City & County of San Francisco v. Donald Trump

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CITY AND COUNTY OF SAN No. 17-17478
FRANCISCO,
Plaintiff-Appellee, D.C. No.
3:17-cv-00485-WHO
v.
DONALD J. TRUMP, President of
the United States; JEFFERSON B.
SESSIONS III, Attorney General,
Attorney General of the United
States; ELAINE C. DUKE;
UNITED STATES OF AMERICA,
Defendants-Appellants.
2 SAN FRANCISCO V. TRUMP
COUNTY OF SANTA CLARA, No. 17-17480
Plaintiff-Appellee,
D.C. No.
v. 3:17-cv-00574-WHO
DONALD J. TRUMP, President of
the United States; JEFFERSON B. OPINION
SESSIONS III, Attorney General,
Attorney General of the United
States; KIRSTJEN NIELSEN,
Secretary of Homeland
Security; ELAINE C. DUKE;
MICK MULVANEY, Director,
OMB; UNITED STATES OF
AMERICA,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted April 11, 2018
San Francisco, California
Filed August 1, 2018
Before: Sidney R. Thomas, Chief Judge, and Ferdinand F.
Fernandez and Ronald M. Gould, Circuit Judges.
Opinion by Chief Judge Thomas;
Dissent by Judge Fernandez
SAN FRANCISCO V. TRUMP 3
SUMMARY*
Separation of Powers/Executive Authority/Immigration
The panel (1) affirmed the district court’s grant of
summary judgment in favor of the City and County of San
Francisco and the County of Santa Clara in an action
challenging Executive Order 13,768, “Enhancing Public
Safety in the Interior of the United States,” which directed the
withholding of federal grants to so-called sanctuary
jurisdictions; (2) vacated a nationwide injunction; and
(3) remanded.
The Executive Order cross-references 8 U.S.C. § 1373,
which prohibits government entities from themselves
prohibiting the sharing of “information regarding the
citizenship or immigration status, lawful or unlawful, of any
individual.” 8 U.S.C. § 1373(a). Section 9 of the Executive
Order provides that the Attorney General and the Secretary of
the Department 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.”
As a preliminary matter, the panel concluded that the
Counties demonstrated standing to bring their action, and that
the case was ripe for review.
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 SAN FRANCISCO V. TRUMP
The panel held that, under the principle of Separation of
Powers and in consideration of the Spending Clause, which
vests exclusive power to Congress to impose conditions on
federal grants, the Executive Branch may not refuse to
disperse the federal grants in question without congressional
authorization. Because Congress has not acted, the panel
affirmed the district court’s grant of summary judgment to the
City and County of San Francisco and the County of Santa
Clara. However, given the absence of specific findings
underlying the nationwide application of the injunction, the
panel vacated the nationwide injunction and remanded for
reconsideration and further findings.
Dissenting, Judge Fernandez concluded that the case is
not ripe for review. Addressing the merits because the
majority did so, Judge Fernandez also wrote that the district
court’s failure to accord the Executive Order a fair enough
reading resulted in its abusing its discretion when it issued the
injunction.
SAN FRANCISCO V. TRUMP 5
COUNSEL
Chad Readler (argued), Acting Assistant Attorney General;
Alex G. Tse, Acting United States Attorney; Mark B. Stern,
Daniel Tenny, and Brad Hinshelwood, Appellate Staff; Civil
Division, United States Department of Justice, Washington,
D.C.; for Defendants-Appellants.
Christine Van Aken (argued), Yvonne R. Meré, Ronald P.
Flynn, Jesse C. Smith, Neha Gupta, Matthew S. Lee, Aileen
M. McGrath, Sara J. Eisenberg, Mollie M. Lee, Tara M.
Steeley, and Dennis J. Herrera, City Attorney; Office of the
City Attorney, San Francisco, California; for Plaintiff-
Appellee City and County of San Francisco.
Danielle L. Goldstein (argued), Adriana L. Benedict, Laura
S. Trice, Julie Wilensky, Kavita Narayan, L. Javier Serrano,
Greta S. Hansen, and James R. Williams, County Counsel;
Office of the County Counsel, San Jose, California; Tejinder
Singh, Sarah E. Harrington, and Kevin K. Russell, Goldstein
& Russel P.C., Bethesda, Maryland; for Plaintiff-Appellee
County of Santa Clara.
6 SAN FRANCISCO V. TRUMP
OPINION
THOMAS, Chief Judge:
This appeal presents the question of whether, in the
absence of congressional authorization, the Executive Branch
may withhold all federal grants from so-called “sanctuary”
cities and counties. We conclude that, under the principle of
Separation of Powers and in consideration of the Spending
Clause, which vests exclusive power to Congress to impose
conditions on federal grants, the Executive Branch may not
refuse to disperse the federal grants in question without
congressional authorization. Because Congress has not acted,
we affirm the district court’s grant of summary judgment to
the City and County of San Francisco and the County of
Santa Clara (collectively, the “Counties”). However, given
the absence of specific findings underlying the nationwide
application of the injunction, we vacate the nationwide
injunction and remand for reconsideration and further
findings.
I
A
The United States Constitution exclusively grants the
power of the purse to Congress, not the President. U.S.
Const. art. I, § 9, cl. 7 (Appropriations Clause)1; U.S. Const.
1
“No Money shall be drawn from the Treasury, but in Consequence
of Appropriations made by Law.”
SAN FRANCISCO V. TRUMP 7
art. I, § 8, cl. 1 (Spending Clause).2 As Alexander Hamilton
succinctly put it, Congress “commands the purse.” THE
FEDERALIST, NO. 78. James Madison underscored the
significance of that exclusive congressional power, stating,
“[t]he power over the purse may [be] the most complete and
effectual weapon with which any constitution can arm the
immediate representatives of the people.” THE FEDERALIST,
NO. 58.
Congress’s power to spend is directly linked to its power
to legislate. “Incident to [the spending] power, Congress may
attach conditions on the receipt of federal funds, and has
repeatedly employed the power ‘to further broad policy
objectives by conditioning receipt of federal moneys upon
compliance by the recipient with federal statutory and
administrative directives.’” South Dakota v. Dole, 483 U.S.
203, 206–07 (1987) (quoting Fullilove v. Klutznick, 448 U.S.
448, 474 (1980)).
On the other hand, as the Supreme Court has observed,
“[t]here is no provision in the Constitution that authorizes the
President to enact, to amend, or to repeal statutes.” Clinton
v. City of New York, 524 U.S. 417, 438 (1998). Aside from
the power of veto, the President is without authority to thwart
congressional will by canceling appropriations passed by
Congress. Simply put, “the President does not have unilateral
authority to refuse to spend the funds.” In re Aiken County,
725 F.3d 255, 261 n.1 (D.C. Cir. 2013). And, “the President
may not decline to follow a statutory mandate or prohibition
simply because of policy objections.” Id. at 259.
2
“The Congress shall have Power To lay and collect Taxes, Duties,
Imposts and Excises, to pay the Debts and provide for the common
Defence and general Welfare of the United States.”
8 SAN FRANCISCO V. TRUMP
The Separation of Powers was an integral part of the
Founders’ design. The Constitution and its history evidence
the “unmistakable expression of a determination that
legislation by the national Congress be a step-by-step,
deliberate and deliberative process.” I.N.S. v. Chadha,
462 U.S. 919, 959 (1983). “The power to enact statutes may
only ‘be exercised in accord with a single, finely wrought and
exhaustively considered, procedure.’” Clinton, 524 U.S. at439–40 (quoting Chadha, 462 U.S. at 951). Indeed, even
when Congress specifically authorized the President’s action,
the President’s attempt to exercise authority through a line-
item veto was deemed unconstitutional as antithetical to that
“finely wrought” legislative process committed to Congress
by the Constitution. Id. at 439. As Justice Kennedy has
observed, if “the decision to spend [is] determined by the
Executive alone, without adequate control by the citizen’s
Representatives in Congress, liberty is threatened.” Id. at 451
(Kennedy, J., concurring).
B
With these Separation of Powers principles in mind, we
turn to the question at hand. At issue in this appeal is
Executive Order 13,768, “Enhancing Public Safety in the
Interior of the United States,” which was signed by the
President on January 25, 2017—five days after his
inauguration. Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan.
