Today the Ninth Circuit Court of Appeals ruled against the Trump Administration in its attempt to withhold federal funding from so-called “sanctuary cities.” Though the case was brought by San Francisco and Santa Clara, it’s good news for Seattle too.
The counties had already been granted a nationwide injunction against Trump’s executive order, issued January 25, 2017, that ordered executive branch departments to withhold federal funding from jurisdictions with “sanctuary” policies. The DOJ issued a memo interpreting the executive order more narrowly, but the district court found that the DOJ memo couldn’t supersede the executive order itself and refused to reconsider its injunction.
In its appeal, the Trump administration argued three things:
- The counties do not have standing to sue, since no actual funds have been withheld yet and may never be so they haven’t suffered any injury;
- The case isn’t ripe, again because no funds have been withheld yet;
- The executive order has a “savings clause” saying that it must be implemented in a manner that is consistent with applicable law, so therefore it can’t be illegal.
The appeals court fully agreed with the district court that the counties have standing and that the issue is ripe for the court to hear it. It pointed to President Trump’s and Attorney General Sessions’ repeated threats to withhold federal funds, which for San Francisco and Santa Clara total in the billions. It also found that the DOJ memo only applied to Department of Justice staff, and thus Trump’s executive order still applied to the rest of the Executive Branch.
As for the merits of the case, it agreed that the order itself violates Constitutional separation of powers, in that only Congress may legislate and allocate funds. The Executive Branch may not refuse to spend funds allocated by Congress, and it may not place additional conditions on those funds without Congressional approval (because doing so is tantamount to legislating). It didn’t rule on whether the operative federal law, 8 USC 1373, which prohibits local governments from preventing its employees from sharing immigration-related information with federal officials, is legal itself; some have argued that it illegally conscripts state and local officials into enforcing federal laws.
But in an interesting turn, the appeals court vacated the district court’s nationwide injunction on Trump’s executive order. The notion of federal courts issuing injunctions with nationwide scope has come under scrutiny recently; it has been argued that it interferes with the court system’s ability to have different judges look at an issue and potentially come to different conclusions. What happens when a district judge in Miami and another in Seattle issue conflicting injunctions with nationwide scope? The Circuit Courts of Appeals, and ultimately the Supreme Court, are supposed to be the vehicles for resolving conflicting rulings in increasingly larger geographic scopes, but an over-reliance on nationwide injunctions subverts that process.
In its ruling, the Ninth Circuit said that nationwide injunctions are still appropriate when the injured party needs to be able to exercise their rights across the country; for example, if someone found that TSA security-check procedures violated someone’s civil rights, it would potentially make sense to issue a nationwide injunction in order to ensure that the person could travel freely throughout the country. But in this case, the court found that San Francisco’s and Santa Clara’s injury can be rightfully scoped statewide since much of its federal funds are funneled through grants to the State of California, but courts in other states ought to have the opportunity to interpret federal law and Trump’s executive order as it applies to those jurisdictions, rather than have a district court judge in California decide it. So it vacated the injunction and remanded the case back to the district court, with instructions that the two counties are entitled to a statewide injunction.
That provides interesting context for Seattle’s own case against the Trump administration on the same issue. The Seattle case has been stayed while the Ninth Circuit was deliberating over the San Francisco and Santa Clara cases, since the legal issues are the same and Ninth Circuit decisions are binding on federal district courts in Seattle. In fact, just yesterday the city and DOJ filed a joint status report noting that they were still waiting for the appeals court to rule and asking the district court to extend the upcoming deadlines on their case; the judge approved the stay until the Ninth Circuit ruled. Now that it has, not only can the city’s case move forward but it should get quickly resolved with a similar injunction for Washington state. Mayor Durkan and City Attorney Holmes issued a joint statement this evening, saying, “We are closely evaluating this ruling and considering its implications for our own lawsuit.”
Longer term, we will need to see whether the Trump Administration appeals the Ninth Circuit’s decision to the Supreme Court. Similar cases to the one ruled on today and Seattle’s are working their way through the federal courts in other circuits, but at this point there isn’t a “circuit split” where appeals court have issued conflicting issues. That makes it less likely that the Supreme Court would take the case at this time, though with its strengthening conservative majority it may want to jump in now. The Trump Administration might also request that the Ninth Circuit hear the case “en banc” since today’s ruling was issued by a 3-judge panel and in the end was a 2-1 decision (with the dissent far more deferential to the President’s authority). Strangely, the Trump Administration has been ignoring the district court’s injunction and continuing to threaten action (arguably in contempt of court); we’ll see whether it continues to do so once the district court in California issues a new one under the Ninth Circuit’s instructions.