By Lisa Soronen, executive director, State and Local Legal Center   

In April 2017, a federal district court issued a nationwide preliminary injunction preventing the Trump administration from enforcing the sanctuary jurisdictions portion of the Enhancing Public Safety in the Interior of the United States executive order (EO). The same court has made that injunction permanent.  

Section 9 of the EO says that jurisdictions that refuse to comply with federal statute 8 U.S.C. 1373 (outlining communication between government agencies and the Immigration and Naturalization Service) are ineligible to receive federal grants. On its face, Section 1373 prohibits local governments from restricting employee communication of immigration status information to Immigration and Customs Enforcement (ICE).

Santa Clara County, California, and San Francisco, California, argued that the EO as written purports to take away all federal grant funding from so-called sanctuary jurisdictions that don’t comply with 8 U.S.C. 1373. And statements by the California attorney general indicate that compliance with Section 1373 may require cities and counties to honor voluntary ICE detainers. Numerous courts have held that complying with warrantless civil U.S. Immigration and Customs Enforcement (ICE) detainers violates the Fourth Amendment.

According to the Department of Justice (DOJ), the EO only applies to three federal grants (SCPP, JAG, and COPS), which Congress has conditioned on complying with Section 1373. In the preliminary injunction, the court called this interpretation “toothless” pointing out “the [federal] Government can already enforce these three grants by the terms of those grants and can enforce 8 U.S.C. 1373 to the extent legally possible under the terms of existing law.”

Assuming the EO implicates all federal funds, the court accepted these legal arguments, among others, made by Santa Clara County and San Francisco:

• Separation of powers. “The president does not have the power to place conditions on federal funds and, obviously, cannot delegate this power. But that is what Section 9(a) purports to do, to give the attorney general and the secretary the power to place a new condition on federal funds (compliance with Section 1373) not authorized by Congress.”
• Spending Clause. Even assuming the president has the spending power to condition the receipt of federal funding, the EO is unconstitutional under the Tenth Amendment. The Supreme Court has limited the conditions Congress can place on federal funds. As applicable to the EO, all federal grants are not “unambiguously” conditioned on compliance with Section 1373; there is no nexus between Section 1373 and most categories of federal funding that cities and counties receive, and it would be “coercive” to deny sanctuary jurisdictions all federal funding.
• Tenth Amendment. “By seeking to compel states and local jurisdictions to honor civil detainer requests by threatening enforcement action, the Executive Order violates the Tenth Amendment’s provisions against conscription.”  

San Francisco argues that it complies with 8 U.S.C. 1373, and it challenges conditions that DOJ added in August to receive Edward Byrne Memorial Justice Assistance Grants Program (Byrne JAG) funds. According to the judge, these issues will be decided in a separate legal opinion.  

The Trump administration appealed the issuance of the temporary injunction to the Ninth Circuit, which has yet to rule; it may appeal the permanent injunction ruling as well.