Enhancing Public Safety in the Interior of the United States, Executive Order 13768, purports to protect Americans by denying funding to so-called sanctuary jurisdictions that “attempt to shield aliens from removal from the United States.” This attempt, the Executive Order declares, has caused “immeasurable harm to the American people and to the very fabric of our Republic.”
Sanctuary city policies
Santa Clara has a policy, established in 2010, that prohibits Santa Clara employees from 1) using County resources to transmit any information to Immigration and Customs Enforcement (ICE) that was collected in the course of providing critical services or benefits; 2) from initiating an inquiry or enforcement action based solely on the individual’s actual or suspected immigration status, national origin, race or ethnicity, or English-speaking ability; or 3) from using County resources to pursue an individual solely because of an actual or suspected violation of immigration law.
San Francisco’s policies prohibit departments, agencies, commissions, officers, and employees from using San Francisco funds or resources to assist in enforcing federal immigration law or gathering or disseminating information regarding an individual’s release status, or other confidential identifying information (which as defined does not include immigration status), unless such assistance is required by federal or state law.
In addition, law enforcement may not detain an individual, otherwise eligible for release from custody, solely on the basis of a civil immigration detainer request, or provide ICE with advanced notice that an individual will be released from custody, unless the individual meets certain criteria
As for the funds at issue, in the 2015-2016 fiscal year, Santa Clara County received approximately $1.7 billion from the federal government, which makes up about 35% of its total revenues. San Francisco receives about $1.2 billion, or 13%, of its $9.6 billion annual budget from the federal government.
Shortly after the Executive Order’s January 25, 2017 release, Santa Clara County, and the City and County of San Francisco sued the president, and others, asking the court to bar the Executive Order’s enforcement by way of a motion for preliminary injunction, on the grounds that it violates the Constitution in several ways. The County of Santa Clara, and the City of Richmond also filed lawsuits.
As we pointed out with respect to the president’s executive order banning entry of certain immigrants and non-immigrants, the court’s task when deciding on Santa Clara’s and San Francisco’s motion for injunction was to decide whether the plaintiffs showed that they are likely to face immediate, 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. The court determined that they had, and granted the plaintiffs’ motion, on April 25, 2017.
The Constitutional provisions that the plaintiffs raised are these:
- Separation of Powers, because Article 1 gives Congress, not the President, authority to “attach conditions on the receipt of federal funds;”
- The Tenth Amendment’s prohibition against commandeering local jurisdictions, because there are limits to the conditions that Congress can place on federal funds, including
- The fact that conditions must be unambiguous and cannot be imposed after funds have already been accepted;
- There must be a connection between the federal funds at issue and the federal program’s purpose; and
- The financial inducement cannot be coercive; and
- The Fifth Amendment’s Due Process clause, because the Order is impermissibly vague and standardless, and because it seeks to deprive local jurisdictions of congressionally allocated funds without any notice or opportunity to be heard.
The court’s rationale
As noted above, the court agreed with the plaintiffs that stopping the Executive Order from taking effect was appropriate. With respect to the first Constitutional provision, the court opined that “[t]he Executive Order runs afoul of [certain] basic and fundamental constitutional structures.” In particular, the court pointed out that Congress has “repeatedly, and frequently, declined to broadly condition federal funds or grants on compliance with [federal immigration laws] as the Executive Order purports to do.”
On the second issue pertaining to the Tenth Amendment, the court determined that the Executive Order violates all three of the conditions set forth above. Interestingly, the court likened the Executive Order to a section in President Obama’s Affordable Care Act (ACA) by quoting a United States Supreme Court case that concluded that an ACA provision’s “threat of denying Medicaid funds, which constituted over 10 percent of the State’s overall budget, was unconstitutionally coercive and represented a ‘gun to the head.’”
The court further opined that the Executive Order seeks to compel states and local jurisdictions to honor certain federal requests in the service of enforcing federal immigration law. This, too, is a Tenth Amendment violation of the prohibition on conscription, which the United States Supreme Court recognized when it declared that “[t]he Federal Government cannot compel the States to enact or administer a federal regulatory program.”
Beyond these, the court agreed with the plaintiffs’ arguments that the Executive Order is unconstitutionally vague, and thus violates the Due Process clause. When a law fails to “(1) ’give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly’ and (2) ‘provide explicit standards for those who apply them,’” it can be voided for vagueness.
The court characterized the Executive Order’s language as “expansive” and “standardless,” which is problematic because it creates the “huge potential for arbitrary and discriminatory enforcement.” Additionally, “[t]he Order gives the Counties no clear guidance on how to comply with its provisions or what penalties will result from non-compliance.”
To the plaintiffs’ deprivation-of-funds-without-the-chance-to-be-heard argument, the court reasoned that “[t]he Executive Order purports to make the Counties ineligible to receive these funds through a discretionary and undefined process.” It does this by directing various officials to designate certain localities as sanctuary jurisdictions, but then failing to give those localities any notice of the designation, or the impending funding cuts. After all, “[t]he essence of due process is the requirement that a person in jeopardy of serious loss be given notice of the case against him and opportunity to meet it.”
All in all, this analysis resulted in the court’s block of the Executive Order; the plaintiffs had satisfied their burden of showing that they are likely to succeed on the merits of their challenge, that they will suffer irreparable harm absent an injunction, and that the balance of harms and public interest weigh in their favor.
Present Trump has promised to appeal this decision.