Appellate court rules Trump’s sanctuary executive order is unconstitutional

Ninth Circuit Court of Appeals agrees with lower court, says the president exceeded his authority

SAN FRANCISCO (Aug. 1, 2018) — City Attorney Dennis Herrera today released the following statement on today’s decision by the Ninth Circuit Court of Appeals finding that President Donald Trump’s executive order that sought to strip federal funding from sanctuary jurisdictions was unconstitutional:

“This is why we have courts. When a president overreaches and tries to assert authority he doesn’t have under the Constitution, there needs to be a check on that power grab. The courts did that today, which is exactly what the framers of the Constitution had in mind.

We are a nation of laws, and no one is above the law, not even the president.

This is a victory for the rule of law. The Constitution is clear: Congress has the power of the purse and the power to legislate. The president does not. No president can seize that power, like this one tried to do.

The only way to stop a bully is to stand up to him. That’s what San Francisco has done, and that’s what we will continue to do.

Let me be clear. San Francisco follows federal immigration law. The federal government has always been free to enforce immigration law in San Francisco, just like it can anywhere else in the country. We do not harbor criminals. The federal government knows who is in our jails. If they think someone is dangerous, all they need is a criminal warrant.

But our teachers, doctors and police officers cannot be conscripted into becoming the administration’s deportation force. San Francisco’s sanctuary policies make our city safer by encouraging anyone who has been a victim or witness to a crime to tell police. We are a safer community when people aren’t afraid to call the fire department in an emergency. We are a stronger community when parents take their kids to school without worrying it could lead to a family member being deported.

This president and his administration have been trying to twist facts, stoke fears and demonize immigrants to score cheap political points. The American people are too smart for that. It’s time for this administration to stop trying to divide our schools, our neighborhoods and our country. The federal immigration system has been broken for a long time. It’s time for bipartisan reform that recognizes the contributions immigrants make to our communities and our economy. They have built families, businesses and homes here. Tearing that apart doesn’t make sense for anyone.”

Today’s opinion affirms the district court’s ruling on the merits in favor of San Francisco and holds that the Executive Order violates the Constitution’s separation-of-powers guarantee, which reserves legislative and spending authority to Congress. As the Court’s opinion states, “the Executive Branch may not refuse to disperse the federal grants in question without congressional authorization.” In addition, the Ninth Circuit ordered the district court to conduct further proceedings to determine how broadly injunctive relief should be ordered.


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 had about $2 billion at stake. That included $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.

U.S. District Court Judge William Orrick on Nov. 20, 2017 found that President Trump’s executive order violated the Constitution and issued an order prohibiting the federal government from enforcing it.  The federal government appealed his ruling.

That lawsuit 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 preliminarily enjoined enforcement of the executive order in April.  San Francisco’s case that challenged the executive order is about limits on what the president can do. San Francisco’s case challenging the grant conditions is about limits on what the attorney general can do. That case is ongoing.

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 is available on the City Attorney’s website at: