and Submitted August 30, 2018 Pasadena, California
from the United States District Court for No.
2:17-cv-07215-R-JC the Central District of California Manuel
L. Real, District Judge, Presiding
Panuccio (argued), Brad Hinshelwood, Katherine Twomey Allen,
Daniel Tenny, and Mark B. Stern, Appellate Staff; Nicola T.
Hanna, United States Attorney; Civil Division, United States
Department of Justice, Washington, D.C.; for
M. Zionts (argued), Benjamin L. Cavataro, and Ivano M.
Ventresca, Covington & Burling LLP, Washington, D.C.;
Neema T. Sahni, Mónica Ramirez Almadani, and Mitchell
A. Kamin, Covington & Burling LLP, Los Angeles,
California; Michael Dundas, Deputy City Attorney; Valerie L.
Flores, Managing Senior Assistant City Attorney; Leela A.
Kapur, Executive Assistant City Attorney; James P. Clark,
Chief Deputy City Attorney; and Michael N. Feuer, City
Attorney; Office of the City Attorney, Los Angeles,
California; for Plaintiff-Appellee.
Matthew J. Piers, Caryn C. Lederer, and Chirag G. Badlani,
Hughes Socol Piers Resnick & Dym Ltd., Chicago, Illinois;
Daniel B. Rice, Joshua A. Geltzer, and Mary B. McCord,
Institute for Constitutional Advocacy and Protection,
Georgetown University Law Center, Washington, D.C.; for Amici
Curiae Current and Former Prosecutors and Law Enforcement
Before: Kim McLane Wardlaw, Jay S. Bybee, and Sandra S.
Ikuta, Circuit Judges.
panel reversed the district court's summary judgment in
favor of the City of Los Angeles in an action challenging the
U.S. Department of Justice ("DOJ")'s use of
certain factors in determining scores for applicants to a
competitive grant program - the Community Oriented Policing
Services (COPS) grant program - that allocates a limited pool
of funds to state and local applicants under the Public
Safety Partnership and Community Policing Act (the
"Act"), enacted as part of the Violent Crime
Control and Law Enforcement Act.
gave additional points to an applicant that chose to focus on
the illegal immigration area (instead of other focus areas),
and gave additional points to an applicant who agreed to the
Certification of Illegal Immigration Cooperation - in which
the applicant agreed to ensure Department of Homeland
Security personnel had access to the applicant's
detention facilities to meet with an alien, and to provide
notice to DHS regarding scheduled release of an alien in
custody. Los Angeles submitted an application under the Act
but was not awarded any funding; it chose "building
trust and respect" as its focus area and declined to
submit the Certification.
initial matters, the panel held that the appeal was not moot
because although there was no longer a live controversy
regarding the 2017 grant program, the situation was capable
of repetition yet evading review. The panel also held that
Los Angeles had Article III standing to bring the appeal. The
panel concluded that Los Angeles's slight competitive
disadvantage due to its policy of not assisting the federal
government on immigration-related issues was sufficient to
give Los Angeles standing in this action.
panel rejected Los Angeles's argument that DOJ's
practice of giving additional consideration to applicants
that choose to further the two specified federal goals
violated the Constitution's Spending Clause. Because
DOJ's scoring factors encouraged, but did not coerce, an
applicant to cooperate on immigration matters, the panel also
rejected Los Angeles's claims that DOJ's use of the
factors infringed on state autonomy in a manner that raised
Tenth Amendment concerns.
panel held that DOJ did not exceed its statutory authority in
awarding bonus points to applicants that selected the illegal
immigration focus area or that agreed to the Certification.
Specifically, the panel first held that DOJ's
understanding that illegal immigration presents a public
safety issue has been acknowledged by the Supreme Court.
Second, DOJ's determination that the techniques of
community policing may be used to address this public safety
issue was entirely reasonable. Finally, because Congress did
not directly address the precise question at issue, the panel
must defer to DOJ's interpretation as long as it is
panel held that DOJ did not act arbitrarily and capriciously
under the Administrative Procedure Act when it decided to
give points for adopting the illegal immigration focus and
submitting the Certification.
