(Reuters) - On Monday, a divided 2nd U.S. Circuit Court of Appeals declined to rehear (2020 WL 3956260) a three-judge panel’s determination (951 F.3d 84) that the Justice Department can withhold grant money from so-called sanctuary jurisdictions that refuse to comply with DOJ’s immigration-related conditions. The 2nd Circuit is at odds with the 1st, 3rd, 7th and 9th Circuits on this issue, which seems likely to end up at the U.S. Supreme Court.
So, in a way, Monday’s decision changes nothing: The panel opinion remains in place, as panel opinions almost always do at the 2nd Circuit. The circuit split is cemented, giving the Supreme Court ample justification to consider the constitutional and statutory complexities of the attorney general’s power to impose the president’s priorities on state and local law enforcement.
But in another sense, the five (!) different opinions 2nd Circuit judges issued Monday are eye opening. This court, remember, has traditionally prided itself on what Judge Jon Newman called “the virtue of restraint” in a 1984 Brooklyn Law Review essay on the 2nd Circuit’s reluctance to grant en banc review. “We have been able, to a remarkable degree, to submerge our individual judicial convictions in the interest of the proper functioning of our court,” Judge Newman said then. On Monday, even the avowed institutionalist Robert Katzmann, who took pains to point out that he opposes en banc rehearing in “the vast majority of cases,” wrote to say that he supported en banc review in this one.
The panel that issued the 2nd Circuit’s decision last February on DOJ grants and sanctuary jurisdictions was composed of Judges Jose Cabranes, Ralph Winter and Reena Raggi. Judge Raggi wrote the opinion for a unanimous panel. As it happens, Judge Cabranes is the only active judge among the three. Judges Winter and Raggi are senior judges and therefore didn’t participate in the vote on whether to rehear the case.
Judge Cabranes wrote the main opinion Monday denying the petition for rehearing by New York, New Jersey and other states protesting DOJ’s authority to condition grant money on assisting the federal government’s efforts to crack down on illegal immigrants. He was joined by five other judges, including four of the five judges who have been appointed to the 2nd Circuit during the Trump administration: Judges Richard Sullivan, Joseph Bianco, William Nardini and Steven Menashi. (The fifth judge appointed since Trump took office, Michael Park, did not participate in the en banc consideration.)
Judge Rosemary Pooler wrote the main dissent from the decision not to rehear the panel decision. Joined by Judges Denny Chin and Susan Carney, she provided analysis of why the other circuits that have looked at this issue were right and her 2nd Circuit colleagues were wrong. The panel opinion, “ignores the words of the statute, the relevant legislative history and the conclusions of our sister circuits,” Judge Pooler wrote. “I am, frankly, astounded that my colleagues did not find this a case of exceptional importance warranting en banc review.” (Judge Cabranes responded in the majority opinion that Judge Pooler’s dissent “sheds little new substantive light on the debate,” despite her opinion’s “vigor and intensity.”)
Chief Judge Katzmann, as I mentioned, also wanted to rehear the panel decision. He wrote separately from Judge Pooler to highlight what he called the panel’s failure “to adhere to the normal rules of appellate litigation” by basing its ruling on legal arguments that DOJ “either had not made, had abandoned, or had even expressly disavowed.”
The Pooler and Katzmann dissents contained some sharp language but a concurrence written by Judge Raymond Lohier and joined by Judge Peter Hall was even more pointed. Judges Lohier and Hall said the panel opinion was “wrong, wrong and wrong again,” but that the 2nd Circuit en banc process is so cumbersome that it makes more sense to deny rehearing and allow the Supreme Court to resolve the circuit split. Otherwise, Judge Lohier wrote, “the (Justice) Department, encouraged by the panel’s decision, would continue to peddle its false and contorted theory to the remaining circuits that have yet to debunk it.”
Judge Lohier also called out some of the judges who voted against en banc rehearing. Just last year, he said, some of them voted to rehear a panel decision in New York State Citizens Coalition for Children v. Poole (935 F.3d 56), which presented a similar issue of federal conditions on grant money to a state agency. Judge Lohier did not name his colleagues who backed rehearing in the Poole case, but they are Judges Livingston, Cabranes, Sullivan, Bianco and Park, who backed a dissent written by Judge Livingston.
Judge Lohier’s comment prompted a separate opinion written by Judge Sullivan and joined by Judges Cabranes, Livingston and Bianco. Judge Sullivan called Judge Lohier’s discussion of the Poole case “erroneous and, to my mind, gratuitous.” Lohier’s opinion, he said, implied that he and the other judges who backed rehearing in Poole but opposed it in the sanctuary jurisdiction case had engaged in “bad faith or hypocrisy.” But Judge Sullivan said the two cases in fact presented quite different issues and arrived at the appeals court in different postures. “There is very little harmony between this case and Poole,” Judge Sullivan commented.
Judge Cabranes has twice taken pains to observe in 2nd Circuit decisions declining to grant en banc review that observers should not infer that judges who have voted against rehearing without writing an opinion actually agree with the merits of the panel decision up for review. Silence, he said in the Poole case and in 2014’s U.S. v. Taylor (752 F.3d 254) does not necessarily signify approval. And the 2nd Circuit’s “vaunted en banc ‘traditions,’” Judge Cabranes suggested, may not be as hallowed as previous judges have suggested.
“Suffice it to say that this tradition is a sometime thing, and some who invoke it have no difficulty abandoning it when convenient,” the judge wrote in the 2019 Poole case.
From the fractured sanctuary jurisdiction decision, it appears that the 2nd Circuit’s “vaunted tradition” of elevating institutional interests may be on the wane.