please the court chad rather on behalf of the united states i'd like to reserve five minutes for a bottle eight u s c thirteen seventy three signed into law over twenty years ago by president clinton serves to encourage information sharing between local and state law enforcement officials despite the law's aim in two thousand and sixteen the inspector general for the department of justice expressed concern that many states and localities that are receiving federal grants were nonetheless not complying with the terms of thirteen seventy three against that backdrop a twenty seventeen executive order instructed the attorney general and the secretary of the partner of homeland security to two cabinet officials charged with enforcing section thirteen seventy three to utilize their legal authority to enforce the statute including their authority to place conditions on grants that require compliance with the law thirteen seventy three now the se rewrite the law it does not involve new powers and it does not instruct justice or v h s to engage in unconstitutional activity and in fact the executive order does just the opposite at every turn that shall be implemented quote consistent with law and approach the attorney general has himself reconfirmed both in court and in directives to the department and is in its decision below and joining in force meant of the executive order the district court erred in at least three fundamental respects the first is that the district court enjoin your door before any action had been taken under it it was a directive to two cabinet officials to use their discretion to study the law impose restrictions were appropriate none of that happened second because now that it happened the court should have you this is a facial challenge to the executive order there is no as applied conduct here to review the appropriate standard that was a facial challenge and whatever sort of unconstitutional applications of the statute one might dream up there are myriad constitutional applications of the statute or of the executive order which is confirmed by the fact that there are three other cases being litigated right now addressing the department's authority to enforce thirteen seventy three cases in san francisco in philadelphia in chicago and all those judges so far have allowed the case to proceed and that the attorney general to at the initial level enforces authority under thirteen seventy three do you think the president has the authority to impose conditions on a grant that congress did not authorize well that would be governed by the terms of this is the statute setting for the ground and in this particular case we're talking about the grants that a litigation in chicago philadelphia and san francisco and each of those in chicago district court rejected the city's request for a plenary injunction and joining the attorney general from placing thirteen hundred three conditions on the grants in sanford and services go judge york did the same tonight a pulmonary injunction and we're now developing a record about whether san francisco in the state of california or compliance were thirteen seventy three and in philadelphia the same thing we're developing a record to determine whether the city of philadelphia is in compliance with thirteen seventy three so your position is at least with respect to those three grants that the attorney general has the power to impose a condition that's not authorized by congress that our position is that the congress has authorized those conditions with respect to the burn jag grant the grant said that the attorney general can can apply impose as conditions of political laws and the train general term in that thirteen seventy three which has its roots law enforcement in immigration is a law noncompliance with the statute thirteen seventy three so it actually begs a very important point which is that with respect to all these grants there's an administrative procedure that takes place if there's doubt about whether a grant recipient is in compliance with the terms of a grant there's first an administrative procedure takes place takes place that plate that process is undergoing there's been significant communication back and forth between san francisco and the part about their compliance and we're now  issues in the district court our view is that flitted geisha was premature because the the the if the administrative process had not yet concluded and that's still ongoing but we have parallel litigation going on at the same time in the district court where we know from virginia versus american booksellers that you can have action with the threat of prosecution or even absence of the threat of prosecution and here we have a lot of statements being made by the president others that he wants to withhold graham money from sanctuary cities what are we to make that charge was to study the law and to see what what restrictions they might build take place between general did that and how he has imposed some conditions and there's no history of enforcement under this under this executive order order either is obviously a new order so this doesn't satisfy my mind any of the criteria set forth in the anchorage case a but i think you draw attention to the key issue in the case and that is that the order has to be judged by its terms and that was not by public statements and that was the third point i wanted to get to about the a below and that's district court rather than looking at the spread terms of section nine a which is the relevant part of the order that was enjoined the court look to other parts of the executive order and then at the plaintiff's urging look to statements that were made many were made before the order issued even before the election last year some were made by the white house press half that obviously doesn't trump one what's in the order itself and two how the attorney general has interpreted it because the united states in court of course speaks through the attorney general and the attorney general once said in court that our reading of the executive order is that this is a charge to d h us and to justice to look at our grant authority and then to him there is some question about whether that was sort of a binding statement because i