Wardlaw dissented from the majority's holding that
DOJ's diversion of COPS grant funding from community
policing to civil immigration enforcement was lawful. Judge
Wardlaw would hold that DOJ exceeded its delegated powers to
administer the COPS grant program, and she would, therefore,
affirm the district court's order permanently enjoining
DOJ from including the illegal immigration focus area and
Cooperation Certification on its COPS grant applications and
from using these considerations as preferences in awarding
1994, Congress enacted the Violent Crime Control and Law
Enforcement Act (VCCLEA), Pub. L. No. 103-322, 108 Stat.
1796, to provide a range of federal assistance to state and
local law enforcement. The Public Safety Partnership and
Community Policing Act of 1994, Pub. L. No. 103-322, 108
Stat. 1807 (the Act), which was enacted as part of the
VCCLEA, authorizes the Department of Justice (DOJ) to
administer a competitive grant program that allocates a
limited pool of funds to state and local applicants whose
applications are approved by the Attorney General.
2017, Los Angeles applied for a grant, but failed to score
highly enough to earn one. It challenges the use of two of
the many factors DOJ uses in determining the scores for each
applicant. Because DOJ's use of these two factors in
evaluating applicants for a competitive grant program did not
violate the Spending Clause of the U.S. Constitution, art. I,
§ 8, cl. 1, did not exceed DOJ's statutory
authority, and did not violate the Administrative Procedure
Act, we reverse the district court's grant of summary
judgment in favor of Los Angeles.
Act's grant program, codified at 34 U.S.C. §§
10381 to 10389, gives broad discretion to DOJ to allocate
grants and administer the grant program for the purposes set
forth in § 10381(b). Section 10381(b) authorizes
twenty-three different purposes, each generally linked to the
goal of enhancing the crime prevention function of state and
local law enforcement through working with the community. DOJ
is authorized to "promulgate regulations and guidelines
to carry out" the grant program, 34 U.S.C. § 10388,
and may prescribe the required form and content of grant
applications through regulations or guidelines, id.
§ 10382(b). By statute, the application must contain
eleven broad categories of information, including an
assessment of the impact of the proposed initiative on other
aspects of the criminal justice system. See id.
§ 10382(c). Each application must also "identify
related governmental and community initiatives which
complement or will be coordinated with the proposal" and
"explain how the grant will be utilized to reorient the
affected law enforcement agency's mission toward
community-oriented policing or enhance its involvement in or
commitment to community-oriented policing." Id.
§ 10382(c)(4), (10).
statute permits DOJ to give "preferential consideration,
where feasible," on specified grounds, including whether
the application proposes hiring and rehiring additional
career law enforcement officers, where a non-Federal
contribution will cover more than the required 25 percent of
the program cost. Id. §
10381(c)(1). The statute was amended in 2015 to allow
DOJ to give preferential treatment to a state that has
enacted certain laws designed to combat human trafficking.
See id. § 10381(c)(2), (3); Justice for Victims
of Trafficking Act of 2015, Pub. L. No. 114-22, §§
601, 1002, 129 Stat. 227, 259- 60, 266-67.
has regularly made appropriations for grants administered
under this statute. DOJ has determined that Congress intended
these appropriations to be used for two of the twenty-three
purposes set forth in § 10381, namely "to rehire
law enforcement officers who have been laid off as a result
of State, tribal, or local budget reductions for deployment
in community-oriented policing," 34 U.S.C. §
10381(b)(1), and "to hire and train new, additional
career law enforcement officers for deployment in
community-oriented policing across the Nation,"
id. § 10381(b)(2).
exercised its broad discretion under the Act by developing a
combined guidelines and application form for parties that
wish to apply for a grant to hire or rehire officers for
community-oriented policing. See COPS Office
Application Attachment to SF-424 (referred to hereafter as
"Application Guidelines"). The Application
Guidelines define "community policing" as "a
philosophy that promotes organizational strategies that
support the systematic use of partnerships and
problem-solving techniques to proactively address the
immediate conditions that give rise to public safety issues
such as crime, social disorder, and fear of crime."
