                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


CITY OF LOS ANGELES,                      No. 18-55599
             Plaintiff-Appellee,
                                          D.C. No.
               v.                    2:17-cv-07215-R-JC

WILLIAM P. BARR, Attorney
General; ALAN R. HANSON, in                OPINION
his official capacity as Acting
Assistant Attorney General of
the Office of Justice Programs;
RUSSELL WASHINGTON, in his
official capacity as Acting
Director of the Office of
Community Oriented Policing
Services; UNITED STATES
DEPARTMENT OF JUSTICE,
          Defendants-Appellants.


      Appeal from the United States District Court
         for the Central District of California
       Manuel L. Real, District Judge, Presiding

        Argued and Submitted August 30, 2018
                Pasadena, California

                    Filed July 12, 2019
2               CITY OF LOS ANGELES V. BARR

       Before: Kim McLane Wardlaw, Jay S. Bybee,
            and Sandra S. Ikuta, Circuit Judges.

                    Opinion by Judge Ikuta;
                   Dissent by Judge Wardlaw


                          SUMMARY *


              Federal Spending / Immigration

    The 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.

    DOJ 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

    *
      This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
               CITY OF LOS ANGELES V. BARR                   3

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.

    As 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.

    The 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.

    The 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
4             CITY OF LOS ANGELES V. BARR

issue, the panel must defer to DOJ’s interpretation as long as
it is reasonable.

    The 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.

    Judge 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 COPS grants.


                        COUNSEL

Jesse 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 Defendants-Appellants.

David 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.
               CITY OF LOS ANGELES V. BARR                    5

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 Leaders.


                          OPINION

IKUTA, Circuit Judge:

    In 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.

     In 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
6             CITY OF LOS ANGELES V. BARR

not violate the Administrative Procedure Act, we reverse the
district court’s grant of summary judgment in favor of Los
Angeles.

                              I

    The 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).

    The 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
                  CITY OF LOS ANGELES V. BARR                              7

25 percent of the program cost. Id. § 10381(c)(1). 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.

    Congress 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). 2

     1
       The Act includes other technical requirements for awarding grants.
For instance, each state that applies or that contains an applying entity
must receive, together with any grantees in the state, at least .5 percent
of a fiscal year’s total allocation for the grant program. 34 U.S.C.
§ 10381(f). Second, allocated funds must be divided equally between
small (fewer than 150,000 people) and large (more than 150,000 people)
jurisdictions. Id. § 10261(a)(11)(B). Third, a grant cannot account for
more than 75 percent of a recipient program’s costs, although the
Attorney General can waive this requirement. Id. § 10381(g).
    2
       Contrary to the dissent, Dissent at 33 n.1, 43, Congress has set
aside funds that could be expended for any of § 10381’s purposes.
Appropriations bills have directed funds “for community policing
development activities in furtherance of [§ 10381’s purposes]” and “for
the collaborative reform model of technical assistance in furtherance of
[§ 10381’s purposes],” Consolidated Appropriations Act, Pub. L. 115-
31, Div. B, Tit. II, 131 Stat. 135, 207 (2017), as well as for the hiring and
rehiring of additional career law enforcement officers.
8              CITY OF LOS ANGELES V. BARR

    DOJ has 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 underlying
conditions.”

    The 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
                 CITY OF LOS ANGELES V. BARR                            9

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, 3 task forces
and honoring detainers.” 4

   DOJ evaluates, scores, and ranks the submitted
applications, then awards grant funds to the highest scoring
applicants. 5 The scoring process is designed to allocate
    3
       A § 287(g) partnership is a written agreement between the
Attorney General and a state or a local jurisdiction, under 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.” 8 U.S.C. § 1357(g)(1).
    4
        An “immigration detainer” is issued by the Department of
Homeland Security (DHS) to advise another law enforcement agency
that DHS seeks custody of an alien for arrest and removal, and serves as
“a request that such agency advise the Department, prior to release of the
alien, in order for the Department to arrange to assume custody, in
situations when gaining immediate physical custody is either
impracticable or impossible.” 8 C.F.R. § 287.7(a). Upon DHS’s request,
a law enforcement agency “shall maintain custody of the alien for a
period not to exceed 48 hours,” excluding weekends and holidays, “in
order to permit assumption of custody by” DHS. Id. § 287.7(d).
    5
      According to DOJ, it “does not disclose the number of points
assigned to any particular answer, because disclosing the scoring system
could skew the application process and subject that process to
manipulation.”
10             CITY OF LOS ANGELES V. BARR

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
               CITY OF LOS ANGELES V. BARR                  11

possible) to DHS regarding the scheduled release” of an
alien in custody.

