Santa Clara County Et Al v. Trump Et Al Opinion

Case 3:17-cv-00574-WHO Document 182 Filed 11/20/17 Page 1 of 28
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
7 COUNTY OF SANTA CLARA, Case No. 17-cv-00574-WHO

Plaintiff,
8
v.
9
10 DONALD J. TRUMP, et al.,

Defendants.
11
12 CITY AND COUNTY OF SAN Case No. 17-cv-00485-WHO

Northern District of California
FRANCISCO,
United States District Court
13 Plaintiff, ORDER GRANTING MOTION FOR

14 SUMMARY JUDGMENT
v.
15
DONALD J. TRUMP, et al.,
16 Defendants.
17
18
INTRODUCTION
19
On April 25, 2017, I entered a preliminary injunction against Section 9(a) of Executive
20
Order 13768, Enhancing Public Safety in the Interior of the United States,, 82 Fed. Reg. 8799
21
(Jan. 25, 2017) (the Executive Order). Preliminary Injunction Order (PI Order)(SF Dkt. No.
22
82), (SC Dkt. No. 98). I concluded that the County of Santa Clara and the City and County of San
23
Francisco had pre-enforcement standing to protect hundreds of millions of dollars of federal grants
24
from the unconstitutionally broad sweep of the Executive Order. The federal government argued
25
for the first time at the hearing for the preliminary injunction that the Executive Order was meant
26
to be far more narrow than I interpreted it, a mere directive to the Department of Homeland
27
Security (DHS) and the Department of Justice (DOJ) that does not seek to place any new
28
1 conditions on federal funds. I concluded that this interpretation was not legally plausible in light
2 of the Executive Orders plain language, as confirmed by the administrations many statements
3 indicating the Executive Orders expansive scope. PI Order at 14.
4 A month later, the Attorney General issued a two page memorandum memorializing the
5 DOJs interpretation (the AG Memorandum) and asked me to reconsider the injunction.
6 Because the AGs Memorandum does not amend the Executive Order, is not binding on the
7 Executive Branch and suggests an implausible interpretation of Section 9(a), I denied the federal
8 governments motion on July 20, 2017. Order Denying Reconsideration (SF Dkt. No. 146), (SC
9 Dkt. no. 145).
10 Now on summary judgment, the parties have shown that there are no material facts in
11 dispute concerning the Executive Order. This Order plows no new ground: for the reasons
12 summarized below, and as further described in my earlier Orders, I GRANT the Counties
13 motions for summary judgment on the Executive Order and permanently enjoin Section 9(a).1
14 SUMMARY
15 The Executive Order, in addition to outlining a number of immigration enforcement
16 policies, purports to [e]nsure that jurisdictions that fail to comply with applicable Federal law do
17 not receive Federal funds, except as mandated by law and to establish a procedure to make
18 sanctuary jurisdictions ineligible to receive federal grants. In two related actions, the County of
19 Santa Clara and the City and County of San Francisco challenge Section 9 of the Executive Order
20 as facially unconstitutional and have brought motions seeking summary judgment. See Cty. of
21 Santa Clara v. Trump, No. 17-cv-0574-WHO; City & Cty. of San Francisco v. Trump, 17-cv-
22 0485-WHO. San Francisco also seeks a declaration that its laws comply with Section 1373.
23 The Counties argue that Section 9(a) violates the separation of powers doctrine enshrined
24 in the Constitution because it improperly seeks to wield congressional spending powers. It is so
25
26 1
This Order addresses San Franciscos motion only with respect to Count Three of its Complaint.
27 Counts One and Two relate to San Franciscos claims regarding with 8 U.S.C. 1373 (Section
1373) and its compliance with it, which are better addressed at the time I consider upcoming
28 motions in related litigation. City & Cty. of San Francisco v. Sessions, No. 17-cv-4642-WHO;
California v. Sessions, No. 17-cv-4701-WHO (the related litigation).
2
1 overbroad and coercive that even if the President had spending powers, the Executive Order would
2 clearly exceed them and violate the Tenth Amendments prohibition against commandeering local
3 jurisdictions. It is so vague and standardless that it violates the Fifth Amendments Due Process
4 Clause and is void for vagueness. And because it seeks to deprive local jurisdictions of
5 congressionally allocated funds without any notice or opportunity to be heard, it violates the
6 procedural due process requirements of the Fifth Amendment.
7 The federal government responds that the Counties cannot demonstrate that Section 9 of
8 the Executive Order is invalid under all circumstances, which the federal government contends is
9 the proper standard for a facial challenge. It also claims that the grant eligibility provision in
10 Section 9(a) is consistent with the Constitutions separation of powers; that it is a valid exercise of
11 the Spending Power because it is not overly coercive, does not force the Counties to take
12 unconstitutional actions to receive the funds, and the funds bear a relationship to immigration; that
13 the AG Memorandum clarifies the meaning of Section 9(a), eliminating its vagueness (and
14 alternatively, the Counties vagueness challenge impermissibly relies on speculation); and, finally,
15 in light of the AG Memorandum, Section 9(a) does not apply to funding in which the County
16 might have a constitutionally protectable interest (and alternatively that the federal government
17 will apply the applicable procedures).
18 Section 9(a), by its plain language, attempts to reach all federal grants, not merely the three
19 grants listed in the AGs Memorandum. The rest of the Executive Order is broader still,
20 addressing all federal funding. And if there was doubt about the scope of the Executive Order, the
21 President and Attorney General erased it with their public comments. The President has called it
22 a weapon to use against jurisdictions that disagree with his preferred policies of immigration
23 enforcement, and his press secretary reiterated that the President intends to ensure that counties
24 and other institutions that remain sanctuary cites dont get federal government funding in
25 compliance with the executive order. The Attorney General has warned that jurisdictions that do
26 not comply with Section 1373 would suffer withholding grants, termination of grants, and
27 disbarment or ineligibility for future grants, and the claw back of any funds previously
28 awarded. The AG Memorandum not only provides an implausible interpretation of Section 9 (a)
3
1 but is functionally an illusory promise because it does not amend Section 9(a) and does not bind
2 the Executive branch. It does not change the plain meaning of the Executive Order.
3 The Constitution vests the spending powers in Congress, not the President, so the
4 Executive Order cannot constitutionally place new conditions on federal funds. Further, the Tenth
5 Amendment requires that conditions on federal funds be unambiguous and timely made; that they
6 bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that
7 bears no meaningful relationship to immigration enforcement cannot be threatened merely because
8 a jurisdiction chooses an immigration enforcement strategy of which the President disapproves.
9 Because the Executive Order violates the separation of powers doctrine and deprives the Counties
10 of their Tenth and Fifth Amendment rights, I GRANT the Counties motions for summary
11 judgment and permanently enjoin the defunding and enforcement provisions of Section 9(a). 2
12 BACKGROUND
13 I. THE EXECUTIVE ORDER

14 On January 25, 2017, President Donald J. Trump issued Executive Order 13768,
15 Enhancing Public Safety in the Interior of the United States. See RJN, Ex. J (EO) (SC Dkt.
16 No. 161-10). In outlining the Executive Orders purpose, Section 1 reads, in part, Sanctuary
17 jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens
18 from removal from the United States. EO 1. Section 2 states that the policy of the executive
19 branch is to [e]nsure that jurisdictions that fail to comply with applicable Federal law do not
20 receive Federal funds, except as mandated by law. Id. 2(c).
21 Section 9, titled Sanctuary Jurisdictions, lays out this policy in more detail. It reads:
22 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
23 political subdivision of a State, shall comply with 8 U.S.C. 1373.
24 (a) In furtherance of this policy, the Attorney General and the
Secretary, in their discretion and to the extent consistent with law,
25 shall ensure that jurisdictions that willfully refuse to comply with 8
U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive
26 Federal grants, except as deemed necessary for law enforcement
27
2
28 The motions for leave to file amicus briefs at SF Dkt. Nos. 174, 175, 176, 180, 181; and SC Dkt.
Nos. 169, 172, 173, 174, 175 are GRANTED.
4
purposes by the Attorney General or the Secretary. The Secretary