Community policing strategies may include "ongoing
collaborative relationships" with local and federal
agencies, as well as "systematically tailor[ing]
responses to crime and disorder problems to address their
Application Guidelines set out a series of questions and
instructions that allow an applicant to explain why it is
seeking a grant and why it is best qualified to receive one.
Among other things, an applicant must explain its need for
federal assistance, provide information about its fiscal
health, agree to comply with various provisions of federal
law, and provide additional information and assurances of
various kinds. An applicant must also specify its law
enforcement and community policing strategy, including a
"crime and disorder problem/focus area." The
Application Guidelines direct the applicant to choose one of
eight focus areas: "illegal immigrations,"
"child and youth safety focus," "drug abuse
education, prevention and intervention," "homeland
security problems," "nonviolent crime problems and
quality of life policing," "building trust and
respect," "traffic/pedestrian safety
problems," and "violent crimes problems." The
Application Guidelines provide examples of the type of
problems included in each focus area. For the homeland
security focus area, for instance, the Application Guidelines
state, "Please specify your critical infrastructure
problem; for example, addressing threats against facilities,
developing and testing incident response plans, etc."
For the illegal immigration focus area, the Application
Guidelines state, "Please specify your focus on
partnering with the federal law enforcement to address
illegal immigration for information sharing, [§] 287(g)
partnerships,  task forces and honoring
evaluates, scores, and ranks the submitted applications, then
awards grant funds to the highest scoring
applicants. The scoring process is designed to
allocate federal assistance to programs, focuses, or conduct
that DOJ deems to best further statutory purposes and federal
goals. Consistent with the statutory criteria, DOJ gives
points to applicants that best demonstrate "a specific
public safety need" and show an "inability to
address the need without Federal assistance," 34 U.S.C.
§§ 10382(c)(2), (c)(3), and to applicants that best
"explain how the grant will be utilized to reorient the
affected law enforcement agency's mission toward
community-oriented policing or enhance its involvement in or
commitment to community-oriented policing," id.
§ 10382(c)(10). DOJ also gives points to applicants in
jurisdictions with higher crime rates and comparatively lower
fiscal health. Additionally, DOJ scores applicants on how
their proposals relate to that year's federal goals. In
various years, DOJ has awarded points for applicants that
gave work to military veterans, that adopted specified
management practices (such as making regular assessments of
employee satisfaction, exercising flexibility in officer
shift assignments, and operating an early intervention system
to identify officers with specified personal risks), or that
experienced certain catastrophic events, such as a terror
attack or school shooting. In 2017, DOJ gave additional
points to applicants that focused on the federal priority
areas of violent crime, homeland security, and control of
illegal immigration. Also in 2017, an applicant could elect
to receive additional points by submitting a
"Certification of Illegal Immigration Cooperation"
(the "Certification") in which the applicant agrees
that (1) the applicant will implement rules, regulations, or
practices that ensure DHS personnel have access to the
entity's correctional or detention facilities in order to
meet with an alien, and (2) the applicant will implement
rules, regulations, policies, or practices to ensure that the
entity's correctional or detention facilities provide
notice "as early as practicable (at least 48 hours,
where possible) to DHS regarding the scheduled release"
of an alien in custody.
usual, in the 2017 grant cycle, DOJ received more requests
for funding than it was able to grant. Congress allocated
roughly $98.5 million for grants, but applicants requested
almost $410 million. From a total applicant pool of 90 large
jurisdictions and 1, 029 small jurisdictions, DOJ awarded
grant funds to 30 of the large jurisdictions and 149 of the
small jurisdictions. An applicant did not need to select the
illegal immigration focus or submit the Certification to
receive funds. Of the seven applicants that chose illegal
immigration as a focus area, only one large jurisdiction and
one small jurisdiction received an award. Of the successful
applicants, only 19 of the 30 large jurisdictions and 124 of
the 149 small jurisdictions received bonus points for
submitting the Certification. Los Angeles submitted an
application but was not awarded any funding. It chose
"building trust and respect" as its focus area and
declined to submit the Certification.