    As 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.

    In 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
DOJ appealed.
12             CITY OF LOS ANGELES V. BARR

                               II

    Although 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.

     We 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
               CITY OF LOS ANGELES V. BARR                    13

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.

    We also 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
14            CITY OF LOS ANGELES V. BARR

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.

    Los 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.)

    Despite 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
               CITY OF LOS ANGELES V. BARR                  15

immigration-related issues is sufficient to give Los Angeles
standing in this action.

                              III

     Before 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.

                              A

    We 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.
16             CITY OF LOS ANGELES V. BARR

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666,
686 (1999)).

    Although 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.

    Moreover, 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.

    Nor can the federal government attach conditions to the
receipt of federal funds if “the financial inducement offered
               CITY OF LOS ANGELES V. BARR                    17

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.

    Further, 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
18                CITY OF LOS ANGELES V. BARR

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 relatedness prong.

    Finally, Congress may not require states to engage in
actions that are themselves unconstitutional. Id. at 210–11.

    As even 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. 6 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

     6
       Our analysis requires us to bridge one gap in existing Spending
Clause precedent—that the principles of Dole and NFIB apply to agency-
drawn conditions on grants to states and localities just as they do to
conditions Congress directly places on grants. In both Dole and NFIB,
Congress had written the challenged conditions directly into the statutes
authorizing the grants. Here, conversely, Congress delegated the task of
specifying these conditions to DOJ. We see no reason why the addition
of an agency middleman either expands or contracts Congress’s power
to “provide for the . . . general Welfare,” U.S. Const. art. I, § 8, cl. 1, and
thus analyze DOJ’s conditions under the principles of Dole and NFIB.
                 CITY OF LOS ANGELES V. BARR                         19

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.

     At 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. 7

    Finally, 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



     7
       Because DOJ’s scoring process does not coerce an applicant or
authorize the federal government to exercise any control over state or
local law enforcement, it does not violate 34 U.S.C. § 10228(a), which
states: “Nothing in this chapter or any other Act shall be construed to
authorize any department, agency, officer, or employee of the United
States to exercise any direction, supervision, or control over any police
force or any other criminal justice agency of any State or any political
subdivision thereof.” Id. § 10228(a). We reject Los Angeles’s argument
to the contrary.
20             CITY OF LOS ANGELES V. BARR

purposes of the Act. See infra at 22–27. Accordingly, we
reject Los Angeles’s Spending Clause argument.

                               B

    Because 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.
              CITY OF LOS ANGELES V. BARR                  21

                             IV

    We now 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.

    When 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)).

   This 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
22                CITY OF LOS ANGELES V. BARR

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 (2005)).

    DOJ’s 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 jurisdictions. 8


     8
       In addition to listing the immigration focus area, the Application
Guidelines list multiple other focus areas, including violent crime, traffic
and pedestrian problems, and “quality of life policing.” While the Act
does not expressly mention any of these focus areas, its gives DOJ broad
discretion to identify and rank such a range of goals. Given DOJ’s
                 CITY OF LOS ANGELES V. BARR                          23

    Rather, 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).

    Second, 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

authority to administer the grant program along these lines, the dissent’s
argument that immigration enforcement cannot be a permissible focus
area because the Act makes no mention of immigration enforcement,
Dissent at 42, is meritless.
24                CITY OF LOS ANGELES V. BARR

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). 9
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.


