Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 1 of 49

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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COUNTY OF SANTA CLARA,
Plaintiff,

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v.
DONALD J. TRUMP, et al.,
Defendants.

United States District Court
Northern District of California

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Case No. 17-cv-00574-WHO

CITY AND COUNTY OF SAN
FRANCISCO,
Plaintiff,

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ORDER GRANTING THE COUNTY OF
SANTA CLARA'S AND CITY AND
COUNTY OF SAN FRANCISCO'S
MOTIONS TO ENJOIN SECTION 9(a)
OF EXECUTIVE ORDER 13768

v.
DONALD J. TRUMP, et al.,

Case No. 17-cv-00485-WHO

Defendants.
INTRODUCTION
This case involves Executive Order 13768, aEnhancing Public Safety in the Interior of the

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United States,a which, in addition to outlining a number of immigration enforcement policies,

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purports to a[e]nsure that jurisdictions that fail to comply with applicable Federal law do not

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receive Federal funds, except as mandated by lawa and to establish a procedure whereby

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asanctuary jurisdictionsa shall be ineligible to receive federal grants. Executive Order 13768, 82

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Fed. Reg. 8799 (Jan. 25, 2017) (the aExecutive Ordera). In two related actions, the County of

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Santa Clara and the City and County of San Francisco have challenged Section 9 of the Executive

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Order as facially unconstitutional and have brought motions for preliminary injunction seeking to

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enjoin its enforcement. See County of Santa Clara v. Trump, No. 17-cv-0574-WHO; City and

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County of San Francisco v. Trump, 17-cv-0485-WHO.

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 2 of 49

The Counties challenge the enforcement provision of the Order, Section 9(a), on several

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grounds: first, it violates the separation of powers doctrine enshrined in the Constitution because it

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improperly seeks to wield congressional spending powers; second, it is so overbroad and coercive

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that even if the President had spending powers, the Order would clearly exceed them and violate

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the Tenth Amendmentas prohibition against commandeering local jurisdictions; third, it is so

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vague and standardless that it violates the Fifth Amendmentas Due Process Clause and is void for

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vagueness; and, finally, because it seeks to deprive local jurisdictions of congressionally allocated

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funds without any notice or opportunity to be heard, it violates the procedural due process

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requirements of the Fifth Amendment.1
The Government does not respond to the Countiesa constitutional challenges but argues

United States District Court
Northern District of California

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that the Counties lack standing because the Executive Order did not change existing law and

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because the Counties have not been named asanctuary jurisdictionsa pursuant to the Order. It

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explained for the first time at oral argument that the Order is merely an exercise of the Presidentas

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abully pulpita to highlight a changed approach to immigration enforcement. Under this

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interpretation, Section 9(a) applies only to three federal grants in the Departments of Justice and

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Homeland Security that already have conditions requiring compliance with 8 U.S.C. 1373. This

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interpretation renders the Order toothless; the Government can already enforce these three grants

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by the terms of those grants and can enforce 8 U.S.C. 1373 to the extent legally possible under the

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terms of existing law. Counsel disavowed any right through the Order for the Government to

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affect any other part of the billions of dollars in federal funds the Counties receive every year.
It is heartening that the Governmentas lawyers recognize that the Order cannot do more

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constitutionally than enforce existing law. But Section 9(a), by its plain language, attempts to

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San Francisco also brings a facial challenge to 8 U.S.C. ASS 1373, arguing that the statute is
unconstitutional under the Tenth Amendment because athe whole objecta of that section is to
adirect the functioninga of state governments. It seeks an injunction enjoining enforcement of
Section 1373, or alternatively, because it believes it complies with Section 1373, an injunction
preventing the Government from taking adverse action against it on the basis that it has failed to
comply with that Section. Briefing on this issue was intermingled with the attack on the Executive
Order, and did not adequately address the important issues raised. At the Case Management
Conference on May 2, 2017, at 1:30 p.m. we will discuss litigation of this portion of the Cityas
case.
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United States District Court
Northern District of California

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reach all federal grants, not merely the three mentioned at the hearing. The rest of the Order is

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broader still, addressing all federal funding. And if there was doubt about the scope of the Order,

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the President and Attorney General have erased it with their public comments. The President has

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called it aa weapona to use against jurisdictions that disagree with his preferred policies of

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immigration enforcement, and his press secretary has reiterated that the President intends to ensure

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that acounties and other institutions that remain sanctuary cites donat get federal government

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funding in compliance with the executive order.a The Attorney General has warned that

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jurisdictions that do not comply with Section 1373 would suffer awithholding grants, termination

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of grants, and disbarment or ineligibility for future grants,a and the aclaw backa of any funds

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previously awarded. Section 9(a) is not reasonably susceptible to the new, narrow interpretation

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offered at the hearing.

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Although the Governmentas new interpretation of the Order is not legally plausible, in

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effect it appears to put the parties in general agreement regarding the Orderas constitutional

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limitations. The Constitution vests the spending powers in Congress, not the President, so the

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Order cannot constitutionally place new conditions on federal funds. Further, the Tenth

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Amendment requires that conditions on federal funds be unambiguous and timely made; that they

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bear some relation to the funds at issue; and that the total financial incentive not be coercive.

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Federal funding that bears no meaningful relationship to immigration enforcement cannot be

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threatened merely because a jurisdiction chooses an immigration enforcement strategy of which

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the President disapproves.

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To succeed in their motions, the Counties must show that they are likely to face immediate

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irreparable harm absent an injunction, that they are likely to succeed on the merits, and that the

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balance of harms and public interest weighs in their favor. The Counties have met this burden.

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They have demonstrated that they have standing to challenge the Order and are currently suffering

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irreparable harm, not only because the Order has caused and will cause them constitutional

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injuries by violating the separation of powers doctrine and depriving them of their Tenth and Fifth

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Amendment rights, but also because the Order has caused budget uncertainty by threatening to

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deprive the Counties of hundreds of millions of dollars in federal grants that support core services
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in their jurisdictions. They have established that they are likely to succeed on the merits of their

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claims and that the balance of harms and public interest decisively weigh in favor of an injunction.

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The Countiesa motions for preliminary injunction against Section 9(a) of the Executive Order are

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GRANTED as further described below.
That said, this injunction does nothing more than implement the effect of the

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Governmentas flawed interpretation of the Order. It does not affect the ability of the Attorney

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General or the Secretary to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does

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it impact the Secretaryas ability to develop regulations or other guidance defining what a sanctuary

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jurisdiction is or designating a jurisdiction as such. It does prohibit the Government from

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exercising Section 9(a) in a way that violates the Constitution.
BACKGROUND

United States District Court
Northern District of California

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I.

THE EXECUTIVE ORDER
On January 25, 2017, President Donald J. Trump issued Executive Order 13768,

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aEnhancing Public Safety in the Interior of the United States.a See Harris Decl. AP 2; Ex. A (aEOa)

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(SC Dkt. No. 36-1). In outlining the Executive Orderas purpose, Section 1 reads, in part,

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aSanctuary jurisdictions across the United States willfully violate Federal law in an attempt to

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shield aliens from removal from the United States.a EO ASS1. Section 2 states that the policy of the

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executive branch is to a[e]nsure that jurisdictions that fail to comply with applicable Federal law

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do not receive Federal funds, except as mandated by law.a EO ASS2(c).

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Section 9, titled aSanctuary Jurisdictionsa lays out this policy in more detail. It reads:
Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive
branch to ensure, to the fullest extent of the law, that a State, or a
political subdivision of a State, shall comply with 8 U.S.C. 1373.
(a) 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
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of Federal law.

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(b) To better inform the public regarding the public safety threats
associated with sanctuary jurisdictions, the Secretary shall utilize the
Declined Detainer Outcome Report or its equivalent and, on a
weekly basis, make public a comprehensive list of criminal actions
committed by aliens and any jurisdiction that ignored or otherwise
failed to honor any detainers with respect to such aliens.

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(c) The Director of the Office of Management and Budget is
directed to obtain and provide relevant and responsive information
on all Federal grant money that currently is received by any
sanctuary jurisdiction.

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EO ASS9.
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Section 3 of the Order, titled aDefinitions,a incorporates the definitions listed in 8 U.S.C. ASS
1101. EO ASS3. Section 1101 does not define asanctuary jurisdiction.a The term is not defined

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anywhere in the Executive Order. Similarly, neither section 1101 nor the Order defines what it

United States District Court
Northern District of California

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means for a jurisdiction to awillfully refuse to complya with Section 1373 or for a policy to
aprevent[] or hinder[] the enforcement of Federal law.a EO ASS9(a).

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II.

SECTION 1373
Section 1373, to which Section 9 refers, prohibits local governments from restricting

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government officials or entities from communicating immigration status information to ICE. It
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states in relevant part:
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(a) In General. Notwithstanding any other provision of Federal,
State, or local law, a Federal, State, or local government entity or
official may not prohibit, or in any way restrict, any government
entity or official from sending to, or receiving from, the Immigration
and Naturalization Service information regarding the citizenship or
immigration status, lawful or unlawful, of any individual.
(b) Additional Authority of Government Entities. Notwithstanding
any other provision of Federal, State, or local law, no person or
agency may prohibit, or in any way restrict, a Federal, State, or local
government entity from doing any of the following with respect to
information regarding the immigration status, lawful or unlawful, of
any individual:
(1) Sending such information to, or requesting or receiving
such information from, the Immigration and Naturalization
Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal,
State, or local government entity.
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8 U.S.C. 1373.
In July, 2016, the U.S. Department of Justice issued guidance linking two federal grant

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programs, the State Criminal Alien Assistance Program (aSCAAPa) and Edward Byrne Memorial

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Justice Assistance Grant (aJAGa) to compliance with Section 1373.2 This guidance states that all

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applicants for these two grant programs are required to aassure and certify compliance with all

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applicable federal statutes, including Section 1373, as well as all applicable federal regulations,

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policies, guidelines, and requirements.a Id. The Department has indicated that the Community

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Oriented Policing Services Grant (COPS) is also conditioned on compliance with Section 1373.

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III.

An ICE civil detainer request asks a local law enforcement agency to continue to hold an

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United States District Court
Northern District of California

CIVIL DETAINER REQUESTS

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inmate who is in local jail because of actual or suspected violations of state criminal laws for up to

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48 hours after his or her scheduled release so that ICE can determine if it wants to take that

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individual into custody. See 8 C.F.R. ASS 287.7; Neusel Decl. AP9; Marquez Decl., Ex. C at 3 (SC

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Dkt. No. 29-3). ICE civil detainer requests are voluntary and local governments are not required

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to honor them. See 8 C.F.R. ASS 287.7(a); Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014)

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(a[S]ettled constitutional law clearly establishes that [immigration detainers] must be deemed

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requestsa because any other interpretation would render them unconstitutional under the Tenth

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Amendment). Several courts have held that it is a violation of the Fourth Amendment for local

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jurisdictions to hold suspected or actual removable aliens subject to civil detainer requests because

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civil detainer requests are often not supported by an individualized determination of probable

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cause that a crime has been committed. See Morales v. Chadbourne, 793 F.3d 208, 215-217 (1st

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Cir. 2015); Miranda-Olivares v. Clackamas Cnty., No. 3:12-cv-02317-ST, 2014 WL 1414305, at

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*9-11 (D. Or. Apr. 11, 2014). ICE does not reimburse local jurisdictions for the cost of detaining

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individuals in response to a civil detainer request and does not indemnify local jurisdictions for

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See Letter from Peter J. Kadzik, Asst. Attay Gen. U.S. Depat of Justice, to Hon John A.
Culberson, Chairman of the Subcomm. On Commerce, Justice, Sci & Related Agencies, (Jul. 7,
2016), http://culberson.house.gov/uploadedfiles/2016-7-7_section_1373_doj_letter_to_culberson.pdf. I take judicial notice of Peter Kadzikas letter as courts may
judicially notice information and official documents contained on official government websites.
See Daniels-Hall v. Natal Educ. Assan, 629 F.3d 992, 998-999 (9th Cir. 2010).
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United States District Court
Northern District of California

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potential liability they could face for related Fourth Amendment violations. See 8 C.F.R. ASS

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287.7(e); Marquez Decl. APAP 21-15 & Exs. B-D.

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IV.

THE COUNTIESa POLICIES
Santa Claraas Policies

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A.

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Santa Clara asserts that its local policies and practices with regard to federal immigration

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enforcement are at odds with the Executive Orderas provisions regarding Section 1373. SC Mot.

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at 5. (SC Dkt. No. 26). In 2010, the Santa Clara County Board of Supervisors adopted a

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Resolution prohibiting Santa Clara employees from using County resources to transmit any

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information to ICE that was collected in the course of providing critical services or benefits.

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Marquez Decl. AP27 (SC Dkt. No. 29) & Ex. G (SC Dkt. No. 29-7); Neusel Decl. AP7 (SC Dkt. No.

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31); L. Smith Decl. AP6 (SC Dkt. No. 35). The Resolution also prohibits employees from initiating

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an inquiry or enforcement action based solely on the individualas actual or suspected immigration

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status, national origin, race or ethnicity, or English-speaking ability, or from using County

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resources to pursue an individual solely because of an actual or suspected violation of immigration

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law. Id. In October, 2016, after receiving DOJ guidance that JAG and SCAAP funds would be

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conditioned on compliance with Section 1373, Santa Clara decided not to participate in those

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programs. Marquez Decl. AP 29 & Ex. H (SC Dkt. No. 29-8).
Santa Clara also asserts that its policies with regard to ICE civil detainer requests are

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inconsistent with the Executive Order and the Presidentas stated immigration enforcement agenda.

