Trump order blocked

Ad­min­is­tra­tion can’t threaten sanc­tu­ary cities’ fed­eral funds, judge in S.F. rules

San Francisco Chronicle Late Edition - - FRONT PAGE - By Bob Egelko

Pres­i­dent Trump can’t co­erce sanc­tu­ary cities like San Fran­cisco to co­op­er­ate with im­mi­gra­tion of­fi­cers by threat­en­ing to with­draw cru­cial fund­ing, a fed­eral judge said Tues­day in a rul­ing that bars en­force­ment of Trump’s order na­tion­wide.

In the first le­gal test of an ex­ec­u­tive order Trump is­sued five days af­ter tak­ing of­fice, U.S. District Judge Wil­liam Or­rick III of San Fran­cisco said the pres­i­dent was ex­ceed­ing his con­sti­tu­tional author­ity by try­ing to pun­ish lo­cal gov­ern­ments that refuse to co­op­er­ate with his im­mi­gra­tion poli­cies.

Rul­ing on a law­suit by San Fran­cisco and Santa Clara coun­ties, Or­rick is­sued a pre­lim­i­nary in­junc­tion that pro­hibits the ad­min­is­tra­tion from en­forc­ing Trump’s Jan. 25 order by cut­ting off fund­ing to de­fi­ant cities and coun­ties. His rul­ing will re­main in ef­fect un­less it is over­turned by a higher court.

“Given the na­tion­wide scope of the order, and its ap­par­ent con­sti­tu­tional flaws, a na­tion­wide in­junc­tion is ap­pro­pri­ate,” Or­rick said.

He said those flaws in­clude try­ing to force cities and coun-

ties to change their poli­cies by threat­en­ing their fund­ing, and in­ter­fer­ing with Congress’ ex­clu­sive author­ity to place con­di­tions on the use of fed­eral funds.

“This is why we have courts — to halt the over­reach of a pres­i­dent and an at­tor­ney gen­eral who ei­ther don’t un­der­stand the Con­sti­tu­tion or chose to ig­nore it,” San Fran­cisco City At­tor­ney Den­nis Her­rera said in a state­ment af­ter the rul­ing.

Santa Clara County Su­per­vi­sor Cindy Chavez called the de­ci­sion “a win for the need­i­est peo­ple in our na­tion,” whose pro­grams could have been dec­i­mated by the loss of fed­eral funds.

The case is pri­mar­ily a clash over im­mi­gra­tion pol­icy — Trump’s ag­gres­sive ap­proach to en­force­ment and de­por­ta­tion ver­sus ef­forts by hun­dreds of lo­cal gov­ern­ments to pro­tect their res­i­dents, re­gard­less of im­mi­gra­tion sta­tus, and en­cour­age them to co­op­er­ate with po­lice with­out fear of the con­se­quences. But an un­der­ly­ing is­sue is the eco­nomic re­la­tion­ship be­tween Wash­ing­ton and com­mu­ni­ties de­pen­dent on fed­eral dol­lars to stay afloat.

With­out the fund­ing that the Trump ad­min­is­tra­tion was threat­en­ing to with­draw, San Fran­cisco and Santa Clara County ar­gued, vi­tal health and so­cial ser­vice pro­grams would be gut­ted and res­i­dents would suf­fer. Their law­suit cited the U.S. Supreme Court’s 2012 rul­ing that the fed­eral government may not co­erce state or lo­cal gov­ern­ments to change their laws by threat­en­ing to with­hold vi­tal funds — in that case, the en­tire Med­i­caid grants to states that re­fused to ex­pand health care for the poor.

The Trump ad­min­is­tra­tion said the two coun­ties were grossly ex­ag­ger­at­ing the likely ef­fect of the pres­i­dent’s order. Or­rick dis­agreed.

Trump’s order is “potentially plac­ing hun­dreds of mil­lions of dol­lars of the coun­ties’ fed­eral grants at risk,” the judge said. “The order’s un­cer­tainty in­ter­feres with the coun­ties’ abil­ity to bud­get, plan for the fu­ture, and prop­erly serve their res­i­dents.”

The rul­ing is an­other le­gal re­buff for an ad­min­is­tra­tion that has also seen the courts block Trump’s or­ders to ban travel to the U.S. from na­tions whose pop­u­la­tions are al­most en­tirely Mus­lim. Fed­eral ap­peals courts in Rich­mond, Va., and San Fran­cisco will take up those cases next month.

In both cases, the pres­i­dent’s le­gal ar­gu­ments have been con­tra­dicted by his pub­lic state­ments — in the travel-ban case, by his pro­pos­als to ban Mus­lim im­mi­gra­tion. Some in­con­sis­tency seemed to be on dis­play, as well, in the ad­min­is­tra­tion’s re­sponse to Tues­day’s rul­ing.

In a state­ment, Jus­tice Depart­ment spokesman Ian Prior noted that the rul­ing did not pre­vent the government from en­forc­ing rules in some of its cur­rent grants that re­quire cities and coun­ties to pro­vide cer­tain in­for­ma­tion to im­mi­gra­tion of­fi­cers or for­feit the grants. Prior also said Or­rick did not “pur­port to (re­strict) the depart­ment’s in­de­pen­dent le­gal author­ity to en­force the re­quire­ments of fed­eral law ap­pli­ca­ble to com­mu­ni­ties that vi­o­late fed­eral im­mi­gra­tion law.”

