929 F.3d 1163

WARDLAW, Circuit Judge, dissenting:
A quarter of a century ago, in 1994, the United States Congress passed the Public Safety Partnership and Community Policing Act (the Act), which established the Community Oriented Policing Services (COPS) grant program. Congress's purpose was to increase the number of "cops on the beat" and to enhance officers' interaction within their communities to improve communication and cooperation; that is, to create "community partnerships" between police officers and the communities they serve. Congress specified twenty-three "purposes for which grants may be made" but to date has appropriated funds for only two of those purposes: (1) to rehire officers who were laid off due to budgetary concerns for deployment in community-oriented policing, and (2) to hire and train new additional officers for deployment in community-oriented policing. Thus, since authorizing grants for community-oriented policing, a term well understood by Congress in 1994 to connote partnering with the community, Congress's sole appropriations have been to fund deployment of more officers on the streets.
Congress funds states and localities that deploy community-oriented policing through the COPS grant program. It delegated the administration of the COPS grant program to the Department of Justice (DOJ). In 1994, Attorney General Janet Reno created the COPS Office within DOJ to handle applications and the awards of grants to cities and states for community-oriented policing. Through its entire existence, the COPS grant program has been administered with this congressional purpose in mind.
That is, until 2017, when DOJ decided to usurp the COPS funds for its own immigration policy directives. As part of a broader effort to divert federal funds from congressionally authorized purposes to the Trump Administration's efforts to press state and local police into federal immigration enforcement, Attorney General Jefferson B. Sessions III imposed new preferences for obtaining COPS grant awards that effectively substitute "federal law enforcement" for "community" in the "community partnerships" Congress sought to fund through the Act. Congress did not contemplate general policing when devoting funds for community-oriented policing, and it certainly did not contemplate federal immigration enforcement when it attempted to reduce crime by adding "cops on the beat."
Because the term "community-oriented policing" had in 1994 and has through today a commonly understood meaning that excludes federal immigration enforcement functions, the new federal immigration preferences are, as the district court held, ultra vires as a matter of law. I therefore respectfully dissent from the majority's holding that DOJ's diversion of COPS grant funding from community policing to civil immigration enforcement is lawful.
I.
A. History of Community-Oriented Policing in the United States
To comprehend just how antithetical to the concept of community-oriented policing DOJ's new federal immigration considerations are, one must have an understanding of what community partnership means, the history and development of the principles it embraces, and the history of the COPS grant program itself. Community-oriented policing is "a collaboration between the police and the community that identifies and solves community problems." This policing strategy, which emerged in the 1970s, is rooted in the principle that "the police are the public and the public are the police." In the 1960s and 1970s, unstable social conditions, scandals, and recessions led to cuts in the ranks of police departments across the country, driving the need for policing reform. Despite tactical use of automobiles for crime-preventive patrol and rapid response to calls for service, the 1960s had ushered in an era of rising crime and fear. The civil rights and antiwar movements further challenged the legitimacy of police and police tactics. Police were inadequately equipped to serve their socially and culturally diverse communities. The public's "erosion of confidence" in the police translated into a significant loss of political and financial support.
Recognizing the inability of existing police practices to curb rising civil disorder and crime, police administrators, civic leaders, and politicians sought to remedy frayed police-community relations and reform how law enforcement related to the communities it served. These reforms emphasized community contribution and support to legitimize police activity-and to create a partnership between the community and the police to meet public safety goals.
The hallmark of community-oriented policing is a return to a historical policing mainstay: foot patrol, or, "cops on the beat." Government reports, academic studies, and news articles consistently formulate community-oriented policing as a strategy based on building trust between police and the communities they serve through direct interaction with individuals within the communities. As a 1994 DOJ monograph on community policing explained:
The foundations of a successful community policing strategy are the close, mutually beneficial ties between police and community members. Community policing consists of two complementary core components, community partnership and problem solving . To develop community partnership, police must develop positive relationships with the community, must involve the community in the quest for better crime control and prevention, and must pool their resources with those of the community to address the most urgent concerns of community members. Problem solving is the process through which the specific concerns of communities are identified and through which the most appropriate remedies to abate these problems are found.
More "cops on the beat" proved enormously politically popular and, more importantly, measurably contributed to public safety. Studies conducted throughout the 1970s suggest that foot patrol "reduced fear, increased citizen satisfaction with police, improved police attitudes toward citizens, and increased the morale and job satisfaction of police." Significantly, the foot patrol experiments of this decade suggested that the more information police learned directly from community members, the better police could effectively combat crime.
By the 1980s, most law enforcement agencies had adopted community-oriented policing practices. Around 1980, DOJ began to support community-oriented policing efforts through various implementation and research grants. Many police departments participated in "demonstration projects" in the early 1980s, "reflecting an innovative period for the development of practical application of the community policing paradigm."
