areas or not to apply for a grant at all. The Court also noted that many applicants received funding without selecting illegal immigration or signing the Certification, hardly indicative of conditions that were “so coercive.”

The Court found that DOJ did not impose surprise or ambiguous conditions on recipients of the funds becausethe immigration-related conditions were clearly presented in the Application Guidelines and Certification. Accordingly, the Ninth Circuit rejected Los Angeles’s Spending Clause argument.

Separation of Powers Claim

The Ninth Circuit also rejected the city’s claim that DOJ’s use of the factors infringes on state autonomy in a manner that raises Tenth Amendment concerns. As mentioned, the Court had concluded that DOJ’s scoring factors encourage, but do not coerce, an applicant to cooperate on illegal immigration matters. The Court explained that here, contrary to Los Angeles’s argument, DOJ’s decision to give additional points according to the two illegal immigration criteria did not constitute any superseding of state laws and therefore did not give rise to any Tenth Amendment concern.

Claim DOJ Exceeded Its Statutory Authority

When Congress has “explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984). “Such legislative regulations are given controlling weight unless they are arbitrary, capricious or manifestly contrary to the statute.” Id. at 844. There is a “‘high threshold’ for setting aside agency action.” Alaska Oil & Gas Ass’n v. Jewell, 815 F.3d 544, 554 (9th Cir. 2016) (quoting River Runners for Wilderness v. Martin, 593 F.3d 1064, 1067, 1070 (9th Cir. 2010)).

The Ninth Circuit explained that this highly deferential standard is applicable to the DOJ and its statutory authority pertaining to the COPS grant here: DOJ has broad authority to promulgate regulations and guidelines to carry out the Act, is authorized to administer the grant program, and to prescribe the application’s form and required information by way of the Application Guidelines. Thus, the Court determined, DOJ’s inclusion of the illegal immigration focus area and use of the Certification was given “controlling weight unless they are arbitrary, capricious or manifestly contrary to the statute.”

The Court explained that DOJ’s inclusion of immigration-related scoring factors as a component of its implementation of its grant program was well within DOJ’s broad authority to carry out the Act. The Court also observed that nothing in the Act prohibited DOJ from allocating federal funds to focus on problems raised by the presence of illegal aliens within state or local jurisdictions.

The Court also held that because Congress through the Act did not define “community-oriented policing” or specify what methods are “community-oriented, the Court must defer to DOJ’s interpretation a so long as it “reflects a plausible construction of the plain language of the statute and does not otherwise conflict with Congress’[s] expressed intent.” Glacier Fish Co. v. Pritzker, 832 F.3d 1113, 1120-21 (9th Cir. 2016) (internal citations omitted). Here, the Court deemed DOJ’s interpretation permissible, because it reasonably construed the statutory language (“community-oriented” and “policing”) and was consistent with the statute’s purposes. Accordingly, the Ninth Circuit held that DOJ did not exceed its statutory authority in awarding bonus points to applicants that selected the illegal immigration focus area or that agreed to the Certification.

APA Violation Claim

Los Angeles also claimed DOJ violated the Administrative Procedures Act (“APA”) because DOJ failed to engage in reasoned decision-making and because its explanation for its policy was contrary to theevidence before it when it decided to give points for adopting the illegal immigration focus and submitting the Certification.

“One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). The agency need provide only a “minimal level of analysis” to avoid its action being deemed arbitrary and capricious. Id.

In Arizona v. United States, 567 U.S. 387 (2012), the Supreme Court noted that “[a]ccounts in the record suggest there is an ‘epidemic of crime, safety risks, serious property damage, and environmental problems’ associated with the influx of illegal migration across private land near the Mexican border.” Id. at 398. The Ninth Circuit here observed that Congress had also expressed concern about “increasing rates of criminal activity by aliens.” Demore v. Kim, 538 U.S. 510, 518 (2003). Thus, the Supreme Court and Congress had acknowledged that illegal immigration can present a public safety issue, lending support to the DOJ’s decisions.

Based on the Court’s analysis, the Ninth Circuit Court of Appeals held that DOJ’s use of the two scoring factors was well within its statutory discretion, was APA-compliant, and complied with the constitutional restrictions imposed on congressional action under principles of federalism and the Spending Clause. Accordingly, the Court reversed the District Court’s grant of summary judgment to Los Angeles.

Dissent

Judge Wardlaw dissented, arguing that Congress’s purpose in enacting the Act was to increase the number of “cops on the beat” and to create “community partnerships” between police officers and the communities they serve. Justice Wardlaw asserted that Congress did not contemplate general policing when devoting funds for community-oriented policing, a term well understood by Congress in 1994 to connote partnering with the community. She said Congress certainly did not contemplate federal immigration enforcement when it attempted to reduce crime by adding “cops on the beat.” Thus, Judge Wardlaw would hold that DOJ exceeded its delegated powers to administer the COPS grant program, and she would, therefore, affirm the District Court’s order.

HOW THIS AFFECTS YOUR AGENCY

It should be noted that the Court made clear that many of the applicants for the COPS grant did not choose illegal immigration as a focus area or submit the required Certification and yet received grants. Also, agencies that did submit the Certification or select the illegal immigration as their focus area did not receive grants. According to the Court, the DOJ set up a system, within their authority, that did not penalize applicants for not making one of these two choices; it encouraged applicants in this direction by allotting additional points. As the Court sanctioned this approach for the award of the COPS grant, it can reasonably be anticipated that the DOJ may repeat this scoring methodology in other federal grant applications to encourage cooperation by State and local governments with federal illegal immigration enforcement goals.  As such, failure to promote cooperation with federal officials regarding illegal immigration goals may permissibly result in the loss of grant funding in the future for jurisdictions that choose not to do so.

As always, if you wish to discuss this matter in greater detail, please feel free to contact James R. Touchstone at (714) 446–1400 or via email at jrt@jones-mayer.com.

Information on www.jones-mayer.com is for general use and is not legal advice.  The mailing of this Client Alert Memorandum is not intended to create, and receipt of it does not constitute, an attorney-client-relationship.


[1] City of L.A. v. Barr, 2019 U.S. App. LEXIS 20706 (9th Cir. July 12, 2019).

[2] 108 Stat. 1796.

[3] 108 Stat. 1807.

[4] Section 10388.

[5] 34 U.S.C. section 10381(b)(1).

[6] 34 U.S.C. section 10381(b)(2).

[7] An “immigration detainer” is issued by the Department of Homeland Security (DHS) to advise another law enforcement agency that DHS seeks custody of an alien for arrest and removal, and serves as “a request that such agency advise the Department, prior to release of the alien, in order for the Department to arrange to assume custody, in situations when gaining immediate physical custody is either impracticable or impossible.” 8 C.F.R. § 287.7(a).

[8] Kingdomware Techs., Inc. v. United States, 136 S. Ct. 1969, 1976 (2016) (quoting Spencer v. Kemna, 523 U.S. 1, 17 (1998))

[9] In 2017, the grant cycle, from DOJ’s announcement of the scoring criteria to the awarding of the grants, was three months.

[10] U.S. Const. art. I, section 8, cl. 1.