United States District Court, N.D. California
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
William H. Orrick United States District Judge
April 25, 2017, I entered a preliminary injunction against
Section 9(a) of Executive Order 13768, “Enhancing
Public Safety in the Interior of the United States, ”,
82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive
Order”). Preliminary Injunction Order (“PI
Order”)(SF Dkt. No. 82), (SC Dkt. No. 98). I concluded
that the County of Santa Clara and the City and County of 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. The
federal government argued for the first time at the hearing
for the preliminary injunction that the Executive Order was
meant to be far more narrow than I interpreted it, a mere
directive to the Department of Homeland Security
(“DHS”) and the Department of Justice
(“DOJ”) that does not seek to place any new
conditions on federal funds. I concluded that this
interpretation was not legally plausible in light of the
Executive Order's plain language, as confirmed by the
administration's many statements indicating the Executive
Order's expansive scope. PI Order at 14.
later, the Attorney General issued a two page memorandum
memorializing the DOJ's interpretation (the “AG
Memorandum”) and asked me to reconsider the injunction.
Because the AG's Memorandum does not amend the Executive
Order, is not binding on the Executive Branch and suggests an
implausible interpretation of Section 9(a), I denied the
federal government's motion on July 20, 2017. Order
Denying Reconsideration (SF Dkt. No. 146), (SC Dkt. no. 145).
summary judgment, the parties have shown that there are no
material facts in dispute concerning the Executive Order.
This Order plows no new ground: for the reasons summarized
below, and as further described in my earlier Orders, I GRANT
the Counties' motions for summary judgment on the
Executive Order and permanently enjoin Section
Executive Order, in addition to outlining a number of
immigration enforcement policies, purports to “[e]nsure
that jurisdictions that fail to comply with applicable
Federal law do not receive Federal funds, except as mandated
by law” and to establish a procedure to make
“sanctuary jurisdictions” ineligible to receive
federal grants. In two related actions, the County of Santa
Clara and the City and County of San Francisco challenge
Section 9 of the Executive Order as facially unconstitutional
and have brought motions seeking summary judgment. See
Cty. of Santa Clara v. Trump, No. 17-cv-0574-WHO;
City & Cty. of San Francisco v. Trump,
17-cv-0485-WHO. San Francisco also seeks a declaration that
its laws comply with Section 1373.
Counties argue that Section 9(a) violates the separation of
powers doctrine enshrined in the Constitution because it
improperly seeks to wield congressional spending powers. It
is so overbroad and coercive that even if the President had
spending powers, the Executive Order would clearly exceed
them and violate the Tenth Amendment's prohibition
against commandeering local jurisdictions. It is so vague and
standardless that it violates the Fifth Amendment's Due
Process Clause and is void for vagueness. And because it
seeks to deprive local jurisdictions of congressionally
allocated funds without any notice or opportunity to be
heard, it violates the procedural due process requirements of
the Fifth Amendment.
federal government responds that the Counties' cannot
demonstrate that Section 9 of the Executive Order is invalid
under all circumstances, which the federal government
contends is the proper standard for a facial challenge. It
also claims that the grant eligibility provision in Section
9(a) is consistent with the Constitution's separation of
powers; that it is a valid exercise of the Spending Power
because it is not overly coercive, does not force the
Counties to take unconstitutional actions to receive the
funds, and the funds bear a relationship to immigration; that
the AG Memorandum clarifies the meaning of Section 9(a),
eliminating its vagueness (and alternatively, the
Counties' vagueness challenge impermissibly relies on
speculation); and, finally, in light of the AG Memorandum,
Section 9(a) does not apply to funding in which the County
might have a constitutionally protectable interest (and
alternatively that the federal government will apply the
9(a), by its plain language, attempts to reach all federal
grants, not merely the three grants listed in the AG's
Memorandum. The rest of the Executive Order is broader still,
addressing all federal funding. And if there was doubt about
the scope of the Executive Order, the President and Attorney
General erased it with their public comments. The President
has called it “a weapon” to use against
jurisdictions that disagree with his preferred policies of
immigration enforcement, and his press secretary reiterated
that the President intends to ensure that “counties and
other institutions that remain sanctuary cites don't get
federal government funding in compliance with the executive
order.” The Attorney General has warned that
jurisdictions that do not comply with Section 1373 would
suffer “withholding grants, termination of grants, and
disbarment or ineligibility for future grants, ” and
the “claw back” of any funds previously awarded.