gave it in court it wasn't the attorney general the trains are all in issued a directive to the department justices explaining how the executive order should be interpreted so there's no doubt when you look at the terms of the order coupled with the legal position that the united states has taken that this is exactly how the order should be inforced and that's consistent with it doesn't i take your point but i think the district court was really relying on those statements in terms of justice or ability not necessarily interpret  do you agree with that or you disagree with that i think it probably looked look to both but there is but there again many of those statements talked about a general policy to not provide federal funds to funds recipients that were violating federal law that seems to me to be a quite non controversial proposition made his comments were not directed specifically at section nine a which is again about one statute it's about eight us c thirteen seventy three makes that very clear at the beginning of the preamble in section nine  and section nine a talks about two agencies enforcing that statute either if you grant restrictions or through enforcement actions which would be generally speaking preemption actions so the comments don't really match up to the actual language in the order that was enjoying it was perceived to be a threat to the city's and i think the d c circuit decision in our ball which is described as side to side in our brief of pages twenty six to twenty nine is really on point in that it's a very similar executive order was a non self executing executive order so this this order itself was just a direction to other agency officials to study the law and to take the actions that they deemed appropriate and that executive order and all it said it should be in from and implemented to the extent permitted by law and so the court accept that to mean that the agency should act only if it was taking legal proper action the executive order said that that it was it was involved the bids that would be made to the government and said it said that the court said that when an actual bid was denied that would be the time that up a claim would be ripe so because the order and struck something the actual time to challenge it would be one if there's any action taken under the order and then to do that action harm a potential plaintiff and that case two there was a question about how you would read the order and the government disowned a sort of one one potential reading of the of the order in the court accepted that and we would ask the court to take yes for an answer just like we asked the plaintiffs do that to we've got we've articulated time and again our enforcing the order and we've asked the court to accept that you didn't brief the constitutional issues particularly  if the district court's interpretation of the order is correct would you agree that the executive order is unconstitutional always had two words to two responses to that first off if there are funding restrictions that are made by the executive branch where there's no statutory authority to do that then that may well run a follow constitution we think there is authority for the actions that have been taken but certainly as a general proposition there are limits on the ability of the executive branch to take extra statutory action to limit funding but the converse of your question is true i think as well and that is that the plaintiffs have agreed that if our reading of the statue is correct that we should prevail and that there should not have been an injunction and when you look at the terms of the order again i think our reading is by far the better nine again refers to the d h s s and d o j specifically it doesn't make any reference to other cabinet officials so there is a concern here that medicaid money would be an issue or transportation funds but there's no mention of those agencies in section nine a itself and so it's really not fair to read that section as threatening funds other than the grants administered by d o j and d h us yes so why do you care if there's an injunction against the actions that you're disavowing what to respond to the first is why did the plaintiff seek an injunction where there was no harm to them i think that's the real question here which is what was the harm that was going to flow to the plaintiffs they didn't establish any concrete up will harm and so there should have been no injunction to begin with but the reverse side and he time executive actions and joined i think the government would claim harm from that because of the injunction were then forced to go back to court to clarify what it is that the injunction covered and didn't cover the section nine a allows the secretary of homeland security to designate sanctuary jurisdictions that has been enjoined that's an injury to d h yes so there is harm that flows from the executive order i really think the better question is what was the harm in the first instance the plaintiffs that had that experience from the issuing an executive order and non self executing executive order and i think it was it was not judge school if i could  question yes let's assume that that there was an order that said that they the attorney general could cut off aid to a sanctuary jurisdiction on matters such as for a cane relief under fema or aid to higher education from some relevant agency or medical aid for seniors if the if the law said that the agency could cut that off to any jurisdiction that didn't comply with thirteen seventy three well that because i think you judge called by law you're referring to an executive order or an act of congress and the executive order active order so that sounds to me like a again a non self executing an executive order so it's not the president invoking his own powers it's a direction to a cabinet official to take certain action and unless there is absolutely no constitutional application of that executive order and the one you you  available of course to plaintiffs to come to court in a very emergency basis if necessary and this executive order i think it's worth reminding again had a number of contingencies included in it chief among those is that this it was that  the cabinet secretaries had to