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Prior to late 2011, Santa Clara responded to and honored ICE civil detainer requests, housing an

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average of 135 additional inmates each day at a daily cost of approximately $159 per inmate.

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Neusel Decl. AP4. When the County raised concerns about the costs associated with complying

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with detainer requests and potential civil liability, ICE confirmed that it would not reimburse the

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County or indemnify it for the associated costs and liabilities. Marquez Decl. APAP 21-15 & Exs. B-

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D.

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Santa Clara subsequently convened a task force and adopted a new policy where the

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County agreed to honor requests for individuals with serious or violent felony convictions, but

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only if ICE would reimburse the County for the cost of holding those individuals. Neusel Decl.
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AP6; Marquez Decl. AP26 & Ex. E. ICE has never agreed to reimburse the County for any costs, so

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since November 2011 the County has declined to honor all ICE detainer requests. Id.
B.

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San Franciscoas sanctuary city policies are contained in Chapters 12H and 12I of its

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Administrative Code. Eisenberg Decl. Exs. A-B (SF Dkt. No. 28). The stated purpose of these

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laws is ato foster respect and trust between law enforcement and residents, to protect limited local

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resources, to encourage cooperation between residents and City officials, including especially law

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enforcement and public health officers and employees, and to ensure community security, and due

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process for all.a S.F. Admin Code ASS 12I.1.

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United States District Court
Northern District of California

San Franciscoas Policies

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As relevant to Section 1373, Chapter 12H prohibits San Francisco departments, agencies,

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commissions, officers, and employees from using San Francisco funds or resources to assist in

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enforcing federal immigration law or gathering or disseminating information regarding an

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individualas release status, or other confidential identifying information (which as defined does not

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include immigration status), unless such assistance is required by federal or state law. S.F. Admin

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Code ASS 12H.2. Although Chapter 12H previously prohibited city employees from sharing

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information regarding individualsa immigration status, the San Francisco Board of Supervisors

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removed this restriction in July, 2016, due to concerns that the provision violated Section 1373.

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With regard to civil detainer requests, Chapter 12I prohibits San Francisco law

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enforcement from detaining an individual, otherwise eligible for release from custody, solely on

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the basis of a civil immigration detainer request. S.F. Admin Code ASS 12I.3. It also prohibits local

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law enforcement from providing ICE with advanced notice that an individual will be released from

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custody, unless the individual meets certain criteria. S.F. Admin Code ASS 12I.3. Chapter 12I.3.(e)

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provides that a a[l]aw enforcement official shall not arrest or detain an individual, or provide any

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individualas personal information to a federal immigration officer, on the basis of an

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administrative warrant, prior deportation order, or other civil immigration document based solely

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on alleged violations of the civil provisions of immigration laws.a S.F. Admin Code ASS 12I.3.(e).

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San Francisco explains that it adopted these policies due to concerns that holding people in

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response to civil detainers would violate the Fourth Amendment and require it to dedicate scarce
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law enforcement personnel and resources to holding these individuals. Hennessy Decl. AP11 (SF

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Dkt. No. 24).

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V.

Santa Claraas Federal Funding

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A.

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In the 2015-2016 fiscal year, Santa Clara received approximately $1.7 billion in federal

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and federally dependent funds, making up roughly 35% of the Countyas total revenues. J. Smith

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Decl. AP6; Marquez Decl. AP8. This figure includes federal funds provided through entitlement

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programs.

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United States District Court
Northern District of California

THE COUNTIESa FEDERAL FUNDING

Most of the Countyas federal funds are used to provide essential services to its residents.

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Marquez Decl. APAP 5-8. In support of its motion, the County includes a number of declarations

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outlining how a loss of any substantial amount of federal funding would force it to make

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substantial cut backs to safety-net programs and essential services and would require it to lay off

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thousands of employees. It highlights that the Countyas Valley Medical Center, the only public

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safety-net healthcare provider in the County, relies on $1 billion in federal funds each year, which

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covers up to 70% of its total annual costs. Lorenz Decl. APAP 3, 7 (SC Dkt. No. 28). A loss of all

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federal funds would shut down Valley Medical Center and cut off the only healthcare option for

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thousands of poor, elderly, and vulnerable people in the County. Id. AP 8. It further highlights that

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Santa Claraas Social Services Agency, which provides various services to vulnerable residents,

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including child welfare and protection, aid to needy families, and support for disabled children,

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adults and the elderly, receives roughly 40% of its budget, $300 million, from federal funds.

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Menicocci Decl. AP5 (SC Dkt. No. 30). The Countyas Public Health Department receives 40% of

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its budget and $38 million in federal funds. And the Countyas Office of Emergency Services,

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whose job is to prepare for and respond to disasters such as earthquakes and terrorism, receives

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more than two-thirds of its budget from federal funds. Reed Decl. APAP 3-20 (SC Dkt. No. 32).

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In the 2014-2015 fiscal year, the County received over $565 million in non-entitlement

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federal grants. See Marquez Decl. Ex. A at 11-12 (SC Dkt. No. 29-1) (showing $338 million in

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federal grants subject to OMB auditing requirements and an additional $227 million in federal

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grants through the Department of Housing and Urban Development). This $565 million
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United States District Court
Northern District of California

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represents approximately 11% of the Countyas budget.
San Franciscoas Federal Funding

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B.

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San Franciscoas yearly budget is approximately $9.6 billion; it receives approximately $1.2

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billion of this from the federal government. Rosenfield Decl. AP9 (SF Dkt. No. 22). San Francisco

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uses these federal funds to provide vital services such as medical care, social services, and meals

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to vulnerable residents, to maintain and upgrade roads and public transportation, and to make

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needed seismic upgrades. Whitehouse Decl. AP16 (SF Dkt. No. 23). Losing all, or a substantial

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amount, of federal funds would have significant effects on core San Francisco programs: federal

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funds make up 100% of Medicare for San Francisco residents, Rosenfield Decl. AP 29; 30% of the

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budget for San Franciscoas Department of Emergency Management, id. APAP25-27; 33% of the

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budget for San Franciscoas Human Services Agency, id. APAP13-18; and 40% of the budget for San

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Franciscoas Department of Public Health, id. APAP19-24.

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Approximately 20% of these federal funds, or $240 million, are from federal grants. Id.

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AP29. San Francisco also receives $800 million each year in federal multi-year grants, primarily for

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public infrastructure projects. Id. AP11.

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San Francisco must adopt a balanced budget for the fiscal year beginning July 1, 2017.

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Whitehouse Decl. AP16. Under local law, the Mayor must submit a balanced budget to the Board of

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Supervisors by June 1 and make fundamental budget decisions by May 15, including whether to

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create a budget reserve to account for the potential loss of significant funds. Id. AP5-6, 8. Any

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money placed in the budget reserve would not be available to be used for other programs or

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services in the coming fiscal year. Id. AP9.

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LEGAL STANDARD

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aA plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

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the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

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balance of equities tips in his favor, and that an injunction is in the public interest.a Winter v.

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Natal Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). This has been interpreted as a four-part

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conjunctive test, not a four-factor balancing test. However, the Ninth Circuit has held that a

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plaintiff may also obtain an injunction if he has demonstrated aserious questions going to the
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meritsa that the balance of hardships atips sharplya in his favor, that he is likely to suffer

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irreparable harm, and that an injunction is in the public interest. See Alliance for the Wild Rockies

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v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011).
DISCUSSION

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United States District Court
Northern District of California

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I.

JUSTICIABILITY
The Government argues that the Countiesa claims against the Executive Order are not

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justiciable because the Counties cannot establish an injury-in-fact, which is necessary to establish

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standing, and because their claims are not ripe for review. These principles of standing and

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ripeness go to whether this court has jurisdiction to hear the Countiesa claims. I conclude that the

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Counties have demonstrated Article III standing to challenge the Executive Order and that their

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claims are ripe for review.

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A.

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Article III, section 2 of the Constitution limits the jurisdiction of the federal courts to

Standing

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aCasesa and aControversies.a Massachusetts v. EPA, 549 U.S. 497, 516 (2007); see U.S. Const.

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art. III, ASS, cl. 1. aStanding is an essential and unchanging part of the case-or-controversy

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requirement.a Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish standing a

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plaintiff must demonstrate athat it has suffered a concrete and particularized injury that is either

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actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a

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favorable decision will redress that injury.a Massachusetts, 549 U.S. at 517 (citing Lujan, 504

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U.S. at 560-61).

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The Counties contend that they have standing to challenge the Executive Order because the

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Order threatens to defund, or otherwise bring enforcement action against, states and local

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jurisdictions that are asanctuary jurisdictions.a Although the Order does not clearly define

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asanctuary jurisdictions,a it directs the Attorney General and Secretary to ensure that jurisdictions

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that awillfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to

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receive Federal grantsa and elsewhere equates jurisdictions that refuse to honor detainer requests

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with the term asanctuary jurisdictions.a It further directs the Attorney General to bring

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aenforcement actiona against jurisdictions with policies that ahinder[] the enforcement of Federal
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The Counties represent that they have asanctuary policiesa that are likely to subject them to

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enforcement or defunding under the Order. They assert that enforcement under the Order would

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result in injury-in-fact in the form of cuts to federal funds and whatever other penalty the

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Government seeks to impose through its aenforcement action.a As a result of this threat of major

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cuts to federal funding, the Order is also causing present injury-in-fact in the form of budget

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uncertainty. Alternatively, attempting to comply with the Order would also cause injury, as it

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would require them to change their local policies in ways that conflict with their local judgment on

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how best to ensure public safety and require them to commit substantial resources to assist in

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United States District Court
Northern District of California

law.a

enforcing federal immigration laws.
The Government raises two primary arguments against the Countiesa claims of standing.

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First, it asserts that the Counties cannot demonstrate injury-in-fact traceable to the Executive

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Order because the Order does not change the law in any way, but merely directs the Attorney

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General and Secretary to enforce existing law. Second, it argues that the Countiesa claims of

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injury are not sufficiently aconcretea or aimminenta because the Government has not designated

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either County as a asanctuary jurisdictiona and has not withheld any federal funds. I will address

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these arguments in turn.

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1.

Whether the Executive Order Changes the Law

The Governmentas primary defense is that the Order does not change the law, but merely

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directs the Attorney General and Secretary to enforce existing law. In its briefing, the

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Government emphasized Section 9(a)as provision that it will be implemented ato the extent

22

consistent with law.a It argued that to the extent the Order directs the Attorney General and

23

Secretary to newly condition federal funds on compliance with Section 1373, it could not lawfully

24

do so and so it does not. It asserted, aIf the grant language does not require compliance with

25

Section 1373, the Executive Order does not purport to give the Secretary or Attorney General the

26

unilateral authority to alter those terms.a SC Oppo. at 13. By this interpretation, Section 9 simply

27

directs the Attorney General and Secretary to ensure that grants that are already conditioned on

28

compliance with Section 1373 are not remitted to jurisdictions that fail to meet that requirement.
12

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 13 of 49

1

At the hearing, the Government went further and explicitly disclaimed the ability under the

2

Executive Order to add conditions to grants authorized by Congress or to enforce the Order

3

against any but three grant programs, SCAAP, JAG and COPS. Government counsel urged me to

4

adopt this narrow reading of the Order, arguing that well-established rules of construction require

5

courts to adopt narrow readings when broader ones would read in constitutional problems.
Where a construction of a statute awould raise serious constitutional problems, the Court

United States District Court
Northern District of California

6
7

will construe the statute to avoid such problems unless such construction is plainly contrary to the

8

intent of Congress.a Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades

9

Council, 485 U.S. 568, 575 (1988).3 a[A]s between two possible interpretations of a statute, by

10

one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that

11

which will save the Act.a Blodgett v. Holden, 275 U.S. 142, 148 (1927). The primary purpose of

12

the doctrine is to aminimize disagreement between the branches by preserving congressional

13

enactments that might otherwise founder on constitutional objections.a Almendarez-Torres v.

14

U.S., 523 U.S. 224, 238 (1998).
aThis canon is followed out of respect for Congress, which we assume legislates in the

15
16

light of constitutional limitations.a Rust v. Sullivan, 500 U.S. 173, 191 (1991). This canon of

17

construction is limited; to adopt an alternate construction the statute must be areadily susceptiblea

18

to that construction. United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S.

19

366, 409 (1909). It is not the job of the courts ato insert missing terms into the statute or adopt an

20

interpretation precluded by [its] plain language.a Foti v. City of Menlo Park, 146 F.3d 629, 639

21

(9th Cir. 1998).
As a preliminary matter, a narrow construction does not limit a plaintiffsa standing to

22
23

challenge a law that is subject to multiple interpretations. See Virginia v. American Booksellers

24

Assan, Inc., 484 U.S. 383, 392 (1988) (noting that a plaintiffas standing may be based on its

25

interpretation of the statute even when a narrower interpretation is offered). Therefore, the

26
3

27
28

The Supreme Court has declined to apply this canon of construction to agency actions and it is
unclear that it would apply to an Executive Order. F.C.C. v. Fox Television Stations, Inc., 556
U.S. 502, 516 (2009) (aWe know of no precedent for applying [the canon of constitutional
avoidance] to limit the scope of an authorized executive action.a).
13

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 14 of 49

United States District Court
Northern District of California

1

Governmentas proposed narrow construction does not destroy justiciability.

