In America: Department of Homeland Security Takes $34 Million From NYC’s Public Safety Funds For Being A Sanctuary City

Fernando Gonzalez

After the 9/11 terrorist attack, the city of New York created guards against such attacks with the support of the federal 9/11 Commission. Since the attack, the NYC police commissioner claims the city’s areas with the highest risk of being targets are its bridges, tunnels, and subway/commuter rail systems. The Transit Security Grant Program (TSGP), authorized by Congress, has provided funding to the Metropolitan Transportation Authority (MTA) in support of these efforts. In August, the Federal Emergency Management Agency (FEMA), an agency housed within the Department of Homeland Security (DHS), determined the MTA would receive $33,898,500 in the fiscal year 2025. Two months later, with no notice, FEMA cut MTA's funding to zero. Kristi Noem, the Secretary of the DHS, and David Richardson, Senior Official Administrator of FEMA, later stated their reasoning for cutting the funds was because New York City decided to be a sanctuary city and provide protection for immigrants who entered the United States illegally. The State of New York sued Noem and Richardson in their official capacities to compel the federal government to give back the security grant to the MTA and the city of New York. 

The Legal Battle Between NYC & Two Government Agencies

In the “New York v. Noem” lawsuit, the State of New York claims the DHS and FEMA acted unlawfully by taking away the funds. The components of New York’s argument involve FEMA/DHS’s actions violating the Administrative Procedure Act (APA), the fact that this decision was not authorized by Congress, and their actions violating the U.S. Constitution's equal sovereignty principle.

New York claims FEMA & DHS violate the APA for acting in a manner that is “arbitrary and capricious.” The department and agency did not provide any contemporaneous explanation when cutting the funding. When an agency acts, it is required by the APA for the agency to provide an explanation that is reasonable and reasonably explained. When the DHS used its immigration policy as an extra-statutory factor for cutting the funds, New York believes they went beyond their authority. New York further argues that the DHS and FEMA acted in “ultra vires” (going beyond their authority) by making the grant conditional based on compliance with immigration policy. New York believes this action singles out the city, therefore violating the Constitution’s equal sovereignty doctrine, as DHS didn’t cut funding for any other states or cities that are considered "sanctuary jurisdictions.” 

This decision, according to New York, was random and unlike anything FEMA has done before with this funding. New York believes that FEMA has an obligation to provide the funds to the MTA, as this funding has been consistent for decades due to the city being viewed as a high-risk target for terrorist attacks. 

“[The Reallocation Decision] will severely impact the State’s security programs, including those aimed at protecting New York citizens from weapons of mass destruction and terrorist threats and attacks” and “[w]ithout TSGP funding, New York will be forced to significantly reduce its police presence (including training and equipment) and its counterterrorism security footprint.”

Respondent Secretary Kristi Noem announced that because immigration compliance was essential, all grants of sanctuary jurisdictions would be subject to review and possible termination. FEMA and DHS argued in this case that they had the level of authority to use discretion to implement conditions for compliance with their immigration policies. They claimed the lawsuit was legally insignificant. They argued in their defense that the lawsuit was legally insignificant. The agencies believed they qualified for sovereign immunity, a legal doctrine protecting the federal government from legal challenges, and could not be sued. The agencies also claimed the reallocated funds were now obligated elsewhere, so it wouldn’t be possible for the funds to be given back. FEMA and the DHS also stated that due to the appropriation lapse requiring the funds had to be awarded before a certain deadline had already passed. They argued that because of this, they cannot give the funds back to the MTA.  

The Ruling

New York Southern District Judge Lewis Kaplan issued a permanent injunction against FEMA, requiring the agency to disburse the withheld funds to New York. The court found that FEMA’s decision and reasoning for cutting New York’s TSGP funding were arbitrary, capricious, and unlawful. 

Congress authorized the Transit Security Grant Program to be awarded to public transit agencies solely based on risk. Due to immigration policy not being a statutory factor, the court determined FEMA exceeded its authority by using it as a condition for the funding. 

The court found that FEMA violated the Administrative Procedure Act by acting arbitrarily and capriciously. FEMA did not give any contemporaneous explanation when cutting the funds. Only when the agency was asked for an explanation did they reveal their reasoning. The judge noted that while the DHS claimed immigration compliance was essential, other sanctuary jurisdictions still received grants. The inconsistency in FEMA only enforcing its immigration policy compliance condition on New York for the grant exemplified inequality in enforcement. This violates the Constitution’s principle of equal sovereignty, which the APA requires agencies to abide by. 

The DHS’s belief that the funds were obligated elsewhere didn’t hold up. Because the funds weren’t disbursed and were still available, the court ruled that FEMA will comply with the injunction requesting the funds be returned. 

FEMA & DHS’s claim to sovereign immunity was denied. The court noted the APA waives this immunity if an agency acts unlawfully. It was ruled that the appropriation lapse did not apply here because the lawsuit was instituted prior to the deadline for the funds to be appropriated. The court referenced legal precedent that explained funds can be awarded even after the appropriation lapse when lawsuits are instituted before or on the appropriation lapse date. For this reason, the court determined that the funding for the MTA and New York City was available to be returned. 

Why is it important

In the midst of protests and riots growing nationwide over immigration policy, the DHS went beyond its authority, attempting to financially punish New York for its political stance putting the city at risk of danger. Today, more government officials are testing the extent of their authority under the Constitution through their actions and policies. What else could happen in this country due to the heated debates on immigration and the unlawful actions committed by U.S. representatives?