How Chicago Could Beat Trump in Court

Originally published in VICE on August 9, 2017.
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For months, Donald Trump has been fueling panic about Chicago’s crime rate, repeatedly threatening to use his power as president to “send in” federal troops to deal with the scourge of homicides plaguing the city.

On Monday, Chicago made its own power move.

The city filed a federal lawsuit against the Trump administration in an effort to stop the Department of Justice, led by Trump’s frenemy Jeff Sessions, from punishing Chicago for its status as a so-called “sanctuary city.” In defending the lawsuit on CNN, Mayor Rahm Emanuel stressed that forcing his city to choose between its values and the police department’s community policing philosophy is “a false choice” that “undermines our actual safety agenda.” Going after Trump and Sessions over policing is also likely a welcome change for Emanuel, who has drawn harsh fire for Chicago’s police brutality and persistently high violent crime.

The lawsuit centers on a federal grant, the Edward Byrne Memorial Justice Assistance Grant—or Bryne JAG—used by state, city and tribal governments to support law enforcement. In July, Sessions—a longtime foe of undocumented people—took his first real step to crack down on sanctuary cities when he announced that he would be imposing new conditions on localities that want to receive cash from the Bryne JAG.

Chicago’s lawsuit alleges that these new conditions—which empower the feds to interrogate arrestees at local jail facilities, and require local law enforcement officials to detain individuals longer than justified by probable cause—are “unauthorized and unconstitutional.” Meanwhile, the city received $2.3 million from the Bryne JAG last year.

While Sessions has already responded to Chicago’s legal challenge by saying that the Windy City “has chosen deliberately and intentionally to adopt a policy that obstructs this country’s lawful immigration system,” a number of legal experts have argued the lawsuit’s central claims actually rest on sturdy shoulders. George Mason Law School professor Ilya Somin told me that while it’s not unusual to see a presidential administration attempt to finagle grant conditions, he’s “not aware of a case as blatant as this one where the executive branch just seems to make up conditions on its own, and doesn’t even have a minimally plausible argument that they were included in the bill Congress passed.”

Likewise, Phil Torrey, an attorney focused on the intersection of criminal and immigration law at the Harvard Immigration and Refugee Clinical Program, thinks Chicago’s suit has some real muscle. Here’s what he had to say about the latest major lawsuit against the Trump administration, and how this saga might play out from here.

VICE: What do you make of Chicago’s new lawsuit? Is it viable? 

Phil Torrey:
 I think Chicago feels like they’ve been backed into a corner as they anticipate potentially losing JAG funding. They make a number of claims—on statutory and constitutional grounds—and I’d say both have a good deal of merit.

What are some of the stronger claims?

Well there are a few. One is Chicago’s spending clause claim: Basically what the city is saying is that the executive agency responsible for administering these federal grants cannot impose additional restrictions on those funds without congressional approval. And in this instance, Congress has not given any authority to the DOJ to impose the kinds of restrictions Sessions is advocating for. I think that’s a pretty clear, straightforward argument.

I also think the city of Chicago and other municipalities are currently in compliance with federal law, specifically Section 1373 [a federal statute that bars local governments from restricting the sharing of immigration status information with ICE agents]. If you look closely at their “sanctuary” policies, you’ll see they don’t have rules that restrict the sharing of this information. I think the DOJ is incorrectly construing those policies to claim cities are running afoul of the law.

But if Chicago is arguing the DOJ needs congressional approval to condition federal funds, couldn’t the GOP-controlled Congress just go ahead and do that, and effectively render the lawsuit moot?

Yes, Congress could attempt to pass some legislation that would further restrict JAG funding, but that hasn’t been done yet. There could be other constitutional challenges to that kind of statute, but as it stands, that specific enabling language to allow the DOJ to pass new restrictions has not been approved.

