City Attorney Dennis Herrera seeks nationwide preliminary injunction, saying Trump’s order is a ‘budgetary sword of Damocles’ threatening $2 billion in S.F. funding

SAN FRANCISCO (March 8, 2017) — City Attorney Dennis Herrera today asked a federal judge to halt enforcement nationwide of President Donald Trump’s executive order denying federal funding to “sanctuary jurisdictions,” saying the order not only violated the Constitution but also undermined bedrock democratic principles.

According to the motion for a preliminary injunction filed today in U.S. District Court in the Northern District of California, Trump’s executive order ignores the separation of powers in our country, grants the president authority he is not entitled to under the Constitution, and tramples on state sovereignty.

“With a stroke of his pen, President Trump is trying to seize the spending power that our Constitution entrusts to Congress,” Herrera said. “Then he’s using it as a weapon to illegally bully cities and counties across this country, potentially threatening funding for things like meals and medical care for seniors and low-income families. These entitlement programs are not the president’s to take away from those in need, and San Francisco is not one to back down from a bully.”

Herrera is seeking a preliminary injunction — a court order that maintains the status quo as a legal case plays out — that would prohibit Trump and his administration from denying federal funding to cities and counties across the country that they deem to be “sanctuary jurisdictions.” Today’s motion also seeks a court ruling stating that San Francisco’s sanctuary laws comply with federal law and preventing the Trump administration from declaring the city ineligible for federal funds.

The move comes after San Francisco on Jan. 31, 2017 became the first city in the country to sue President Trump over his unconstitutional sanctuary executive order. Santa Clara County and two Massachusetts cities, Lawrence and Chelsea, followed.

Of the $1.2 billion in federal funds that San Francisco receives for its annual operating budget, 92 percent goes to entitlement programs like Medicare, Medicaid, Temporary Assistance to Needy Families, and Supplemental Nutrition Assistance Programs, the city’s legal filing notes. San Francisco also receives an additional $800 million in multi-year grants, the vast majority of which fund capital projects like building bridges and public transportation that create jobs.

“A responsible city government is one that plans for all contingencies, both positive and negative,” said Mayor Edwin M. Lee. “In the weeks ahead, San Francisco needs to make critical budget decisions that will directly impact the health, safety and well-being of our residents. We deserve a timely resolution to this issue that will end this uncertainty, so that we can develop plans that will keep our residents safe and deliver the services they need.”

Federal funds have not been withheld yet, but most of San Francisco’s federal funds are provided on a reimbursement basis, meaning the city first spends its own money and then is repaid.

“The consequences of this presidential fiat are potentially catastrophic,” Herrera said. “This executive order is unconstitutional and should be invalidated by the courts, but in the meantime, the city is under a cloud of uncertainty and a budgetary sword of Damocles. This court action is designed to protect our residents and provide financial clarity.”

Fundamental budget decisions are looming. The mayor must make key budget decisions by May 15 and submit a balanced budget to the Board of Supervisors by June 1. In the months since the executive order was issued, San Francisco has moved closer to these deadlines with no clarification from the Trump administration on how or when the order will be applied. San Francisco needs clarity now.

Unless there is clarification from the administration or an order from the court, San Francisco will be forced to create a budget reserve to help compensate for a potential loss in federal funding.

Money placed in reserve will not be available for other purposes until the fiscal year is over, meaning it cannot be used for San Francisco to fund other budget priorities, such as reducing homelessness through family shelter expansions, youth housing subsidies and a resource center.

There is a reason more than 400 cities and counties across this country — including nearly every major city — have sanctuary policies. Sanctuary counties have less crime, fewer people in poverty and lower unemployment than other counties, according to a recent study by Tom K. Wong, an associate professor of political science at the University of California, San Diego, released by the Center for American Progress. Sanctuary policies encourage undocumented immigrants who are the victims or witnesses of crimes to report them so that cities can investigate and prosecute, getting violent criminals off the street.

These policies also encourage immigrants to send their children to school and go to public health clinics, which makes the entire community more prosperous and healthy. Some think that sanctuary city policies protect criminals, but that is incorrect. If the federal government has a criminal warrant, San Francisco honors that.

San Francisco’s laws are designed to increase public safety and be fully consistent with federal law. They leave immigration matters where they belong — in the hands of federal officials, not local law enforcement.

“We are a nation of immigrants,” Herrera said. “We also can’t ignore the fact that for decades our federal government turned a blind eye to many people entering our country without documentation, often to work jobs others didn’t want. These folks are hard-working and are fighting for the American dream. They’ve built families and lives here. These are our neighbors, our co-workers, our classmates. Trump’s broad effort to target, persecute, and divest immigrants and the cities that stand by them is un-American and cruel.”

The fiscal coercion Trump is attempting violates the Constitution in three different ways, according to Herrera’s filing today. It purports to assert legislative power that the Constitution vests exclusively in Congress, exercises that spending power in ways that even Congress may not, and commandeers local jurisdictions, violating the Tenth Amendment by requiring them to comply with Immigration and Customs Enforcement detainer requests. Compliance with those requests is voluntary and is not required under federal law. Complying with a detainer request keeps a person incarcerated after they’ve been legally cleared for release. Courts have ruled that detaining people after they would otherwise have been released is unconstitutional.

“Of course we must protect our country from the problems associated with unregulated immigration,” Florida Circuit Court Judge Milton Hirsch wrote in a recent ruling reversing Miami’s decision to comply with Trump’s executive order. “We must protect our country from a great many things; but from nothing so much as from the loss of our historic rights and liberties.”

The case is: City and County of San Francisco v. Donald J. Trump, et al., U.S. District Court for the Northern District of California Case No. 3:17-cv-00485, filed Jan. 31, 2017. Additional documentation from the case is available on the City Attorney’s website at: https://www.sfcityattorney.org.

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