Judge rules Trump executive order cutting funding from sanctuary cities is unconstitutional.

Judge Rules Trump Executive Order Cutting Funding From Sanctuary Cities Is Unconstitutional

Judge Rules Trump Executive Order Cutting Funding From Sanctuary Cities Is Unconstitutional

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Nov. 21 2017 9:57 AM

Judge Rules Trump Executive Order Cutting Funding From Sanctuary Cities Is Unconstitutional

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Lucia Quiej joins with demonstrators to rally in front of Homestead City Hall, asking that the city be used as a sanctuary city, on Nov. 16, 2016, in Homestead, Florida.

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On Monday night, a federal judge in San Francisco permanently enjoined a section of Donald Trump’s January executive order cutting funding from so called “sanctuary cities.” In his ruling, U.S. District Judge William H. Orrick called the provision “unconstitutional on its face and not simply in its application to the plaintiffs here.”

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

Trump signed Executive Order 13768, Enhancing Public Safety in the Interior of the United States, on Jan. 25, five days after his inauguration. The order pledged to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” Section 9(a) of the order also made “sanctuary jurisdictions”—that is, those that limit the extent to which local authorities cooperate with federal immigration demands—ineligible to receive federal grants.

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Lawsuits brought by two California counties, San Francisco and Santa Clara, contended the order was unconstitutional. They argued that, among other constitutional infirmities, the executive order violated the separation of powers and due process clauses and commandeered local jurisdictions for federal purposes.

The Justice Department and the Department of Homeland Security challenged these arguments, claiming the guidance was far narrower than the plaintiffs had claimed, that it applies to a very limited pot of funds, and that section 9(a) of the executive order does not actually seek to place any new conditions on federal funding. In April, Orrick entered a preliminary injunction, finding section 9(a) constitutionally overbroad and temporarily enjoining it. Following that temporary injunction, DOJ submitted a memorandum asserting 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,’ but rather instructs those officials to take certain action, ‘to the extent consistent with the law.’ ” This memorandum in no way amended the executive order itself.

After hearing arguments in October, Orrick has made his injunction permanent and nationwide. In his 28-page opinion, he rejects outright the DOJ’s claims that section 9(a) only affects three grants and not all federal funds. He finds that the remainder of the executive order is even broader and supplements reading of the order itself with a brisk note about the Trump administration’s claims in public statements about its reach:

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.

In effect, writes Orrick, the fact that the DOJ has promised not to use the order to defund sanctuary jurisdictions doesn’t change the plain language of the order itself. That promise is also belied by the many comments by administration officials saying that is precisely what the order was intended to do. He also finds that San Francisco and Santa Clara counties are routinely named by Trump and Attorney General Jeff Sessions as the targets of their efforts to defund sanctuary jurisdictions. He notes that in an op-ed, Sessions wrote that “Kathryn Steinle might be alive today if she had not lived in a ‘sanctuary city,’ ” and implored “San Francisco and other cities to re-evaluate these policies.” He further notes that both jurisdictions stand to lose hundreds of millions of dollars in critical funding if the administration targets them as promised.

Orrick then turns to the constitutional claims and finds that because the president does not have the power to place conditions on federal funds, what section 9(a) attempts to do is not authorized by Congress. He further finds that the executive order seeks to “compel the states and local jurisdictions to enforce a federal regulatory program through coercion,” likely making it unconstitutional under the 10th Amendment.

The Justice Department has already appealed this decision to the Ninth Circuit, with a DOJ spokesperson saying, “The District Court exceeded its authority today when it barred the President from instructing his cabinet members to enforce existing law. The Justice Department will vindicate the President’s lawful authority to direct the executive branch.” The president will doubtless be tweeting his own legal conclusions shortly.