BRIEF FOR THE PETITIONER

October 5, 2021

No. 57-482

 

IN THE

SUPREME COURT OF THE UNITED STATES

_________

Jeff sessions, attorney general Petitioner,

v.

city of Philadelphia, et al respondent. 

_________

On Writ of Certiorari to

the United States Court of Appeals

for the Third Circuit 

_________

BRIEF FOR THE PETITIONER

_________

NOEL J. FRANCISCO 

Solicitor General,

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-221

Counsel of Record

 

MICHAEL WHITE

Counsel for the Respondents

 

QUESTIONS PRESENTED

Article I of the US Constitution vests the Congress with legislative powers and limits thereto. The Article further encapsulates a system of checks and balances, founded on the longstanding doctrine of separation of powers. Article VI further enshrines the supremacy of the US Constitution and federal laws, which are binding and enforceable against all persons and all States. Further, under the Tenth Amendment, a separation between federal and State powers is created as the Article states that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Article II of the Constitution creates the Executive arm of the Government, whose main role is to enforce federal laws. 

The questions presented are:

  1. Whether Philadelphia violated Article I and Article VI when it failed to implement federal immigration law, i.e. are the City’s actions preempted by federal law; 

 

  1. Whether the Department Of Justice violated the 10th Amendment when it sought to deny cities and states all federal grant money; and 

 

  1. Whether the president exceed his authority under Article II when he issued the executive order authorizing the reallocation of federal grant money, thereby violating the separation of powers. 

TABLE OF AUTHORITIES

Cases

Arizona v. US 567 US 387 (2012)

Arizona v. Inter Tribal Council of Arizona 133 S.Ct. 2247

Dames & Moore v. Regan 453 US 654 (1981)

Gibbons v. Ogden, 1; 16 L. Ed. 23; 1824

Korematsu v. United States, 323 U.S. 214 (1944)

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). 

Mississippi v. Johnson, 71 U.S. 475 (1867),

Printz v. US 521 US 898 (1997)

South Dakota v. Dole 483 US 203 (1987) 

Trump v. Hawaii 138 S.Ct. 2392 (2018)

Statutes

Constitution [United States of America], 17 September 1787. 

Immigration and Nationality Act (8 U.S.C. ch. 12) (1952)

Illegal Immigration Reform and Immigrant Responsibility Act (Division C of Pub.L. 104–208, 110 Stat. 3009-546) (1996)

 

STATEMENT OF FACTS 

In November 2017, President Trump issued an executive order authorizing the Department of Justice to punish sanctuary jurisdictions.  In compliance with that order, the petitioner announced that sanctuary jurisdictions will lose federal Byrne Justice Assistance Grant money in 2018 if they prohibit local officials from communicating with Immigration and Customs Enforcement (ICE)

In 2017 the city of Philadelphia received $1.5 million from the federal government for local law enforcement through the grant.  However, the annual budget for the City of Philadelphia is $4.4 billion. The City of Philadelphia, nine other sanctuary cities, ten sanctuary counties, and the State of California brought suit in the federal district court of Southeastern Pennsylvania, challenging the executive order made by the President as well as the Petitioner’s enforcement of the same. 

Both the trial Court and the Court of Appeals for the Third Circuit, hence this Appeal. 

 

SUMMARY OF ARGUMENT 

The Court of Appeal’s finding that the president’s executive order was unconstitutional and so was the Petitioner’s action flies on the face of the doctrine of separation of powers and seeks to undermine powers of the President, whose exercise is necessary to protect the American people.

The State of Philadelphia violated Article I and Article VI when it failed to implement federal immigration law. States are duty bound to adhere to laws passed by the Congress and the US Constitution all authority to make immigration policy resides with the national government, and the Immigration and Nationality Act (1952) preempts all state actions on immigration policy. 

The Department Of Justice did not violate the 10th Amendment when it sought to deny cities and states all federal grant money. The federal government has the power to make decisions on distribution of funds to States and in doing so, it may impose reasonable conditions, compliance with federal laws, among others. Therefore, the Department of Justice’s decision to withhold certain grant funds was not unduly coercive or illegal.

The president did not in any way exceed his authority under Article II of the Constitution when he issued the executive order authorizing the reallocation of federal grant money. Although the doctrine of separation of separation of powers entrenches a system of checks and balances, the doctrine does not envisage a situation where the president’s dispensation of lawful authority would be impended upon. 