1 has the authority to designate, in his discretion and to the extent
consistent with law, a jurisdiction as a sanctuary jurisdiction. The
2 Attorney General shall take appropriate enforcement action against
any entity that violates 8 U.S.C. 1373, or which has in effect a
3 statute, policy, or practice that prevents or hinders the enforcement
of Federal law.
4
(b) To better inform the public regarding the public safety threats
5 associated with sanctuary jurisdictions, the Secretary shall utilize the
Declined Detainer Outcome Report or its equivalent and, on a
6 weekly basis, make public a comprehensive list of criminal actions
committed by aliens and any jurisdiction that ignored or otherwise
7 failed to honor any detainers with respect to such aliens.
8 (c) The Director of the Office of Management and Budget is
directed to obtain and provide relevant and responsive information
9 on all Federal grant money that currently is received by any
sanctuary jurisdiction.
10
Id. 9.
11
Section 3 of the Executive Order, titled Definitions, incorporates the definitions listed in
12
8 U.S.C. 1101. Id. 3. Section 1101 does not define sanctuary jurisdiction. The term is not
13
defined anywhere in the Executive Order. Similarly, neither section 1101 nor the Executive Order
14
defines what it means for a jurisdiction to willfully refuse to comply with Section 1373 or for a
15
policy to prevent[] or hinder[] the enforcement of Federal law. Id. 9(a).
16
II. SECTION 1373
17
Section 1373, to which Section 9 refers, prohibits local governments from restricting
18
government officials or entities from communicating immigration status information to ICE. It
19
states in relevant part:
20
(a) In General. Notwithstanding any other provision of Federal,
21 State, or local law, a Federal, State, or local government entity or
official may not prohibit, or in any way restrict, any government
22 entity or official from sending to, or receiving from, the Immigration
and Naturalization Service information regarding the citizenship or
23 immigration status, lawful or unlawful, of any individual.
24 (b) Additional Authority of Government Entities. Notwithstanding
any other provision of Federal, State, or local law, no person or
25 agency may prohibit, or in any way restrict, a Federal, State, or local
government entity from doing any of the following with respect to
26 information regarding the immigration status, lawful or unlawful, of
any individual:
27
(1) Sending such information to, or requesting or receiving
28 such information from, the Immigration and Naturalization
5
Service.
1
(2) Maintaining such information.
2
(3) Exchanging such information with any other Federal,
3 State, or local government entity.
4 8 U.S.C. 1373.
5 In July, 2016, the U.S. Department of Justice issued guidance linking two federal grant
6 programs, the State Criminal Alien Assistance Program (SCAAP) and Edward Byrne Memorial
7 Justice Assistance Grant (JAG), to compliance with Section 1373.3 This guidance states that all
8 applicants for these two grant programs are required to assure and certify compliance with all
9 applicable federal statutes, including Section 1373, as well as all applicable federal regulations,
10 policies, guidelines, and requirements. Id. The DOJ has indicated that the Community Oriented
11 Policing Services Grant (COPS) is also conditioned on compliance with Section 1373.
12 III. THE AG MEMORANDUM

13 On May 22, 2017, Attorney General Sessions issued the AG Memorandum, putting
14 forward the DOJs conclusive interpretation of the Executive Order. See Oppo. Attachment 1
15 (AG Memorandum) (SC Dkt. No. 168-1). The AG Memorandum states that the Executive
16 Order does not purport to expand the existing statutory or constitutional authority of the Attorney
17 General and the Secretary of Homeland Security in any respect and instead instructs those
18 officials to take action to the extent consistent with the law. Id. at 2. It also states that the
19 defunding provision in section 9(a) will be applied solely to federal grants administered by [DOJ]
20 or [DHS] and to grants that require the applicant to certify . . . compliance with federal law,
21 including 8 U.S.C. section 1373, as a condition for receiving an award. Id. at 1-2. The AG
22 Memorandum also states that DHS and DOJ may only impose these conditions pursuant to
23 existing statutory or constitutional authority, and only where grantees will receive notice of
24 their obligation to comply with section 1373. Id. at 2.
25
3
26 See Letter from Peter J. Kadzik, Asst. Atty Gen. U.S. Dept of Justice, to Hon John A.
Culberson, Chairman of the Subcomm. On Commerce, Justice, Sci & Related Agencies, (Jul. 7,
27 2016), http://culberson.house.gov/uploadedfiles/2016-7-7_section_1373-
_doj_letter_to_culberson.pdf. I take judicial notice of Peter Kadziks letter as courts may
28 judicially notice information and official documents contained on official federal government
websites. See Daniels-Hall v. Natl Educ. Assn, 629 F.3d 992, 998-999 (9th Cir. 2010).
6
1 The AG Memorandum purports to clarify the scope of the Executive Order to a more
2 narrow interpretation than what its plain meaning allows. To fix the constitutional problems I
3 have identified, the Executive Order itself would need to be amended. I have concluded that the
4 AG Memorandum amounts to nothing more than an illusory promise to enforce the Executive
5 Order narrowly. See Cty. of Santa Clara v. Trump, No. 17cv00574, 2017 WL 3086064, at *1
6 (N.D. Cal. July 20, 2017).
7 IV. CIVIL DETAINER REQUESTS

8 An ICE civil detainer request asks a local law enforcement agency to continue to hold an
9 inmate who is in local jail because of actual or suspected violations of state criminal laws for up to
10 48 hours after his or her scheduled release so that ICE can determine if it wants to take that
11 individual into custody. See 8 C.F.R. 287.7; Marquez Decl., Ex. C at 3 (SC Dkt. No. 160-3).
12 ICE civil detainer requests are voluntary and local governments are not required to honor them.
13 See 8 C.F.R. 287.7(a); Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) ([S]ettled
14 constitutional law clearly establishes that [immigration detainers] must be deemed requests
15 because any other interpretation would render them unconstitutional under the Tenth
16 Amendment).
17 Several courts have held that it is a violation of the Fourth Amendment for local
18 jurisdictions to hold suspected or actual removable aliens subject to civil detainer requests because
19 those requests are often not supported by an individualized determination of probable cause that a
20 crime has been committed. See Morales v. Chadbourne, 793 F.3d 208, 215-217 (1st Cir. 2015);
21 Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 WL 1414305, at *9-11 (D. Or.
22 Apr. 11, 2014). ICE does not reimburse local jurisdictions for the cost of detaining individuals in
23 response to a civil detainer request and does not indemnify local jurisdictions for potential liability
24 they could face for related Fourth Amendment violations. See 8 C.F.R. 287.7(e); Marquez Decl.
25 24-27 & Exs. C-E.
26 V. THE COUNTIES POLICIES