utilize their discretion to determine one which branch they think even they would want to apply conditions to to they were authorized to do so consistent with law so they certainly had to review their the legal obligations and legal authorities there was a carve out for law enforcement concerns if there were grants that while maybe thirteen seventy three might be an appropriate condition but the grant was to import with respect to law enforcement and the then the cabinet officials had to weigh those issues and potentially not impose a condition and they also had to assess thirty seven three for willful violations as another expressed term in the executive order so there are a whole host of contingencies here to the cabinet officials in terms of what grants if constitutional concern certainly a nationwide injunction was well beyond the relief appropriate in this case and that's both first article three standing purposes and for the general equable powers of district courts i think we're all very familiar with the general rules that the equable relief should be tailored to remedy the sort of injury but should not go beyond that and a host of cases from this chord los angeles haven easy riders brag zones a pita just for the ones we cited make clear that the relief should be appropriate to remedy the injury asserted by the plaintiffs but absent a class action should not go beyond that and here are my friends on the other side of put forward no theory as to why they need a nationwide injunction to remedy their injuries if you think injunctive relief was appropriate what was what was necessary then was to craft a remedy that restricted and foresman of the departments the bridge spectra departments powers are suspect with respect to these two cities but not to go beyond that and there's a host of cases that make that clear other certainly are other cases where we dispute about the the scope of the relief needed to remedy an injury and so the travel cases the judge pool to similar with in those cases the parties disputed what range of relief was necessary in the department had a different position than what the court ultimately arrived at but that is a start instance from this case where there is no doubt that the relief that's necessary is just restricted foresman with respect to these two cities only and i will say before i sit down that whatever concern there was at the plenary injunction stage about rightness and how this executive order would would be read in that sort of thing and there was a lot going on that at that time we're now at the permanent injunction stage department and all of those matters have to be considered by the court the permanent injunction stage so you know if the court thinks that there was a basis for a plenary injunction at this point there is no indication that the there needs to be a permanent injunction perma in joining this thank you chief judge thomas i'm christina van akin for the city and county of san francisco abhi sharing my time with danielle goldstein of the county of santa clara so i will endeavor to watch my time carefully this executive order claims powers that the president doesn't have in an unconstitutional effort to coerce cities into changing their sanctuary policies i have two primary points one about the interpretation of the order and second about even crediting the attorney general memorandum that san francisco and santa clara nonetheless entitle to relief on my first point the interpretation of the executive order this executive order is simply not susceptible to the post litigation gloss that the department of justice has placed on it but even if it were ordinary tools of interpretation would compel the conclusion that it commands unconstitutional action the order itself is not simply a command to use the discretion that congress has given to the executive in a certain way rather it claims the power to deny in section two it claims that the policy of the federal government is to deny federal funds full stop to sanctuary cities and then in section nine a it directs the attorney general in the secretary of homeland security to deny federal grants to sanctuary cities except as they deem it necessary for law enforcement purposes now it's true that there is a proviso that they should exercise their power consistent with law but what are we to make of that when the entire premise of the order is that it is the president who has the power to impose conditions on grants and federal funds and not congress moreover in the ordinary course when you see boilerplate language like to the extent consistent with law or notwithstanding any other provision of law or language like that you don't expect to find the vast majority of operative applications to be covered by the savings clause and for the operative language of the executive order to cover a very small share of the cases that's just not how we ordinarily read an order and so taken with an order like this it's quite understandable that cities across the country viewed it as an existential threat to their funding and took action  but even if you didn't look only at the plain text it would be appropriate to look at the words of the president and the words of officials charged with carrying out this order to understand what it means and those words make unmistakably clear that the point of this order is to use federal dollars as a weapon to defund sanctuary cities that don't comply with policies that the president prefers so i think it's it's it's not a fair reading to say the attorney general memorandum is the only permissible interpretation of this order i think let me move to my second point which is that even if you credit the attorney general memorandum for what it is and i'll explain what that is that san francisco in santa clara are nonetheless entitle to relief here let me explain i think that the plain reading and of course what we know from outside the four corners of the text teaches that the president had a very broad purpose with the executive order which was to compel cities to change their policies and i think that perhaps cooler heads of the department of justice realized that this order couldn't be enforced in its entirety and so that the sessions memorandum is what it purports to be