Outside the Beltway

Federal Judge Issues Order Barring Cut Off Of Funding To ‘Sanctuary Cities’

A Federal Judge in California has entered an order permanently blocking a Trump Administration effort to deny funding to so-called sanctuary cities.

Doug Mataconis · Tuesday, November 21, 2017 · 8 comments

A Federal District Court Judge in San Francisco has issued a permanent injunction barring the Trump Administration from enforcing its order cutting certain funding from  so-called sanctuary cities:

A federal judge issued an injunction to permanently block President Trump’s executive order to deny funding to cities that refused to cooperate with federal immigration officials, after finding the order unconstitutional.

The ruling by District Judge William H. Orrick in San Francisco comes in response to a lawsuit filed by the city of San Francisco and nearby Santa Clara County and follows a temporary halt on the order that the judge issued in April.

Orrick, in his summary of the case Monday, found that the Trump administration’s efforts to move local officials to cooperate with its efforts to deport undocumented immigrants violated the separation of powers doctrine as well as the Fifth and Tenth amendments.

“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,” the judge wrote. “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.”

In court earlier this year, the government’s lawyers had said that cities were overreacting to the order because federal officials had not yet moved to withhold funding from them.

The ruling marks another blow to the Trump administration by the judicial branch. Other federal judges have reined in the administration’s travel ban after questioning its constitutionality. Those rulings are still winding their way through federal appeals courts.

San Francisco City Attorney Dennis Herrera described Orrick’s decision as a victory for the “rule of law.”

“No one is above the law, including the president. President Trump might be able to tweet whatever comes to mind, but he can’t grant himself new authority because he feels like it,” he said in a statement. “This case is a check on the president’s abuse of power, which is exactly what the framers of the Constitution had in mind.”

(…)

As other judges did when assessing the travel ban, Orrick took into account the statements of the president, as well as those of Attorney General Jeff Sessions and others in the administration, to assess its intent and purpose.

“And if there was doubt about the scope of the Executive Order, the President and Attorney General erased it with their public comments,” Orrick wrote. “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 cities don’t get federal government funding in compliance with the executive order.’ ”

Sessions had issued a memorandum that attempted to clarify the executive order in May; Orrick found that the memo amounted to ”nothing more than an illusory promise to enforce the Executive Order narrowly.”

“To fix the constitutional problems I have identified, the Executive Order itself would need to be amended,” the judge wrote.

The Department of Justice did not immediately respond to a request for comment about whether it planned to appeal the ruling.

Trump has said that sanctuary cities put Americans at risk by refusing to hold immigrants who have been arrested or convicted of serious crimes until immigration agents can take them into custody and deport them.

In a release about the decision, Herrera noted that San Francisco complies with federal immigration enforcement.

“The federal government has always been free to enforce immigration law in San Francisco, just like it can anywhere else in the country,” he wrote. “But our teachers, doctors and police officers cannot be conscripted into becoming immigration agents. San Francisco’s sanctuary policies make our city safer by encouraging anyone who has been a victim or witness to a crime to tell police.”

This isn’t Judge Herrara’s first ruling on this issue of sanctuary cities or on the President’s Executive Order in particular. Back in April, he issued a preliminary injunction halting the enforcement of the order. Additionally, after Judge Orrick issued his preliminary ruling, a Federal Judge in Illinois issued a ruling in a similar case brought by the City of Chicago that also placed a nationwide ban on enforcement of a separate order from Attorney General Jeff Sessions regarding funding to cities that have declined to cooperate with ICE and other Federal Government authorities with regard to illegal immigrants. There are also a number of other challenges to the policy pending across the country, but so far there have not been any rulings in those cases. The impact of all of the decisions so far, though, has been that the Trump Administration’s efforts to “ban” sanctuary cities is essentially on hold. In theory, Congress could act here but any such legislation would have to make it through the Senate and that seems unlikely given both how thin the GOP majority is in the body and the unlikelihood that there would be sufficient Democratic support to overcome the sixty-vote threshold that applies to ordinary legislation. As a result,

