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Following up on a campaign pledge to end “sanctuary cities” as part of his immigration policy, President Donald Trump issued Executive Order 13768, Enhancing Public Safety in the Interior of the United States. The County of Santa Clara and the City and County of San Francisco ("Counties") challenged the heart of the Order, Section 9(a), which states: “jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary [of Homeland Security].”
Judge William H. Orrick III of the Northern District of California yesterday granted the Counties’ motions for a preliminary injunction to enjoin Section 9(a)’s enforcement nationwide. In this post, I offer an overview of Judge Orrick’s decision, which can be viewed in full here and below.
The Trump administration has responded angrily. This morning, the White House issued a statement maligning the ruling, calling it “one more example of egregious overreach by a single, unelected district judge” and stating, “the rule of law suffered another blow, as an unelected judge unilaterally rewrote immigration policy for our Nation.” President Trump echoed these sentiments personally via three tweets the morning after the ruling.
The law in question, 8 U.S.C. § 1373, provides that:
(a) . . . a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) . . . no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
- Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
- Maintaining such information.
- Exchanging such information with any other Federal, State, or local government entity.
So put simply, the Executive Order attempts to hold federal grant money hostage, using § 1373 as leverage.
Before getting to either the standing or merits analyses, Judge Orrick lays out important background information relating to ICE, as well as both Santa Clara and San Francisco County policies. First, Judge Orrick explains how ICE’s Civil Detainers work. In short, ICE asks municipalities to hold individuals arrested for local law violations when ICE has probable cause to believe they are here illegally. Such detainer requests are voluntary under the relevant regulation; as the court writes, “local governments are not required to honor them.” What’s more, ICE will not reimburse municipalities who adhere to them.
Second, the court reviews county policies with respect to federal immigration enforcement. Santa Clara adopted a resolution in 2010 that barred using county resources to transmit information to ICE and prohibited county employees from initiating an investigation based on immigration status. Resultantly, it has opted out of grants that are conditioned on § 1373 compliance. San Francisco enacted similar, if not more severe, policies restricting compliance with ICE requests.
Then Judge Orrick also reviews the spending that was indeed at risk. “In the 2015-2016 fiscal year, Santa Clara received approximately $1.7 billion in federal and federally dependent funds, making up roughly 35% of the County’s total revenues.” These funds go to a range of vital county expenditures, such as emergency services, healthcare, public health, and welfare. “San Francisco’s yearly budget,” on the other hand, “is approximately $9.6 billion; it receives approximately $1.2 billion of this from the federal government.” Again, San Francisco depends on these funds for a wide variety of government services.
As Judge Orrick says, the government asserts “the Counties lack standing because the Executive Order did not change existing law and because the Counties have not been named ‘sanctuary jurisdictions’ pursuant to the Order.” The Counties, on the other hand, asserted standing via implicating a constitutional interest and impending financial harms.
In Judge Orrick’s opinion, the government’s first assertion renders the Executive Order toothless. The government argued that “Section 9(a)’s provision will be implemented ‘to the extent consistent with the law’” and that the provision only seeks to “ensure that grants that are already conditioned on compliance with § 1373 are not remitted to jurisdictions that fail to meet that requirement.” Therefore, the government contends that the order cannot be read as changing the law because the Order “‘does not purport to give the Secretary or Attorney General the unilateral authority to alter [Section 1373].’”
But, Judge Orrick writes, “that is exactly what the Order purports to do.” By ordering the two Cabinet members to foreclose a jurisdiction’s eligibility to federal funds, the Order seeks to endow the Executive Branch with the right to make a legislative decision reserved only to Congress: condition funding. Any alternative reading emphasizing the Order’s enforcement “consistent with the law” would go against its express purpose. Judge Orrick likewise rejects narrower readings put forward by the government to save the order, including restricting the conditional funding to grants doled out by the Departments of Justice and Homeland Security, describing these readings as “similarly unreasonable.” Thus, in the judge’s mind, “[t]here is no doubt that Section 9(a), as written, changes the law.”
The government’s second challenge to the Counties’ standing similarly fails, in Judge Orrick’s view. Because the Counties had yet to suffer a loss of funds or feel any other cognizable harm under the Order, the government argues, they do not have standing to challenge it. After surveying a long line of cases, however, Judge Orrick concludes that “the pre-enforcement cases reveal that an individual facing enforcement action may establish standing by demonstrating a well-founded fear of enforcement and a threatened injury that is ‘sufficiently real and imminent.’”
The opinion then refers back to the aforementioned policies. Despite the fact that the Order does not define a “sanctuary jurisdiction,” (a topic covered in depth elsewhere on Lawfare), Judge Orrick notes the possibility that “under the Order, compliance with § 1373 requires compliance with detainer requests” and that the Order “may also directly require states and local governments to honor ICE detainer requests to avoid being designated ‘sanctuary jurisdictions.’” Given both Santa Clara’s and San Francisco’s above-mentioned policies, the court reasons “the Counties are likely to be designated ‘sanctuary jurisdictions.’”