27 A. Santa Claras Policies
28 Santa Clara asserts that its local policies and practices with regard to federal immigration
7
1 enforcement are at odds with the Executive Orders provisions regarding Section 1373. SC Mot.
2 at 6. (SC Dkt. No. 151). In 2010, the Santa Clara County Board of Supervisors adopted a
3 Resolution prohibiting Santa Clara employees from using County resources to transmit any
4 information to ICE that was collected in the course of providing critical services or benefits.
5 Marquez Decl. 28 (SC Dkt. No. 160) & Ex. G (SC Dkt. No. 160-7); Neusel Decl. 8 (SC Dkt.
6 No. 153); L. Smith Decl. 7 (SC Dkt. No. 156). The Resolution also prohibits employees from
7 initiating an inquiry or enforcement action based solely on the individuals actual or suspected
8 immigration status, national origin, race or ethnicity, or English-speaking ability, or from using
9 County resources to pursue an individual solely because of an actual or suspected violation of
10 immigration law. Marquez Decl. 28 & Ex. G; Neusel Decl. 8; L. Smith Decl. 7.
11 Santa Clara also asserts that its policies with regard to ICE civil detainer requests are
12 inconsistent with the Executive Order and the Presidents stated immigration enforcement agenda.
13 Prior to late 2011, Santa Clara responded to and honored ICE civil detainer requests, housing an
14 average of 135 additional inmates each day at a daily cost of approximately $159 per inmate.
15 Neusel Decl. 10-11. When the County raised concerns about the costs associated with
16 complying with detainer requests and potential civil liability, ICE confirmed that it would not
17 reimburse the County or indemnify it for the associated costs and liabilities. Marquez Decl. 22-
18 26 & Exs. C-E.
19 Santa Clara subsequently convened a task force and adopted a new policy where the
20 County agreed to honor requests for individuals with serious or violent felony convictions, but
21 only if ICE would reimburse the County for the cost of holding those individuals. Neusel Decl.
22 5-6; Marquez Decl. 27 & Ex. G. ICE has never agreed to reimburse the County for any costs,
23 so since November 2011 the County has declined to honor all ICE detainer requests. Neusel Decl.
24 5-6; Marquez Decl. 27 & Ex. G.
25 B. San Franciscos Policies

26 San Franciscos sanctuary city policies are contained in Chapters 12H and 12I of its
27 Administrative Code. See S.F. Admin Code 12. The stated purpose of these laws is to foster
28 respect and trust between law enforcement and residents, to protect limited local resources, to
8
1 encourage cooperation between residents and City officials, including especially law enforcement
2 and public health officers and employees, and to ensure community security, and due process for
3 all. S.F. Admin Code 12I.1.
4 As relevant to Section 1373, Chapter 12H prohibits San Francisco departments, agencies,
5 commissions, officers, and employees from using San Francisco funds or resources to assist in
6 enforcing federal immigration law or gathering or disseminating information regarding an
7 individuals release status, or other confidential identifying information (which as defined does not
8 include immigration status), unless such assistance is required by federal or state law. Id. 12H.2.
9 Although Chapter 12H previously prohibited city employees from sharing information regarding
10 individuals immigration status, the San Francisco Board of Supervisors removed this restriction
11 in July 2016 due to concerns that the provision violated Section 1373.
12 With regard to civil detainer requests, Chapter 12I prohibits San Francisco law
13 enforcement from detaining an individual, otherwise eligible for release from custody, solely on
14 the basis of a civil immigration detainer request. Id. 12I.3. It also prohibits local law
15 enforcement from providing ICE with advanced notice that an individual will be released from
16 custody, unless the individual meets certain criteria. Id. Chapter 12I.3.(e) provides that a [l]aw
17 enforcement official shall not arrest or detain an individual, or provide any individuals personal
18 information to a federal immigration officer, on the basis of an administrative warrant, prior
19 deportation order, or other civil immigration document based solely on alleged violations of the
20 civil provisions of immigration laws. Id. 12I.3.(e). San Francisco explains that it adopted these
21 policies due to concerns that holding people in response to civil detainers would violate the Fourth
22 Amendment and require it to dedicate scarce law enforcement personnel and resources to holding
23 these individuals. Hennessy Decl. 13-14 (SF Dkt. No. 160).
24 VI. THE COUNTIES FEDERAL FUNDING

25 A. Santa Claras Federal Funding
26 In the 2015-2016 fiscal year, Santa Clara received approximately $1.7 billion in federal
27 and federally dependent funds, making up roughly 35% of the Countys total revenues. J. Smith
28 Decl. 6 (SC Dkt. No. 155); Marquez Decl. 8. This figure includes federal funds provided
9
1 through entitlement programs.
2 Most of the Countys federal funds are used to provide essential services to its residents.
3 Marquez Decl. 5-8. In support of its motion, the County includes a number of declarations
4 outlining how a loss of any substantial amount of federal funding would force it to make
5 substantial cut backs to safety-net programs and essential services and would require it to lay off
6 thousands of employees. It highlights that the Countys Valley Medical Center, the only public
7 safety-net healthcare provider in the County, relies on $1 billion in federal funds each year, which
8 covers up to 70% of its total annual costs. Lorenz Decl. 6 (SC Dkt. No. 157). A loss of all
9 federal funds would shut down Valley Medical Center and cut off the only healthcare option for
10 thousands of poor, elderly, and vulnerable people in the County. Id. 8. It further highlights that
11 Santa Claras Social Services Agency, which provides various services to vulnerable residents,
12 including child welfare and protection, aid to needy families, and support for disabled children,
13 adults and the elderly, receives roughly 40% of its budget, $300 million, from federal funds.
14 Menicocci Decl. 6 (SC Dkt. No. 158). The Countys Public Health Department receives 40% of
15 its budget and $38 million in federal funds. And the Countys Office of Emergency Services,
16 whose job is to prepare for and respond to disasters such as earthquakes and terrorism, receives
17 more than two-thirds of its budget from federal funds. Reed Decl. 8 (SC Dkt. No. 154)
18 In the 2014-2015 fiscal year, the County received over $565 million in non-entitlement
19 federal grants. See Marquez Decl. Ex. A at 11-12 (SC Dkt. No. 160-1) (showing $338 million in
20 federal grants subject to OMB auditing requirements and an additional $227 million in federal
21 grants through the Department of Housing and Urban Development). This represents
22 approximately 11% of the Countys budget.
23 B. San Franciscos Federal Funding

24 San Franciscos yearly budget is approximately $9.6 billion; it receives approximately $1.2
25 billion of this from the federal government. Rosenfield Decl. 10 (SF Dkt. No. 159). San
26 Francisco uses these federal funds to provide vital services such as medical care, social services,
27 and meals to vulnerable residents, to maintain and upgrade roads and public transportation, and to
28 make needed seismic upgrades. Whitehouse Decl. 15 (SF Dkt. No. 167). Losing all, or a
10
1 substantial amount, of federal funds would have significant effects on core San Francisco
2 programs. Rosenfield Decl. 42. Federal funds make up 30% of the budget for San Franciscos
3 Department of Emergency Management, id. 28-31; 33% of the budget for San Franciscos
4 Human Services Agency, id. 16-21; and 40% of the budget for San Franciscos Department of
5 Public Health, id. 22-27.
6 Approximately 20% of the federal funds, or $240 million, are from federal grants. Id. 43.
7 San Francisco also receives $800 million each year in federal multi-year grants, primarily for
8 public infrastructure projects. Whiteside Decl. 13.
9 San Francisco must adopt a balanced budget for each fiscal year beginning on July 1.
10 Whitehouse Decl. 16. Under local law, the Mayor must submit a balanced budget to the Board of
11 Supervisors by June 1 and make fundamental budget decisions by May 15, including whether to
12 create a budget reserve to account for the potential loss of significant funds. Id. 5, 9. Any
13 money placed in the budget reserve would not be available to be used for other programs or
14 services in the coming fiscal year. Id. 9.
15 DISCUSSION
16 I. JUSTICIABILITY
17 The federal government argues that the Counties claims against the Executive Order are
18 not justiciable because the Counties cannot establish standing and because their claims are not ripe
19 for review. It also contends that the claims are non-justiciable because the Executive Order is
20 merely an internal directive that does not directly affect the Counties. These principles of
21 justiciability go to whether this court has jurisdiction to hear the Counties claims. I conclude that
22 the Executive Order carries the weight of the law, the Counties have demonstrated Article III
23 standing to challenge the Executive Order, and their claims are ripe for review.
24 The federal government raises three primary arguments against the justiciability of the
25 Counties claims. First, it asserts that the Counties have not established a concrete risk of losing
26 any funds under Section 9(a). Second, it argues that the Counties cannot establish the concrete
27 injury necessary for standing nor concrete impact necessary for ripeness because neither the
28 President nor the Secretary of DHS has disagreed with the plan set forth by the Attorney
11
1 General in the AG Memorandum. Lastly, the federal government argues that because the
2 Executive Order is merely a internal directive, it does not affect the Counties.
3 The federal governments arguments are nearly identical to those I have rejected before. It
4 does not identify any change in the law or alternative explanation that would change my prior
5 analysis in the PI Order and Order Denying Reconsideration. I address its arguments in turn,
6 repeating my previous conclusions. All of the Counties claims are justiciable.
7 A. The Counties Establish a Concrete Risk of Losing Funds