     9
       Los Angeles argues that § 287(g) partnerships cannot be part of a
federally funded initiative because 8 U.S.C. § 1357(g)(1) requires
§ 287(g) partnerships to be undertaken “at the expense of the State or
political subdivision.” See also Dissent at 55 (stating that a local
officer’s participation in a § 287(g) partnership “must be ‘at the expense
of the State or political subdivision’” (emphasis added) (quoting
8 U.S.C. § 1357(g)(1))). Los Angeles and the dissent misunderstand
both § 1357(g)(1) and the grant program. Section 1357(g)(1) clarifies
only that states and localities are not entitled to federal reimbursement
for work carried out in a § 287(g) partnerships. See 8 U.S.C.
§ 1357(g)(1) (stating that an officer or employee of the state or
subdivision who is qualified to perform certain functions of an
immigration officer “may carry out such function at the expense of the
State or political subdivision”). The statute does not forbid the use of
federal funds to assist a state or local entity that has entered into such a
partnership. Moreover, DOJ has made clear that grant funds may be used
only to hire or rehire officers, not for any state or local expenses of a
§ 287(g) agreement.
               CITY OF LOS ANGELES V. BARR                     25

    Nor 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
Act’s purpose to enhance public safety, see VCCLEA
§ 1701(a), through means including both community-
oriented policing and attention to intelligence, anti-terror, or
homeland security duties. See 34 U.S.C. §§ 10381(b)(1)–
(2), (4).

    Finally, DOJ’s broad definition of community-oriented
policing in the Application Guidelines 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,” clearly encompasses all DOJ’s
scoring factors, including partnering with federal law
enforcement to address illegal immigration for information
sharing, [§] 287(g) partnerships, task forces, and honoring
detainers. The Act does not define “community-oriented
policing” or delineate what sorts of strategies are sufficiently
“community-oriented.” See Brand X, 545 U.S. at 980–81.
26               CITY OF LOS ANGELES V. BARR

Therefore, because Congress has not “directly spoken to the
precise question at issue,” we must defer to DOJ’s
interpretation so long as it is reasonable, that is, so long as it
“reflects a plausible construction of the plain language of the
statute and does not otherwise conflict with Congress’[s]
expressed intent.” Glacier Fish, 832 F.3d at 1120–21 (first
quoting Chevron, 467 U.S. at 842; then quoting Rust v.
Sullivan, 500 U.S. 173, 184 (1991)). 10 This is true even if
the agency’s interpretation is “not necessarily the only
possible interpretation, nor even the interpretation deemed
most reasonable by the courts.”             Entergy Corp. v.
Riverkeeper, Inc., 556 U.S. 208, 218 (2009) (emphasis in
original).


     10
        The dissent offers a lengthy political history of community-
oriented policing, and asserts that Congress incorporated the dissent’s
view of the term “community-oriented policing” in the statute. Dissent
at 35–40, 52 n.39. But Congress enacts statutory text, not political
history, and the contours of “community-oriented policing” are not
“unambiguously expressed by the statutory language.” Zuni Pub. Sch.
Dist. No. 89 v. Dep’t of Educ., 550 U.S. 81, 93 (2007). “Policing” that
is “oriented” toward the “community” can describe a broad set of
policing techniques. These techniques may include direct police
interactions with the community in some circumstances. But the statute
does not limit community-oriented policing to such strategies, and other
techniques may be better suited to address the community’s priorities,
such as public safety issues related to illegal immigration. As the dissent
acknowledges, problem solving—“the process through which the
specific concerns of communities are identified and through which the
most appropriate remedies to abate these problems are found”—is a key
component of community-oriented policing, Dissent at 37–38, and a
range of different remedies may be valid for furthering the statute’s
public safety goals. In light of the statute’s broad purposes, we conclude
“the language of the statute is broad enough to permit” DOJ’s reasonable
definition of community-oriented policing. Zuni Pub. Sch. Dist., 550
U.S. at 100.
                 CITY OF LOS ANGELES V. BARR                           27

    Here, DOJ’s interpretation is permissible, because it
reasonably construes the statutory language (“community-
oriented” and “policing”) and is consistent with the statute’s
purposes, which go far beyond interactions between law
enforcement and the community. The general purpose of the
Act is to enhance the crime prevention functions of state and
local law enforcement and to enhance public safety through
interacting with and working with the community. See
34 U.S.C. § 10381(b); see also VCCLEA § 1701(a) (stating
that it is among the Act’s purposes “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”). 11

    The dissent argues that DOJ’s interpretation and
implementation of the Act may reflect the administration’s
policy goals, and these goals may change from time to time.
Dissent at 59 & n.48. We agree that an administration’s
policy goals may influence the selection of factors
warranting additional consideration for awarding
competitive grants. But Congress contemplated such a result

