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County of Santa Clara v. Trump

United States District Court, N.D. California

November 20, 2017

COUNTY OF SANTA CLARA, Plaintiff,
v.
DONALD J. TRUMP, et al., Defendants. CITY AND COUNTY OF SAN FRANCISCO, Plaintiff,
v.
DONALD J. TRUMP, et al., Defendants.

          ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

          William H. Orrick United States District Judge

         INTRODUCTION

         On 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.

         A month 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).

         Now on 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 9(a).[1]

         SUMMARY

         The 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.

         The 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.

         The 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 applicable procedures).

         Section 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.

         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. 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).[2]

         BACKGROUND

         I. THE EXECUTIVE ORDER

         On 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).

         Section 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.

         Section 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. § 9(a).

         II.SECTION 1373

         Section 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 individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.

8 U.S.C. 1373.

         In 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.[3] 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 Section 1373.

         III. THE AG MEMORANDUM

         On May 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.

         The AG 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).

         IV. CIVIL DETAINER REQUESTS

         An ICE 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).

         Several 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.

         V. THE COUNTIES' POLICIES

         A. Santa Clara's Policies

         Santa 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.

         Santa 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 ...


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