2

With regards to the merits of the Governmentas construction, the Order is not readily

3

susceptible to the Governmentas narrow interpretation. Indeed, a[t]o read [the Order] as the

4

Government desires requires rewriting, not just reinterpretation.a U.S. v. Stevens, 559 U.S. 460,

5

481 (2010).

6

While the Government urges that the Order adoes not purport to give the Secretary or

7

Attorney General the unilateral authoritya to impose new conditions on federal grants, that is

8

exactly what the Order purports to do. It directs the Attorney General and the Secretary to ensure

9

that asanctuary jurisdictionsa are anot eligible to receivea federal grants. EO ASS9(a)(emphasis

10

added). Whether a jurisdiction is eligible to receive federal grants is determined by the conditions

11

on those grants and the characteristics, acts, and choices of the jurisdiction. See BLACKaS LAW

12

DICTIONARY 634 (10th ed. 2014) (defining aeligiblea as aFit and proper to be selected or to

13

receive a benefit.a). Section 9(a)as language directing the Attorney General and Secretary to

14

ensure that jurisdictions that awillfully refuse to complya with Section 1373 are anot eligiblea for

15

federal grants therefore purports to delegate to the Attorney General and the Secretary the

16

authority to place a new condition on federal grants, compliance with Section 1373. And as

17

Government counsel agreed at the hearing, the power to place conditions on funds belongs

18

exclusively to Congress.

19

The Government attempts to read out all of Section 9(a)as unconstitutional directives to

20

render it an ominous, misleading, and ultimately toothless threat. It urges that Section 9(a) can be

21

saved by reading the defunding provision narrowly and aconsistent with law,a so that all it does is

22

direct the Attorney General and Secretary to enforce existing grant conditions. But this

23

interpretation is in conflict with the Orderas express language and is plainly not what the Order

24

says. The defunding provision is entirely inconsistent with law in its stated purpose and directives

25

because it instructs the Attorney General and the Secretary to do something that only Congress has

26

the authority to doaplace new conditions on federal funds. If Section 9(a) does not direct the

27

Attorney General and Secretary to place new conditions on federal funds then it only authorizes

28

them to do something they already have the power to do, enforce existing grant requirements.
14

United States District Court
Northern District of California

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 15 of 49

1

Effectively, the Government argues that Section 9(a) is avalida and does not raise constitutional

2

issues as long as it does nothing at all. But a construction so narrow that it renders a legal action

3

legally meaningless cannot possibly be reasonable and is clearly inconsistent with the Orderas

4

broad intent.

5

At the hearing, Government counsel argued that the Order applies only to grants issued by

6

the Department of Justice and the Department of Homeland Security because it is directed only at

7

the Attorney General and Secretary of Homeland Security. This reading is similarly implausible.

8

Nothing in Section 9(a) limits the aFederal grantsa affected to those only given though the

9

Departments of Justice and Homeland Security. The Department of Justice is responsible for

10

federal law enforcement throughout the country, not just within its own Department. So when the

11

Attorney General is directed to aensure that jurisdictions that willfully refuse to comply with 8

12

U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed

13

necessary for law enforcement purposes by the Attorney General or the Secretarya and to atake

14

appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in

15

effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law,a it is

16

not reasonable to interpret the directive as applying solely to law enforcement grants that the

17

Attorney General and Secretary are specifically given authority to exempt from the Order.

18

Nor is counselas narrow interpretation supported by the rest of the Order. Two examples

19

suffice. Section 9(c) instructs the Director of the Office of Management and Budget ato obtain

20

and provide relevant and responsive information on all Federal grant money that currently is

21

received by any sanctuary jurisdiction.a This directive is not limited to grants issued by the

22

Departments of Justice and Homeland Security. And Section 2(c) announces a policy to aensure

23

that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds,

24

except as mandated by law.a The Orderas structure and language make clear that a asanctuary

25

jurisdiction,a which the Secretary will eventually define, should change its policies or risk loss of

26

all federal grants, and Section 9(a) provides the means to do so.

27
28

The purpose of adopting a plausible valid construction over one that would result in
constitutional issues is to save an Act that would otherwise fall on constitutional grounds. A
15

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 16 of 49

1

construction so narrow that it reads out any legal force does not save the Act and obviates the

2

entire purpose of adopting a narrow reading. At the hearing, Government counsel explained that

3

the Order is an example of the Presidentas use of the bully pulpit and, even if read narrowly to

4

have no legal effect, serves the purpose of highlighting the Presidentas focus on immigration

5

enforcement. While the President is entitled to highlight his policy priorities, an Executive Order

6

carries the force of law. Adopting the Governmentas proposed reading would transform an Order

7

that purports to create real legal obligations into a mere policy statement and would work to

8

mislead individuals who are not able to conclude, by reading Section 9(a) itself, that it is fully self-

9

cancelling and carries no legal weight.

United States District Court
Northern District of California

10

The Supreme Court has acknowledged that applying a narrow construction to an

11

unconstitutionally overbroad statute does not address the confusion and potential deterrent effect

12

caused by the language of the law itself. See, Erznoznik v. City of Jacksonville, 422 U.S. 205, 216

13

(1975) (concluding, in a First Amendment case, that a narrow construction of an overbroad statute

14

was likely inappropriate because the adeterrent effect on legitimate expression is both real and

15

substantial.a). As discussed below, the coercive effects of the Orderas broad language counsel

16

against adopting a narrow construction that deprives it of any legal meaning.

17

The Governmentas construction is not reasonable. It requires a complete rewriting of the

18

Orderas language and does not asavea any part of Section 9(a)as legal effect. There is no doubt

19

that Section 9(a), as written, changes the law.

20

2.

Pre-enforcement Standing

21

The Counties argue that they have standing to challenge the Executive Order because they

22

have demonstrated a well-founded belief that the Order will be enforced against them. In turn, the

23

Government argues that the Counties lack standing because the Government has not yet

24

designated the Counties as asanctuary jurisdictionsa or withheld funds.

25

Because the Counties have not yet suffered a loss of funds or other enforcement action

26

under the Executive Order, this case is analogous to the many cases addressing pre-enforcement

27

standing. These cases establish that a plaintiff may demonstrate pre-enforcement standing by

28

showing aan intention to engage in a course of conduct arguably affected with a constitutional
16

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 17 of 49

1

interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.a

2

Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979); see Steffel v. Thompson, 415 U.S. 452, 459

3

(1974) (a[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to

4

be entitled to challenge a statute that he claims deters the exercise of his constitutional rightsa);

5

Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014) (plaintiffs can demonstrate

6

standing by alleging aa credible threat of enforcementa); American Booksellers, 484 U.S. at 392

7

(plaintiffs can establish standing by demonstrating a awell-founded fear that the law will be

8

enforced against them.a).

United States District Court
Northern District of California

9

At the hearing, the Government suggested that pre-enforcement review is generally only

10

available when there are criminal penalties or First Amendment issues at stake. While pre-

11

enforcement cases often fall into these categories, pre-enforcement review is not so limited. In a

12

pre-enforcement case, just like any other case, courts are limited by athe primary conception that

13

federal judicial power is to be exercised . . . only at the instance of one who is himself immediately

14

harmed, or immediately threatened with harm, by the challenged action.a Poe v. Ullman, 367 U.S.

15

497, 504 (1961). The Court has repeatedly recognized that awhere threatened action by

16

government is concerned, we do not require a plaintiff to expose himself to liability before

17

bringing suit to challenge the basis for the threat a for example, the constitutionality of a law

18

threatened to be enforced.a MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007).

19

When a threatened injury has not yet been felt, athe question becomes whether any perceived

20

threat to respondents is sufficiently real and immediate to show an existing controversya OaShea v.

21

Littleton, 414 U.S. 488, 496 (1974), or whether it is merely aimaginary or speculative,a Younger v.

22

Harris, 401 U.S. 37, 42 (1971).

23

The pre-enforcement line of cases outlines a framework for answering this question in the

24

context of threatened civil or criminal enforcement action. Just as Article III standing is not

25

reserved for individuals who have suffered criminal penalties or First Amendment restrictions,

26

pre-enforcement review is not reserved for such individuals. See e.g. Terrace v. Thompson, 263

27

U.S. 197, 214 (1923) (noting that a plaintiff has standing to enjoin a law when the government

28

athreatens and is about to commence proceedings, either civil or criminal, to enforce such a law
17

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 18 of 49

1

against parties affecteda); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386 (1926)

2

(holding that a landowner bringing Fourteenth Amendment claims and facing only civil penalties

3

had pre-enforcement standing).

United States District Court
Northern District of California

4

Many of the pre-enforcement cases recognize that First Amendment challenges raise an

5

additional consideration for standing purposes because a statute restricting First Amendment rights

6

may cause harm without any enforcement by achilling speech.a See American Booksellers, at 393

7

(a[T]he alleged danger of this statute is, in large measure, one of self-censorship; a harm that can

8

be realized even without an actual prosecution.a). While this achillinga effect is particularly

9

important in the First Amendment context, analogous concerns have been recognized in other

10

situations. For example, that a threat of legal action may coerce individuals to abandon their legal

11

rights is well recognized outside of First Amendment restrictions and was one of the driving

12

factors behind the creation of the Declaratory Judgment Act. See MedImmune, 549 U.S. at 129

13

(aThe dilemma posed by that coercionaputting the challenger to the choice between abandoning

14

his rights or risking prosecutionais a dilemma that it was the very purpose of the Declaratory

15

Judgment Act to ameliorate.a). And courts have recognized that, outside the First Amendment

16

context, a lawas threat of enforcement may, on its own, cause present injury. See Village of

17

Euclid, 272 U.S. at 386. In Village of Euclid, the Court considered whether a landowner had pre-

18

enforcement standing to challenge a local zoning ordinance that it alleged had drastically reduced

19

the market value of a particular piece of property by limiting its use and threatening to impose

20

penalties for zoning violations. Id. at 384. Although the landowner had not faced any

21

enforcement under the ordinance, the Court concluded the claims were justiciable because ainjury

22

is inflicted by the mere existence and threatened enforcement of the ordinancea as aprospective

23

buyers . . . are deterred from buying any part of this land.a Id. 384-385.

24

In sum, the pre-enforcement cases reveal that an individual facing enforcement action may

25

establish standing by demonstrating a well-founded fear of enforcement and a threatened injury

26

that is asufficiently real and imminent.a OaShea, 414 U.S. at 496. One may also establish

27

standing by demonstrating that a well-founded fear of enforcement action is itself causing present

28

injury. See American Booksellers, at 393; Village of Euclid, 272 U.S. at 385.
18

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 19 of 49

1

As I discuss below, review of the Countiesa allegations demonstrates that they have a well-

2

founded fear of enforcement under the Executive Order. They have further demonstrated that

3

enforcement under the Order would deprive them of federal grants that they use to provide critical

4

services to their residents and that the amere existence and threatened enforcementa of the Order is

5

causing them present injury in the form of budget uncertainty. They have demonstrated Article III

6

standing to challenge the Order.

7
8

a.

The Countiesa policies are proscribed by the language of the
Executive Order

Where it is not fully clear what conduct is proscribed by a statute, a well-founded fear of
9

enforcement may be based in part on a plaintiffas reasonable interpretation of what conduct is

10
proscribed. See American Booksellers, 484 U.S. at 392. This is true even if a narrower reading of
11
United States District Court
Northern District of California

the statute may be available. Id. at 397.
12
In American Booksellers, the Supreme Court concluded that a group of booksellers had
13
14
15

standing to challenge a Virginia law that made it unlawful for any person to aknowingly display
for commercial purposea visual or written material depicting sexual conduct awhich is harmful to
juveniles.a Id. at 386 (citing Va. Code ASS 18.2-391(a) (Supp. 1987)). The booksellers challenged

16
the statute on First Amendment grounds and alleged that they had standing because they had
17
identified 16 books that they intended to display and that they believed would be covered by the
18
statute. Id. Even though the statute had not been made effective and the State had not identified
19
specific materials that would be implicated by the statute, the Court concluded that this was
20

sufficient to establish Article III standing because athe law is aimed directly at plaintiffs, who, if

21
their interpretation of the statute is correct, will have to take significant and costly compliance
22

measures or risk criminal prosecution.a Id. at 392. Further, while the government put forward a

23
narrow construction of the law that would have made the burden to booksellers and the public
24
25
26

asignificantly less than that feared and asserted by plaintiffs,a the Court did not consider this
construction in assessing the plaintiffsa standing. Id. at 397.
The Countiesa policies are likely to subject them to enforcement given their reasonable

27
interpretation of what conduct and policies the Order purports to proscribe. Section 9(a) of the
28
19

United States District Court
Northern District of California

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 20 of 49

1

Executive Order directs the Attorney General and the Secretary to aensurea that asanctuary

2

jurisdictionsa are anot eligible to receive Federal grants.a EO ASS9(a). The Counties acknowledge

3

that the Executive Order does not clearly define asanctuary jurisdictionsa but note that the Orderas

4

language indicates that a asanctuary jurisdictiona is, at a minimum, any jurisdiction that awillfully

5

refuse[s] to comply with 8 U.S.C. 1373.a The Government has not clarified what it means to

6

awillfully refuse to complya with Section 1373, and indeed argues that the Counties lack standing

7

because the Attorney General and Secretary of Homeland Security have not yet figured that out.

