Hogan Lovells Wins Again for Philadelphia in Fight for Welcoming City Policies

February 15, 2019, Philadelphia--Last June, following an extensive trial, Hogan Lovells won a permanent injunction preventing the U.S. Department of Justice from withholding formula grant funding from the City of Philadelphia on account of the City’s efforts to protect immigrants. On Friday, February 15, 2019, a three-judge panel of the U.S. Court of Appeals for the Third Circuit upheld the injunction.

In a unanimous decision, Judge Marjorie O. Rendell, joined by Judge Thomas L. Ambro and Judge Anthony J. Scirica, concluded that Congress had not authorized three immigration-related conditions imposed by the Department of Justice on the receipt of funds under the Edward Byrne Memorial Justice Assistance Grant Program (known as the Byrne JAG program).

The decision explained: "Where, as here, the Executive Branch claims authority not granted to it in the Constitution, it literally has no power to act unless and until Congress confers power upon it." The panel agreed with the city that Congress had not done so. The decision secures crucial funding for the city, and is further significant because it is the first ruling from a U.S. court of appeals that the Department of Justice lacked the statutory authority to condition Byrne JAG funds on compliance with 8 U.S.C. § 1373, an immigration-enforcement statute, because § 1373 is not an "applicable law" under the Byrne JAG statute – a ruling that could impact a number of other lawsuits from other cities making their way through the federal courts.

Neal Katyal argued the case in the Third Circuit. Ginny Gibson led the Hogan Lovells team at trial. The team also includes senior associates Jasmeet Ahuja, Alex Bowerman, and Kirti Datla, as well as associate Matt Higgins.

Read the Third Circuit's decision here.

Read the city of Philadelphia's press release about the decision here.

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