Over the 1980s and early 1990s, community-oriented policing continued to gain momentum and wider acceptance by law enforcement agencies. It is estimated that by 1992, 50% of police departments in cities with populations of 50,000 or more had adopted some form of community policing. A 1994 survey found that 80% of police chiefs and over 50% of sheriffs questioned stated that their departments had already adopted community policing or desired to adopt it in the future.
On December 20, 1993, President Clinton announced an award of approximately $50 million in grants to 74 cities to hire 658 more police officers "to put more police on the street and expand community policing." Describing these first 74 awards of the Police Hiring Supplement Program as a "down payment" on a goal to hire 100,000 police officers across the country, President Clinton remarked, "we know community policing works." Mayor Richard Riordan of Los Angeles campaigned on a pledge to put thousands more police officers on the street, and his newly elected administration secured on behalf of Los Angeles one of the first 74 awards, receiving $4 million to train and pay 54 new recruits. By May 1994, DOJ had awarded $100 million more to 176 jurisdictions to hire or rehire 1,365 officers.
B. The Public Safety Partnership and Community Policing Act of 1994
Against this backdrop, Congress passed the Act to establish the COPS grant program. Pub. L. No. 103-322, §§ 10001-10003, 108 Stat. 1796, 1807-15 (codified as amended at 34 U.S.C. §§ 10381 - 10389 ). Enacted as part of the Violent Crime Control and Law Enforcement Act of 1994, the Act authorized grants for community-oriented policing: techniques that "strengthen the relationship between the police and the people they serve, fostering trust and increasing accountability." H.R. Rep. No. 103-324, at 7 (1993). As a House Report stated, "[t]he newest development in law enforcement techniques is also one of the oldest-police officers walking a beat." Id. at 6. The Act's express purposes include "substantially increas[ing] the number of law enforcement officers interacting directly with members of the community ('cops on the beat')" and "provid[ing] additional and more effective training to law enforcement to enhance their problem solving, service, and other skills needed in interacting with members of the community." § 10002, 108 Stat. at 1807. As reported out of the House Judiciary Committee, the bill was enacted "to allow grants to increase police presence, to expand and improve cooperative efforts between law enforcement agencies and members of the community to address crime and disorder problems, and otherwise to enhance public safety." H.R. Rep. No. 103-324, at 1.
The Act rested on Congress's findings that community-oriented policing would enhance public safety: "community-oriented policing ('cops on the beat') enhances communication and cooperation between law enforcement and members of the community; such communication and cooperation between law enforcement and members of the community significantly assists in preventing and controlling crime and violence, thus enhancing public safety." 103 Cong. Rec. 23,376, 23,475 (1994). Similarly, the House Judiciary Committee Report noted three purposes for the COPS grants: "to increase police presence, to enhance police-community cooperation in addressing crime and disorder, and otherwise to enhance public safety." H.R. Rep. No. 103-324, at 9 (emphasis added).
Consistent with the Act's statutory purposes, Congress authorized the Attorney General to "make grants ... to increase police presence, to expand and improve cooperative efforts between law enforcement agencies and members of the community to address crime and disorder problems, and otherwise to enhance public safety." § 10003, 108 Stat. at 1808 (inserting new sections 1701 to 1709 into title I of the Omnibus Crime Control and Safety Streets Act of 1968). In October 1994, Attorney General Janet Reno established the COPS Office to distribute and monitor congressional appropriations for statutorily authorized programs, including the COPS Hiring Program grant program.
Nothing in the congressional record nor the Act itself remotely mentions immigration or immigration enforcement as a goal. And nothing in the Act discusses "federal partnerships" for civil immigration enforcement. In the quarter-century of the Act's existence, Congress has not once denoted civil immigration enforcement as a proper purpose for COPS grants.
C. COPS Hiring Program Grants
The Act, codified at 34 U.S.C. §§ 10381 to 10389, delegates to the Attorney General the authority to (1) "carry out a single grant program" under which he makes grants for twenty-three congressionally determined purposes, with permission to extend preferential consideration under three specified circumstances, 34 U.S.C. § 10381(a), (b), (c) ; (2) "prescribe by regulation or guidelines" information contained in applications for COPS grants, id. § 10382(b); and (3) oversee the ministerial processes involved in administering, monitoring, and evaluating funded projects, id. §§ 10385-10386. Congress periodically updates the statutory purposes for COPS Office grants. See, e.g. , Law Enforcement Mental Health and Wellness Act of 2017, Pub. L. No. 115-113, 131 Stat. 2276, 2276 (2018) (codified at 34 U.S.C. § 10381(b)(23) ) (adding "peer mentoring mental health and wellness pilot programs" as a purpose for COPS grants). These statutory provisions underscore Congress's stated purposes in passing the Community Policing Act of 1994. See § 10002, 108 Stat. at 1807.
For COPS Hiring Program grants, Congress has appropriated funds to solicit applications and award grants for hiring or rehiring "law enforcement officers for deployment in community-oriented policing." 34 U.S.C. § 10381(b)(1)-(2). In the history of the grant program, Congress has only ever appropriated funds for these two purposes. That is, Congress has yet to authorize funding for the remaining twenty-one purposes for which the COPS Office may make grants.