it says at the top that it's a directive to law to grant making components of the department of justice and it says this is how we're going to implement this executive order the problem with that is that it doesn't cure the harms that san francisco and other cities face it's directed only to the department of justice is grant making components that has no effect on any other agency of the federal government certainly has no effect on the department of homeland security we know that the president continues to intend the executive order to and we know that the department of homeland security who even mr regular acknowledges is subject to the direction of the executive order to deny funds to sanctuary cities interprets the order differently than the attorney general memorandum we have the statements of the acting director of ice thomas home in in congressional testimony where he says that what this order does is it allows the department of homeland security to defund t grants to cities the don't honor detainers and don't allow ice access to their jails now that is not the interpretation that the attorney general memorandum gives it so even if you credit that memorandum i think you should treat it only as a direct grant making departments within the department of grad making components within the department of justice to implement this order in a certain way and we have nothing from the department of homeland security to dispel the statements of the acting director of ice who tells us that they're going to interpret this executive order very day certainly and i think this is actually remarkably similar to the washington versus trauma case the first travel ban case where the court was faced with a very broad executive order that purported to deny the ability to reenter the country to holders of green cards to lawful permanent residents and then there was a statement from the white house counsel that purported to be an authoritative interpretation of the executive order that said no no no it doesn't apply to green card holders at all and this court quite appropriately was skeptical of that and said you know that the white house counsel just doesn't have the authority to rescind in a an executive order similarly the attorney general does not have the authority to rescind this executive order nor bind other departments within the federal government to his version of the executive order at least not in an internal memorandum like this that isn't even addressed to other divisions or i'm sorry other federal agencies so let me turn to the relief mr regular closed with a claim that an injunction is is not here any more because perhaps in the heady first few days of the administration there was confusion about the scope of the president's powers and an overly broad order was issued but there's no reason to think today that that order will be can see in force consistent with its terms i submit that that's very cold comfort the harm to cities is ongoing i think mr goldstein is going to speak more to that but in particular san francisco has submitted i'm just viewed evidence that against the possibility of losing massive amounts of federal funding it is reserved money that would otherwise be spent on social service programs important public work that is now being reserved as a hedge against the prospect of defunding and moreover the coercive effects of the executive persist cities are entitled to know what the law is and to sort of be told trust us when this executive order claims this very broad power and when federal officials continue to assert that they will exercise this very broad power is not a sufficient remedy and even if the court thinks that there is no prospect that irreparable harm or an unlikely prospect that irreparable harm is going to continue to be inflicted on cities and that everyone is just going to follow the attorney general memory memorandum i submit that we shouldn't be required simply to trust the federal government on this and the courts mutinous cases teach us that those cases demonstrate that where a defendant comes to the court and says i have stopped i have ceased this illegal conduct the court doesn't simply accept those representations and less it is absolutely convinced that the harm isn't going to continue but here we have continuing threats and continuing representation that there is a prospect of this executive order will be enforced and so in that case i submit that at a minimum san francisco is entitle to declaratory relief that says you you know the inconsistent which oryx orders this executive order cannot be enforced farther than the attorney general memorandum and as this court has pointed out is as you pointed out chief judge thomas in your questions to my colleague mr regular there is absolutely no harm to the federal government from being confined to an interpretation that it apparently believes it can live with if there are no questions for san francisco i will cede my time to ms goldstein i have one question counsel yes  that extends as far as california and that's because some of the fines that we receive from the department of justice and from other federal agencies flow through california so certainly our relief is not complete if an injunction doesn't extend at least statewide i think beyond that it's a matter of district court discretion the district court here found that facts about the appropriateness of an order like this wouldn't vary from jurisdiction to jurisdiction and so in those cases the courts have appropriately entered very broad injunctions and the article three limit on that we think is that an injunction can't be broader than the geographic scope of the harm and clearly the harm here from this executive order is nationwide but we think it's a matter of district court discretion rather than power and the federal government here at certainly where they don't claim that they are harmed in any way from this injunction other than have not being allowed to do things that they can't do anyway that there's no reason not to leave the injunction intact thank you counsel thank you we'll hear from santa clara  please the court goldstein deputy county council on behalf of the county of santa clara i want to make three points here that i think will