Eligibility of Sanctuary Jurisdictions to Federal Grants; Constitutionality of Section 9 (a) of Executive Order 13768.
On November 22, 2017, United States District Judge William H. Orrick of the Northern District of California issued a nationwide permanent injunction against the Trump administration for enforcing Section 9 (a) of the Executive Order 13768 of January 25, 2017 against entities deemed sanctuary jurisdictions by the Administration. Instead of confining its ruling to enforcement actions by the Administration against the plaintiffs (the county of Santa Clara and the city and county of San Francisco), Judge Orrick issued instead a nationwide injunction because he found Section 9 (a), which seeks principally to deprive sanctuary jurisdictions of federal grants, to be unconstitutional on its face. In so ordering, judge Orrick sided with the plaintiffs whose motions seeking summary judgment had argued the facial unconstitutionality of Section 9 (a) on four grounds: non-respect of the principle of separation of powers, excessive powers, violation of prohibitions against commandeering, and lack of due process. Besides the question of funding, Judge Orrick also addressed, albeit tangentially, the legality of civil detainer requests, which is at the heart of the Trump administration’s policy toward sanctuary jurisdictions.
Sanctuary jurisdictions – Executive Order 13768 – Conditions attached to federal grants – Civil detainer requests – Prohibitions against commandeering.
A. Facts and Ruling
During the 2016 presidential campaign, then candidate Trump had promised to crack down on sanctuary cities.[i] In particular, he vowed to use federal funding as a weapon in order to bring them in line. Once in office, Mr. Trump would act on his threats and campaign promises with the signing, on January 27, 2017, of the Executive Order 13768, “Enhancing Public Safety in the Interior of the United States.”[ii] This is one of three Executive Orders on immigration issued by Mr. Trump. In its section 9, the Executive Order outlines the Trump Administration’s policy toward “Sanctuary Jurisdictions.” It is worth restating because it sits at the heart of the two cases analyzed in this note:
Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.[iii]
- In the furtherance of this policy, the Attorney General and the Secretary [of Homeland Security, our addition] in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1378 (sanctuary cities) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has authority to designate, in his discretion and to the extent consistent with the law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal Law.
- To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Decliner Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.
- The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.
Facing significant financial injury from this executive order and seeking to protect hundreds of millions of dollars of federal grants[iv], the County of Santa Clara and the City and County of San Francisco sought a court injunction aimed at blocking its application in two separate cases that will be jointly adjudicated by Honorable Judge William Orrick. At the preliminary hearing, the plaintiffs argued that they had already suffered sufficient injury as a result of the uncertainty created by the Executive Order and would suffer irreparable financial harm if the Executive Order were to be enforced. They contended that the Order was unconstitutional on its face for its flagrant violation of the principle of separation of powers as well as their rights under the Fifth and Ten Amendments to the Constitution. The defendants, on the other hand, responded that the Executive Order was a mere directive to the Attorney General and the Secretary of Homeland Security that did not seek to place any new conditions on the allocation of federal funds. Moreover, they argued that the plaintiffs lacked standing because no individualized actions had been taken against them.
Concluding that the plaintiffs had pre-enforcement standing to protect the millions of dollars of federal grants from “the unconstitutionally broad sweep of the Executive Order”[v], Judge Orrick granted, in April 2017, a preliminary injunction order blocking the Executive Order from being implemented. On May 22, 2017, Attorney General Jeff Sessions issued a Memorandum seeking to narrowly interpret the President Executive Order while attempting to correct the constitutional shortcomings identified in Judge Orrick’s preliminary injunction order. On the basis of this Memorandum, the Attorney General would seek reconsideration of the preliminary injunction order. The defendants’ motion to reconsider was denied on July 20, 2017 on the ground that the AG Memorandum amounted to “nothing more than an illusory promise to enforce the Executive Order narrowly.” The judge noted that the Memorandum represented “an implausible interpretation of Section 9 (a)” of the Executive Order, which it did neither amend nor was it binding on the Executive Branch[vi].
The key legal issues brought by these cases were twofold: 1) Can the Executive branch impose conditions on federal grants when Congress did not do so when it allocated the funds? 2) Assuming the Administration had such authority, what are the requirements that must be met for conditions imposed on federal grants to pass the constitutionality test? These questions indicate that the center of gravity of the cases herein discussed was on federal spending powers and its constitutional exercise with reference to sanctuary jurisdictions. Even though the city of San Francisco had asked the judge to rule on the legality of its sanctuary policies (conformity with 8 U.S.C. 1378), judge Orrick decided not to take up this question, which is to be addressed in other litigations making their way through the courts[vii].
