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1 OFFICE OF THE COUNTY COUNSEL

KEKER & VAN NEST LLP

COUNTY OF SANTA CLARA

JOHN W. KEKER - # 49092

2 JAMES R. WILLIAMS - # 271253

jkeker@kvn.com

County Counsel

ROBERT A. VAN NEST - # 84065

3 james.williams@cco.sccgov.org

rvannest@kvn.com

GRETA S. HANSEN - # 251471

DANIEL PURCELL - # 191424

4 DANIELLE L. GOLDSTEIN - # 257486

dpurcell@kvn.com

KAVITA NARAYAN - # 264191

CODY S. HARRIS - # 255302

5 JAVIER SERRANO - # 252266

charris@kvn.com

JULIA B. SPIEGEL - # 292469

NICHOLAS S. GOLDBERG - # 273614

6 ADRIANA L. BENEDICT - # 306936

ngoldberg@kvn.com

70 West Hedding Street

633 Battery Street

7 East Wing, Ninth Floor

San Francisco, CA 94111-1809

San Jose, CA 95110-1770

Telephone: 415 391 5400

8 Telephone: (408) 299-5900

Facsimile: 415 397 7188

Facsimile: (408) 292-7240

9

Attorneys For Plaintiff COUNTY OF SANTA CLARA

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN JOSE DIVISION

14 COUNTY OF SANTA CLARA,

Case No.

15

Plaintiff,

16

v.

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

17 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY,
18 in his official capacity as Secretary of the United States Department of Homeland
19 Security, DANA J. BOENTE, in his official capacity as Acting Attorney General of the
20 United States, MARK SANDY, in his official capacity as Acting Director of the
21 Office of Management and Budget, and DOES 1-50,
22 Defendants.
23

24

25

26

27

28

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1

TABLE OF CONTENTS

2

Page

3 INTRODUCTION ...........................................................................................................................1

4 JURISDICTION AND VENUE ......................................................................................................5

5 INTRADISTRICT ASSIGNMENT.................................................................................................5

6 THE PARTIES.................................................................................................................................5

7 FACTUAL ALLEGATIONS ..........................................................................................................6

8

A. The County Relies on Federal Funding. ..................................................................6

9

1. 1.9 million residents depend upon the County for essential services. .........6

10

2. The County relies on federal funds to provide essential services and

meet its budget. ............................................................................................7

11

3. The County must make budgetary decisions today for future

12

services. ......................................................................................................11

13

4. County policies and practices regarding cooperation with U.S.

Immigration and Customs Enforcement (“ICE”) conflict with the

14

President’s stated policies. .........................................................................12

15

B. The President’s Executive Order Regarding “Sanctuary Jurisdictions” is

Unconstitutional. ....................................................................................................16

16

1. The Executive Order constitutes an unprecedented attempt to

17

expand executive power.............................................................................16

18

2. Section 9 of the Executive Order purports to vest the President with

legislative powers that even Congress does not lawfully possess. ............18

19

3. The President’s and his subordinates’ statements reveal the

20

Executive Order’s unconstitutionally broad scope. ...................................22

21

C. Congress Considered and Rejected Conditioning Federal Law Enforcement

Funds on Compliance with Section 1373. .............................................................25

22

D. The County Requires Immediate Relief. ...............................................................29

23

CLAIMS FOR RELIEF .................................................................................................................31

24

CONCLUSION ..............................................................................................................................39

25

PRAYER FOR RELIEF ................................................................................................................40

26

27

28

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INTRODUCTION

2

1. This lawsuit challenges President Donald J. Trump’s January 25, 2017 executive

3 order directing reprisals against state, local, and municipal governments that he deems to be so4 called “sanctuary jurisdictions.” Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the 5 “Executive Order”). The Executive Order is patently unconstitutional under the Constitution’s

6 plain text, as well as settled United States Supreme Court precedent. The Executive Order throws 7 Plaintiff County of Santa Clara’s current budgetary and planning process into chaos, and also 8 poses a real risk to the health, welfare, and safety of thousands of County residents.

9

2. The Executive Order purports to seize for the President and his subordinate

10 executive officers—namely, the Attorney General and the Secretary of Homeland Security—the

11 power to declare any “sanctuary jurisdiction” ineligible to receive any federal funds. The

12 Executive Order nowhere defines the term “sanctuary jurisdiction.” The Secretary of Homeland 13 Security has plenary authority to designate any state, city, county, or other entity as a “sanctuary 14 jurisdiction,” despite that term having no defined meaning.

15

3. The Executive Order fails to provide any state or local government designated as a

16 “sanctuary jurisdiction” with a right to challenge the designation through judicial review or any

17 other means. Indeed, the Executive Order does not even require the federal government to

18 provide notice to a state or local government that it has been designated a “sanctuary 19 jurisdiction.” Accordingly, the Executive Order gives the President and his executive agents 20 unfettered, unreviewable discretion to strip any state or local government of its right to obtain any

21 federal money, at any time or for any purpose, including money Congress has already

22 appropriated and directed be paid.

23

4. The Executive Order does not stop there. It also directs the Attorney General to

24 “take appropriate enforcement action” not only against so-called “sanctuary jurisdictions,” but 25 also any “entity” that “has in effect a statute, policy, or practice that prevents or hinders the 26 enforcement of Federal law.” The Executive Order does not define what constitutes “preventing”

27 or “hindering” enforcement of federal law. As a result, this broadly and carelessly worded 28 directive requires our nation’s top law-enforcement officer to take reprisals against any state, city,

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1 county, or other municipality that he may decide, in his sole and unreviewable discretion, has

2 taken any act that he believes “hinders” any interest set forth in the vast body of federal law. An

3 aggrandizement of executive power of this magnitude has rarely been attempted in the history of

4 the Republic.

5

5. The Executive Order also grants the Attorney General authority to commandeer

6 local law enforcement officers to carry out the President’s immigration agenda. It further

7 obligates the Attorney General to retaliate against a local government whose law enforcement

8 officers fail to provide what he considers “full compliance,” in his sole and unreviewable

9 discretion.

10

6. The Executive Order contains other enormous and obvious problems. Section 5,

11 for example, vastly expands federal immigration enforcement priorities by prioritizing for

12 removal undocumented immigrants who, inter alia, have allegedly “committed acts that

13 constitute a chargeable criminal offense,” “abused any program related to receipt of public

14 benefits,” or who, “[i]n the judgment of an immigration officer, otherwise pose a risk to public

15 safety or national security.” Executive Order, Sec. 5(c), (e), (g) at 8800. These standardless

16 provisions encourage and sanction arbitrary, subjective, and discriminatory enforcement. And

17 Section 6 of the Executive Order requires assessment of “fines and penalties” against not only

18 undocumented persons but anyone who “facilitate[s] their presence in the United States.” This

19 undefined and unbounded category may include anyone who unknowingly rents a room to or

20 conducts business with an undocumented person, medical personnel who provide essential or

21 even life-saving services to an undocumented person, or even a lawyer defending such a person in

22 immigration proceedings.

23

7. Through this lawsuit, the County of Santa Clara (“the County”) challenges only

24 those aspects of the Executive Order’s unconstitutionality that directly injure the County’s

25 interests and are ripe for judicial review. Other challenges by other plaintiffs are sure to follow.

26 This action alleges that the Executive Order is unconstitutional for the following independent

27 reasons.

28

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8. First, the Executive Order seizes for the President and the executive branch the

2 power of the federal purse, which belongs exclusively to Congress under Article I, section 8,

3 clause 1 of our federal Constitution. Only Congress has the power to appropriate and spend

4 federal dollars. This power includes the right to determine who is eligible to receive federal

5 funds, as well as which conditions, if any, they must fulfill to receive those funds. The President

6 has no power to appropriate funds or unilaterally place conditions on eligibility for receipt of

7 federal money, much less to bar by fiat a state, city, or county from receiving any federal money

8 whatsoever. Yet that is what the Executive Order purports to do.

9

9. In fact, the Executive Order is so unconstitutionally overbroad that it claims

10 spending power for the President and the executive branch that even Congress lacks. Under a

11 long and unbroken line of United States Supreme Court precedent, Congress’s power to place

12 conditions on the receipt of federal funds is limited in several fundamental respects. Once it

13 provides money to a state, county, or city and the money is accepted, Congress is barred from

14 imposing new conditions. Nor may Congress impose conditions on federal money that are

15 unrelated to the federal interest furthered by the appropriated funds. And Congress cannot

16 impose a condition that is so coercive that it amounts to “a gun to the head,” leaving the state or

17 local government with no real choice but to buckle to a federal demand. The Executive Order

18 attempts to do all these things. Accordingly, even if the Executive Order were an Act of

19 Congress, or authorized by one, it would be unconstitutional.

20

10. Congress has not only failed to grant the President the spending power he now

21 claims, but it also considered and rejected the very policy the Executive Order now seeks to

22 impose by dictate. Indeed, Senator Jeff Sessions—the man tapped to become the Attorney

23 General referenced in the Executive Order—introduced a Senate bill in 2015 that would have

24 conditioned the receipt of certain, law-enforcement-related federal funds on compliance with

25 federal immigration enforcement directives and priorities. The bill died in committee, as did its

26 counterpart in the House of Representatives. After Mr. Sessions failed to achieve his policy ends

27 through the legislative process, the President simply imposed them through the Executive Order,

28 which repeats portions of Mr. Sessions’s failed bill verbatim. A long line of Supreme Court

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1 precedent makes clear that when the President acts in derogation of the “expressed or implied will

2 of Congress, his power is at its lowest ebb.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

3 579, 637 (1952) (Jackson, J., concurring). That is the case here. The President cannot enact Mr.

4 Sessions’s bill by executive order, especially when Congress itself declined the opportunity.

5

11. Second, the Executive Order is unconstitutional because it is too vague to provide

6 the County with reasonable notice of what it must do to comply with its terms and avoid

7 unspecified “enforcement actions.” The Executive Order requires states, cities, and counties to

8 refrain from “hinder[ing]” any enforcement of any federal law. Because this standard is nowhere

9 defined in the Executive Order and its application is left up entirely to the sole and unreviewable

10 discretion of the Attorney General, a state, city, or county could suffer whatever reprisals deemed

11 appropriate by the Attorney General for any act deemed insufficiently supportive of federal law

12 enforcement. Such a vague order cannot stand.

13

12. Third, the Executive Order denies the County the procedural due process

14 protections afforded to it by the Fifth Amendment. The Executive Order provides the County no

15 clue as to which acts would trigger the “hindrance” standard, and no opportunity to contest the

16 Attorney General’s decision or have that decision reviewed by an independent tribunal. Indeed,

17 the Executive Order fails to guarantee that the County will even receive notice that it has been

18 designated a “sanctuary jurisdiction” subject to deprivation of federal funds and unspecified

19 enforcement actions. Because it fails to provide affected jurisdictions with reasonable notice or

20 any opportunity to be heard, the Executive Order violates the Due Process Clause of the Fifth

21 Amendment to the United States Constitution.

22

13. Fourth, the Executive Order violates the Tenth Amendment and the federalism

23 principles that animate our governmental structure. By requiring that County officials take

24 unspecified actions to avoid “prevent[ing] or hinder[ing]” the federal government in the

25 enforcement of “Federal law,” the Executive Order commandeers state and local officials,

26 transforming them into federal apparatchiks and severing the bonds of political accountability

27 inherent in our federal system.

28

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14. It is no exaggeration to say that the Executive Order contravenes centuries of

2 constitutional law establishing the separation of powers between the legislative and executive

3 branches of the federal government. It likewise flouts basic principles of federalism that prevent

4 the federal government from invading the sovereignty of state and local governments. It is a

5 naked grab for power that never has, does not, and cannot belong to the President or the executive

6 branch. It is wholly unconstitutional and must be struck down.

7

JURISDICTION AND VENUE

8

15. The Court has federal question jurisdiction under 28 U.S.C. § 1331 because this

9 action arises under the Constitution and the laws of the United States. The Court also has

10 jurisdiction under 28 U.S.C. § 1346 because this is a civil action or claim against the United

11 States founded upon the Constitution, an Act of Congress, and an executive regulation. Finally,

12 this Court has mandamus jurisdiction under 28 U.S.C. § 1361, which provides that “[t]he district

13 courts shall have original jurisdiction of any action in the nature of mandamus to compel an

14 officer or employee of the United States or any agency thereof to perform a duty owed to the

15 plaintiff.”

16

16. Venue is proper in this District under 28 U.S.C. § 1391(e) because Defendants are

17 officers and employees of the United States or any agency thereof acting in their official

18 capacities, Plaintiff resides in this District, and a substantial part of the events or omissions giving

19 rise to this action are occurring in this District.

20

17. The Court is authorized to award the requested declaratory, and preliminary and

21 permanent injunctive relief, pursuant to 28 U.S.C. §§ 2201–2202.

22

INTRADISTRICT ASSIGNMENT

23

18. Pursuant to Civil L.R. 3-2(c), this case should be assigned to the San Jose Division

24 of this Court because the action arises in Santa Clara County.

25

THE PARTIES

26

19. Plaintiff County of Santa Clara is a charter county organized and existing under

27 the laws of the State of California.

28

20. Defendant Donald J. Trump is the President of the United States. He is sued in his

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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official capacity.
21. Defendant John F. Kelly is the Secretary of the U.S. Department of Homeland
Security, a federal government agency responsible for, among other things, the enforcement of
U.S. immigration laws. Defendant Kelly is sued solely in his official capacity.
22. Defendant Dana J. Boente is the Acting Attorney General of the U.S. Department of Justice.1 Defendant Boente is sued solely in his official capacity.
23. Defendant Mark Sandy is the Acting Director of the Office of Management and Budget.2 Defendant Sandy is sued solely in his official capacity.
24. The true names and capacities of Defendants identified as DOES 1-50 are
unknown to Plaintiff, and Plaintiff will amend this Complaint to insert the true names and
capacities of those fictitiously named Defendants when they are ascertained.
FACTUAL ALLEGATIONS
A. The County Relies on Federal Funding.
1. 1.9 million residents depend upon the County for essential services. 25. The County was established in 1850 as one of the first counties in California
statehood. Today, 1.9 million people reside in the County, and rely on it to provide essential
services, such as law enforcement, health and hospital care, education, care for youth and elderly,
and social services. Many of the County’s programs serve the neediest County residents, such as
abused and neglected children, indigent and uninsured individuals requiring health care, persons
who are mentally ill or substance dependent, and persons who are physically or mentally
disabled.
26. The County also oversees most regional public health and public safety functions,
including emergency planning and services, disease control and prevention, and criminal justice
administration, in addition to operating roads, airports, parks, libraries, election systems, fire
departments, and many other critical functions. 1 The President has nominated Senator Jeff Sessions to serve as Attorney General, and, if confirmed, Senator Sessions will replace Acting Attorney General Boente. 2 The President has nominated Congressman Mick Mulvaney to serve as Director of the Office of Management and Budget and, if confirmed, Representative Mulvaney will replace Acting Director Sandy.
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1

2. The County relies on federal funds to provide essential services and

meet its budget.

2

3

27. The County receives approximately $1 billion annually in federal funds,

4 representing about 15% of its $6 billion annual budget. Only a small fraction of the federal

5 funding the County receives relates to immigration or law enforcement. Much of the federal

6 funding the County receives is passed through the State of California.

7

28. As discussed below, the vast majority of federal funding the County receives is

8 used to provide essential safety-net programs and social services to its residents. Without these

9 federal funds, the County would be forced to make extraordinary cuts to critical services—and in

10 some cases totally eliminate key County services and functions. The elimination, or even

11 reduction, of federal funding would require the County to fundamentally and globally reallocate

12 funds and services. And, because the Executive Order purports to withdraw all federal funds

13 from “sanctuary jurisdictions,” the County is forced to determine now whether and how much to

14 cut services, and whether a global reallocation of resources is necessary.

15

Santa Clara Valley Medical Center

16

29. Santa Clara Valley Medical Center (“SCVMC”) is the only safety-net healthcare

17 provider in the County. Wholly owned and operated by the County, SCVMC provides healthcare

18 services to indigent and underserved patients whom other healthcare providers often refuse to

19 serve. It operates a 574-bed hospital, specialized centers that provide trauma, burn and

20 rehabilitation, renal and ambulatory care, ten ambulatory care clinics, and four medical and dental

21 units.

22

30. Approximately seventy percent of SCVMC’s $1.4 billion annual budget comes

23 from direct federal funding, as well as funds from other sources that are dependent on the

24 existence of a federal funding stream, and would not be provided in the absence of federal funds.

25 Together, these funds help pay for the full suite of health care that SCVMC provides, including

26 critical ambulatory primary and specialty care, women’s and children’s health services, neonatal

27 and pediatric intensive care, comprehensive adult and pediatric specialty services, comprehensive

28 oncology services, comprehensive trauma and emergency services, and other essential medical

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1 services, as well as emergency and acute psychiatric services. Federal funds also allow SCVMC

2 to invest in research, programs, and technologies that benefit all patients and society more

3 broadly.

4

31. If SCVMC were to lose the funding that it receives from federal grants and

5 reimbursements, hundreds of thousands of patients—including infants and children, the elderly,

6 and those with chronic disease—would be left without viable healthcare options. This would

7 create an untenable healthcare crisis in the community.

8

Social Services Agency

9

32. The County’s Social Services Agency (“SSA”) provides a wide array of services

10 to the County’s most vulnerable residents, including child welfare and child protective services,

11 aid to needy families, services and support to disabled children and adults, services and protection

12 to elderly individuals, and administration of many public benefits programs.

13

33. The SSA receives over $300 million in federal funding each year—approximately

14 40% of its budget—to support these essential safety-net services. Nearly all of the County’s SSA

15 funding is reimbursement-based, requiring the County to front the money necessary to provide

16 services to its residents now based on the federal government’s promise to reimburse the County

17 later.

18

34. The County relies on these federal funds to provide critical social services to its

19 neediest residents—including child welfare services, in-home care and nutrition services for the

20 elderly, and time-limited assistance to the County’s lowest-income families. Furthermore,

21 because a substantial amount of SSA’s federal funding pays for service providers, cutting those

22 funds would threaten the jobs of approximately 23,000 workers who perform social work, home

23 health care, and food services.

24

Behavioral Health Services Department

25

35. The County’s Behavioral Health Services Department provides essential services

26 to residents struggling with mental illness and substance abuse. It offers a broad range of services

27 including mental health urgent care, crisis intervention, housing and support services, psychiatric

28

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1 services, residential treatment programs, substance abuse treatment and services, jail diversion

2 programs, and substance abuse prevention and education services.

3

36. The Behavioral Health Services Department receives approximately $131 million

4 in direct federal funding annually, accounting for over 30% of its operating budget.

5

37. Without this federal funding, the County would be forced to drastically reduce the

6 quantity and quality of behavioral health services it provides, and would be forced to significantly

7 cut staff. In turn, residents would lose access to critical behavioral health services, making them

8 more vulnerable to crises or decompensation, relapse, and increased risk of homelessness,

9 addiction, criminal activity, incarceration, and death.

10

Public Health Department

11

38. The County’s Public Health Department protects and promotes the health of the

12 County’s residents through programs to identify, treat, and stop the spread of communicable and

13 potentially lethal diseases; to provide disease and injury prevention; to offer immunizations for

14 children and travelers; and to provide health education. The fifteen cities within the County lack

15 their own public health departments and depend entirely on the County’s Public Health

16 Department to provide these services.

17

39. Federal funds comprise approximately $40 million of the Public Health

18 Department’s $100 million annual budget.

19

40. The loss of federal funds would have a devastating impact on the County’s ability

20 to continue providing core public health services for the communities most in need. The County

21 depends on these federal funds to support, among other things: the prevention of communicable

22 diseases; maternal, child, and adolescent health care; food benefits, breastfeeding support, and

23 nutrition education for low-income mothers and their children; medical care for uninsured and

24 underinsured individuals living with HIV/AIDS; services for severely disabled children with

25 chronic diseases; immunization support and vaccination services for children and schools; and

26 programs to prepare for and respond to public health emergencies and potential terrorism.

27

Office of Emergency Services

28

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41. The County’s Office of Emergency Services (“OES”) is responsible for facilitating

2 the County’s preparation for, response to, and recovery from disasters of all types—from severe

3 weather events to terrorism to major earthquakes. Among its responsibilities, OES provides

4 emergency management training exercises; engages in region-wide hazard planning; operates the

5 Santa Clara County Emergency Operations Center during emergency incidents; and coordinates

6 regional efforts to recover following emergency incidents.

7

42. For fiscal year 2016, OES has been awarded more than $5 million in federal

8 funding, representing almost two-thirds of its budget. All of this funding is provided by the

9 federal government on a reimbursement basis, with several million in grant funding currently

10 outstanding—i.e., the funds have been awarded by the federal government, but the County has

11 not yet been reimbursed.

12

43. These federal funds are critical to keeping the local community safe during natural

13 disasters, man-made emergencies, acts of terrorism, and other large-scale catastrophic events.

14 Furthermore, these funds are essential to the County’s community- and region-wide emergency

15 planning and preparedness.

16

Other Federal Funding

17

44. Despite their broad reach, the funding streams described above represent only a

18 fraction of the County’s federal funding sources. Numerous other County departments and

19 agencies rely on federal funding to provide essential health, safety, and welfare services to the

20 community, including the Consumer and Environmental Protection Agency, the Office of

21 Supportive Housing, the Roads and Airports Department, the Facilities and Fleet Department, the

22 Department of Child Support Services, the Probation Department, the Sheriff’s Office, the

23 Department of Parks and Recreation, and the Office of the County Executive.

24

45. Without federal funding, these departments and agencies would have to roll back

25 their support of programs that comprise the very fabric of the community, including housing and

26 community development, housing stability and supportive services for the chronically homeless,

27 highway planning and construction, water quality improvement, agricultural pest management,

28 child support, juvenile justice, security and intelligence initiatives, and multifaceted crime

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1 prevention. It is a near certainty that the County’s federal funding touches each and every one of

2 its 1.9 million residents in some way or another.

3

3. The County must make budgetary decisions today for future services.

4

46. Each year, as required by the County Charter, the County Executive develops a

5 recommended budget for approval by the Board of Supervisors. To develop that budget, County

6 staff carefully analyzes and weighs a multitude of factors including anticipated revenues, specific

7 service needs for diverse subsets of County residents, salary and benefits costs for the County’s

8 18,000 employees, and an array of local priorities.