September 2017, Los Angeles filed a complaint seeking to
enjoin DOJ's practice of awarding points to applicants
that selected the illegal immigration focus area and to
applicants that completed a Certification related to illegal
immigration. Los Angeles argues that these two elements of
DOJ's scoring system are unlawful because they (1)
violate constitutional principles of separation of powers and
exceed DOJ's lawful authority, (2) violate the Spending
Clause, and (3) are arbitrary and capricious under the
Administrative Procedure Act. The district court agreed with
Los Angeles on each of these claims. The court entered a
permanent injunction against the challenged practices, and
Los Angeles claims it was injured by DOJ's use of two
scoring elements in its 2017 grant cycle, that cycle has long
since been completed. Therefore, we must determine whether
this appeal is moot, and if not, whether Los Angeles has
standing to bring its claims.
first conclude that the appeal is not moot. Article III
limits the jurisdiction of federal courts to actual cases and
controversies. U.S. Const. art. III, § 2, cl. 1. Because
there is no longer a live controversy regarding the 2017
grant program, the appeal would ordinarily be moot.
Nevertheless, the Supreme Court has held that an appeal is
not moot in "exceptional situations" when it is
"capable of repetition, yet evading review."
Kingdomware Techs., Inc. v. United States, 136 S.Ct.
1969, 1976 (2016) (quoting Spencer v. Kemna, 523
U.S. 1, 17 (1998)). Here, the case meets the requirements to
avoid mootness. First, "the challenged action [is] in
its duration too short to be fully litigated prior to
cessation or expiration," id. (alteration in
original) (quoting Spencer, 523 U.S. at 17), because
any one grant cycle is too short to provide for meaningful
review. In 2017, for instance, fewer than three months passed
between DOJ's announcement of the scoring factors and the
grant awards. Second, "there [is] a reasonable
expectation that the same complaining party [will] be subject
to the same action again." Id. (alteration in
original) (quoting Spencer, 523 U.S. at 17). Los
Angeles is reasonably likely to apply for a DOJ grant in the
future, and has done so in the previous two consecutive
years. Los Angeles also submitted a declaration of its intent
to apply for a grant in the 2018 cycle. Although DOJ states
it has not yet determined "how immigration-related
factors will be handled in the FY 2018 application," it
has not agreed to stop giving bonus points for such factors
in the future. Even if it had, voluntary cessation of the
practice does not deprive us of power to hear the case
"unless it can be said with assurance that there is no
reasonable expectation . . . that the alleged violation will
recur." Fikre v. FBI, 904 F.3d 1033, 1037 (9th
Cir. 2018) (internal quotation marks and citation omitted).
No such assurances are present here.
conclude that Los Angeles has standing to bring this appeal.
Los Angeles states it "has made a longstanding decision
that it can best protect public safety by not participating
in federal civil immigration enforcement." It also
states that its police department has a longstanding policy
that "restricts an officer from initiating a police
action with the objective of discovering a person's
immigration status, and also prohibits arrests based solely
on civil immigration status." As a result of these
policies, Los Angeles declined to select the illegal
immigration focus and declined to submit the Certification.
Accordingly, Los Angeles claims that when it applied for a
grant, it was disadvantaged relative to other applicants that
were able to choose the illegal immigration focus area or
complete the Certification, and this inability to compete on
an even playing field constitutes a concrete and
particularized injury. See Bullfrog Films, Inc. v.
Wick, 847 F.2d 502, 506 (9th Cir. 1988); Preston v.
Heckler, 734 F.2d 1359, 1365 (9th Cir. 1984)
("[W]hen challenged agency conduct allegedly renders a
person unable to fairly compete for some benefit, that person
has suffered a sufficient 'injury in fact.'"
(quoting Glacier Park Found. v. Watt, 663 F.2d 882,
885 (9th Cir. 1981))); cf. Regents of the Univ. of Cal.
v. Bakke, 438 U.S. 265, 280 n.14 (1978) (holding that
plaintiff suffered an injury when he could not compete for
all places in his entering medical school class). While DOJ
states that Los Angeles would not have received funding
regardless of whether DOJ awarded bonus points for the
illegal immigration focus area or the Certification, Los
Angeles need not prove that it would have received funding
absent the challenged considerations. See Ne. Fla.