25, 2017) (hereinafter “Executive Order” or “EO”). The
Executive Order’s primary concern is “sanctuary
jurisdictions,” which, in the President’s view, “willfully
violate Federal law in an attempt to shield aliens from
removal from the United States.” EO § 1. “The purpose of
this order is to direct executive departments and agencies . . .
SAN FRANCISCO V. TRUMP 9
to employ all lawful means to enforce the immigration laws
of the United States.” EO § 1.
Most relevant for our consideration is § 9(a) of the
Executive Order, which specifically addresses the federal
government’s potential recourses against sanctuary
jurisdictions. In its entirety, § 9 reads:
It is the policy of the executive branch to
ensure, to the fullest extent of the law, that a
State, or a political subdivision of a State,
shall comply with 8 U.S.C. 1373.
(a) In furtherance of this policy, the
Attorney General and the Secretary [of the
Department of Homeland Security (“DHS”)],
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. The
Secretary has the authority to designate, in his
discretion and to the extent consistent with
law, a jurisdiction as a sanctuary jurisdiction.
The Attorney General shall take appropriate
enforcement action against any entity that
violates 8 U.S.C. 1373, or which has in effect
a statute, policy, or practice that prevents or
hinders the enforcement of Federal law.
(b) To better inform the public regarding
the public safety threats associated with
10 SAN FRANCISCO V. TRUMP
sanctuary jurisdictions, the Secretary shall
utilize the Declined Detainer Outcome Report
or its equivalent and, on a weekly basis, make
public a comprehensive list of criminal
actions committed by aliens and any
jurisdiction that ignored or otherwise failed to
honor any detainers with respect to such
aliens.
(c) The Director of the Office of
Management and Budget is directed to obtain
and provide relevant and responsive
information on all Federal grant money that
currently is received by any sanctuary
jurisdiction.
Below, under the heading “General Provisions,” the
Executive Order provides that it “shall be implemented
consistent with applicable law and subject to the availability
of appropriations.” EO § 18(b). The Executive Order cross-
references 8 U.S.C. § 1373, which prohibits government
entities from themselves prohibiting the sharing of
“information regarding the citizenship or immigration status,
lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a).
In sum, by its plain terms, the Executive Order directs the
agencies of the Executive Branch to withhold funds
appropriated by Congress in order to further the
Administration’s policy objective of punishing cities and
counties that adopt so-called “sanctuary” policies.
SAN FRANCISCO V. TRUMP 11
C
For us, then, the question is whether the Executive Order
violates the Separation of Powers, pursuant to which the
Constitution committed the Spending power to Congress.
The President’s authority to act “must stem either from an
act of Congress or from the Constitution itself.” Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952).
Justice Jackson’s Youngstown concurrence provides the
operative test in this context:
When the President takes measures
incompatible with the expressed or implied
will of Congress, his power is at its lowest
ebb, for then he can rely only upon his own
constitut ional powers minus any
constitutional powers of Congress over the
matter. Courts can sustain exclusive
presidential control in such a case only by
disabling the Congress from acting upon the
subject. Presidential claim to a power at once
so conclusive and preclusive must be
scrutinized with caution, for what is at stake is
the equilibrium established by our
constitutional system.
Youngstown, 343 U.S. at 637–38 (Jackson, J., concurring).
In this instance, because Congress has the exclusive
power to spend and has not delegated authority to the
Executive to condition new grants on compliance with
§ 1373, the President’s “power is at its lowest ebb.” Id. at
12 SAN FRANCISCO V. TRUMP
637. And when it comes to spending, the President has none
of “his own constitutional powers” to “rely” upon. Id.
Rather, the President has a corresponding obligation—to
“take Care that the Laws be faithfully executed.” U.S. Const.
art. II, § 3. Because Congress’s legislative power is
inextricable from its spending power, the President’s duty to
enforce the laws necessarily extends to appropriations.
Moreover, the obligation is an affirmative one, meaning that
failure to act may be an abdication of the President’s
constitutional role. As then-Assistant Attorney General
William Rehnquist noted in 1969, “[w]ith respect to the
suggestion that the President has a constitutional power to
decline to spend appropriated funds, we must conclude that
existence of such a broad power is supported by neither
reason nor precedent.” Office of Legal Counsel,
Memorandum Opinion on Presidential Authority to Impound
Funds Appropriated for Assistance to Federally Impacted
Schools, at 8 (Dec. 1, 1969). And, even if the President’s
duty to execute appropriations laws was once unclear,
Congress has affirmatively and authoritatively spoken.
2 U.S.C. §§ 681–688 (establishing congressional oversight
when the Executive defers budget authority).3
3
In enacting the cited provisions as part of 1974’s Congressional
Budget & Impoundment Act, Congress acted “to restore responsibility for
the spending policy of the United States to the legislative branch. . . . No
matter how prudently Congress discharges its appropriations
responsibility, legislative decisions have no meaning if they can be
unilaterally abrogated by executive impoundments.” H.R. REP. NO. 93-
658, as reprinted in 1974 U.S.C.C.A.N. 3462, 3463; see also S. REP. NO.
93-688, as reprinted in 1974 U.S.C.C.A.N. 3504, 3572–3575 (collecting
cases “consistently den[ying]” the Executive Branch’s attempts to refuse
spending as a means “to achieve less than the full objectives and scope of
programs enacted and funded by Congress”).
SAN FRANCISCO V. TRUMP 13
Here, the Administration has not even attempted to show
that Congress authorized it to withdraw federal grant moneys
from jurisdictions that do not agree with the current
Administration’s immigration strategies. Nor could it. In
fact, Congress has frequently considered and thus far rejected
legislation accomplishing the goals of the Executive Order.4
The sheer amount of failed legislation on this issue
demonstrates the importance and divisiveness of the policies
in play, reinforcing the Constitution’s “unmistakable
expression of a determination that legislation by the national
Congress be a step-by-step, deliberate and deliberative
process.” Chadha, 462 U.S. at 959. Not only has the
Administration claimed for itself Congress’s exclusive
spending power, it has also attempted to coopt Congress’s
power to legislate.
Because the Executive Order directs Executive Branch
administrative agencies to withhold funding that Congress
has not tied to compliance with § 1373, there is no reasonable
argument that the President has not exceeded his authority.
4
See Ending Sanctuary Cities Act of 2016, H.R. 6252, 114th Cong.
(2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong.
(2016); Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong.
(2016); Stop Sanctuary Policies and Protect Americans Act, S. 2146,
114th Cong. (2015); Sanctuary City All Funding Elimination Act of 2015,
H.R. 3073, 114th Cong. 2015); Mobilizing Against Sanctuary Cities Act,
H.R. 3002, 114th Cong. (2015); Stop Sanctuary Cities Act, S. 1814, 114th
Cong. (2015); Improving Cooperation with States and Local Governments
and Preventing the Catch and Release of Criminal Aliens Act of 2015, S.
1812, 114th Cong. (2015); Protecting American Citizens Together Act, S.
1764, 114th Cong. (2015); Enforce the Law for Sanctuary Cities Act, H.R.
3009, 114th Cong. (2015); A Bill to Prohibit Appropriated Funds from
Being Used in Contravention of Section 642(a) of the Illegal Immigration
Reform and Immigrant Responsibility Act of 1996, S. 80, 114th Cong.
(2015).
14 SAN FRANCISCO V. TRUMP
Absent congressional authorization, the Administration may
not redistribute or withhold properly appropriated funds in
order to effectuate its own policy goals. Because Congress
did not authorize withholding of funds, the Executive Order
violates the constitutional principle of the Separation of
Powers. The district court properly entered summary
judgment in favor of the Counties.5
II
The Administration argues that the Counties lack
standing. Of course, our jurisdiction is limited to “Cases” and
“Controversies.” U.S. Const. art. III, § 2. “Standing to sue is
a doctrine rooted in the traditional understanding of a case or
controversy . . . [that] limits the category of litigants
empowered to maintain a lawsuit in federal court to seek
redress for a legal wrong.” Spokeo, Inc. v. Robins, 136 S. Ct.
1540, 1547 (2016).
