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Judge permanently blocks Trump move to withhold funds from 'sanctuary cities'

A federal judge in northern California ruled Monday that the Trump administration cannot enforce a January executive order from the president that would cut funding from cities that limit cooperation with immigration officials.

In a 28-page decision, U.S. District Judge William H. Orrick wrote that the order is "unconstitutional on its face" and blocked the White House from enforcing the policy nationwide.

In his ruling, Orrick wrote that because the Constitution "vests the spending powers in Congress, not the President" the White House could not "constitutionally place new conditions on federal funds."

"Further, the 10th Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive," Orrick wrote. "Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the president disapproves."

On Jan. 25, the newly minted Trump administration issued two executive orders on immigration and border security, including one that including a measure to punish so-called "sanctuary cities" by withholding funding from federal grants, including grants earmarked for police under the Justice Department.

"Sanctuary jurisdictions across the United States willfully violate federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our republic," the order read.

So-called "sanctuary cities" may restrict how jails work with U.S. Immigration and Customs Enforcement, including limiting, or refusing to follow, detention requests filed by immigration officials.

Following the executive order, Attorney General Jeff Sessions issued a "conclusive" interpretation, writing that the new order would be applied "solely to federal grants" and would require the city or county to "certify compliance" with federal immigration law as a "condition for receiving an award."

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This would force cities and counties to honor detainer requests from ICE despite the costs and potential 4th Amendment lawsuits that local police forces could face by holding people at least another 48 hours. 

The order would limit counties and cities from accessing at least three different grants managed by the Justice Department, including the State Criminal Alien Assistance Program, or SCAAP, the Edward Bryne Memorial Justice Assistance Grant, known as JAG, and the Community Oriented Policing Services Grant, or COPS.

With millions at stake, two California counties, Santa Clara and San Francisco, filed suit, arguing that their policies and practices were at odds with the new executive order. 


In 2017, Santa Clara County, in a joint allocation with the city of San Jose, received $56,945 from a justice grant, and San Francisco received $524,845. And, under the SCAAP grant, Santa Clara received more than $818,000.

And, while the two California counties did not receive money from the COPS program, the Justice Department sent out more than $98 million to help local agencies hire 802 police officers, and support dozens of social programs, including a program worth more than $3 million to help gun violence in Chicago.

For comparison, Tucson, in a joint allocation with Pima County, received nearly $337,0000 from the JAG program and Phoenix, in a similar arrangement with Maricopa County and Mesa, received more than $1 million.

And, under SCAAP, Pima County took in nearly $214,000 as part of a program to help the county defray the cost of holding 293 "ICE-eligible inmates."

As San Francisco, Chicago, and Denver have issued new polices specifically challenging the Trump administration, Tucson has carved out its own polices as an "immigrant friendly"city.

Tucson avoids 'sanctuary city' label

In December, Tucson’s leaders voted unanimously that the city is an "immigrant friendly community" though Mayor Jonathan Rothschild made it clear that the city is not a "sanctuary city," avoiding the label that has made other municipalities a favored target of the Trump administration. 

"It’s a term that has no definition and is being used to inflame passions on both sides," Rothschild said at the time. 

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Tucson City Attorney Mike Rankin agreed with Rothschild's statement, saying on Tuesday, "There's really no legal definition for a sanctuary city,  It's not a fixed term, and it ends up meaning different things to different people across the political spectrum." 

Tucson follows at least one the requirements — the sharing of information with ICE that has often defined a sanctuary city, but other cities have as well, Rankin said. 

Rankin said that the larger issue is that without a strict definition, a single federal official like Sessions could still seek a way to halt federal funding even as a city believes it's following the law. 

Tucson's leaders have instead outlined a narrow policy that limits when Tucson Police Department officers can contact immigration authorities, a regulation made necessary especially after the fallout of Arizona controversial anti-immigration law, widely known as SB 1070.

Following a series of court challenges that tossed out nearly all of the law, a general order regarding immigration was developed that attempted to balance the "need for community trust and cooperation" against the remaining requirements of the bill. 

Former TPD Chief Roberto Villaseñor was widely critical of SB 1070, but repeatedly argued that as a law enforcement officer he was required to follow the statute.

After six years of legal loggerheads, a federal judge approved an agreement that ended the final lawsuit over the law, and outlined how Arizona police officers could interpret it.

Local police officers cannot stop people solely to conduct immigration investigations, and they cannot hold people beyond the time necessary to deal with the reasons for a stop in order to investigate immigration status.

If police officers suspect that a person is in the country without authorization, they may contact immigration officials, including U.S. Customs and Immigration Enforcement and U.S. Border Patrol, "unless doing so would prolong the stop or detention," the court-approved settlement said.

In his ruling, Orrick rejected an argument from federal lawyers that the executive order was narrowly tailored and was a “mere directive” to officials at Homeland Security and the Justice Department, he said.

“I concluded that this interpretation was not legally plausible in light of the Executive Order’s plain language, as confirmed by the administration’s many statements indicating the Executive Order’s expansive scope,” Orrick wrote.

Orrick wrote that if there was “doubt about the scope of the Executive Order, the President and Attorney General erased it with their public comments.”

Trump, he said, called the executive order “‘a weapon’ to use against jurisdictions that disagree with his preferred policies of immigration enforcement,” Orrick wrote.

Following the executive order, U.S. Immigration and Customs Enforcement issued a report in January spotlighting the cities and counties that refused to honor ICE detainer requests. Among the 206 “detention locations” that refused the ICE detainers, Santa Clara County refused to hold a man, reportedly convicted of domestic violence, four days after ICE placed the detainer.

ICE issued three more “weekly reports” and then abandoned the effort, noting in the last report, issued on Feb. 17 that in one week, ICE had issued 2,868 detainers, and 65 were rejected—one from San Francisco.

On November 15, the Justice Department sent a letter to 29 jurisdictions, including San Francisco and Santa Clara, for maintaining “laws, policies, or practices” that violate a federal law requiring them to share information with immigration officials.

"Jurisdictions that adopt so-called 'sanctuary policies' also adopt the view that the protection of criminal aliens is more important than the protection of law-abiding citizens and of the rule of law," Session said. 

The 29 jurisdictions have until Dec. 8 to change their policies, he said. 

The city of San Francisco has already challenged this new order, however, Judge Orrick wrote that he would "consider at a later date."

"The District Court exceeded its authority today when it barred the President from instructing his cabinet members to enforce existing law," said Devin O'Malley, a Justice Department spokesman, in a statement. "The Justice Department will vindicate the President’s lawful authority to direct the executive branch."

Trump administration officials said they would seek an appeal with the 9th Circuit Court of Appeals.

San Francisco City Attorney Dennis Herrera celebrating the ruling in his own statement, writing that Orrick’s decision was "a victory for the American people and the rule of law."

"President Trump might be able to tweet whatever comes to mind, but he can’t grant himself new authority because he feels like it," Herrera said.

TucsonSentinel.com's original reporting and curation of border and immigration news is generously supported in part by a grant from the Ethics and Excellence in Journalism Foundation.

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Paul Ingram/TucsonSentinel.com

Steffanny Cott leads protestors on a march to the Tucson City Hall in January, where around 200 people demanded the Mayor and Council make Tucson a 'sanctuary city.'