9

47. The County is currently in the process of formulating its budget for the fiscal year

10 beginning on July 1, 2017.

11

48. Reliable access to federal funding plays a critical role in the County’s budgeting

12 process. The County receives federal funds in several different forms. For example, many of the

13 federal funds the County receives are provided as reimbursements, under which the County first

14 expends its own funds, and later seeks partial or complete reimbursement from the federal

15 government. Other federal revenues are provided on a fee-for-service basis, under which the

16 County must expend its own resources to deliver services, and then subsequently seek fee-based

17 payments from the federal government. Still other federal funds are provided to the County in the

18 form of direct, upfront grants. The County receives all federal funding either directly from the

19 federal government, or passed through the State of California or other government entities.

20

49. The Executive Order has thrown the County’s budget process into chaos, as the

21 County suddenly faces the possibility that more than $1 billion of its anticipated revenues could

22 disappear at the executive branch’s whim. The County’s contingency reserve is approximately

23 $130 million, so there is no means by which the County could possibly absorb the resulting

24 shortfall. Because the County’s federally funded programs operate continuously, the County

25 must decide whether to continue incurring hundreds of millions of dollars in costs that may never

26 be reimbursed by the federal government, or instead discontinue basic safety-net services

27 delivered to its most vulnerable residents.

28

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1

4. County policies and practices regarding cooperation with U.S.

Immigration and Customs Enforcement (“ICE”) conflict with the

2

President’s stated policies.

3

50. The County is responsible for operating numerous criminal justice agencies,

4 including the County Sheriff’s Office, Department of Correction, District Attorney’s Office,

5 Public Defender’s Office, Probation Department, and Office of Pretrial Services. These agencies

6 investigate and prosecute crimes; provide criminal defense to indigent defendants; provide

7 services to arrestees during the pretrial phase as well as post-sentencing to reduce flight and

8 recidivism; and ensure the safety and security of all residents of the County, including those in

9 custody in the County jail system, which is the fifth largest in California.

10

51. As part of their responsibility to apprehend and detain those suspected or

11 convicted of committing criminal offenses, the County Sheriff’s Office and Department of

12 Correction have had significant experience with ICE “civil detainer requests” and other

13 immigration enforcement mandates.

14

52. An ICE civil detainer request asks a local law enforcement agency to continue to

15 detain an immigrant inmate—who is generally being held in a local jail for violations or

16 suspected violations of state criminal laws—for up to 48 additional hours after his or her regularly

17 scheduled release date so that ICE can decide whether to take the individual into custody and

18 initiate removal proceedings.

19

53. Prior to late 2011, the County Sheriff’s Office and Department of Correction

20 regularly responded to ICE civil detainer requests and other inquiries from federal immigration

21 officials. As a result of ICE civil detainer request, during this period, the County was holding on

22 average 135 additional inmates at a time, at a daily cost of $159 per person.

23

54. In a public exchange of letters from August through October 2010, then-County

24 Counsel Miguel Márquez asked ICE to clarify, among other things, (i) whether ICE viewed

25 detainer compliance as compulsory, and (ii) whether the federal government would indemnify

26 and reimburse the County for the costs associated with civil detainer requests. ICE responded

27 that detainers are “requests,” but that ICE would neither reimburse detention costs nor indemnify

28 localities for any liability arising from responding to detainer requests.

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1

55. Over the next several months, a task force convened by the County Board of

2 Supervisors, and comprised of officials from each of the County criminal justice agencies listed

3 above, carefully reviewed the County’s history of compliance with ICE detainer requests, placing

4 special focus on the impact on public safety in the community. The task force determined that a

5 tailored approach of honoring ICE detainer requests only for individuals with serious or violent

6 felony convictions, as defined under California law, would best protect public safety in the

7 County.

8

56. When the Board of Supervisors formally adopted this position in the County Civil

9 Detainer Policy in October 2011, it also included a provision stating that the County would honor

10 ICE detainer requests for individuals with the requisite convictions only if ICE would enter into a

11 prior written agreement “by which all costs incurred by the [C]ounty in complying with the ICE

12 detainer shall be reimbursed.” To date, ICE has refused to enter into a reimbursement agreement

13 with the County, so the County has not honored any detainer requests since October 2011.

14 Although the precise scope and meaning of the undefined term “sanctuary jurisdictions” is

15 unknown and the executive branch’s discretion to declare a state or local government to be such a

16 jurisdiction is boundless, the County reasonably anticipates that its practices would place it on the

17 Department of Homeland Security’s weekly list of jurisdictions “that ignored or otherwise failed

18 to honor any detainers.” Executive Order, Sec. 9(b) at 8801.

19

57. Additionally, in 2010, the County Board of Supervisors adopted a Resolution

20 affirming the separation between County services and the enforcement of federal civil

21 immigration law. The Resolution prohibits County employees, including law enforcement

22 officers, from initiating an inquiry or enforcement action based solely on an individual’s actual or

23 suspected immigration status, national origin, race/ethnicity, or English-speaking ability. It also

24 prohibits the use of County funds or resources to investigate, question, apprehend, or arrest an

25 individual solely because of an actual or suspected violation of immigration law, or to transmit to

26

27

28

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ICE for purposes of federal immigration enforcement information collected by the County in the course of providing critical social services.3
58. The County’s policies relating to involvement in federal immigration enforcement
were specifically designed to advance public safety. County law enforcement officials rely on
members of the local community—including those who lack lawful immigration status—to report
crimes, come forward as witnesses, aid in apprehending individuals with bench warrants, and
assist with criminal prosecutions.
59. When local law enforcement officers are perceived as immigration enforcers, the
result is a dangerous chilling effect on trust and cooperation from the community. Individuals are
less likely to seek police officers’ help for fear of being questioned about their immigration status.
Crimes go unreported. Victims and witnesses are hesitant to offer testimony. And communities
are less safe. The view that involving local officials in federal immigration enforcement
undermines public safety is not unique to the County of Santa Clara. Indeed, local law
enforcement agencies around the country echo the County’s experience.
60. The Executive Order wrongly suggests that only maximum cooperation with
federal immigration enforcement priorities by local law enforcement agencies can protect public
safety. In fact, forcing local governments such as the County to engage in immigration
enforcement—whether by requiring them to honor ICE civil detainer requests or, more broadly,
by compelling them to act as federal immigration officers—drives a wedge between local law
enforcement officers and the communities they serve and protect, undercutting law enforcement’s
core public safety mandate.
61. Compelling the County to engage in immigration enforcement also threatens the
County’s fiscal stability. First, civil detainer requests impose significant costs that the federal
3 Starting in 2016, two federal grant programs in which the County had participated—the State Criminal Alien Assistance Program (SCAAP) and Edward Byrne Memorial Justice Assistance Grant (JAG)—required the County to certify its compliance with “all applicable federal laws.” On July 7, 2016, the U.S. Department of Justice issued guidance explaining that 8 U.S.C. § 1373, which relates to sharing of immigration status information, is now considered an “applicable federal law” for purposes of SCAAP and JAG funds, and that state and local governments with any restrictions on information-sharing with ICE would be viewed as noncompliant. To retain its discretion, the County decided in October 2016 not to apply for or accept future SCAAP or JAG funds from the federal government.
14
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1 government refuses to reimburse. Although a civil detainer request formally asks a local law

2 enforcement agency to maintain custody of an individual for an additional 48 hours beyond when

3 he or she would otherwise be released, individuals subject to civil detainers typically are held for

4 much longer than they would absent the detainer—largely because the existence of a detainer

5 request makes an individual highly unlikely to be offered a bail bond to facilitate his or her

6 release from custody pending trial. The costs associated with compliance with ICE detainer

7 requests can quickly skyrocket, diverting County resources away from critical public safety

8 functions to federal civil immigration enforcement.

9

62. Second, honoring civil detainer requests would expose the County to substantial

10 liability for constitutional violations. Federal courts around the country have held that honoring

11 ICE civil detainer requests exposes local law enforcement agencies to liability under the Fourth

12 Amendment. E.g., Morales v. Chadbourne, 793 F.3d 208, 215-16 (1st Cir. 2015); Miranda-

13 Olivares v. Clackamas County, No. 3:12-cv-02317-ST, 2014 WL 1414305, at *11-12 (D. Or.

14 Apr. 11, 2014). The federal government has made clear that it will not indemnify local law

15 enforcement agencies against constitutional claims, even when they arise directly out of actions

16 the local agency has taken at the federal government’s behest.

17

63. In addition, the County is currently a defendant in a class action lawsuit alleging

18 Eight and Fourteenth Amendment violations relating to significant overcrowding in the County

19 jails. Substantially increasing the jail population by honoring ICE detainers would directly and

20 immediately compound the County’s potential liability.

21

64. Even if the County rescinded its policies governing local participation in federal

22 immigration enforcement, as the Executive Order seeks to compel, the County would still be

23 required to comply with state laws that also significantly constrain its participation in federal

24 immigration enforcement activities. California’s Transparency and Responsibility Using State

25 Tools (TRUST) Act, Cal. Gov. Code § 7282.5, permits local law enforcement agencies to honor

26 ICE detainer requests only with respect to individuals in their custody who have specific prior

27 criminal convictions or criminal charges as to which a judge has made a finding of probable

28 cause. Moreover, the pending “California Values Act,” Senate Bill 54, would (a) prohibit state

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and local law enforcement agencies and school police from using public resources to investigate, interrogate, detain, detect, or arrest anyone solely for immigration enforcement purposes, and (b) require state agencies to ensure that information collected from individuals in the course of service delivery is limited to that necessary to provide services and is not used or disclosed for any other purpose.
65. Indeed, in a memorandum issued by the Department of Justice’s Office of the Inspector General (OIG) relating to 8 U.S.C. § 1373, the OIG called out the entire State of California as a jurisdiction that does not fully comply with federal immigration enforcement priorities.4 Because much of the County’s federal funding is passed through agencies of the State of California, these active questions about the continuation of federal funding streams to the State of California as a whole substantially exacerbate the County’s fiscal uncertainty.
B. The President’s Executive Order Regarding “Sanctuary Jurisdictions” is Unconstitutional. 1. The Executive Order constitutes an unprecedented attempt to expand executive power.
66. On January 25, 2017, President Donald J. Trump issued Executive Order 13768, entitled “Enhancing Public Safety in the Interior of the United States.” That Executive Order was published in the Federal Register on January 30, 2017, at Vol. 82, No. 18. It is available on the White House public website (https://www.whitehouse.gov/the-pressoffice/2017/01/25/Presidential-executive-order-enhancing-public-safety-interior-united), and is attached hereto as Exhibit A.
67. The Executive Order represents a gross overreach of executive power. This power grab comes at the expense of powers constitutionally vested in the Congress, as well as state and local governments.
68. Section 1 of the Executive Order announces the order’s “[p]urpose.” Executive Order, Sec. 1 at 8799. It declares that “Sanctuary jurisdictions across the United States willfully
4 Memorandum from Michael E. Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen. for the Office of Justice Programs, “Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients,” at 13 (May 31, 2016), https://oig.justice.gov/reports/2016/1607.pdf (“Horowitz Memo”).
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1 violate Federal law in an attempt to shield aliens from removal from the United States. These

2 jurisdictions have caused immeasurable harm to the American people and to the very fabric of our

3 Republic.” Id.

4

69. Section 2 of the Executive Order sets forth the “policy of the executive branch.”

5 Id. Sec. 2 at 8799. It describes that policy as, among other things, “[e]nsur[ing] that jurisdictions

6 that fail to comply with applicable Federal law do not receive Federal funds, except as mandated

7 by law.” Id. Sec. 2(c) at 8799.