Standing exists only where the plaintiff demonstrates
“that it has suffered a concrete and particularized injury that
is either actual or imminent, that the injury is fairly traceable
to the defendant, and that it is likely that a favorable decision
5
In granting summary judgment, the district court concluded that:
(1) the Executive Order violated the Separation of Powers; (2) even if the
President had acted within authority delegated to him by Congress, the
congressional action would violate the Spending Clause; (3) the Executive
Order violated the Tenth Amendment’s anti-commandeering principle;
(4) the Executive Order is void for vagueness under the Fifth Amendment;
and (5) the Executive Order infringed upon the Counties’ procedural due
process rights. Given our resolution of the merits on the basis of the
Separation of Powers, it is unnecessary for us to decide the merits of the
other bases of the district court’s decision.
SAN FRANCISCO V. TRUMP 15
will redress that injury.” Massachusetts v. EPA, 549 U.S.
497, 517 (2007).
A
A “loss of funds promised under federal law[ ]satisfies
Article III’s standing requirement.” Organized Vill. of Kake
v. U.S. Dep’t of Agric., 795 F.3d 956, 965 (9th Cir. 2015).
Both San Francisco and Santa Clara rely heavily on federal
funding, much of which is distributed through the State of
California. Approximately $1.2 billion of San Francisco’s
yearly budget of $9.6 billion comprises federal funds. Santa
Clara received approximately $1.7 billion in federal and
federally dependent funds in the 2015–2016 fiscal year,
totaling about 35% of the County’s total revenue.
Both counties have in place policies intended to protect
immigrant communities and to encourage community
policing measures. San Francisco is a self-described “City
and County of Refuge.” S.F. Admin. Code § 12H.1. San
Francisco prohibits city and county entities and employees
from
us[ing] any City funds or resources to assist in
the enforcement of Federal immigration law
or to gather or disseminate information
regarding release status of individuals or any
other such [confidential, identifying
information about an individual] unless such
assistance is required by Federal or State
statute, regulation, or court decision.
S.F. Admin. Code § 12H.2. Prior to July 2016, the San
Francisco Administrative Code prohibited city employees
16 SAN FRANCISCO V. TRUMP
from sharing information about immigration status, but the
restriction was removed out of concern for its potential
conflict with 8 U.S.C. § 1373.
Since 2010, Santa Clara has barred its employees from
using County resources to communicate with Immigrations
and Customs Enforcement (“ICE”) regarding any information
collected in the course of providing critical services or
benefits. Cty. of Santa Clara Bd. of Supervisors Resolution
No. 2010-316, “Advancing Public Safety and Affirming the
Separation Between County Services and the Enforcement of
Federal Civil Immigration Law” (June 22, 2010). The
County also prohibits employees from “initiat[ing] any
inquiry or enforcement action based solely on the individual’s
actual or suspected immigration status, national origin, race,
ethnicity, and/or inability to speak English” and from using
County resources to pursue an “individual solely because of
an actual or suspected civil violation of federal immigration
law.” Id.In sum, the Counties have policies in place that arguably
would qualify for grant withdrawal under the Executive
Order, with potentially devastating fiscal consequences.
They have demonstrated a likely “loss of funds promised
under federal law.” Organized Vill. of Kake, 795 F.3d at 965.
B
The Administration argues that there is no “imminent”
injury because the Executive Order may not be enforced.
Massachusetts v. EPA, 549 U.S. at 517. We shall discuss the
threat of enforcement later. However, the possibility of non-
enforcement does not mean that the Counties lack standing.
SAN FRANCISCO V. TRUMP 17
Virginia v. American Booksellers Association is
illustrative. There, the Court was “not troubled” by the
possibility that a law would not be enforced against the
plaintiffs. 484 U.S. 383, 393 (1988). It was enough that, if
the plaintiffs’ “interpretation of the statute [was] correct,” the
plaintiffs would face serious repercussions in the absence of
“significant and costly compliance measures.” Id. at 392.
There, as here, the parties disputed the scope of the
challenged measure, with the plaintiffs anticipating its
application to them and the defendants arguing for a narrower
reading. Id. at 390. There, too, as is the case here, the
defendant ostensibly conceded the measure’s
unconstitutionality if the plaintiffs’ interpretation was given
effect. Id. at 393.
Here, the case for standing is even stronger than in
American Booksellers. Like the plaintiffs in American
Booksellers, the Counties have demonstrated that, if their
interpretation of the Executive Order is correct, they will be
forced to either change their policies or suffer serious
consequences. As we will discuss later, the Administration
has consistently evinced its intent to enforce the Executive
Order, and it has made clear that the Counties, and the State
of California, are likely targets. There is no dispute between
the parties that, provided the Counties’ injuries are
sufficiently “concrete” and “imminent,” the Counties can
satisfy causation and redressability. Because a loss of funds
promised under federal law satisfies Article III’s standing
requirement, the Counties have met their burden to show
standing.
18 SAN FRANCISCO V. TRUMP
III
The Administration also contends that this case is not ripe
for review. The Administration’s argument is premised
entirely on our decision in Thomas v. Anchorage Equal
Rights Commission, 220 F.3d 1134, 1138 (9th Cir. 2000). In
Thomas, we summarized three factors to be used “[i]n
evaluating the genuineness of a claimed threat of
prosecution”: (1) “whether the plaintiffs have articulated a
‘concrete plan’ to violate the law in question”; (2) “whether
the prosecuting authorities have communicated a specific
warning or threat to initiate proceedings”; and (3) “the history
of past prosecution or enforcement under the challenged
statute.” Id. at 1139 (quoting San Diego Cty. Gun Rights
Comm’n v. Reno, 98 F.3d 1121, 1126–27 (9th Cir. 1996)).
As to the first factor, as we have discussed, the Counties
have demonstrated that their policies are presently in conflict
with the Administration’s federal immigration policy as
described in the Executive Order. We therefore conclude that
the Counties have “articulated . . . concrete plan[s]” to violate
the law as asserted in the Executive Order. Thomas, 220 F.3d
at 1139 (internal quotation marks omitted).
As to the second factor, there is no doubt that the
prosecuting authorities “have communicated specific
warning[s and] threat[s] to initiate proceedings.” Id. The
Administration quickly and repeatedly announced that the
Executive Order would eradicate sanctuary policies by
authorizing the wholesale defunding of cities that do not
assist the Administration in enforcing its hardline
immigration policy. The day that the Executive Order went
into effect, then-Press Secretary Sean Spicer said at the daily
White House press briefing, “We’re going to strip federal
SAN FRANCISCO V. TRUMP 19
grant money from sanctuary states and cities that harbor
illegal immigrants.” Priscilla Alvarez, Trump Cracks Down
on Sanctuary Cities, THE ATLANTIC (Jan. 25, 2017),
http://www.theatlantic.com/politics/archive/2017/01/trump-
crack-down-sanctuary-city/514427. The President echoed
Press Secretary Spicer’s statements the next day at the
Congressional Republicans Retreat, where he discussed the
Executive Order as a “first step[] in our immigration policy,
. . . at long last, cracking down on sanctuary cities.” C-
SPAN, President Trump’s Remarks at Congressional
Republican Retreat (Jan. 26, 2017), http://www.c-
s p an .o rg/v i d eo/ ? 422829-1/ presi dent-trum p-t ells -
congressional-republicans-now-deliver. A White House
Press Release issued days later summarized the Executive
Order: “President Trump signed an executive order to ensure
that immigration laws are enforced throughout the United
States, including halting federal funding for sanctuary cities.”
Press Release, White House, “President Trump’s First Week
of Action” (Jan. 28, 2017).
On February 1st, Press Secretary Spicer was unequivocal:
“the President has been very clear through his executive order
that federal funds, paid for by hardworking taxpayers, should
not be used to help fund sanctuary cities.” Press Briefing,
White House Press Secretary Sean Spicer (Feb. 1, 2017).
Days later, the President described defunding as a “weapon”
to be deployed against sanctuary cities to force them to
change their policies. Bill O’Reilly Interview with President
Donald J. Trump (Feb. 5, 2017), transcript available at
http://transcripts.cnn.com/transcripts/1702/05/cnr.05.html.