Chapter of Associated Gen. Contractors of Am. v. City of
Jacksonville, 508 U.S. 656, 666 (1993). Further, Los
Angeles argues that such injury is directly traceable to
DOJ's use of the challenged scoring elements. Should a
court bar DOJ from using these scoring factors, Los Angeles
contends, applicants that are willing to choose the illegal
immigration focus area or to sign the Certification would no
longer have that advantage over Los Angeles. See Bullfrog
Films, 847 F.2d at 507-08.
Angeles's claim of injury is thin. Los Angeles does not
argue it was prevented by law from selecting an illegal
immigration focus or from agreeing to the Certification; it
merely chose not to do so. Moreover, Los Angeles's
decision not to select the illegal immigration focus did not
itself put it at a competitive disadvantage. An applicant can
choose only one focus area, and Los Angeles could have
equalized the focus area bonus points by choosing the
homeland security or violent crime focus area, both of which
also received additional points, rather than choosing the
"building trust and respect" focus area. (DOJ did
not offer applicants equal points for conduct comparable to
agreeing to the Certification, however.)
the weakness of Los Angeles's argument, a plaintiff need
show only a slight injury for standing. See United States
v. Students Challenging Regulatory Agency Procedures
(SCRAP), 412 U.S. 669, 689 n.14 (1973). We conclude that
Los Angeles's slight competitive disadvantage due to its
policy of not assisting the federal government on
immigration-related issues is sufficient to give Los Angeles
standing in this action.
turning to the merits of Los Angeles's claims, we first
note the limited nature of the dispute. As noted above, in
administering a federal grant program and scoring the
applications it receives, DOJ gives additional points to an
applicant that chooses to focus on the illegal immigration
area (instead of other focus areas) and gives additional
points to an applicant who agrees to the Certification.
Choosing the illegal immigration area and submitting the
Certification are not conditions of receiving a grant, and
numerous applicants received grants without doing so.
Likewise, numerous applicants who chose the illegal
immigration focus area or submitted the Certification did not
receive a grant. The question before us, therefore, is
whether DOJ's scoring practice of giving these additional
points is unconstitutional or exceeds DOJ's authority in
administering the grant program.
begin with Los Angeles's argument that DOJ's practice
of giving additional consideration to applicants that choose
to further the two specified federal goals violates the
Spending Clause. The Spending Clause provides that Congress
has the power "to pay the Debts and provide for the
common Defence and general Welfare of the United
States." U.S. Const. art. I, § 8, cl. 1. This power
gives Congress the ability "to grant federal funds to
the States, and [Congress] may condition such a grant upon
the States' 'taking certain actions that Congress
could not require them to take.'" Nat'l
Fed'n of Indep. Bus. v. Sebelius, 567 U.S. 519, 576
(2012) ("NFIB") (quoting Coll. Sav.
Bank v. Fla. Prepaid Postsecondary Educ. Expense
Bd., 527 U.S. 666, 686 (1999)).
Congress has broad power to attach conditions to the receipt
of federal funds, the power is not unlimited. South
Dakota v. Dole, 483 U.S. 203, 207 (1987). First,
"the exercise of the spending power must be in pursuit
of the general welfare." Id. (internal
quotation marks omitted). "In considering whether a
particular expenditure is intended to serve general public
purposes, courts should defer substantially to the judgment
of Congress." Id.
if Congress decides to impose conditions on the allocation of
funds to the states, it "must do so unambiguously . . .,
enabl[ing] the States to exercise their choice knowingly,
cognizant of the consequences of their participation."