As Congress directed, jurisdictions must apply to the Attorney General to receive COPS funding. Id. § 10382(a). Congress empowered the Attorney General to prescribe the application's form and contents but also mandated several explicit application requirements. Id. § 10382(b), (c). Grant applicants must, for example, "demonstrate a specific public safety need" 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. § (c)(2), (10). Grant applicants must also identify a "crime and disorder problem/focus area" that officers hired with COPS Hiring Program funding would address "to ensure that [applicants] satisfy the requirements for COPS Office funding" and "to ensure that ultimately the additional grant-funded officers ... will initiate or enhance [an] agency's capacity to implement community policing strategies and approaches."
Each year, the COPS Office scores and ranks each submitted application to determine which applications to fund. The electronic COPS Hiring Program application system assigns a specific (and undisclosed) number of points for each answer an applicant jurisdiction provides. The Office categorizes each question on the application as falling into the "fiscal health," "crime," or "community policing" categories; generally, answers in the "fiscal health" category account for 20% of the final score, answers to "crime" questions for 30%, and answers to "community policing" questions for 50%.
COPS grants are competitive; congressional appropriations have been historically inadequate to fund the amount of grant requests. Accordingly, since the fiscal year 2011 application cycle, the COPS Office has determined priority focus areas for the COPS Hiring Program and awarded bonus points to applications that focus on that year's priority areas. The bonus points give a competitive advantage to the applicant. Jurisdictions also receive bonus points if catastrophic events have affected their law enforcement agencies. Furthermore, Congress permitted the Attorney General to "give preferential consideration, where feasible" specifically to applications that commit to contributing more than 25% of the grant to hiring and rehiring officers. Id. § 10381(c)(1). Congress also permitted the Attorney General to accord preferential consideration to applications from states with safe harbor laws for human trafficking victims-that is, for this limited factor unrelated to COPS grant purposes. See id. § 10381(c)(2)-(3). DOJ usually announces the awards by September 30 of each year.
D. Federal Funding in the Trump Administration
The Trump Administration was openly determined to deprive jurisdictions with so-called "sanctuary" policies of federal funds. Five days after his inauguration, President Trump attempted to withhold federal funding from "sanctuary" jurisdictions by executive order in an effort to deliver on his campaign promise to "end the sanctuary cities that have resulted in so many needless deaths." See Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) ("Enhancing Public Safety in the Interior of the United States"). Section 9(a) of the executive order directs "the Attorney General and the Secretary" to "ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary." Id. at 8801. Within three months, a federal district court preliminarily enjoined Section 9(a), a decision made permanent that fall. See County of Santa Clara v. Trump , 275 F. Supp. 3d 1196 (N.D. Cal. 2017), aff'd in part, vacated in part, remanded sub nom. City & County of San Francisco v. Trump , 897 F.3d 1225 (9th Cir. 2018) ; County of Santa Clara v. Trump , 250 F. Supp. 3d 497 (N.D. Cal. 2017). Our court agreed that the President's attempt to wrest for his policy goals the power of the purse vested exclusively in Congress violated the U.S. Constitution's separation of powers. City & County of San Francisco v. Trump , 897 F.3d 1225, 1231-35 (9th Cir. 2018).
In March 2017, Attorney General Jefferson B. Sessions III ordered a review of all DOJ activities, including all grant programs such as the COPS grant program. Memorandum from Jefferson B. Sessions III, U.S. Attorney Gen., to Heads of Dep't Components & U.S. Attorneys, Supporting Federal, State, Local and Tribal Law Enforcement (Mar. 31, 2017). According to the March 2017 memorandum, this review would ensure that all DOJ activities "fully and effectively promote[d]" several "principles" to advance the DOJ mission statement. Id. at 2. One principle declared that "[c]ollaboration between federal and local law enforcement is important, and jurisdictions whose law enforcement agencies accept funding from the Department are expected to adhere to the Department's grant conditions as well as to all federal laws." Id.
This review resulted in major changes to COPS Office programs. For example, Attorney General Sessions's directive reduced the COPS Collaborative Reform Initiative for Technical Assistance, which DOJ created to help reform beleaguered police departments, from a program that investigated and suggested reforms to police departments to a mere grant-making body. See Press Release, U.S. Dep't of Justice, Department of Justice Announces Changes to the Collaborative Reform Initiative (Sep. 15, 2017). And, in July 2017, Attorney General Sessions limited the award of grants under the Edward Byrne Memorial Justice Assistance Grant (Byrne JAG) Program, which awards funding for local criminal justice efforts through a statutory formula, see 34 U.S.C. § 10152, to only those jurisdictions that "allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities." Press Release, U.S. Dep't of Justice, Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs (July 25, 2017). To date, every court to consider the challenges to immigration enforcement conditions the Trump DOJ imposed on the Byrne JAG grants has soundly rejected them as unconstitutionally exceeding DOJ's statutory authority.