8

70. Section 3 of the Executive Order is titled “Definitions,” but contains no specific

9 definitions applicable to the order. Id. Sec. 3 at 8799. Instead, it states that “the terms of this

10 order, where applicable, shall have the meaning provided by” 8 U.S.C. § 1101. Id.

11

71. In a sharp break with past practice, Section 5 of the Executive Order expands the

12 federal government’s immigration enforcement priorities well beyond any threshold needed to

13 protect public safety. Section 5 calls upon the Department of Homeland Security to “prioritize

14 for removal those aliens” who are removable on a large number of grounds, including that they:

15

i) have criminal charges that have not been resolved;

16

ii) “have committed acts that constitute a chargeable criminal offense” even if

17 no charges have been filed;

18

iii) are arriving without prior admission (e.g., asylum-seekers);

19

iv) have “abused any program related to receipt of public benefits”; or

20

v) “otherwise pose a risk to public safety or national security” in the judgment

21 of “an immigration officer,” not an immigration judge. Executive Order, Sec. 5 at 8800.

22

72. These vague categories sweep in millions of individuals who have not been

23 convicted of any criminal offense, let alone a serious or violent one. For example, “acts that

24 constitute a chargeable criminal offense” could include a wide range of ordinary and

25 nonthreatening conduct. Leaving unbridled discretion in the hands of immigration officers to

26 brand individuals as “criminals” or “risks to public safety or national security”—without any

27 clear standards or criteria—raises serious due process concerns.

28

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1

73. Section 6 of the Executive Order is equally vague and subject to arbitrary and

2 discriminatory enforcement. Section 6 purports to impose “fines and penalties” upon not only

3 “aliens unlawfully present in the United States,” but also upon “those who facilitate their

4 presence in the United States.” Executive Order, Sec. 6 at 8800 (emphasis added). This

5 undefined phrase could result in attempts by the executive branch to impose penalties upon

6 County employees who provide essential or even lifesaving services to immigrants who are

7 unlawfully present; their friends and family members; churches and other religious organizations

8 that assist them; landlords, co-workers, or employers; or even attorneys who represent them in

9 immigration proceedings.

10

2. Section 9 of the Executive Order purports to vest the President with

11

legislative powers that even Congress does not lawfully possess.

12

74. Section 9 of the Executive Order concerns the so-called “Sanctuary Jurisdictions”

13 that are the subject of the order, as noted in Section 1. The Executive Order includes no clear

14 definition of that phrase, nor is that phrase defined in 8 U.S.C. § 1101.

15

75. Section 9(a) purports to vest executive branch officials with broad authority and

16 unlimited, unreviewable discretion to deny federal funds to whichever jurisdictions they deem to

17 be Sanctuary Jurisdictions, and to take unspecified enforcement action against them. It begins

18 with an unconstitutional provision allowing the executive branch to strip federal funding from

19 such purported Sanctuary Jurisdictions:

20

[T]he Attorney General and the Secretary [of Homeland Security], in their

discretion and to the extent consistent with law, shall ensure that jurisdictions that

21

willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not

eligible to receive Federal grants, except as deemed necessary for law enforcement

22

purposes by the Attorney General or the Secretary. The Secretary has the authority

to designate, in his discretion and to the extent consistent with law, a jurisdiction

23

as a sanctuary jurisdiction.

24 Executive Order, Sec. 9(a) at 8801 (the “Defunding Provision”).

25

76. The Defunding Provision places entirely new and amorphous conditions on

26 jurisdictions, like the County, which rely on federal funds to provide services to their residents.

27 Under the Executive Order, if the Attorney General and Secretary of Homeland Security

28 determine (in their unbounded discretion) that a jurisdiction is “willfully refus[ing] to comply

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with 8 U.S.C. 1373,” then those jurisdictions will be rendered “not eligible to receive Federal grants.”5 Id.
77. Section 1373 provides, inter alia, that local governments may not prohibit or
restrict “any government entity or official from sending to, or receiving from, the Immigration
and Naturalization Service information regarding the citizenship or immigration status . . . of any
individual.” 8 U.S.C. § 1373(a). It further forbids any person or agency from prohibiting or
restricting any government entity from sending, maintaining, or exchanging such information with federal immigration officials. Id. § 1373(b).6
78. The Defunding Provision includes no process or procedure by which a state or
local government may review, challenge, or even receive notice regarding its designation as a
“sanctuary jurisdiction.”
79. The Defunding Provision makes no mention of any statutory authority for the new
conditions it imposes on the affected jurisdictions. Indeed, it makes no reference to Congress or
Congressional action whatsoever. Rather, it grants the power to impose the new conditions—as
well as to determine if those conditions have been met and to deny funding on that basis—solely
to executive branch officials.
80. The Defunding Provision is incredibly broad. On its face, it appears to apply to
existing and expected federal funds. It makes no distinction between block grants provided to
states or municipalities, funds disbursed as reimbursements for previous or expected
expenditures, funds disbursed under a fee-for-service model, or funds provided to state and local
governments through entitlements such as Medicare or Medicaid.
81. Section 9(c) of the Executive Order makes clear that the Defunding Provision is
intended to apply to all federal funds. Section 9(c) orders the Director of the Office of
5 Because the phrase “Federal grant” is nowhere defined in the Executive Order, the County must interpret that phrase to apply to all federal funds, whatever their source. This interpretation is consistent with the President’s statements regarding his desire to cut off taxpayer funds to state and local governments he considers to be “sanctuary jurisdictions.” See infra ¶¶ 91–95. 6 The federal government has expanded on its view of what Section 1373 requires through various memoranda and guidance documents. See, e.g., Horowitz Memo; Office of Justice Programs, Guidance Regarding Compliance with 8 U.S.C. § 1373, U.S. Dep’t of Justice (July 7, 2016); Office of Justice Programs, Additional Guidance Regarding Compliance with 8 U.S.C. § 1373, U.S. Dep’t Just. (October 6, 2016).
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1 Management and Budget “to obtain and provide relevant and responsive information on all

2 Federal grant money that currently is received by any sanctuary jurisdiction.” Executive Order,

3 Sec. 9(c) at 8801 (emphasis added). On its face, the order targets “all” federal funds, whatever

4 their source, and includes funds that affected jurisdictions—including the County—have

5 “currently received.” Id. It is therefore unbounded in both scope and time. Furthermore, the

6 notion that the federal government may, pursuant to this order, attack County funds retroactively

7 is no hypothetical scenario. For each type of funding the County receives, the federal government

8 may attempt to claw back those funds.

9

82. By executive fiat, the Defunding Provision imposes new funding conditions that

10 Congress could not constitutionally have imposed. The Defunding Provision applies to all

11 “Federal grants,” regardless of whether those grants have any connection, relation, or nexus to

12 immigration. Executive Order, Sec. 9(a) at 8801. Such an untethered condition far exceeds

13 Congress’s power under the Spending Clause.

14

83. The order provides a mechanism by which certain monies “deemed necessary for

15 law enforcement purposes” may be exempted from the blanket Defunding Provision. Id. That

16 exemption gets the law exactly backwards, because funds related to law enforcement bear at least

17 some connection to compliance with 8 U.S.C. § 1373, and are arguably the only funds that

18 Congress could conceivably have tied to such compliance in a constitutional manner. See S.

19 1640, 114th Cong. § 114(d) (2015); H.R. 1148, 114th Cong. § 114(d) (2015). But Congress has

20 never imposed any such restriction, and in fact has specifically considered and rejected similar

21 restrictions. See id.

22

84. By threatening all of a jurisdiction’s federal funding, the Defunding Provision goes

23 beyond encouragement and becomes unduly coercive. It is, in effect, “a gun to the head.” Nat’l

24 Fed’n of Indep. Bus. v. Sebelius (“NFIB”), 132 S. Ct. 2566, 2604 (2012). The point of the threat

25 is to compel each affected jurisdiction to “adopt a federal regulatory system as its own,” which is

26 “contrary to our system of federalism.” Id.

27

85. The new spending conditions are also constitutionally infirm. Section 1373 itself

28 raises a host of constitutional issues, particularly under the Tenth Amendment. And to the extent

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1 that the executive branch determines that compliance with 8 U.S.C. § 1373 requires jurisdictions

2 to detain individuals who would otherwise be released from custody, the Executive Order forces

3 jurisdictions to violate the Fourth, Eighth, and Fourteenth Amendment rights of individuals

4 within those jurisdictions, thereby risking civil liability, including personal liability against

5 individual law enforcement officers.

6

86. The Executive Order not only claims the power to strip affected jurisdictions of the

7 federal funding they rely on to govern, but also promises unspecified enforcement action against

8 those jurisdictions:

9

The Attorney General shall take appropriate enforcement action against any entity

that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that

10

prevents or hinders the enforcement of Federal law.

11 Executive Order, Sec. 9(a) at 8801 (the “Enforcement Provision”).

12

87. Like the Defunding Provision, the Enforcement Provision is both extremely broad

13 and entirely vague in its wording. It promises enforcement action against any jurisdiction that

14 “prevents or hinders the enforcement of Federal law.” Id. By its terms, this provision applies to

15 all federal law—all 54 titles of the U.S. Code, and presumably the entire Code of Federal

16 Regulations to boot. Nor is it limited to violations of federal law; it targets any jurisdiction that

17 has a “statute,” “policy,” or “practice” that simply “hinders” enforcement of those laws. The

18 Enforcement Provision does not define what “hinders” means, vesting entirely in the executive

19 branch the power to make that determination and offering no judicial review or other recourse to

20 any jurisdiction deemed to have violated it.

21

88. Taken at face value, the Enforcement Provision reworks the entire structure of our

22 federal republic, granting the federal executive branch untrammeled discretion to punish state and

23 local governments for taking any action—or simply having a policy or practice—that the federal

24 government finds inconvenient. The Enforcement Provision thus violates the anti-

25 commandeering aspect of the Tenth Amendment, as well as federalism principles more generally.

26

89. The Executive Order makes no attempt to ground the vast new authority it seizes

27 for the executive branch in any specific constitutional or statutory authority. The only sources of

28 authority President Trump has claimed for the sweeping and unprecedented order are “the

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1 authority vested in me as President by the Constitution and laws of the United States of America,

2 including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.),” as well as “Article

3 II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code.”

4 Executive Order, Secs. 1, 2 at 8799.

5

90. None of these cited provisions grants the President any of the powers he has taken

6 for his own. Justifying itself by reference to the “authority vested” in the President by the

7 Constitution and federal law, the Executive Order begs the question of whether the President has

8 such authority in the first place. The INA says nothing about withdrawing or restricting federal

9 funds from jurisdictions that fail to comply with 8 U.S.C. § 1373, or imposing “appropriate

10 enforcement action” against certain jurisdictions. Indeed, the phrase “sanctuary jurisdiction” is

11 found nowhere in the Act. Article II, Section 3 of the Constitution is the “Take Care” clause,

12 which by its terms requires the President to follow and execute the law Congress enacted, not to

13 seize legislative power for himself. That clause has never been interpreted to allow the power

14 grab the President is attempting here. And 5 U.S.C. § 3331 is the oath of office every federal

15 official—except the President—takes when appointed to a federal office. The oath provides no

16 independent authority for the powers claimed by the Executive Order.

