This lawsuit, filed by the City of San Francisco on Jan. 31, 2017, challenges President Trump’s Jan. 25, 2017 Executive Order on immigration enforcement, which threatened to withhold federal funds from "sanctuary jurisdictions" and take enforcement action against any locality that impedes the federal government's immigration law. The City filed its complaint in the U.S. District Court for the Northern District of California.

The complaint argued that this issue was one of "state sovereignty and a local government’s autonomy to devote resources to local priorities and to control the exercise of its own police powers, rather than being forced to carry out the agenda of the Federal government." Thus, the plaintiff alleged that the executive order violated the Tenth Amendment. The complaint addressed 8 U.S.C. § 1373, which provides that a local government entity cannot prohibit or restrict communication between government entities or officials and the Immigration and Naturalization Service. After asserting its compliance with the statute, the complaint alleged that the U.S. had begun to designate non-compliant cities as sanctuary cities and that San Francisco had been designated as such. The complaint asserted that §1373 unconstitutionally regulated state governments and that San Francisco stood to be harmed by the executive order.

The complaint sought declaratory and injunctive relief. Specifically, the plaintiff asked for a declaration that San Francisco complies with 8 U.S.C. § 1373, that 8 U.S.C. § 1373(a) violates the Tenth Amendment, and that the executive order's enforcement directive violates the Tenth Amendment. The case was initially assigned to Magistrate Judge Donna Ryu, but on Feb. 10, Judge William Orrick granted a motion to relate this case to County of Santa Clara v. Trump, IM-CA-0089 in this Clearinghouse, and reassigned this case to himself. On Feb. 27, the plaintiff filed a first amended complaint. The amended complaint added that San Francisco seeks a declaration that the EO's funding restrictions violate the Tenth Amendment, the Spending Clause, and Article I, sec. 1 of the Constitution.

On Mar. 8, the plaintiff filed a motion for a preliminary injunction. In the motion, the plaintiff requested that the court enter a nationwide preliminary injunction prohibiting the defendants from enforcing the executive order. The plaintiff also sought to enjoin the defendants from taking any action that would declare San Francisco a sanctuary city, thereby making the city ineligible for federal funds. On Mar. 23, the city of Richmond moved to relate this case to Richmond v. Trump (IM-CA-0090 in this Clearinghouse), which had been filed on Mar. 21 in the same court. The court granted the motion on Mar. 23. Several individuals and organizations have filed amici briefs in support of the plaintiff including the State of California, a local chapter of the NAACP, and several Silicon Valley technology companies. After an Apr. 14 hearing, the Court, on Apr. 25, entered a nationwide injunction against operation of the Order.

The court explained that the federal government at the hearing had disavowed a robust reading of the Executive Order:

It explained for the first time at oral argument that the Order is merely an exercise of the President’s “bully pulpit” to highlight a changed approach to immigration enforcement. Under this interpretation, Section 9(a) applies only to three federal grants in the Departments of Justice and Homeland Security that already have conditions requiring compliance with 8 U.S.C. 1373. This interpretation renders the Order toothless; the Government can already enforce these three grants by the terms of those grants and can enforce 8 U.S.C. 1373 to the extent legally possible under the terms of existing law. Counsel disavowed any right through the Order for the Government to affect any other part of the billions of dollars in federal funds the Counties receive every year.

The Court held, however, that the Executive Order "is not reasonably susceptible to the new, narrow interpretation offered at the hearing."

Yet a broader reading was, Judge Orrick explained, unconstitutional: "The Constitution vests the spending powers in Congress, not the President, so the Order cannot constitutionally place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that the total financial incentive not be coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves."

Accordingly, the Court granted a preliminary injunction against any broader implementation of the order, although it emphasized that the preliminary injunction "does not affect the ability of the Attorney General or the Secretary to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does it impact the Secretary’s ability to develop regulations or other guidance defining what a sanctuary jurisdiction is or designating a jurisdiction as such." County of Santa Clara v. Trump, 250 F. Supp. 3d 497 (N.D. Cal. Apr. 25, 2017).

The government moved for reconsideration pursuant to a May 22, 2017 memorandum from the Attorney General regarding the implementation of the EO. The memo specified that "the Department of Justice will require jurisdictions applying for certain Department grants to certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for receiving an award. This certification requirement will apply to any existing grant administered by the Office of Justice Programs and the Office of Community Oriented Policing Services that expressly contains this certification condition and to future grants for which the Department is statutorily authorized to impose such a condition. All grantees will receive notice of their obligation to comply with section 1373." Further, "the term 'sanctuary jurisdiction' will refer only to jurisdictions that 'willfully refuse to comply with 8 U.S.C. 1373.'" On May 23, the plaintiff filed a second amended complaint. The defendants moved to dismiss on June 6. On July 6, the plaintiff Santa Clara (followed by joinders from San Francisco and Richmond on July 7) moved for leave to file a surreply in opposition to the motion to dismiss. The plaintiffs argued that recent statements by President Trump and DHS officials contradicted assertions in the defendants' reply brief. On July 12, the plaintiff also filed a supplemental request for judicial notice of recent statements by AG Sessions.