The AG Memorandum not only provides an implausible
interpretation of Section 9 (a) but is functionally an
“illusory promise” because it does not amend
Section 9(a) and does not bind the Executive branch. It does
not change the plain meaning of the Executive Order.
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. Because the Executive Order
violates the separation of powers doctrine and deprives the
Counties of their Tenth and Fifth Amendment rights, I GRANT
the Counties' motions for summary judgment and
permanently enjoin the defunding and enforcement provisions
of Section 9(a).
THE EXECUTIVE ORDER
January 25, 2017, President Donald J. Trump issued Executive
Order 13768, “Enhancing Public Safety in the Interior
of the United States.” See RJN, Ex. J
(“EO”) (SC Dkt. No. 161-10). In outlining the
Executive Order's purpose, Section 1 reads, in part,
“Sanctuary jurisdictions across the United States
willfully violate Federal law in an attempt to shield aliens
from removal from the United States.” EO § 1.
Section 2 states that the policy of the executive branch is
to “[e]nsure that jurisdictions that fail to comply
with applicable Federal law do not receive Federal funds,
except as mandated by law.” Id. § 2(c).
9, titled “Sanctuary Jurisdictions, ” lays out
this policy in more detail. It reads:
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. The Secretary has the
authority to designate, in his discretion and to the extent
consistent with law, a jurisdiction as a sanctuary
jurisdiction. 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.
(b) To better inform the public regarding the public safety
threats associated with sanctuary jurisdictions, the
Secretary shall utilize the Declined Detainer Outcome Report
or its equivalent and, on a weekly basis, make public a
comprehensive list of criminal actions committed by aliens
and any jurisdiction that ignored or otherwise failed to
honor any detainers with respect to such aliens.
(c) The Director of the Office of Management and Budget is
directed to obtain and provide relevant and responsive
information on all Federal grant money that currently is
received by any sanctuary jurisdiction.
Id. § 9.
3 of the Executive Order, titled “Definitions, ”
incorporates the definitions listed in 8 U.S.C. § 1101.
Id. § 3. Section 1101 does not define
“sanctuary jurisdiction.” The term is not defined
anywhere in the Executive Order. Similarly, neither section
1101 nor the Executive Order defines what it means for a
jurisdiction to “willfully refuse to comply” with
Section 1373 or for a policy to “prevent or hinder
the enforcement of Federal law.” Id. §
1373, to which Section 9 refers, prohibits local governments
from restricting government officials or entities from
communicating immigration status information to ICE. It
states in relevant part:
(a) In General. 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.
(b) Additional Authority of Government Entities.
Notwithstanding any other provision of Federal, State, or
local law, no person or agency may prohibit, or in any way
restrict, a Federal, State, or local government entity from
doing any of the following with respect to information
regarding the immigration status, lawful or unlawful, of any
(1) Sending such information to, or requesting or receiving
such information from, the Immigration and Naturalization
(2) Maintaining such information.
(3) Exchanging such information with any other Federal,
State, or local government entity.
8 U.S.C. 1373.
July, 2016, the U.S. Department of Justice issued guidance
linking two federal grant programs, the State Criminal Alien
Assistance Program (“SCAAP”) and Edward Byrne
Memorial Justice Assistance Grant (“JAG”), to
compliance with Section 1373. This guidance states that all
applicants for these two grant programs are required to
“assure and certify compliance with all applicable
federal statutes, including Section 1373, as well as all
applicable federal regulations, policies, guidelines, and
requirements.” Id. The DOJ has indicated that
the Community Oriented Policing Services Grant
(“COPS”) is also conditioned on compliance with
THE AG MEMORANDUM
22, 2017, Attorney General Sessions issued the AG Memorandum,
putting forward the DOJ's “conclusive”
interpretation of the Executive Order. See Oppo.
Attachment 1 (“AG Memorandum”) (SC Dkt. No.