Id. (alteration in original) (quoting Pennhurst
State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17
(1981)). In Pennhurst, the plaintiffs argued that a
federal-state grant program should be reinterpreted as
retroactively imposing significant costs on states that
received those funds. 451 U.S. at 20. In rejecting that
reinterpretation, the Court held that legislation allocating
funds to states in return for states accepting specified
conditions is analogous to a contract between Congress and
the states. Id. at 17. "The legitimacy of
Congress'[s] power to legislate under the spending power
thus rests on whether the State voluntarily and knowingly
accepts the terms of the 'contract.'"
Id. Congress goes too far when it surprises states
with "post acceptance or 'retroactive'
conditions." Id. at 25. Therefore, the Court
declined to reinterpret the "contract" between
Congress and the states as retroactively imposing such
unexpected and burdensome conditions. Id.
the federal government attach conditions to the receipt of
federal funds if "the financial inducement offered by
Congress might be so coercive as to pass the point at which
pressure turns into compulsion," Dole, 483 U.S.
at 211 (internal quotation marks omitted). In South
Dakota v. Dole, Congress attempted to induce states to
adopt a minimum drinking age of twenty-one years by
threatening to cut five percent of federal highway funding to
those states that failed to do so. Id. at 211. The
Court held this was only "relatively mild encouragement
to the States," and therefore "a valid use of the
spending power." Id. at 211-12. By contrast,
the threat to eliminate all of a state's existing
Medicaid funding if the state opted out of the Affordable
Care Act's expansion in health care coverage was
"much more than 'relatively mild
encouragement'-it [was] a gun to the head," and
therefore was an impermissible use of Congress's spending
power. NFIB, 567 U.S. at 581. Accordingly, Congress
may offer conditional funding only if the "State has a
legitimate choice whether to accept the federal conditions in
exchange for federal funds." Id. at 578.
Congress may not impose conditions on federal grants that
"are unrelated 'to the federal interest in
particular national projects or programs.'"
Dole, 483 U.S. at 207-08 (quoting Massachusetts
v. United States, 435 U.S. 444, 461 (1978) (plurality
opinion)). This standard is not demanding-the conditions need
only "bear some relationship to the purpose of the
federal spending." Mayweathers v. Newland, 314
F.3d 1062, 1067 (9th Cir. 2002) (quoting New York v.
United States, 505 U.S. 144, 167 (1992)). In
Dole, for instance, the requirement that states
adopt a minimum drinking age was sufficiently related to the
payment of federal highway funds. Rejecting the dissent's
argument that the restriction had too "attenuated or
tangential [a] relationship to highway use or safety,"
Dole, 483 U.S. at 215 (O'Connor, J.,
dissenting), the Court held that the age restriction was
"directly related to one of the main purposes for which
highway funds are expended-safe interstate travel,"
id. at 208 (majority opinion). Indeed, the Court has
never struck down a condition on federal grants based on this
Congress may not require states to engage in actions that are
themselves unconstitutional. Id. at 210-11.
this brief description of the limitations on Congress's
spending power makes clear, the applicable Spending Clause
principles do not readily apply to an allocation of grant
funds through a competitive grant process, such as the
program in this case. As a threshold matter, DOJ does not
propose to withdraw significant federal funds from a state or
local jurisdiction unless they comply with specified federal
requirements. Cf. NFIB, 567 U.S. at 579-80;
Dole, 483 U.S. at 205. Nor does DOJ propose to
reinterpret the terms of a grant retroactively to impose
costly new responsibilities on a recipient. Cf.
Pennhurst, 451 U.S. at 25. Nor does DOJ offer a
financial inducement for an applicant to cooperate on illegal
immigration issues that is so coercive that it is tantamount
to compulsion. Cf. NFIB, 567 U.S. at 579-80. Rather,
an applicant is free to choose one of many focus areas, and
numerous applicants obtained funding without selecting
illegal immigration or signing the Certification. Nor did DOJ
impose surprise or ambiguous conditions on recipients of the
funds, cf. Pennhurst, 451 U.S. at 25; the
immigration-related conditions were clearly presented in the
Application Guidelines and Certification.
most, DOJ's decision to give additional points to
applicants that select an illegal immigration focus or that
agree to the Certification encourages applicants to focus on
these federal priorities. Because an applicant is free to
select other prioritized focus areas or not to apply for a
grant at all, such a subtle incentive offered by DOJ's
scoring method is far less than the coercion in
Dole, which directly reduced the amount of funds
allocated to a state, and which the Court held was consistent
with Spending Clause principles.
