SAN FRANCISCO (CN) — A federal judge Thursday refused to lift an injunction blocking part of President Donald Trump’s executive order against sanctuary cities, calling the government’s pledge to cut only limited funds from jurisdictions that won’t help enforce immigration laws an “illusory promise.”
As he indicated at a hearing last week, U.S. District Judge William Orrick III found a May 22 memo by Attorney General Jeff Sessions that narrows the scope of funds at stake for “sanctuary jurisdictions” did not change the unconstitutional nature of Trump’s Jan. 25 executive order.
“The final and most glaring problem with the AG memorandum is that it is not binding on the attorney general,” Orrick wrote in his Thursday ruling. “The attorney general could, at any time, revoke the AG memorandum and issue new guidance. Or the president could replace the attorney general to revoke it.”
The May 22 memo states that only two sets of grants issued by the departments of Justice and Homeland Security would be withheld from sanctuary jurisdictions. It defines such jurisdictions as those that “willfully refuse to comply” with 8 U.S. Code § 1373, which requires that local governments not restrict employees from sharing a person’s immigration status with federal authorities.
The Department of Justice said an injunction is no longer needed because cities such as San Francisco no longer face the threat of having billions of dollars in federal money cut from their budgets. The memo specifies that funding will be withheld only from jurisdictions that fail to comply with a specific federal law, not for other reasons, such as refusing to hold undocumented immigrants being released from county jails so they can be taken into custody by federal agents.
In a previous ruling, Orrick found Trump’s executive order was written much more broadly than that, because it directed the attorney general to “take appropriate enforcement action” against jurisdictions with “a statute, policy or practice that prevents or hinders the enforcement of federal law,” which could apply to cities and counties that refuse to honor detainer requests.
Orrick also concluded that the executive order “attempts to reach all federal grants” in violation of the Constitution, which “vests the spending powers in Congress” and bars the executive branch from “plac[ing] new conditions on federal funds.”
In his Thursday ruling, Orrick rejected arguments that the May 22 memo is a legally binding opinion that narrows the scope of Trump’s order.
“Case law does not conclusively support the government’s position that all Attorney General memoranda are binding on the executive branches,” Orrick wrote.
He refused to grant the Department of Justice’s motion to dismiss the lawsuits filed by San Francisco and Santa Clara counties, finding both plaintiffs established standing to sue and made valid claims that the executive order violates the separation of powers under the Constitution and the principle of local sovereignty protected by the Tenth Amendment.
The San Francisco City Attorney’s Office said it was pleased with the ruling.
“The Trump administration tried to use a two-page memo from the attorney general as window dressing to cover a patently unconstitutional executive order,” City Attorney Dennis Herrera said in a statement. “It didn’t work. The law doesn’t allow the administration to do what it’s trying to do, and no memo from Jeff Sessions is going to change that.”
The Department of Justice did not respond to an email seeking comment Thursday afternoon.