The Attorney General was more specific in his public
statements, stating that noncompliance with § 1373 would
result in “withholding grants, termination of grants, and
disbarment or ineligibility for future grants.” Press Briefing,
20 SAN FRANCISCO V. TRUMP
White House Press Secretary Spicer with Attorney General
Sessions (March 27, 2017).
The State of California has been a specific target of the
Administration’s anti-sanctuary cities policies from the
Administration’s beginning. In a February 5, 2017 interview
with Bill O’Reilly, President Trump said, “I’m very much
opposed to sanctuary cities. . . If we have to defund, we give
tremendous amounts of money to California . . . . California
in many ways is out of control.” Bill O’Reilly Interview with
President Donald J. Trump. ICE has designated California,
Santa Clara, and San Francisco as jurisdictions that “Restrict
Cooperation with ICE.” ICE, Enforcement & Removal
Operations: Weekly Declined Detainer Outcome Report for
Recorded Declined Detainers Feb. 11–Feb. 17, 2017 § 3.
And the Attorney General penned an op-ed holding San
Francisco up as an example of a sanctuary city that ought to
“re-evaluate [sanctuary] policies.” Jeff Sessions, John
Culberson, Dennis Herrera, & Jose Antonio Vargas, 4 Voices:
Are Sanctuary Cities Good for the Community?, SAN
FRANCISCO CHRONICLE (Apr. 7, 2017). Indeed, the district
court noted that California and its cities, especially San
Francisco, were visible targets of the Administration’s intent
to defund sanctuary jurisdictions.
As to the third factor, DOJ has identified three grants
historically conditioned on compliance with § 1373, all of
which are law enforcement-related: the State Criminal Alien
Assistance Program grant; the Edward Byrne Memorial
Justice Assistance grant; and the Community Oriented
Policing Services grant. Thus, the Counties have shown a
“history of past prosecution or enforcement” tied to
compliance with 8 U.S.C. § 1373, the statute relied upon as
SAN FRANCISCO V. TRUMP 21
authorization for the Executive Order. Thomas, 220 F.3d at
1139.
In sum, the Counties have satisfied the factors we
identified in Thomas to evaluate the genuineness of a claimed
threat of prosecution. Given the severe potential for harm
and the likelihood of prosecution, the controversy is ripe for
adjudication.
IV
On the merits, the Administration argues that the
Executive Order is all bluster and no bite, representing a
perfectly legitimate use of the presidential “bully pulpit,”
without any real meaning—“gesture without motion,” as T.S.
Eliot put it. Looking to its plain language, the Administration
contends, the Executive Order is merely a directive to DHS
and DOJ to condition a limited number of grant
programs—as of now, three—on compliance with § 1373.6
However, even if we ignore the statements made by and on
behalf of the Administration outside the context of this
litigation, the Administration’s interpretation of the Executive
Order strains credulity. And consideration of those
statements suggests that the Administration’s current
litigation position is grounded not in the text of the Executive
Order but in a desire to avoid legal consequences.
6
The Administration has been unable to identify any grant programs
it may condition on compliance with § 1373 except for those programs
that were so conditioned prior to issuance of the Order.
22 SAN FRANCISCO V. TRUMP
A
Executive orders are unlike both statutes and other agency
actions. In contrast to the many established principles for
interpreting legislation, there appear to be few such principles
to apply in interpreting executive orders. Compare
Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S.
172, 191 (1999) (“[F]or purposes of this case we shall
assume, arguendo, that the severability standard for statutes
also applies to Executive Orders.”), and F.C.C. v. Fox
Television Stations, Inc., 556 U.S. 502, 516 (2009) (“We
know of no precedent for applying [the canon of
constitutional avoidance] to limit the scope of an authorized
executive action.”), with Ex parte Mitsuye Endo, 323 U.S.
283, 298 (1944) (“We approach the construction of Executive
Order No. 9066 as we would approach the construction of
legislation in this field.”).
However, one interpretive principle is clear, and its
application is dispositive. “As is true of interpretation of
statutes, the interpretation of an Executive Order begins with
its text,” which “must be construed consistently with the
Order’s ‘object and policy.’” Bassidji v. Goe, 413 F.3d 928,
934 (9th Cir. 2005) (quoting Nw. Forest Res. Council v.
Glickman, 82 F.3d 825, 830 (9th Cir. 1996)).
B
Section 9(a) orders “the Attorney General and the
Secretary” to “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.” At minimum, regardless of the potential
SAN FRANCISCO V. TRUMP 23
ambiguity of the term “sanctuary jurisdictions” throughout
the Executive Order, this particular provision threatens
defunding those jurisdictions that do not comply with § 1373.
“Under the doctrine of ‘inclusio unius est exclusio
alterius’ (the inclusion of one is the exclusion of the other),
‘when a statute limits a thing to be done in a particular mode,
it includes a negative of any other mode.’” United States v.
Terrence, 132 F.3d 1291, 1294 (9th Cir. 1997) (alteration
omitted) (quoting Longview Fibre Co. v. Rasmussen,
980 F.2d 1307, 1312–13 (9th Cir. 1992)). The canon applies
here. By specifically excluding grants “deemed necessary for
law enforcement purposes,” the Executive Order directs the
Attorney General and the Secretary to cut all other grant
programs.
This interpretation is supported by a reading of § 9(a) in
the broader context of § 9, directed toward ensuring States’
and localities’ compliance with § 1373. Section 9(c) directs
“[t]he Director of the Office of Management and Budget . . .
to obtain and provide relevant and responsive information on
all Federal grant money that currently is received by any
sanctuary jurisdiction.” There would be little reason for the
Director to perform such a comprehensive review if the
Executive Order meant only that DOJ should continue to do
what it has been doing all along. Moreover, the Executive
Order, at minimum, addresses both DOJ and DHS grants, and
the existing grant programs conditioned on compliance with
§ 1373 are administered solely by DOJ. All grants are in
play. On its face, the Executive Order threatens to withdraw
all federal grants from jurisdictions the Administration deems
noncompliant with § 1373, except for those “deemed
necessary for law enforcement purposes.” EO § 9(a). It
24 SAN FRANCISCO V. TRUMP
would be incongruous for us to say it does not mean what it
says.
C
Additionally, the Administration raises a textual
argument, solely dependent on three words: “consistent with
law.” The Attorney General and Secretary are directed to
condition grants on compliance with § 1373 “in their
discretion and to the extent consistent with law.” EO § 9(a).
Savings clauses are read in their context, and they cannot
be given effect when the Court, by rescuing the
constitutionality of a measure, would override clear and
specific language. See, e.g., Shomberg v. United States,
348 U.S. 540, 547–48 (1955) (refusing to “nullify” “clear
legislative purpose” to give effect to a savings clause). This
principle is neither controversial nor surprising: “It is a
commonplace of statutory construction that the specific
governs the general.” RadLAX Gateway Hotel, LLC v.
Amalgamated Bank, 566 U.S. 639, 645 (2012) (quoting
Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384
(1992)).
The Administration cites Building & Construction Trades
Department v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002), for
support. In that case, the D.C. Circuit considered an
executive order with a savings clause, rejecting the plaintiffs’
argument that “notwithstanding the President’s instruction
that the Executive Order be applied only ‘[t]o the extent
permitted by law,’ a particular agency may try to give effect
to the Executive Order when to do so is inconsistent with the
relevant funding statute.” Allbaugh, 295 F.3d at 33.
Allbaugh is distinguishable. Because the Executive Order
SAN FRANCISCO V. TRUMP 25
unambiguously commands action, here there is more than a
“mere possibility that some agency might make a legally
suspect decision.” Id. The Executive Order’s savings clause
does not and cannot override its meaning.
Further, the Administration’s interpretation would simply
lead us into an intellectual cul-de-sac. If “consistent with
law” precludes a court from examining whether the Executive
Order is consistent with law, judicial review is a meaningless
exercise, precluding resolution of the critical legal issues.
The district court correctly rejected this argument.
V
The Administration also claims that an interpretation of
the Executive Order by the Attorney General following the
district court’s entry of a preliminary injunction saves the
Executive Order from constitutional infirmity.