8 The federal government repeatedly indicated its intent to enforce the Executive Order in its
9 public statements and through its actions. Although the defunding provision was not enforced
10 against any jurisdiction prior to the nationwide injunction, the President and other members of the
11 administration have made numerous statements reaffirming the federal governments intent to
12 enforce the Executive Order and to use the threat of withholding federal funds as a tool to coerce
13 states and local jurisdictions to change their policies.
14 For example, on February 5, 2017, after signing the Executive Order, President Trump
15 confirmed that he was willing and able to use defunding as a weapon so that sanctuary cities
16 would change their policies. See RJN Ex. H (Tr. of Feb. 5, 2017 Bill OReilly Interview with
17 President Donald J. Trump) at 4 (SF Dkt. No. 163-9) (I dont want to defund anybody. I want to
18 give them the money they need to properly operate as a city or a state. If theyre going to have
19 sanctuary cities, we may have to do that. Certainly that would be a weapon.).4 Attorney General
20 Sessions confirmed the federal governments intent to enforce the defunding provisions, stating
21 that if jurisdictions do not comply with Section 1373, such violations would result in withholding
22 grants, termination of grants, and disbarment or ineligibility for future grants, and that the federal
23 government would seek to claw back any funds awarded to a jurisdiction that willfully violates
24 1373. See RJN, Ex. I (Sessions Press Conference) at 2 (SF Dkt. No. 163-9).
25 The statements of the President and the Attorney General repeatedly indicated an intent to
26
4
27 I take judicial notice of President Trumps interview statements as the veracity of these
statements can be accurately and readily determined from sources whose accuracy cannot
28 reasonably be questioned. Fed. R. Evid. 201 (b)(2).
12
1 defund sanctuary jurisdictions in compliance with the Executive Order. Though such explicit
2 statements have been scant since I entered the preliminary injunction, the Counties concerns that
3 the federal government will enforce the defunding provision are well supported by the federal
4 governments public statements and actions, all of which are consistent with enforcing the
5 Executive Order.5
6 In addition to demonstrating that the federal government is likely to enforce the Executive
7 Order, the Counties have shown that the federal government is particularly likely to target them
8 and the funds on which they rely. In the February 5, 2017 interview, President Trump specifically
9 threatened to defund California, stating: Im very much opposed to sanctuary cities. They breed
10 crime. Theres a lot of problems. If we have to well defund, we give tremendous amounts of
11 money to California . . . California in many ways is out of control. See RJN, Ex. H at 4. The
12 Counties have established that they both receive large percentages of their federal funding through
13 the State of California and that they would suffer injury if California was defunded. ICE has
14 identified California, Santa Clara County, and San Francisco as jurisdictions with policies that
15 Restrict Cooperation with ICE and has identified Santa Clara County Main Jail and San
16 Francisco County Jail as two of eleven detention centers with the highest volume of detainers
17 issued that do not comply with detainers on a routine basis. RJN, Ex. D (SF Dkt. No. 163-3).6
18 The President and the Attorney General have also repeatedly held up San Francisco as an
19 example of how sanctuary policies threaten public safety. In an op-ed recently published in the
20 San Francisco Chronicle, the Attorney General wrote that Kathryn Steinle might be alive today if
21 she had not lived in a sanctuary city and implored San Francisco and other cities to re-evaluate
22
23 5
I take judicial notice under Fed. R. Evid. 201 (b)(2) that the DOJ notified the Counties on
24 November 15, 2017 that they have preliminarily been found to have laws, policies, or practices
that violate 8 U.S.C. 1373. Second Supplement al Request for Judicial Notice in Support of the
25 County of Santa Claras Motion for Summary Judgment, Exh. C, Dkt. No. 181. This underscores
the concrete risk and injury faced by the Counties.
26 6
I take judicial notice of ICEs identification of California, Santa Clara County, and San Francisco
27 as jurisdictions with policies that Restrict Cooperation with ICE as matters of public record. See
Interstate Nat. Gas. Co. v. S. Cal. Gas. Co., 209 F.2d 380, 385 (9th Cir. 1953) (judicially noticing
28 federal government agency records and reports).
13
1 these policies. RJN, Ex. R (SF Dkt. No. 163-18).7 In his statements to federal, state, and local
2 law enforcement on July 12, 2017, Attorney General Sessions referenced the tragic death of Ms.
3 Steinle and noted that her killer admitted that one reason he was in San Francisco that day was
4 that he knew the city had these policies in place RJN, Ex. T (Sessions Press Release) at 2 (Dkt.
5 No. 163-20). These statements indicate not only the belief that San Francisco is a sanctuary
6 jurisdiction but that its policies are particularly dangerous and in need of change. They also
7 reveal a choice by the administration to hold up San Francisco as an exemplar of a sanctuary
8 jurisdiction.
9 The federal governments specific criticisms of San Francisco, Santa Clara, and California
10 support a well-founded fear that San Francisco and Santa Clara will face enforcement directly
11 under the Executive Order, or could be subject to defunding indirectly through enforcement
12 against California. San Francisco and Santa Clara have shown that their current practices and
13 policies are targeted by the Executive Order. They have demonstrated that the federal government
14 has repeatedly indicated its intent to enforce it. And they have established that the federal
15 government has specifically highlighted Santa Clara and San Francisco as jurisdictions with
16 sanctuary policies. On these facts, Santa Clara and San Francisco have demonstrated that the
17 threat of enforcement [is] credible, not simply imaginary or speculative. Id. (internal quotation
18 marks omitted). Because the enforcement of Section 9(a) involves defunding, this establishes the
19 Counties concrete risk of losing funds.
20 B. The Counties Show Concrete Injury and Concrete Impact