    11
        Although unnecessary to our analysis, the legislative history of
the Act supports DOJ’s broad interpretation of community-oriented
policing.      While facilitating increased interaction between law
enforcement and members of the community was one focus of
community-oriented policing as described in the legislative history, see
H.R. Rep. No. 103-324, at 6 (1993), the Judiciary Committee report on
the bill also notes intent to reduce law enforcement’s reliance on reactive
policing and renew law enforcement’s ability “to anticipate and prevent
crime by use of community-oriented, problem solving techniques,” id.
DOJ’s definition of community-oriented policing incorporates the focus
on community interaction with the additional goal of supporting
proactive policing that involves “analyzing crime and disorder problems,
working with the community on a search for alternative solutions,
implementing solutions, and evaluating their effectiveness.” Id. at 7.
28            CITY OF LOS ANGELES V. BARR

when it enacted a statute that left substantial gaps for the
implementing agency to fill. Where Congress affords an
agency such discretion, we ask only whether the agency’s
interpretation was reasonable. See Glacier Fish, 832 F.3d
at 1120.       Whether an interpretation serves an
administration’s policy goals has no bearing on that inquiry.
See Dep’t of Commerce v. New York, No. 18-966, slip op.
at 24 (U.S. June 27, 2019) (“[A] court may not set aside an
agency’s policymaking decision solely because it might
have been influenced by political considerations or
prompted by an Administration’s priorities.”).

    Los Angeles and the dissent also contend that DOJ
exceeded its authority by including the option of the illegal
immigration focus area and considering whether an
applicant submitted the Certification because DOJ is
constrained by § 10381(c), which states that the “Attorney
General may give preferential consideration, where feasible,
to an application” from “an applicant in a state” that has
certain human trafficking laws.           Dissent at 53–54.
According to this argument, DOJ’s inclusion of an illegal
immigration focus area in the Application Guidelines
renders §§ 10381(c)(2) and (c)(3) “superfluous” because
Congress would not have needed to enact §§ 10381(c)(2)
and (c)(3) if DOJ had the authority to favor applicants based
on efforts related to illegal immigration and other extraneous
matters. Dissent at 53–54.

    This argument lacks any support in the text or history of
the Act. First, it is based on Los Angeles’s baseless
assumptions that (1) preferring applicants who focus on
illegal immigration is the same as preferring states that have
enacted specified human trafficking laws, and (2) DOJ could
not prefer either without specific authorization from
Congress. Nothing in the Act supports these assumptions.
               CITY OF LOS ANGELES V. BARR                    29

First, as we have explained, an award of grant funds to states
or localities that intend to focus on illegal immigration is
well within the statute’s scope, and DOJ has broad discretion
to adopt such a focus area. Second, while § 10381(c)
encourages DOJ to give preferential consideration to states
with specified human trafficking laws, the statute does not
indicate whether DOJ would have lacked authority to do so
before the enactment of § 10381(c). More important, it is
clear that nothing in that section limits DOJ’s discretion to
select additional factors to assist it in allocating grant funds.
See id. § 10382(b). Had Congress intended to limit DOJ’s
discretion in ranking applications according to various
criteria, which DOJ had been doing for years before
Congress amended the Act to add § 10381(c), we would
expect Congress to give some express indication of such an
intent. It did not do so. Accordingly, we reject the argument
that § 10381(c) has any bearing on DOJ’s current
methodology.

    We conclude that DOJ did not exceed its statutory
authority in including two scoring factors related to illegal
immigration as part of its implementation of the grant
program.

                               V

    Finally, Los Angeles argues that DOJ violated the APA
because it failed to engage in reasoned decisionmaking and
because its explanation for its policy is contrary to the
evidence before it when it decided to give points for adopting
the illegal immigration focus and submitting the
Certification.