8

SC Oppo. at 11 (a[T]he Attorney General and the Secretary of Homeland Security must determine

9

exactly what constitutes awillful refusal to comply with 8 U.S.C. ASS 1373aa). Despite this, on

10

March 27, 2017, Attorney General Sessions aurg[ed] states and local jurisdictions to comply with

11

these federal laws, including 8 U.S.C. Section 1373a and confirmed that afailure to remedy

12

violations could result in withholding grants, termination of grants, and disbarment or ineligibility

13

for future grants.a See RJN-2, Ex. D (aSessions Press Conferencea) (SF Dkt. No. 61-4).4

14

The Attorney General also stated that this policy was aentirely consistent with the

15

Department of Justiceas Office of Justice Programas guidance that was issued just last summer

16

under the previous government.a Id. In the process of developing that guidance, the Inspector

17

General of the Department of Justice, Michael Horowitz, prepared a memorandum entitled

18

aDepartment of Justice Referral of Allegations of Potential Violations of 8 U.S.C. ASS 1373 by Grant

19

Recipients.a See RJN-1, Ex. A (Dkt. No. 29-1).5 The memorandum studies the policies of several

20

jurisdictions and discusses whether they might violate Section 1373. It supports a broad reading

21

of Section 1373 and specifically notes that San Franciscoas policy prohibiting City employees

22

from using aCity funds or resources to assist in the enforcement of federal immigration law or to

23
24
25
26
27
28

4

I take judicial notice of Attorney General Sessionsas press conference statements which acan be
accurately and readily determined from sources whose accuracy cannot reasonably be questioned.a
Fed. R. Evid. ASS 201 (b)(2).
5

I take judicial notice of the Horowitz memorandum as a government memorandum that is not
subject to reasonable dispute. Mack v. S. Bay Beer Distribs., Inc., 789 F.2d 1279, 1282 (9th Cir.
1986) (courts may judicially notice records and reports prepared by administrative bodies);
Daniels-Hall, 629 F.3d at 998-999 (courts may judicially notice information contained on official
government websites).
20

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 21 of 49

1

gather or disseminate information regarding the immigration status of individuals . . . unless such

2

assistance is required by federal or State statutea could run afoul of Section 1373 unless San

3

Francisco employees are aware that they are permitted to share immigration status information

4

with ICE. Id. The memo further suggests that policies prohibiting civil detainer requests, even if

5

they do not explicitly restrict sharing of immigration status information, may nevertheless affect

6

ICEas interactions with local officials regarding immigration status requests and therefore raise

7

Section 1373 concerns. Id.

8

United States District Court
Northern District of California

9

In addition to the potential that, under the Order, compliance with Section 1373 requires
compliance with detainer requests, the Order may also directly require states and local

10

governments to honor ICE detainer requests to avoid being designated asanctuary jurisdictions.a

11

While the defunding provision in Section 9(a) seems to define asanctuary jurisdictionsa as those

12

that run afoul of Section 1373, Section 9(b) equates asanctuary jurisdictionsa with aany

13

jurisdiction that ignored or otherwise failed to honor any detainers with respect to [aliens that have

14

committed criminal actions].a This language raises the reasonable concern that a state or local

15

government may be designated a sanctuary jurisdiction, and subject to defunding, if it fails to

16

honor ICE detainer requests. This interpretation is supported by Section 9(a)as broad grant of

17

discretion to the Secretary to designate jurisdictions as asanctuary jurisdictions.a While the Order

18

states that the Secretaryas designation authority must be exercised aconsistent with law,a with the

19

exception of the Order there are no laws regarding asanctuary jurisdictiona designations: Section 9

20

gives the Secretary unlimited discretion.

21

This reading is also supported by Section 9(a)as directive to the Attorney General to take

22

aappropriate enforcement actiona against any jurisdiction that has a policy or practice that

23

ahinders the enforcement of federal law.a While the Order does not outline what policies

24

ahinder[] the enforcement of Federal law,a Attorney General Sessions recently suggested that a

25

local policy that prohibits compliance with detainer requests would constitute a apolicy, or

26

practice that prevents or hinders the enforcement of Federal law.a See Sessions Press Conference

27

at 2 (aUnfortunately, some states and cities have adopted policies designed to frustrate this

28

enforcement of immigration laws. This includes refusing to detain known felons on the federal
21

United States District Court
Northern District of California

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 22 of 49

1

detainer request, or otherwise failing to comply with these laws.a). Given Section 9(b)as language

2

equating asanctuary jurisdictionsa with jurisdictions that fail to honor detainer requests, the

3

Secretaryas unlimited discretion in designating jurisdictions as asanctuary jurisdictions,a and the

4

Orderas instruction that the Attorney General shall take aenforcement actiona against jurisdictions

5

that hinder the enforcement of federal law, which the Attorney General has indicated includes, at a

6

minimum, failure to honor detainer requests, the Order appears to proscribe states and local

7

jurisdictions from adopting policies that refuse to honor detainer requests.

8

Santa Claraas policy, prohibiting local officials from using County funds to transmit

9

information collected in the course of providing critical services or benefits, could be considered a

10

restriction on the intergovernmental exchange of information regarding immigration status in

11

violation of Section 1373. Similar to Santa Clara, San Francisco prohibits the use of City funds or

12

resources ato assist in the enforcement of Federal immigration law.a S.F. Admin. Code ASS 12H.2.

13

Although these policies do not directly prohibit communications with ICE, given the breadth of

14

the Order and the statements of the Attorney General, the Counties have a well-founded fear that

15

the Government may argue that they may sufficiently interfere with those communications in a

16

way that violates Section 1373. Further, the Counties do not honor civil detainer requests. Under

17

a broad reading, these policies may be considered an improper restriction on the intergovernmental

18

exchange of information in violation of Section 1373, falling within Section 9(b)as language that

19

jurisdictions that fail to honor detainer requests are asanctuary jurisdictions.a

20
21
22
23

In short, the Counties are likely to be designated asanctuary jurisdictionsa under their
reasonable interpretation of the Executive Order.
b.

The Government has indicated an intent to enforce the Order
generally and against the Counties more specifically

In assessing whether enforcement action is likely, courts look to the past conduct of the
24
25

government, as well as the governmentas statements and representations, to determine whether
enforcement is likely or simply achimerical.a See Steffel, 415 U.S. at 459 (petitioner that had

26
twice been warned to stop handbilling, and whose companion had been arrested, had well-founded
27

fear of enforcement); Poe, 367 U.S. at 508 (1961) (athe fear of enforcement of provisions that

28
22

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 23 of 49

1

have during so many years gone uniformly and without exception unenforceda was achimericala).

2

A plaintiff does not need to have been specifically threatened with enforcement action to show

3

that enforcement action is likely. See Susan B. Anthony List, 134 S. Ct. at 2345 (plaintiffs

4

demonstrated credible threat of enforcement where the law had previously been enforced against

5

them); American Booksellers, 484 U.S. at 393 (plaintiffs had credible threat of enforcement even

6

though newly enacted law had not become effective and no enforcement action had been brought

7

or threatened under it). However, athe threat of enforcement must at least be acredible,a not

8

simply aimaginary or speculative.a a Thomas v. Anchorage Equal Rights Comman, 220 F.3d 1134,

9

1140 (9th Cir. 2000) (en banc) (citing Babbitt, 442 U.S. at 298).
Although the Government now takes the position that the Order carries no legal force, in

United States District Court
Northern District of California

10
11

its public statements and through its actions it has repeatedly indicated its intent to enforce the

12

Order. The Executive Order was passed on January 27, 2017. Although the defunding provision

13

has not yet been enforced against any jurisdiction, governmental leaders have made numerous

14

statements reaffirming the Governmentas intent to enforce the Order and to use the threat of

15

withholding federal funds as a tool to coerce states and local jurisdictions to change their policies.

16

On February 5, 2017, after signing the Executive Order, President Trump confirmed that he was

17

willing and able to use adefundinga as a aweapona so that sanctuary cities would change their

18

policies. See Harris Decl. Ex. B (Tr. of Feb. 5, 2017 Bill OaReilly Interview with President

19

Donald J. Trump) at 4 (SC Dkt. No. 36-2) (aI donat want to defund anybody. I want to give them

20

the money they need to properly operate as a city or a state. If theyare going to have sanctuary

21

cities, we may have to do that. Certainly that would be a weapon.a).6
Sean Spicer, the White House press secretary, has confirmed that the Government intends

22
23

to enforce the order, stating that the President intended to ensure that acounties and other

24

institutions that remain sanctuary cities donat get federal government funding in compliance with

25
26
6

27
28

I take judicial notice of President Trumpas interview statements as the veracity of these
statements acan be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.a Fed. R. Evid. ASS 201 (b)(2).
23

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 24 of 49

1

the executive order.a Harris Decl. Ex. C at 4-5 (SC Dkt. No. 36-3).7 In the same briefing, Spicer

2

cited favorably the actions of Miami-Dade County Mayor Carlos GimA(c)nez who, one day after the

3

Executive Order, instructed his Interim Director of Corrections to ahonor all immigration detainer

4

requestsa a[i]n light of the Executive Order.a See RJN-1, Ex. C (SF Dkt. No. 29-3).8 Lauding

5

Miami-Dadeas actions, Spicer noted that Miami-Dade aunderstand[s] the importance of this ordera

6

and encouraged other jurisdictions to follow its lead. Harris Decl. Ex. C at 4-5.
Attorney General Sessions recently reaffirmed the Governmentas intent to enforce the

United States District Court
Northern District of California

7
8

defunding provisions, stating that if jurisdictions do not comply with Section 1373, such violations

9

would result in awithholding grants, termination of grants, and disbarment or ineligibility for

10

future grants,a and that the Government would seek to aclaw back any funds awarded to a

11

jurisdiction that willfully violates 1373.a Sessions Press Conference at 2.9 When asked at a

12

subsequent press briefing about this claw back process, Spicer confirmed that the Governmentas

13

apriority is clear, is to get cities into a into compliance and to make sure we understand thereas not

14

just a financial impact of this, but also a very clear security aspect of this.a RJN-3, Ex. C at 15

15

(SF Dkt. No. 74-3).10
The statements of the President, his press secretary and the Attorney General belie the

16
17
18
19

7

I take judicial notice of Spiceras February 8, 2017 press briefing as courts may judicially notice
information contained on official government websites. See Daniels-Hall, 629 F.3d at 998-999.
8

20

I take judicial notice of Mayor GimA(c)nezas memorandum as a government memorandum and
record. See Mack, 789 F.2d at 1282.

21

9

22
23
24
25
26
27

In addition to these statements, the Government began to implement Section 9(b) of the
Executive Order, which is designed to abetter inform the public regarding the public safety threats
associated with sanctuary jurisdictionsa and requires ICE to publish a weekly aDeclined Detainer
Outcome Reporta containing a public list of all acriminal actions committed by aliens and any
jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.a
See RJN-2, Ex. H. (SF Dkt. No. 61-8). Due to concerns that the weekly reports contained
inaccurate information, the Declined Detainer Outcome Report has been atemporarily suspendeda
but aICE remains committed to publishing the most accurate information available regarding
declined detainers across the country.a Declined Detainer Outcome Report, ICE,
https://www.ice.gov/declined-detainer-outcome-report (last visited April 12, 2017). I take judicial
notice of the ICEas Declined Detainer Outcome Reports as courts may judicially notice
information contained on official government websites. See Daniels-Hall, 629 F.3d at 998-999.
10

28

I take judicial notice of Spiceras March 31, 2017 press briefing as courts may judicially notice
information contained on official government websites. See Daniels-Hall, 629 F.3d at 998-999.
24

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 25 of 49

1

Governmentas argument in the briefing that the Order does not change the law. They have

2

repeatedly indicated an intent to defund sanctuary jurisdictions in compliance with the Executive

3

Order. The Countiesa concerns that the Government will enforce the defunding provision are well

4

supported by the Governmentas public statements and actions, all of which are consistent with

5

enforcing the Order.
Finally, in addition to demonstrating that the Government is likely to enforce the Order,

United States District Court
Northern District of California

6
7

the Counties have demonstrated that the Government is particularly likely to target them and the

8

funds on which they rely. In a February 5, 2017 interview, President Trump specifically

9

threatened to defund California, stating: aIam very much opposed to sanctuary cities. They breed

10

crime. Thereas a lot of problems. If we have to weall defund, we give tremendous amounts of

11

money to California . . . California in many ways is out of control.a See Harris Decl. Ex. B. The

12

Counties have established that they both receive large percentages of their federal funding through

13

the State of California, and that they would suffer injury if California was adefunded.a In a recent

14

joint letter to Chief Justice Cantil-Sakauye of the California Supreme Court, Attorney General

15

Sessions and Secretary Kelly again called out the State of California, as well as its cities and

16

counties, for their sanctuary policies: aSome jurisdictions, including the State of California and

17

many of its largest counties and cities, have enacted statutes and ordinances designed to

18

specifically prohibit or hinder ICE from enforcing immigration law by prohibiting communication

19

with ICE, and denying requests by ICE officers and agents to enter prisons and jails to make

20

arrests.a RJN-3, Ex. A (SF Dkt. No. 74-1).11 ICE has identified California, Santa Clara County,

21

and San Francisco as jurisdictions with policies that aRestrict Cooperation with ICEa and has

22

identified Santa Clara County Main Jail and San Francisco County Jail as two of eleven detention

23

centers with the ahighest volume of detainers issueda that ado not comply with detainers on a

24

routine basis.a RJN-3, Ex. B (SF Dkt. No. 74-2).
The President and the Attorney General have also repeatedly held up San Francisco