ARGUMENT:

The State of Philadelphia violated Article I and Article VI when it failed to implement federal immigration law

It is now settled that the federal government enjoys immense powers to regulate and come up with immigration policy. In the leading case of Arizona v. United States, 567 U.S. 387 (2012), the Supreme Court was faced with an issue as to the validity of an Arizona state law, B 1070, known as the Support Our Law Enforcement and Safe Neighborhoods Act, which prohibited non-citizens to be in Arizona without carrying the appropriate registration documents under federal law. The law further purported to authorize local officials to enforce the federal immigration laws, and imposed harsh penalties on people assisting illegal immigrants. The Court invalidated the impugned law on the basis that since Congress and the federal government had sufficient immigration laws and policies in force, the pre-emption doctrine under the Article VI allowed federal laws to prevail in any conflict with the impugned law. 

The Petitioner submits that the State of Philadelphia violated Article I and Article VI when it failed to implement federal immigration law. Since the Nationality Act (1952) grants the federal government with powers to make immigration policy, the Respondents had no power to designate themselves as “sanctuary” cities when there was no federal law granting them such power. Within the purview of the Supreme Court decision in the case of Arizona v. Inter Tribal Council of Arizona 133 S.Ct. 2247. 

As held by this Court in the landmark case of Gibbons v. Ogden, 1; 16 L. Ed. 23; 1824, whenever an inconsistency arises between State and federal action arises, the latter must prevail since State policy must be circumscribed within the letter of federal law. 

Moreover, the fact that the Respondents’ policies purport to direct the Police and Immigration Customs Enforcement (ICE) compounds the unconstitutionality of the Respondents’ policies, as was the case in Printz v. United States, 521 U.S. 898 (1997). 

The Department Of Justice did not violate the 10th Amendment when it sought to deny cities and states all federal grant money

Despite the clear constitutional division in federal and State power, the Supreme Court in the landmark case of South Dakota v. Dole 483 US 203 (1987) found that it would be permissible under the constitution for the federal government to attach conditions to funding grants to states as long as they are reasonable. In that case, the State of South Dakota had a long-standing law that set the drinking age at 19 for consumption of beer that contained up to 3.2% alcohol. Congress required states to set the minimum drinking age at 21, or lose 10% of federal funding for their highways, which condition prompted South Dakota to institute a constitutional challenge. 

In Printz, the Supreme Court considered the extent of the powers vested in the Executive branch of the federal government and the president. The Court expressed itself as follows:

“The Constitution does not leave to speculation who is to administer the laws enacted by Congress; the President, it says, “shall take Care that the Laws be faithfully executed,” Art. II, §3, personally and through officers whom he appoints (save for such inferior officers as Congress may authorize to be appointed by the “Courts of Law” or by “the Heads of Departments” who with other presidential appointees)” [Emphasis supplied]

The petitioner’s humble submission is that the allegation by the Respondents with regard to the Byrne Justice Assistance Grant is unfounded. This is because the decision to withhold some of the Philadelphia’s funds was done as a reasonable condition to compliance with federal laws and policies, as approved in South Dakota. In addition, the Department of Justice was exercising the power to withhold the funds at the behest of the President, hence no violation of the Tenth Amendment. Therefore, the Department of Justice’s decision to withhold certain grant funds was not unduly coercive or illegal.

Be that as it may, the Tenth Amendment places all residual or necessary power on the federal government and not on the state Governments. It was so held in McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819). 

The president did not exceed his authority under Article II of the Constitution when he issued the executive order authorizing the reallocation of federal grant money.

The issue is whether President Trump had the power to issue an executive order authorizing The Department of Justice to punish sanctuary jurisdictions such as the Respondents herein. The landmark case of Dames & Moore v. Regan 453 US 654 (1981) is very instructive as to the nature of the president’s powers under Article II of the US Constitution. In that case, the Supreme Court upheld President Jimmy Carter’s Executive Order 12170, which froze Iranian assets. The Court’s position was that under Article II of the US Constitution, the president had the authority to issue such an order. 

In Mississippi v. Johnson, 71 U.S. 475 (1867), the Supreme Court expressed the view that Courts should not restrain the lawful and proper exercise of executive powers by the President. 

In the same vein, the Supreme Court in the recent case of Trump v. Hawaii 138 S.Ct. 2392 (2018) held that the Immigration and Nationality Act was clear in giving the President broad authority to suspend the entry of non-citizens in the US and that the Presidential Proclamation 9645 did not violate the Constitution. The Court in that case placed heavy reliance on the authority of Korematsu v. United States, 323 U.S. 214 (1944), wherein a presidential proclamation ordering the confinement of Japanese Americans during the World War II was affirmed. 

Flowing from the above analysis, the petitioner submits that the president acted within the text and spirit on Article II by ordering the reallocation of federal grant money. 

 

CONCLUSION

For the foregoing reasons, the petitioner prays that the Judgment of the Court of Appeals for the third circuit be reversed and remanded. 

Dated: 6th December, 2018

Respectfully submitted,

 

NOEL J. FRANCISCO 

Solicitor General,

Counsel for the Appellant

 

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