Debevoise and the City of New York: Standing Up for Immigrants—and the Constitution

6 December 2018

New York’s historic status as a major hub for immigrants—and its laws sympathetic to those immigrants—put it on a natural collision course with the Trump administration’s immigration crackdown. The conflict came to a head when the administration placed immigration-related restrictions on jurisdictions receiving Edward Byrne Memorial Justice Assistance Grants, which are used for a range of public safety initiatives. The new restrictions required the City to certify that it complies with a federal statute—8 U.S.C. § 1373—prohibiting states and localities from restricting their agencies or employees from sending to, or receiving from, U.S. Immigration and Customs Enforcement information regarding citizenship or immigration status. In addition, the City was required to give the U.S. Department of Homeland Security at least 48 hours’ advance notice regarding the scheduled release date of any inmate for whom DHS requested such notice and to give the DHS access to any detention facility maintained by the City in order to meet with persons of interest to DHS.

In August 2018, New York City, represented by Debevoise & Plimpton and the city’s Law Department, sued the Department of Justice and then-Attorney General Jeff Sessions on the grounds that these immigration-related conditions are unlawful, unconstitutional and arbitrary and capricious. The City further sought a declaration that Section 1373 is unconstitutional, a declaration that the City’s laws and policies comply with Section 1373 and a permanent injunction prohibiting the DOJ from imposing the new conditions.

After hundreds of pages of briefing and two hours of oral argument by the New York Attorney General's office, New York’s Southern District granted the City’s motion for summary judgment regarding the Byrne JAG immigration-related conditions. Perhaps most importantly, the court agreed with the City that Section 1373 is facially unconstitutional under the Tenth Amendment’s anticommandeering doctrine and in light of the U.S. Supreme Court’s recent decision in Murphy v. NCAA.

A Debevoise team led by Matthew E. Fishbein and Meryl Holt Silverman served as co-counsel with Corporate Counsel to The City of New York. The Debevoise team also included associates Dana Rehnquist and Alexandra N. Mogul.

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