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The Sanctuary City Case

Within days of his inauguration, President Trump signed Executive Order 13768.  Section 9 of that order addressed so-called "sanctuary cities."  The header paragraph and subdivision (a) read (emphasis added):

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 [of Homeland Security], 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 of Federal law.
This section has been challenged in court as illegal and unconstitutional.

If it occurs to you that a direction from the chief executive to his subordinates that is expressly limited by its terms to actions "consistent with law" cannot possibly be illegal, congratulations, you understand law better than a federal district judge.

The statute referred to in the order, 8 U.S.C. § 1373, forbids government entities from stopping their employees from exchanging information with immigration authorities.  That's it.  It does not "commandeer" local resources for immigration purposes.  It does not require county sheriffs to keep people in jail longer than the state criminal process requires in order to hold them for the immigration authorities.  It only says the county board can't stop the sheriff's deputy from tipping the immigration authorities that, e.g., a rapist who is illegally in this country is about to be released from county jail.

That section was enacted as part of Public Law 104-208, and when the President signed it he said, "This bill is good for America.... [It] includes landmark immigration reform legislation that cracks down on illegal immigration without punishing legal immigrants."

Should we vigorously denounce President Trump for signing and praising such a bill.  Nope, it wasn't him.  Oh, well, it must have been that rascal George W. Bush.  Nope.  Guess again.  It was President Bill Clinton.

One of the federal grant programs for law enforcement is the Edward Byrne Memorial Justice Assistance Grant.  The law that authorizes the grants requires the receiving jurisdictions to certify that they are in compliance with all applicable federal laws.  (See 42 U.S.C. § 3752(a)(5)(D).)  The Department of Justice has determined that this includes § 1373.  Aha!  That's the sinister hand of Jeff Sessions at work!  Um, no, that was Loretta Lynch's Justice Department.

So we know that there are laws on the books already interpreted by the prior administration to require compliance with section 1373 as a condition of some grants.  We also know that executive officers do not always enforce laws to the hilt.  Can't the chief executive direct his subordinates to enforce a particular law to the hilt, but not beyond the hilt?  Of course he can.

Judge Orrick notes in his order, "The Government's primary defense is that the Order does not change the law, but merely directs the Attorney General and Secretary to enforce existing law."  That is obviously correct.  First, an executive order cannot override a statute, and second, the order by its terms is limited to actions consistent with law.  Judge Orrick tries to get around this with the following very weird paragraph:

The Government attempts to read out all of Section 9(a)'s unconstitutional directives to render it an ominous, misleading, and ultimately toothless threat. It urges that Section 9(a) can be saved by reading the defunding provision narrowly and "consistent with law," so that all it does is direct the Attorney General and Secretary to enforce existing grant conditions. But this interpretation is in conflict with the Order's express language and is plainly not what the Order says. The defunding provision is entirely inconsistent with law in its stated purpose and directives because it instructs the Attorney General and the Secretary to do something that only Congress has the authority to do-place new conditions on federal funds. If Section 9(a) does not direct the Attorney General and Secretary to place new conditions on federal funds then it only authorizes them to do something they already have the power to do, enforce existing grant requirements.  Effectively, the Government argues that Section 9(a) is "valid" and does not raise constitutional issues as long as it does nothing at all. But a construction so narrow that it renders a legal action legally meaningless cannot possibly be reasonable and is clearly inconsistent with the Order's broad intent.
How many ways is this wrong?  Let's start at the end.  A superior officer's direction to his subordinates to do something that they have the authority to do but also the discretion not to do or that has in practice not always been done is not "legally meaningless." 

Second, grant conditions authorized by law are not necessarily limited to those which have been enforced up to this time.  Section 1373 has been on the books for over 20 years, and Byrne grants have been around longer than that, but it was only fairly recently that DoJ interpreted the Byrne statute to require § 1373 compliance as a condition of eligibility for the grants.  DoJ has also identified two other programs with similar conditions.  Might there be others lurking somewhere in the vast codes governing federal programs?  Quite possibly.  The order directs DoJ and Homeland Security to impose those conditions where the law allows, not only where those conditions have been imposed for past grants.  That is not "toothless."  It is not "misleading."  It is not limited to "enforc[ing] existing grant conditions."

Note that the order does not make any immediate changes.  It does not designate particular cities as sanctuary cities.  It does not say which grants may be withheld.  It only directs the cabinet officers to take actions which, again, are expressly limited to actions consistent with law.  So how can any particular city claim that it has been harmed before these officers have taken any action to deny any grant to any city?  Doesn't it make more sense to wait and see which grants they deny?  If the denials are "consistent with law" then the order is legal as so applied, and if the denials are not "consistent with law" then they were not authorized by the order, so the problem lies with the particular application of the order and not the order on its face. 

With a concrete controversy of a particular grant being withheld because of a particular city's "sanctuary" policy, a court would be in a better position to determine whether the withholding actually is "consistent with law," wouldn't it?  If you get that, then congratulations, you understand the Supreme Court's doctrine of "ripeness" better than a federal district judge.

The injunction against any enforcement of Section 9(a) is improper.  If the Ninth Circuit does not reverse it, the Supreme Court should take it up.

The comment thread is open for on-topic comments.  The topic is Section 9(a) of Executive Order 13768 and Judge Orrick's decision on that section.


If 9(a) doesn't alter preexisting law and/or procedure (regarding 1373), why was it issued?

Note 1 to my former colleagues at DOJ: Copy the post above and paste it into your Ninth Circuit brief. If the Ninth Circuit pulls its usual stunt, paste it into your Supreme Court brief.

Note 2 to my former colleagues: If there is some reason Kent Scheidegger is not in the Solicitor General's Office, please drop me a line to explain why.

I think I found the answer to my question,especially in the last two paragraphs:


I thought the two paragraphs of the original post after the block quote from the opinion answered that question. Perhaps others can chime in as to whether I was unclear.

Even so, Blackman makes some interesting points, and I thank you for posting the link. In the few paragraphs just above the ones you mention, he notes the drastically different approach of courts toward out-of-court statements by the President depending on which President is in office.

In another time, when the President misled the American people about his signature achievement, courts were praised for ignoring his actual words, and were celebrated for bending over backwards to rewrite statutes in order to save their constitutionality. Today, courts, as part of the resistance, go out of their way to reach difficult constitutional questions of first impression, give executive orders the most uncharitable construction possible, and take fairly opaque statements by the executive branch to contradict official representations by the Justice Department. My how things change.

That "other time" was just a few years ago.

If (as you, Blackman, and I appear to agree?) 9(a) doesn't do anything with respect to 1373, it does (as Alison Frankel notes in the linked article) put the Trump DOJ in a difficult position -- a dilemma that, perhaps, the Obama DOJ didn't have to confront. As a former DOJ official, Bill's opinion on this issue would be insightful.


I do not agree that 9(a) "doesn't do anything."

I do not believe that any rational, intelligent person could read the two paragraphs of the OP I mentioned earlier and conclude that I was saying that 9(a) "doesn't do anything."

I should have stated (as I did in my initial comment) that it doesn't alter preexisting law. That's what I was referring to by using the phrase "doesn't do anything."

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