   “One of the basic procedural requirements of
administrative rulemaking is that an agency must give
adequate reasons for its decisions.” Encino Motorcars, LLC
30            CITY OF LOS ANGELES V. BARR

v. Navarro, 136 S. Ct. 2117, 2125 (2016). The agency
satisfies this requirement “when the agency’s explanation is
clear enough that its ‘path may reasonably be discerned.’”
Id. (quoting Bowman Transp., Inc. v. Arkansas–Best Freight
Sys., Inc., 419 U.S. 281, 286 (1974)). The agency need
provide only a “minimal level of analysis” to avoid its action
being deemed arbitrary and capricious. Id. Although a
reviewing court “must not rubber-stamp administrative
decisions,” it also “must not substitute its judgment for that
of the agency.” Alaska Oil, 815 F.3d at 554 (internal
quotation marks omitted). Agency action may also be
deemed arbitrary and capricious if the agency has “offered
an explanation for its decision that runs counter to the
evidence before the agency, or is so implausible that it could
not be ascribed to a difference in view or the product of
agency expertise.” Motor Vehicle Mfrs. Ass’n of the U.S. v.
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).

    According to Los Angeles, DOJ’s action was not based
on empirical evidence establishing that cooperation between
state and local authorities and federal authorities on illegal
immigration addresses crime or public safety issues. Los
Angeles points to studies it claims show that recidivism rates
for illegal aliens are not disproportionate relative to the
general population and to news articles describing studies
that it claims show that sanctuary policies do not lead to
increased crime rates. According to Los Angeles, DOJ
ignored these studies and articles, and also failed to make a
careful study of how community policing relates to civil
immigration enforcement. Because DOJ adopted its two
scoring factors without reviewing relevant evidence, Los
Angeles argues, DOJ’s scoring factors are arbitrary and
capricious, and thus invalid under the APA.
                CITY OF LOS ANGELES V. BARR                        31

    We disagree. Under the APA, an agency must give
adequate reasons for its decision, and DOJ has done so here.
DOJ has reasonably determined that “illegal immigration
enforcement is a public safety issue [that] can be addressed
most effectively through the principles of community
policing.” And because the Certification “relate[s] to non-
citizens who are being detained and who have committed
crimes or are suspected of having committed crimes,” DOJ
reasonably concluded that “[w]orking with the federal
government to enforce the federal immigration laws against
aliens who have committed crimes or are suspected of
having committed crimes makes communities safer.” As the
Supreme Court has noted, “increasing rates of criminal
activity by aliens” and federal immigration authorities’
failure to remove “deportable criminal aliens” have been the
subject of congressional concern. Demore, 538 U.S. at 518.

    Moreover, the studies and articles cited by Los Angeles
do not undercut DOJ’s conclusion that removing aliens who
are convicted or suspected of crimes makes communities
safer. At most, the studies and articles provide some
evidence that the recidivism rate for removable aliens who
engaged in criminal activities is comparable to the
recidivism rate for U.S. citizens and aliens who are not
removable; such studies do not bear on whether addressing
illegal immigration enforcement through community-
oriented policing can make communities safer. 12



    12
      See, e.g., Bianca E. Bersani, An Examination of First and Second
Generation Immigrant Offending Trajectories, 31 Just. Q. 315, 335
(2014); Jennifer S. Wong, Laura J. Hickman & Marika Suttorp-Booth,
Examining Recidivism Among Foreign-Born Jail Inmates: Does
Immigration Status Make a Difference over the Long Term?, 16 Global
Crime 265, 280–81 (2015).
32             CITY OF LOS ANGELES V. BARR

Accordingly, there is no basis for Los Angeles’s argument
that DOJ acted counter to the evidence before it.

    Los Angeles may believe that addressing illegal
immigration is not the most effective way to improve public
safety, but the wisdom of DOJ’s policy is not an element of
our arbitrary and capricious review. We may not “substitute
[our] judgment for that of the agency.” State Farm, 463 U.S.
at 43. And DOJ “need not demonstrate to [our] satisfaction
that the reasons for the new policy are better than the reasons
for the old one; it suffices that the new policy is permissible
under the statute, that there are good reasons for it, and that
the agency believes it to be better[.]” FCC v. Fox Television
Stations, Inc., 556 U.S. 502, 515 (2009) (emphasis in
original).

    We conclude that DOJ’s policy decision has a “rational
connection” to the goal of enhancing public safety and was
not counter to the evidence before the agency, and therefore
is not arbitrary and capricious. Alaska Oil, 815 F.3d at 554.

                              ***

   In sum, DOJ’s use of the two scoring factors is well
within its statutory discretion, is not arbitrary and capricious,
and complies with the constitutional restrictions imposed on
congressional action under principles of federalism and the
Spending Clause.

