SAN FRANCISCO (CN) – A federal judge signaled Wednesday that he will likely block the Trump administration from cutting off grant funds to San Francisco and California for refusing to help detain and deport undocumented immigrants.
“I’m inclined to grant the city and state’s motion for summary judgment,” U.S. District Judge William Orrick III said in court Wednesday. “I’m leaning against a nationwide injunction.”
If he follows through on his tentative ruling, Orrick would become the fourth federal judge to rule against new conditions imposed on federal law enforcement grants by the Justice Department.
In July 2017, Attorney General Jeff Sessions announced the DOJ would only award criminal justice grants to cities and states that let immigration agents access local jails and give 48-hour notice before releasing undocumented immigrants.
Federal judges in Los Angeles, Chicago and Philadelphia have ruled against those requirements, finding Congress did not specifically authorize the executive branch to impose such conditions for two programs: the Edward Byrne Memorial Justice Assistance Grant (JAG) program and Community Oriented Policing Services (COPS) grants.
If the grant conditions are enforced, California could lose $28.3 million in federal funds. For sanctuary jurisdictions across the nation, at least $56.6 million is on the line.
During the hearing Wednesday, Assistant Attorney General Chad Readler argued the Justice Department has a history of imposing new conditions on those grants, including a previous requirement that local officials attend training programs on privacy and civil liberties. The department also used to forbid grant recipients from purchasing military-style equipment, he added.
“Congress enacted this in 2006, creating the Edward Byrne Grant,” Readler said. “They added authority to impose special conditions.”
California Deputy Attorney General Sarah Belton replied that the department’s power to add new grant conditions is limited to what Congress authorized. She also insisted the mere existence of prior grant conditions does not mean the department had legal authority to impose them.
According to the Justice Department, the new conditions are meant to ensure compliance with a federal law – Section 1373 of Title 8 in the U.S. Code of Laws – which requires that state and local governments not prohibit employees from sharing an individual’s immigration status with federal agents.
According to Readler, “information regarding an individual’s immigration status” encompasses more than whether that person is in the country legally. It also includes a person’s address, release date from jail, and other relevant information needed to apprehend undocumented immigrants, Readler argued.
The city maintains the plain text of the statute clearly states that immigration status is the only information that has to be shared with federal agents upon request.
But arguments about the breadth and scope of the law appeared moot for the only audience that mattered. That’s because Orrick said he already decided that Section 1373 is unconstitutional because “Congress is issuing a direct order to the city and state legislatures.”
Citing the Supreme Court’s recent ruling in Murphy v. NCAA, which legalized sports betting in states that allow it, Orrick said he agrees that Congress cannot pass laws that interfere with state regulations unless specifically authorized by the Constitution.
The judge appeared unmoved by Readler’s arguments, including his contention that sanctuary policies make apprehending immigrants more dangerous for federal agents and local communities.
However, the judge hinted that he may ask the parties to submit additional evidence on whether a permanent injunction against the grant conditions should apply nationwide or just to the state of California and its local governments.
In July, a federal judge in Chicago issued a permanent injunction to block the new grant conditions, but he postponed the nationwide scope of the injunction pending appeal to the Seventh Circuit.
Orrick said if he decides to impose a nationwide injunction, he will also delay that part of his ruling pending review by the Ninth Circuit.
In August, the Ninth Circuit affirmed Orrick’s November 2017 decision to permanently strike down an executive order that sought to withhold funds from sanctuary cities on a broader scale, but the appeals court asked Orrick to reconsider whether a nationwide injunction was justified in that case.
Orrick said he will issue an official ruling on the grant conditions soon.