In his ruling of November 20, 2017, Judge Orrick concluded that
The counties have demonstrated that the Executive Order has caused and will cause them constitutional injuries by violating the separation of powers doctrine and depriving them of their Tenth and Fifth Amendment rights. Accordingly, the Counties’ motions for summary judgment are GRANTED regarding section 9 (a). The defendants are permanently enjoined from enforcing Section 9(a) of the executive Order against jurisdictions they deem as sanctuary jurisdictions. Because Section 9 (a) is unconstitutional on its face, and not simply in its application to the plaintiffs here, a nationwide injunction against the defendants other than President Trump is appropriate.
We shall now discuss the legal rationale that led to such rebuke of the Administration and Section 9 (a) of the Executive Order 13768 as well as the social and political implications of this ruling.
Before addressing the central questions pertaining to the constitutionality of the Executive Order, the judge reviewed a number of items that form the background to the cases. Two of these items are central in understanding the Trump Administration’s policy toward sanctuary jurisdictions and the legal challenges it has faced since its unveiling[viii].
8 U.S.C. 1373
Inspired by a set of House Republican policy proposals known as the Contract with America, Section 1373 was enacted in 1996 as part of the Illegal Immigration Reform and Immigration Responsibility Act (IIRIRA). In substance, Section 1373 states that no government entity or official can be prohibited from exchanging information with the Department of Homeland Security (DHS) regarding the immigration status of any individual. This is the legal tool the Administration intends to use against sanctuary jurisdictions. It is important to note that conditioning some federal grants on compliance with Section 1373 is nothing new. Under the Obama Administration, a number of federal grants administered by the U.S. Department of Justice were already conditioned on compliance with Section 1373[ix].
While Judge Orrick’s order simply restates the substance of Section 1373 and does not expand on the legal subtleties surrounding its interpretation, it is worth noting that no jurisdiction has ever been found explicitly in violation of Section 1373 which has been, however, challenged in court by states and various localities seeking to understand the contours of their obligations under law. In Sturgeon v. Bratton, the Court of Appeal of California, Second District found that prohibiting the collection of information did not violate Section 1373[x]. The dominant interpretation that has emerged from case law since the enactment of Section 1373 is that states are not obligated to share with federal officials information they do not already collect on immigration status. The question of state obligations under Section 1373 will certainly resurface in future legal battles regarding the Trump Administration’s policy toward sanctuary jurisdictions.
Civil Detainer Requests
A civil detainer request is a practice by which the Immigration and Custom Enforcement (ICE), a federal agency under the authority of the Department of Homeland Security, asks a local law enforcement to continue to hold an inmate who is in local jail because of actual or suspected violations of state criminal laws for up to 48 hours after his or her scheduled release so as to allow ICE the time to determine whether to take that individual into its custody. Section 9 (b) of the Executive Order 13768 specifically underscores “the public safety threats” associated with jurisdictions that ignore or otherwise fail to honor respond civil detainer requests[xi]. Unlike with the previous background item (8 U.S.C. 1373) where he simply restated the law, judge Orrick goes further here by highlighting two important points from the case law. First, civil detainer requests are voluntary and local governments are not required to honor them[xii]. Second, detaining suspected or actual removable aliens on the basis of civil detainer requests (which are not supported by an individualized determination of probable cause that a crime has been committed) represents a violation of the Fourth Amendment on the part of local jurisdictions[xiii]. As with 8 U.S.C. 1373, the courts are likely to revisit the question of civil detainer requests in upcoming litigations about sanctuary jurisdictions.
Constitutionality of the Executive Order
The plaintiffs asked the judge to enjoin the defendants from enforcing Section 9(a) of the Executive Order 13768, which they deemed to be unconstitutional on its face on four violation grounds. Judge Orrick extensively responds to their claims and the counter-arguments from the defendants.
Violation of the principle of separation of powers
The first argument outlined by the plaintiffs centered on Art I of the Constitution granting Congress the federal spending powers. Settled constitutional law clearly affirms that this is an exclusive prerogative of the Congress which, as stated in South Dakota v. Dole, “may attach conditions on the receipt of federal funds (…) to further broad policy objectives…”[xiv] Unless Congress explicitly delegates some discretion to the President to decide how to spend appropriated funds, the President does have neither the power to withhold such funds nor the authority to place conditions. Doing so will be a violation of his duty to faithfully execute the laws duly enacted by Congress. And when the Congress has granted the President some discretion on the spending of allocated funds, this spending discretion must be exercised within the limits of constitutional boundaries delineated in several leading cases that stress, among other things, that “when the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb”[xv].