21 The Counties assert that the Executive Order threatens to penalize them for failing to
22 comply with Section 1373 and for failing to honor detainer requests by withholding all federal
23 funds, or at least all federal grants. Section 9(a) does not threaten all federal funding, but it does
24 include all federal grants, which make up a significant part of the Counties budgets. This
25 threatened injury meets Article IIIs standing requirements. A loss of funds promised under
26
27 7
I take judicial notice of Attorney General Sessionss statements in his op-ed as the veracity of
28 these statements can be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned. Fed. R. Evid. 201 (b)(2).
14
1 federal law [] satisfies Article IIIs standing requirement. Organized Village of Kake v. U.S.
2 Dept of Agric., 795 F.3d 956, 965 (9th Cir. 2015).
3 The Counties explained that the need to mitigate a potential sudden loss of federal funds
4 wreaked havoc with their budgeting processes prior to issuance of the preliminary injunction.
5 They could not make informed decisions about whether to keep spending federal funds on needed
6 services for which they may not be reimbursed; they were forced to make contingency plans to
7 deal with a potential loss of funds, including placing funds in a budget reserve in lieu of spending
8 that money on needed programs; and the obligation to mitigate potential harm to their residents
9 and drastic cuts to services could ultimately compel them to change their local policies to comply
10 with what they believe to be an unconstitutional Executive Order. The potential loss of all federal
11 grants creates a contingent liability large enough to have real and concrete impacts on the
12 Counties ability to budget and plan for the future. As discussed in more detail below, the
13 Counties demonstrated that they are suffering a present injury [] inflicted by the mere existence
14 and threatened enforcement of the [Executive Order]. Village of Euclid, 272 U.S. at 385. Along
15 with the threatened loss of funds, this may also establish Article III standing.
16 A sudden loss of grant funding would have another effect. The Counties receive large
17 portions of their federal grants through reimbursement structures; the Counties first spend their
18 own money on particular services and then receive reimbursements from the federal government
19 based on the actual services provided. Marquez Decl. 16. Because these funds are spent on an
20 ongoing basis, at all times the Counties are expecting, and relying on, millions of dollars in federal
21 reimbursements for services already provided. A sudden cut to funding, including a cut to these
22 reimbursements, could place them immediately in significant debt. A sudden and unanticipated
23 cut mid-fiscal year would substantially increase the injury to the Counties by forcing them to make
24 even more drastic cuts to absorb the loss of funds during a truncated period in order to stay on
25 budget. Whitehouse Decl. 15.
26 San Francisco explains that a mid-year loss of only $120 million in federal funding would:
27 require the City to make significant cuts to critical services and would result in reductions in the
28 numbers of first responders, such as police officers, firefighters, and paramedics; require severe
15
1 cuts to the Citys MUNI transportation system; threaten the Mayors program to end chronic
2 veterans homelessness by 2018; and likely require cuts to social services, such as senior meals,
3 safety net services for low-income children, and domestic violence prevention services. Id. 10.
4 Because federal grants support key services, San Francisco asserts that, without clarity about the
5 funds the Executive Order could withhold or claw back, it would have needed to allocate millions
6 of dollars to a budget reserve on May 15, 2017 to prepare for the potential loss of significant funds
7 during the 2017 fiscal year. Id. 6, 12. Any funds placed in a reserve fund would not be available
8 to fund other City programs and services for the 2017 fiscal year, which would have resulted in a
9 dollar-for-dollar reduction in services the City is able to provide its residents. Id. 8-10.
10 Santa Clara asserts that the budgetary uncertainty put it in an untenable position.
11 Marquez Decl. 4. It explained that Santa Claras budget for the fiscal year is in place and was
12 developed based on careful weighing of various factors, including anticipated revenues, specific
13 service needs, salary and benefits for the Countys 19,000 employees, and the Countys fiscal
14 priorities. Id. 13. Because Santa Clara operates federally funded programs on a daily basis, and
15 incurs costs in anticipation that it will be reimbursed, its ability to provide these services depends
16 on the County having some confidence that it will continue to receive the federal reimbursements
17 and funds on which it depends. With the Executive Orders unclear and broad language
18 threatening a significant cut to funding, the County did not know whether to (1) continue
19 incurring hundreds of millions of dollars in costs that may never be reimbursed by the federal
20 government, (2) discontinue basic safety-net services delivered to its most vulnerable residents, or
21 (3) in an attempt to avoid either of these outcomes, be effectively conscripted into using local law
22 enforcement and other resources to assist the federal government in its immigration enforcement
23 efforts. Id. 12.
24 The potential loss of funds also impacts the Counties potential borrowing power and
25 financial strength; San Francisco noted that it had received inquiries from credit rating agencies
26 about the Executive Order and its impact on San Franciscos finances. Rosenfield Decl. 46-47.
27 This budget uncertainty is not abstract. It has caused the Counties real and tangible harms. They
28 have adequately demonstrated that budgetary uncertainty of the type threatened by the Executive
16
1 Order constitutes a sufficiently concrete injury and demonstrates a sufficiently concrete impact for
2 purposes of justiciability.
3 C. The Executive Order is Not an Internal Directive

4 The federal government argues that the Executive Order does not change the law, but
5 merely directs the Attorney General and Secretary to enforce existing law. It cites Chen v.
6 Schiltgen, No. C-94-4094-MHP, 1995 WL 317023, at *5 (N.D. Cal. May 29, 1995), for the
7 proposition that the Executive Order direct[s] the exercise of powers statutorily delegated to
8 executive branch officials. Oppo. at 8. But the Executive Order is not readily susceptible to the
9 federal governments narrow interpretation. Indeed, [t]o read [the Executive Order] as the
10 federal government desires requires rewriting, not just reinterpretation. U.S. v. Stevens, 559 U.S.
11 460, 481 (2010).
12 The federal government attempts to read out all of Section 9(a)s unconstitutional
13 directives to render it an ominous, misleading, and ultimately toothless threat. It urges that all it
14 does is direct the Attorney General and Secretary to enforce existing grant conditions consistent
15 with law. But in reality, the defunding provision instructs the Attorney General and the Secretary
16 to do something that only Congress has the authority to do place new conditions on federal
17 funds. If Section 9(a) does not direct the Attorney General and Secretary to place new conditions
18 on federal funds, then it only authorizes them to do something they already have the power to do,
19 which is to enforce existing grant requirements; effectively, the federal government argues that
20 Section 9(a) is valid and does not raise constitutional issues as long as it does nothing at all. But
21 a construction so narrow that it renders a legal action legally meaningless cannot possibly be
22 reasonable and is clearly inconsistent with the Executive Orders broad intent.
23 The federal governments construction requires a complete rewriting of the Executive
24 Orders language and does not retain any of Section 9(a)s legal effect. The Executive Order, as
25 written, is not merely an internal directive but an order intended to have the full force of the law.
26 II. CONSTITUTIONALITY OF THE EXECUTIVE ORDER

27 A. The Executive Order Violates the Separation of Powers
28 The Counties argue that the Executive Order is unconstitutional because it seeks to wield
17
1 powers that belong exclusively to Congress, the spending powers. The federal government
2 contends that (i) the grant eligibility provision in Section 9(a) is consistent with separation of
3 powers; (ii) authority to impose at least some conditions is inherent in the statutory authority to
4 administer a grant program; and (iii) the Counties have failed to establish that the Executive Order
5 would be unconstitutional in all its applications.
6 The parties disagree about the standard for a facial challenge. Relying on United States v.
7 Salerno, 481 U.S. 739, 745 (1987), the federal government argues that the Counties must
8 demonstrate that Section 9(a) is invalid under all circumstances. SC Oppo. at 11 (SC Dkt. No.
9 168); SF Oppo. at 21 (SF Dkt. No. 165). Santa Clara asserts, and I agree, that a proper facial
10 challenge can be brought when the challenged law cannot be narrowly construed by the courts or
11 narrowly interpreted as to avoid constitutional questions. Jackson v. City & Cty. Of San
12 Francisco, 746 F.3d 953, 963 (9th Cir. 2014). I have found that the Executive Order cannot be
13 narrowly interpreted or construed to avoid constitutional questions, and the federal government
14 makes no argument regarding the separation of powers principles other than its misguided
15 assertion regarding the standard for a facial challenge. The Executive Order violates the
16 Constitutions separation of powers principles.
17 The constitutional principle at issue is pretty basic. Article I of the Constitution grants
18 Congress the federal spending powers. See U.S. Const. art. I, 8, cl. 1. Incident to this power,
19 Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the
20 power to further broad policy objectives by conditioning receipt of federal moneys upon
21 compliance by the recipient with federal statutory and administrative directives. South Dakota
22 v. Dole, 483 U.S. 203, 206 (1987) (citing Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)
23 (emphasis added). While the President may veto a Congressional enactment under the
24 Presentment Clause, he must either approve all the parts of a Bill, or reject it in total. Clinton
25 v. City of New York, 524 U.S. 417, 438 (1998) (quoting 33 Writings of George Washington 96 (J.
26 Fitzpatrick ed., 1940)). He cannot repeal[] or amend[] parts of duly enacted statues after they
27 become law. Id. at 439.
28 This is true even if Congress has attempted to expressly delegate such power to the
18
1 President. Id. In City of New York, the Supreme Court concluded that the Line Item Veto Act,
2 which sought to grant the President the power to cancel particular direct spending and tax benefit
3 provisions in bills, was unconstitutional because it ran afoul of the finely wrought procedures
4 commanded by the Constitution for enacting laws. Id. at 448 (quoting INS v. Chadha, 462 U.S.
5 919, 951 (1983)). While Congress can delegate some discretion to the President to decide how to
6 spend appropriated funds, any delegation and discretion is cabined by these constitutional
7 boundaries.
8 After a bill becomes law, the President is required to take Care that the Law be faithfully
9 executed. See U.S. Const. art. II, 3, cl. 5. Where Congress has failed to give the President
10 discretion in allocating funds, the President has no constitutional authority to withhold such funds
11 and violates his obligation to faithfully execute the laws duly enacted by Congress if he does so.
12 See City of New York, 524 U.S. at 439; U.S. Const. art. I, 8, cl. 1. Further, [w]hen the President
13 takes measures incompatible with the expressed or implied will of Congress, his power is at its
14 lowest ebb. Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,
15 concurring). Congress has intentionally limited the ability of the President to withhold or
16 impound appropriated funds and has provided that the President may only do so after following
17 particular procedures and after receiving Congresss express permission. See Impoundment
18 Control Act of 1974, 2 U.S.C. 683 et seq.
19 The Executive Order runs afoul of this fundamental constitutional structure. The President
20 does not have the power to place conditions on federal funds and, obviously, cannot delegate this
21 power. But that is what Section 9(a) purports to do, to give the Attorney General and the
22 Secretary the power to place a new condition on federal funds (compliance with Section 1373) not
23 authorized by Congress.
24 Section 9(a) is particularly problematic because Congress has repeatedly declined to
25 broadly condition federal funds or grants on compliance with Section 1373 or other federal
26 immigration laws as the Executive Order purports to do. See, e.g., Ending Sanctuary Cities Act of
27 2016, H.R. 6252, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong.
28 (2016); Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016); Stop Sanctuary
19
1 Policies and Protect Americans Act, S. 2146, 114th Cong. (2016). This puts the Presidents power
2 at its lowest ebb. Youngstown, 343 U.S. at 637. The Executive Orders attempt to place new
3 conditions on federal funds is an improper attempt to wield Congresss exclusive spending power
4 and is a violation of the Constitutions separation of powers principles.
5 B. The Counties Spending Clause Claims

