The Volokh Conspiracy
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Earlier today, federal district court Judge William Orrick issued a ruling blocking enforcement of President Trump's executive order seeking to cut federal funding to "sanctuary cities"—jurisdictions that refuse to help the federal government apprehend and deport undocumented immigrants. The order seeks to deny federal grants to sanctuary cities, especially those that do not comply with 8 U.S.C. Section 1373, which forbids states and localities from ordering their officials to refuse to turn over information about the immigration status of individuals within their jurisdiction. The counties of San Francisco and Santa Clara filed lawsuits challenging the order's constitutionality, and today's decision addresses their claims.
Judge Orrick's ruling concludes that the order violates the Constitution because it undermines both federalism and separation of powers. It follows nearly the same reasoning I laid out in my post criticizing the order when Trump first issued it.
With respect to separation of powers, the court emphasizes that only Congress can impose conditions on federal funds. The the president cannot do so on his own:
Where Congress has failed to give the President discretion in allocating funds, the President has no constitutional authority to withhold such funds and violates his obligation to faithfully execute the laws duly enacted by Congress if he does so….
Section 9 purports to give the Attorney General and the Secretary the power to place a new condition on federal funds (compliance with Section 1373) not provided for by Congress. But the President does not have the power to place conditions on federal funds and so cannot delegate this power.
In this case, none of the federal grants given to sanctuary cities were conditioned by Congress on compliance with Section 1373 or any other form of cooperation with federal efforts to deport undocumented immigrants. The president cannot impose such conditions on his own.
In addition, the order undermines constitutional federalism because it violates longstanding constitutional constraints that limit conditions imposed on federal grants to state governments even when those conditions are authorized by Congress:
While Congress has significant authority to encourage [state] policy through its spending power, the Supreme Court has articulated a number of limitations to the conditions Congress can place on federal funds. The Executive Order likely violates at least three of these restrictions: (1) conditions must be unambiguous and cannot be imposed after funds have already been accepted; (2) there must be a nexus between the federal funds at issue and the federal program's purpose; and (3) the financial inducement cannot be coercive….
The Executive Order purports to retroactively condition all "federal grants" on compliance with Section 1373. As this condition was not an unambiguous condition that the states and local jurisdictions voluntarily and knowingly accepted at the time Congress appropriated these funds, it cannot be imposed now by the Order.
Later in the opinion, Judge Orrick explains why many of the grants that might be withheld by the order lack a sufficient "nexus" with immigration enforcement (for example, a variety of grants with no connection to law enforcement or immigration). He also explains that if the administration withholds the full range of grants potentially covered by the order and referenced in statements by administration officials, such withholding would be "coercive" under NFIB v. Sebelius (2012), the ruling striking down the Obamacare Medicaid expansion. I discussed this issue in greater detail here.
The opinion also concludes that the executive order likely constitutes unconstitutional "commandeering" because it coerces state and local governments to enforce federal law, in violation of several Supreme Court precedents under the Tenth Amendment. Ironically, those precedents were strongly supported by conservatives (one of the most important was authored by Justice Antonin Scalia) and—at the time—much-criticized by liberals. Some defenders of the Trump order have argued that there is no commandeering problem here because the anti-commandeering principle does not apply to federal efforts to compel disclosure of information. I criticized this argument here.
Judge Orrick further concludes that the executive order is likely unconstitutional because it is "void for vagueness" (it is unclear about exactly what funds are covered by it) and because it violates the affected jurisdictions' rights to procedural due process under the Fifth Amendment.
Interestingly, as the opinion explains, the federal government's lawyers barely even contested most of the plaintiffs' federalism and separation of powers arguments. Instead, they argued that the order should be upheld based on an implausibly narrow interpretation of its scope, under which it would only seek to enforce conditions previously mandated by Congress and otherwise ensure compliance with preexisting federal law in ways that were previously authorized. As Judge Orrick carefully explains, this theory contradicts the plain text of the order, and also numerous statements by administration officials explaining its purpose, including some by Attorney General Jeff Sessions:
While the Government urges that the Order "does not purport to give the Secretary [of Homeland Security] or Attorney General the unilateral authority" to impose new conditions on federal grants, that is exactly what the Order purports to do. It directs the Attorney General and the Secretary to ensure that "sanctuary jurisdictions" are "not eligible to receive" federal grants…
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.
For reasons I explained in previous posts on this issue, today's ruling is an important victory for both federalism and separation of powers. If the president could impose new conditions on federal grants after the fact, he would have a powerful club with which to coerce states and localities on a wide range of issues. Some conservative Republicans may not like the outcome of this specific case. But they will have reason to celebrate it the next time a liberal Democratic president tries a similar move.
Technically, this ruling is not a final decision on the merits, but only a ruling granting a preliminary injunction blocking enforcement of the order. But Judge Orrick leaves little doubt which way the final decision is likely to go.
Both today's ruling and any final decision might well be appealed. But it will be an uphill struggle for the Trump administration, as even its own lawyers seem to recognize, given their desperate attempt to save the order by giving it an implausibly narrow interpretation.
UPDATE: It is perhaps worth noting that Judge Orrick's decision mentions a July 2016 Obama administration justice department letter indicating that 8 USC Section 1373 is an "applicable federal law" that recipients of two small law enforcement grant programs must comply with, and elsewhere indicated that it is a condition of a third law enforcement grant program. At a hearing before the district court, administration lawyers argued that the Trump executive order only applies to these three grants. For reasons explained by Judge Orrick, that is an implausible interpretation of the order. Moreoever, none of the authorizing statutes for these three grants actually states that recipients are required to comply with Section 1373. A letter from the Obama Justice Department can no more impose new spending conditions after the fact than Trump's executive order can. Only Congress can impose conditions. See here (Edward Byrne Memorial Justice Assistance Grant Program), here (State Criminal Alien Assistance Grant Program), and here (COPS program), for the relevant authorizing statutes, none of which reference Section 1373 as a condition.
UPDATE #2: Michael Greve comments on the decision and my post here. I addressed his arguments in this follow-up post, which responds to others who made similar points. As I explain there, the ultranarrow interpretation of Trump's executive order that Greve relies on is implausible and would render it meaningless. Judge Orrick quite properly rejected it and stuck to what the order actually says in its text.