17

3. The President’s and his subordinates’ statements reveal the Executive

18

Order’s unconstitutionally broad scope.

19

91. The Executive Order contains a few vague caveats indicating that it will, in part,

20 be applied “to the extent consistent with law” (a caveat noticeably absent from the Enforcement

21 Provision). See Executive Order, Sec. 9 at 8801. But the President’s and his subordinates’ own

22 statements belie that blithe assurance. On the contrary, there is no indication that the executive

23 branch understands, respects, or has any intention to interpret or enforce the Executive Order

24 consistent with governing law and well-established constitutional limitations.

25

92. The President’s own statements—and those of other officials in his

26 administration—reveal that the executive branch intends the Executive Order to go far beyond

27 current law. Indeed, the President has repeatedly promised, both on the campaign trail and once

28 elected, that his goal is not to use the spending power (which is not his, in any event) to

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1 encourage jurisdictions to cooperate with his federal immigration program. Rather, he proposes

2 to deny all federal funding to jurisdictions he believes are failing to comply with federal

3 immigration laws, “ending” them altogether. That approach is undoubtedly unconstitutional,

4 however implemented.

5

93. The President’s and his aides’ statements unambiguously point to a broad, and

6 therefore unconstitutional, interpretation of the Executive Order. For instance:

7

i) On August 31, 2016, then-candidate Donald J. Trump issued an “Address

8 on Immigration,” which included a heading entitled “Block Funding for Sanctuary Cities.”

9 Donald J. Trump: Address on Immigration, Donald J. Trump for President (Aug. 31, 2016),

10 https://www.donaldjtrump.com/press-releases/donald-j.-trump-address-on-immigration. Mr.

11 Trump stated, “We will end the Sanctuary Cities that have resulted in so many needless deaths.

12 Cities that refuse to cooperate with federal authorities will not receive taxpayer dollars, and we

13 will work with Congress to pass legislation to protect those jurisdictions that do assist federal

14 authorities.” Id. (emphasis added).

15

ii) On January 25, 2017—the day on which the President issued the Executive

16 Order—the President’s press secretary, Sean Spicer, made clear that the order targets all federal

17 funding: “We are going to strip federal grant money from the sanctuary states and cities that

18 harbor illegal immigrants. The American people are no longer going to have to be forced to

19 subsidize this disregard for our laws.” White House, 1/25/17: White House Press Briefing,

20 YouTube (Jan. 25, 2017), https://www.youtube.com/watch?v=OaPriMVvtZA (begin at 3:57

21 mark) (emphasis added).

22

iii) On January 26, 2016, President Trump reiterated his plan to target

23 sanctuary jurisdictions during remarks at the Congressional Republican Retreat: “And finally, at

24 long last, cracking down on sanctuary cities. It’s time to restore the civil rights of Americans, to

25 protect their jobs, their hopes and their dreams for a much better future.” Donald J. Trump,

26 President Trump Remarks at Congressional Republican Retreat, C-Span (Jan. 26, 2017),

27 https://www.c-span.org/video/?422829-1/President-trump-tells-congressional-republicans-now-

28 deliver (begin at 13:54 mark) (emphasis added).

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1

iv) On January 28, 2017, the White House issued a press release stating,

2 “President Trump signed an executive order to ensure that immigration laws are enforced

3 throughout the United States, including halting federal funding for sanctuary cities.” Press

4 Release, The White House, Office of the Press Secretary, President Trump’s First Week of Action

5 (Jan. 28, 2017), https://www.whitehouse.gov/the-press-office/2017/01/28/President-trumps-first-

6 week-action (emphasis added).

7

v) That same day, the President stated, “Here are just a few of the executive

8 actions that I have taken in the last few days . . . . An order to immediately begin the border wall

9 and to crack down on sanctuary cities. They are not safe, we have to take care of that horrible

10 situation.” Press Release, The White House, Office of the Press Secretary, President Trump’s

11 First Weekly Address (Jan. 28, 2017), https://www.whitehouse.gov/the-press-

12 office/2017/01/28/President-trumps-first-weekly-address (emphasis added).

13

vi) The White House’s public website likewise states that President Trump “is

14 dedicated to enforcing our border laws, ending sanctuary cities, and stemming the tide of

15 lawlessness associated with illegal immigration.” The White House, Standing Up For Our Law

16 Enforcement Community, https://www.whitehouse.gov/law-enforcement-community (last

17 accessed on February 1, 2017) (emphasis added).

18

vii) Mr. Spicer, the President’s press secretary, reiterated this goal on February

19 1, 2017, stating in a press briefing, “I think the President’s goal in ending sanctuary cities is

20 pretty clear. . . . [T]he President has been very clear through his executive order that federal

21 funds, paid for by hardworking taxpayers, should not be used to help fund sanctuary cities.”

22 Press Release, The White House, Office of the Press Secretary, Press Briefing by Press Secretary

23 Sean Spicer, 2/1/2017, #6 (Feb. 1, 2017), https://www.whitehouse.gov/the-press-

24 office/2017/02/01/press-briefing-press-secretary-sean-spicer-212017-6 (emphases added).

25

94. The Executive Order itself confirms the sweeping scope outlined by the President

26 and his aides. It cannot refer merely to existing executive power to limit spending; if that is all

27 the order accomplishes, then it is superfluous. There would be no need to order what the

28 President may already accomplish through existing statutory authorization.

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1

95. In addition to comments regarding the Executive Order, the President’s more

2 recent statements reveal a complete lack of understanding of, and respect for, the boundaries

3 between executive and legislative powers. For example, commenting on reports of violent

4 protests at U.C. Berkeley in response to a planned speaking event, the President tweeted, “If U.C.

5 Berkeley does not allow free speech and practices violence on innocent people with a different

6 point of view – NO FEDERAL FUNDS?” @realDonaldTrump, Twitter (Feb. 2, 2017, 3:13 AM),

7 https://twitter.com/realDonaldTrump/status/827112633224544256 (last accessed Feb. 2, 2017).

8 The President seems to hold the misimpression that the executive branch controls the power of

9 the purse, and that he can simply turn off the federal funding spigot to states, local governments,

10 and other publicly funded entities he disfavors. The Founders drafted and designed our

11 Constitution to avoid precisely this result.

12

C. Congress Considered and Rejected Conditioning Federal Law Enforcement

13

Funds on Compliance with Section 1373.

14

96. The Executive Order not only claims legislative power in excess of what the

15 Constitution grants to Congress, but it also represents an attempt to enact a policy that Congress

16 has already expressly considered and rejected. In fact, one of the individuals who will likely be

17 tasked with implementing and enforcing the Executive Order is the same person who tried and

18 failed to persuade Congress to enact the policy the executive branch is now imposing by dictate:

19 Jeff Sessions.

20

97. On June 22, 2015, Senator Jeff Sessions—now the President’s nominee for

21 Attorney General of the United States—introduced a bill in the United States Senate. The bill, S.

22 1640, is entitled the “Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law

23 Enforcement Act,” and is attached hereto as Exhibit B. Senator Sessions’s bill sought to tie

24 certain federal funds to compliance with 8 U.S.C. § 1373. S. 1640, 114th Cong. (2015). That is

25 the same power, on a narrower scale, the President now claims.

26

98. Only seven Senators co-sponsored Mr. Sessions’s bill, which died in the Senate

27 Judiciary Committee.

28

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99. Senator Sessions’s bill had a counterpart in the United States House of
Representatives. There, U.S. Representative Trey Gowdy introduced H.R. 1148, entitled the
“Michael Davis, Jr. in Honor of State and Local Law Enforcement Act.” H.R. 1148, 114th
Cong. (2015). The House bill is attached hereto as Exhibit C. Only 50 House Members co-
sponsored Mr. Gowdy’s bill, which was reported out of the House Judiciary Committee, but
languished in the Committee on Homeland Security. It never received a vote on the floor of the
House.
100. Senator Sessions’s unsuccessful legislation, as well as its companion bill in the
House, was a narrower version of the sweeping Executive Order the President issued after
nominating Mr. Sessions to be his Attorney General. Its declared purpose was to “amend the
Immigration and Nationality Act to improve immigration law enforcement within the interior of
the United States.” S. 1640, 114th Cong. (2015). Section 114 of the bill, entitled, “State
Violations of Enforcement of Immigration Laws,” proposed an amendment to 8 U.S.C. § 1373
that is strikingly similar to the Executive Order Mr. Sessions will enforce if he is confirmed as the
Attorney General. Section 114(d) provided as follows:
“(d) Compliance.—
“(1) IN GENERAL.—A State, or a political subdivision of a State, that has in effect a statute, policy, or practice that prohibits law enforcement officers of the State, or of a political subdivision of the State, from assisting or cooperating with Federal immigration law enforcement in the course of carrying out the officers’ routine law enforcement duties shall not be eligible to receive—
“(A) any of the funds that would otherwise be allocated to the State or political subdivision under section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) or the ‘Cops on the Beat’ program under part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd et seq.); or
“(B) any other law enforcement or Department of Homeland Security grant.
“(2) ANNUAL DETERMINATION.—The Secretary shall determine annually which State or political subdivision of a State are not in compliance with this section and shall report such determinations to Congress on March 1 of each year.
“(3) REPORTS.—The Attorney General shall issue a report concerning the compliance of any particular State or political subdivision at the request of the House or Senate Judiciary Committee. Any jurisdiction that is found to
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be out of compliance shall be ineligible to receive Federal financial assistance as provided in paragraph (1) for a minimum period of 1 year, and shall only become eligible again after the Attorney General certifies that the jurisdiction is in compliance. S. 1640, 11th Cong. § 114(d) (2015).7
101. Shortly after introducing his bill in the U.S. Senate, Mr. Sessions issued a press release calling on Congress to pass a law restricting federal funds to sanctuary cities—the very authority the President now claims as his own. Senator Sessions said: “I am calling today on Congress to make its first item of business the immediate passage of legislation to cut off relevant federal monies to sanctuary cities.” News Release, Office of Senator Jeff Sessions, Senator Sessions Calls on Congress to Take Up Immigration Reform for Americans (July 9, 2015), http://www.sessions.senate.gov/public/index.cfm/2015/7/senator-sessions-calls-oncongress-to-take-up-immigration-reform-for-americans (emphasis added).
102. Two aspects of Senator Sessions’s statement bear emphasizing, and each of them demonstrates the unconstitutionality of the Executive Order Mr. Sessions will be charged with implementing if he is confirmed as Attorney General. First, Senator Sessions is flatly admitting that current law does not allow funds to be “cut off” from sanctuary jurisdictions. As Senator Sessions understood, new legislation would be needed to accomplish that objective. Second, Senator Sessions is recognizing that only “relevant federal monies” may be conditioned on compliance with certain immigration laws. Id. (emphasis added). Senator Sessions did not call on Congress to render sanctuary jurisdictions ineligible from receiving all federal grants, whether or not those grants were germane to immigration or law enforcement, because such a law would be patently unconstitutional.
103. Despite Senator Sessions’s exhortation, Congress never enacted his proposed bill, which would have cut off certain federal funding to state and local governments deemed insufficiently compliant with federal immigration directives. In fact, the precise opposite is true:
7 The companion House bill, H.R. 1148, contained an identical provision. See H.R. 1148, 114th Cong. § 114(d) (2015).
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both houses of Congress have independently and expressly considered and rejected the policy that
the President and Mr. Sessions now claim for the executive branch by fiat.
104. The similarities between Senator Sessions’s failed bill and the Executive Order are striking, and likely not coincidental.8 The two documents share common phrases nearly
verbatim, targeting any jurisdiction that “has in effect a statute, policy, or practice” that the
federal government finds problematic. They both declare that such jurisdictions shall not be
“eligible to receive” federal funds. And they both vest in the Secretary of Homeland Security the
ability to designate certain jurisdictions as noncompliant. They also both contemplate the
Attorney General publishing a report listing jurisdictions that the Attorney General has deemed
noncompliant.
105. The differences between the failed bill and the Executive Order are also telling.
The bill appears to have made at least some effort to conform to constitutional limitations on
Congress’s spending power. For example, the bill tied only certain law-enforcement-related
funds to the proposed funding condition, signaling out “Cops on the Beat” funds, and other law
enforcement or Department of Homeland Security grants. S. 1640, 114th Cong. § 114(d)(1)(A-
B). That limitation stands in stark contrast to the Executive Order, which renders affected
jurisdictions ineligible to receive all “Federal grants.” Executive Order, Sec. 9(a) at 8801. The
failed bill also vested the Secretary of Homeland Security with primary authority for
implementing the legislation. By contrast, the Executive Order vests the Attorney General—
presumably Mr. Sessions—as well as the Secretary with ensuring fund ineligibility. Id.
106. The President’s attempt to secure by executive fiat what Senator Sessions failed to
win through the legislative process violates the separation of powers principles that undergird our
8 Media reports confirm that Senator Sessions played a prominent role in the executive orders that the President issued during his first week in office. One article states that Senator Sessions was the “intellectual godfather” of Mr. Trump’s executive orders, and that his longtime chief of staff, along with one of his mentees, drafted the orders. See Philip Rucker & Robert Costa, Trump’s Hard-Line Actions Have an Intellectual Godfather: Jeff Sessions, Wash. Post, Jan. 30, 2017. Indeed, administration officials have stated that Senator Sessions “helped devise the President’s first-week strategy, in which Trump signed a blizzard of executive orders that begin to fulfill his signature campaign promises — although Sessions had advocated going even faster.” Id. According to the reports, Senator Sessions “lobbied for a ‘shock-and-awe’ period of executive action that would rattle Congress, impress Trump’s base and catch his critics unaware.” Id.
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1 system of government. As Justice Jackson stated in his seminal concurrence in Youngstown,