6 The Counties also argue that, even if the President had the spending power, the Executive
7 Order would be unconstitutional under the Tenth Amendment because it exceeds those powers.
8 Relying largely on the language in the AG Memorandum, the federal government counters that: (i)
9 the Counties do not demonstrate that Section 9(a) is clearly coercive; (ii) Section 9(a) does not
10 induce the Counties to violate any applicable constitutional or statutory limitation; (iii) the AG
11 Memorandum eliminated the possibility of Section 9(a) being applied in arenas unrelated to
12 immigration; and (iv) the AG Memorandum clarifies how the provisions of Section 9(a) will be
13 applied. As I explained in the Order Denying Reconsideration, the AG Memorandum does not
14 resolve the Executive Orders constitutional issues or alter the constitutional analysis, and there is
15 no need to discuss further those latter two arguments.
16 Regarding the first two arguments, Congress has significant authority to encourage policy
17 through its spending power. The Supreme Court, however, has articulated a number of limitations
18 to the conditions Congress can place on federal funds. The Executive Order likely violates at least
19 three of these restrictions: (1) conditions must be unambiguous and cannot be imposed after funds
20 have already been accepted; (2) there must be a nexus between the federal funds at issue and the
21 federal programs purpose; and (3) the financial inducement cannot be coercive.
22 1. Unambiguous Requirement
23 When Congress places conditions on federal funds, it must do so unambiguously so that
24 state and local jurisdictions contemplating whether to accept such funds can exercise their choice
25 knowingly, cognizant of the consequences of their participation. Dole, 483 U.S. at 203 (internal
26 quotation marks omitted). Because states must opt-in to a federal program willingly, fully aware
27 of the associated conditions, Congress cannot implement new conditions after-the-fact. See Natl
28 Fed. of Indep. Bus. v. Sebelius (NFIB), 132 S. Ct. 2566, 2602-04 (2012). The legitimacy of
20
1 Congresss exercise of the spending power thus rests on whether the state voluntarily and
2 knowingly accepts the terms of the contract at the time Congress offers the money. Id. at 2602.
3 The Executive Order purports retroactively to condition all federal grants on compliance
4 with Section 1373. As this condition was not an unambiguous condition that the states and local
5 jurisdictions voluntarily and knowingly accepted at the time Congress appropriated these funds, it
6 cannot be imposed now by the Executive Order. Moreover, the Executive Orders language refers
7 to all federal grants but the DOJ says it only applies to three grants issued through the
8 Departments of Justice and Homeland Security. If the funds at stake are not clear, the Counties
9 cannot voluntarily and knowingly choose to accept the conditions on such funds.
10 Finally, as discussed below in Section II.D., the Executive Orders vague language does
11 not make clear what conduct it proscribes or give jurisdictions a reasonable opportunity to avoid
12 its penalties. The unclear and untimely conditions in the Executive Order fail the unambiguous
13 restriction because the Executive Order does not make clear to states and local governments what
14 funds are at issue and what conditions apply to those funds, making it impossible for them to
15 voluntarily and knowingly accept[] the terms of the contract. NFIB, 132 S. Ct. at 2602.
16 2. Nexus Requirement
17 The conditions placed on congressional spending must have some nexus with the purpose
18 of the implicated funds. Congress may condition grants under the spending power only in ways
19 reasonably related to the purpose of the federal program. Dole, 483 U.S. at 213. This means that
20 funds conditioned on compliance with Section 1373 must have some nexus to immigration
21 enforcement.
22 The Executive Orders attempt to condition all federal grants on compliance with Section
23 1373 clearly runs afoul of the nexus requirement: there is no nexus between Section 1373 and
24 most categories of federal funding, such as funding related to Medicare, Medicaid, transportation,
25 child welfare services, immunization and vaccination programs, and emergency preparedness.
26 The Executive Order inverts the nexus requirement, directing the Attorney General and Secretary
27 to cut off all federal grants to sanctuary jurisdictions but giving them discretion to allow
28 sanctuary jurisdictions to receive grants deemed necessary for law enforcement purposes. EO
21
1 9(a). As the subset of grants deemed necessary for law enforcement purposes likely includes
2 any federal funds related to immigration enforcement, the Executive Order expressly targets for
3 defunding grants with no nexus to immigration enforcement at all. This is the precise opposite of
4 what the nexus test requires.
5 3. Not Coercive Requirement

6 Finally, Congress cannot use the spending power in a way that compels local jurisdictions
7 to adopt certain policies. Congress cannot offer financial inducement . . . so coercive as to pass
8 the point at which pressure turns to compulsion. Dole, 483 U.S. at 211 (internal quotation marks
9 omitted). Legislation that coerces a State to adopt a federal regulatory system as its own runs
10 contrary to our system of federalism. NFIB, 132 S. Ct. at 2602. States must have a legitimate
11 choice whether to accept the federal conditions in exchange for federal funds. Id. at 2602-03.
12 In NFIB, the Supreme Court concluded that the Affordable Care Acts threat of denying
13 Medicaid funds, which constituted over 10 percent of the States overall budget, was
14 unconstitutionally coercive and represented a gun to the head. Id. at 2604. The Executive Order
15 threatens to deny sanctuary jurisdictions all federal grants, hundreds of millions of dollars on
16 which the Counties rely. The threat is unconstitutionally coercive.
17 C. The Counties Tenth Amendment Claim