clarify some of the issues that have come up so far today the first is in response to mr readers question what's the harm to the counties here as long as there as long as enforcement of this executive order is out in the future somewhere the second is in response to mr readers point that if there is any constitutional or any waffle implementation of section that saves the command of section nine we think that's not right and the third is to just consider what the county and local jurisdictions around the country are left with if this court with was the relief that was entered by the district court so i'll start with the harm this isn't a case where the harm to local jurisdictions is theoretical or speculative or even in the future the constitutional harm an unconstitutional cores in that resulted from this order was immediate and actual it put local tourist jurisdictions to a daily choice whether they were going to hold to policies that were adopted by local elected lawmakers to protect local health and safety on the one hand or on the other hand to risk financial ruin that wasn't an accident this executive order was both expected and intended to cause exactly that kind of coercion the white house repeatedly underlined that the executive order was a tool to quote end of sanctuary cities on january twenty eighth twenty seventeen days after the executive order issued the white house press office issued a press release saying the president signed an executive order to ensure that immigration laws are enforced throughout the united states including a halting federal funding for sanctuary sanctuary cities so jurisdictions like san francisco in the county of santa clara were able to seek relief from the from this coercion because we have the resources to do it but we saw the executive order operate exactly as it was intended on other local jurisdictions that had targeted policies so for example miami made the determination that it couldn't risk the catastrophic defunding that the president said was it issue here when he issued this executive order and when one president heard about this he didn't tell the city of miami that they had got the executive order wrong or they had misinterpreted it instead he told miami and the country that miami had made the right decision now the county of santa clara likewise was forced to choose was are going to risk financial ruin by continuing to provide the life saving health and safety services to the tune of four to four to five million dollars a day with these federal program funds was it going to stop providing those services protecting its fist but abdicating its public responsibility or was it going to abdicate its governmental function in a different way by abandoning its local elected lawmakers policies that had been adopted to protect law enforcement within the county and if the injunction here is lifted in declaratory we've isn't entered the county's going to be in exactly the same position except for a litigation position of the department of justice and a one and a half page memorandum from the attorney general that doesn't even purport to bind the entire department of justice much less any other federal agency now against this backdrop the department of justice doesn't defend the bratz of the president's statements or the wide command of the executive order instead it's offered an interpretation of the order that inverts its language and policy and flies in the face of that's aw defunding command of section nine has three parts it has a command it has a single limited exception and it has a cavity boilerplate phrase to the extent consistent with law the command is that the attorney exception is for those those grants that are deemed necessary for law enforcement purposes by those officials to be sure it winds up to that command with the phrase in their discretion to the extent consistent with law but that simply can't bear the weight that the department of justice wants to put on it and i think judge orcutt the preliminary injunction here really put a fine point on this with a nice hypothetical he asked mr reid or if an executive order that bar the federal government from selling access federal property to african americans to the extent consistent with the law would be constitutional mr realer wisely agreed that that would be a hard executive order to defend but the department of justice his position in this case amounts to the idea that you could defend that executive order if there might coincidentally be some african american or handful of african americans who are otherwise do you barred from from purchasing access federal property that just can't be right now i should be clear we do not believe that there is any circumstance where this is where section nine a could lawfully be implemented but even if you believe that that was not true to the extent consistent with law simply can't remain what the department of justice needs it to mean here in order to prevail and and the supreme court has made that clear repeatedly that you can't use a a rote phrase that doesn't have specificity or substance to override or render unrecognizable the rule or the substance of a text now i think there's another reason that the department of justice's interpretation here has to fail and that's because it's plainly not what the president who authored and signed this order wanted this executive order to do he was extremely clear that he wanted this executive order to be a weapon to and sanctuary jurisdictions as mr realer knowledge of hearing the depart of justice is reading of this executive order defuses that weapon as he put it under the department of justice is reading section nine a applies to a very narrow range a very narrow range of funny money it's a very very sorry very narrow range of funding it's a very very small money it doesn't make sense to assume that the president who authored and signed this order and described it in sweeping terms intended it to do essentially nothing it makes much more sense to assume that the author of this executive order simply was mistaken about whether and to what extent the command of the order could actually be implemented consistent with law and that's certainly much more consistent with the record that we have in this