Turning to the COPS Hiring Program grants, DOJ decided, for the first time in the fiscal year 2017 application cycle, to award bonus points to jurisdictions that committed to "partnering with the federal law enforcement to address illegal immigration." Applicants could earn these bonus points by partnering with the federal government in two ways. First, they could select "illegal immigration" as the focus area on their applications. This focus area required jurisdictions to detail how newly hired officers would cooperate with federal immigration authorities through "information sharing, 287(g) partnerships, task forces and honoring detainers."
These means of "partnering with the federal law enforcement" were well understood methods of federal deployment of local police officers in civil immigration enforcement. With "information sharing," state and local police share arrest data with the Federal Bureau of Investigation (FBI). See Cristina Rodríguez, Enforcement, Integration, and the Future of Immigration Federalism , 5 J. on Migration & Hum. Security 509, 519 (2017). Pursuant to 8 U.S.C. § 1722, the FBI then shares that information with the Department of Homeland Security (DHS), which compares the arrest data to that in its own databases to determine whether an individual in state or local custody is removable. Id. A "287(g) partnership" authorizes the Attorney General in limited circumstances to enter into a formal agreement for state or local officers to act as immigration officers, "subject to the direction and supervision of the Attorney General." 8 U.S.C. § 1357(g)(1), (3) ; see also Arizona v. United States , 567 U.S. 387, 408-09, 132 S.Ct. 2492, 183 L.Ed.2d 351 (2012). The "task force" model of 287(g) agreements "makes immigration status checks part of state or local police work in the field." Hiroshi Motomura, Immigration Outside the Law 79 (2014); see also Arizona , 567 U.S. at 410-13, 132 S.Ct. 2492. Finally, "honoring detainers" asks state and local law enforcement to comply with DHS requests to advise the agency of when individuals in their custody would otherwise be released, so that DHS can arrange to assume custody. See 8 C.F.R. § 287.7(a) ; see also City & County of San Francisco , 897 F.3d at 1241 n.7.
Second, two months after the 2017 applications were due, DOJ announced a bonus consideration: applicants could submit a "Certification of Illegal Immigration Cooperation" (Cooperation Certification), which required a jurisdiction's highest-ranking law enforcement official and government executive to certify that the jurisdiction had already or would "implement rules, regulations, policies, and/or practices that" provide DHS (1) "access to any of the governing body's correctional or detention facilities in order to meet with an alien (or an individual believed to be an alien) and inquire as to his or her right to be or to remain in the United States" (the "access" requirement) and (2) "advance notice as early as practicable ... to DHS regarding the scheduled release date and time of an alien in the jurisdiction's custody when DHS requests such notice in order to take custody of the alien" (the "notice" requirement). Announcing the Cooperation Certification option, Attorney General Sessions explained that local and state law enforcement agency cooperation with federal authorities "make[s] all of us safer by helping remove dangerous criminals from our communities." Press Release, U.S. Dep't of Justice, Department of Justice Announces Priority Consideration Criteria for COPS Office Grants (Sep. 7, 2017). At no point has DOJ indicated that the "illegal immigration" focus area and Cooperation Certification (together, the "federal immigration preferences") are in any way related to community-oriented policing.
In fiscal year 2017, the COPS Office received 1142 applications requesting $409,028,743 in funding. Los Angeles requested $3.125 million to hire 25 officers for the city's Community Safety Partnership Program. It neither selected "illegal immigration" as its focus area nor submitted a signed Cooperation Certification. One out of the 90 large applicant jurisdictions and 6 out of the 1029 small applicant jurisdictions selected "illegal immigration" as a focus area. Approximately 39% of the large jurisdictions and 47% of the small jurisdictions submitted the Cooperation Certification.
The COPS Office denied Los Angeles's application on November 28, 2017. The week before, on November 20, 2017, the COPS Office awarded $98,503,539 to 179 jurisdictions for the fiscal year 2017 application cycle. Attorney General Sessions personally announced the 2017 awards. He recognized that eighty percent of the grantees "have agreed to cooperate with federal immigration authorities in their detention facilities" and "applaud[ed grantees'] commitment to the rule of law and to ending violent crime, including violent crime stemming from illegal immigration."
Aside from abstract allusions to public safety, DOJ has never articulated how the federal immigration preferences relate to community-oriented policing. This is no doubt because enforcement of federal immigration policy is entirely unrelated to community-oriented policing, as amici current and former prosecutors and law enforcement leaders point out. And this is why DOJ's imposition of the illegal immigration focus area and Cooperation Certification was enjoined by the district court: by imposing conditions that are unrelated-indeed, antithetical-to the goals of community-oriented policing, DOJ exceeded its delegated powers to administer the COPS grant program.
II.