18 The Counties argue that Section 9(a) violates the Tenth Amendment because it attempts to
19 conscript states and local jurisdictions into carrying out federal immigration law. The federal
20 government does not specifically address the constitutional argument. Instead, it asserts that in
21 order to successfully bring a facial challenge, San Francisco must demonstrate that the
22 appropriate enforcement action provision of Section 9(a) would violate the Tenth Amendment in
23 all of its applications. As previously discussed, this argument misinterprets the facial challenge
24 standard.8
25 The Federal government may not compel the States to enact or administer a federal
26
8
27 This discussion of the Tenth Amendment only addresses the Executive Orders enforcement
threat against all federal grants. I will consider the narrower issues presented concerning Section
28 1373 and specific grant programs involving San Francisco and the State of California in the
related litigation.
22
1 regulatory program. New York, 505 U.S. at 188. The Federal government may neither issue
2 directives requiring the States to address particular problems, nor command the States officers, or
3 those of their political subdivisions, to administer or enforce a federal regulatory program. Printz
4 v. United States, 521 U.S. 898, 935 (1997). That is true whether Congress directly commands a
5 State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.
6 NFIB, 132 S. Ct. at 2602.
7 The Counties have demonstrated that under their reasonable interpretation, the Executive
8 Order equates sanctuary jurisdictions with any jurisdiction that ignored or otherwise failed to
9 honor any detainers and therefore places such jurisdictions at risk of losing all federal grants. See
10 EO 9(b). The Counties have shown that losing all of their federal grant funding would have
11 significant effects on their ability to provide services to their residents and that they may have no
12 legitimate choice but to accept the federal governments conditions in exchange for those funds.
13 To the extent the Executive Order seeks to condition all federal grants on honoring civil
14 detainer requests, it is likely unconstitutional under the Tenth Amendment because it seeks to
15 compel the states and local jurisdictions to enforce a federal regulatory program through coercion.
16 It directs the Attorney General to take appropriate enforcement action against any entity that
17 violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders
18 the enforcement of Federal law. EO 9(a). Although the Executive Order provides no further
19 clarification on what this enforcement might entail or what policies might hinder[] the
20 enforcement of Federal law, Attorney General Sessions, who is tasked with implementing this
21 provision, has equated failure to honor civil detainer requests with policies that frustrate th[e]
22 enforcement of immigration laws. See Sessions Press Conference at 2. Given the Attorney
23 Generals apparent interpretation of Section 1373, the Executive Order threatens enforcement
24 action against any jurisdiction that refuses to comply with detainer requests or otherwise fails to
25 enforce federal immigration law. While this threat of enforcement is left vague and
26 unexplained, enforcement by its own definition means to compel[] compliance. See BLACKS
27 LAW DICTIONARY 645 (10th ed. 2014) (defining enforcement as The act or process of
28 compelling compliance with a law, mandate, command, decree, or agreement.). By seeking to

23
1 compel states and local jurisdictions to honor civil detainer requests by threatening enforcement
2 action, the Executive Order violates the Tenth Amendments provisions against conscription.
3 The Supreme Court has repeatedly held that, The Federal government cannot compel the
4 States to enact or administer a federal regulatory program. New York v. United States, 505 U.S.
5 144, 188 (1992). The federal government cannot command them to adopt certain policies, id. at
6 188, command them to carry out federal programs, Printz, 521 U.S. at 935, or otherwise to
7 coerce them into adopting a federal regulatory system as their own, NFIB, 132 S. Ct. at 2602.
8 The Executive Order uses coercive means in an attempt to force states and local jurisdictions to
9 honor civil detainer requests, which are voluntary requests precisely because the federal
10 government cannot command states to comply with them under the Tenth Amendment. The
11 Executive Order attempts to use coercive methods to circumvent the Tenth Amendments direct
12 prohibition against conscription. While the federal government may incentivize states to adopt
13 federal programs voluntarily, it cannot use means that are so coercive as to compel their
14 compliance. The Executive Orders threat to pull all federal grants from jurisdictions that refuse
15 to honor detainer requests or to bring enforcement action against them violates the Tenth
16 Amendments prohibitions against commandeering.
17 D. Santa Claras Fifth Amendment Vagueness Claim

18 The Counties assert that the Executive Order is unconstitutionally vague in violation of the
19 Fifth Amendments Due Process Clause. The federal government responds, first, that the
20 Executive Order is an internal directive that does not have a direct effect on Santa Clara and so
21 Santa Clara needs no notice. SC Oppo. at 18. This argument holds no weight; as discussed
22 before, the Executive Order is not merely an internal directive. See PI Order at 12-16;
23 Reconsideration Order at 15; infra Section I.C. Next, it argues that the AG Memorandum
24 authoritatively clarifies the terms and makes it clear which federal grants will be affected by the
25 Executive Order. SC Oppo. at 18. As previously explained, the AG Memorandum is not
26 authoritative and does not amend the Executive Order or bind the rest of the Executive Branch,
27 and it does not affect the constitutional analysis.
28 A law is unconstitutionally vague and void under the Fifth Amendment if it fails to make
24
1 clear what conduct it prohibits and if it fails to lay out clear standards for enforcement. See
2 Gaynard v. City of Rockford, 408 U.S. 104, 108 (1972). To satisfy due process, courts insist that
3 laws (1) give the person of ordinary intelligence a reasonable opportunity to know what is
4 prohibited, so that he may act accordingly and (2) provide explicit standards for those who apply
5 them. Id. The Executive Order does not meet either of these requirements.
6 The Executive Order does not make clear what conduct might subject a state or local
7 jurisdiction to defunding or enforcement action, making it impossible for jurisdictions to
8 determine how to modify their conduct, if at all, to avoid the Executive Orders penalties. The
9 Executive Order directs the Attorney General and Secretary to ensure that jurisdictions that
10 willfully refuse to comply with Section 1373, sanctuary jurisdictions, are not eligible to
11 receive federal grants. Past DOJ guidance and various court cases interpreting Section 1373 have
12 not reached consistent conclusions as to what Section 1373 requires. In the face of conflicting
13 guidance, with no clear standard from the federal government, jurisdictions do not know how to
14 avoid the Executive Orders defunding penalty.
15 Further, because the Executive Order does not clearly define sanctuary jurisdictions, the
16 conduct that will subject a jurisdiction to defunding under the Executive Order is not fully
17 outlined. In addition, the Executive Order directs the Attorney General to take appropriate
18 enforcement action against any jurisdiction that willfully refuses to comply with Section 1373 or
19 otherwise has a policy or practice that hinders the enforcement of Federal law. This provision
20 vastly expands the scope of the Executive Order. What does it mean to hinder the enforcement
21 of federal law? What federal law is at issue: immigration laws? All federal laws? The Executive
22 Order offers no clarification. Although the AG Memorandum purports to clarify these op en
23 questions, it cannot authoritatively do so because it does not carry the force of law. It cannot
24 address these constitutional failings of the Executive Order.
25 The Executive Order also fails to provide clear standards to the Secretary and the Attorney
26 General to prevent arbitrary and discriminatory enforcement. Id. The Executive Order gives the
27 Secretary discretion to designate jurisdictions as sanctuary jurisdictions to the extent consistent
28 with law. But there are no laws, besides the Executive Order, outlining what a sanctuary
25
1 jurisdiction is, leaving the Secretary with unfettered discretion and the Executive Orders vague
2 language to make sanctuary jurisdiction designations. Similarly, the Executive Order directs the
3 Attorney General to take appropriate enforcement action against any jurisdiction that hinders
4 the enforcement of Federal law. This expansive, standardless language creates huge potential for
5 arbitrary and discriminatory enforcement, leaving the Attorney General to figure out what
6 appropriate enforcement action might entail and what policies and practices might hinder[] the
7 enforcement of Federal law. This language is so standardless that it authorizes or encourages
8 seriously discriminatory enforcement. United States v. Williams, 553 U.S. 285, 304 (2008).
9 The Executive Order gives the Counties no clear guidance on how to comply with its
10 provisions or what penalties will result from non-compliance, and its standardless guidance and
11 enforcement provisions are also likely to result in arbitrary and discriminatory enforcement. It
12 does not give the person of ordinary intelligence a reasonable opportunity to know what is
13 prohibited, so that he may act accordingly. Gaynard, 408 U.S. at 108. Section 9(a) is void for
14 vagueness under the Fifth Amendment.
15 E. Santa Claras Fifth Amendment Procedural Due Process Claim

