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A federal judge on Tuesday temporarily blocked President Trump’s executive order that sought to withhold funds from so-called sanctuary cities, jurisdictions that limit their cooperation with federal immigration enforcement.

Judge William H. Orrick of the U.S. District Court in San Francisco cited the public comments of President Trump and the White House press secretary Sean Spicer in the ruling. Although attorneys for the federal government argued that the challenged section of the executive order does not actually do anything, the Trump administration has touted the order as a broad attack on sanctuary jurisdictions.

Two California jurisdictions, the County of Santa Clara and the City and County of San Francisco, brought motions for a preliminary injunction to halt the enforcement of Section 9(a) of Executive Order 13768, “Enhancing Public Safety in the Interior of the United States.” The executive order, in addition to outlining immigration enforcement policies, seeks to establish a procedure to prevent sanctuary jurisdictions from receiving federal grants. Judge Orrick issued a nationwide preliminary injunction enjoining enforcement of Section 9(a).

The Legal Issues

Although there is no agreed-upon definition of “sanctuary jurisdictions,” the term applies generally to states and municipalities that prohibit their local law enforcement officers from such actions as asking individuals about their immigration status, sharing information with federal immigration officers or otherwise assisting with enforcement of immigration law. A provision in federal immigration law, 8 U.S.C. 1373, bars local jurisdictions from refusing to provide information about the immigration status of individuals to federal agents. Section 9(a) of the President’s executive order seeks to ensure that jurisdictions that “willfully refuse to comply” with Section 1373 are “not eligible to received Federal grants,” except as necessary for law enforcement purposes.

The California jurisdictions challenged Section 9(a) of the executive order on several grounds: that it improperly attempts to wield congressional spending powers, thus violating the Constitution’s separation of powers doctrine; that it violates the Tenth Amendment’s prohibition on commandeering local jurisdictions; that it is so vague that it violates the Due Process Clause of the Fifth Amendment and is void for vagueness; and that it violates the Fifth Amendment’s procedural due process requirements, because it seeks to deprive jurisdictions of funds without any notice or opportunity to be heard.

The federal government argued that the Counties lacked legal standing because they had not been identified as “sanctuary jurisdictions” by the order, and the order did not actually change existing law. Judge Orrick said that the Government “explained for the first time at oral argument” that the executive order was merely intended to “highlight a changed approach to immigration enforcement,” an interpretation which “renders the Order toothless.”

Judge Orrick ruled that the California jurisdictions have standing to challenge the executive order under Article III, section 2 of the Constitution, because there is “no doubt” that the order does change the law, and the Counties have a “well-founded fear of enforcement” under the order. The judge’s order quoted White House press secretary Sean Spicer’s statement that the President intends to ensure that sanctuary jurisdictions “don’t get federal government funding,” and Trump’s statement during an interview with Bill O’Reilly that he would use “defunding” as a “weapon” against sanctuary cities.

The Government had also argued that the Counties’ claims were not “prudentially ripe” because implementation of the challenged section of the order depended on future events, such as clarification of some of its terms, and those terms may be defined so as to exclude the Counties or their grants from being affected by the order. Judge Orrick wrote that the Government’s argument was “unconvincing” and the claims “are fit for review.”

Likelihood of Success on the Merits

In addition to showing that their claims were justifiable, the Counties also had the burden of showing likely success on the merits, and Judge Orrick found that they had shown that likelihood in “several ways.”

First, the judge wrote, the executive order violates the “basic and fundamental constitutional structures” of separation of powers, because the President’s order attempts to wield Congress’s exclusive spending power. Second, even if the President did have the spending power, the executive order would be unconstitutional under the Tenth Amendment, because it exceeds that power, Orrick wrote. The judge also held that the Counties were likely to succeed on another Tenth Amendment claim, that the executive order unconstitutionally attempts to conscript or commandeer state or local jurisdictions to enforce federal law. Orrick cited two landmark Supreme Court rulings, Printz v. United States and National Federation of Independent Businesses v. Sebelius, which restrict the federal government’s ability to coerce state and local governments. Ironically, both cases were seen as victories for conservatives.

Judge Orrick further held that the Counties were likely to succeed on the claim that the executive order is “void for vagueness” under the Fifth Amendment’s due process requirement, because it does not make clear what conduct it prohibits and does not set clear standards for enforcement. Quoting the U.S. Supreme Court in Gaynard v. City of Rockford, Judge Orrick said that laws must “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly,” and that the executive order fails to do so. The judge also held that the Counties would likely succeed on the procedural due process claim, because the executive order “provides no process at all” for notifying jurisdictions of any action against them or providing them an opportunity to be heard.

Finally, Judge Orrick found that the Counties had demonstrated that they were likely to suffer irreparable harm, from their current budget uncertainty and because they are suffering a constitutional injury. He found that a nationwide injunction was appropriate because of the Constitutional issues involved, but that an injunction against the President himself was not appropriate, so the injunction was issued against the other defendants, including the Attorney General and the Secretary of Homeland Security.

What Happens Next

Judge Orrick’s nationwide preliminary injunction stops enforcement of the section of the executive order regarding sanctuary jurisdictions. It does not stop the federal government from using lawful means to enforce existing laws regarding conditions on federal grants, and does not restrict the administration from developing guidance or regulations designating a jurisdiction as a sanctuary jurisdiction.

In response to the ruling, the Justice Department said that it would continue to enforce existing grant conditions under Section 1373, and noted that the department has the independent legal authority to enforce the requirements of federal law that apply to state or local jurisdictions that violate federal grant conditions or federal immigration law.

A likely next step for the Trump administration would be to appeal the judge’s ruling to the Ninth Circuit Court of Appeals, the same court that blocked the original version of his controversial travel ban in February and will assess the constitutionality of the second version in May. President Trump expressed his opinion on Judge Orrick’s ruling using his signature medium on Wednesday, perhaps showing confusion about which court had issued the decision, or predicting his chances of success with the Ninth Circuit. “First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities-both ridiculous rulings. See you in the Supreme Court!” the President posted on Twitter.

Photo: Lorie Shaull, Washington, United States - I DID speak out...changing the narrative, Thursday evening rally against Trump's "Muslim Ban" policies sponsored by Freedom Muslim American Women's Policy, CC BY-SA 2.0

About Author

Brendan Conley is a staff contributor to Bigger Law Firm Magazine and legal content developer for law firms throughout the United States.

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