25
26
27
28

11

I take judicial notice of Attorney General Sessionsas and Secretary Kellyas letter as an official
government document. See Mack, 789 F.2d at 1282.
25

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 26 of 49

1

specifically as an example of how sanctuary policies threaten public safety. In his statements to

2

the press on March 27, 2017, Attorney General Sessions referenced the tragic death of Kate

3

Steinle and noted that her killer aadmitted the only reason he came to San Francisco was because

4

it was a sanctuary city.a Sessions Press Conference at 1. In an op-ed recently published in the

5

San Francisco Chronicle, the Attorney General wrote that aKathryn Steinle might be alive today if

6

she had not lived in a asanctuary citya a and implored aSan Francisco and other cities to re-

7

evaluate these policies.a RJN-3, Ex. D (SF Dkt. No. 74-4).12 These statements indicate not only

8

the belief that San Francisco is a asanctuary jurisdictiona but that its policies are particularly

9

dangerous and in need of change. They also reveal a choice by the Government to hold up San

10

Francisco as an exemplar of a sanctuary jurisdiction.
The Government argues that despite these public statements, San Francisco and Santa

United States District Court
Northern District of California

11
12

Clara cannot demonstrate a credible threat of enforcement because the Government has not

13

actually threatened to enforce the Executive Order against them. It points to Thomas v. Anchorage

14

Equal Rights Commission, in which the Ninth Circuit, sitting en banc, concluded that plaintiffs

15

lacked standing to challenge an Alaska law prohibiting landlords from discriminating against

16

tenants on the basis of their marital status. Thomas, 220 F.3d at 1137. In finding the case was

17

non-justiciable, the court highlighted that a[n]o action has ever been brought against the landlords

18

to enforce the marital status provision.a Id. at 1140. However, this was not the only fact

19

informing the courtas analysis: it also noted that plaintiffs could not point to concrete facts

20

showing that they had ever violated the law or were planning to violate it, it stressed that the

21

enforcement agency tasked with enforcing the Alaska law had never heard of plaintiffs before the

22

case was filed, and it emphasized that in 25-years on the books the law had been minimally

23

enforced (resulting in only two civil enforcement actions and no criminal prosecutions). Id. None

24

of these facts are present here.
The Governmentas specific criticisms of San Francisco, Santa Clara, and California

25
26
27
28

12

I take judicial notice of Attorney General Sessionsas statements in his op-ed as the veracity of
these statements acan be accurately and readily determined from sources whose accuracy cannot
reasonably be questioned.a Fed. R. Evid. ASS 201 (b)(2).
26

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 27 of 49

1

support a well-founded fear that San Francisco and Santa Clara will face enforcement directly

2

under the Executive Order, or could be subject to defunding indirectly through enforcement

3

against California.13 San Francisco and Santa Clara have shown that their current practices and

4

policies are targeted by the Order. They have demonstrated that, in the less-than-three months

5

since the Order was signed, the Government has repeatedly indicated its intent to enforce it. And

6

they have established that the Government has specifically highlighted Santa Clara and San

7

Francisco as jurisdictions with sanctuary policies. On these facts, Santa Clara and San Francisco

8

have demonstrated that the athreat of enforcement [is] credible, not simply imaginary or

9

speculative.a Id. (internal quotation marks omitted).

United States District Court
Northern District of California

10

c.

The Countiesa claims implicate a constitutional interest

11

The Countiesa claims implicate a constitutional interest, the rights of states and local

12

governments to determine their own local policies and enforcement priorities pursuant to the

13

Tenth Amendment. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592,

14

601 (1982) (highlighting that states have a sovereign interest in athe exercise of sovereign power

15

over individuals and entities within the relevant jurisdictionathis involves the power to create and

16

enforce a legal code, both civil and criminala); see also New York v. United States, 505 U.S. 144,

17

157-158 (1992) (a[T]he Tenth Amendment confirms that the power of the Federal Government is

18

subject to limits that may, in a given instance, reserve power to the States.a).
The Counties explain that their sanctuary policies areflect local determinations about the

19
20

best way to promote public health and safety.a SF Mot. at 19 (SF Dkt. No. 21). In contrast to the

21

Orderas assertion that sanctuary jurisdictions are a apublic safety threat[],a the Counties contend

22

that, in their judgment and experience, sanctuary policies make the community safer by fostering

23

trust between residents and local law enforcement. Among other things, this community trust

24

encourages undocumented residents to cooperate with police and report crimes, see Individual

25

Sheriffs and Police Chiefsa Amicus Brief at 3-10 (SF Dkt. No. 59-1); Southern Poverty Law

26
27
28

13

Amicus briefs on behalf of numerous California cities and counties, public school districts and
the State Superintendent of Instruction echo the reasons given by the Counties to demonstrate
standing here.
27

United States District Court
Northern District of California

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 28 of 49

1

Center Amicus Brief at 5 (SF Dkt. No. 38-2) and to obtain preventative medical care and

2

immunizations, which has major implications for public health and works to reduce emergency

3

medical care costs, see Nonprofit Associationsa Amicus Brief at 11(SF Dkt. No. 68-1); SEIU

4

Amicus Brief at 5-6 (SF Dkt. No. 33-1). It also improves schoolsa ability to provide quality

5

education to all children. See State Superintendent of Public Instructionas Amicus Brief at 1-2 (SF

6

Dkt. No. 64-1); Public Schoolsa Amicus Brief at 7 (SF Dkt. No. 58-1).14

7

The Counties have demonstrated that their sanctuary policies reflect their local judgment of

8

what policies and practices are most effective for maintaining public safety and community health.

9

Because they argue that the Executive Order seeks to undermine this judgment by attempting to

10

compel them to change their policies and enforce the Federal governmentas immigration laws in

11

violation of the Tenth Amendment, their claims implicate a constitutional interest. See Virginia ex

12

rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011) (awhen a federal law interferes with

13

a stateas exercise of its sovereign apower to create and enforce a legal codea [] it inflict[s] on the

14

state the requisite injury-in-fact.a); Ohio ex rel. Celebrezze v. U.S. Depat of Transp., 766 F.2d 228,

15

233 (6th Cir. 1985) (Ohio had standing to litigate the constitutionality of its own law where

16

aeffective enforcement of the Ohio statutea was rendered auncertain by the formal position of the

17

[U.S. Department of Transportation] that the Ohio statute is preempteda as athreatened injury to a

18

Stateas enforcement of its safety lawsa constitutes an injury-in-fact).

19
14

20
21
22
23
24
25
26
27
28

The Counties have received support from dozens of Amici, who collectively filed 16 briefs in
support of each motion for preliminary injunction. See, SEIU Amicus Brief (SF Dkt. No. 331)(SF Dkt. No. 59-1); Professors of Constitutional Law Amicus Brief (SF Dkt. No. 36-1) (SC Dkt.
No. 68-1); Southern Poverty Law Center, et al. Amicus Brief (SF Dkt. No. 38-1)(SC Dkt. No. 671); Technology Companies Amicus Brief (SF Dkt. No. 39-1)(SC Dkt. No. 73-1); California Cities
and Counties Amicus Brief (SF Dkt. No. 40)(SC Dkt. No. 74-1); Tahirih Justice Center et al.
Amicus Brief (SF Dkt. No. 41-1)(SC Dkt. No. 76-1); International Municipal Lawyers Amicus
Brief (SF Dkt. No. 47-1); Public Schools Amicus Brief (SF Dkt. No. 58-1)(SC Dkt. No. 77-1);
Individual Sheriffs and Police Chiefs Amicus Brief (SF Dkt. No. 59-1)(SC Dkt. No. 65-1); 34
Cities and Counties Amicus Brief (SF Dkt. No. 62-1)(SC Dkt. No. 61-1); Constitutional Law
Scholars Amicus Brief (SF Dkt. No. 63-1)(SC Dkt. No. 69-1); California Superintendent of Public
Instruction Amicus Brief (SF Dkt. No. 64-1)(SC Dkt. No. 75); State of California Amicus Brief
(SF Dkt. No. 66-1)(SC Dkt. No. 71-1); Anti-Defamation League Amicus Brief (SF Dkt. No. 671)(SC Dkt. No. 72-1); Bay Area Non-Profits (SF Dkt. No. 68-1)(SC Dkt. No. 78-1); SIREN
Amicus Brief (SC Dkt. No. 64-1); see also NAACP Joinder re Southern Poverty Law Amicus
Brief (SF Dkt. No. 69)(SC Dkt. No. 86); Young Womenas Christian Association Joinder re
Motion for Preliminary Injunction (SC Dkt. No. 43-3). I GRANT all of Amicias administrative
motions for leave to file Amicus Briefs.
28

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 29 of 49

1
2

The Counties are threatened with the loss of federal grants and
face a present injury in the form of budgetary uncertainty

The Counties assert that the Order threatens to penalize them for failing to comply with

3

Section 1373 and for failing to honor detainer requests by withholding all federal funds, or at least

4

all federal grants. Section 9(a) does not threaten all federal funding, but it does include all federal

5

grants, which still make up a significant part of the Countiesa budgets. This threatened injury

6

meets Article IIIas standing requirements. A aloss of funds promised under federal law [] satisfies

7

Article IIIas standing requirement.a Organized Village of Kake v. U.S. Depat of Agric., 795 F.3d

8

956, 965 (9th Cir. 2015).

9

United States District Court
Northern District of California

d.

The Counties also explain that the need to mitigate a potential sudden loss of federal funds

10

has thrown their budgeting processes into uproar: they cannot make informed decisions about

11

whether to keep spending federal funds on needed services for which they may not be reimbursed;

12

they are forced to make contingency plans to deal with a potential loss of funds, including placing

13

funds in a budget reserve in lieu of spending that money on needed programs; and the obligation

14

to mitigate potential harm to their residents and drastic cuts to services may ultimately compel

15

them to change their local policies to comply with what they believe to be an unconstitutional

16

Order. The potential loss of all federal grants creates a contingent liability large enough to have

17

real and concrete impacts on the Countiesa ability to budget and plan for the future. As discussed

18

in more detail below, the Counties have demonstrated that they are suffering a present ainjury []

19

inflicted by the mere existence and threatened enforcement of the [Order].a Village of Euclid, 272

20

U.S. at 385. In addition to the threatened loss of funds, this may also establish Article III standing.

21

A sudden loss of grant funding would have another effect. The Counties receive large

22

portions of their federal grants through reimbursement structures a the Counties first spend their

23

own money on particular services and then receive reimbursements from the federal government

24

based on the actual services provided. Marquez Decl. AP 15. Because these funds are spent on an

25

ongoing basis, at all times the Counties are expecting, and relying on, millions of dollars in federal

26

reimbursements for services already provided. A sudden cut to funding, including a cut to these

27

reimbursements, could place them immediately in significant debt. A sudden and unanticipated

28

cut mid-fiscal year would substantially increase the injury to the Counties by forcing them to make
29

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 30 of 49

1

even more drastic cuts to absorb the loss of funds during a truncated period in order to stay on

2

budget. Whitehouse Decl. AP 9.

United States District Court
Northern District of California

3

San Francisco explains that a mid-year loss of only $120 million in federal funding would:

4

require the City to make significant cuts to critical services and would result in reductions in the

5

numbers of first responders, such as police officers, firefighters, and paramedics; require severe

6

cuts to the Cityas MUNI transportation system; threaten the Mayoras program to end chronic

7

veteransa homelessness by 2018; and likely require cuts to social services, such as senior meals,

8

safety net services for low-income children, and domestic violence prevention services.

9

Whitehouse Decl. AP17. Because federal grants support key government services, San Francisco

10

asserts that, without clarity about the funds the Order could withhold or claw back, it will need to

11

allocate millions of dollars to a budget reserve on May 15, 2017 to prepare for the potential loss of

12

significant funds during the 2017 fiscal year. Whitehouse Decl. AP8, 10, 15. Any funds placed in a

13

reserve fund will not be available to fund other City programs and services for the 2017 fiscal

14

year, which would result in a dollar-for-dollar reduction in services the City is able to provide its

15

residents. Id. 13-14.

16

Santa Clara asserts that the current budgetary uncertainty puts it in an auntenable position.a

17

Marquez Decl. AP4. It explains that Santa Claraas budget for the current fiscal year is already in

18

place and was developed based on careful weighing of various factors, including anticipated

19

revenues, specific service needs, salary and benefits for the Countyas 19,000 employees, and the

20

Countyas fiscal priorities. Id. AP12. Because Santa Clara operates federally funded programs on a

21

daily basis, and incurs costs in anticipation that it will be reimbursed, its ability to provide these

22

services depends on the County having some confidence that it will continue to receive the federal

23

reimbursements and funds on which it depends. With the Orderas unclear and broad language

24

threatening a significant cut to funding, the County does not know awhether to (1) continue

25

incurring hundreds of millions of dollars in costs that may never be reimbursed by the federal

26

government, (2) discontinue basic safety-net services delivered to its most vulnerable residents, or

27

(3) in an attempt to avoid either of these outcomes, be effectively conscripted into using local law

28

enforcement and other resources to assist the federal government in its immigration enforcement
30

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 31 of 49

1

United States District Court
Northern District of California

2

efforts.a Id. at 11.
The Government argues that governmental budgeting always suffers from some

3

uncertainty due to fluctuations in cost and tax revenues so any uncertainty caused by the Executive

4

Order does not make aan otherwise certain endeavor [] less certain.a While local budgeting

5

always suffers from some uncertainty, as addressed immediately above, it is the magnitude of the

6

present uncertainty and the fact that the Executive Order places at risk funds on which the

7

Counties could previously rely that is causing them harm. The Government also argues that the

8

Countiesa concerns would not be addressed by enjoining the Executive Order because athe Order

9

does not alter or expand existing law governing the Federal Governmentas discretion to revoke or

10

deny a grant where the grantee violates legal requirements.a As discussed supra in Section I.A.1,

11

I reject this unpersuasive interpretation of the Order.

