Feds back away from sanctuary city threat
Judge in suit skeptical as U.S. lawyer disavows warning in executive order
A Trump administration lawyer told an apparently skeptical federal judge Friday that President Trump’s executive order against socalled sanctuary cities, such as San Francisco, doesn’t deprive them of federal funding — at least not yet — but merely encourages them to follow immigration laws.
“There’s been no action threatened or taken against the cities,” Assistant Attorney General Chad Readler said at a hearing in San Francisco on a lawsuit by San Francisco and Santa Clara County. He said Trump, in a Jan. 25 order that spoke of withholding federal funds from cities and counties that refused to cooperate with federal immigration agents, was just using a “bully pulpit” to advocate compliance.
But U.S. District Judge William Orrick III said Attorney General Jeff Sessions has publicly identified San Francisco as a sanctuary city, and Trump has also criticized the city’s immigration policy.
In the first legal test of Trump’s executive
order, Orrick is considering San Francisco and Santa Clara County’s request for an injunction that would halt enforcement of the order against more than 300 cities and counties nationwide. After a 70minute hearing in his San Francisco courtroom, Orrick said he would issue a ruling “as soon as I can.”
Readler had argued that the two counties lacked standing — the right to challenge the executive order — because they faced no prospect of immediate harm. But Orrick noted that San Francisco has received as much as $2 billion a year in federal funding, and Santa Clara County $1.7 billion.
“Why don’t they have standing?” he asked.
“There’s no actual enforcement action on the table,” Readler replied. He said “sanctuary cities,” which would face future penalties under Trump’s order, is a term that “means different things to different people.”
Readler’s statement reflected varying public positions within the Trump administration on sanctuary cities and the obligations of local governments under federal immigration laws.
The president’s executive order cites a long-standing federal law requiring local governments to direct their law enforcement agencies to inform immigration agents of the “immigration status” of people they are holding in their jails. San Francisco and Santa Clara County say they comply with that law.
But administration officials have also demanded that cities and counties hold immigrant detainees after their scheduled release dates when immigration officials want to take them into their custody for possible deportation.
San Francisco and Santa Clara County say any such prolonged confinement would be unconstitutional, a position shared by many other local governments that the administration has defined as sanctuary cities. Readler told Orrick the administration was issuing only requests, not orders, to keep immigrants in custody, and that local compliance was “voluntary.”
But Orrick said Sessions has classified local governments that fail to go along as sanctuary cities, meaning they are covered by Trump’s order.
At one point in the hearing, Orrick said he was inclined to conclude that the local governments faced the prospect of financial harm, a prerequisite for allowing them to continue challenging Trump’s order. To issue an injunction, he would also have to find a likelihood that the order exceeded the president’s legal authority.
In their lawsuit, San Francisco and Santa Clara County argue that federal funding is controlled by Congress, not the president, and that the Constitution prohibits federal agencies from coercing state and local governments to carry out federal law by threatening to slash their funding. The Trump administration has not yet replied to those arguments, contending only that the suit is premature because no funding cutoffs are imminent.
Readler also appeared to back away from threats by both Trump and Sessions to withhold all federal funds to sanctuary cities. The only funding at stake, the government lawyer said at the hearing, would be grants from the Justice Department or the Department of Homeland Security, which oversees immigration enforcement, and not the bulk of federal appropriations that support local health and social service programs.
“The attorney general doesn’t control Medicare dollars, doesn’t control infrastructure dollars,” Readler said. He said none of San Francisco’s current federal appropriations, and only a single $1 million grant to Santa Clara County, were potentially at risk if the order was enforced.
The text of Trump’s executive order, on the other hand, appears broader. It directs the attorney general and Homeland Security secretary to make sure that local “sanctuary jurisdictions,” those that refuse to turn over legally required information to immigration authorities, “are not eligible to receive federal grants, except as deemed necessary for law enforcement purposes.”
Lawyers for the local governments told Orrick not to trust Readler’s assurances of a narrower scope.
Trump and Sessions have made it clear that the executive order is intended as “a weapon to cancel all funding to sanctuary cities,” including programs for “the most vulnerable citizens,” said attorney John Keker, representing Santa Clara County. “Months from now, the county can find it’s been designated as a sanctuary city” and face the loss of funds it has already spent, he said.
A San Francisco deputy city attorney, Mollie Lee, told Orrick, “You cannot rely today on recommendations the Department of Justice counsel is making that the attorney general contradicts in public.”
After the hearing, City Attorney Dennis Herrera said the lawsuit had forced Trump to “back down” from his threat of broad financial penalties.
“The president’s lawyer ... was forced to admit that only a tiny fraction of federal grants can potentially be withheld from local governments under the president’s order,” Herrera said in a statement. But because Trump and Sessions regularly contradict their lawyers’ court declarations, he said, “we need a court order to protect San Francisco and every other sanctuary jurisdiction.”