Scott Forsyth, BridgeTower Media Newswires
The words of the president continue to haunt him in court. Last week a circuit court of appeals wondered whether enacting a “Muslim ban,” a campaign promise, was the real purpose behind his second executive order on immigration. A Virginia district court had found the order to be so tainted and struck it down as a violation of the Establishment Clause.
At the end of April, a California district court enjoined the implementation of another executive order, on the subject of “sanctuary jurisdictions” and their receipt of federal funds. The court cited several statements made by the president, his press secretary, and the attorney general. County of Santa Clara v. Trump, 17-cv-00574 (N.D. Cal. April 25, 2017). Here is the story.
At issue was an order innocuously entitled “Enhancing Public Safety in the Interior of the United States.” Executive Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017). Section 9 states that the policy of the executive branch is “to ensure … that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.” This statute prohibits local governments from restricting their officials from communicating immigration status information to the Immigration and Naturalization Service.
The executive order goes on to give the attorney general and the secretary of Homeland Security the discretion to a designate a state or local government a “sanctuary jurisdiction” if it “willfully refuse(s) to comply with U.S.C. 1373.” Once designated, a state or local government is no longer “eligible to receive federal grants.”
In addition, the attorney general “shall take appropriate enforcement action against any entity … which has in effect a statute, policy, or practice that … hinders the enforcement of Federal law.”
The order does not define “sanctuary jurisdiction,” “willfully refuse to comply,” or “hinders the enforcement of Federal law.”
Allegedly, sanctuary jurisdictions threaten public safety by “shield(ing) aliens from removal from the United States.” Another part of the order requires the secretary of Homeland Security “to make public a comprehensive list of criminal actions committed by aliens” and a list of jurisdictions that “failed to honor any detainers with respect to such aliens.”
The counties of Santa Clara and San Francisco have policies that prevent employees from using government resources to assist in enforcing federal immigration law or gathering information about a person’s immigration status, unless required by federal law. They adopted the policies to encourage all residents to cooperate with law enforcement and seek essential services without fear of retribution from INS. The safety and health of their communities would be enhanced thereby.
Both counties receive substantial federal funds for a variety of purposes, such as Medicaid and emergency services. The executive order, they believed, would force them to rescind their policies to preserve the funding. Such a takeover of local policymaking violated the Tenth Amendment, so the counties sued.
The government did not defend the executive order against the constitutional challenge. Instead, it argued the counties lacked standing to sue, because the order did not change existing law and because the government had not designated the counties as “sanctuary jurisdictions.”
To the government the order only applied to three law enforcement grants that already required compliance with 8 U.S.C. § 1373. The rest of the order merely represented the president using the bully pulpit of his office to signal a new approach toward the enforcement of immigration law.
The court responded that the government’s interpretation rendered the order “toothless.” The “plain language” of the order “reach(ed) all federal grants,” not just the three.
Furthermore, the public comments of the president and the attorney general erased any doubt about the order’s scope. The former called the order “a weapon” to be used against localities that disagreed with his preferred immigration policies. The latter warned noncompliant localities would suffer “withholding grants, termination of grants, and disbarment or ineligibility for future grants.” Grants already awarded would be “claw(ed) back.”
Not being designated a sanctuary jurisdiction was not necessary if the counties could demonstrate “a credible threat of enforcement.” Susan B. Anthony List v. Driehaus, 573 U.S. __ (2014). They met this standard, again drawing on the statements of the president and the attorney general.
The president singled out California as a state with many “sanctuary cities” and being “out of control.” The attorney general wrote in an op-ed that Kate Steinle, killed by an undocumented alien, “might be alive today if she had not lived in a sanctuary city” and implored “San Francisco and other cities to reevaluate their policies.”
Moving to the merits, the court held the order to be unconstitutional on several grounds. First, it violated the separation of powers doctrine, because only Congress has the authority to impose conditions on the receipt of federal funds. The president’s attempt to do so was an “improper attempt to wield Congress’s exclusive spending power.”
Second, Congress could not have imposed the condition even if it had wanted. Conditions must be “reasonabl(y) related to the purpose of the federal program.” The order would deny all kinds of funds, many with no connection to immigration.
Third, the federal government cannot command the states and their subdivisions to adopt policies not of their choice. The federal government may incentivize the states and their subdivisions but not compel them.
Fourth, key terms of the order did not give jurisdictions adequate notice as to what behavior would be penalized with the loss of funds. As one example, the court cited “hinder the enforcement of Federal law.” What law? Immigration law or all law? Hinder means what?
Any appeal of the decision goes to the Ninth Circuit, of which the president has a low opinion. It will be interesting to see if he tries.
In the alternative the president could seek legislation, which would have to be carefully written. Or he could just blame the judiciary again for frustrating the will of the people and making America a more dangerous place.
—————
Scott Forsyth is a partner in Forsyth & Forsyth and serves as counsel to the local chapter of the ACLU, but the views expressed herein are his own. He may be contacted at (585) 262-3400 or scott@forsythlawfirm.com.
