More on the DOJ “sanctuary city” memo

I reported earlier that Attorney General Jeff Sessions issued a memo earlier this week clarifying many issues related to the Trump administration’s executive order threatening to withhold federal funding from so-called “sanctuary cities.” On Monday, the DOJ also filed a motion asking the judge in the San Francisco and Santa Clara lawsuits to reconsider his ruling placing a preliminary injunction on the government’s ability to implement Trump’s executive order. The DOJ’s motion provides further interpretation of Sessions’ memo and what it means for sanctuary cities.

Reading the DOJ’s motion to reconsider, it becomes very clear quickly that Sessions’ memo is in direct response to the preliminary injunction. During oral arguments, the DOJ suggested a very narrow interpretation of the executive order, but the cities pointed out that the actual language in the executive order, as well as public comments by Trump, Sessions, and Director of Homeland Security John Kelly, were far more expansive in their reach and impact. The judge agreed with the cities.  In the DOJ’s new filing, they argue that Sessions’ memo now codifies the narrow interpretation they had earlier offered during oral arguments. Specifically, it says:

  • “Sanctuary jurisdictions” only refer to jurisdictions that “willfully refuse to comply with 8 USC 1373.”
  • The executive order “does not retroactively condition the receipt of awards… on compliance with federal detainer requests,” though both Sessions’ memo and the DOJ motion are silent on whether this will become a requirement in the future.
  • The only federal grants implicated are current ones issued by the Department of Justice and the Department of Homeland Security that specifically require recipients to certify their compliance with 8 USC 1373, and any future ones stating that requirement. They specifically name grants administered by the Office of Justice Programs and the Office of Community Oriented Policing Services as containing this requirement and thus subject to denial of funding.
  • Conditions may only be imposed pursuant to “existing statutory or constitutional authority,” which they claim alleviates any concerns that the executive order violates separation of powers principles by giving the executive branch the authority to impose conditions on federal grants.

Seattle has one 2016 grant that is implicated under these narrowed rules. A spokesperson for the City Attorney’s Office confirmed that as part of applying for that grant, the City of Seattle certified that it is compliant with 8 USC 1373. The city is “threading the needle” in its approach to being a “welcoming city” by prohibiting the collection of information related to immigration status, but not prohibiting passing any of that nonexistent information to federal law enforcement officials. In other words it is compliant with the letter of the law, but perhaps not the spirit.

The DOJ is required to respond to the City of Seattle’s lawsuit by the end of next week. It will be interesting to see how they respond given Sessions’ new memo. The one relevant grant means that Seattle still has standing to sue, but the DOJ will likely need to take a position as to whether Seattle’s “thread the needle” approach is truly compliant with 8 USC 1373. That will be a significant precedent either way: if they stipulate that Seattle is compliant, then they will have validated a model for non-cooperation with ICE that other cities will inevitably copy. On the other hand, if they argue that Seattle is not compliant, then they bring an enormous amount of focus on 8 USC 1373 itself, its proper interpretation, and its constitutionality — and it may not stand up to scrutiny, as many have suggested.