12

Finally, the Government asserts that budgetary uncertainty is too abstract to meet Article

13

IIIas standing requirements and cites Los Angeles Memorial Coliseum Commission v. National

14

Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). The facts of that case are not analogous to

15

this one. There, the Coliseum Commission alleged that there was a reasonable likelihood that the

16

Raiders were aseriously interesteda in moving to Los Angeles but that they were unlikely to get

17

the necessary votes from the NFL to approve a transfer under the existing rules. The Ninth Circuit

18

concluded that the Commissionas speculative allegations were not sufficient to establish standing

19

to challenge the transfer approval rules. Id. While the Commission alleged it was likely to suffer

20

losses in revenues as a result of the transfer rules, it made no argument that the NFLas rules caused

21

the type of significant budget uncertainty alleged here.

22

The Counties cite Clinton v. City of New York, 524 U.S. 417, 438 (1998), which is on

23

point. There, the Court considered whether the City of New York was injured when President

24

Clinton cancelled a section of the Balanced Budget Act of 1997 that waived the federal

25

governmentas right to recover certain past taxes from New York. Id. at 422. This cancellation

26

meant that the state was again potentially liable for remitting close to $2.6 billion to the

27

Department of Health and Human Services (aHHSa), and would have to wait for a determination

28

from the HHS as to whether it would grant the stateas requests to waive those taxes. Id. The
31

United States District Court
Northern District of California

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 32 of 49

1

Court rejected the governmentas argument that the Cityas injuries were too speculative. It

2

concluded that although there was still a potential that New Yorkas taxes would be waived, the

3

Presidentas cancellation had deprived New York of the benefits of the law, which were akin to the

4

certainty of a favorable final judgment. Id. at 430-31. It reasoned, athe revival of a substantial

5

contingent liability immediately and directly affects the borrowing power, financial strength, and

6

fiscal planning of the potential obligora and constitutes an injury-in-fact. Id. at 430-31.

7

While President Clintonas cancellation in City of New York revived a contingent liability,

8

President Trumpas Executive Order creates a contingent liability, potentially placing hundreds of

9

millions of dollars of the Countiesa federal grants at risk. The Counties have explained the

10

concrete impact this new liability has had in disrupting their ability to budget, make decisions

11

regarding what services to provide, and plan for the future. The potential loss of funds also

12

impacts the Counties potential borrowing power and financial strength a San Francisco notes that

13

it has already received inquiries from credit rating agencies about the Executive Order and its

14

impact on San Franciscoas finances. Rosenfield Decl. AP31. This budget uncertainty is not

15

abstract. It has caused the Counties real and tangible harms. They have adequately demonstrated

16

that budgetary uncertainty of the type threatened by the Executive Order can constitute an injury-

17

in-fact sufficient for Article III standing.

18
19

e.

The Counties meet the requirements for pre-enforcement
standing

In sum, the Counties have established a well-founded fear of enforcement under the
20
Executive Order. They have demonstrated that, under their reasonable interpretation of the Order,
21

their local policies are proscribed by Section 9as language. They have demonstrated that the

22
Government intends to enforce the Order against them specifically. And they have demonstrated
23
24

that their claims against the Order implicate a constitutional interest a their Tenth Amendment
rights to self-governance. The Counties have shown aan intention to engage in a course of

25
conduct arguably affected with a constitutional interest, but proscribed by a statute, and there
26

exists a credible threat of prosecution thereunder.a Babbitt, 442 U.S. at 298. Further, the

27
Counties have demonstrated that the Order threatens to withhold federal grant money and that the
28
32

United States District Court
Northern District of California

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 33 of 49

1

threat of the Order is presently causing the Counties injury in the form of significant budget

2

uncertainty. The Countiesa well-founded fear of enforcement of Section 9(a) is sufficient to

3

demonstrate Article III standing.

4

B.

5

The Government also argues that the Countiesa claims are not justiciable because they are

6

not aprudentially ripe.a In assessing prudential ripeness, a court considers aboth the fitness of the

7

issues for judicial decision and the hardship to the parties of withholding court consideration.a

8

Abbott Labs. v. Gardner, 387 U.S. 136, 149 (9th Cir. 1989). The Supreme Court has called into

9

question athe continuing vitality of the prudential ripeness doctrinea and highlighted that

Ripeness

10

prudential ripeness is distinct from constitutional ripeness. Susan B. Anthony List, 134 S. Ct. at

11

2347 (holding that a claim was justiciable, even though the Court had not yet assessed its

12

prudential ripeness, because awe have already concluded that petitioners have alleged a sufficient

13

Article III injurya). Regardless, the Countiesa claims meet the afitnessa and ahardshipa factors of

14

prudential ripeness.

15

aA claim is fit for decision if the issues raised are primarily legal, do not require further

16

factual development, and the challenged action is final.a Standard Alaska Prod. Co. v. Schaible,

17

874 F.2d 624, 627 (9th Cir. 1989). The Government asserts that the Countiesa claims are not yet

18

fit for review because a[i]mplementation of Section 9 arests upon [several] contingent future

19

eventsaa including clarification of some of its terms a and those terms may ultimately be defined

20

such as to exclude the County or its grants or otherwise to greatly diminish the Orderas

21

aanticipateda impact.a SC Oppo. at 17 (citing Texas v. United States, 523 U.S. 296, 300 (1998)).

22

In Texas v. United States, Texas sought a declaration that a state provision allowing the

23

State Commissioner of Education to appoint a special master to impose sanctions against school

24

districts falling below the stateas accreditation requirements did not violate Section 5 of the Voting

25

Rights Act. 523 U.S. at 299. The Court concluded that this claim was not ripe for review because

26

the relevant statute would only come into play if a school district fell below the stateas standard, if

27

the Commissioner had unsuccessfully attempted to impose a number of other less intrusive

28

measures first, and if the Commissioner then decided a special master was necessary. Id. at 300.
33

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 34 of 49

1

Given the various uncertain future events, and that the state could not identify any school district

2

to which the Commissioner was likely to appoint a special master, the Court concluded that the

3

claim was not yet fit for review. Id.

United States District Court
Northern District of California

4

The Government argues that, because it must still determine what the terms of the Order

5

mean and how it will enforce it, the Countiesa claims are not fit for review, just like the stateas

6

claim in Texas. This argument is not convincing. The acontingent future eventsa the Government

7

identifies are always at issue in a pre-enforcement case; before actual enforcement occurs the

8

enforcing agency must determine what the statute means and to whom it applies. Under the

9

Governmentas line of reasoning, virtually all pre-enforcement cases would be non-justiciable on

10

prudential ripeness grounds. But the possibility that the Government amaya choose to interpret

11

the Orderas broad language narrowly or amaya choose not to enforce it against the Counties does

12

not justify deferring review. This is especially true here because, as the Counties highlight, the

13

uncertainty concerning how the Government will enforce the Order is currently causing them

14

injury. Given the statements of the President and Attorney General, the Counties have every

15

reason to be concerned about budgeting decisions, are struggling to determine whether to continue

16

to provide, or cut services, and are expending time and resources planning for the contingency of

17

losing federal funds. The Counties challenge the Executive Order as written; a decision to enforce

18

it sparingly cannot impact whether it is unconstitutional on its face. The Countiesa claims do not

19

require further factual development, are legal in nature, and are brought against a final Executive

20

Order. They are fit for review.

21

aTo meet the hardship requirement, a litigant must show that withholding review would

22

result in direct and immediate hardship and would entail more than possible financial loss.a

23

Winter v. Cal. Med. Review, Inc., 900 F.2d 1322, 1325 (9th Cir. 1989) (internal quotation marks

24

omitted). The Government argues that the auncertainties surrounding the implementation of

25

Section 9 and the need for afactual developmenta greatly outweigh any ahardshipa to the Count[ies]

26

from awaiting those developments.a SC Oppo. at 17-18. But the auncertaintiesa created by the

27

broad, vague language of the Order, its unconstitutional directives, and the comments of the

28

President and Attorney General about what type of conduct and which jurisdictions it targets are
34

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 35 of 49

1

causing the Counties present harm. Without clarity the Counties do not know whether they should

2

start slashing essential programs or continue to spend millions of dollars and risk a financial crisis

3

in the near future. They are forced to choose abetween taking immediate action to [their]

4

detriment and risking substantial future penalties for non-compliance.a Chamber of Commerce of

5

U.S. v. Reich, 57 F.3d 1099, 1100-01 (D.C. Cir. 1995). Waiting for the Government to decide

6

how it wants to apply the Order would only cause more hardship and would not resolve the legal

7

question at issue: whether Section 9(a) as written is unconstitutional. The Countiesa claims are

8

prudentially ripe.
The Counties have established Article III standing and their claims are justiciable. They

United States District Court
Northern District of California

9
10

have also demonstrated that their claims are prudentially ripe for review.

11

II.

LIKELIHOOD OF SUCCESS ON THE MERITS
The Counties challenge the Executive Order on several constitutional grounds and bear the

12
13

burden of demonstrating a likelihood of success on the merits. The Government presents no

14

defense to these constitutional arguments; it focused on standing and ripeness. I conclude that the

15

Counties have demonstrated likely success on the merits in several ways.

16

A.

17

The Counties argue that the Executive Order is unconstitutional because it seeks to wield

Separation of Powers

18

powers that belong exclusively to Congress, the spending powers. Article I of the Constitution

19

grants Congress the federal spending powers. See U.S. Const. art. I, ASS 8, cl. 1. aIncident to this

20

power, Congress may attach conditions on the receipt of federal funds, and has repeatedly

21

employed the power ato further broad policy objectives by conditioning receipt of federal moneys

22

upon compliance by the recipient with federal statutory and administrative directives.a a South

23

Dakota v. Dole, 483 U.S. 203, 206 (1987) (citing Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)

24

(emphasis added). While the President may veto a Congressional enactment under the

25

Presentment Clause, he must aeither aapprove all the parts of a Bill, or reject it in toto.a a City of

26

New York, 524 U.S. at 438 (quoting 33 Writings of George Washington 96 (J. Fitzpatrick ed.,

27

1940)). He cannot arepeal[] or amend[] parts of duly enacted statuesa after they become law. Id.

28

at 439.
35

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1
2

President. Id. In City of New York, the Supreme Court concluded that the Line Item Veto Act,

3

which sought to grant the President the power to cancel particular direct spending and tax benefit

4

provisions in bills, was unconstitutional as it ran afoul of the a afinely wroughta procedures

5

commanded by the Constitutiona for enacting laws. Id. at 448 (quoting INS v. Chadha, 462 U.S.

6

919, 951 (1983)). While Congress can delegate some discretion to the President to decide how to

7

spend appropriated funds, any delegation and discretion is cabined by these constitutional

8

boundaries.

9

United States District Court
Northern District of California

This is true even if Congress has attempted to expressly delegate such power to the

After a bill becomes law, the President is required to atake Care that the Law be faithfully

10

executed.a See U.S. Const. art. II, ASS 3, cl. 5. Where Congress has failed to give the President

11

discretion in allocating funds, the President has no constitutional authority to withhold such funds

12

and violates his obligation to faithfully execute the laws duly enacted by Congress if he does so.

13

See City of New York, 524 U.S. at 439; U.S. Const. art. I, ASS 8, cl. 1. Further, a[w]hen the President

14

takes measures incompatible with the expressed or implied will of Congress, his power is at its

15

lowest ebb . . .a Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,

16

concurring). Congress has intentionally limited the ability of the President to withhold or

17

aimpounda appropriated funds and has provided that the President may only do so after following

18

particular procedures and after receiving Congressas express permission. See Impoundment

19

Control Act of 1974, 2 U.S.C. ASSASS 683 et seq.

20

The Executive Order runs afoul of these basic and fundamental constitutional structures.

21

The Orderas stated purpose is to aensure that jurisdictions that fail to comply with applicable

22

Federal law do not receive Federal funds, except as mandated by law.a EO ASS2. To effectuate this

23

purpose, the Order directs that athe Attorney General and the Secretary, in their discretion and to

24

the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8

25

U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed

26

necessary for law enforcement purposes by the Attorney General or the Secretary.a EO ASS9(a).

27

Section 9 purports to give the Attorney General and the Secretary the power to place a new

28

condition on federal funds (compliance with Section 1373) not provided for by Congress. But the
36

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 37 of 49

1

President does not have the power to place conditions on federal funds and so cannot delegate this

2

power.

United States District Court
Northern District of California

3

Section 9 is particularly problematic as Congress has repeatedly, and frequently, declined

4

to broadly condition federal funds or grants on compliance with Section 1373 or other federal

5

immigration laws as the Executive Order purports to do. See, e.g., Ending Sanctuary Cities Act of

6

2016, H.R. 6252, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong.

7

(2016); Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016); Stop Sanctuary

8

Policies and Protect Americans Act, S. 2146, 114th Cong. (2016). This puts the Presidentas power

9

aat its lowest ebb.a Youngstown, 343 U.S. at 637. The Orderas attempt to place new conditions on

10

federal funds is an improper attempt to wield Congressas exclusive spending power and is a

11

violation of the Constitutionas separation of powers principles.

12

B.

