SAN FRANCISCO (CN) – A Justice Department lawyer on Wednesday urged a Ninth Circuit panel to tailor a nationwide block on "sanctuary city" funding cuts so it applies to just two jurisdictions in California.
"Even if the court agrees the order ran afoul of some nationwide concerns, certainly a nationwide injunction was well beyond the relief appropriate in this case," Acting Assistant Attorney General Chad Readler told a three-judge Ninth Circuit panel.
The Department of Justice is appealing a November 2017 ruling that permanently struck down one of President Donald Trumps' first executive orders, which sought to cut off funds to "sanctuary jurisdictions."
U.S. District Judge William Orrick III found the order signed Jan. 25, 2017, unconstitutionally invoked spending powers that belong exclusively to Congress and placed unrelated conditions on federal grants in violation of the 10th Amendment.
On Wednesday, Readler argued Orrick's ruling should be overturned because the plaintiffs, San Francisco and Santa Clara County, suffered no actual harm because no funds were withheld. Before any grant funds get cut, the Departments of Justice and Homeland Security must first determine which jurisdictions comply with federal immigration law, he said.
"Our view is the litigation was premature because the administrative process was not completed," Readler said.
But San Francisco's deputy city attorney, Christine Van Aken, said the harm was real and "ongoing."
San Francisco receives $1.2 billion in annual federal aid and $800 million in multiyear grants, while Santa Clara County relies on $1.7 billion each year to fund essential services including public health and child protective services.
"San Francisco has submitted undisputed evidence that ... it is reserving money that would otherwise be spent on social service programs [and] important public work as a hedge against the prospect of defunding," Van Aken told the panel.
Danielle Goldstein, deputy county counsel for Santa Clara, said the county was forced to either bend to Trump's will or "risk financial ruin by continuing to provide life-saving health and safety services to the tune of $4 to $5 million per day."
Readler said Attorney General Jeff Sessions clarified in a May 2017 memo that only a small pot of criminal justice grants could be withheld under the executive order. The city and county countered the memo only applies to certain divisions of the Justice Department and contradicts the broader language of Trump's directive.
Van Aken further stressed that Sessions' and Trump's public comments made clear their intention "to use federal dollars as a weapon" against sanctuary jurisdictions. Orrick wrote in his November 2017 ruling that the president and attorney general "erased" all doubt about the scope of the order with their public comments.
Addressing arguments regarding the scope of the injunction, U.S. Circuit Judge Ronald Gould asked why San Francisco needs a court order that applies to the entire nation.
Van Aken replied the city "at a minimum" needs an injunction that covers the state of California because some federal funds it receives flow through the state.
"Beyond that, it's a matter of district court discretion," Van Aken said, adding that because the geographic scope of harm extends across the U.S, a nationwide injunction is appropriate.
Readler characterized that response as conceding a lack of need for nationwide relief.
"An injunction that's tailored to the grants potentially received by San Francisco and Santa Clara would be enough to fully remedy their injury," Readler said in his closing remarks.
Chief Circuit Judge Sydney Thomas and Senior Circuit Judge Ferdinand Fernandez joined Gould on the panel.
Thomas and Gould were appointed by President Bill Clinton in 1996 and 1999, respectively. Fernandez was appointed by George H.W. Bush in 1989.
In a statement issued after the hearing, San Francisco City Attorney Dennis Herrera said the city follows federal immigration law and does not harbor criminals.
"San Francisco’s sanctuary policies make our city safer by encouraging anyone who has been a victim or witness to a crime to tell police," Herrera said. "We are a safer community when people can report a crime, bring a loved one to the doctor or take their kids to school without worrying it could lead to a family member being deported."
Sessions has repeatedly insisted cities, counties and states with sanctuary policies "are protecting criminals that under the law should be deported," as he said during a July 2017 speech in Las Vegas.
The Department of Justice has also sued the state of California over its sanctuary policies, claiming they violate the Supremacy Clause of the Constitution and jeopardize the safety of federal agents and California residents.
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