2 “When the President takes measures incompatible with the expressed or implied will of Congress,

3 his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus

4 any constitutional powers of Congress over the matter.” 343 U.S. at 637 (Jackson, J.,

5 concurring). In issuing the Executive Order, the President operated at his lowest ebb of power,

6 since Congress had already expressed its will by considering and rejecting the very powers the

7 President has claimed for himself with the stroke of a pen.

8

D. The County Requires Immediate Relief.

9

107. The County has standing to challenge the Executive Order and its claims are ripe

10 for adjudication today.

11

108. The County has suffered an injury-in-fact. As set forth above, the County receives

12 approximately $1 billion in federal funding per year, which amounts to more than 15% of its total

13 budget. The Executive Order purports to strip away all of this federal funding, decimating the

14 County’s ability to provide basic services to its residents. The “loss of funds promised under

15 federal law” is a quintessential economic injury that “satisfies Article III’s standing requirement.”

16 See Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 965 (9th Cir. 2015) (en banc),

17 cert. denied sub nom. Alaska v. Organized Vill. of Kake, Alaska, 136 S. Ct. 1509 (2016).

18

109. Furthermore, the Executive Order applies to, and purportedly would bar the

19 County from receiving, federal funds to reimburse the County for established programs and

20 services that the County is currently providing, and for which Congress has already approved

21 funding. The County is an eligible recipient of, expects to receive, and has made budgeting,

22 programming, and hiring decisions based on these prior congressional funding decisions. Now,

23 the Executive Order purports to require retroactive imposition of the condition that municipalities

24 comply with federal immigration provisions to already-approved funds. This is precisely the sort

25 of “substantial contingent liability” that confers standing because it “immediately and directly

26 affects the borrowing power, financial strength, and fiscal planning” of the County. See Clinton

27 v. City of N.Y., 524 U.S. 417, 430-31 (1998).

28

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1

110. The County’s injuries are “actual or imminent.” Susan B. Anthony List v.

2 Driehaus, 134 S. Ct. 2334, 2341 (2014) (quotations omitted). The County has already suffered

3 harm as a result of the Executive Order, and its injuries will only continue to grow unless the

4 Executive Order is declared unlawful and its implementation enjoined. Indeed, the Executive

5 Order has thrown the County’s ongoing budgeting process into chaos, forcing the County to

6 choose whether to continue incurring hundreds of millions of dollars in costs that may never be

7 reimbursed or discontinue providing basic safety-net services to its most vulnerable residents.

8 And, because the County’s federally funded programs operate continuously, the County is

9 currently spending millions of dollars that may never be reimbursed by the federal government

10 pursuant to the Executive Order.

11

111. Furthermore, Defendants have made clear that their express purpose in adopting

12 the Executive Order is to “[h]alt federal funding for,” “strip federal grant money from,” and

13 “crack down on” municipalities, like the County of Santa Clara, which do not comply with

14 federal directives, as purportedly required by the Executive Order. See supra ¶¶ 91–95.

15

112. Given the County’s policies described above, and Defendants’ repeated threats to

16 pull federal funding from jurisdictions that refuse to carry out the commands of federal

17 immigration officials, there is a “credible threat” that Defendants will seek to enforce the

18 unconstitutional Executive Order against the County. See Susan B. Anthony List, 134 S. Ct. at

19 2342 (collecting cases). The County is not required to “expose [itself] to liability before bringing

20 suit to challenge the basis for [Defendants’] threat.” MedImmune, Inc. v. Genentech, Inc., 549

21 U.S. 118, 128–129 (2007).

22

113. The County’s injuries are “fairly traceable to the challenged action”—in fact, they

23 are directly caused by the Executive Order. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.,

24 Inc., 528 U.S. 167, 180 (2000). But for the Executive Order, the County would continue to receive

25 federal funds for programs and services that it currently provides, and would be able to make

26 budgeting and programming decisions without the threat that its federal funds will disappear.

27

114. The Court can redress the County’s injuries by declaring the Executive Order

28 unconstitutional and enjoining its implementation and enforcement.

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115. The issues in this case are fit for judicial decision. The Executive Order is final

2 and the County’s challenge to that Order presents legal issues that “will not be clarified by further

3 factual development.” Susan B. Anthony List, 134 S. Ct. at 2347 (quotations omitted).

4

116. Postponing judicial review would impose a significant hardship on the County.

5 Requiring the County to “proceed without knowing whether the [Executive Order] is valid would

6 impose a palpable and considerable hardship” by forcing the County to decide now whether to

7 continue providing essential safety-net services to its residents, without knowing that it will

8 recoup the promised federal funding. Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568,

9 581 (1985) (quoting Pac. Gas & Elec. Co. v. State Energy Resources Conservation and

10 Development Comm’n, 461 U.S. 190, 201 (1983)).

11

117. In light of this substantial and imminent constitutional injury, the County is left

12 with no choice but to seek immediate judicial relief, including a preliminary and permanent

13 injunction.

14

CLAIMS FOR RELIEF

15

COUNT 1

16

Violation of the Separation of Powers Inherent in the U.S. Constitution

17

118. The County incorporates and re-alleges each and every allegation contained above

18 as if fully set forth herein.

19

119. Sixty-five years ago, in the midst of the Korean War, our Supreme Court held that

20 the power of the President, “if any,” to issue executive orders “must stem either from an act of

21 Congress or from the Constitution itself.” Youngstown, 343 U.S. at 585. Accordingly, an

22 executive order lacking congressional or constitutional authority is unconstitutional.

23

120. Furthermore, “[w]hen the President takes measures incompatible with the

24 expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only

25 upon his own constitutional powers minus any constitutional powers of Congress over the

26 matter.” Id. at 637 (Jackson, J., concurring) (adopted in Dames & Moore v. Regan, 453 U.S. 654,

27 669 (1981)).

28

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121. Article I of the Constitution vests the federal government’s spending power

2 exclusively in Congress. See U.S. Const. art. I, § 8, cl. 1. By contrast, nothing in the

3 Constitution’s text, or in more than two centuries of judicial decisions interpreting the

4 Constitution, purports to confer on the President or the executive branch any power either to

5 dictate government spending or to place conditions or limits on the spending power that is vested

6 in the legislative branch. Those powers reside solely with Congress.

7

122. Although the Constitution vests the spending power exclusively in Congress, it

8 does not confer unlimited discretion on the legislative branch when that branch seeks to place

9 conditions on federal spending directed to states and local governments. As the Supreme Court

10 held in South Dakota v. Dole, 483 U.S. 203, 207 (1987), “[t]he spending power is of course not

11 unlimited.” In its Dole decision, the Court identified and explained particular limits on

12 Congress’s power to spend. Subsequent cases have given further definition to those limits.

13

123. First, as the words of the Constitution make clear, any “exercise of the spending

14 power must be in pursuit of ‘the general welfare.’” Dole, 483 U.S. at 207.

15

124. Second, if Congress wishes to place certain conditions on federal funds, “it must

16 do so unambiguously,” so that states and local governments may “exercise their choice

17 knowingly, cognizant of the consequences of their participation.” Id. (internal quotation marks

18 omitted). Accordingly, Congress may not surprise a state or local government by initially

19 approving spending unconditionally, then later imposing a condition on receipt of those funds.

20 See NFIB, 132 S. Ct. at 2602–04. As the Court explained in NFIB, “[w]e have repeatedly

21 characterized … Spending Clause legislation as much in the nature of a contract.” Id. at 2602

22 (internal quotation marks omitted) (emphasis in original). Under this framework, “[t]he

23 legitimacy of Congress’s exercise of the spending power thus rests on whether the state

24 voluntarily and knowingly accepts the terms of the contract” at the time Congress offers the

25 money. Id. (internal quotation marks omitted).

26

125. Third, the Supreme Court has “repeatedly said that Congress may condition grants

27 under the spending power only in ways reasonably related to the purpose of the federal program”

28

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1 at issue. Dole, 483 U.S. at 213. In other words, Congress may not burden the payment of funds

2 to a state or municipality for one purpose with a condition that serves a different federal interest.

3

126. Fourth, a conditional grant of federal funds may be barred if it would violate some

4 independent constitutional provision. Id. at 208. For example, Congress could not condition

5 federal grants on a municipality’s agreement to perform unlawful searches and seizures in

6 violation of the Fourth Amendment.