Such a designation, however, would only matter if the Government were to indicate the intent to enforce the Order. Relying on statements made by President Trump, Press Secretary Sean Spicer, and Attorney General Jeff Sessions, the court finds such intent broadly. Moreover, because some of these statements point specifically to the state of California and San Francisco, in particular, they “support a well-founded fear that San Francisco and Santa Clara will face enforcement directly under the Executive Order. . . .”
The Court then reaches the Counties’ assertions of standing. First, it looks to the Counties’ constitutional interest. Specifically, the Counties turn to “the rights of states and local governments to determine their own local policies and enforcement priorities pursuant to the Tenth Amendment.” Their policies on compliance with ICE request, they successfully argue, are a manifestation of that right in myriad ways, implicating local concerns of medical care and immunization, civic engagement and law enforcement, and education.
Next, the threatened loss of federal grants money, the court finds, implicates a potential harm in multiple ways: (1) the Order could foreclose vital, promised federal funds; (2) the Counties’ inability to budget properly given the uncertainty; and (3) the lack of reimbursement for costs the Counties have already outlayed would create crushing debt.
In sum, the Court concluded that the Counties have standing.
Having concluded its standing analysis, the Court turns next to the ripeness of the claim. The government argues that the claims were not “‘prudentially ripe.” According to the Supreme Court, prudential ripeness looks at “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” To argue the fitness standard, the government puts forward two lines of reasoning: the harms are too dependent on certain contingencies, and the government has yet to determine the terms of the Order. In putting the contingency claims forward, the government rests on the Supreme Court’s 1998 case Texas v. United States (note: this case adjudicated a Voting Rights Act claim and is unrelated to the name-fellow case regarding Deferred Action for Childhood Arrivals case) as analogous prudential ripeness claims that merited discarding the case. Judge Orrick distinguishes Texas by citing additional contingent features not present in the current case—specifically the appointment of a special master that had yet to happen in Texas—and reasons that the government’s contingency rationale would effectively bar all pre-enforcement claims, an interpretation he regards as unreasonable.
In arguing the hardship standard, the Ninth Circuit has previously held, “a litigant must show that withholding review would result in direct and immediate hardship and would entail more than possible financial loss.” The court concludes that the Counties meet this standard given the three above-mentioned harms.
The Standard of Review and the Merits Claims
For the Counties to obtain the injunction, they not only have to demonstrate standing before; they have to “show that they are likely to face immediate and irreparable harm absent an injunction, that they are likely to succeed on the merits, and that the balance of harms and public interest weighs in their favor.” This is undoubtedly a tall order, but the Counties clear it, in Judge Orrick’s view.
The Counties challenge the order on four separate charges: (1) that it violates separation of powers principles by exceeding Congress’s spending authority; (2) that violates the Tenth Amendment; (3) that it is void for vagueness under the Fifth Amendment’s Due Process Clause; and (4) that its immediacy violates the procedural due process for states.
In interpreting the Counties’ causes of actions as five claims, the court found that the Counties were likely to succeed on the merits in all five.
- Separation of Powers
As alluded to above, the court sides with the Counties, ruling “that the Executive Order is unconstitutional because it seeks to wield powers that belong exclusively to Congress, the spending powers.” Judge Orrick rests primarily on South Dakota v. Dole and Clinton v. City of New York. Though Dole stands for the proposition that, “to further broad policy objectives . . . [Congress may] condition receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives,” Clinton holds that the President cannot “repeal or amend parts of duly enacted statutes” to create conditional funding. More, Congress has purposefully barred the President from withholding or impounding appropriated funds to fashion such a condition. By granting authority to the Attorney General and Secretary of Homeland Security to determine jurisdictions’ eligibility for grants, the Order, the court rules, “runs afoul of these basic and fundamental constitutional structures.” Thus, the Counties are likely to succeed on the merits on this claim.
- Spending Clause Violations
The Counties argue that even if the President has the power to condition spending, the Order violates the Tenth Amendment. Recognizing that the Supreme Court has permitted Congress to place conditions on state funding, provided that certain requirements are met, the court finds the Order “likely violates at least three of these restrictions: (1) conditions must be unambiguous and cannot be imposed after funds have already been accepted; (2) there must be a nexus between the federal funds at issue and the federal program’s purpose; and (3) the financial inducement cannot be coercive.”
On the first prong, Judge Orrick concludes that, because states did not know of this requirement, let alone voluntarily accept it, when Congress appropriated the funds, the Order cannot impose the conditions retroactively. Moreover, the uncertainty regarding which funds are at issue only muddies the already opaque understanding of what was at stake.
On the second prong, the court returns to Dole: “Congress may condition grants under the spending power only in ways reasonable related to the purpose of the federal program.” But the court concludes, “there is no nexus between Section 1373 and most categories of federal funding, including without limitation funding related to Medicare, Medicaid, transportation, child welfare services, immunization and vaccination programs, and emergency preparedness.” In fact, the only grants immune to the Attorney General’s and Homeland Security Secretary’s discretion are grants expressly for immigration and law enforcement, “invert[ing] the nexus requirement.” Thus, the court finds this requirement unmet.
