By Bob Egelko
Courts throughout the nation are considering President Trump's efforts to compel unwilling cities and states to help carry out his hard-line immigration policies. But his most far-reaching decree, a January 2017 order to cut off federal funds to San Francisco and other sanctuary cities, received an apparently chilly reception from a federal appeals court Wednesday.
Trump issued the executive order five days after taking office, telling Attorney General Jeff Sessions and the Department of Homeland Security to make sure that "sanctuary jurisdictions" are "not eligible to receive" any federal grants.
U.S. District Judge William Orrick III of San Francisco issued a nationwide injunction blocking the order in April 2017. Attorneys in Sessions' office had argued that Trump was referring only to a few federal grants, but Orrick said the president's words, and his later statement on Fox News that a funding cutoff would be "a weapon" to force a change in sanctuary policies, showed that he was threatening local governments with losses of huge sums that he had no legal authority to withdraw.
The federal government funds a wide range of state and local programs, including schools, transportation, health care and social services. San Francisco receives about $2 billion a year in federal aid, one-fifth of its overall budget, and Santa Clara County, the other plaintiff in the suit against the Trump administration, receives $1.7 billion, more than one-third of its revenue.
On Wednesday, a high-ranking Justice Department lawyer, Assistant Attorney General Chad Readler, told the Ninth U.S. Circuit Court of Appeals in San Francisco that Trump hadn't made any threats or withdrawn any funding and had merely directed Sessions to carry out the law. Members of the three-judge panel seemed skeptical.
Chief Judge Sidney Thomas said Trump had made statements about withholding money from sanctuary cities, and the actions he took threatened their funding. Thomas also said the Trump administration appeared to be claiming authority that goes beyond federal law by seeking to require cities and counties to cooperate with immigration officers or lose their funding.
If Orrick's interpretation of Trump's order was accurate, Thomas asked Readler, "would you agree that the executive order was unconstitutional?"
Perhaps, Readler replied, but Trump's order was actually much narrower and applied only to specific Justice Department and Homeland Security grants.
In that case, Thomas asked, why does the administration object to an injunction against withdrawing other categories of federal funding?
Judge Ronald Gould asked Readler whether Sessions, at Trump's directive, would have the constitutional authority to strip sanctuary cities of funding for education, health care and disaster relief. Readler said no such order had been issued.
Gould, however, also asked San Francisco's lawyer, Deputy City Attorney Christine Van Aken, why the city and Santa Clara County needed a nationwide injunction to protect their funding. Van Aken replied that Trump's order had nationwide impact.
The third panel member, Judge Ferdinand Fernandez, asked no questions during the 40-minute hearing.
More than 300 cities and counties nationwide have limited the cooperation their law enforcement agencies are allowed to extend to federal immigration officials seeking to detain and deport immigrants for crimes or illegal entry.
In a separate case before Orrick, the Trump administration is seeking to withdraw several million dollars from San Francisco and Santa Clara County for refusing to notify immigration officials of the planned release of undocumented immigrants in local custody. Orrick refused to dismiss the local governments' case last month and has scheduled a hearing for September on whether the administration has the power to revoke the grants. A federal judge in Chicago has ruled in a similar case that no such advance notice to immigration officials is required by federal law.
The Trump administration has also sued the state of California, in federal court in Sacramento, seeking to overturn state laws that limit local governments' authority to cooperate with immigration agents or allow them access to local jails and prohibit employers from allowing federal agents to enter private workplaces without a judicial warrant.
At Wednesday's hearing, lawyers for San Francisco and Santa Clara County urged the court to reject the administration's attempt to interpret Trump's order as merely a directive to the Justice Department to target a few federal grants.
San Francisco has had to set aside substantial funds as a hedge against the prospect of federal withdrawal, and "shouldn't be required simply to trust the federal government on this continuing threat," said Van Aken, the city's lawyer.
Danielle Goldstein, a deputy Santa Clara County counsel, noted that Trump had commended the city of Miami for revoking its sanctuary policy because it feared the loss of federal funds.
Trump's executive order, Goldstein said, forces her county to decide whether to follow its own policy or "risk financial ruin."
(c)2018 the San Francisco Chronicle