The cities of San Francisco and the counties of San Francisco and Santa Clara, California sued the Trump Administration to challenge Executive Order 13768 which seeks to punish state and local governments that receive Federal funds but are not cooperating with Federal immigration enforcement authorities by withholding federal grants.

The counties argued the executive order is unconstitutional for several reasons:

  1. Violates separation of powers because White House is wielding congressional spending power
  2. The order is so overbroad and coercive that even if the President had spending powers, the order would violate the Tenth Amendment prohibition on against commandeering local jurisdictions
  3. The order is so vague and standard-less it violates the Fifth Amendment’s due process clause; and
  4. The order violates the procedural due process requirements of the Fifth Amendment.

The government didn’t respond and instead argued that the plaintiffs hadn’t yet been named “sanctuary cities” and therefore lack standing. Also, the government claimed the order was just an example of the President using his “bully pulpit” and the order only applied to three particular grants. The judge noted that those grants already had conditions regarding cooperation with immigration enforcement included in their terms and that the interpretation now being offered by the government would render the order “toothless”.

The judge noted that the order, on its face, covers all federal grants and funding and not just the three mentioned by the Government and that the words of the President and the Attorney General support a broad reading.

Judge Orrick notes that

  • The Constitution vests spending powers in Congress and an executive order cannot constitutionally place new conditions on federal funds
  • The Tenth Amendment requires conditions on federal funds be unambiguous and timely made;
  • That conditions on federal funds bear so meaningful relationship to the funds at issue; and
  • The total financial incentive not be 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.”

Plaintiffs have standing because they have shown they will be harmed and are facing current fiscal uncertainty because of the order.

The Counties met burden for an injunction because they showed they are likely to face immediate irreparable harm, they are likely to succeed on the merits and the balance of harms and public interest weighs in their favor.

Greg Siskind

Greg Siskind

Greg Siskind is a partner with Siskind Susser, PC - Immigration Lawyers. After graduating from Vanderbilt University, he received his law degree at the University of Chicago. He created the first immigration law web site in 1994 and the first law blog in 1997. He's written four books and currently serves on the board of governors of the American Immigration Lawyers Association. He can be reached by email at gsiskind@visalaw.com.
Greg Siskind
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