Asked whether the ad­min­is­tra­tion would ap­peal, Prior de­clined to com­ment. Shortly af­ter­ward, White House chief of staff Reince Priebus promised an ap­peal, and cast as­per­sions on the court that would be first in line to con­sider the ap­peal.

“Again it’s the Ninth Cir­cuit go­ing ba­nanas,” Priebus said, although Or­rick is only a trial court judge. “It’s clear fo­rumshop­ping that’s go­ing on . ... We will win at the Supreme Court level.”

An ap­peal would de­lay plans by the two coun­ties to ask Or­rick in June for a fi­nal rul­ing declar­ing Trump’s order un­con­sti­tu­tional.

Fed­eral law doesn’t de­fine sanc­tu­ary cities. But more than 300 cities and coun­ties na­tion­wide have lim­ited the co­op­er­a­tion their law en­force­ment agen­cies are al­lowed to ex­tend to fed­eral im­mi­gra­tion of­fi­cials seek­ing to de­tain and de­port im­mi­grants for crimes or il­le­gal en­try.

Nearly 50 lo­cal gov­ern­ments across the coun­try, along with the state of Cal­i­for­nia, filed ar­gu­ments sup­port­ing the suit by San Fran­cisco and Santa Clara County. Sep­a­rate suits have been filed by Seat­tle, two com­mu­ni­ties in Mas­sachusetts, and Rich­mond in Con­tra Costa County.

Lo­cal gov­ern­ments in the law­suits said Trump’s order potentially threat­ened all their fed­eral fund­ing — as much as $2 bil­lion a year for San Fran­cisco, one-fifth of its over­all bud­get, and $1.7 bil­lion for Santa Clara County, more than one-third of its rev­enue.

A high-rank­ing Jus­tice Depart­ment lawyer, As­sis­tant At­tor­ney Gen­eral Chad Readler, sought to al­lay those fears at an April 14 court hear­ing. Readler told Or­rick that the only cur­rent fund­ing potentially at risk was con­tained in three Jus­tice Depart­ment and Home­land Security grant pro­grams to lo­cal gov­ern­ments that had agreed, as a con­di­tion of the fund­ing, to pro­vide in­for­ma­tion about the im­mi­gra­tion sta­tus of any­one in their cus­tody.

Her­rera’s of­fice says San Fran­cisco re­ceives about $1.5 mil­lion a year in those grants, for such pro­grams as re­duc­ing crime by ex-con­victs and de­ter­ring drug use. The city, a spokesman said, com­plies with the law’s re­quire­ment to in­form fed­eral of­fi­cers about de­tainees’ im­mi­gra­tion sta­tus. Santa Clara County re­ceives about $1 mil­lion in sim­i­lar fund­ing.

Or­rick said Readler’s as­sur­ances of lim­ited risk were con­tra­dicted by Trump’s pub­lic state­ments and by the terms of his ex­ec­u­tive order.

For ex­am­ple, Or­rick said, Trump told then-Fox News host Bill O’Reilly on Feb. 5 that cut­ting off fund­ing to sanc­tu­ary cities “would be a weapon” to get them to change their poli­cies. Trump has specif­i­cally threat­ened Cal­i­for­nia, Or­rick said, call­ing the state “out of con­trol” and not­ing that it re­ceives “tremen­dous amounts of money” from the fed­eral government.

The judge, a 2013 ap­pointee of Pres­i­dent Barack Obama, said Readler’s in­ter­pre­ta­tion is also in­con­sis­tent with the sweep­ing man­date of Trump’s ex­ec­u­tive order. That order di­rects the at­tor­ney gen­eral and Home­land Security to make sure that “sanc­tu­ary ju­ris­dic­tions” are “not el­i­gi­ble to re­ceive” any fed­eral grants, Or­rick said.

In ad­di­tion, Or­rick said, the pres­i­dent’s order, and comments by At­tor­ney Gen­eral Jeff Ses­sions, sug­gest that it would de­fine sanc­tu­ary cities broadly, to cover com­mu­ni­ties that refuse to com­ply with im­mi­gra­tion of­fi­cials’ “de­tain­ers.” De­tain­ers are re­quests by the government to hold im­mi­grants in jail af­ter their sen­tences ex­pire so that fed­eral agents can pick them up. San Fran­cisco does not honor such re­quests un­less the agents have a warrant from a judge.

“The order’s broad di­rec­tive and un­clear terms, and the pres­i­dent’s and at­tor­ney gen­eral’s en­dorse­ment of them,” Or­rick said, “has caused sub­stan­tial con­fu­sion and jus­ti­fied fear among states and lo­cal ju­ris­dic­tions that they will lose all fed­eral grant fund­ing at the very least.”

Jeff Chiu / As­so­ci­ated Press

A woman at­tends a rally in S.F. on Jan. 25 af­ter Pres­i­dent Trump banned travel to the U.S. from mostly Mus­lim na­tions.

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