One complicating factor is that the Bryne JAG is related to public safety, and Congress can’t impose its will on municipalities in a way that would force them to implement new public safety measures. Constitutionally, public safety is completely within the purview of a city or county or state, and Congress could arguably be overstepping its authority if it passes legislation that forces these localities to do something that they believe harms their public safety.

Do you think other local governments will follow Chicago’s lead, as some reports suggest they are considering?

You’ve got city, county, and state law enforcement officials all serving different roles within the realm of public safety, and some of these new conditions placed on the Bryne JAG funding affect those players in different ways. You could definitely imagine multiple levels of local government filing claims—either in conjunction with Chicago or separately against the DOJ.

Can’t the administration argue—with some merit—that the federal government has broad discretion over immigration policy?

This is actually being framed more as a public safety issue than an immigration enforcement issue. And when you’re operating within the realm of public safety, then states and localities have full constitutional authority to enact and enforce policies that they see fit. Municipalities are saying, “Wait a minute—public safety is our realm to operate in. You can go ahead and enforce immigration laws. Do what you need to do, but don’t come in here and tell us how to do public safety.”

As this case winds its through the courts, what should we be looking out for next?

Hundreds of municipalities have decided that the best way to police their communities is by separating their public safety enforcement from immigration enforcement. If we move to entangle them, it may have a chilling effect that could really harm community systems.

I think this case illustrates that the administration is putting a target on states, counties, and municipalities that have these types of [community policing] policies—considering them somehow against federal law. Essentially what the DOJ is doing is saying, “We’re going to substitute your own views on what’s best for your communities with our views.”

You effectively have a federal government attempting to force municipalities to change their policies, which is actually contrary to how you’d expect a traditional Republican, conservative government to act. Normally you’d expect to see conservatives favoring local autonomy and disfavoring federal overreach. That’s not what’s happening.

This interview has been lightly edited and condensed for clarity.

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Illinois Poised To Strip Rahm Emanuel’s Control Over Chicago Schools

Originally published in The American Prospect on June 7, 2017.
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For more than 20 years, the mayor of Chicago has had the power to appoint not only the CEO of the nation’s third-largest school system, but also the entire school board that governs it. But after years of protests from Chicago residents, the Illinois state legislature may finally end this controversial governance structure, potentially setting the stage for much larger public school shifts in the Windy City.

Chicago used to have an elected school board, just like every other school district in Illinois, and like more than 95 percent of school districts nationwide. But in 1995, as a reform strategy for the state’s largest and poorest district, state lawmakers passed legislation granting Chicago’s then-Mayor Richard M. Daley the authority to appoint his city’s school leadership. Rahm Emanuel succeeded Daley as mayor in 2011, and took control over Chicago Public Schools (CPS).

Supporters of mayoral control—a strategy also instituted in New York City in 2002 and Washington, D.C., in 2007—say that challenging the status quo of chronically underperforming urban school districts is easier if one elected official has expansive decision-making power, rather a divided school board sharing it.

The mayor can also theoretically better leverage the school system with other governmental agencies, the private sector, and civic institutions. Researchers find that cities with diffuse civic capacity tend to be less effective in promoting urban school improvement than cities that can take coordinated civic action. Mayoral-control supporters also argue that it can increase political accountability for schools’ performance: School board elections have notoriously low turnout, and it can be easier for voters to hold a highly visible politician responsible for the success or failure of a district.

Yet critics of mayoral control say it is the opposite of democratic and reduces the public’s ability to shape their schools and local communities. The Chicago Teachers Union, a powerful critic of the Emanuel administration, argues that while Chicago’s school board “is composed primarily of corporate executives,” the CPS’s predominantly poor, black, and brown student body come from communities that have no say in running their schools.

In 2015, Chicago residents voted overwhelmingly in favor of a nonbinding referendum to switch back to an elected school board. The Chicago Tribunereported then that “perhaps no issue in Chicago politics has been more polarizing in the last four years than Emanuel’s handling of CPS.” As public dissatisfactionwith Emanuel’s education policies grew, so did the momentum to end mayoral control.