     REVERSED.
                 CITY OF LOS ANGELES V. BARR                        33

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. 1

   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

    1
      The majority opinion is simply inaccurate on this point. See
Majority Op. at 7 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).
34               CITY OF LOS ANGELES V. BARR

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. 2



     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.
                 CITY OF LOS ANGELES V. BARR                        35

                                  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.” 3 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.” 4 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. 5 Despite


    3
     Bureau of Justice Assistance, U.S. Dep’t of Justice, Understanding
Community Policing: A Framework for Action vii (1994) [hereinafter
1994 Monograph].
    4
    Id. at 5–7 (quoting Sir Robert Peel’s remarks upon establishing the
London Metropolitan Police).
    5
       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.
36                  CITY OF LOS ANGELES V. BARR

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. 6 The civil rights and antiwar
movements further challenged the legitimacy of police and
police tactics. 7 Police were inadequately equipped to serve
their socially and culturally diverse communities. 8 The
public’s “erosion of confidence” in the police translated into
a significant loss of political and financial support. 9

    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. 10 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. 11



Times Mag. (Dec. 12, 1993), https://nyti.ms/29jx5SU (last visited May
22, 2019).
     6
         Kelling & Moore, supra note 5, at 8.

     7
         Id.

     8
         1994 Monograph, supra note 3, at 6.
     9
         Kelling & Moore, supra note 5, at 9.

     10
      See 1994 Monograph, supra note 3, at 7; see also 2007 Local
Government Guide, supra note 5, at 3.
     11
          See Kelling & Moore, supra note 5, at 11–12.
                   CITY OF LOS ANGELES V. BARR                    37

    The hallmark of community-oriented policing is a return
to a historical policing mainstay: foot patrol, or, “cops on the
beat.” 12 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. 13 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


    12
         Id. at 10; Norman, supra note 5.

    13
       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].
38                  CITY OF LOS ANGELES V. BARR

            which the most appropriate remedies to abate
            these problems are found. 14

    More “cops on the beat” proved enormously politically
popular and, more importantly, measurably contributed to
public safety. 15 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.” 16 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. 17

    By the 1980s, most law enforcement agencies had
adopted community-oriented policing practices. 18 Around
1980, DOJ began to support community-oriented policing
efforts through various implementation and research
grants. 19  Many police departments participated in
“demonstration projects” in the early 1980s, “reflecting an




     14
          1994 Monograph, supra note 3, at 13.

     15
          Kelling & Moore, supra note 5, at 10.
     16
          Id.

     17
          Id.

     18
          2007 Local Government Guide, supra note 5, at 3.
     19
          1995 GAO Report, supra note 13, at 1.
                   CITY OF LOS ANGELES V. BARR                      39

innovative period for the development of practical
application of the community policing paradigm.” 20

    Over the 1980s and early 1990s, community-oriented
policing continued to gain momentum and wider acceptance
by law enforcement agencies. 21 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. 22 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. 23

    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.” 24 Describing these

    20
       Willard M. Oliver & Elaine Bartgis, Community Policing: A
Conceptual Framework, 21 Policing: Int’l J. Police Strategy & Mgmt.
490, 490 (1998).
    21
         See Norman, supra note 5.
    22
         Oliver & Bartgis, supra note 20, at 490.

    23
         Id.
    24
        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/f
62d729a-d631-44cf-8a2c-c4d90b96f44f/?utm_term=.d4d4d6569379
(last visited May 22, 2019) (“Clinton proposes [in his FY 1994 budget]
40                  CITY OF LOS ANGELES V. BARR

first 74 awards of the Police Hiring Supplement Program 25
as a “down payment” on a goal to hire 100,000 police
officers across the country, President Clinton remarked, “we
know community policing works.” 26 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. 27 By May 1994, DOJ had awarded
$100 million more to 176 jurisdictions to hire or rehire
1,365 officers. 28

     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


spending $50 million on ‘community policing’ programs that strike to
get officers out of patrol cars and more in touch with neighborhoods.”).
     25
       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).
     26
          Community Policing Grants Announcement, supra note 24.
     27
        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).
     28
          Policing Hiring Supplement Program, supra note 24, at 2.
                CITY OF LOS ANGELES V. BARR                        41

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.” 29 § 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

    29
       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.
42             CITY OF LOS ANGELES V. BARR

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. 30

    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.