168-1). The AG Memorandum states that the Executive Order
does not “purport to expand the existing statutory or
constitutional authority of the Attorney General and the
Secretary of Homeland Security in any respect” and
instead instructs those officials to take action “to
the extent consistent with the law.” Id. at 2.
It also states that the defunding provision in section 9(a)
will be applied “solely to federal grants administered
by [DOJ] or [DHS]” and to grants that require the
applicant to “certify . . . compliance with federal
law, including 8 U.S.C. section 1373, as a condition for
receiving an award.” Id. at 1-2. The AG
Memorandum also states that DHS and DOJ may only impose these
conditions pursuant to “existing statutory or
constitutional authority, ” and only where
“grantees will receive notice of their obligation to
comply with section 1373.” Id. at 2.
Memorandum purports to clarify the scope of the Executive
Order to a more narrow interpretation than what its plain
meaning allows. To fix the constitutional problems I have
identified, the Executive Order itself would need to be
amended. I have concluded that the AG Memorandum amounts to
“nothing more than an illusory promise to enforce the
Executive Order narrowly.” See Cty. of Santa Clara
v. Trump, No. 17-cv-00574, 2017 WL 3086064, at *1 (N.D.
Cal. July 20, 2017).
CIVIL DETAINER REQUESTS
civil detainer request asks a local law enforcement agency to
continue to hold an inmate who is in local jail because of
actual or suspected violations of state criminal laws for up
to 48 hours after his or her scheduled release so that ICE
can determine if it wants to take that individual into
custody. See 8 C.F.R. § 287.7; Marquez Decl.,
Ex. C at 3 (SC Dkt. No. 160-3). ICE civil detainer requests
are voluntary and local governments are not required to honor
them. See 8 C.F.R. § 287.7(a); Galarza v.
Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014)
(“[S]ettled constitutional law clearly establishes that
[immigration detainers] must be deemed requests”
because any other interpretation would render them
unconstitutional under the Tenth Amendment).
courts have held that it is a violation of the Fourth
Amendment for local jurisdictions to hold suspected or actual
removable aliens subject to civil detainer requests because
those requests are often not supported by an individualized
determination of probable cause that a crime has been
committed. See Morales v. Chadbourne, 793 F.3d 208,
215-217 (1st Cir. 2015); Miranda-Olivares v. Clackamas
Cty., No. 3:12-cv-02317-ST, 2014 WL 1414305, at *9-11
(D. Or. Apr. 11, 2014). ICE does not reimburse local
jurisdictions for the cost of detaining individuals in
response to a civil detainer request and does not indemnify
local jurisdictions for potential liability they could face
for related Fourth Amendment violations. See 8
C.F.R. § 287.7(e); Marquez Decl. ¶¶ 24-27
& Exs. C-E.
THE COUNTIES' POLICIES
Santa Clara's Policies
Clara asserts that its local policies and practices with
regard to federal immigration enforcement are at odds with
the Executive Order's provisions regarding Section 1373.
S.C. Mot. at 6. (SC Dkt. No. 151). In 2010, the Santa Clara
County Board of Supervisors adopted a Resolution prohibiting
Santa Clara employees from using County resources to transmit
any information to ICE that was collected in the course of
providing critical services or benefits. Marquez Decl. ¶
28 (SC Dkt. No. 160) & Ex. G (SC Dkt. No. 160-7); Neusel
Decl. ¶ 8 (SC Dkt. No. 153); L. Smith Decl. ¶ 7 (SC
Dkt. No. 156). The Resolution also prohibits employees 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 from using County resources to pursue an
individual solely because of an actual or suspected violation
of immigration law. Marquez Decl. ¶ 28 & Ex. G;
Neusel Decl. ¶ 8; L. Smith Decl. ¶ 7.
Clara also asserts that its policies with regard to ICE civil
detainer requests are inconsistent with the Executive Order
and the President's stated immigration enforcement
agenda. Prior to late 2011, Santa Clara responded to and
honored ICE civil detainer requests, housing an average of
135 additional inmates each day at a daily cost of
approximately $159 per inmate. Neusel Decl. ¶ 10-11.
When the County raised concerns about the costs associated
with complying with detainer requests and potential civil
liability, ICE ...