Judge William Orrick issued an injunction blocking enforcement of Trump’s sanctuary cities executive order. Following proposals to shut down the government over federal payments to sanctuary cities, what can cities expect to happen in the near future?

A federal district court has 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 court was asked to accept two very different interpretations of what this EO means to determine whether it had jurisdiction to hear this case. The most important dispute between the parties is how much federal funding is on the line. Judge William Orrick sided with the interpretation made by the cities of Santa Clara and San Francisco, accusing the Department of Justice (DOJ) of trying to “read out all of Section 9(a)’s unconstitutional directives to render it an ominous, misleading and ultimately toothless threat.”

Section 9 of the EO says that jurisdictions that refuse to comply with U.S.C. 8 § 1373 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).

According to DOJ, the EO only applies to three federal grants (SCAAP, JAG and COPS) which Congress has conditioned on complying with Section 1373. 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 U.S.C. 8 § 1373 to the extent legally possible under the terms of existing law.”

Santa Clara and San Francisco argued that the EO as written purports to take away all federal grant funding from sanctuary jurisdictions. And statements by the 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 ICE detainers violates the Fourth Amendment.

After determining it had jurisdiction to hear this case, the court concluded that Santa Clara and San Francisco are likely to succeed on the merits of a number of constitutional challenges. Here are three constitutional problems the court identified:

Separation of powers

Congress, not the president, is able to attach conditions to federal funds. As the court stated, “Congress has repeatedly, and frequently, declined to broadly condition federal funds or grants on compliance with Section 1373 or other federal immigration laws as the executive order purports to do.”

Spending Clause

Even assuming the president has spending power to condition the receipt of federal funding, the EO would likely be unconstitutional under the Tenth Amendment. The Supreme Court has limited the conditions Congress can place on federal funds. As this applies 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, and it would be “coercive” to deny sanctuary jurisdictions all federal funding.

Tenth Amendment

To the extent the EO requires honoring civil ICE detainers, the court stated “it is likely unconstitutional under the Tenth Amendment because it seeks to compel the states and local jurisdictions to enforce a federal regulatory program through coercion.”

The practical effect of this decision is that, at least for now, the only federal money that can be taken away from sanctuary jurisdictions is federal grants conditioned by Congress on compliance with U.S.C. 8 § 1373 (a category which DOJ claims includes only three grants).

This decision isn’t a ruling on the merits — it is only a preliminary determination that the EO is likely unconstitutional. Via Twitter, President Donald Trump has stated, “See you in the Supreme Court.” Before that happens, this ruling will likely be appealed to the Ninth Circuit.

About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.

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