CLOSE X
RSS Feed LinkedIn Instagram Twitter Facebook
Search:
FMG Law Blog Line

Posts Tagged ‘federal government’

“Sanctuary Cities” Get a Reprieve For Now

Posted on: January 10th, 2019

By: Pamela Everett

As many city, county and state attorneys are aware, in 2017 the US. Department of Justice (DOJ) added three conditions to the application process for the Edward Byrne Memorial Justice Assistance Grant (“Byrne JAG”) program in an effort to eliminate so called sanctuary cities. The Byrne JAG program originated from the Omnibus Crime Control and Safe Streets Act of 1968,  which created grants to assist the law enforcement efforts of state and local authorities. Under the Byrne JAG program, states and localities may apply for funds to support criminal justice programs in a variety of categories, including law enforcement, prosecution, crime prevention, corrections, drug treatment, technology, victim and witness services, and mental health.

The first condition, called the “Notice Condition” requires grantees, upon request, to give advance notice to the Department of Homeland Security of the scheduled release date and time of aliens housed in state or local correctional facilities. The second condition, called the “Access Condition,” requires grantees to give federal agents access to aliens in state or local correctional facilities in order to question them about their immigration status. The third condition, called the “Compliance Condition” requires grantees to certify their compliance with 8 U.S.C. § 1373, which prohibits states and localities from restricting their officials from communicating with immigration authorities regarding anyone’s citizenship or immigration status. Grantees are also required to monitor any subgrantees’ compliance with the three conditions, and to notify DOJ if they become aware of credible evidence of a violation of the Compliance Condition. Additionally, all grantees must certify their compliance with the three conditions, which carries the risk of criminal prosecution, civil penalties, and administrative remedies. The DOJ also requires the jurisdictions’’ legal counsel to certify compliance with the conditions.

A number of jurisdictions have sued the DOJ and the U. S. Attorney General regarding these new conditions and sought a nationwide injunction; however, so far, none have  been successful in obtaining a nationwide injunction.  Recently a partial win was handed to the states of New York, Connecticut, New Jersey, Rhode Island, Washington, and Commonwealths of Massachusetts and Virginia and the City of New York. The States and the City challenged the imposition of the three conditions on five bases: (1) the conditions violates the separation of powers, (2) the conditions were ultra vires under the Administrative Procedure Act (“APA”), (3) the conditions were not in accordance with law under the APA, (4) the conditions were arbitrary and capricious under the APA, and (5) § 1373 violated the Tenth Amendment’s prohibition on commandeering.  This case challenged the authority of the Executive Branch of the federal government to compel states to adopt its preferred immigration policies by imposing conditions on congressionally authorized funding to which the states are otherwise entitled.

While the court held that the plaintiffs did not make a sufficient showing of nationwide impact to demonstrate that a nationwide injunction was necessary to provide relief to them, it did find as follows: (1) The Notice, Access, and Compliance Conditions were ultra vires and not in accordance with law under the APA. (2) 8 U.S.C. § 1373(a)–(b), insofar as it applies to states and localities, is facially unconstitutional under the anticommandeering doctrine of the Tenth Amendment. (3)  The Notice, Access, and Compliance Conditions violated the constitutional separation of powers. (4)The Notice, Access, and Compliance Conditions were arbitrary and capricious under the APA.  (5) The DOJ was mandated to reissue the States’ FY 2017 Byrne JAG award documents without the Notice, Access, or Compliance Conditions, and upon acceptance to disburse those awards as they would in the ordinary course without regard to those conditions.  Additionally, the DOJ was prohibited from imposing or enforcing the Notice, Access, or Compliance Conditions for FY 2017 Byrne JAG funding for the States, the City, or any of their agencies or political subdivisions.

The DOJ was prohibited from imposing or enforcing the Notice, Access, or Compliance Conditions for FY 2017 Byrne JAG funding for the States, the City, or any of their agencies or political subdivisions.

There are several other cases pending, including one filed by the City of San Francisco, seeking the issuance of a nationwide injunction to prohibit the enforcement of the new conditions. Stay tuned for more developments in this area.

If you have any questions or would like more information, please contact Pamela Everett at [email protected].

 

Related litigation: City of Chicago v. Sessions, 264 F. Supp. 3d 933 (N.D. Ill. 2017); affd. appeal, City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018), but later stayed the nationwide scope of the injunction pending en banc review. Conference City of Evanston v. Sessions, No. 18 Civ. 4853, slip op. at 11 (N.D. Ill. Aug. 9, 2018) City of Philadelphia v. Sessions, 280 F. Supp. 3d 579 (E.D. Pa. 2017); City of Philadelphia v. Sessions, 309 F. Supp. 3d 289 (E.D. Pa. 2018)(currently on appeal); California ex rel. Becerra v. Sessions, 284 F. Supp. 3d 1015 (N.D. Cal. 2018)

 

Who Can Lobby?

Posted on: January 8th, 2018

By: Allan J. Hayes

Most businesses are subject to federal, state and local laws and regulations. The business value at stake from legislative and government regulatory intervention is huge: about 30 percent of earnings for companies in most industries, according to a 2010 study by McKinsey & Company, and higher still in the banking sector, where the figure tops 50 percent. Participation in the political and public policy processes is vital to most businesses. This participation is generally referred to as lobbying.

Can anyone lobby? Well, yes. The Encyclopedia Britannica defines lobbying as “any attempt by individuals or private interest groups to influence the decisions of government.” The United States Constitution provides for lobbying in the First Amendment by protecting the right of individuals “to petition the government for the redress of grievances.”

If anyone can do it, why does FMG have professional registered lobbyists? Lobbying involves more than persuading legislators. Professional lobbyists research and analyze legislation or regulatory proposals, attend legislative hearings, and educate government officials and corporate officers on important issues. It is a full-time job that requires a specialist to properly execute. Our experienced professionals represent our client’s interests before government so our clients can concentrate on effectively running their business.

Also, the federal government and most states regulate lobbying. Lobbyists working to influence the federal government are regulated by the Lobbying Disclosure Act of 1995, as amended. According to the National Conference of State Legislatures, there are more than 50 versions of lobbying laws in states and territories. In Georgia for instance, Georgia Code §21-5-70 and §21-5-71 defines a lobbyist as one who receives more than $250.00 per year to “promote or oppose the passage of any legislation by the General Assembly, or any committee of either chamber or a joint committee thereof, or the approval or veto of legislation by the Governor.” The statutes further regulate expenditures by lobbyists for entertainment, meals and gifts as well as disclosure of and the amounts spent on such activities. These regulatory burdens can be significant for the part-time or occasional lobbyist.

When I did research on lobbying in Georgia in the early 1990s for the book Politics in Georgia by Dr. Arnold Fleischman and Dr. Carol Pierannunzi, of UGA and KSU respectively, there were 1059 lobbyists registered.  In 2016 there were 1085 registered lobbyists, even though the ethics laws had been strengthened three times, the number has not fluctuated much in 25 years. For good reason, businesses and associations have continued to trust professional lobbyists to represent their interests at the Capitol.

For more information, please contact Allan Hayes at [email protected].