13

The Counties also argue that, even if the President had the spending power, the Executive

Spending Clause Violations

14

Order would be unconstitutional under the Tenth Amendment as it exceeds those powers. The

15

Counties are likely to succeed on this claim as well.

16

While Congress has significant authority to encourage policy through its spending power,

17

the Supreme Court has articulated a number of limitations to the conditions Congress can place on

18

federal funds. The Executive Order likely violates at least three of these restrictions: (1)

19

conditions must be unambiguous and cannot be imposed after funds have already been accepted;

20

(2) there must be a nexus between the federal funds at issue and the federal programas purpose;

21

and (3) the financial inducement cannot be coercive.

22
23

1.

Unambiguous Requirement

When Congress places conditions on federal funds ait must do so unambiguouslya so that

24

states and local jurisdictions contemplating whether to accept such funds can aexercise their

25

choice knowingly, cognizant of the consequences of their participation.a Dole, 483 U.S. at 203

26

(internal quotation marks omitted). Because states must opt-in to a federal program willingly,

27

fully aware of the associated conditions, Congress cannot implement new conditions after-the-fact.

28

See Natal Fed. of Indep. Bus. v. Sebelius (aNFIBa), 132 S. Ct. 2566, 2602-04 (2012). aThe
37

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 38 of 49

1

legitimacy of Congressas exercise of the spending power thus rests on whether the state

2

voluntarily and knowingly accepts the terms of the contracta at the time Congress offers the

3

money. Id. at 2602.

4
5

with Section 1373. As this condition was not an unambiguous condition that the states and local

6

jurisdictions voluntarily and knowingly accepted at the time Congress appropriated these funds, it

7

cannot be imposed now by the Order. In addition, while the Orderas language refers to all federal

8

grants, the Governmentas lawyers say it only applies to three grants issued through the

9

Departments of Justice and Homeland Security. If the funds at stake are not clear, the Counties

10
11
United States District Court
Northern District of California

The Executive Order purports to retroactively condition all afederal grantsa on compliance

cannot voluntarily and knowingly choose to accept the conditions on those funds.
Finally, as discussed infra in Section II.D., the Orderas vague language does not make

12

clear what conduct it proscribes or give jurisdictions a reasonable opportunity to avoid its

13

penalties. See discussion re vagueness infra Section II.D. The unclear and untimely conditions in

14

the Executive Order fail the aunambiguousa restriction because the Order does not make clear to

15

states and local governments what funds are at issue and what conditions apply to those funds,

16

making it impossible for them to avoluntarily and knowingly accept[] the terms of the contract.a

17

NFIB, 132 S. Ct. at 2602.

18

2.

Nexus Requirement

19

The conditions placed on congressional spending must have some nexus with the purpose

20

of the implicated funds. aCongress may condition grants under the spending power only in ways

21

reasonable related to the purpose of the federal program.a Dole, 483 U.S. at 213. This means that

22

funds conditioned on compliance with Section 1373 must have some nexus to immigration

23

enforcement.

24

The Executive Orderas attempt to condition all federal grants on compliance with Section

25

1373 clearly runs afoul of the nexus requirement: there is no nexus between Section 1373 and

26

most categories of federal funding, including without limitation funding related to Medicare,

27

Medicaid, transportation, child welfare services, immunization and vaccination programs, and

28

emergency preparedness. The Executive Order inverts the nexus requirement, directing the
38

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 39 of 49

1

Attorney General and Secretary to cut off all federal grants to asanctuary jurisdictionsa but giving

2

them discretion to allow asanctuary jurisdictionsa to receive grants adeemed necessary for law

3

enforcement purposes.a EO ASS 9(a). As the subset of grants adeemed necessary for law

4

enforcement purposesa likely includes any federal funds related to immigration enforcement, the

5

Executive Order expressly targets for defunding grants with no nexus to immigration enforcement

6

at all. This is the precise opposite of what the nexus test requires.

7
8

United States District Court
Northern District of California

9

3.

Not Coercive Requirement

Finally, Congress cannot use the spending power in a way that compels local jurisdictions
to adopt certain policies. Congress cannot offer afinancial inducement . . . so coercive as to pass

10

the point at which pressure turns to compulsion.a Dole, 483 U.S. at 211 (internal quotation marks

11

omitted). Legislation that acoerces a State to adopt a federal regulatory system as its owna aruns

12

contrary to our system of federalism.a NFIB, 132 S. Ct. at 2602. States must have a alegitimate

13

choice whether to accept the federal conditions in exchange for federal funds.a Id. at 2602-2603.

14

In NFIB, the Supreme Court concluded that the Affordable Care Actas threat of denying

15

Medicaid funds, which constituted over 10 percent of the Stateas overall budget, was

16

unconstitutionally coercive and represented a agun to the head.a Id. at 2604. The Executive Order

17

threatens to deny sanctuary jurisdictions all federal grants, hundreds of millions of dollars on

18

which the Counties rely. The threat is unconstitutionally coercive.

19

C.

20

The Counties argue that Section 9(a) violates the Tenth Amendment because it attempts to

Tenth Amendment Violations

21

conscript states and local jurisdictions into carrying out federal immigration law. The Counties

22

are likely to succeed on this claim as well.

23

aThe Federal Government may not compel the States to enact or administer a federal

24

regulatory program.a New York, 505 U.S. at 188. aThe Federal Government may neither issue

25

directives requiring the States to address particular problems, nor command the Statesa officers, or

26

those of their political subdivisions, to administer or enforce a federal regulatory program.a Printz

27

v. United States, 521 U.S. 898, 935 (1997). aThat is true whether Congress directly commands a

28

State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.a
39

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1

United States District Court
Northern District of California

2

NFIB, 132 S. Ct. at 2602.
As discussed with regard to the Countiesa standing arguments, the Counties have

3

demonstrated that under their reasonable interpretation, the Order equates asanctuary

4

jurisdictionsa with aany jurisdiction that ignored or otherwise failed to honor any detainersa and

5

therefore places such jurisdictions at risk of losing all federal grants. See EO ASS9(b). The Counties

6

have shown that losing all of their federal grant funding would have significant effects on their

7

ability to provide services to their residents and that they may have no legitimate choice regarding

8

whether to accept the governmentas conditions in exchange for those funds. To the extent the

9

Executive Order seeks to condition all federal grants on honoring civil detainer requests, it is

10

likely unconstitutional under the Tenth Amendment because it seeks to compel the states and local

11

jurisdictions to enforce a federal regulatory program through coercion.

12

Even if the Order does not condition federal grants on honoring detainer requests, it

13

certainly seeks to compel states and local jurisdictions to comply with civil detainers by directing

14

the Attorney General to atake appropriate enforcement action against any entity that violates 8

15

U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the

16

enforcement of Federal law.a EO ASS9(a). Although the Order provides no further clarification on

17

what this aenforcementa might entail or what policies might ahinder[] the enforcement of Federal

18

law,a Attorney General Sessions, who is tasked with implementing this provision, has equated

19

failure to honor civil detainer requests with policies that afrustrate th[e] enforcement of

20

immigration laws.a See Sessions Press Conference at 2. Reading the Order in light of the

21

Attorney Generalas public statements, it threatens aenforcement actiona against any jurisdiction

22

that refuses to comply with detainer requests or otherwise fails to enforce federal immigration law.

23

While this threat of aenforcementa is left vague and unexplained, aenforcementa by its own

24

definition means to acompel[] compliance.a See BLACKaS LAW DICTIONARY 645 (10th ed. 2014)

25

(defining aenforcementa as aThe act or process of compelling compliance with a law, mandate,

26

command, decree, or agreement.a) By seeking to compel states and local jurisdictions to honor

27

civil detainer requests by threatening enforcement action, the Executive Order violates the Tenth

28

Amendmentas provisions against conscription.
40

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 41 of 49

United States District Court
Northern District of California

1

The Supreme Court has repeatedly held that, aThe Federal Government cannot compel the

2

States to enact or administer a federal regulatory program.a New York, 505 U.S. at 188. The

3

Government cannot command them to adopt certain policies, id. at 188, command them to carry

4

out federal programs, Printz, 521 U.S. at 935, or otherwise to acoerce them into adopting a federal

5

regulatory system as their own,a NFIB, 132 S. Ct. at 2602. The Executive Order uses coercive

6

means in an attempt to force states and local jurisdictions to honor civil detainer requests, which

7

are voluntary arequestsa precisely because the federal government cannot command states to

8

comply with them under the Tenth Amendment. The Executive Order attempts to use coercive

9

methods to circumvent the Tenth Amendmentas direct prohibition against conscription. While the

10

federal government may incentivize states to adopt federal programs voluntarily, it cannot use

11

means that are so coercive as to compel their compliance. The Executive Orderas threat to pull all

12

federal grants from jurisdictions that refuse to honor detainer requests or to bring aenforcement

13

actiona against them violates the Tenth Amendmentas prohibitions against commandeering.

14

D.

15

The Counties assert that the Executive Order is unconstitutionally vague in violation of the

Fifth Amendment Void for Vagueness

16

Fifth Amendmentas Due Process Clause. A law is unconstitutionally vague and void under the

17

Fifth Amendment if it fails to make clear what conduct it prohibits and if it fails to lay out clear

18

standards for enforcement. See Gaynard v. City of Rockford, 408 U.S. 104, 108 (1972). To

19

satisfy due process we insist that laws (1) agive the person of ordinary intelligence a reasonable

20

opportunity to know what is prohibited, so that he may act accordinglya and (2) aprovide explicit

21

standards for those who apply them.a Id. The Executive Order does not meet either of these

22

requirements.

23

The Executive Order does not make clear what conduct might subject a state or local

24

jurisdiction to defunding or enforcement action, making it impossible for jurisdictions to

25

determine how to modify their conduct, if at all, to avoid the Orderas penalties. The Order clearly

26

directs the Attorney General and Secretary to ensure that jurisdictions that awillfully refuse to

27

complya with Section 1373, asanctuary jurisdictions,a are not eligible to receive federal grants.

28

The Government repeatedly emphasizes in its briefing that it does not know what it means to
41

United States District Court
Northern District of California

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 42 of 49

1

awillfully refuse to complya with Section 1373. See, SC Oppo. at 11. Past DOJ guidance and

2

various court cases interpreting Section 1373 have not reached consistent conclusions as to what

3

1373 requires. In the face of conflicting guidance, and no clear standard from the Government,

4

jurisdictions do not know how to avoid the Orderas defunding penalty.

5

Further, because the Order does not clearly define asanctuary jurisdictionsa the conduct

6

that will subject a jurisdiction to defunding under the Order is not fully outlined. This is further

7

complicated because the Order gives the Secretary unlimited discretion to make asanctuary

8

jurisdictiona designations. But, at least as of two months ago, the Secretary himself stated that he

9

ado[esnat] have a cluea how to define asanctuary city.a Harris Decl. ex. D (Depat of Homeland

10

Sec., Pool Notes from Secretary Kellyas Trip to San Diego, Feb. 10, 2017) at 3 (SC Dkt. No. 36-

11

4). If the Secretary has unbounded discretion to designate asanctuary jurisdictionsa but has no

12

idea how to define that term, states and local jurisdictions have no hope of deciphering what

13

conduct might result in an unfavorable asanctuary jurisdictiona designation.

14

In addition, the Order directs the Attorney General to take aappropriate enforcement

15

actiona against any jurisdiction that willfully refuses to comply with Section 1373 or otherwise

16

has a policy or practice that ahinders the enforcement of Federal law.a This provision vastly

17

expands the scope of the Order. What does it mean to ahindera the enforcement of federal law?

18

What federal law is at issue: immigration laws? All federal laws? The Order offers no

19

clarification.

20

The Order also fails to provide clear standards to the Secretary and the Attorney General to

21

prevent aarbitrary and discriminatory enforcement.a Id. As discussed above, the Order gives the

22

Secretary discretion to designate jurisdictions as asanctuary jurisdictionsa to the extent consistent

23

with law. But there are no laws, besides the Order, outlining what a sanctuary jurisdiction is,

24

leaving the Secretary with unfettered discretion and the Orderas vague language to make

25

asanctuary jurisdictiona designations. Similarly, the Order directs the Attorney General to take

26

aappropriate enforcement actiona against any jurisdiction that ahinders the enforcement of Federal

27

law.a This expansive, standardless language creates huge potential for arbitrary and

28

discriminatory enforcement, leaving the Attorney General to figure out what aappropriate
42

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 43 of 49

1

enforcement actiona might entail and what policies and practices might ahinder[] the enforcement

2

of Federal law.a This language is aso standardless that it authorizes or encourages seriously

3

discriminatory enforcement.a United States v. Williams, 553 U.S. 285, 304 (2008).

United States District Court
Northern District of California

4

The Order gives the Counties no clear guidance on how to comply with its provisions or

5

what penalties will result from non-compliance. Its standardless guidance and enforcement

6

provisions are also likely to result in arbitrary and discriminatory enforcement. It does not agive

7

the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he

8

may act accordingly.a Gaynard, 408 U.S. at 108. The Counties are likely to succeed in their

9

argument that Section 9(a) is void for vagueness under the Fifth Amendment.

10

E.

11

The Counties assert that the Executive Order fails to provide them with procedural due

Fifth Amendment Procedural Due Process Violations

12

process in violation of the Fifth Amendment. To sustain a valid procedural due process claim a

13

person must demonstrate that he has a legally protectable property interest and that he has suffered

14

or will suffer a deprivation of that property without adequate process. See Thorton v. City of St.