In the order issued last night, Judge Orrick made many of the same arguments that he had in the preliminary order that he issued back in April, and also pointed out the extent to which much of the President’s own rhetoric can be used against him. For example, in both the order granting the temporary injunction and this permanent order, Judge Orrick found Trump’s tweets and campaign rhetoric on the issue of sanctuary cities to significantly undercut the arguments of Justice Department lawyer who argued that the actual impact of the order was limited to a small category of grants. Lawyers for the Plaintiffs in the case, which included both Santa Clara County and the City of San Francisco among other, argued, on the other hand, that this order was merely an effort by the Administration to cloak an exclusionary policy that violates the norms of Federalism and the separation of powers. This is not dissimilar, of course, from the argument successful advanced by Plaintiffs in the lawsuits regarding the Administration’s travel ban restricting travel to the United States by persons from a select list of countries that are mostly predominantly populated by Muslims. Additionally, Judge Orrick’s ruling found that the Executive Order goes beyond the Administration’s authority to restrict access to funding for a program authorized by Congress beyond the criteria that Congress itself has set, and that it violated principles of Federalism based on Supreme Court opinions going back several years,

I’ve written about the issue of sanctuary cities several times in the past, and as I’ve noted in those posts, the effort by the Federal Government to punish cities and localities for refusing to enforce Federal law clearly seems to be unconstitutional:

The Supreme Court has dealt with this issue most recently in a series of cases that go back more than twenty years, starting with South Dakota v. Dole in 1987, and continuing into the 1990s with New York v. United States and Printz v. United States. 

In Dole, the Court dealt with a challenge by South Dakota and other states challenging a Federal law that withheld 5% of allocated Federal highway funds from states that declined to raise their drinking age, arguing that the statute was not a valid use of Congressional authority that interfered with state powers reserved by the Tenth Amendment. The Court ruled in favor of the Federal Government but also set forth a series of criteria that the Federal Government must meet in order to avoid violating the Tenth Amendment and other protections of the rights and powers of the states when using this method to force action by the states.  New York v. United States, which was decided about five years after Dole, dealt with a Federal law governing the disposal of low levels of radioactive waste. One of the provisions of that law required states to “take title” to such waste and made them primarily responsible for its disposal, a provision which the Court found to be beyond the boundaries of both the Commerce Clause and the Tenth Amendment. Finally, about five years after New York, the Court issued a ruling in Printz v. United States that has stood for twenty years as the definitive ruling on the extent to which Federal law can be used to compel states to act. Printz dealt with provisions of the Brady Handgun Violence Prevention Act, the so-called “Brady Bill.” One part of that bill required state and local law enforcement to conduct background checks for all gun purchases within their borders for an interim period until a Federal database that would conduct those checks on a more-or-less instant basis could be built, tested, and put into operation. The Supreme Court struck that provision down as unconstitutional under the Tenth Amendment in a decision written by Justice Scalia that relied heavily on both the criteria set forth in Dole for the criteria the Federal Government must meet to compel state’s to perform certain acts or pass certain laws and the holding in New York that more fully developed the limits on the Federal Government’s ability to force the states to act.  One other decision, which Judge Orrick cites in his opinion is National Federation of Independent Business v. Sebelius, the 2011 case in which the Supreme Court largely upheld the Constitutional arguments against the Affordable Care Act. In one part of that decision, though, the Court struck down one provision of the PPACA that purported to use Federal power to force the states to expand Medicaid by threatening to withhold all of a state’s Medicaid funding if it declined to expand coverage as permitted under the PPACA. While there was not a solid majority supporting the reasoning for a decision in that part of the case, there was a majority in agreement with the result that the requirement that states expand the program or risk losing hundreds of millions of dollars or more in Medcaid funding was not permissible under either Article I or the Tenth Amendment. This is the legal foundation upon which Judge Orrick’s decision rests.

Given this and the other findings in both Judge Orrick’s ruling and the ruling out of Illinois, the legal arguments against the Trump’s Administration’s policy appear to be particularly strong.

The Trump Administration has already said that it intends to appeal Judge Herrera’s ruling to the Ninth Circuit Court of Appeals, and the Illinois ruling will likely be appealed to the Seventh Circuit Court of Appeals. Whether those courts agree with the reasoning in the District Courts remains to be seen, but both rulings seem strong enough in both their factual findings and legal reasoning to believe that they have a strong likelihood of surviving at least the preliminary round of appellate review. From the Circuit Court, of course, the next step of review would be the Supreme Court but that step would seem to be at least several months from even getting to the point where whoever loses at the appellate level would be able to petition the Justices for review. Given that, it’s possible that the Court may not get these cases in time to rule on them during the current term.

Here’s the opinion:

Santa Clara County Et Al v. Trump Et Al Opinion by Doug Mataconis on Scribd