At the end of March, the City of Seattle filed a lawsuit against the Trump administration over its threats to withhold federal funding from so-called “sanctuary cities.” Today, the Trump administration responded with a motion to dismiss the case.
The context of the lawsuit changed dramatically early last week, when the Attorney General issued a memo interpreting — and severely narrowing — Trump’s original executive order. The memo provided a working definition of a “sanctuary city” for the purposes of the executive order: a city violating the federal statute 8 USC 1373. The lack of a definition has been a major issue and cause of worry for many cities and counties. The memo also specified that the threat to withhold federal grant funds was limited only to specific current grants issued by the Department of Justice and the Department of Homeland Security that already required applicants to certify their compliance with 8 USC 1373 — though the federal government reserves the right to add compliance requirements on to future grants to the extent the law allows it.
In order to have standing to sue, as well as for the court to have jurisdiction to hear the case, the city needs to show that it has been injured or is in imminent threat of injury. Given the new context provided by the memo, the Trump administration argued in their filing today that the City of Seattle no longer has standing to sue because its injury is now only theoretical: the federal government hasn’t officially named it a sanctuary city, it has narrowed the definition of a sanctuary city and the scope of Trump’s executive order, and it hasn’t tried to withhold or claw back any funding. Further, since the city is a recipient of funds through one of the relevant grant programs and as such has already certified that it is compliant with 8 USC 1373, it doesn’t have reason to believe that it is in danger of losing funds.
What the Trump administration’s legal filing doesn’t do, however, is state that the City of Seattle is, in fact, in compliance with 8 USC 1373. And one can imagine they will go to great lengths to avoid doing so, because if they did, they would set a precedent that many other cities would follow for how to avoid cooperating with federal immigration enforcement. A vague threat hanging over cities works to their advantage. But Seattle’s lawsuit specifically asked the court to declare that the city is in compliance — in effect, to remove the vague threat and resolve it once and for all.
The city’s original filing (well before last week’s memo) argued that the Trump administration’s public statements created an imminent threat of loss of federal funding, and that is an “injury” in that it creates uncertainty and chaos in the city’s budgeting process.
There’s an important difference in this case from the other high-profile Trump executive order case, the Muslim travel ban. In that case, the Director of Homeland Security wrote a memo interpreting Trump’s executive order. However, that memo is less authoritative than the executive order itself because the Director of Homeland Security has no authority to provide legal interpretations of the President’s executive order, nor can he limit or narrow its effect. But the Attorney General does, in fact, have the responsibility to provide authoritative legal interpretation of executive orders, the government claims, and so last week’s memo should be the definitive guiding document for the court (and Seattle) in understanding the threat of withholding federal funding for sanctuary cities.
But last week’s memo is, in some instances, inconsistent with the original executive order (though the Trump administration will argue otherwise). It will be the court’s job to decide how to handle that inconsistency, and in particular which is the controlling document where the inconsistencies can’t be reconciled. If the judge agrees with the federal government, he would be more likely to find that Seattle has no imminent risk of injury and grant dismissal. But if he finds that the broad threats in the executive order, paired with comments from both the President and the Attorney General, are not curtailed by the legal interpretation in last week’s memo, then he could find that the imminent threat still exists and allow the case to move forward.
In the next couple of days, expect the judge to set a schedule for briefs and potentially a hearing on the Trump administration’s motion to dismiss. That will likely take weeks to play out. In the meantime the judge has already set a schedule for the two sides to meet in conference and to report back to the court by June 28th.
Unless the Trump administration suddenly decides to label Seattle a sanctuary city or to withhold grant funds, there is no urgency to this case and it will proceed slowly. Sorting out the motion to dismiss will take weeks, and if the case continues beyond that it will likely run for several months.
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