Reading Section 9 (a) of the Executive Order in light of these basic constitutional principles, judge Orrick notes that it enjoins the Attorney General and the Secretary of Homeland Security to place new conditions on federal grants in order to ensure compliance with 8 U.S.C 1373, conditions non-authorized by Congress. In so doing, the President has usurped the latter’s exclusive spending power in flagrant violation of the principle of separation of powers enshrined in the Constitution. The rationale rests on solid legal ground.
Violation of the Tenth Amendment (excessive powers)
The plaintiffs’ second line of arguments is on the limits of congressional spending power. Assuming the President had spending power (which they content he lacks as discussed in the previous section), the plaintiffs argue that its exercise through the terms of the executive Order would be in violation of the Tenth Amendment because it exceeds those powers. If it is accepted that Congress is within its authority to encourage policy through its spending power by, for example, attaching certain conditions to federal funds, three governing US Supreme Courts cases (South Dakota v. Dole, Printz v. United States, and National Federation of Independent Business v. Sebelius) have articulated a number of requirements that must be met for those conditions to pass the constitutionality test. Three of these requirements were addressed in the two cases before Judge Orrick.
The first is the unambiguous requirement, which seeks to preserve the right of states to knowingly and voluntarily decide whether it would be in their best interests to adopt a federal program. This requirement postulates that conditions attached to federal funds be clear so that states know exactly what is expected from them and can consequently weigh their decision to participate or not[xvi]. The second is the nexus requirement, which postulates that conditions placed on federal funding be related to the purpose of the funding. For example, this requirement would not be met if conditions were to be attached to transportation funding in order to encourage states to adopt a federal health program. The third is the non-coercive requirement, which prohibits the use of spending power in order to compel local jurisdictions to adopt certain policies. It is fundamentally about preserving the essence of the American federalism. States must have a genuine choice whether to accept federal conditions in exchange for federal funds. As stated in South Dakota v. Dole, financial inducement offered by Congress cannot be “… so coercive as to pass the point at which pressure turns to compulsion.”[xvii] In other words, financial inducement by Congress cannot be like a “gun to the head” of states[xviii].
After submitting Section 9 (a) of the Executive Order to the above constitutional test, Judge Orrick concludes that it fails to meet all three requirements because it 1)“does not make clear to states and local governments what funds are at issue and what conditions apply to those funds, making it impossible for them to ‘voluntarily and knowingly accept the terms of the contract’”; 2) “expressly targets for defunding grants with no nexus to immigration enforcement at all” ; and 3) “threatens to deny sanctuary jurisdictions all federal grants, hundreds of millions of dollars on which the Counties rely. The threat is unconstitutionally coercive”[xix]. A reading of Section 9 (a) clearly supports Judge’s Orrick assessment. It is so vague and general in its language. It speaks, for example, of denying jurisdictions deemed sanctuary access to “federal grants” without any precision whatsoever. Such a poor wording amounts to legal malpractice and could not possibly pass constitutional scrutiny.
Violation of the Tenth Amendment (prohibitions against commandeering)
The plaintiffs also argued that Section 9 (a) of the Executive Order violated the Tenth Amendment’s prohibitions against commandeering. This claim is linked to the above claim about excessive powers in that both seek, in substance, to protect the federal nature of US political system. Simply understood, the Tenth Amendment prohibits the federal government from conscripting states and local jurisdictions into carrying out a federal program. The courts have shed abundant jurisprudential light into the meaning of prohibitions against commandeering. It is settled constitutional law that “The federal government may not compel the states to enact or administer a federal regulatory program”[xx] ; that it can “neither issue directives requiring the states to address particular problems, nor command the states’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program”[xxi]; and, moreover, “That is true whether Congress directly commands a state to regulate or indirectly coerces a state to adopt a federal regulatory system as its own”[xxii].
Applying the constitutional boundaries delineated in leading court cases on prohibitions against conscription to the question of non-respect of civil detainer requests, which is at the heart of the Administration’s policy against sanctuary jurisdictions, Judge Orrick dissects the element of coercion in terms that are worth restating, “ To the extent the Executive Order seeks to condition ALL FEDERAL GRANTS (the emphasis is ours) on honoring civil detainer requests, it is likely unconstitutional under the Tenth Amendment because it seeks to compel the states and local jurisdictions to enforce a federal regulatory program through coercion.” He goes further in exposing the government’s use of coercive methods to achieve its policy objectives. Precisely because the government knows that under the Tenth Amendment it cannot command states and local jurisdictions to comply with civil detainer requests, which are “voluntary requests”, notes the judge, it is using the threat to pull all federal grants from jurisdictions that refuse to honor detainer requests or to bring enforcement action against them in an attempt to force them to honor those requests. This fits de definition of commandeering and represents the type of behaviors prohibited under the Tenth Amendment.