to close with just a thought about what we're left with is if the court withdraw as the relief that was granted by the district court in this matter i mentioned what we have is the attorney general's memorandum which my colleague well described the limitations of it wasn't it wasn't even issued to the other agency that even under the department of justice is very near reading is charged with implementing section nine a we don't actually know what the department of homeland security thinks about this reading and i want to make another no which is that we've seen just between the district court and now that the litigation positions of the department of justice aren't always the final word on how the grant making components interpret section thirteen seventy three war the counties the threats to the county mr reed represented to the district  or injunction hearing that he didn't think that santa clara violated section thirteen seventy three of the motion for at the hearing on the motion for summary judgment his colleague mr shumate pointed to the fact that the department of justice had issued a thirteen seventy three compliance letter to the county evidence that there was no standing in this matter months later the county received exactly such a letter and one that disagreed with the view that the county didn't violate thirteen seventy three i know there are many things that the administration could have done that might meet the voluntary association standard to bind itself to the interpretation that's in the attorney general's memorandum if that's in fact what it intends to do what the president intends to do for example it could have and we've seen it do this before withdrawing the executive order and issued a new executive order but they haven't done that instead they've doubled down on this order asking that the court keep it fully intact while doing very little to actually bind themselves to the department of justice is current interpretation of it and that has the impact of keeping the course of a fact and the harm to local jurisdictions of the executive order in the presence of rights in place for as long as possible while insulating the corpsmen from judicial review we think for these reasons in those set forth and in our brief that this court should therefore affirm the district court's order on the motion for summary judgment  few brief points on her bottle first of all my friends asked about the position of v h s and i'm telling the court that the h s agrees with the interpretation put forward by the attorney general there was a comment made about statement given by a nice director nine a of the secular says nothing about detainers b does it yes correct ninety was not two points but that you are one ninety was not enjoined and two ninety is just a command that the secretary list those jurisdictions that have not comply with tina requests it doesn't impose any financial consequences as a result of not complying with requests i'm puzzled by that because many of the public comments have been focused on the tanners and the d o j position as you've represented is that has nothing to do with funding withdrawal and that funding could not be withheld from the cities based on compliance with a detainer request is that the o'jays position detainer can sometimes mean different things if we're talking about the sort of post holding someone an additional period of time beyond their sentence and that's not part of that's not part of nine a and we have not asked jurisdictions to do that then effect our grant conditions i think you and i understand what detain or requests are their request authority well there are couple restrictions on the holding authority one is section thirteen seventy three which bars a city from having a blanket policy that refuses cooperation with respect information sharing so the law does prohibit the city from never its employees to ever share released information with the government and then to some of the grants or including restrictions that are affirmatively requiring that that sort of assistance but in the main point detainers detainers is not part of there might be constitutional questions about a forty eight hour hold it additional holding period the fifth circuit just said there was no constitutional problem with that but the main point is that's not part of what i'd like to focus on for a moment section to see because this is the portion of my friends sit up and read to the court to say that this created all of the alarm and is and  is the reason why there should be an injunction here and first off to see was not enjoined it doesn't purport to interpret nine a and here's a to see says it says to ensure that jurisdictions that fail to comply with of play couple federal law do not receive federal funds i'm not sure who objects to the idea that somebody doesn't comply with the law shouldn't get federal funds that's all that section says except it also says except as mandated by law so that could hardly be a direct threat to take away all of your federal dollars was not needed because the the nine a itself was directed to two cabinet officials there was some concern that perhaps this was an instruction to the attorney general to call all the other cabinet officials and to tell them not to shoot grants using his legal authority and that's the only reason t attorney general issued a memorandum was to clear that up that was not his interpretation that was not the case so the case is really turned on the memo itself it turns on the on the terms which we've described but the memo is just belt and suspenders and the final point i'll make is my time is running out is that with respect to the relief here my friends on the other side conceded that there's no need for a nationwide injunction here to get them relief and they made the point that this the doing junction should stand statewide but i'm not sure i heard a persuasive reason as to why they need statewide relief either a certainly an injunction that's tailored to the grants for potentially received by santa clara and san francisco would be enough to fully remedy their injury thank you counsel thank you thank you both for your arguments today the case just heard will be cemented for decision and will be in recess