A
The district court enjoined “[t]he defendants (other than
the President) . . . from enforcing Section 9(a) of the
Executive Order against jurisdictions they deem as sanctuary
jurisdictions.” The injunction did not extend to “the
Government’s ability to use lawful means to enforce existing
conditions of federal grants or 8 U.S.C. 1373, nor [did] it
restrict the Secretary from developing regulations or
preparing guidance on designating a jurisdiction a ‘sanctuary
jurisdiction.’” The injunction did not enjoin any action by the
President himself but only by the Administration officials
charged with following his commands.
26 SAN FRANCISCO V. TRUMP
About one month after the issuance of the preliminary
injunction, the Attorney General issued a Memorandum
(“DOJ Memorandum”) interpreting the Executive Order.
Memorandum, Implementation of Executive Order 13768,
“Enhancing Public Safety in the Interior of the United States”
(May 22, 2017). The DOJ Memorandum is directed
internally, to “all department grant-making components.” Id.Although it does not mention the preliminary injunction, the
DOJ Memorandum essentially counters the district court’s
interpretation of the Executive Order and its analysis of the
constitutional problems arising from that interpretation.
The DOJ Memorandum states that § 9(a) “is directed to
the Attorney General and the Secretary of Homeland
Security” and “will be applied solely to federal grants
administered by the Department of Justice or the Department
of Homeland Security, and not to other sources of federal
funding.” Id. The DOJ Memorandum provides that, because
§ 9(a) includes a savings clause, the Executive Order “does
not call for the imposition of grant conditions that would
violate any applicable constitutional or statutory limitation.”
Id. Rather, the DOJ Memorandum claims, the Administration
will merely continue to require certification of compliance
with 8 U.S.C. § 1373 as a condition for receiving “any
existing grant . . . that expressly contains this certification
condition and to future grants for which the Department is
statutorily authorized to impose such a condition.” Id.Moreover, the term “sanctuary jurisdiction,” according to the
DOJ Memorandum, “for purposes of enforcing the Executive
Order, . . . will refer only to jurisdictions that ‘willfully refuse
to comply with 8 U.S.C. 1373.’” Id. Essentially, the
Administration argues that the DOJ Memorandum renders the
Executive Order a toothless threat.
SAN FRANCISCO V. TRUMP 27
The same day that the DOJ Memorandum was issued, the
federal government filed a motion for reconsideration, relying
almost entirely on the DOJ Memorandum. The district court
concluded that the DOJ Memorandum did not change the
controlling law, or the material facts, because the DOJ
Memorandum was “functionally an ‘illusory promise’ to
enforce the Executive Order narrowly and, as such, does not
resolve the constitutional claims that the Counties have
brought based on the [Executive] Order’s language.”
Consistent with the district court’s rejection of this
argument, after the preliminary injunction was issued, other
statements made by and on behalf of the Administration,
including statements made by the Attorney General,
contradict the DOJ Memorandum. Indeed, the Attorney
General himself—both before and after the district court’s
order—has continuously represented that localities “violate
federal law” by refusing to honor detainer requests.7 Press
7
Identified in § 9(b) of the Order, detainer requests are
communications from ICE to local law enforcement seeking the continued
detention of state detainees after their scheduled release. 8 C.F.R. § 287.7.
ICE does not reimburse local jurisdictions for the costs of continued
detention, and compliance with a request is voluntary. See Galarza v.
Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (“[S]ettled constitutional law
clearly establishes that [immigration detainers] must be deemed requests”
to avoid conflict with the Tenth Amendment.).
In addition to implicating federalism concerns, detainers create
potential Fourth Amendment problems. See, e.g., Arizona v. United
States, 567 U.S. 387, 413 (2012) (“Detaining individuals solely to verify
their immigration status would raise constitutional concerns.”); Morales
v. Chadbourne, 793 F.3d 208, 215–17 (1st Cir. 2015) (affirming denial of
qualified immunity to ICE agent and his supervisors when agent issued
detainer without probable cause); Miranda-Olivares v. Clackamas Cty.,
2014 WL 1414305, at *9–11 (D. Or. Apr. 11, 2014) (granting summary
28 SAN FRANCISCO V. TRUMP
Briefing, White House Press Secretary Spicer with Attorney
General Sessions (March 27, 2017).
Similarly, in sworn testimony before Congress
specifically addressing the reach of the Executive Order, the
acting director of ICE equated violation of § 1373 with
policies “where [localities] don’t honor detainers or allow us
access to the jails.” Hearing on the ICE & CBP F.Y. 2018
Budget Before the Subcommittee on Homeland Security of the
H. Comm on Appropriations, 115th Cong., 2017 WLNR
18737622 (June 13, 2017). And the same day that the district
court issued its preliminary injunction, the White House
issued an official statement that “[s]anctuary cities, like San
Francisco, block their jails from turning over criminal aliens”
and “are engaged in the dangerous and unlawful nullification
of Federal law.” Statement, White House, Statement on
Sanctuary Cities Ruling (Apr. 25, 2017).
B
The Administration asks us to look beyond the Executive
Order’s text and the Administration’s rhetoric to give
controlling construction to the DOJ Memorandum. In light
of the Executive Order’s plain meaning and the
Administration’s contrary interpretations of the Executive
Order, we cannot defer to the DOJ Memorandum.
judgment to detainee against county regarding its “custom or practice in
violation of the Fourth Amendment to detain individuals over whom the
County no longer has legal authority based only on an ICE detainer which
provides no probable cause for detention”).
SAN FRANCISCO V. TRUMP 29
1
As a general rule, we give significant weight to an agency
interpretation of an executive order. Because an agency has
“presumed expertise in interpreting executive orders charged
to its administration,” the Court generally will “review such
agency interpretations with great deference.” Kester v.
Campbell, 652 F.2d 13, 15 (9th Cir. 1981). “To be sustained,
the agency’s interpretation need not be the only reasonable
interpretation. All that is required is that the interpretation
adopted by the agency be reasonable. The agency
interpretation is considered reasonable unless it is plainly
erroneous or inconsistent with the order.” Id. at 15–16
(citations and quotation marks omitted).
2
Here, the general rule does not apply, and we must
respectfully decline to give deference to the DOJ
Memorandum.
First, the DOJ Memorandum is not consistent with the
terms of the Executive Order because the Executive Order
plainly commands the Attorney General and the Secretary to
withdraw essentially all federal grants. The DOJ
Memorandum is not a reasonable interpretation of the
Executive Order because it is “inconsistent with the order”
itself. Id. at 15–16. As discussed above, the Executive Order
plainly threatens all federal grant money except that “deemed
necessary for law enforcement purposes.” EO § 9(a). The
DOJ Memorandum, if binding, is therefore an abdication of
the Attorney General’s duties under the Executive Order.
And the Administration’s claim that the Executive Order has
30 SAN FRANCISCO V. TRUMP
meant nothing all along is belied by the Executive Order itself
and the Administration’s public statements.
Second, where, as here, an agency’s interpretation
involves an issue of “deep ‘economic and political
significance,’” it may not be entitled to deference. King v.
Burwell, 135 S. Ct. 2480, 2489 (2015) (quoting Utility Air
Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014)). This
is particularly true where the agency lacks expertise and has
not been expressly delegated the authority to interpret the
law. Id. Aside from its boilerplate savings clause, the
Executive Order made no mention of the significant legal
issues raised within the Executive Order, and so it cannot be
that analysis of those issues was expressly delegated to the
Attorney General.
Third, the DOJ Memorandum has no force outside of the
Department of Justice. The DOJ Memorandum is addressed
to “All Department Grant-Making Components,” with
“Department” referring singularly to the Department of
Justice. It does not bind other agencies.
Finally, the memo is a “post hoc justification adopted in
response to litigation.” Decker v. Nw. Envtl. Def. Ctr.,
568 U.S. 597, 614 (2013). The timing of the DOJ
Memorandum cannot be ignored. It took months for the
Administration to interpret the Executive Order narrowly, and
it took a preliminary injunction for the Attorney General to
issue the DOJ Memorandum.
3
If we look beyond the text of the Executive Order, the
Administration’s position becomes considerably weaker. The
SAN FRANCISCO V. TRUMP 31
parties have not directed us to any public statement made by
or on behalf of the Administration that is consistent with the
DOJ Memorandum—even after the district court entered
summary judgment and a permanent injunction in favor of the
Counties.
