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December 21, 2018 Feature

City & County of San Francisco v. Trump: Ninth Circuit Finds No Authority for Trump’s Sanctuary Cities Executive Order

By Leon Rodriguez

On January 25, 2017, just days after his inauguration, President Trump issued an executive order entitled “Enhancing Public Safety in the Interior of the United States” and reading in part as follows:

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) 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.1

Section 1373 provides as follows:

Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.2

Congress has not explicitly provided an enforcement mechanism for 8 U.S.C. § 1373.

On January 31, 2017, before the Department of Justice (DOJ) and the Department of Homeland Security (DHS) took any steps to implement the executive order, the City and County of San Francisco filed its first complaint for declaratory and injunctive relief to halt the implementation of the executive order. Attorney General Sessions then proceeded, to implement the executive order, to add certain new conditions to the Byrne Memorial Justice Assistance Grant (Byrne grant). Specifically, in July 2017, the DOJ added two additional conditions to the Byrne grant: (1) advance notice of the release of prisoners that the DHS sought to take into custody; and (2) access to detention facilities of the jurisdiction to meet with prisoners/detainees to inquire about their right to remain in the United States.3

On August 7, 2017, Chicago filed its own complaint for injunctive and declaratory relief. On September 15, 2017, Judge Harry D. Leinenweber in the Northern District of Illinois imposed a nationwide injunction stopping the DOJ from imposing the notice and access conditions on bond grant recipients. On April 19, 2018, the U.S. Court of Appeals for the Seventh Circuit upheld the district court’s injunction. The DOJ petitioned for en banc review, and on June 26, 2018, the en banc panel stayed the injunction as to jurisdiction beyond the City of Chicago, pending disposition of the case by the en banc court.

As the Chicago case proceeded, on November 20, 2017, the Northern District of California issued a nationwide injunction permanently enjoining section 9(a) of the executive order, after having granted summary judgment in favor of San Francisco and also the County of Santa Clara (the Counties), which had earlier joined the case. In ruling for the Counties, the district court discounted the federal government’s argument that the executive order was merely an aspirational document, instead looking to other statements by President Trump and Attorney General Sessions consistent with an intent to withhold funding.4

The Appeal

The DOJ appealed, and its brief filed December 18, 2017, argued that the plaintiffs lacked standing and had no likelihood of succeeding on the merits.5 The DOJ also argued that the district court had misinterpreted the text of the order by failing to give weight to the use of the phrase “consistent with law” as circumscribing the authority of the attorney general and the secretary of homeland security to place new conditions on federal grants.6 As with the travel ban cases, the court found that prior statements made by the administration belied the claim that it did not intend to actually strip grants from jurisdictions deemed to be out of compliance with 8 U.S.C. § 1371.7

The federal government also argued that injunctive relief should be limited to the plaintiffs rather than being applied nationwide.8 In its answer, the City argued that the plain text of section 9(a) of the executive order made clear the administration’s intention to impose its conditions nationwide, and that the nationwide injunction should stand. Numerous amici filed in support of the Counties, including the International Municipal Lawyers Association, a coalition of states, and a coalition of technology companies.

Ninth Circuit’s Decision and Dissent

The Ninth Circuit’s decision issued August 1, 2018, ruled that, under the U.S. Constitution, the executive branch may not refuse to disperse federal grants absent congressional authorization to do so. The court cited Article I, Section 9 (the appropriations clause) as exclusively granting the power of the purse to Congress, not the president. Aside from the power of veto, the president cannot thwart congressional will by cancelling appropriations. The court underscored that the president does not have unilateral authority to refuse to spend the funds appropriated by Congress.9 The president may not decline to follow a statutory mandate or prohibition simply because of policy objections.

The court then found that the Counties had laws and policies in place that left them at risk of “potentially devastating fiscal consequences” under the executive order. The court discarded the federal government’s argument that the executive order per se contains no enforcement mechanisms, observing that possible nonenforcement does not moot the Counties’ argument that under their interpretation of the executive order they will be forced to either change their policies or suffer serious significant fiscal consequences.10 The court referenced then Press Secretary Sean Spicer’s statement at the daily White House press briefing: “We’re going to strip federal grant money from the sanctuary states and cities that harbor illegal immigrants.”11 The court also rejected the administration’s textual argument that the executive order would be implemented only to the extent “consistent with law,” noting that adopting the administration’s position would lead to an intellectual cul-de-sac and would result in “more than a mere possibility that some agency might make a legally suspect decision.”12

The court did agree that the record did not justify a nationwide injunction and accordingly abridged that injunction and remanded the case for further consideration by the district court. Judge Ferdinand Fernandez dissented from his colleagues’ opinion, accepting the administration’s position that the executive order did not require any affirmative action on the part of the Counties.13

What Does It Mean?