On June 16, 2017, the states of West Virginia, Louisiana, Alabama, Arkansas, Michigan, Nevada, Ohio, Oklahoma, South Carolina, and Texas moved for leave to file an amicus brief in support of the defendants' motion to dismiss. On June 28, 2017, many organizations, including labor unions, civil rights groups, and public schools, as well as individual sheriffs and police chiefs, moved to file amici briefs in support of the plaintiff's opposition to the defendants' motion to discuss.

On July 12, 2017, Judge Orrick held a hearing (in all three related cases) on the defendants' motions to dismiss and motion for reconsideration. He issued an order on July 20, denying the defendants' motions. He denied the motion for reconsideration because the AG Memorandum did not change the analysis from the preliminary injunction order. Additionally, he denied the motion to dismiss because the AG Memorandum did not change his findings of the plaintiff's standing and their claims' ripeness and likelihood of success. Finally, he concluded that the plaintiff had adequately stated a claim for declaratory relief. County of Santa Clara v. Trump, 2017 WL 3086064 (N.D. Cal. July 20, 2017).

On Aug. 15 and 17, 2017, the plaintiff in an administrative motion and supplemental statement asked the court to relate City and County of San Francisco v. Trump to City and County of San Francisco v. Sessions. The plaintiff argued that both cases concerned substantially the same parties and challenged the President's withholding of federal funds from sanctuary cities. On Aug. 18, 2017, the defendants responded, arguing that the cases should not be related because the first challenged an EO and the latter an AG program. On Aug. 23, 2017, Judge Orrick granted the plaintiff's request to relate this case to City and County of San Francisco v. Sessions. Then on Aug. 25, 2017, he found State of California v. Sessions to be a related case, and reassigned it to himself. That case also challenges DOJ's immigration-related conditions on law enforcement funding.

On Aug. 30, 2017 San Francisco and Santa Clara moved for summary judgment. San Francisco argued that the EO was unconstitutional because it violated the separation of powers, the Spending Clause, and the Tenth Amendment. Consequently, San Francisco argued, the court should permanently enjoin the EO's implementation. The defendants, in their Sept. 27, 2017 response, argued that the Constitution authorized their broad immigration enforcement powers as implemented in the EO and § 1373. On Sept. 18, 2017 the defendants appealed, to the Ninth Circuit, Judge Orrick's Apr. 25, 2017 preliminary injunction and July 20, 2017 order denying the defendants' motions to dismiss and motion for reconsideration. The Ninth Circuit opened a docket for the appeal, No. 17-16886. The Ninth Circuit held oral argument on Apr. 11. In the district court, Judge Orrick held an Oct. 23 hearing on the plaintiffs' Aug. 30 motion for summary judgment. On Nov. 20, he granted summary judgment for the plaintiffs, permanently enjoining the defendants from enforcing Section 9(a) of the EO against all jurisdictions deemed as "sanctuary jurisdictions." The injunction applied nationwide because Section 9(a) was facially unconstitutional.

In his opinion, Judge Orrick held that the EO had caused and would continue to cause constitutional injuries, by violating the separation of powers doctrine and depriving the plaintiffs of their Fifth and Tenth Amendment rights. Judge Orrick first stated that the EO's plain language impermissibly empowers the President to place new conditions on all federal funds -- a power properly reserved to Congress under the Spending Clause. The President's and AG's subsequent comments on the EO had confirmed, rather than narrowed, this broad scope. Further, the Fifth and Tenth Amendments forbid funding conditions that are vague, unrelated to the funds at issue, and coercive: "Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves."

On Nov. 29, 2017 the parties jointly requested that the Court dismiss San Francisco's claim for declaratory judgment (that it did not violate § 1373), which the Court would consider instead in San Francisco v. Sessions. The next day, Judge Orrick granted this request. On Dec. 14, 2017 the defendants appealed Judge Orrick's Nov. 20 permanent injunction, asking the Ninth Circuit to consolidate this appeal with the other two appeals in process. The plaintiffs, for their part, asked the Ninth Circuit to dismiss the consolidated appeals as moot because they challenged a preliminary injunction that the permanent injunction had superseded. The defendants responded on Dec. 27. Eleven states filed a Dec. 22, 2017 amicus brief supporting the defendants. However, the Ninth Circuit granted the plaintiffs' request on Jan. 4, denying all pending motions as moot.

The Ninth Circuit held oral argument on April 11, 2018. On August 1, 2018 the Ninth Circuit affirmed the grant of summary judgment, but vacated and remanded for reconsideration of the nationwide injunction. The panel held that the executive branch could not refuse to disperse the federal grants without congressional authorization under the Separation of Powers principle and the Spending Clause. The panel found that Congress had not so authorized, and so summary judgment was proper, but that there were no findings to support an injunction with nationwide reach. 2018 WL 3637911.

On Aug. 29, 2018 the plaintiff in an administrative motion asked the court to relate City and County of San Francisco v. Sessions III and State of California v. Sessions. The defendants did not oppose the motion. On Sept. 10, 2018, the court related the cases to this case.

The case is ongoing.

Ava Morgenstern - 04/14/2018
Jamie Kessler - 05/29/2017
Virginia Weeks - 09/26/2018


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