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AG Sessions Clarifies Grant Limitations on Sanctuary Cities

A little less than a month ago, I discussed the preliminary injunction issued by the federal district court in San Francisco regarding the section of President Trump's Executive Order 13768 that deals with so-called sanctuary cities and federal grants.  Judge Orrick badly misconstrued the order for the evident purpose of striking it down, and he refused to accept the reasonable interpretation that was offered by counsel for the government and was entirely consistent with the text.

I have been working on an amicus brief arguing for reversal of this ill-considered injunction and wondering what was taking the government so long to file its notice of appeal.  This afternoon I got the answer.

Attorney General Sessions has issued a memorandum on the implementation of the defunding provision of the Executive Order.  The memorandum clarifies several important points:

  • The provision applies only to grants administered by the Departments of Justice and Homeland Security.  Grants for health care, education, and other purposes from other departments are not affected.
  • A "sanctuary jurisdiction" for the purpose of the defunding provision (§9(a)) is one that "willfully refuse[s] to comply with 8 U.S.C. 1373."  That statute forbids a jurisdiction to prohibit information sharing regarding immigration status.  It has nothing to do with policies against honoring ICE detainers.
  • Conditions of §1373 compliance will only be placed on future grants when a statute authorizes DoJ or DHS to do so.  The Executive Order does not and does not purport to authorize the executive branch to impose new conditions not authoritized by statute.
  • Grants previously issued without §1373 compliance conditions are not going to be clawed back.
Most of this was clear enough at the time the injunction was issued, but the issuance of an official document to this effect further undercuts Judge Orrick's already shaky order.
The Government has filed a motion for leave to file a motion to reconsideration of the court's order.  (Yes, they have to ask permission to ask.) 

A motion to reconsider stays the time to appeal, but a request for leave to file one does not.  So the Government has asked Judge Orrick to decide the leave motion within the time to appeal, which is tomorrow.  Good luck with that.  Update (5/23):  Well, Judge Orrick actually did grant leave to file at 5:01 p.m. 

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