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Thread: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Quote Originally Posted by NWRatCon View Post
    9th Circuit rules in favor of Trump admin in 'sanctuary city' case. While the headline is a bit misleading, I posted in this thread because of the rationale of the panel Majority and the Dissent. The case, Los Angeles v. Barr is important for a few reasons. First, it gave the administration a court victory. Second, it demonstrated that court ideologues will use even disfavored doctrine (Chevron) when it suits their interests. Third, it further erodes the authority of Congress. Finally, it demonstrates that Mitch McConnell is right - the power of appointment can invalidate any other legislative interest.
    During the Kavanaugh hearings-what were the claims concerning BK concerning the Chevron Doctrine?
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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Quote Originally Posted by TurtleDude View Post
    During the Kavanaugh hearings-what were the claims concerning BK concerning the Chevron Doctrine?

    I don't know what he said during the hearings but he seemed to have written extensively about it....

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Quote Originally Posted by Moot View Post
    I don't know what he said during the hearings but he seemed to have written extensively about it....

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    I appreciated reading Justice Kavanaugh's piece, as it illustrated a point I tried to make, perhaps inartfully, earlier. As Justice (then Judge) Kavanaugh put it "courts should seek the best reading of the statute by interpreting the words of the statute, taking account of the context of the whole statute, and applying the agreed-upon semantic canons." That really is the gist of my complaint. The panel, instead, used the most convenient reading to reach their goal, rather than the obvious, or best, reading. By using Chevron as they did, they succumbed to the vice Kavanaugh warned of: "the current situation in statutory interpretation, as I see it, is more akin to a situation where umpires can, at least on some pitches, largely define their own strike zones."

    In an earlier post, our friend maxparrish noted that Printz v. United States "stated that the Framers designed the Constitution to allow Federal regulation of international and interstate matters, not internal matters reserved to the State Legislatures. (Note that immigration is not merely an internal matter.)" And this is exactly where the court went off the rails. The "best reading" of the COPS statute is that it is intended to bolster the "internal matters" of local jurisdictions (community policing). Immigrating enforcement, as noted, is not an "internal matter" at all, but exclusively a federal matter, as the Court ruled in Arizona (cited earlier), so it had no place in the criteria the Attorney General created for the grant program. The Attorney General had (over) broad discretion, but it wasn't actually that broad. Indeed, in the panel's view, there would be no limits on the Attorney General's discretion at all, and that alone would preclude application of Chevron, which is predicated on the Legislature having given guidance to the agency sufficient to identify the parameters of that discretion.
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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Quote Originally Posted by NWRatCon View Post
    Oh good Lord! This transient decision is not worth a lot of effort, ...

    1. What do you think the Chevron standard is? Is it, as here, the end of analysis (complete deference), or is it a framework?

    2. Is such complete deference consistent with the bulk of Ikuta's other work, or, more significantly, Bybee's? (Short answer, no. Which is why I noted it.)
    I see no reason to open the door to an argument over of the Chevron standard when you have yet to explain what the specific differences in theory and usage are between analysis by "framework" vs. "complete deference". Moreover, you have not demonstrated that the recent decision solely relied on one of those as yet undefined standards for their opinion nor that its use in this opinion was inconsistent with Ikuta or Bybee's other bench opinions (as opposed to their writings). (And, by the way, have you looked at the dissenting judge and her "consistency"?).

    As I stated earlier, whatever the judicial beliefs are of jurists, lower court judges are expected to follow current doctrine - which, for example, is why Bork never had any of his hundreds of appeals court rulings overturned. On the other hand, we know from his legal writings that had he been on the Supreme Court his judicial philosophy would not be so constrained, and would have overturned several doctrines. Would you complain that he stayed within doctrine as a lower court judge?

    By the way, I make it a policy to not reply to characterizations unless the person doing the characterizing has provided an objective definition and explanation of what they actually mean.

    ... I wasn't asserting that it was as coercive as the scheme in Printz, but that the goal of the Attorney General was to create an incentive to comply. The background is that the Attorrney General's previous effort to simply withhold already granted funds was prohibited by the court. This scheme was an end-around of that decision. That background is important.
    If the issue is not motivation, but the process used for determining grant funding, then background on motivation is irrelevant. The first attempt was to deny grant money after the applicant had complied and won, clearly a different process than the second which awarded based on upfront factors considered for competitive approval. Hence the motivations are moot.

    ... What is the purpose of the COPS program? Is it to I federal law enforcement programs? No. I agree when you say (paraphrased) "the statue is not particularly vague." It's not. Nowhere in the statute or its legislative history is there any mention of such intention. The closest is creating capability to coordinate with federal anti-terror efforts. The entire gravamen of the program is to enhance local police jurisdictions' ability to pursue their own community policing programs (it's in the name). ...One can quibble with whether that is a legitimate federal goal, but you can't deny that is the program's purpose, and not the Attorney General's.