Given our command to interpret the Executive Order
“consistently with its ‘object and policy,’” Bassidji, 413 F.3d
at 934, we consider the public statements made by the
Administration, up to and including the President. For one
thing, a president’s statements guide those tasked with
enforcing the Executive Order. See Cole v. Young, 351 U.S.
536, 556 (1956) (“[An executive order’s] failure to state
explicitly what determinations are required leaves no choice
to the agency heads but to follow the most reasonable
inferences to be drawn.”). And for another, the
Administration’s public statements are indicative of both the
object of and policy supporting the Executive Order.
Bassidji, 413 F.3d at 934; see also, e.g., Old Dominion
Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin,
418 U.S. 264, 274–75 (1975) (considering a presidential
announcement accompanying the signing of an executive
order); Bassidji, 413 F.3d at 935 (considering letter to
congressional leaders discussing an executive order); Islamic
Rep. of Iran v. Boeing Co., 771 F.2d 1279, 1284 (9th Cir.
1985) (considering President Reagan’s explanation of an
executive order to Congress).
While the Administration’s statements cannot alter the
plain meaning of the Executive Order, Barclays Bank PLC v.
Franchise Tax Bd. of Cal., 512 U.S. 298, 329–30 (1994), here
the statements confirm what we have learned from the text of
the Executive Order—that the Administration intends to
cripple jurisdictions that do not assist in enforcing federal
32 SAN FRANCISCO V. TRUMP
immigration policy. The President himself stated that he
would use defunding as a “weapon”—and particularly against
California. Bill O’Reilly Interview with President Donald J.
Trump. Press Secretary Spicer, announcing the Executive
Order, said that President Trump would “make sure that . . .
counties and other institutions that remain sanctuary cities
don’t get federal government funding in compliance with the
executive order.” Press Briefing, White House Press
Secretary Sean Spicer (Feb. 8, 2017).
4
For these reasons, the district court properly denied the
motion for reconsideration based on the DOJ Memorandum.
VI
We turn now to the relief granted by the district court—a
permanent nationwide injunction barring Administration
officials “from enforcing Section 9(a) of the Executive Order
against jurisdictions they deem as sanctuary jurisdictions.”
The district court granted the Counties’ motions for summary
judgment as to the constitutionality of § 9(a) of the Executive
Order, permanently enjoining its enforcement. The court’s
analysis largely followed its reasoning in the preliminary
injunction order. The scope of the injunction is the same,
applying not to the President but to Administration officials
tasked with carrying it out. We agree that the Counties are
entitled to injunctive relief, but we remand for reexamination
of the nationwide scope of the injunction.
SAN FRANCISCO V. TRUMP 33
A
The Counties are entitled to injunctive relief. An
injunction is appropriate when the party seeking relief
demonstrates that: (1) it is likely to suffer irreparable injury
that cannot be redressed by an award of damages; (2) that
“considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted”; and (3) “that
the public interest would not be disserved by a permanent
injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S.
388, 391 (2006).
The Administration’s argument as to the first and third
factors is indistinguishable from its position on the Executive
Order’s interpretation. Because the Executive Order
contemplates no illegal conduct, the argument goes, the
Counties cannot be injured and the public interest is at least
indifferent to the injunction. We disagree with the
Administration’s interpretation of the Executive Order, and
we therefore disagree with its argument regarding the
propriety of the injunction. A total loss of federal funding
would be catastrophic, and the Counties’ (and their
residents’) need for certainty renders damages inadequate. Id.And the public interest cannot be disserved by an injunction
that brings clarity to all parties and to citizens dependent on
public services. Id.Additionally, the balance of hardships tips in favor of
enjoining enforcement of § 9(a) against the Counties. Indeed,
the Administration has not even attempted to argue that the
injunction causes it any burden at all. See Melendres,
695 F.3d at 1002 (“The Defendants cannot be harmed by an
order enjoining an action they will not take.”).
34 SAN FRANCISCO V. TRUMP
B
While we agree that the district court was correct to
enjoin the Administration from enforcing § 9(a) against the
Counties, the present record is not sufficient to support a
nationwide injunction. We therefore vacate the injunction
and remand for careful consideration by the district court.
“Once a constitutional violation is found, a federal court
is required to tailor the scope of the remedy to fit the nature
and extent of the constitutional violation.” Hills v. Gautreax,
425 U.S. 284, 293–94 (1976) (citations and internal quotation
marks omitted). This is so, in part, because broad injunctions
may stymie novel legal challenges and robust debate. See
Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J.,
dissenting) (“We have in many instances recognized that
when frontier legal problems are presented, periods of
‘percolation’ in, and diverse opinions from, state and federal
appellate courts may yield a better informed and more
enduring final pronouncement by this Court.”).
In recent cases, we have upheld nationwide injunctions
when “necessary to give Plaintiffs a full expression of their
rights.” Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017)
(per curium), rev’d on other grounds Trump v. Hawaii,
585 U.S. ___, 2018 WL 3116337 (2018); see also
Washington v. Trump, 847 F.3d 1151, 1166–67 (9th Cir.
2017) (per curium). These exceptional cases are consistent
with our general rule that “[w]here relief can be structured on
an individual basis, it must be narrowly tailored to remedy the
specific harm shown”—“an injunction is not necessarily
made overbroad by extending benefit or protection to persons
other than prevailing parties in the lawsuit . . . if such breadth
is necessary to give prevailing parties the relief to which they
SAN FRANCISCO V. TRUMP 35
are entitled.” Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th
Cir. 1987).
Here, the Counties’ tendered evidence is limited to the
effect of the Order on their governments and the State of
California. The record supports their claim that their budgets
depend on grants awarded to themselves and to the State of
California. Further, the evidence supports the conclusion that
the Counties and the State of California were particular
targets of the Executive Order. However, the record is not
sufficiently developed on the nationwide impact of the
Executive Order. Cf. City of Chicago v. Sessions, 888 F.3d
272, 292–93 (7th Cir. 2018) (affirming a nationwide
injunction in part because the statute “interconnects” all
recipients of Byrne JAG grants).
We are unpersuaded by the Administration’s arguments
in favor of a blanket restriction on all nationwide injunctions.
And we do not wish to interfere with the district court’s
considerable discretion in ordering an appropriate equitable
remedy. “Crafting a preliminary injunction is an exercise of
discretion and judgment, often dependent as much on the
equities of a given case as the substance of the legal issues it
presents.” Trump v. Intern. Refugee Assistance Project,
137 S. Ct. 2080, 2087 (2017). However, because the record
is insufficiently developed as to the question of the national
scope of the injunction, we vacate the injunction to the extent
that it applies outside California and remand to the district
court for a more searching inquiry into whether this case
justifies the breadth of the injunction imposed.
36 SAN FRANCISCO V. TRUMP
VII
The district court granted summary judgment to the
Counties, determining that § 9(a) of Executive Order 13,768,
“Enhancing Public Safety in the Interior of the United
States,” is unconstitutional and enjoining enforcement of that
section. If it were to enforce the Executive Order, the
Executive would assert a power that belongs solely to
Congress by withdrawing funds in the absence of
congressional authorization. We therefore affirm the grant of
summary judgment. Although we agree that the Counties are
entitled to an injunction as to the Executive Order’s effect in
California, the record as presently developed does not justify
a nationwide injunction. Thus, we vacate the nationwide
injunction and remand for further consideration by the district
court in the first instance. We need not—and do not—reach
any other issues urged by the parties.
AFFIRMED in part; VACATED in part; and
REMANDED.8
Each party to bear its own costs.
8
All pending motions are denied as moot.
SAN FRANCISCO V. TRUMP 37
FERNANDEZ, Circuit Judge, dissenting:
Congress has the authority to enact legislation regarding
immigration and nationality.1 That entails legislation that
determines which foreign citizens are permitted to cross the
borders of the United States and live within this country.
