The NCSL Blog


By Lisa Soronen

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.

Protesters outside the U.S. District Court in San Francisco.The court was asked to accept two very different versions of what this order 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.

The judge chose the Santa Clara and San Francisco version 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 order says that jurisdictions that refuse to comply with 8 U.S.C. 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 order only applies to three federal grants—State Criminal Alien Assistance Program, Judge Advocate General Corps and the Office of Community Oriented Policing Services—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 8 U.S.C. 1373 to the extent legally possible under the terms of existing law.”

Santa Clara and San Francisco argued that the order 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 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. “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 order 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 order, 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 order requires honoring civil ICE detainers “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 8 U.S.C. 1373, which DOJ claims includes only three grants.

This decision isn’t a ruling on the merits; it is only a preliminary determination the order likely is unconstitutional. Via Twitter, the president has said, “See you in the Supreme Court.” First this ruling likely will be appealed to the 9th U.S> Circuit Court of Appeals.

Lisa Soronen is executive director of the State and Local Legal Center and a frequent contributor to the NCSL Blog on judicial matters.

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This blog offers updates on the National Conference of State Legislatures' research and training, the latest on federalism and the state legislative institution, and posts about state legislators and legislative staff. The blog is edited by NCSL staff and written primarily by NCSL's experts on public policy and the state legislative institution.