DOJ exceeded its statutory authority specifically by giving preference to jurisdictions willing to partner with federal immigration enforcement authorities. Its decision to implement both the illegal immigration focus area and the Cooperation Certification is foreclosed by the text, structure, and purpose of the Community Policing Act. See La. Pub. Serv. Comm'n v. FCC , 476 U.S. 355, 359, 106 S.Ct. 1890, 90 L.Ed.2d 369 (1986). "[A]n agency literally has no power to act ... unless and until Congress confers power upon it." Id. at 374, 106 S.Ct. 1890. Here, the Act both prescribes the directives the Attorney General must follow and circumscribes the discretion he may exercise in executing the COPS grant program. "When Congress limits the purpose for which a grant can be made, it can be presumed that it intends that the dispersing agency make its allocations based on factors solely related to the goal of implementing the stated statutory purposes in a reasonable fashion, rather than taking irrelevant or impermissible factors into account." Robbins v. Reagan , 780 F.2d 37, 48 (D.C. Cir. 1985) (per curiam). When agencies "act improperly ... what they do is ultra vires." City of Arlington v. FCC , 569 U.S. 290, 297, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013). The federal immigration preferences flout the clear congressional purpose of COPS grants-to promote partnership between local law enforcement and the communities they serve-by instead favoring partnerships between local police and federal immigration authorities. See 34 U.S.C. § 10381(b)(1)-(2) ; H.R. Rep. No. 103-324, at 7.
Congress did not authorize COPS grants for anything other than placing additional state and local cops on the beat to promote community partnerships. 34 U.S.C. § 10382 authorizes DOJ to evaluate the applications of law enforcement agencies competing for limited grant funding, but in exercising this discretion, DOJ must adhere to Congress's express purpose of promoting local and state law enforcement agencies' efforts to "interact[ ] directly with members of the community." § 10002, 108 Stat. at 1807; see also 34 U.S.C. § 10381(b)(1)-(2) ; cf. Alexander v. Sandoval , 532 U.S. 275, 291, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001) ("Agencies may play the sorcerer's apprentice but not the sorcerer himself."). For example, grant applications must require law enforcement agencies to "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." 34 U.S.C. § 10382(c)(10). Congress also specifically permitted the Attorney General to give "preferential consideration" to applicants in only three specified circumstances, none of which is related to immigration. Id. § 10381(c). For example, section 10381(c)(2) and (3) specifically encourages states and localities to adopt a federal policy priority-treating human trafficking victims leniently-otherwise unrelated to the goal of promoting community-oriented policing. The clear import of this section demonstrates Congress's intention to authorize DOJ to accord preference beyond community-oriented policing only where it expressly authorizes DOJ to do so. If, as DOJ urges, the agency has unfettered discretion to impose additional preferences, subsection (c) has no meaning. See Chubb Custom Ins. Co. v. Space Sys./Loral, Inc. , 710 F.3d 946, 965-66 (9th Cir. 2013).
The illegal immigration focus area impermissibly extends preferences to partnerships between local police and federal immigration authorities, contravening the Act's identified purpose of "law enforcement officers interacting directly with members of the community." § 10002, 108 Stat. at 1807. The current COPS grant application instructions require jurisdictions that select the illegal immigration focus area to "specify your focus on partnering with the federal law enforcement to address illegal immigration for information sharing, 287(g) partnerships, task forces and honoring detainers." It is telling that in no other focus area on the application is the applicant required to explain how it would use the grant to partner with the federal government as opposed to partnering with the community it serves. Furthermore, whereas the "illegal immigration" focus area mandates specific commitment to four conjunctive avenues of cooperation with federal immigration enforcement, all other focus areas allow for wide discretion by applicants to propose program ideas implementing those areas. For example, the "drug abuse education, prevention, and intervention" focus area instructs applicants to "specify your focus on education, prevention, and intervention to combat drug use and abuse; for example , marijuana, heroin, prescription opioids, etc. " (Emphases added).
Congress never contemplated that COPS funds would be used to finance state or local police officers performing the function of federal immigration officers, as certifying "section 287(g) partnerships" would suggest. See 8 U.S.C. § 1357(g)(1). Under § 1357 itself, local police officers operating under an agreement to carry out the functions of federal immigration officers must be "at the expense of the State or political subdivision." Id. Congress could not have contemplated the absurdity of the Attorney General awarding grants to fund the section 287(g) partnerships that states were statutorily bound to pay for themselves. And it's difficult to see how awarding a grant for state or local police to act as federal immigration officers furthers the congressional purpose of community-oriented policing.
The required focus on "honoring detainers" is no less problematic. Detainers, federal immigration enforcement requests for local jurisdictions to use their own funds to detain individuals in their custody after the individuals' scheduled release, foist upon local police federal policy priorities that have nothing to do with community-oriented policing. See 8 C.F.R. § 287.7 ;
City & County of San Francisco , 897 F.3d at 1241 n.7. DOJ offers no explanation plausibly connecting detainer requests to "enhanc[ing] police-community cooperation." H.R. Rep. No. 103-324, at 9 (emphasis added).
The Cooperation Certification is likewise ultra vires . DOJ argues that the federal immigration preferences are a permissible exercise of DOJ's authority under § 10381(b)(1) and (2) because "illegal immigration enforcement is a public safety issue" that "can be addressed most effectively through the principles of community policing that [the COPS Hiring Program] promotes." But providing federal immigration authorities advance notice of detainees' release and access to local jails, as the Cooperation Certification demands, is completely untethered to "the principles of community policing" authorizing the COPS grant program. See 34 U.S.C. § 10381(b)(1)-(2). It may be that illegal immigration enforcement is a public safety issue, but, as the City of Los Angeles argues, demanding that local police partner with federal immigration enforcement could well erode the trust and mutual respect on which community policing depend, to the detriment of public safety. A 2017 Pew Research Center survey reported that two-thirds of Hispanic immigrants and about half of all Hispanic adults in the United States worry "a lot" or "some" about the deportation of themselves or someone close to them. With this rising fear of federal immigration enforcement, police officers have reported a concomitant decline in crime reporting. As of April 2017, for example, reports in Los Angeles of sexual assault among Latinos dropped 25% and reports of domestic violence by 10% compared to the year prior. Chief of the Los Angeles Police Department Charlie Beck explained that these downturns were likely due to fear of the federal government. Unreported and therefore unpunished crimes lead to "greater numbers of perpetrators at large," posing a clear threat to community safety. In fact, a 2012 COPS Office study identified federal immigration enforcement as detrimental to "local trust-building" because immigrant communities "may attribute immigration raids or other federal immigrant enforcement activities to local police and, therefore, mistrust community policing efforts."
The Seventh Circuit has similarly recognized that the Cooperation Certification's notice and access requirements could result in under-reported crime and thereby undermine public safety:
[P]ersons who are here unlawfully-or who have friends or family members here unlawfully-might avoid contacting local police to report crimes as a witness or a victim if they fear that reporting will bring the scrutiny of the federal immigration authorities to their home. ... [T]he reluctance to report ... could be magnified in communities where reporting could turn a misdemeanor into a deportation. And the failure to obtain ... cooperation could both hinder law enforcement efforts and allow criminals to freely target communities with a large undocumented population, knowing that their crimes will be less likely to be reported.
City of Chicago , 888 F.3d at 280.
All policing is ultimately designed with public safety in mind. But, all policing is not community-oriented policing, which fosters partnership between the police and their communities, not the partnerships between police and federal immigration enforcement that the federal immigration preferences require. Because such a focus is directly at odds with, and arguably undermines the very purpose of, the Act and the COPS grant program, the Attorney General exceeded his authority by adding them as preferences for grant awards.
III.
The COPS grant program was enacted to increase the number of "cops on the beat" who would enter into partnership with their communities, furthering trust and respect, with the ultimate goal of public safety. DOJ may have imposed the federal immigration preferences because it shares that goal of public safety, but that is where the mutuality between the Community Policing Act and DOJ's immigration enforcement policy ends. The preference for applicants who abandon community partnerships in favor of federal immigration partnerships is directly contrary to the language, structure, history, and purpose of the Act. By enacting the COPS grant program, Congress did not authorize DOJ to coopt local and state officers into carrying out the current or any other presidential administration's agenda, unrelated to community-oriented policing. Cooperation between local police and federal immigration enforcement oppugns the police-community partnership the COPS Hiring Program was created to promote. I 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 COPS grants.
The majority opinion is simply inaccurate on this point. See Majority Op. at 1170 n.2. It is only for the COPS Hiring Program-the grant program at issue here-that Congress has ever appropriated funds for the community-oriented policing purposes delineated in 34 U.S.C. § 10381(b)(1) and (2).
I agree with the majority and the district court that the City of Los Angeles has standing and that the case is not moot under the "capable of repetition yet evading review" exception.
Bureau of Justice Assistance, U.S. Dep't of Justice, Understanding Community Policing: A Framework for Action vii (1994) [hereinafter 1994 Monograph].
Id. at 5-7 (quoting Sir Robert Peel's remarks upon establishing the London Metropolitan Police).
Gayle Fisher-Stewart, Int'l City/Cty. Mgmt. Ass'n, Community Policing Explained: A Guide for Local Governments 3 (2007) [hereinafter 2007 Local Government Guide] (report created with COPS Office support); George L. Kelling & Mark H. Moore, The Evolving Strategy of Policing , Perspectives on Policing, Nov. 1988, at 8-9 (citation omitted) (publication of National Institute of Justice, U.S. Department of Justice, and the Program in Criminal Justice Policy and Management, John F. Kennedy School of Government, Harvard University); Michael Norman, One Cop, Eight Square Blocks , N.Y. Times Mag. (Dec. 12, 1993), https://nyti.ms/29jx5SU (last visited May 22, 2019).
Kelling & Moore, supra note 5, at 8.
Id.
1994 Monograph, supra note 3, at 6.
Kelling & Moore, supra note 5, at 9.