Violation of the Fifth Amendment (Vagueness and lack of procedural due process)
Finally yet importantly, Section 9 (a) of the Executive Order was blocked from being enforced on ground of violation of the plaintiffs’ rights under the Fifth Amendment, namely its vagueness and lack of due process. As outlined in Gaynard v. City of Rockford, it is a settled constitutional question that a law that fails to make clear what conducts it prohibits and that fails to lay out clear standards of enforcement would be deemed unconstitutionally vague and therefore void under the due process clause of the Tenth Amendment[xxiii]. As rightly noted in United States v. Williams, a standardless language in the law “authorizes or encourages seriously discriminatory enforcement[xxiv].
As discussed in the previous sections about excessive power and prohibitions against commandeering, Section 9 (a) remains very vague in its wording. Besides targeting all federal grants, it does not clearly define “sanctuary jurisdictions” while threatening “appropriate enforcement action” against any jurisdiction that “hinders the enforcement of Federal law.” Judge Orrick points out, rightly so, that “This expansive, standardless language creates huge potential for arbitrary and discriminatory enforcement...” [xxv] It leaves the Attorney General with unfettered enforcement discretion. In fine, notes judge Orrick in a restatement of Gaynard v. City of Rockford, the Executive Order does not “give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly.”[xxvi]
Besides its vagueness, the plaintiffs also argued for the unconstitutionality of the Executive Order under the due process clause of the Fifth Amendment based on its “discretionary and undefined process.” Even though the state and local jurisdictions have a legitimate property interest in millions of dollars in federal grants already allocated by Congress and which they are at risk of losing as a result of the Executive Order, the latter, notes judge Orrick, “does not set up any administrative or judicial procedure for states and local jurisdictions to be heard, to challenge enforcement action, or to appeal any action taken against them under the Executive Order.”[xxvii] In light of the above and recalling the essence of due process articulated in Matthew v. Eldridge[xxviii] and which mandates that a person in jeopardy of serious loss be given notice of the case against him and opportunity to meet it, judge Orrick concludes that the Executive Order “COMPLETE (the emphasis is our) lack of process violates the Fifth Amendment’s due process requirements.”[xxix]
The cases discussed here and Judge Orrick’s order permanently enjoining the Trump Administration from enforcing Section 9 (a) of the Executive Order 13768 are significant in two respects. First, despite the President’s harsh rhetoric and policy on sanctuary jurisdictions, the latter have reminded the Administration that it does not have the final word and could not simply bully them into honoring civil detainer requests by weaponizing federal grants and threating unspecified enforcement action. The litigations brought by the county of Santa Clara and the city and county of San Francisco and their court victory represent a testament to the strength of US democracy and its federal system of government that delineates clear boundaries between various levels of power. From litigations on the travel ban to the ones discussed here, there has been a push back against the Administration’s impulse to disregard long and clearly established legal and constitutional boundaries in pursuit of its policy objectives.
Second, Judge Orrick’s order stands out as an important remind of the role of the judiciary in preserving the essence of the American democracy. It strongly reaffirms some cardinal constitutional principles that guide the relationship between the federal government and state and local jurisdictions, principles that protect the latter against the arbitrary of the former and seek to ensure a government of laws, not of men. Threatening to pull all federal grants from sanctuary jurisdictions, attempting to coerce them in accepting a federal program, and vowing to bring unspecified and discriminatory enforcement action against jurisdictions that do not comply was rightly deemed to be a violation of the U.S. Constitution.
C. Suggested reading
-Randy Lippert and Sean Rehaag, Sanctuary Practices in International Perspectives: Migration, Citizenship, and Social Movements (New York: Routledge, 2013).
-Sarah Pierce and Randy Capps, Trump Executive Order and DHS guidance on Interior Enforcement: A Brief Review (Washington, DC: Migration Policy Institute, Issue Brief, February 2017).
-Mark Rosenblum, Understanding the Potential Impact of Executive Action on Immigration Enforcement (Washington, D.: Migration Policy Institute, 2015).
-Muzaffar Chishti and Sarah Pierce, Despite Little Action Yet by Trump Administration on sanctuary Cities, States and Localities Rush to Respond to Rhetoric (Washington, D.: Migration Policy Institute, 2017).
