Herrera moves to have Trump’s sanctuary executive order ruled unconstitutional

With court already barring enforcement of the executive order, San Francisco seeks permanent ruling to remove threat to federally funded programs

dennis 300x300SAN FRANCISCO (Aug. 30, 2017) — City Attorney Dennis Herrera today filed a motion for summary judgment, asking a federal court to find President Donald Trump’s executive order on “sanctuary jurisdictions” unconstitutional and definitively end the threat it poses to federal funds that flow to states and local governments.  Herrera is also asking the court to rule that San Francisco’s laws fully comply with federal immigration law.

In a key victory for some of our nation’s most vulnerable residents, a federal judge on April 25, 2017 granted Herrera’s request for a nationwide halt to enforcement of the executive order as the case progressed through court. The judge in U.S. District Court for the Northern District of California found that the executive order had “apparent constitutional flaws” and San Francisco was likely to succeed in the overall case.

Today’s filing asks for a permanent ruling in the case.

“We have an administration in Washington that is vilifying immigrants to score cheap political points, and they are dividing our schools, our neighborhoods and our country,” Herrera said. “From the framers of our Constitution to the hardworking families in our cities and towns, we are a nation of immigrants. This president has shown over and over that he will disregard the Constitution and the rule of law as he pursues his divisive agenda. He has made his contempt for the judiciary crystal clear. The only way to stop a bully is to stand up to him. We are standing up and saying, ‘Enough. You are not above the law.’ ”

San Francisco on Jan. 31, 2017 became the first entity to sue Trump over his executive order to strip federal funding from “sanctuary jurisdictions.” Santa Clara County and other local governments soon followed

San Francisco’s motion filed today asks the court to do three things:

  • Declare that San Francisco’s laws comply with 8 U.S.C. § 1373, a federal statute about sharing immigration-status information, which the executive order relies upon;
  • Find that the funding restriction in the executive order violates the Constitution’s separation of powers principles, Spending Clause, and Tenth Amendment; and
  • Find that the enforcement directive in the executive order violates the Tenth Amendment, which precludes the federal government from compelling state and local governments to enforce federal law

Trump issued Executive Order 13768 on his fifth day in office after campaigning to “cancel all federal funding to sanctuary cities.” The order directs federal officials to withhold federal funds from “sanctuary jurisdictions” and defines those jurisdictions as ones that don’t comply with 8 U.S.C. § 1373.  San Francisco has about $2 billion at stake, including $1.2 billion in annual operating funds, or about 13 percent of San Francisco’s budget; and another $800 million in multi-year federal grants that are not part of the annual operating budget and used primarily for large infrastructure projects, like bridges, roads and public transportation.  

San Francisco uses federal funds to pay for core services like medical care and social services for its most vulnerable residents, public safety programs and other programs. Federal funding accounts for 100 percent of the city’s Medicare funding, almost 40 percent of the budget for the city’s Department of Public Health and about 33 percent of the budget for San Francisco’s Human Services Agency, for example.

Constitutional Violations

The motion filed today notes that Trump’s executive order violates the Constitution in multiple ways, including fundamental separation of powers principles. The Constitution grants Congress — not the president — the federal spending power, including the power to impose conditions on receiving federal funds. The executive order is also unconstitutional because it purports to exercise the spending power in ways that even Congress could not by, among other things, imposing conditions that were not clearly stated in advance and do not relate to Congress’ purpose in spending the funds.  The executive order also violates the Tenth Amendment, which embodies the basic principle that the federal government cannot compel state or local governments to enact or administer a federal regulatory program.

“One trademark of this administration is to say one thing in court and then something completely different in public,” Herrera said. “But this administration is consistent about one thing: its complete disregard for the Constitution. The wisdom of our Constitution’s framers has rarely been more evident than when dealing with the overreach of this president, who emboldens white supremacists, pardons a criminal political crony and shows open contempt for the judiciary, one of the constitutional checks on his power.”

“This is a president who doesn’t seem to recognize that the judiciary is a co-equal branch of government,” Herrera said. “Trump’s contempt for the judiciary couldn’t be any more apparent than his unconscionable pardon of Joe Arpaio, a man who instead of upholding the law thought he was above it.  Arpaio relished in violating people’s constitutional rights and then flouted a federal court order directing him to stop. He was proud of holding people in a detention facility he described as a ‘concentration camp.’ There could not have been a clearer signal on where Trump’s priorities lie.”

San Francisco Complies with the Law

Despite what Trump administration officials say, San Francisco is in full compliance with federal law.

“San Francisco follows the law,” Herrera said. “Federal law does not require cities or counties to hold people past their legal release date. Period. If the federal government wants San Francisco to hold them, all they need to do is get a criminal warrant from a judge.”

The lawsuit in question is the first of two that Herrera has brought against the Trump administration over federal funding for sanctuary cities.  The second lawsuit, filed Aug. 11, 2017, seeks to invalidate grant conditions that U.S. Attorney General Jefferson B. Sessions III separately sought to place on a group of U.S. Department of Justice grants for local law enforcement. Those conditions came after the court enjoined enforcement of the executive order.  San Francisco’s case challenging the executive order is about limits on what President Trump can do. San Francisco’s case challenging the grant conditions is about limits on what the attorney general can do.

The cases are: 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. City and County of San Francisco v. Jefferson B. Sessions III, U.S. District Court for the Northern District of California Case No. 3:17-cv-04642, filed Aug. 11, 2017. Additional documentation from the case is available on the City Attorney’s website at: https://www.sfcityattorney.org

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