cooperation relating to enforcement of federal immigration
law is in pursuit of the general welfare, and meets the low
bar of being germane to the federal interest in providing the
funding to "address crime and disorder problems, and
otherwise . . . enhance public safety," VCCLEA §
1701(a), "one of the main purposes for which" the
grant is intended, Dole, 483 U.S. at 208. As
explained in more detail below, DOJ has reasonably determined
that cooperation on illegal immigration matters furthers the
purposes of the Act. See infra at 22-27.
Accordingly, we reject Los Angeles's Spending Clause
DOJ's scoring factors encourage, but do not coerce, an
applicant to cooperate on immigration matters, we also reject
Los Angeles's claims that DOJ's use of the factors
infringes on state autonomy in a manner that raises Tenth
Amendment concerns. Los Angeles's reliance on Gregory
v. Ashcroft, 501 U.S. 452 (1991), and Virginia
Department of Education v. Riley, 106 F.3d 559 (4th Cir.
1997) (en banc) (per curiam), is meritless. Gregory
held that the federal Age Discrimination in Employment Act
did not prohibit Missouri from enforcing its law requiring
state judges to retire at age 70. 501 U.S. at 473. According
to the Court, while Congress has the power to override a
state age requirement, it would have to use unmistakably
clear statutory language to do so, because such a question
"is a decision of the most fundamental sort for a
sovereign entity." Id. at 460. The Fourth
Circuit applied a similar presumption in Riley,
holding that the Individuals with Disabilities Education Act
did not clearly establish that Congress intended to condition
Virginia's receipt of federal funds on the state's
provision of "private educational services to each of
the State's 126 disabled students who had been expelled
for reasons wholly unrelated to their disabilities." 106
F.3d at 560. Here, contrary to Los Angeles's argument,
DOJ's decision to give points to applicants that submit
the Certification and agree to give DHS personnel access to
the applicant's correctional or detention facilities to
meet with alien detainees, or to give DHS notice before an
alien detainee is released, does not override state laws and
therefore does not give rise to any Tenth Amendment concern.
turn to Los Angeles's argument that DOJ exceeded its
statutory authority in awarding bonus points to applicants
that selected the illegal immigration focus area or that
agreed to the Certification.
Congress has "explicitly left a gap for the agency to
fill, there is an express delegation of authority to the
agency to elucidate a specific provision of the statute by
regulation." Chevron, U.S.A., Inc. v. Nat. Res. Def.
Council, Inc., 467 U.S. 837, 843-44 (1984). "Such
legislative regulations are given controlling weight unless
they are arbitrary, capricious or manifestly contrary to the
statute." Id. at 844. This standard is
"deferential and narrow"; there is a
"'high threshold' for setting aside agency
action." Alaska Oil & Gas Ass'n v.
Jewell, 815 F.3d 544, 554 (9th Cir. 2016) (quoting
River Runners for Wilderness v. Martin, 593 F.3d
1064, 1067, 1070 (9th Cir. 2010)). As long as a
"reasonable basis exists for the decision"-meaning
the agency "considered the relevant factors and
articulated a rational connection between the facts found and
the choices made"-we presume the action is valid.
Id. (internal quotation marks omitted). Moreover,
when Congress has explicitly given an agency the substantive
authority to prescribe standards, the agency's
promulgations are "entitled to more than mere deference
or weight"; rather, they are entitled to
"legislative effect." Schweiker v. Gray
Panthers, 453 U.S. 34, 44 (1981) (quoting Batterton
v. Francis, 432 U.S. 416, 425-26 (1977)).
highly deferential standard is applicable here. As noted
above, the Act gives DOJ broad authority to "promulgate
regulations and guidelines to carry out" the Public
Safety and Community Policing subchapter, 34 U.S.C. §
10388, authorizing the creation and implementation of a
competitive grant program, and to "prescribe by
regulation or guidelines" the form of an application and
the information it will require, id. §
10382(b). Because Congress authorized DOJ to fill gaps
through its promulgation of the Application Guidelines and
implementation of the grant program, we give DOJ's
inclusion of an illegal immigration focus area and use of the
Certification controlling weight unless they are manifestly
inconsistent with the statute or lack any reasonable basis,
"even if the agency's reading differs from what the
court believes is the best statutory interpretation."