16 The Counties assert that the Executive Order fails to provide them with procedural due
17 process in violation of the Fifth Amendment. Again relying on the AG Memorandum, the federal
18 government argues that Section 9(a) does not apply to funding in which the County might have a
19 constitutionally protectable property interest. SC Oppo. at 19.
20 To have a legitimate property interest, a person must have more than a unilateral
21 expectation of it. He must, instead, have a legitimate claim of entitlement to it. Bd. of Regents v.
22 Roth, 408 U.S. 564, 577 (1972). A state or local government has a legitimate claim of entitlement
23 to congressionally appropriated funds, which are akin to funds owed on a contract. See NFIB, 132
24 S. Ct. at 2602 (The legitimacy of Congress power to legislate under the spending power [] rests
25 on whether the State voluntarily and knowingly accepts the terms of the contract. ). The
26 Counties have a legitimate property interest in federal funds that Congress has already
27 appropriated and that the Counties have accepted.
28 The Executive Order purports to make the Counties ineligible to receive these funds
26
1 through a discretionary and undefined process. The Executive Order directs the Attorney General
2 and Secretary to designate various states and local jurisdictions as sanctuary jurisdictions,
3 ensure that such jurisdictions are not eligible to receive federal grants, and take enforcement
4 action against them. EO 9 (a). It does not direct the Attorney General or Secretary to provide
5 sanctuary jurisdictions with any notice of an unfavorable designation or impending cut to
6 funding. And it does not set up any administrative or judicial procedure for states and local
7 jurisdictions to be heard, to challenge enforcement action, or to appeal any action taken against
8 them under the Executive Order. This complete lack of process violates the Fifth Amendments
9 due process requirements. Matthew v. Eldridge, 424 U.S. 319, 349 (1976) (The essence of due
10 process is the requirement that a person in jeopardy of serious loss be given notice of the case
11 against him and opportunity to meet it.) (internal alterations and quotations omitted).
12 The Counties have demonstrated that the Executive Order has caused and will cause them
13 constitutional injuries by violating the separation of powers doctrine and depriving them of their
14 Tenth and Fifth Amendment rights. Accordingly, the Counties motions for summary judgment
15 are GRANTED with respect to Section 9(a) of the Executive Order.
16 III. SAN FRANCISCOS 1373 CHALLENGE

17 San Francisco also seeks summary judgment for its claim for declaratory relief that its laws
18 comply with Section 1373. The federal government asserts that San Franciscos claim is
19 nonjusticiable. Further, if the claim is justiciable, the federal government argues that San
20 Franciscos ordinances conflict with Section 1373.
21 San Francisco has brought a separate lawsuit against the federal governments imposition
22 of grant conditions on the Edward Byrne Memorial Justice Assistance Grant Program. See City &
23 Cty. of San Francisco v. Sessions, No. 17-cv-4642-WHO. And the State of California brings its
24 own challenge to the federal governments interpretation of Section 1373. See State of California v
25 Sessions, No. 17-cv-4701 WHO. I will consider San Franciscos motion for summary judgment
26 on Counts One and Two when I address the related issues in the related litigation. 9
27
9
28 Given these conclusions, San Franciscos Administrative Motion to Consider Post-Hearing
Developments will be considered at a later date.
27
1 CONCLUSION
2 The Counties have demonstrated that the Executive Order has caused and will cause them
3 constitutional injuries by violating the separation of powers doctrine and depriving them of their
4 Tenth and Fifth Amendment rights. Accordingly, the Counties motions for summary judgment
5 are GRANTED regarding Section 9(a). The defendants are permanently enjoined from enforcing
6 Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions.
7 Because Section 9(a) is unconstitutional on its face, and not simply in its application to the
8 plaintiffs here, a nationwide injunction against the defendants other than President Trump is
9 appropriate. See California v. Yamasaki, 442 U.S. 682, 702 (1979)([T]he scope of injunctive
10 relief is dictated by the extent of the violation established, not by the geographical extent of the
11 plaintiff.); Washington v. Trump, 847 F.3d 1151, 1161-67 (9th Cir. 2017) (affirming nationwide
12 injunction against executive travel ban order).

13 IT IS SO ORDERED.
14 Dated: November 20, 2017
15
16
William H. Orrick
17 United States District Judge
18
19
20
21
22
23
24
25
26
27
28
28

Santa Clara County Et Al v. Trump Et Al Opinion

Uploaded by

Copyright:

Available Formats

Santa Clara County Et Al v. Trump Et Al Opinion

Uploaded by

Document Information

Original Description:

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Santa Clara County Et Al v. Trump Et Al Opinion

Uploaded by

Copyright:

Available Formats

Case 3:17-cv-00574-WHO Document 182 Filed 11/20/17 Page 1 of 28

4 UNITED STATES DISTRICT COURT

5 NORTHERN DISTRICT OF CALIFORNIA

7 COUNTY OF SANTA CLARA, Case No. 17-cv-00574-WHO

10 DONALD J. TRUMP, et al.,

12 CITY AND COUNTY OF SAN Case No. 17-cv-00485-WHO

13 Plaintiff, ORDER GRANTING MOTION FOR

3 indicating the Executive Orders expansive scope. PI Order at 14.

5 DOJs interpretation (the AG Memorandum) and asked me to reconsider the injunction.

9 Dkt. no. 145).

15 The Executive Order, in addition to outlining a number of immigration enforcement

24 in the Constitution because it improperly seeks to wield congressional spending powers. It is so

6 procedural due process requirements of the Fifth Amendment.

17 will apply the applicable procedures).

7 bears no meaningful relationship to immigration enforcement cannot be threatened merely because

8 a jurisdiction chooses an immigration enforcement strategy of which the President disapproves.

13 I. THE EXECUTIVE ORDER

20 receive Federal funds, except as mandated by law. Id. 2(c).

22 Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive

purposes by the Attorney General or the Secretary. The Secretary

12 III. THE AG MEMORANDUM

24 their obligation to comply with section 1373. Id. at 2.

6 (N.D. Cal. July 20, 2017).

7 IV. CIVIL DETAINER REQUESTS

25 24-27 & Exs. C-E.

26 V. THE COUNTIES POLICIES

9 County resources to pursue an individual solely because of an actual or suspected violation of

18 26 & Exs. C-E.

24 5-6; Marquez Decl. 27 & Ex. G.

25 B. San Franciscos Policies

3 all. S.F. Admin Code 12I.1.

6 enforcing federal immigration law or gathering or disseminating information regarding an

18 information to a federal immigration officer, on the basis of an administrative warrant, prior

23 these individuals. Hennessy Decl. 13-14 (SF Dkt. No. 160).

24 VI. THE COUNTIES FEDERAL FUNDING

1 through entitlement programs.

22 approximately 11% of the Countys budget.

23 B. San Franciscos Federal Funding

5 Public Health, id. 22-27.

8 public infrastructure projects. Whiteside Decl. 13.

14 services in the coming fiscal year. Id. 9.

6 repeating my previous conclusions. All of the Counties claims are justiciable.

7 A. The Counties Establish a Concrete Risk of Losing Funds

13 states and local jurisdictions to change their policies.

7 reveal a choice by the administration to hold up San Francisco as an exemplar of a sanctuary

19 Counties concrete risk of losing funds.

20 B. The Counties Show Concrete Injury and Concrete Impact

2 Dept of Agric., 795 F.3d 956, 965 (9th Cir. 2015).

25 budget. Whitehouse Decl. 15.

23 efforts. Id. 12.

3 C. The Executive Order is Not an Internal Directive

11 460, 481 (2010).

23 The federal governments construction requires a complete rewriting of the Executive

26 II. CONSTITUTIONALITY OF THE EXECUTIVE ORDER

5 would be unconstitutional in all its applications.

16 Constitutions separation of powers principles.

27 become law. Id. at 439.

18 Control Act of 1974, 2 U.S.C. 683 et seq.

24 Section 9(a) is particularly problematic because Congress has repeatedly declined to