    Instead, the Attorney General used admittedly vague and overbroad language to create, out of whole cloth,... a new purpose for the funds [while also using the power of the purse to punish those jurisdictions that defied him]. Is that within his authority?
    First, the purpose of law is a secondary consideration, used when there is unresolved generally understood meaning in the text. A judge should first looks the text for what it says. If it is unambiguous in what it does and does not authorize, and does not conflict with other law or with previously accepted legal doctrine, nor create impossible results, then the reputed purpose becomes less important - even irrelevant.

    Second, I don't see a conflict in text, authorization, or purpose. For example, it is unambiguous in that it explicitly authorizes that:


    "SEC. 1701. AUTHORITY TO MAKE PUBLIC SAFETY AND COMMUNITY POLICING
    GRANTS.
    ``(a) Grant Authorization.--The Attorney General may make grants to States, units of local government, Indian tribal governments, other
    public and private entities, and multi-jurisdictional or regional consortia thereof to increase police presence, to expand and improve
    cooperative efforts between law enforcement agencies and members of the community to address crime and disorder problems, and otherwise to enhance public safety." [cont]
    Cont...
    Last edited by maxparrish; 07-15-19 at 03:09 PM.

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Cont...

    ``(d) Additional Grant Projects.--Grants made under subsection (a)
    may include programs, projects, and other activities to--

    ``(5) develop and implement innovative programs to permit members of the community to assist State and local law enforcement
    agencies in the prevention of crime in the community,...

    ``(7) establish and implement innovative programs to increase and enhance proactive crime control and prevention programs
    involving law enforcement officers and young persons in the community;...

    ``(8) develop and establish new administrative and managerial systems to facilitate the adoption of community-oriented policing
    as an organization-wide philosophy;

    ``(9) establish, implement, and coordinate crime prevention and control programs (involving law enforcement officers working with
    community members) with other Federal programs that serve the community and community members to better address the comprehensive
    needs of the community and its members;...
    You may quibble that you don't like policing and coordination that includes federal concerns that may or may not match local concerns, or that Congress intentionally permitted the AG to define the methodology and expert considerations, but like almost all administrative authorization statutes, so it was granted. If the majority opinion is wrong, then 90 percent of the administrative state legislation is wrong.

    No, but "honey badger don't care," and neither did the panel. The footnote and accompanying section of the opinion do not change that, they're just an elaborate and obvious effort to paper over the reality. That there are other, authorized, criteria is meaningless when "One of these things is not like the others." Nor is the imperfect fit between the AG's intent and the result (but it's at least a close fit... most of the jurisdictions got the message).
    Oh now, that's just frustrated blather. The footnote clearly showed that scoring was based on those factors that the AG office thought was important, and that was the framework and design of the legislation. Declaring it "unauthorized" requires an interpretational scheme that precludes general authorization in the text. What might that be? A judge's freelancing divination of "subjective intent" on specifics?

    Ironically, you and I probably would agree on the general lack of merit in both the Gundy majority opinion and this opinion if it weren't for the ideological purpose it serves. That, in a nutshell, is my complaint. "Chevron deference" is a tool used by judges to approve ideological results that comport with their desired outcomes, but ignored when it suits their judicial activist whims. Scalia was notorious for that. It's the hypocrisy I detest. (By the way, I don't disagree about Gorsuch. That was never my point.)
    Actually I have no idea if we would agree BECAUSE I am unclear on Gorsuch's reasoning. Obviously I'd like to agree with Gorsuch and I'd like the separation of powers to force Congress to take control of legislation, rather than pawn off excessive rule making to the nomenklatura. HOWEVER Gorsuch is unclear to me on how that is determined...I don't see an objective methodology that defines when rules do or do not take "all legislative power" from Congress.

    We may agree on desired outcome in Grundy, but in my view the ends do not justify the legal means. Till I figure out Gorsuch's litmus test, those means remain suspect.
    Last edited by maxparrish; 07-15-19 at 03:10 PM.

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Quote Originally Posted by NWRatCon View Post
    9th Circuit rules in favor of Trump admin in 'sanctuary city' case. While the headline is a bit misleading, I posted in this thread because of the rationale of the panel Majority and the Dissent. The case, Los Angeles v. Barr is important for a few reasons. First, it gave the administration a court victory. Second, it demonstrated that court ideologues will use even disfavored doctrine (Chevron) when it suits their interests. Third, it further erodes the authority of Congress. Finally, it demonstrates that Mitch McConnell is right - the power of appointment can invalidate any other legislative interest.
    It's been a loooooong time since I dealt with anything related to Chevron deference, but it's "disfavored" now? Really?

    I recall it being one of the pillars of administrative law. At least, if we're talking about Chevron v. NRDC: defer to an agency's interpretation so long as congress hasn't spoken to the issue. I mean...executive agencies basically don't work if, for example, congress would have to speak directly to everything before the agency could apply an interpretation. The entire point is that congress critters cannot become experts in every last thing they legislate on, so they delegate some legislative/judicial authority to an agency, which then fills in the blanks in law via rulemaking, enforced in later adjudications.