The Trump Administration “Sanctuary Cities” Agenda Still at Square One

The most direct implication of this case and the Chicago v. Trump grant case is that the Trump administration still remains without a direct tool to apply against those state and local governments that it deems “sanctuary jurisdictions.” Section 1373 by its terms does not require any affirmative acts on the part of state and local governments. It only requires that they not prohibit communications about immigration status. Moreover, the section has no enforcement mechanism of its own.

Federal Courts Continue to Frown on “Implied” Federal Grant Conditions

Absent an explicit enforcement mechanism in 8 U.S.C. § 1373, the federal government looked to bootstrap the statute into various federal grant revenue streams, landing first on the Byrne grant as the most widely used by local jurisdictions and the one arguably most closely tied to the public safety rationale of the “sanctuary cities” policy. The appellate decisions both in the San Francisco case and in the Chicago case are in line with other federal court attempts to scrutinize closely federal government claims of implied conditions to federal grants and contracts. For example, in the recent unanimous decision of the Seventh Circuit in United States ex rel. Berkowitz v. Automation Aids, Inc., the appellate court reaffirmed that in a False Claims Act case based on implied certification of regulatory compliance, the government and/or a relator must show “with particularity” that the alleged noncompliance was material to the government’s payment of the claim.14

What’s Next?

Where Can Sanctuary Policy Go Next?

It is not yet known whether the DOJ and/or the DHS have a “plan B” to implement their sanctuary city policies. A number of bills have been introduced in Congress with the aim of punishing sanctuary cities, for example, the Make Sanctuary Cities Pay for the Wall Act of 2018, which would authorize the withholding of “certain housing, community development, and public works appropriations for sanctuary cities, localities, or states” into a DHS fund for construction of the U.S.-Mexico border wall.15 Thus far, this and similar other bills have not moved to a floor vote in both houses of Congress.

The Growth of Affirmative Litigation Cases

San Francisco, like New York and other cities with large local government attorney’s offices, has a separately constituted affirmative litigation section. The section represents the cities in challenges to federal government policy decisions. The aggressive challenge here by San Francisco and Santa Clara County—long before the federal government began implementing the executive order and long after the Seventh Circuit had held in favor of Chicago in the Byrne grant case—and the filings by numerous amici, including other local governments, in support suggests that local government lawyers in particular will be at the forefront of policy-driven litigation with the federal government. Currently immigration issues appear to dominate such litigation, with a good chance that similar conflicts will arise in other areas.

Endnotes

1. Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 30, 2017).

2. 8 U.S.C. § 1373(a).

3. City of Chicago v. Sessions, 888 F.3d 272, 278 (7th Cir. 2018).

4. Order Granting Motion for Summary Judgment, City & County of San Francisco v. Trump, No. 17-cv-00485-WHO, slip op. at 12 (9th Cir. Nov. 20, 2017).

5. City & County of San Francisco v. Trump, No. 17-cv-00485-WHO, 2018 WL 3637911, at *6 (9th Cir. Aug. 1, 2018).

6. Id. at *8.

7. Id. at *9–10.

8. Id. at *12–13.

9. See In re Aiken County, 725 F.3d 255, 261 (D.C. Cir. 2013).

10. San Francisco v. Trump, 2018 WL 3637911, at *6.

11. Id. at *7 (citing Priscilla Alvarez, Trump Cracks Down on Sanctuary Cities, Atlantic (Jan. 25, 2017)).

12. Id. at *9.

13. Id. at *14.

14. No. 17-2562, 2018 WL 3567836 (7th Cir. July 25, 2018).

15. H.R. 5663, 115th Cong. (2018).

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By Leon Rodriguez

Leon Rodriguez, a partner at Seyfarth Shaw LLP in Washington, D.C., served as the director of U.S. Citizenship and Immigration Services from 2014 to 2017, as a deputy assistant attorney general in the U.S. Department of Justice in 2010 and 2011, and as the county attorney for Montgomery County, Maryland, from 2007 to 2010.