-Daniel Booth, “Federalism on Ice: State and Local Enforcement of Federal Immigration Law.” Harvard Journal of Law and Public Policy 29: 1068.
-Kevin Fandl, “Putting States out of the Immigration Law Enforcement Business.” Harvard Journal of Law and Public Policy 9: 531.
To quote this contribution : J. Mangala, “Eligibility of Sanctuary Jurisdictions to Federal Grants ; Constitutionality of Section 9 (a) of Executive Order 13768”, Cahiers de l’EDEM, mai 2018.
[i] There is no legal or statutory definition of a sanctuary city or jurisdiction. The practice varies widely. In the particular context of the cases analyzed here, sanctuary jurisdictions must be understood to mean those jurisdictions that “refuse to comply with 8 U.S.C. 1373.” See Section 9 (a) of the Executive Order 13768.
[ii] See RJN, Ex. J (“EO”) (SC Dkt. No. 161-10).
[iii] The substance of 8 U.S.C. 1373 is explained in the discussion section of this note.
[iv] During the hearing, it was disclosed that in the 205-2016 fiscal year, the county of Santa Clara received approximately $ 1.7 billion in federal and federally dependent grants, making up about 35% of its total revenues. As for San Francisco, the figures stood at approximately $ 1.2 billion for the same fiscal year.
[v] County of Santa Clara and City & County of San Francisco v. Donald J. Trump, p. 1 at 24.
[vi] Ibid., p.2 at 7.
[vii] See City & County of San Francisco v. Sessions, No 17-cv-4642-WHO; California v. Sessions, No 17-cv-47-WHO
[viii] Besides the two lawsuits discussed in this note, the Trump Administration has alaso been sued by the city of Chicago where a federal judge has ruled that the Administration may not withhold public safety grants to sanctuary cities. See Richard Gonzales, “Federal Court Says Trump Administration Can’t Deny Funs to Sanctuary Cities.” https://www.npr.org/sections/thetwo-way/2017/09/15/551397597/federal-court-says-trump-administration-can-t-deny-funds-to-sanctuary-cities
[ix] In July 2016, the Department of Justice issued guidance subjecting two federal grant programs, the SCAAP (State Criminal Alien Assistance Program) and JAG (Edward Byrne Memorial Justice Assistance Grant) to compliance with Section 1373.
[x] Sturgeon v. Bratton, 95 Cal. Rptr. 3d 718 (Ct. App. 2009).
[xi] According to tracking by the Center for Immigration Studies, between 2014-2015, about 17,000 civil detainer requests by ICE (Immigration and Customs Enforcement) were not honored by 300 sanctuary jurisdictions. See https://cis.org/Map-Sanctuary-Cities-Counties-and-States
[xii] See Galarza v. Szalczyk, 745 F. 3d 634, 643 (3d Cir. 2014).
[xiii] See Morales v. Chadbourne, 793 F. 3d 298, 215-217 (1st Cir. 2015); Miranda-Olivares v. Clackmas County, No. 3:12-cv-02317-ST, 2014 WL 1414305, at 9-11 (D. Or. Apr. 11, 2014).
[xiv] See South Dakota v. Dole, 483 U.S. 203, 206 (1987).
[xv] Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637(1952).
[xvi] See South Dakota v. Dole, op.cit., at 203; National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566, 2602-04 (2012).
[xvii] South Dakota v. Dole, op.cit., at 211.
[xviii] National Federation of Independent Business v. Sebelius, op.cit., at 2604.
[xix] County of Santa Clara and City & County of San Francisco v. Donald J. Trump, op.cit., p. 20-22.
[xx] Clinton v. City of New York, 505 U.S. at 188 (1998).
[xxi] Printz v. United States, 521 U.S. 898, 935 (1997).
[xxii] National Federation of Independent Business v. Sebelius, op.cit., at 2602.
[xxiii] Gaynard v. City of Rockford, 408 U.S. 104, 108 (1972).
[xxiv] United States v. Williams, 553 U.S. 285, 304 (2008).
[xxv] See County of Santa Clara and City & County of San Francisco v. Donald J. Trump, op.cit., p.26 at 5.
[xxvi] Ibid., p. 26 at 9-13.
[xxvii] Ibid., p. 27 at 5-7.
[xxviii] See Matthew v. Eldridge, 424 U.S. 319, 349 (1976).
[xxix] County of Santa Clara and City & County of San Francisco v. Donald J. Trump, op.cit., p.27 at 8-9.