Congress has done so,2 and those determinations have duly
become the laws of the United States.3 Also, the president
“shall take Care that the Laws be faithfully executed.”4 It
came to the attention of President Trump that some
individuals in the country did not agree with the laws duly
passed in the area of immigration and nationality. Those
individuals were of the opinion that they and others who
agreed with their position should delay or thwart the
execution of those laws. To that end they had prevailed upon
local and state governmental entities in the places they
resided to pass laws that were designed to at least reduce the
cooperation of state or local government officials and entities
with federal immigration officials and entities. For example,
the City and County of San Francisco and the County of
Santa Clara (hereafter “the Counties”) have enacted
ordinances or policies that at least etiolated the Counties’
government officials’ cooperation with or giving of
information to federal immigration authorities when those
county officials were acting in an official capacity. See S.F.,
Cal., Admin. Code §§ 12H.1–.6, 12I.1–.7; County of Santa
1
See U.S. Const. art. I, § 8, cl. 4; Toll v. Moreno, 458 U.S. 1, 10, 102
S. Ct. 2977, 2982, 73 L. Ed. 2d 563 (1982).
2
See, e.g., United States Code, Title 8.
3
See U.S. Const. art. I, § 7, cl. 2.
4
U.S. Const. art. II, § 3.
38 SAN FRANCISCO V. TRUMP
Clara, Cal., Board of Supervisors Policy 3.54, Civil
Immigration Detainer Requests (Oct. 18, 2011); County of
Santa Clara, Cal., Board of Supervisors Resolution 2010-316,
Advancing Public Safety and Affirming the Separation
Between County Services and the Enforcement of Federal
Civil Immigration Law (June 22, 2010). For its part, based
on the animus that animated those ordinances, the State of
California imposed similar restrictions upon all law
enforcement officials. See Cal. Gov’t Code §§ 7282–7282.5;
id. §§ 7284–7284.12; see also id. §§ 7285.1–7285.3
(prohibiting employers’ voluntary cooperation with federal
immigration agents’ access or entry); id. § 7310 (directing
housing prohibitions regarding non-citizens in immigration
custody); id. § 12532 (conducting detention facility
inspections); Cal. Lab. Code § 1019.2 (prohibiting
reverification of employment eligibility by an employer).
In partial response to that kind of legislation and action,
the President issued an executive order,5 which directs certain
high officers of the United States government as follows:
Sanctuary Jurisdictions. It is the policy of the
executive branch to ensure, to the fullest
extent of the law, that a State, or political
subdivision of a State, shall comply with
8 U.S.C. 1373.
(a) 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
5
Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017)
(hereafter the “Executive Order”).
SAN FRANCISCO V. TRUMP 39
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. The Secretary has
the authority to designate, in his discretion
and to the extent consistent with law, a
jurisdiction as a sanctuary jurisdiction. The
Attorney General shall take appropriate
enforcement action against any entity that
violates 8 U.S.C. 1373, or which has in effect
a statute, policy, or practice that prevents or
hinders the enforcement of Federal law.
Executive Order § 9(a). Of course, the Executive Order does
make 8 U.S.C. § 1373 the foundation of section 9(a)’s
directives. Section 1373 reads as follows in pertinent part:
(a) . . . Notwithstanding any other provision of
Federal, State, or local law, a Federal, State,
or local government entity or official 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.
(b) . . . Notwithstanding any other provision
of Federal, State, or local law, no person or
agency may prohibit, or in any way restrict, a
Federal, State, or local government entity
from doing any of the following with respect
40 SAN FRANCISCO V. TRUMP
to information regarding the immigration
status, lawful or unlawful, of any individual:
(1) Sending such information to, or
requesting or receiving such information
from, the Immigration and Naturalization
Service.
(2) Maintaining such information.
(3) Exchanging such information with any
other Federal, State, or local government
entity.
I note that on its face the section does not dragoon state or
local officials into federal government service,6 but, rather,
merely precludes governmental entities or officials from
prohibiting or restricting other governmental entities or
officials from communicating with the Immigration and
Naturalization Service.7 It does not require any entity or
person to communicate any information to the Service, or to
do anything with information received from the Service.
Besides the section’s rather mild requirement, lest there be
any doubt, the Attorney General has essentially declared that
he will, indeed, adhere to the Executive Order’s requirement
6
See Printz v. United States, 521 U.S. 898, 928, 117 S. Ct. 2365,
2381, 138 L. Ed. 2d 914 (1997).
7
City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999);
see also Murphy v. Nat’l Collegiate Athletic Ass’n, ___ U.S. ___, ___, 138
S. Ct. 1461, 1477, ___ L. Ed. 2d ___ (2018) (discussing principles behind
the anticommandeering rule, none of which supports attempts to frustrate
the carrying out of national programs and policies (like immigration) by
prohibiting communications between national and state or local officials).
SAN FRANCISCO V. TRUMP 41
that any steps he takes must be consistent with law. See
Memorandum for All Department Grant-Making Components
from the Attorney General relating to Implementation of the
Executive Order (May 22, 2017) (hereafter, “the Formal
Memorandum”).
Nevertheless, the Counties have facially challenged the
Executive Order and asked the United States courts to enjoin
United States officials from following the Executive Order,
which, in effect, directed that those officials shall assure that
a law of the United States shall “be faithfully executed.”8 Is
that a proper use of the power of the United States courts in
this case? One would think that to ask the question is to
answer it in the negative. Alas, the district court did not agree
with that answer. Alack, neither do my esteemed colleagues.
I do. The reasons for my doing so follow.
(1) I do not think that this case is ripe for decision. I
recognize that the concept of ripeness is very close to the
concept of standing, and often is much the same as injury-in-
fact inquiries in the standing area. See Thomas v. Anchorage
Equal Rights Comm’n, 220 F.3d 1134, 1138–39 (9th Cir.
2000) (en banc). As we have noted, “ripeness can be
characterized as standing on a timeline.” Id. at 1138. In either
event, what a party must show is that there is a true “‘case or
controversy,’” that is, “that the issues presented are ‘definite
and concrete, not hypothetical or abstract.’” Id. at 1139; see
also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S.
Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992). Moreover,
ripeness doctrine does focus on timing and directs us to
consider whether the claim a plaintiff is making keys on an
alleged injury that is speculative because it “‘rests upon
8
U.S. Const. art. II, § 3.
42 SAN FRANCISCO V. TRUMP
contingent future events that may not occur as anticipated, or
indeed may not occur at all.’” Wolfson v. Brammer, 616 F.3d
1045, 1064 (9th Cir. 2010); see also Whitmore v. Arkansas,
495 U.S. 149, 158, 110 S. Ct. 1717, 1724–25, 109 L. Ed. 2d
135 (1990) (“Allegations of possible future injury do not
satisfy the requirements of Art. III. A threatened injury must
be certainly impending to constitute injury in fact.” (internal
quotation marks omitted)). Moreover, while there are times
when a “law is aimed directly at plaintiffs”9 and there is
reason to believe that it will be enforced against them,10 that
is not the case here. The Executive Order itself is not
directed toward the Counties at all; it is directed to Federal
government officials only. If they obey its dictates, they will
not overstep legal or constitutional boundaries. Nor have
they threatened that they will knowingly do so.
The parties do not dispute that in order to assess whether
action will be taken against the Counties a three-part test
should be applied to ripeness in this case. That is: “whether
the plaintiffs have articulated a ‘concrete plan’ to violate the
law in question, whether the prosecuting authorities have
communicated a specific warning or threat to initiate
proceedings, and the history of past prosecution or
enforcement under the challenged [law].” Thomas, 220 F.3d
at 1139. Application of the test demonstrates that this case is
not ripe.
First: As already noted, the Executive Order is not
directed at the Counties. It is directed to the Attorney
9
Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392, 108 S.
Ct. 636, 642, 98 L. Ed. 2d 782 (1988).
10
Id. at 393, 108 S. Ct. at 643.
SAN FRANCISCO V. TRUMP 43
General and the Secretary. Moreover, while it does direct
those officials to “ensure” that a law—§ 1373—is complied
with, it also tells them that whatever they do in that regard
must be “consistent with law.” And neither the Attorney
General nor the Secretary has threatened to take actions that
do not adhere to that admonition. That is quite different from
executive orders that direct the executive’s subordinates to
take certain actions, but do not caution that those actions must
be taken within the confines of existing law. See, e.g.,
Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 583,
587, 72 S. Ct. 863, 865, 867, 96 L. Ed. 1153 (1952);
Washington v. Trump, 847 F.3d 1151, 1156–57 (9th Cir.) (per
curiam), cert. denied, __ U.S. __, 138 S. Ct. 448, 199 L. Ed.