See 1994 Monograph, supra note 3, at 7; see also 2007 Local Government Guide, supra note 5, at 3.
See Kelling & Moore, supra note 5, at 11-12.
Id. at 10; Norman, supra note 5.
See, e.g. , 1994 Monograph, supra note 3, at 13-17; Kelling & Moore, supra note 5, at 12; Office of Cmty. Oriented Policing Servs., U.S. Dep't of Justice, Community Policing Defined 1 (2014); U.S. Gen. Accounting Office, GAO/GGD-96-4, Community Policing: Information on the "COPS on the Beat" Grant Programs 1 (1995) [hereinafter 1995 GAO Report].
1994 Monograph, supra note 3, at 13.
Kelling & Moore, supra note 5, at 10.
Id.
Id.
2007 Local Government Guide, supra note 5, at 3.
1995 GAO Report, supra note 13, at 1.
Willard M. Oliver & Elaine Bartgis, Community Policing: A Conceptual Framework , 21 Policing: Int'l J. Police Strategy & Mgmt. 490, 490 (1998).
See Norman, supra note 5.
Oliver & Bartgis, supra note 20, at 490.
Id.
Community Policing Grants Announcement , C-SPAN (Dec. 20, 1993), https://www.c-span.org/video/?53243-1/community-policing-grants-announcement (last visited May 22, 2019); Policing Hiring Supplement Program , Bureau of Justice Assistance Fact Sheet (Bureau of Justice Assistance, U.S. Dep't of Justice), Nov. 1995, at 2, https://www.ncjrs.gov/pdffiles/polhirng.pdf (last visited May 22, 2019); see also Sharon LaFraniere et al., FY 1994 , Wash. Post (Apr. 9, 1993), https://www.washingtonpost.com/archive/politics/1993/04/09/fy-1994/f62d729a-d631-44cf-8a2c-c4d90b96f44f/?utm_term=.d4d4d6569379 (last visited May 22, 2019) ("Clinton proposes [in his FY 1994 budget] spending $50 million on 'community policing' programs that strike to get officers out of patrol cars and more in touch with neighborhoods.").
DOJ distributed funds for the Police Hiring Supplement Program from the Supplemental Appropriations Act of 1993, Pub. L. No. 103-50, 107 Stat. 241. See David Teasley & JoAnne O'Bryant, Cong. Res. Serv., 97-196 GOV, The Community Oriented Policing Services (COPS) Program: An Overview 3 (2003).
Community Policing Grants Announcement, supra note 24.
NBC Today Show: Los Angeles Gets Federal COPS Grant-But Is It Enough? (NBC television broadcast Dec. 21, 1993) (referencing Mayor Richard Riordan's campaign promise to put 3,500 new officers on the street).
Policing Hiring Supplement Program , supra note 24, at 2.
The other two stated purposes are to "encourage the development and implementation of innovative programs to permit members of the community to assist State, Indian tribal government, and local law enforcement agencies in the prevention of crime in the community" and to "encourage the development of new technologies to assist State, Indian tribal government, and local law enforcement agencies in reorienting the emphasis of their activities from reacting to crime to preventing crime." Id.
Teasley & O'Bryant, supra note 25, at 3. The COPS Hiring Program is one of six grant programs the COPS Office administers.
Philip Bump, Here's What Donald Trump Said in His Big Immigration Speech, Annotated , Wash. Post (Aug. 31, 2016), http://wapo.st/2cg2kS9?tid=ss_tw&utm_term=.146ecbf7c567 (last visited May 23, 2019); see also Office of the Press Sec'y, President Donald J. Trump Taking Action Against Illegal Immigration , White House (June 28, 2017), http://www.whitehouse.gov/the-pressoffice/2017/06/28/president-donald-j-trump-taking-action-against-illegal-immigration (last visited May 23, 2019) (quoting the President's August 31, 2016, remarks).
https://www.justice.gov/opa/press-release/file/954916 (last visited May 23, 2019).
https://www.justice.gov/opa/pr/department-justice-announces-changes-collaborative-reform-initiative (last visited May 23, 2019); see also Mary Kay Mallonee & Eli Watkins, DOJ Scaling Back Program to Reform Police Departments , CNN Pol. (Sep. 15, 2017), https://www.cnn.com/2017/09/15/politics/dojpolice-program/index.html (last visited May 23, 2019).
http://www.justice.gov/opa/pr/attorney-general-sessions-announces-immigration-compliance-requirements-edward-byrne-memorial (last visited May 23, 2019).