Glacier Fish Co. v. Pritzker, 832 F.3d 1113, 1121
(9th Cir. 2016) (quoting Nat'l Cable & Telecomms.
Ass'n v. Brand X Internet Servs., 545 U.S. 967, 980
inclusion of immigration-related scoring factors as a
component of its implementation of its grant program is well
within DOJ's broad authority to carry out the Act. At the
threshold, the Application Guidelines' inclusion of the
illegal immigration focus area, which asks an applicant to
"specify your focus on partnering with federal law
enforcement to address illegal immigration for information
sharing, [§] 287(g) partnerships, task forces and
honoring detainers," is not "manifestly contrary to
the statute." Chevron, 467 U.S. at 844. Nothing
in the Act precludes DOJ from allocating federal funds to
state or local governments to focus on problems raised by the
presence of illegal aliens within their
DOJ's determination "that illegal immigration
enforcement is a public safety issue and that this issue can
be addressed most effectively through the principles of
community policing that [DOJ] promotes-including through
partnerships and problem-solving techniques," is
entirely consistent with the broad scope of the Act. First,
DOJ's understanding that illegal immigration presents a
public safety issue has been acknowledged by the Supreme
Court. See Arizona v. United States, 567 U.S. 387,
397-98 (2012). While "it is not a crime for a removable
alien to remain present in the United States,"
id. at 407, the Court has recognized that in some
jurisdictions, such as Arizona's "most populous
county," aliens who have entered the country illegally
"are reported to be responsible for a disproportionate
share of serious crime," id. at 397-98. The
Court has noted that "[a]ccounts in the record suggest
there is an 'epidemic of crime, safety risks, serious
property damage, and environmental problems' associated
with the influx of illegal migration across private land near
the Mexican border." Id. at 398. Congress has
likewise expressed concern about "increasing rates of
criminal activity by aliens." Demore v. Kim,
538 U.S. 510, 518 (2003).
DOJ's determination that the techniques of community
policing may be used to address this public safety issue is
entirely reasonable. As DOJ explains, community policing is
an important crime-fighting technique that officers use along
with others to address various law-enforcement and community
safety goals. The public safety issues that arise from
illegal immigration can be addressed through collaborative
interactions and information flow between law enforcement and
the community, just as with any other sort of public safety
issue, such as those arising from "violent crime
problems" and other focus areas. If a jurisdiction
selects an illegal immigration focus due to community
concerns, it is reasonable to consider that officers may be
more effective in addressing such issues if they act pursuant
to § 287(g) partnerships, which allow state or local
officers to perform immigration officer functions,
see 8 U.S.C. § 1357(g)(1).Nothing in the Act
precludes such cooperation; rather, the Act requires
applicants to "identify related governmental and
community initiatives which complement or will be coordinated
with the proposal," 34 U.S.C. § 10382(c)(4), and to
explain how officers' use of community-oriented policing
techniques will be coordinated with such initiatives.
does the Act's community-policing focus limit DOJ to
considering only those factors directly related to
interaction with the community. Obviously, an officer's
responsibilities involve a broad array of tasks, including
administrative tasks like sharing information with relevant
federal agencies or honoring detainers. Just as DOJ considers
a jurisdiction's fiscal health and crime rate, as well as
a jurisdiction's attention to other federal priorities
like the mental health of officers, giving work to military
veterans, and responding to catastrophic events like school
shootings, it can also consider a jurisdiction's
attention to the federal priority of illegal immigration
through the Certification. A jurisdiction's willingness
to provide notice that a detained removable alien will be
released from custody, or to provide facility access so that
federal officials can interview removable aliens while in
custody, is consistent with the ...