In 2016, a bill to end mayoral control passed in the Illinois House, but never came to a vote in the Senate. The House sponsor, Representative Robert Martwick of Chicago, said that the absence of an elected school board has “eliminated democracy” in his city.

Martwick vowed to make a more concerted effort to get his Senate colleagues on board this year, and was successful. On May 26, the House again overwhelmingly approved a bill to end mayoral control, and last week, the Senate passed a similar bill, which would create a Chicago school board with 15 elected seats. (Chicago’s school board currently has seven members.) The House and Senate are expected to pass a version they both can agree on later this month.

Chicago has for years been a high-profile city for national education reformers. In 2009, President Barack Obama nominated Arne Duncan, who had been serving as CPS’s CEO, to serve as his first secretary of education. Duncan brought to the federal level some controversial school reform strategies he had promoted in Chicago, such as linking student test scores to teacher pay.

Emanuel, who served as Obama’s first White House chief of staff, also launched an ambitious school reform effort when he took over as mayor, one that included robust charter school expansion, school closures, and longer school days. Opposition to Emanuel’s policies helped mobilize the Chicago Teachers Union to launch in 2012 their first strike in 25 years, a seven-day effort that influencedunion strategy across the country, and Emanuel’s policies continue to attract national attention. This year, his administration announced a new graduation requirement found nowhere else in the country: CPS seniors must now prove they have post-high school plans, such as going to college, getting a job, or joining the military.

Emanuel and CPS officials have testified against ending mayoral control, and Republican Governor Bruce Rauner said last year that he opposes Chicago reverting to an elected school board. But even if Rauner vetoes such a bill, Illinois lawmakers have enough support to override his veto.

Chicago isn’t the first city to bounce between mayoral and electoral control. In 1999, Michigan’s state lawmakers stripped power from Detroit’s elected school board, and empowered Detroit’s then-Mayor Dennis Archer to appoint the school district’s leadership. But in 2004, Detroit residents voted to return district authority to a locally elected school board.

Jeffrey Henig, a professor of political science and education at Columbia University, notes that Michigan state lawmakers had much less confidence in Kwame Kilpatrick, Archer’s successor, which was a significant factor in Detroit going back to an elected school board. Similarly, Illinois lawmakers’ worsening relationship with Emanuel is playing a role in the decision over Chicago’s school governance.

“The state is a key actor here,” says Henig. “The legislature can either make this happen or prevent it from happening. If the [Michigan] legislature had trusted Kilpatrick, they wouldn’t have necessarily let it go back to an elected board. As it often happens, the personal relationships of the mayors with the legislature are a big part of the story.”

This same dynamic has played out in New York, where state lawmakers granted former New York City Mayor Michael Bloomberg six-year terms of control over the nation’s largest public school system. By contrast, current Mayor Bill de Blasio, elected in 2014, has had a much rockier relationship with the legislature, and lawmakers have only granted him one-year extensions of mayoral control, leading to tense annual fights between the city and the state.

If the Illinois legislature approves a compromise bill this month, Chicago’s change in school governance might not take effect for another six years. But Henig says the bill’s passage would still likely lead to some “immediate changes” in Chicago; for example, how parents and teachers mobilize to fight current policies.

Rick Hess, the director of education policy at the right-leaning American Enterprise Institute, says that painting the fight over mayoral control as “some grand philosophical crusade” exaggerates the stakes of the debate. He notes that the public doesn’t say it’s a crisis of democracy when a mayor appoints a police chief, or when the president appoints the attorney general.

“They’re both democratic models; it’s just a question of how much authority you want to give the mayor,” Hess says.

Henig agrees, noting that parents and teachers tend to cast a disproportionate number of votes in the low-turnout school board elections. “When someone says one [model] is more democratic than the other, that’s just rhetorical posturing,” he says. “There’s a pro-democratic argument for either one.”