    30
       Teasley & O’Bryant, supra note 25, at 3. The COPS Hiring
Program is one of six grant programs the COPS Office administers.
              CITY OF LOS ANGELES V. BARR                 43

           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
44             CITY OF LOS ANGELES V. BARR

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
                 CITY OF LOS ANGELES V. BARR                        45

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.” 31 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.

     31
        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-press-
office/2017/06/28/president-donald-j-trump-taking-action-against-illeg
al-immigration (last visited May 23, 2019) (quoting the President’s
August 31, 2016, remarks).
46              CITY OF LOS ANGELES V. BARR

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). 32
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.


     32
         https://www.justice.gov/opa/press-release/file/954916   (last
visited May 23, 2019).
                 CITY OF LOS ANGELES V. BARR                           47

    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). 33 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). 34 To
date, every court to consider the challenges to immigration
enforcement conditions the Trump DOJ imposed on the



    33
          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/doj police-program/index.ht
ml (last visited May 23, 2019).
    34
         http://www.justice.gov/opa/pr/attorney-general-sessions-announces-
immigration-compliance-requirements-edward-byrne-memorial             (last
visited May 23, 2019).
48               CITY OF LOS ANGELES V. BARR

Byrne JAG grants has soundly rejected them as
unconstitutionally exceeding DOJ’s statutory authority. 35

    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. 36 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

     35
        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).
     36
        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.”
               CITY OF LOS ANGELES V. BARR                  49

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 (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. 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
50               CITY OF LOS ANGELES V. BARR

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). 37 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.


     37
          https://www.justice.gov/opa/pr/department-justice-announces-
priority-consideration-criteria-cops-office-grants (last visited May 23,
2019).
                CITY OF LOS ANGELES V. BARR                       51

    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 38 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

    38
       The amici include current and former assistant U.S. attorneys,
DOJ attorneys, district attorneys, police department chiefs, state’s
attorneys, and sheriffs.
52               CITY OF LOS ANGELES V. BARR

implement both the illegal immigration focus area and the
Cooperation Certification is foreclosed by the text, structure,
and purpose of the Community Policing Act. 39 See La. Pub.
Serv. Comm’n v. FCC, 476 U.S. 355, 359 (1986). “[A]n
agency literally has no power to act . . . unless and until
Congress confers power upon it.” Id. at 374. 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 (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

     39
        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 (1985)); see Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
467 U.S. 837 (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.
                CITY OF LOS ANGELES V. BARR                        53

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 (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. 40 If, as DOJ

    40
      Congress well understood the problems of illegal immigration
when it enacted the Community Policing Act. In fact, title XIII of the
54              CITY OF LOS ANGELES V. BARR

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,



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.
                  CITY OF LOS ANGELES V. BARR                           55

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. 41

    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

     41
        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.”
56              CITY OF LOS ANGELES V. BARR

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. 42 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

    42
       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).
                  CITY OF LOS ANGELES V. BARR                          57

Angeles of sexual assault among Latinos dropped 25% and
reports of domestic violence by 10% compared to the year
prior. 43 Chief of the Los Angeles Police Department Charlie
Beck explained that these downturns were likely due to fear
of the federal government. 44 Unreported and therefore
unpunished crimes lead to “greater numbers of perpetrators
at large,” posing a clear threat to community safety. 45 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.” 46



    43
        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).
    44
         Medina, supra note 43.
    45
         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-to-
Justice-National-Report.pdf (last visited May 23, 2019).
    46
     Pradine Saint-Fort et al., Engaging Police in Immigrant
Communities: Promising Practices from the Field 4 (Oct. 2012),
58             CITY OF LOS ANGELES V. BARR

   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

https://goo.gl/ZGQfJA (last visited May 23, 2019) (funded by and
published in partnership with the COPS Office).
                 CITY OF LOS ANGELES V. BARR                          59

purpose of, the Act and the COPS grant program, the
Attorney General exceeded his authority by adding them as
preferences for grant awards. 47

                                  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. 48

    47
       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.
    48
       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
60             CITY OF LOS ANGELES V. BARR

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.




related to public safety; neither is related to community-oriented
policing.