2d 331 (2017). The district court suggested that the
admonition would render the Executive Order legally
meaningless, but that is a disingenuous reading of it. It is not
meaningless to announce to executive officers and, indeed,
the nation, that a statute—here § 1373—will be enforced even
if enforcement has been somewhat lax in the past. And the
Counties certainly do not assert that they have violated or
intend to violate § 1373.
In short, the Counties have not met the concrete-plan
element.
Second: The terms of the Executive Order itself and the
Formal Memorandum show that there is no threat to enforce
the Executive Order in a manner that takes away (or denies)
funding to the Counties in the improper manner that the
Counties seem to fear. That is, neither the Executive Order
itself, nor any actions taken under it, by creation of
regulations or otherwise, have subtended that threat. Rather,
whatever the President, or others, might wish for in order to
achieve what they deem to be a more perfect polity, the
44 SAN FRANCISCO V. TRUMP
Executive Order recognizes their limits in achieving that.
Nothing they have said or done threatens the possible illegal
horrors conjured up by the Counties. See Sacks v. Office of
Foreign Assets Control, 466 F.3d 764, 774 (9th Cir. 2006).
And, after all, it is the Executive Order itself that is under
attack here. It does not direct that any illegal conduct be
undertaken. This factor does not support ripeness.
Third: There is no enforcement history regarding the
Executive Order. San Francisco suggests that the factor is,
therefore, neutral. Quite the contrary. What it does
demonstrate is that the Counties’ rush to litigate caused them
to bring this facial attack on the Executive Order before the
timeline allowed their case to reach the ripeness stage.
Therefore, in my view this matter is not ripe and the
district court should have eschewed jurisdiction, as should
we.
(2) While I am of the opinion that we should not opine on
the merits at this point, because the majority does, I must say
a few words. To a large extent, the defect in the district
court’s issuance of an injunction was caused by its failure to
accord the Executive Order a fair enough reading. That
resulted in its abusing its discretion when it issued the
injunction. See LaVine v. Blaine Sch. Dist., 257 F.3d 981,
987 (9th Cir. 2001); see also United States v. Hinkson,
585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).
There can be no doubt that the President had the authority
and the duty to see that duly adopted laws were faithfully
executed, and to direct his subordinates to that end. See Free
Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S.
477, 492–93, 130 S. Ct. 3138, 3151–52, 177 L. Ed. 2d 706SAN FRANCISCO V. TRUMP 45
(2010); Nixon v. Fitzgerald, 457 U.S. 731, 749–50, 102 S. Ct.
2690, 2701, 73 L. Ed. 2d 349 (1982); Myers v. United States,
272 U.S. 52, 117, 133–35, 47 S. Ct. 21, 25, 31, 71 L. Ed. 160(1926). One way a president does that is through executive
orders. See Bldg. & Constr. Trades Dep’t v. Allbaugh,
295 F.3d 28, 32–33 (D.C. Cir. 2002). That is what the
President did here. The courts do not treat executive orders
with disdain, but read and construe them in much the same
way as statutes should be treated,11 and the courts do not
properly construe executive orders based upon the courts’
own policy preferences.12 Among other things, that means
that: “‘when the [order’s] language is plain, the sole function
of the courts—at least where the disposition required by the
text is not absurd—is to enforce it according to its terms.’”
Lamie v. U.S. Tr., 540 U.S. 526, 534, 124 S. Ct. 1023, 1030,
157 L. Ed. 2d 1024 (2004). And it is not the role of the courts
“to rewrite the Executive Order.” Washington, 847 F.3d at
1167. Unfortunately, the district court did not follow those
rules.
What the Counties argued for and what the district court
did was to shunt aside short but clear and extraordinarily
important wording in the Executive Order. The introductory
sentence of section 9 of the Executive Order merely stated
that it was executive branch policy that § 1373 be followed
“to the fullest extent of the law,” and lest that be seen as too
expansive, the body of section 9(a) directed that any actions
11
See Utley v. Varian Assocs., Inc., 811 F.2d 1279, 1284–85 (9th Cir.
1987); see also Bassidji v. Goe, 413 F.3d 928, 934 (9th Cir. 2005).
12
See Guido v. Mount Lemmon Fire Dist., 859 F.3d 1168, 1174 (9th
Cir. 2017), cert. granted, __ U.S. __, 138 S. Ct. 1165, 200 L. Ed. 2d 313(2018).
46 SAN FRANCISCO V. TRUMP
taken by the Attorney General or the Secretary were to be
taken “to the extent consistent with law” and not otherwise.
To brush those words aside as implausible, or boilerplate, or
even as words that would render the Executive Order
meaningless was just to say that the plain language of the
Executive Order should be ignored in favor of comments
made dehors the order itself, none of which have resulted in
the taking of any illegal action pursuant to the order.13 That
is not the proper way to deal with plain language—it is,
instead, an attempt to rewrite the Executive Order itself and
then to enjoin use of the newly written version.14 And if there
is ambiguity in certain parts of the Executive Order, it is not
at all ambiguous in its use of the restrictive language. Nor is
it proper to enjoin enforcement of the Executive Order on the
unsupported speculation that it will be implemented in an
unconstitutional manner. See Arizona v. United States,
567 U.S. 387, 415, 132 S. Ct. 2492, 2510, 183 L. Ed. 2d 351(2012); Wash. State Grange v. Wash. State Republican Party,
552 U.S. 442, 454, 128 S. Ct. 1184, 1193, 170 L. Ed. 2d 15113
As to the dismissive attitude evidenced by those characterizations,
the answer is well set forth in Allbaugh, 295 F.3d at 33, where the court,
referring to Youngstown, 343 U.S. 579, 72 S. Ct. 863, said: “Indeed, had
President Truman merely instructed the Secretary of Commerce to secure
the Government’s access to steel ‘[t]o the extent permitted by law,’
Youngstown would have been a rather mundane dispute over whether the
Secretary had statutory authority to act as he did.”
14
See Trump v. Hawaii, ___ U.S. ___, ___, 138 S. Ct. 2392, 2416–23,
___ L. Ed. 2d ___ (2018) (rejecting attack on an executive order based on
statements made by the President in his election campaign and some of his
other general statements).
SAN FRANCISCO V. TRUMP 47
(2008). Certainly, it was not a proper basis for deciding that
the Executive Order was facially unconstitutional.15
In fine, while the Counties may be convinced that the
Executive Order loosed a fearsome chimera upon them, that
does not mean that the courts should take up arms to vanquish
the imagined beast by slaying the Executive Order itself.16
Thus, I respectfully dissent.
15
If an executive agency should misstep at some point, that will be
the time to so state and rule accordingly. See Allbaugh, 295 F.3d at 33.
I note that City of Chicago v. Sessions, 888 F.3d 272, 278 (7th Cir. 2018),
reh’g en banc granted on other grounds, No. 17-2991 (7th Cir. June 4,
2018) is not apposite. It discusses conditions which were not imposed as
a result of the Executive Order and does not consider issues regarding
enforcement of § 1373 itself.
16
While it goes without saying that I would vacate the injunction in
its entirety, even if it were otherwise proper, the district court erred when
it granted a nationwide injunction. It could have granted relief to the
Counties without so doing. In fact, the whole concept of issuing
nationwide injunctions is somewhat dubious. See Trump, ___ U.S. at ___,
138 S. Ct. at 2425–29 (Thomas, J., concurring); cf. id. at ___, 138 S. Ct.
at 2423 (majority opinion) (declining to decide “propriety of the
nationwide scope of the injunction”). They should at the very least be
used with a great deal of caution. In general, a court should not stretch to
impose its will further than is necessary to grant relief to those before it.
See L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir.
2011); see also Califano v. Yamasaki, 442 U.S. 682, 701–03, 99 S. Ct.
2545, 2558, 61 L. Ed. 2d 176 (1979).