This afternoon, Judge William H. Orrick of the U.S. District Court of Northern California issued a nationwide preliminary injunction barring the Department of Justice and the Department of Homeland Security from enforcing part of President Trump’s executive order withholding federal grant funds from so-called “sanctuary jurisdictions.”
Specifically, it bars enforcement of Section 9(a), which reads:
In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) 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 the authority to designate, in his discretion and to the extent consistent with 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.
The City and County of San Francisco, and the County of Santa Clara, both sued the federal government over the constitutionality of the executive order. More recently, the City of Seattle also sued over the same executive order, though there are some differences in Seattle’s case (which we’ll return to at the end).
In order to get a preliminary injunction, the cities needed to prove several things:
- They have standing to sue;
- The case is “ripe” for deciding now;
- They are likely to succeed on the merits of their case;
- They are likely to suffer irreparable harm without an injunction;
- The balance of equities tips in their favor; and
- An injunction is in the public interest.
32 of the 49 pages in the judge’s opinion are dedicated to the first question: whether the cities have standing to sue.
The Trump administration bet big on arguing that there isn’t standing, on two points:
- That the counties can’t demonstrate any injury because the executive order doesn’t change the law in any way, it simply directs the Attorney General and Director of Homeland Security to enforce existing law. To do this, they rely on the phrase “consistent with law” used twice in the paragraph. They also argued that the executive order should be read extremely narrowly, and that in fact it only applies to three specific grant programs. To this, the Judge responded that they were asking him to interpret it so narrowly as to be “an ominous, misleading and ultimately toothless threat.” The Trump administration actually agreed with that interpretation, claiming that the purpose of the executive order was to give Trump a “bully pulpit.” But the Judge actually went on to point out that the plain language of the executive order conflicts with their narrow interpretation, since it says very clearly that Trump’s administration is to ensure that sanctuary jurisdictions are not eligible to receive federal grants. “There is no doubt,” the judge wrote, “that Section 9(a), as written, changes the law.”
- That the counties can’t claim “concrete” or “imminent” injury because the federal government hasn’t officially designated either as a sanctuary jurisdiction yet and has not yet withheld any federal funds. This is called “pre-enforcement standing,” meaning under what conditions standing exists to challenge a law before that law is actually enforced. The Trump administration claimed that pre-enforcement standing generally only exists in First Amendment cases, where the mere existence of the law might “chill” protected exercise of First amendment rights. Not so, said the judge, and listed a litany of cases where pre-enforcement standing was found to exist. He went on to say that pre-enforcement standing is recognized “by demonstrating a well-founded fear of enforcement and a threatened injury that is both real and imminent.” In this case, the public statements of both Trump and Attorney General Sessions include ample threats, some directed specifically at California, San Francisco and Santa Clara. And the judge found that the counties are likely to be labeled as “sanctuary jurisdictions” under the terms of the executive order. He also found that the counties’ “local sovereign interest” to put in place their own policies without federal government interference under the Tenth Amendment is threatened by the executive order — they have a constitutional interest which is being threatened and that is an injury. Finally, he pointed out that the budgetary uncertainty for the counties in not knowing whether the large amount of federal funding they depend upon for essential services will be withdrawn is also a present injury.
So the judge found multiple reasons to grant standing to the counties to sue. He dispatched with the Trump administration’s argument against “ripeness” for similar reasons: there is clear present injury.
That then brought the judge to the big issue of the day: an initial assessment of the merits of the case and whether the counties will likely succeed with their case. He looked at five separate arguments:
- Whether the executive order violates the constitutionally-mandated separation of powers by wielding Congress’s spending powers. The judge found that it clearly did.
- Whether the order violates the Spending Clause. The Supreme Court has ruled that Congress can encourage policy through its spending power, but within limits. Specifically, it has held that conditions must be unambiguous and can’t be imposed after funds have already been accepted; there must be a “nexus” between the federal funds at issue and the federal program’s purpose; and the financial inducement cannot be coercive. The judge found that the executive order failed on all three counts.
- Whether the executive order violates the Tenth Amendment by attempting to conscript states and local jurisdictions into enforcing federal immigration law. This issue extends beyond compliance with 8 U.S.C. 1373 to honoring the “detainer requests” that INS issues to local law enforcement agencies. Since the judge already found that the executive order was coercive, it was a small logical jump to find that it was also an illegal conscription.
- Whether it violates the Fifth Amendment’s due process requirement by being vague. Yup, including the action against a policy or practice that “hinders the enforcement of Federal law.” What does it mean to “hinder enforcement?” And which federal laws are referred to here — all of them, not just immigration laws?
