Federal judge issues ruling against Trump executive order on sanctuary cities

Federal Judge William Orrick has issued an order blocking the implementation of President Trump's executive order that targets funds for sanctuary cities.

The judge said the order "probably" violates the Constitution because it undermines both federalism and the separation of powers.  The judge also rejected the arguments made by Department of Justice attorneys because they conflicted with the plain language wording of the orders and statements by the president and other administration officials about the intent of the funding cut-off for sanctuary cities.

Associated Press:

Orrick's preliminary injunction against the sanctuary cities order will stay in place while the lawsuits by San Francisco and Santa Clara work their way through court.

The government hasn't cut off any money yet or declared any communities sanctuary cities. But the Justice Department sent letters last week advising communities to prove they are in compliance. California was informed it could lose $18.2 million.

Orrick said Trump cannot set new conditions on spending approved by Congress.

Even if the president could do so, those conditions would have to be clearly related to the funds at issue and not coercive, as the executive order appeared to be, Orrick said.

White House chief of staff Reince Priebus described the ruling as another example of the "9th Circuit going bananas."

The administration has often criticized the 9th U.S. Circuit Court of Appeals. Orrick does not sit on that court but his district is in the territory of the appeals court, which has ruled against one version of Trump's travel ban.

"The idea that an agency can't put in some reasonable restriction on how some of these moneys are spent is something that will be overturned eventually, and we will win at the Supreme Court level at some point," Priebus said.

As Eugene Volokh explains, the restrictions on the grants are questionable because Congress did not lay out conditions upon which the funding would be given.  States and cities accepted the funding based on one set of conditions, and the administration now wants to change those conditions without due process for states and cities affected.

In this case, none of the federal grants given to sanctuary cities were conditioned by Congress on compliance with Section 1373 or any other form of cooperation with federal efforts to deport undocumented immigrants. The president cannot impose such conditions on his own.

In addition, the order undermines constitutional federalism because it violates longstanding constitutional constraints that limit conditions imposed on federal grants to state governments even when those conditions are authorized by Congress.

The Supreme Court has set strict limits on Congress when Congress imposes restrictions on funding for states and localities:

While Congress has significant authority to encourage [state] policy through its spending power, the Supreme Court has articulated a number of limitations to the conditions Congress can place on federal funds. The Executive 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[.] ...

The Executive Order purports to retroactively condition all "federal grants" on compliance with Section 1373. As this condition was not an unambiguous condition that the states and local jurisdictions voluntarily and knowingly accepted at the time Congress appropriated these funds, it cannot be imposed now by the Order.

Volokh excoriated the 9th Circuit's legal reasoning on the injunction issued against the travel ban but supports the judge's ruling in this case.  In the sanctuary cities order, Volokh finds Orrick's legal reasoning sound – especially relating to the funds in question not being specifically targeted for immigration enforcement.

Later in the opinion, Judge Orrick explains why many of the grants that might be withheld by the order lack a sufficient "nexus" with immigration enforcement (for example, a variety of grants with no connection to law enforcement or immigration). He also explains that if the administration withholds the full range of grants potentially covered by the order and referenced in statements by administration officials, such withholding would be "coercive" under NFIB v. Sebelius (2012), the ruling striking down the Obamacare Medicaid expansion. I discussed this issue in greater detail here.

The opinion also concludes that the executive order likely constitutes unconstitutional "commandeering" because it coerces state and local governments to enforce federal law, in violation of several Supreme Court precedents under the Tenth Amendment. Ironically, those precedents were strongly supported by conservatives (one of the most important was authored by Justice Antonin Scalia) and – at the time – much-criticized by liberals. Some defenders of the Trump order have argued that there is no commandeering problem here because the anti-commandeering principle does not apply to federal efforts to compel disclosure of information. I criticized this argument here.

Bill Jacobson of Legal Insurrection is also dubious that a way can be found to penalize sanctuary cities through funding mechanisms:

If there is a legal mechanism to penalize sanctuary cities, we haven't found it. It's likely none exists because, despite threats, no administration has carried out a threat to withhold federal monies from disobedient rogue local governments.

There's speculation aplenty as to how the Supreme Court might interpret a legal challenge to anti-sanctuary city guidance. Printz v. United States (highly cited in relation to this particular part of immigration discussion) held, "Congress may not compel a state or local government to implement federal regulatory programs, even if they are temporary functions." Enforcing federal law is the responsibility of the federal government, thus immigration enforcement cannot and should not be delegated to local law enforcement. However, as 1373 indicates, local law enforcement are expected and required to communicate certain information to federal authorities.

Trump's administration doesn't seem afraid of legal tests, given his first immigration executive order, but it's clear that sanctuary cities are in the crosshairs.

Volokh was perplexed by the argument made by DoJ lawyers:

Interestingly, as the opinion explains, the federal government's lawyers barely even contested most of the plaintiffs' federalism and separation of powers arguments. Instead, they argued that the order should be upheld based on an implausibly narrow interpretation of its scope, under which it would only seek to enforce conditions previously mandated by Congress and otherwise ensure compliance with preexisting federal law in ways that were previously authorized. As Judge Orrick carefully explains, this theory contradicts the plain text of the order, and also numerous statements by administration officials explaining its purpose, including some by Attorney General Jeff Sessions.

The administration may take the case all the way to the Supreme Court, but it seems likely that even some conservatives would vote to strike down parts of the president's executive order.  So the question arises: where to now?

If ICE cannot get states and cities to enforce federal immigration law, they are going to have to do it themselves.  That means hiring thousands more agents in addition to the 10,000 already in the pipeline.  If states and cities are not going to cooperate with ICE – going so far as to refuse to inform the feds when an illegal alien is in custody for committing an additional crime – then federal immigration enforcement officers are going to have to use their own resources to arrest and deport illegals.

Somehow, someway, the law is going to be enforced.  Sanctuary cities may not be punished for thumbing their noses at Congress and the law.  But it won't matter if the federal government begins to take immigration enforcement seriously.

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