15

Helens, 425 F.3d 1158, 1164 (9th Cir. 2005).

16

To have a legitimate property interest, a person amust have more than a unilateral

17

expectation of it. He must, instead, have a legitimate claim of entitlement to it.a Bd. of Regents v.

18

Roth, 408 U.S. 564, 577 (1972). A state or local government has a legitimate claim of entitlement

19

to congressionally appropriated funds, which are akin to funds owed on a contract. See NFIB, 132

20

S. Ct. at 2602 (aThe legitimacy of Congressa power to legislate under the spending power [] rests

21

on whether the State voluntarily and knowingly accepts the terms of the acontract.a a). The

22

Counties have a legitimate property interest in federal funds that Congress has already

23

appropriated and that the Counties have accepted.

24

The Executive Order purports to make the Counties ineligible to receive these funds

25

through a discretionary and undefined process. The Order directs the Attorney General and

26

Secretary to designate various states and local jurisdictions as asanctuary jurisdictions,a ensure

27

that such jurisdictions are anot eligiblea to receive federal grants, and atake enforcement actiona

28

against them. EO ASS9(a). It does not direct the Attorney General or Secretary to provide
43

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 44 of 49

1

asanctuary jurisdictionsa with any notice of an unfavorable designation or impending cut to

2

funding. And it does not set up any administrative or judicial procedure for states and local

3

jurisdictions to be heard, to challenge enforcement action, or to appeal any action taken against

4

them under the Order. This complete lack of process violates the Fifth Amendmentas due process

5

requirements. Matthew v. Eldridge, 424 U.S. 319, 349 (1976) (aThe essence of due process is the

6

requirement that a person in jeopardy of serious loss be given notice of the case against him and

7

opportunity to meet it.a) (internal alterations and quotations omitted).
The Governmentas only defense of the Orderas lack of process is to claim that Section 9as

8

United States District Court
Northern District of California

9

provision that it be implemented aconsistent with lawa reads in all necessary procedural

10

requirements. Again, the Governmentas attempt to resolve all of the Orderas constitutional

11

infirmities with a aconsistent with lawa bandage is not convincing. There is no dispute that while

12

the Order commands the Secretary to designate certain jurisdictions as ineligible for federal grants

13

and directs the Attorney General to bring an aenforcement actiona against them, it provides no

14

process at all for notifying jurisdictions about such a determination and provides them no

15

opportunity to be heard. The Counties are likely to succeed on their claim that the Order fails to

16

provide adequate due process in violation of the Fifth Amendment.

17

III.

18

IRREPARABLE HARM
The Counties assert that, absent an injunction enjoining Section 9, they are likely to suffer

19

irreparable harm resulting from their current budget uncertainty. Alternatively, they argue that

20

they are suffering a constitutional injury, as the Order improperly seeks to coerce them into

21

changing their policies in violation of the Tenth Amendment. The Counties have adequately

22

demonstrated that they are likely to suffer irreparable harm under both of these theories.

23

A.

24

The Counties allege that they are currently suffering irreparable injury resulting from the

Budgetary Uncertainty

25

substantial uncertainty caused by the Orderas unclear terms and its broad and undefined scope. As

26

discussed above, this uncertainty is causing the Counties present injury sufficient to satisfy Article

27

IIIas standing requirements. See discussion supra Section I.A.2.d.

28

This budget uncertainty is also causing the Counties irreparable harm, and it will continue
44

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 45 of 49

1

to do so absent an injunction. The Orderas uncertainty interferes with the Countiesa ability to

2

budget, plan for the future, and properly serve their residents. Without clarification regarding the

3

Orderas scope or legality, the Counties will be obligated to take steps to mitigate the risk of losing

4

millions of dollars in federal funding, which will include placing funds in reserve and making cuts

5

to services. These mitigating steps will cause the Counties irreparable harm. See United States v.

6

North Carolina, 192 F. Supp. 3d 620, 629 (M.D.N.C. 2016) (there was irreparable harm where the

7

unavailability of funds was alikely to have an immediate impact on [the stateas] ability to provide

8

critical resources to the public, causing damage that would persist regardless of whether funding

9

[was] subsequently reinstateda).

United States District Court
Northern District of California

10

Although Government counsel has represented that the Order will be implemented

11

consistent with law, this assurance is undermined by Section 9(a)as clearly unconstitutional

12

directives. Further, through public statements, the President and Attorney General have appeared

13

to endorse the broadest reading of the Order. Is the Order merely a rhetorical device, as counsel

14

suggested at the hearing, or a aweapona to defund the Counties and those who have implemented a

15

different law enforcement strategy than the Government currently believes is desirable? The

16

result of this schizophrenic approach to the Order is that the Countiesa worst fears are not allayed

17

and the Counties reasonably fear enforcement under the Order.

18

The Orderas broad directive and unclear terms, and the Presidentas and Attorney Generalas

19

endorsement of them, has caused substantial confusion and justified fear among states and local

20

jurisdictions that they will lose all federal grant funding at the very least. The threat of the Order

21

and the uncertainty it is causing impermissibly interferes with the Countiesa ability to operate, to

22

provide key services, to plan for the future, and to budget. The Counties have established that,

23

absent an injunction, they are likely to suffer irreparable harm.

24

B.

25

The Counties also argue that they are likely to suffer irreparable harm because the

26

Executive Order contravenes the separation of powers, conscripts the Counties to carry out federal

27

immigration enforcement policies, and seeks to coerce the Counties into changing their local

28

policies by imposing overwhelming financial penalties without due process. This aconstitutional

Constitutional Injury

45

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 46 of 49

United States District Court
Northern District of California

1

injurya also constitutes irreparable harm.

2

The Ninth Circuit has repeatedly held that athe deprivation of constitutional rights

3

aunquestionably constitutes irreparable injury.a a Melendres v. Arpaio, 695 F.3d 990, 1002 (9th

4

Cir. 2012); Rodriguez v. Robbins, 715 F.3d 1127, 1144-45 (9th Cir. 2013). A plaintiff can suffer a

5

constitutional injury by being forced to comply with an unconstitutional law or else face financial

6

injury or enforcement action. See Am. Trucking Assans, Inc. v. City of Los Angeles, 559 F.3d

7

1046, 1058-59 (9th Cir. 2009) (plaintiffs were injured where they were faced with the choice of

8

signing unconstitutional agreements or facing a loss of customer goodwill and significant

9

business). The Supreme Court has similarly indicated that plaintiffs suffer irreparable injury

10

under such circumstances. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 380-381

11

(1992) (injunctive relief was available where arespondents were faced with a Hobsonas choice:

12

continually violate the Texas law and expose themselves to potentially huge liability; or violate

13

the law once as a test case and suffer the injury of obeying the law during the pendency of the

14

proceedings and any further reviewa). Where an executive action causes constitutional injuries,

15

injunctive relief is appropriate. See Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017)

16

(refusing to stay a preliminary injunction on Executive Order 13769 and reaffirming that a

17

adeprivation of constitutional rights unquestionably constitutes irreparable injurya).

18

The Counties currently must choose either to attempt to comply with the Executive Order,

19

which they have alleged is unconstitutional under the Constitutionas separation of powers

20

structures and violates their Tenth and Fifth Amendment rights, or to defy the Order and risk

21

losing hundreds of millions of dollars in federal grants. By forcing the Counties to make this

22

unreasonable choice, the Order results in a constitutional injury sufficient to establish standing and

23

irreparable harm.

24

The Government argues that while a adeprivation of constitutional rights unquestionably

25

constitutes irreparable injury,a the Counties have not alleged a adeprivationa of their constitutional

26

rights but have instead alleged a violation of the constitutional structures that govern relationships

27

among the branches of the Federal Government. It asserts that there is a distinction between

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violations of personal constitutional rights and violations of structural provisions. See N.Y. State
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Rest. Assan v. N.Y. City Bd. of Health, 545 F. Supp. 2d 363, 367 (S.D.N.Y. 2008) (a[W]hile a

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violation of constitutional rights can constitute per se irreparable harm . . . per se irreparable harm

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is caused only by violations of apersonala constitutional rights . . . to be distinguished from

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provisions of the Constitution that serve astructurala purposes, like the Supremacy Clause.a).
This argument fails for two reasons. First, this distinction between personal and structural

United States District Court
Northern District of California

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constitutional rights is not recognized in the Ninth Circuit. Although the Government cites to

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American Trucking Assans v. City of Los Angeles, 577 F. Supp. 2d 1110, 1127 (C.D. Cal. 2008) for

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the proposition that ain the case of Supremacy Clause violations,a the presumption of irreparable

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harm ais not necessarily warranted,a that case was reversed by the Ninth Circuit. On appeal the

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court concluded that, even where the constitutional injury is structural, athe constitutional

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violation alone, coupled with the damages incurred, can suffice to show irreparable harm.a

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American Trucking, 559 F.3d at 1058. Second, the Counties have alleged a deprivation of their

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personal constitutional rights; they have alleged that the Executive Order is unconstitutionally

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coercive in violation of the Tenth Amendment and fails to provide them with Due Process in

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violation of the Fifth Amendment. The Governmentas challenges to the Countiesa claims of

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constitutional injury are not supported by the facts of this case or the precedent that is binding on

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this court.
The Counties have adequately demonstrated a constitutional injury sufficient to establish a

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likelihood of irreparable harm.

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IV.

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BALANCE OF HARMS AND PUBLIC INTEREST
A party seeking a preliminary injunction must aestablish . . . that the balance of equities

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tips in his favor, and that an injunction is in the public interest.a Winter, 555 U.S. at 20. When the

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federal government is a party, these factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009).

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The Government argues that the balance of harms and the public interest weigh against a

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preliminary injunction because the amost pertinent and concretely expressed public interesta in

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this case is contained in Section 1373, and Section 9 simply seeks to ensure compliance with that

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section. This argument is unconvincing given the Governmentas flawed argument that Section 9

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does not change the law. If Section 9 does not change the law, or if the Government does not
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intend to enforce Section 9as unlawful directives, then it provides the Government with no

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concrete benefit but to highlight the Presidentas enforcement priorities. The President certainly

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has the right to use the bully pulpit to encourage his policies. But Section 9(a) is not simply

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rhetorical. The Counties have a strong interest in avoiding unconstitutional federal enforcement

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and the significant budget uncertainty that has resulted from the Orderas broad and threatening

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language. To the extent the Government wishes to use all lawful means to enforce 8 U.S.C. 1373,

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it does not need Section 9(a) to do so. The confusion caused by Section 9(a)as facially

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unconstitutional directives and its coercive effects weigh heavily against leaving it in place. The

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balance of harms weighs in favor of an injunction.

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V.

The Government argues that, if an injunction is issued, it should be issued only with

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United States District Court
Northern District of California

NATIONWIDE INJUNCTION

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regards to the plaintiffs and should not apply nationwide. But where a law is unconstitutional on

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its face, and not simply in its application to certain plaintiffs, a nationwide injunction is

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appropriate. See Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (a[T]he scope of injunctive

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relief is dictated by the extent of the violation established, not by the geographical extent of the

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plaintiff.a); Washington, 847 F.3d at 1166-67 (affirming nationwide injunction against executive

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travel ban order). The Counties have demonstrated that they are likely to succeed on their claims

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that the Executive Order purports to wield powers exclusive to Congress, and violates the Tenth

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and Fifth Amendments. These constitutional violations are not limited to San Francisco or Santa

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Clara, but apply equally to all states and local jurisdictions. Given the nationwide scope of the

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Order, and its apparent constitutional flaws, a nationwide injunction is appropriate.

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VI.

INJUNCTION AGAINST THE PRESIDENT

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The Government also argues that, if an injunction is issued, it should not issue against the

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President. An injunction against the President personally is an aextraordinary measure not lightly

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to be undertaken.a Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996); see Newdow v. Bush, 391

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F. Supp. 2d 95, 106 (D.D.C. 2005) (a[T]he Supreme Court has sent a clear message that an

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injunction should not be issued against the President for official acts.a). The Counties assert that

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the court ahas discretion to determine whether the constitutional violations in the Executive Order
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may be remedied by an injunction against the named inferior officers, or whether this is an

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extraordinary circumstance where injunctive relief against the President himself is warranted.a

United States District Court
Northern District of California

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I conclude that an injunction against the President is not appropriate. The Counties seek to

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enjoin the Executive Order which directs the Attorney General and the Secretary to carry out the

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provisions of Section 9. The President has no role in implementing Section 9. It is not clear how

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an injunction against the President would remedy the constitutional violations the Counties have

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alleged. On these facts, the extraordinary remedy of enjoining the President himself is not

8

appropriate.

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CONCLUSION

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The Counties have demonstrated that they are likely to succeed on the merits of their

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challenge to Section 9(a) of the Executive Order, that they will suffer irreparable harm absent an

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injunction, and that the balance of harms and public interest weigh in their favor. The Countiesa

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motions for a nationwide preliminary injunction, enjoining enforcement of Section 9(a), are

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GRANTED. The defendants (other than the President) are enjoined from enforcing Section 9(a)

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of the Executive Order against jurisdictions they deem as sanctuary jurisdictions. This injunction

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does not impact the Governmentas ability to use lawful means to enforce existing conditions of

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federal grants or 8 U.S.C. 1373, nor does it restrict the Secretary from developing regulations or

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preparing guidance on designating a jurisdiction as a asanctuary jurisdiction.a

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IT IS SO ORDERED.
Dated: April 25, 2017

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William H. Orrick
United States District Judge

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