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Federal judge strikes down Trump's executive order withholding funding from sanctuary cities

[JURIST] The US District Court for the Northern District of California [official website] on Monday struck down [order, PDF] as unconstitutional President Donald Trump's [official profile] Executive Order "Enhancing Public Safety in the Interior of the United States" (Order 13768) [text], which prohibited federal funding to cities that did not cooperate with federal immigration officials.

The decision comes in response to motions for summary judgment filed by the county of Santa Clara and the city and county San Francisco challenging Section 9(a) of Order 13768. That section states in relevant part:

In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that 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. ... The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

In April, Judge William H. Orrick granted a preliminary injunction against Section 9(a) concluding that Santa Clara San Francisco "had pre-enforcement standing to protect hundreds of millions of dollars of federal grants from the unconstitutionally broad sweep of the Executive Order." Three months later, Orrick also denied a motion for reconsideration filed by the attorney general stating that "the AG’s Memorandum [motion] does not amend the Executive Order, is not binding on the Executive Branch and suggests an implausible interpretation of Section 9(a)."

In these motions for summary judgment filed by Santa Clara and San Francisco, the court permanently enjoined Section 9(a) finding it to be in violation of the Fifth and Tenth Amendments [texts, PDFs] to the US Constitution:

The Executive Order gives the Counties no clear guidance on how to comply with its provisions or what penalties will result from non-compliance, and its standardless guidance and enforcement provisions are also likely to result in arbitrary and discriminatory enforcement. It does not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. ... Section 9(a) is void for vagueness under the Fifth Amendment. ...

The Executive Order directs the Attorney General and Secretary to designate various states and local jurisdictions as “sanctuary jurisdictions, ensure that such jurisdictions are "not eligible" to receive federal grants, and "take enforcement action" against them. EO ยง 9 (a). It does not direct the Attorney General or Secretary to provide "sanctuary jurisdictions" with any notice of an unfavorable designation or impending cut to funding. And it does not set up any administrative or judicial procedure for states and local jurisdictions to be heard, to challenge enforcement action, or to appeal any action taken against them under the Executive Order. This complete lack of process violates the Fifth Amendment’s due process requirements. ...

The Constitution vests the spending powers in Congress, not the President, so the Executive 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 they not be unduly 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.

The court added that Section 9(a) and the rest of Order 13768 attempts to reach "all federal grants, not merely the three grants listed in the AG’s Memorandum" and "all federal funding," concluding that the scope of Order 13768 is excessively broad and that any doubt about its scope was "erased" with "public comments" by the president and attorney general. Stating that "The President has called [order 13768] 'a weapon' to use against jurisdictions that disagree with his preferred policies of immigration ..." the court granted the motion for summary judgment permanently enjoining the federal government from enforcing Section 9(a).

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