On the final prong, the court rests on NFIB v. Sebelius to conclude that the severe funding at risk is unduly strong-arming the municipalities. In NFIB, when 10 percent of a state’s Medicaid funds were at risk, the court found the condition “unconstitutionally coercive and represent[ing] a ‘gun to the head.’” The court here states that the hundreds of millions of dollars at stake is similarly “unconstitutionally coercive,” again suggesting the Counties’ are likely to win on the merits.
- Tenth Amendment Violations
In the Counties’ third cause, the court finds the Counties likely to succeed on the merits because the Order violates Supreme Court precedent from New York: “The Federal Government may not compel the States to enact or administer a federal regulatory program.” As shown in the standing analysis, Judge Orrick writes,
The Counties have shown that losing all of their federal grant funding would have significant effects on their ability to provide services to their residents and that they may have no legitimate choice regarding whether to accept the government’s conditions in exchange for those funds. To the extent the Executive Order seeks to condition all federal grants on honoring civil detainer requests, it is likely unconstitutional under the Tenth Amendment because it seeks to compel the states and local jurisdictions to enforce a federal regulatory program through coercion.
Attorney General Sessions’ comments “equating failure to honor civil detainer requests with policies that ‘frustrate th[e] enforcement of immigration laws,’” the court found, added additional pressure by threatening further “enforcement actions”—undefined as they are—against jurisdictions who violate § 1373.
- Fifth Amendment Void for Vagueness
Looking to Grayned v. City of Rockford, the court puts forward two conditions upon which a law is unconstitutionally void for vagueness under the Fifth Amendment: “if it fails to make clear what conduct it prohibits and if it fails to lay out clear standards for enforcement.” The current Order, Judge Orrick finds, does not describe “what conduct might subject a state or local jurisdiction to defunding or enforcement action, making it impossible for jurisdictions to determine how to modify their conduct, if at all, to avoid the Order’s penalties.” Without such guidance, let alone guidance as to what constitutes a “sanctuary jurisdiction,” municipalities “have no hope of deciphering what conduct might result in an unfavorable ‘sanctuary jurisdiction’ designation.” Adding fuel to the fire, the court takes issue with the potential for arbitrary and discriminatory application of the Order’s “expansive, standardless language.” In sum, the court found that the uncertainty surrounding how the Counties could proceed to avoid this distinction made them likely to succeed on the merits.
- Fifth Amendment Procedural Due Process Violations
Lastly, the court looks to the Counties’ procedural due process claims. For such a claim, the Supreme Court has said, a person must have a “legitimate claim of entitlement” to a property interest. This plainly includes money. Though simply expecting funding like a spoiled child on Christmas morning would fall short of the legitimate entitlement bar, the fact that the money had already been appropriated by Congress and accepted by the Counties satisfies the standard, the court rules. Because the Executive Order would jeopardize the Counties’ eligibility to receive the money they are rightly entitled to without any administrative or judicial procedure, the court concluded that the Counties were likely to succeed on the merits in demonstrating that the Order violates the Due Process requirements.
Irreparable Harm Analysis
Beyond the requirement that the Counties must be likely to succeed on the merits, to get an injunction they must also show that the order would produce irreparable harm if the injunction were not granted. The court finds that the Counties have demonstrated impending irreparable harm under the order for two reasons: budgetary uncertainty and constitutional injury.
First, the court sympathizes with the Counties’ claims that the chaos the Order creates “interferes with the Counties’ ability to budget, plan for the future, and properly serve their residents.” Insufficient clarity, Judge Orrick holds, forces the Counties to plan with one hand behind their back in preparation for the worst.
The court also finds irreparable harm on the constitutional claims. Ninth Circuit precedent holds that “deprivation of constitutional rights ‘unquestionably constitutes irreparable injury,’” as does Supreme Court precedent. Combining these holdings—as well as the recently decided Washington v. Trump, the travel ban order case—with the court’s earlier determination that the Counties have demonstrated a cognizable constitutional injury for standing, the court easily extends that determination to the Counties’ irreparable harm.
Balance of Harms and Public Interest and Nationwide Application
In its very last inquiry, under Supreme Court precedent, the court has to decide whether the party seeking the injunction—the Counties—have “establish[ed] that the balance of equities tips in [their] favor, and that an injunction is in the public interest,” questions which “merge” when the federal government is a party.
The government asserts that § 1373, as duly enacted by Congress, was the “most pertinent and concretely expressed public interest”; Section 9(a) of the order simply aims to effectuate that provision. But Judge Orrick disagrees. He reasons that if, according to the government’s argument, Section 9(a) does not change the law, it carries with it no “concrete benefit.” Conversely, the Counties’ “strong interest” in avoiding “unconstitutional enforcement and the significant budget uncertainty that has resulted” places the balance of equities squarely in the Counties’ favor.
The government also argues that in the event the injunction is issued, it should only cover the specific Counties, rather than the entire country. The court makes short work of this argument: “These constitutional violations are not limited to San Francisco or Santa Clara, but apply equally to all states and local jurisdictions. Given the nationwide scope of the Order, and its apparent constitutional flaws, a nationwide injunction is appropriate.”