Yesterday, a federal judge in San Francisco blocked President Trump’s executive order on “sanctuary cities” because it undermines federalism and the separation of powers. (Read the 49-page opinion.) So this is just the latest example of an executive action whose policy reach exceeds the president’s constitutional grasp, right? Or, as the White House argued, it’s judicial activism, with plaintiffs shopping for friendly judges who will stymie this president?
Well, not so fast. While a broad reading of the executive order—one that purports to give sweeping authority to withhold and even “claw back” funds of all sorts from states and cities that don’t comply with federal bidding—is indeed a constitutional dead letter (for reasons Ilya Somin explains), that’s not how the executive branch itself has understood or implemented the order.
The Justice Department’s lawyers themselves had explained that neither San Francisco nor Santa Clara, the municipal plaintiffs here, faced any sort of enforcement action, and I haven’t been able to find evidence that any federal funds anywhere in the country have been threatened. That could be because federal officials are still crossing their Ts and dotting their Is as they prepare to freeze and reverse transfers, but the more likely scenario is that this is all just one more episode of Trumpian signaling or, as the court narrated, using a “‘bully pulpit’ to highlight a changed approach to immigration enforcement” in the future.
This Just Tells Officials to Enforce Existing Rules
Let me explain. The relevant part of the January 25 executive order, section 9(a), reads as follows: “In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”
In turn, Section 1373 provides that state and local governments “may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”
In other words, the executive order directs the relevant officials to make sure that recipients of federal funds fully comply with the immigration-enforcement strings attached to their funding, most notably by not preventing their agents from communicating with federal authorities. It doesn’t create any new law or regulation and indeed cautions the executive subordinates to stay within existing legal bounds.
As Judge William Orrick himself wrote, “this injunction does nothing more than implement the effect of the Government’s flawed interpretation of the Order. It does not affect the ability of the Attorney General or the Secretary to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does it impact the Secretary’s ability to develop regulations or other guidance defining what a sanctuary jurisdiction is or designating a jurisdiction as such. It does prohibit the Government from exercising Section 9(a) in a way that violates the Constitution.”
So the court is still allowing the administration to proceed with the executive order but directing it to stay within existing constitutional bounds—which it didn’t claim to be pushing!
This Is Basically Just Enforcing Existing Law
Now, there’s an open question as to whether Section 1373 is itself unconstitutional “commandeering” of state officials (as Josh Blackman details). That is, while the federal government cannot force state officials to enforce federal law, is it constitutionally proper for it to tell states and cities that they can’t direct their officials not to exchange information with federal authorities? (Sorry for the double negative, but that’s what the issue actually is.)
The district court is silent on that issue, instead focusing on a phantom menace of federalism violations, as well as a host of procedural points relevant to a court’s pre-enforcement review of government action.
Let me restate that. When you cut away the doctrinal exegesis—which is fascinating, don’t get me wrong—and technical legalese, we’re left where we started: federal officials can enforce the executive order with respect to grants of federal funds so long as they observe certain constitutional niceties. As the sanctuary cities debate proceeds, it’s important to remember what those niceties are:
- Only Congress can attach new conditions onto federal funding, which the executive branch can then enforce;
- The conditions must be unambiguous, so states and localities are on notice as to what they must do if they want the federal grants;
- The conditions must be germane to the purpose of the spending. Here, the funds conditioned on Section 1373 compliance must be related to immigration or law enforcement—so Medicaid or education grants, for example, can’t be threatened; and
- The conditions can’t be coercive. Once a state has signed onto a program, Congress can’t later add new major strings that would transform the original program. This was the “undercard” ruling in NFIB v. Sebelius (the first Obamacare case, where the Supreme Court ruled 7-2 that the Affordable Care Act unconstitutionally threatened existing, not just new, Medicaid funds on new requirements).
In sum, whatever you think about President Trump’s executive order or what local authorities should do if they disagree with immigration law, Orrick’s ruling doesn’t change anything. The real action will come when DOJ officials start enforcing obscure provisions of existing funding programs, as well as in new conditions buried in the appropriations riders on next year’s DHS budget.
Not as sexy, I know, but this is law we’re talking about.
