SAN FRANCISCO (CN) – Fighting an executive order that could strip federal funds from sanctuary cities, a San Francisco city attorney on Friday urged a federal judge not to accept the Justice Department’s new interpretation of the controversial policy.
“We cannot rely today on the representations that Department of Justice counsel is making here,” San Francisco’s attorney Mollie Lee said during a hearing on a motion to block enforcement of President Donald Trump’s Jan. 25 executive order.
Acting Assistant Attorney General Chad Readler argued the executive order does not empower the federal government to strip San Francisco of a potential $2 billion in funds, but rather applies only to a narrow subset of federal grants.
Lee said that stance doesn’t square with language in the executive order or public statements made by the president and Attorney General Jeff Sessions.
Trump promised during his presidential campaign to defund sanctuary cities, or jurisdictions that refuse to help federal authorities enforce immigration laws. As a U.S. senator, Sessions supported legislation that would have denied federal funding to those jurisdictions.
Within days of Trump issuing his Jan. 25 executive order, San Francisco and neighboring Santa Clara County sued the president, calling the directive an unconstitutional abuse of power that threatens the sovereignty of local governments.
During Friday’s hearing on a motion for a preliminary injunction, Readler said the executive order affects only a small category of federal grants issued by the Justice Department and Department of Homeland Security. Those grants must be specifically tied to a law requiring jurisdictions not to restrict local coordination with federal authorities on the immigration status of individuals, he said.
Money from those grants is far less than the $1.2 billion plus $800 million in multiyear grants San Francisco receives from the federal government and the $1.7 billion Santa Clara County receives, Readler told U.S. District Judge William Orrick III.
“This only applies to a very narrow range of funding,” he said. “I’m not sure if any San Francisco funding is at issue here, maybe less than $1 million for Santa Clara.”
But John Keker, representing Santa Clara County from the firm Keker Van Nest, said Readler’s assurances appear at odds with a section of the executive order instructing Office of Management and Budget Director John Mulvaney to compile a list of all federal grants received by sanctuary jurisdictions.
“I didn’t hear that the attorney general or president has signed off on this new interpretation,” Keker told the judge. “What he said was DHS grants in the future may have conditions imposed. That would be unconstitutional.”
Readler argued the executive order does not run afoul of any federal statutes or constitutional protections because it directs the government to take actions only “to the extent permitted by law.”
Posing a hypothetical, Orrick pointed out how adding that line will not automatically shield an executive order from a constitutional challenge.
“If an executive order prohibited the sale of excess federal property to African-Americans to the extent that it is in accordance with the law, that would be an unconstitutional order,” Orrick told Readler, who acknowledged that would be “a difficult order to defend.”
Readler also argued that San Francisco and Santa Clara County lack standing to press their claims in court because they have not yet been formally designated as sanctuary jurisdictions or suffered any loss in funding.
Keker replied that Santa Clara County would face “irreparable harm” because it spends millions of dollars each day, expecting the federal government to reimburse those costs for essential services it provides, including health care for its poorest residents and child protective services.
Readler assured the judge the executive order would not imperil federal funding for those essential services, despite the president’s campaign rhetoric and statements suggesting broader funding consequences for sanctuary cities and counties.
“This is a perfectly legal use of the bully pulpit,” Readler said.
Lee cited Miami-Dade County’s decision in February not to embrace sanctuary status as evidence that the president’s order is not “just a bully pulpit,” because it unconstitutionally coerces local jurisdictions to bend to the will of the federal government.
“We just have to show a credible threat of prosecution, which I think we can certainly show with the express statements of the attorney general,” Lee said. “We also have current injury because we are being pressured to change our local laws.”
After about an hour of debate, Orrick took the arguments under submission.