7

127. Fifth, “in some circumstances the financial inducement offered by Congress might

8 be so coercive as to pass the point at which ‘pressure turns to compulsion.’” Dole, 483 U.S. at

9 211 (quoting Steward Machine Co. v. Davis, 301 U.S. 548, 590 (1937)). Congress may not

10 constitutionally “force the States to implement a federal program,” NFIB, 132 S. Ct. at 2602, and

11 may not end-run this limitation by imposing conditions on federal spending that are so draconian

12 that they amount to “a gun to the head” leaving the state or municipality no realistic choice but to

13 comply. Id. at 2604.

14

128. Section 9(a) of the Executive Order violates most, if not all, of the constitutional

15 principles and binding precedents outlined above.

16

129. The Executive Order claims the power to establish conditions governing federal

17 spending—which Congress has declined to impose through legislation—and to direct subordinate

18 executive branch officials to restrict eligibility for federal spending without statutory authority to

19 do so. Such powers lie beyond the President’s constitutional authority. They claim for the

20 executive branch powers exclusively assigned to Congress under the Spending Clause, U.S.

21 Const. art. I, § 8, cl. 1.

22

130. To the extent the President is purporting to impose any conditions or limitations on

23 federal spending, or to direct subordinate executive branch officials to do the same, without

24 express statutory authority, the Executive Order also unlawfully exceeds the President’s powers

25 under other provisions of the Constitution that establish the separation of powers among the

26 branches of our government, including:

27

i) the President’s obligation to “take Care that the Laws be faithfully executed,”

28

U.S. Const. art. II, § 3, cl. 5 (Take Care Clause); and

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ii) the limitation that Congressional enactments must “be presented to the
President of the United States,” who then may sign that enactment or veto it,
but has no power to merely revise it, either upon presentment or after
enactment, U.S. Const. art. I, § 7, cls. 2-3 (Presentment Clause).
131. The Executive Order not only attempts to commandeer Congress’s spending
power, but it also establishes conditions on federal spending that even Congress could not
constitutionally impose. In other words, the President has claimed powers over federal spending
that even Congress does not possess, and could therefore never delegate. For example:
i) The Defunding Provision makes no distinction between federal funding
already approved by Congress and funding to be approved in the future, and
thus applies equally to both categories. But Congress, let alone the President,
could not impose a condition on federal spending retroactively.
ii) The Defunding Provision applies to all federal funding related to any subject.
It is not restricted to funding related to a legitimate federal interest in
enforcement of immigration laws by municipalities. But the Constitution
requires that any federal funding conditions Congress imposes must be
reasonably related to the federal interest to which the expenditure relates (the
“Dole nexus test”). The Executive Order fails that test utterly: the Defunding
Provision applies to, and would bar the County from being eligible for funding
for, Medicare and Medicaid programs, transportation, child welfare services,
elder care programs, mental health services, immunization and vaccine
programs, and a myriad of other programs and services that have absolutely
nothing to do with the enforcement of federal immigration laws by state or local governments. See supra ¶¶ 27–45.9 9 The Defunding Provision not only fails the Dole nexus test—it gets it exactly backwards. It contains only one possible exception, for funding “deemed necessary for law enforcement purposes,” which the Attorney General or Secretary of Homeland Security discretionarily allow to be remitted. These are the sorts of funds that might have withstood constitutional scrutiny had Congress passed them (and indeed, Congress considered such restrictions and declined to impose them, see S. 1640, 114th Cong. § 114(d) (2015)). The Executive Order threatens all funding unrelated to law enforcement, while paradoxically allowing a mechanism by which relevant funding may escape the ban.
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iii) The Executive Order requires County law enforcement officers to undertake actions that are themselves unconstitutional. For example, the Executive Order’s text, as well as the President’s statements, indicate that he interprets the Executive Order to require County law enforcement officers to comply with federal directives regarding detainer actions by U.S. Immigration & Customs Enforcement. Courts across the country have already determined that these directives violate the Fourth Amendment. If County law enforcement personnel are obligated to violate the Fourth Amendment in order to receive the federal funds they rely upon to provide services, County personnel would subject themselves to personal liability (including punitive damages), and potentially subject the County to municipal liability, under 42 U.S.C. § 1983 and related federal civil rights laws.
iv) The new funding conditions the Executive Order imposes are profoundly coercive to the County. Affecting all federal funds, the conditions go far beyond the potential withdrawal of Medicaid funds, which the Supreme Court described as an unconstitutional “gun to the head” in NFIB. As set forth above, the County receives about $1 billion in federal funding per year, amounting to approximately 15% of its total budget. If the President makes good on his threat to strip all of this federal funding away, it would decimate the County’s ability to provide basic services, including health care, to its residents. Furthermore, unlike the congressional enactment in NFIB, which permitted withdrawal of Medicaid funding if the Secretary of Health and Human Services so decided, the Executive Order here unambiguously requires the Attorney General and the Secretary of Homeland Security to “ensure that jurisdictions” refusing the condition “are not eligible to receive Federal grants.” In other words, the conditions the Executive Order imposes are not only broader in scope than the unconstitutional condition Congress imposed in NFIB, but they are also mandatory rather than permissive. 35
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1

132. Because the conditions in the Executive Order would be unconstitutional even if

2 imposed by Congress, it is no defense for the government to argue that Congress may have

3 delegated its Spending Clause authority to the President with respect to some or all of the federal

4 funds at issue. Plainly, Congress cannot delegate a power that it does not possess, so it could not

5 authorize the President to impose an unconstitutional condition on federal spending.

6

133. The County in no way concedes that any delegation of Congress’s power under the

7 Spending Clause is constitutionally permitted, or that Congress actually purported to delegate any

8 spending power to the President with respect to the particular federal programs and funds at issue

9 here. In any event, the conditions imposed by the Executive Order are ones that no branch of the

10 federal government has the power to impose, under settled United States Supreme Court

11 precedent.

12

134. For all these reasons, and as set forth elsewhere in this Complaint, section 9(a) of

13 the Executive Order is unlawful and unconstitutional because it violates the constitutional

14 separation of powers and the specific constitutional provisions identified herein.

15

COUNT 2

16

Violation of the Due Process Clause, Amend. 5 – Void for Vagueness

17

135. The County incorporates and re-alleges each and every allegation contained above

18 as if fully set forth herein.

19

136. Under the Fifth Amendment to the United States Constitution, a federal law is

20 unconstitutionally vague if it “fails to provide a person of ordinary intelligence fair notice of what

21 is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory

22 enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008).

23

137. The constitutional vagueness standard applies with full force to executive orders.

24 See United States v. Soussi, 316 F.3d 1095, 1101 (10th Cir. 2002). When an executive order

25 contains terms that are not “susceptible of a clear meaning,” nor “mitigate the vagueness of the

26 term by supplying any definition,” then the provision “lends itself to subjective interpretation”

27 and is unconstitutional. Humanitarian Law Project v. U.S. Dep’t of Treasury, 463 F. Supp. 2d

28 1049, 1070 (C.D. Cal. 2006).

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138. The Executive Order, which reads more like a slapdash press release than it does a

2 serious expression of federal policy, fails to satisfy this constitutional minimum. It fails to

3 provide fair notice of the conduct it requires from the County.

4

139. Section 9(a) of the Executive Order fails to define key terms, such as “sanctuary

5 jurisdiction,” “Federal grants,” “law enforcement purposes,” “appropriate enforcement action,”

6 and “entity,” as well as the all-important phrase “statute, policy, or practice that prevents or

7 hinders the enforcement of Federal law.” Executive Order, Sec. 9(a) at 8801. Having such a

8 “practice” subjects a jurisdiction to “enforcement action,” which could be draconian in nature. Id.

9 What such a practice might be is left undefined, and subject to the executive branch’s unbridled

10 discretion.

11

140. The Executive Order lends itself to subjective interpretation and discriminatory

12 enforcement; indeed, that seems to be its point. The order grants the Secretary of Homeland

13 Security unfettered discretion to designate a state or local government as a “sanctuary

14 jurisdiction” that is “not eligible to receive Federal grants.” Id. The order likewise grants the

15 Attorney General unfettered discretion to take “appropriate enforcement action” against any

16 “entity” that, in his estimation, violates 8 U.S.C. § 1373, or has a “statute, policy, or practice that

17 prevents or hinders the enforcement of Federal law.” Id. Such a vast, standardless, and

18 overbroad power invites arbitrary, subjective, and discriminatory enforcement.

19

141. Other portions of the Executive Order are equally vague. Section 6, for example,

20 requires assessment of “fines and penalties” against not only undocumented persons but also

21 anyone who “facilitate[s] their presence in the United States.” Id. Sec. 6 at 8800. It is unclear

22 what “facilitate” means in this context, and could apply to County employees who provide

23 undocumented persons with basic, safety-net services, landlords, employers, friends, family,

24 churches or non-profit organizations who assist undocumented persons, or even lawyers who

25 represent undocumented persons in immigration proceedings. Not only does this standardless

26 provision exceed the President’s authority by legislating through executive order, but it also

27 encourages and sanctions arbitrary, subjective, and discriminatory enforcement.

28

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142. For all these reasons, and as set forth elsewhere in this Complaint, the Executive

2 Order is unconstitutionally vague in violation of the Fifth Amendment’s Due Process Clause.

3

COUNT 3

4

Violation of the Due Process Clause, Amend. 5 – Procedural Due Process

5

143. The County incorporates and re-alleges each and every allegation contained above

6 as if fully set forth herein.

7

144. Under the Fifth Amendment to the United States Constitution, the federal

8 government may not deprive the County of money or property without “due process of law.”

9

145. The County has a constitutionally protectable property interest in the federal funds

10 it relies on to provide essential services to 1.9 million residents. The County’s property interest in

11 those federal funds is established and governed by rules and mutually explicit understandings

12 with the federal government.

13

146. Section 9(a) of the Executive Order deprives the County of its procedural due

14 process rights under the Fifth Amendment because it grants the Attorney General and Secretary

15 of Homeland Security unfettered discretion to deprive the County of all federal funds, with no

16 opportunity to review, challenge, or even obtain notice that the deprivation is coming.

17

147. Specifically, the Executive Order grants the Attorney General and Secretary of

18 Homeland Security unfettered discretion to “ensure” that certain jurisdictions “are not eligible to

19 receive Federal grants.” Executive Order, Sec. 9(a) at 8801. The order further grants those

20 executive branch officials unfettered discretion to designate a state or local government as a

21 “sanctuary jurisdiction” that may not receive federal funds. Id. The order likewise grants the

22 Attorney General unfettered discretion to take “appropriate enforcement action” against any

23 “entity” that, in his estimation, violates 8 U.S.C. § 1373, or has a “statute, policy, or practice that

24 prevents or hinders the enforcement of Federal law.” Id. The order provides no mechanism by

25 which a state or local government may review, challenge, or even obtain notice that it has been

26 designated a “sanctuary jurisdiction” ineligible for federal funds.