    I thought it was narrowed over time, not generally disfavored. Something about only deferring to interpretations resulting from following various APA's mandated procedures re: rulemaking/adjudication.



    Kind of a tangent but I'm curious why you used "disfavored" specifically. As far as I know, it's there and very much favored...it's just not as broad anymore.

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Quote Originally Posted by Mr Person View Post
    Kind of a tangent but I'm curious why you used "disfavored" specifically. As far as I know, it's there and very much favored...it's just not as broad anymore.
    I meant, really, disfavored by the conservative judiciary that want to interfere with agency actions. That is, really, my complaint here. "Chevron deference" is exactly the kind of interpretive legerdemain that Judge Kavanaugh was prone to rail against in his earlier career when it is used, as here, as a "cop out" from considering the merits of a claim - that is, when it allows a judge to manipulate the playing field. That is a separate issue, substantially, from the one I have been discussing with Max about the legislative intent and language of the statute.
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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    I read the lawsuit and it said the grant has expired which rendered L.A.'s lawsuit moot. The court decided to go ahead make a ruling anyway because they figured this kind of case was bound to come up again.

    I'm not sure L.A. had standing because other cities that said they would follow federal rules on immigration and didn't get a grant whereas other cities made no mention of immigration and they did a grant.

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Quote Originally Posted by Moot View Post
    I'm not sure L.A. had standing because other cities that said they would follow federal rules on immigration and didn't get a grant whereas other cities made no mention of immigration and they did a grant.
    I don't want to get into speculative areas, here (I speculate enough) about whether there were other manipulations of the process, but the pertinent portion of the majority opinion is this:
    From a total applicant pool of 90 large jurisdictions and 1,029 small jurisdictions, DOJ awarded grant funds to 30 of the large jurisdictions and 149 of the small jurisdictions. An applicant did 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.
    It is significant that the majority did not mention of how many applicants overall (successful and not), submitted the "certification", which was the DOJ's primary goal in changing the criteria - but the dissent did.
    Approximately 39% of the large jurisdictions and 47% of the small jurisdictions submitted the Cooperation Certification.
    THAT is the relevant analysis, as it is what informs most discrimination claims (differential effect). [I hadn't delved deeply into the opinion because I didn't plan to do an in-depth analysis, I was just struck by the contrast in approach/lineup between the LA and Gundy decisions. That's what "tripped my trigger."]

    So, 124 of 149 successful small-jurisdictions did - 83% compliance (vs 47% overall); and for large jurisdictions that ratio is 63% vs 39%. THAT is the relevant calculation, in my opinion.

    It is significant that the overwhelming majority of jurisdictions that got grants were "cooperative". Los Angeles' claim was
    that when it applied for a grant, it was disadvantaged relative to other applicants that were able to choose the illegal immigration focus area or complete the Certification, and this inability to compete on an even playing field constitutes a concrete and particularized injury.
    Especially as "DOJ did not offer applicants equal points for conduct comparable to agreeing to the Certification". In the context of "sanctuary cities" it would be relevant to know whether any of the so-called sanctuary cities actually received any grants, as presumably they would not have submitted the certification. But, that determination was apparently beyond the scope of the court's analysis.

    Overall, I agree with Judge Laidlaw's approach and conclusion (as is apparent) that "DOJ exceeded its statutory authority specifically by giving preference to jurisdictions willing to partner with federal immigration enforcement authorities." That this criteria affected the award of grants is statistically demonstrable - jurisdictions that provided the certification nearly doubled their chances to be awarded a grant. Moreover, as the dissent noted, DOJ's added criteria actually runs counter to the fundamental purpose of the COPS program (community policing):
    The Seventh Circuit has similarly recognized that the Cooperation Certification’s notice and access requirements could result in under-reported crime and thereby undermine public safety:
    [P]ersons who are here unlawfully—or who have friends or family members here unlawfully—might avoid contacting local police to report crimes as a witness or a victim if they fear that reporting will bring the scrutiny of the federal immigration authorities to their home. . . . [T]he reluctance to report . . . could be magnified in communities where reporting could turn a misdemeanor into a deportation. And the failure to obtain . . . cooperation could both hinder law enforcement efforts and allow criminals to freely target communities with a large undocumented population, knowing that their crimes will be less likely to be reported.
    City of Chicago, 888 F.3d at 280.
    [But then, that is what many of the Trump administration's efforts are aimed at - terrorizing immigrant (legal and not) communities. E.g., the announcement of "ICE raids"; indefinite detention in inhumane (and illegal) conditions; asking citizenship questions to alter the census count. This is just another example of that.]
    Last edited by NWRatCon; 07-16-19 at 02:21 PM.
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