- Whether it violates the Fifth Amendment’s due process clause through “process violations” The judge cited case law finding that “The Counties have a legitimate property interest in federal funds that Congress has already appropriated and that the Counties have accepted,” but the executive order tries to make them ineligible to receive those funds “through a discretionary and undefined process” that includes no notice of “sanctuary jurisdiction” status or impeding cut to funding, let alone any process for appealing those decisions.
So on all five issues, the judge found that the counties are likely to succeed on the merits of their case.
At this point, finding irreparable harm was easy: the counties have a choice between exercising their constitutional right to set local policy and risk losing hundreds of millions of dollars in federal grants, or to try to comply with an executive order they believe is unconstitutional.
As for the “balance of equities,” the Trump administration argued that the greatest public interest is in the enforcement of the immigration law in question, 8 U.S.C. 1373. But since they had already argued that the executive order doesn’t actually change the law but only serves to grant Trump a “bully pulpit,” they severely undercut their own argument. “To the extent the Government wishes to use all lawful means to enforce 8 U.S.C. 1373, it does not need Section 9(a) to do so,” wrote the judge, in finding that the balance of harms and the public interest weigh in favor of an injunction.
Having concluded that an injunction should be granted, the judge needed to decide on its scope. The federal government, of course, argued that it should just apply to the two counties and not nationwide. But the judge disagreed, since the constitutional questions raised were not specific to Santa Clara and San Francisco.
In issuing a nationwide preliminary injunction that prohibits the DOJ and Homeland Security from enforcing section 9(a) of the executive order, the judge did throw the feds one small bone: he acceded to their request that the injunction be directed at the Attorney General and the Director of Homeland Security alone, and not at President Trump. He pointed out that the President has no role in enforcing Section 9(a), and that enjoining the President is an “extraordinary remedy” that he was unwilling to invoke.
The judge also notes, “This injunction does not impact the Government’s ability to use lawful means to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does it restrict the Secretary from developing regulations or preparing guidance on designating a jurisdiction as a “sanctuary jurisdiction.”
There’s one more issue that got buried in the judge’s opinion worth noting: the constitutionality of 8 U.S.C. 1373 itself. The law sets clear directives on what local government officials may and may not do, and some have argued that it too is a violation of the Tenth Amendment. In fact, San Francisco raises that as a sixth issue in its lawsuit against the Trump Administration, and is seeking an injunction barring enforcement of 1373 or alternately barring the government from taking adverse action against the county for failing to comply with it. The judge notes in a footnote that briefing and oral arguments on that question are still ongoing, but he will eventually need to rule on that — and that will be a very significant ruling.
What does this mean for Seattle? Its lawsuit against the Trump Administration takes a slightly different path, as I laid out in this post. First, it tries the path of least resistance, looking for a ruling that the city is, in fact, in compliance with 8 U.S.C. 1373. If the city can get that, then everyone sleeps well at night with less worry that the feds will try to withhold federal funds. But if that fails, it then proceeds down the same path as San Francisco and Santa Clara in arguing that the executive order is unconstitutional. The two cases are in “peer” courts so a ruling in one isn’t binding precedent for the other, but they are both in the 9th Circuit so an appeals court ruling from either will affect how both judges rule. But in the short term, since today’s nationwide injunction covers Seattle, in practice there now isn’t an imminent threat that the Trump administration will start withholding federal grant funding here. We might also expect that the federal government’s eventual response to the Seattle lawsuit will have different legal arguments given how poorly it did in today’s case.
This evening, Trump’s chief of staff said that the federal government plans to appeal today’s ruling. They don’t have much choice (other than to withdraw and rewrite this executive order too), but it doesn’t look good for them. Their legal arguments are weak at best (if not outright incompetent), and today’s opinion by Judge Orrick is simply devastating. The feds lost on every substantive issue, and it wasn’t even close. Any one of the individual arguments on the merits is enough to find the executive order unconstitutional, and the judge found in favor of the cities on all five. The chances of getting all five overturned on appeal is slim to none, especially since they don’t get to introduce new arguments on appeal: they can only argue that the district court judge erred. And beyond the appeal of the preliminary injunction, when the real trial gets underway, the judge has already signaled that the counties are very likely to win — so much so that given that there are not really any facts in dispute and only legal issues to be decided, it’s possible it will be decided by summary judgement relatively quickly (i.e. months). It will likely take much longer going through the inevitable appeals to the 9th Circuit and eventually to the Supreme Court.