Metropolitan News-Enterprise


Thursday, August 2, 2018


Page 1


Ninth Circuit:

Order Defunding Sanctuary Cities Exceeded President’s Authority


By a MetNews Staff Writer



In this 2017 file photo, protesters hold up signs outside a courthouse in San Francisco.


A panel of the Ninth U.S. Circuit Court of Appeals yesterday affirmed the award of summary judgment for San Francisco and Santa Clara in their lawsuit against the Trump Administration, holding that the executive order defunding so-called “sanctuary cities” violated the separation of powers enshrined in the U.S. Constitution.

The City and County of San Francisco and the County of Santa Clara brought the suit against President Donald J. Trump, U.S. Attorney General Jefferson B. Sessions III, other federal officials and the U.S. after Trump issued Executive Order 13,768, §9(a). The order directs administration officials to withhold funding from “jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions).”

Section 1373 bars restricting any government entity or official from communicating with the federal Immigration and Nationalization Service regarding the immigration status of any individual.

San Francisco and Santa Clara argued that the order was an attempt by Trump to exceed the authority granted him by the Constitution. U.S. District Judge William H. Orrick of the Northern District of California agreed and granted the plaintiffs’ summary judgment motion, and ordered a nationwide injunction against the individual defendants—with the exception of the president himself—enforcing §9(a).

In a majority opinion by Chief Circuit Judge Sidney R. Thomas, in which Circuit Judge Ronald M. Gould joined, the panel affirmed the judgment, but vacated the order for a nationwide injunction and remanded the case for further consideration. Circuit Judge Ferdinand F. Fernandez dissented.

Separation of Powers

Central to the opinion is the separation of powers, with Thomas noting”

 “The United States Constitution exclusively grants the power of the purse to Congress, not the President.”

He contrasted this with the president’s lack of authority to “cancel appropriations passed by Congress” except by his veto power.

The administration argued that the plaintiffs lacked standing to bring the suit. Thomas responded:

“Both San Francisco and Santa Clara rely heavily on federal funding, much of which is distributed through the State of California. Both counties have in place policies intended to protect immigrant communities and to encourage community policing measures.”

Thomas noted that loss of federal funding satisfies the constitutional standing requirement, and that the jurisdictions’ policies brought them both under the executive order.

Ripeness Factors

Thomas addressed the administration’s contention that the plaintiff’s claim was not ripe. He applied the factors applied in the 2000 Ninth Circuit opinion in Thomas v. Anchorage Equal Rights Commission, writing:

“In Thomas, we summarized three factors to be used ‘[i]n evaluating the genuineness of a claimed threat of prosecution’: (1) ‘whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in question’; (2) ‘whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings’; and (3) ‘the history of past prosecution or enforcement under the challenged statute.’ ”

The jurist said the plaintiffs’ policies represented concrete plans to violate §1373.

He also looked at the Trump Administration’s statements that the order would “eradicate sanctuary policies by authorizing the wholesale defunding of cities that do not assist the Administration in enforcing its hardline immigration policy.” This and other utterances to the press indicating California as a specific target of those policies, Thomas said, made it clear that the administration meant to target California and its cities, especially San Francisco, fulfilling the second Thomas factor.

“As to the third factor,” Thomas wrote, “DOJ has identified three grants historically conditioned on compliance with §1373, all of which are law enforcement-related: the State Criminal Alien Assistance Program grant; the Edward Byrne Memorial Justice Assistance grant; and the Community Oriented Policing Services grant. Thus, the Counties have shown a ‘history of past prosecution or enforcement’ tied to compliance with 8 U.S.C. § 1373, the statute relied upon as authorization for the Executive Order.”

Analysis of Merits

In analyzing the merits of the case, Thomas applied the statutory interpretation doctrine of “inclusio unius est exclusio alterius”—“the inclusion of one is the exclusion of the other.”

Examining the language of §9(a), he wrote:

“The canon applies here. By specifically excluding grants ‘deemed necessary for law enforcement purposes,’ the Executive Order directs the Attorney General and the Secretary to cut all other grant programs.”

Because those grant programs were made by Congress pursuant to its constitutional spending authority, the president has no authority to cut them, Thomas said.

Nationwide Injunction

In explaining the vacation of the order for a nationwide injunction, Thomas noted that such broad relief may or may not be appropriate, but that nothing on the record supported it.

He pointed out that the plaintiffs had successfully shown that California and its cities were the particular target of the order, and would need to present more evidence if they were to be entitled to such a sweeping injunction. The jurist said:

“While we agree that the district court was correct to enjoin the Administration from enforcing §9(a) against the Counties, the present record is not sufficient to support a nationwide injunction. We therefore vacate the injunction and remand for careful consideration by the district court.”

Fernandez’s Dissent

In his dissent, Fernandez disagreed that the plaintiffs’ claim was ripe, but nonetheless addressed the merits, saying:

“What the Counties argued for and what the district court did was to shunt aside short but clear and extraordinarily important wording in the Executive Order. The introductory sentence of section 9 of the Executive Order merely stated that it was executive branch policy that § 1373 be followed ‘to the fullest extent of the law,’ and lest that be seen as too expansive, the body of section 9(a) directed that any actions taken by the Attorney General or the Secretary were to be taken ‘to the extent consistent with law’ and not otherwise.”

He continued:

“To brush those words aside as implausible, or boilerplate, or even as words that would render the Executive Order meaningless was just to say that the plain language of the Executive Order should be ignored in favor of comments made dehors the order itself, none of which have resulted in the taking of any illegal action pursuant to the order. That is not the proper way to deal with plain language—it is, instead, an attempt to rewrite the Executive Order itself and then to enjoin use of the newly written version.”

The case is San Francisco v. Trump, No. 17-17478.


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