See City of Philadelphia v. Attorney Gen. , 916 F.3d 276, 284-91 (3d Cir. 2019) ; City of Chicago v. Sessions , 888 F.3d 272, 283-87 (7th Cir.), vacated in part on other grounds , No. 17-2991, 2018 WL 4268817 (7th Cir. June 4, 2018) ; New York v. Dep't of Justice , 343 F. Supp. 3d 213, 227-31 (S.D.N.Y. 2018), appeal docketed sub nom. City of New York v. Whitaker , No. 19-275 (2d Cir. Jan. 28, 2019); City & County of San Francisco v. Sessions , 349 F. Supp. 3d 924, 945-48, 954-55 (N.D. Cal. 2018), appeal docketed sub nom. City & County of San Francisco v. Whitaker , No. 18-17308 (9th Cir. Dec. 4, 2018); City of Chicago v. Sessions , 321 F. Supp. 3d 855, 874-76 (N.D. Ill. 2018) ; City of Philadelphia v. Sessions , 309 F. Supp. 3d 289, 321 (E.D. Pa. 2018), aff'd in part, vacated in part sub nom. City of Philadelphia v. Attorney Gen. , 916 F.3d 276 (3d Cir. 2019).
The other fiscal year 2017 focus areas were: "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 crime problems."
https://www.justice.gov/opa/pr/department-justice-announces-priority-consideration-criteria-cops-office-grants (last visited May 23, 2019).
The amici include current and former assistant U.S. attorneys, DOJ attorneys, district attorneys, police department chiefs, state's attorneys, and sheriffs.
The majority goes astray by finding no meaning in Congress's use of the term "community-oriented policing" and then deferring under Chevron to DOJ's Orwellian effort to define "community-oriented policing" to include "partnering with federal law enforcement to address illegal immigration." Chevron deference is particularly unwarranted here because we can discern congressional intent "through the use of the traditional techniques of statutory interpretation." Ariz. Cattle Growers' Ass'n v. U.S. Fish & Wildlife , 273 F.3d 1229, 1237 (9th Cir. 2001) (quoting Chem. Mfrs. Ass'n v. Nat. Res. Def. Council, Inc. , 470 U.S. 116, 152, 105 S.Ct. 1102, 84 L.Ed.2d 90 (1985) ); see Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc. , 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). As the Supreme Court made clear in Chevron , "[t]he judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent." Chevron , 467 U.S. at 843 n.9, 104 S.Ct. 2778.
Congress well understood the problems of illegal immigration when it enacted the Community Policing Act. In fact, title XIII of the Violent Crime Control and Law Enforcement Act of 1994 (of which the Community Policing Act comprises title I) addresses "criminal aliens and immigration enforcement." See §§ 130001-130010, 108 Stat. at 2023-31. Nonetheless, Congress chose to omit illegal immigration in the Community Policing Act.
It is the majority opinion that distorts the plain language of § 1357(g)(1), which reads: "the Attorney General may enter into a written agreement with a State, or any political subdivision of a State, pursuant to which an officer or employee of the State or subdivision, who is determined by the Attorney General to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to the extent consistent with State and local law."
Latinos and the New Trump Administration , Pew Research Ctr.: Hispanic Trends (Feb. 23, 2017), http://www.pewhispanic.org/2017/02/23/latinos-and-the-new-trump-administration/ (last visited May 23, 2019).
Jennifer Medina, Too Scared to Report Sexual Abuse. The Fear: Deportation. , N.Y. Times (Apr. 30, 2017), https://nyti.ms/2pifXFC (last visited May 23, 2019) (reporting "a sharp downturn in reports of sexual assault and domestic violence among Latinos throughout the country [since the 2016 presidential election that] many experts attribute ... to fears of deportation"); see also James Queally, Fearing Deportation, Many Domestic Violence Victims Are Steering Clear of Police and Courts , L.A. Times (Oct. 9, 2017), https://www.latimes.com/local/lanow/la-me-ln-undocumented-crime-reporting-20171009-story.html (last visited May 23, 2019).
Medina, supra note 43.
Rafaela Rodrigues et al., Nat'l Immigrant Women's Advocacy Project, Promoting Access to Justice for Immigrant and Limited English Proficient Crime Victims in an Age of Increased Immigration Enforcement: Initial Report from a 2017 National Survey 103 (2018), http://library.niwap.org/wp-content/uploads/Immigrant-Access-toJustice-National-Report.pdf (last visited May 23, 2019).
Pradine Saint-Fort et al., Engaging Police in Immigrant Communities: Promising Practices from the Field 4 (Oct. 2012), https://goo.gl/ZGQfJA (last visited May 23, 2019) (funded by and published in partnership with the COPS Office).
Because I would hold that the DOJ's imposition of the federal immigration preferences is ultra vires , my analysis does not reach the spending clause or Administrative Procedure Act violations. Whichever of the three violations we consider, however, the fundamental point is the same: Congress did not authorize the Attorney General to act with unfettered discretion in imposing conditions for COPS grants unrelated to community-oriented policing.
As the district court noted, DOJ's "broad interpretation of [its] authority carries extraordinary implications. If the Attorney General can favor applicants based on any factors relevant to public safety, he enjoys nearly limitless discretion to select grant awardees in ways not even tangentially related to community policing." Today's political agenda is to increase federal immigration enforcement; tomorrow's may be to increase enforcement of federal gun registration and licensing. Both are related to public safety; neither is related to community-oriented policing.

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