27

28

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148. Because the Executive Order deprives the County of a cognizable property interest while providing no notice, no pre-deprivation opportunity to be heard, and no post-deprivation opportunity to be heard, it violates the Fifth Amendment’s due process clause.
COUNT 4 Violation of the Tenth Amendment 149. The County incorporates and re-alleges each and every allegation contained above as if fully set forth herein. 150. Executive Order Section 9(a) provides that “The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. § 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” Executive Order, Sec. 9(a) at 8801. 151. The Executive Order requires state and local jurisdictions to affirmatively assist federal immigration officials by, inter alia, complying, at their own expense, with ICE detainer requests. By demanding that state and local governments, including the County, imprison individuals subject to removal at the request of federal officials even if those individuals would otherwise be subject to release from County custody, the Executive Order commandeers state and local officials in furtherance of a federal regulatory program in violation of the Tenth Amendment to the United States Constitution. 152. The Executive Order also demands that state and local governments, including the County, take other unspecified actions to avoid “prevent[ing] or hinder[ing]” the federal government in the enforcement of “Federal law” more generally. Id. That directive transforms state and local officials into ancillary arms of the federal government, destroying the political accountability that drives our federal system. A more plain violation of the Tenth Amendment is difficult to fathom.
CONCLUSION 153. In Federalist No. 47, James Madison warned of the dangers inherent in “[t]he accumulation of all powers, legislative, executive, and judiciary, in the same hands,” pronouncing it “the very definition of tyranny.” The Federalist No. 47 (James Madison). Mindful of the
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threat, he continued: “Were the federal Constitution, therefore, really chargeable with the accumulation of power, or with a mixture of powers, having a dangerous tendency to such an accumulation, no further arguments would be necessary to inspire a universal reprobation of the system.” Id. Quoting Montesquieu, Madison focused on the particular dangers posed by an executive that claims for himself the legislative power: “When the legislative and executive powers are united in the same person or body . . . there can be no liberty, because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical laws to EXECUTE them in a tyrannical manner.” Id.
154. Capital lettering notwithstanding, Madison’s statement was no tweet. It describes a bedrock notion—the separation of powers—that lies at the very legal heart of our nation. And if the nation, and the Constitution that created it, are to endure, then that principle must yet have force. Executive Order 13768 is unconstitutional, and the courts must declare it so.
PRAYER FOR RELIEF WHEREFORE, Plaintiff County of Santa Clara respectfully requests that this Court enter judgment in its favor, and grant the following relief: 1. A declaration that Section 9 of the Executive Order is unconstitutional and invalid on its face; 2. A declaration that the Section 9 of the Executive Order is unconstitutional and invalid as applied to the policies and practices of the County; 3. A preliminary and permanent injunction enjoining Defendants from enforcing Section 9 of the Executive Order, or taking any other action in furtherance of any withholding or conditioning of federal funds based on the Executive Order; 4. A declaration that Section 6 of the Executive Order is unconstitutional and invalid on its face; 5. A declaration that Section 6 of the Executive Order is unconstitutional and invalid as applied to the policies and practices of the County; 6. A preliminary and permanent injunction enjoining Defendants from taking any action, or exercising any purported authority, against “those who facilitate [an alien’s] presence in
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1 the United States" pursuant to Section 6 of the Executive Order;

2

7. An award to the County ofreasonable costs and attorneys' fees; and

3

8. Such other and further relief that this Court may deem fit and proper.

4
5 Dated: February 3, 2017
6

Respectfully submitted,
OFFICE OF THE COUNTY COUNSEL, COUNTY OF SANTA CLARA

7

8

By:

JAMES R. WILLIAMS, County Counsel

9

GRETA S. HANSEN

DANIELLE GOLDSTEIN

10

KAVITA NARAYAN

JAVIER SERRANO

11

JULIA SPIEGEL

ADRIANA BENEDICT

12 Attorneys For Plaintiff COUNTY OF

13

SANTA CLARA

14 Dated: February 3, 2017
15 16 17 18 19 20 21
22

KEKER & VAN NEST LLP
By: /s/ John W. Keker JOHN W. K R ROBERT A. VANNEST DANIEL PURCELL CODY S. HARRIS NICHOLAS S. GOLDBERG
Attorneys For Plaintiff COUNTY OF SANTA CLARA

23 24

25
26

27
28

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EXHIBIT A

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Presidential Documents

8799

Executive Order 13768 of January 25, 2017
Enhancing Public Safety in the Interior of the United States
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation's immigration laws are faithfully executed, I hereby declare the policy of the executive branch to be, and order, as follows:
Section 1. Purpose. Interior enforcement of our Nation's immigration laws is critically important to the national security and public safety of the United States. Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety. This is particularly so for aliens who engage in criminal conduct in the United States.
Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.
Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.
Although Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility. We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement. The purpose of this order is to direct executive departments and agencies (agencies) to employ all lawful means to enforce the immigration laws of the United States.
Sec. 2. Policy. It is the policy of the executive branch to:
(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;
(b) Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;
(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;
(d) Ensure that aliens ordered removed from the United States are promptly removed; and
(e) Support victims, and the families of victims, of crimes committed by removable aliens.
Sec. 3. Definitions. The terms of this order, where applicable, shall have the meaning provided by section 1101 of title 8, United States Code.

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Sec. 4. Enforcement of the Immigration Laws in the Interior of the United States. In furtherance of the policy described in section 2 of this order, I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.
Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:
(a) Have been convicted of any criminal offense;
(b) Have been charged with any criminal offense, where such charge has not been resolved;
(c) Have committed acts that constitute a chargeable criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Sec. 6, Civil Fines and Penalties. As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.
Sec. 7. Additional Enforcement and Removal Officers. The Secretary, through the Director of U.S. Immigration and Customs Enforcement, shall, to the extent permitted by law and subject to the availability of appropriations, take all appropriate action to hire 10,000 additional immigration officers, who shall complete relevant training and be authorized to perform the law enforcement functions described in section 287 of the INA (8 U.S.C.
1357).
Sec. 8. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.
(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).
(b) To the extent permitted by law and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties.
(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in a manner that provides the most effective model for enforcing Federal immigration laws for that jurisdiction.

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Sec. 9. Sanctuaiy Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.
(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.
(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.
Sec. 10. Review of Previous Immigration Actions and Policies. (a) The Secretary shall immediately take all appropriate action to terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the Secretary on November 20, 2014, and to reinstitute the immigration program known as "Secure Communities" referenced in that memorandum.
(b) The Secretary shall review agency regulations, policies, and procedures for consistency with this order and, if required, publish for notice and comment proposed regulations rescinding or revising any regulations inconsistent with this order and shall consider whether to withdraw or modify any inconsistent policies and procedures, as appropriate and consistent with the law.
(c) To protect our communities and better facilitate the identification, detention, and removal of criminal aliens within constitutional and statutory parameters, the Secretary shall consolidate and revise any applicable forms to more effectively communicate with recipient law enforcement agencies.
Sec. 11. Department of Justice Prosecutions of Immigration Violators. The Attorney General and the Secretary shall work together to develop and implement a program that ensures that adequate resources are devoted to the prosecution of criminal immigration offenses in the United States, and to develop cooperative strategies to reduce violent crime and the reach of transnational criminal organizations into the United States.
Sec. 12. Recalcitrant Countries. The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.
Sec. 13. Office for Victims of Crimes Committed by Removable Aliens. The Secretary shall direct the Director of U S Immigration and Customs Enforcement to take all appropriate and lawful action to establish within U.S. Immigration and Customs Enforcement an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.

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Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.
Sec. 15. Reporting. Except as otherwise provided in this order, the Secretary and the Attorney General shall each submit to the President a report on the progress of the directives contained in this order within 90 days of the date of this order and again within 180 days of the date of this order.
Sec. 16. Transparency. To promote the transparency and situational awareness of criminal aliens in the United States, the Secretary and the Attorney General are hereby directed to collect relevant data and provide quarterly reports on the following:
(a) the immigration status of all aliens incarcerated under the supervision of the Federal Bureau of Prisons;
(b) the immigration status of all aliens incarcerated as Federal pretrial detainees under the supervision of the United States Marshals Service; and
(c) the immigration status of all convicted aliens incarcerated in State prisons and local detention centers throughout the United States. Sec. 17. Personnel Actions. The Office of Personnel Management shall take appropriate and lawful action to facilitate hiring personnel to implement this order.
Sec. 18. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals. (b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

[FR Doc. 2017-02102 Filed 1-27-17; 11:15 am] Billing code 3295—F7—P

THE WHITE HOUSE, January 25, 2017.

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EXHIBIT B

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114TH CONGRESS 1ST SESSION
S. 1640
To amend the Immigration and Nationality Act to improve immigration law enforcement within the interior of the United States, and for other purposes.
IN THE SENATE OF THE UNITED STATES
JUNE 22, 2015
Mr. SESSIONS (for himself, Mr. COTTON, Mr. PERDUE, Mr. VITTER, and Mr. INHOFE) introduced the following bill; which was read twice and referred to the Committee on the Judiciary
A BILL
To amend the Immigration and Nationality Act to improve immigration law enforcement within the interior of the United States, and for other purposes. Be it enacted by the Senate and House of Representatives of the United States
of America in Congress assembled, SECTION 1. SHORT TITLE.
This Act may be cited as the “Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act”. SEC. 2. TABLE OF CONTENTS.
The table of contents for this Act is as follows:
Sec. 1. Short title. Sec. 2. Table of contents.
TITLE I—IMMIGRATION LAW ENFORCEMENT BY STATES AND LOCALITIES

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Sec. 101. Definitions and severability. Sec. 102. Immigration law enforcement by States and localities. Sec. 103. Listing of immigration violators in the national crime information center database. Sec. 104. Technology access. Sec. 105. State and local law enforcement provision of information about apprehended aliens. Sec. 106. Financial assistance to State and local police agencies that assist in the enforcement of immigration laws. Sec. 107. Increased Federal detention space. Sec. 108. Federal custody of inadmissible and deportable aliens in the United States apprehended by State or local law enforcement. Sec. 109. Training of State and local law enforcement personnel relating to the enforcement of immigration laws. Sec. 110. Immunity. Sec. 111. Criminal alien identification program. Sec. 112. Clarification of congressional intent. Sec. 113. State criminal alien assistance program (SCAAP). Sec. 114. State violations of enforcement of immigration laws. Sec. 115. Clarifying the authority of ICE detainers.
TITLE II—NATIONAL SECURITY
Sec. 201. Removal of, and denial of benefits to, terrorist aliens. Sec. 202. Terrorist bar to good moral character. Sec. 203. Terrorist bar to naturalization. Sec. 204. Denaturalization for terrorists. Sec. 205. Use of 1986 IRCA legalization information for national security purposes. Sec. 206. Background and security checks. Sec. 207. Technical amendments relating to the Intelligence Reform and Terrorism Prevention Act of 2004.
TITLE III—REMOVAL OF CRIMINAL ALIENS
Sec. 301. Definition of aggravated felony. Sec. 302. Precluding admissibility of aliens convicted of aggravated felonies or other serious offenses. Sec. 303. Espionage clarification. Sec. 304. Prohibition of the sale of firearms to, or the possession of firearms by, certain aliens. Sec. 305. Uniform statute of limitations for certain immigration, naturalization, and peonage offenses. Sec. 306. Conforming amendment to the definition of racketeering activity. Sec. 307. Conforming amendments for the aggravated felony definition. Sec. 308. Precluding refugee or asylee adjustment of status for aggravated felons. Sec. 309. Precluding withholding of removal for aggravated felons. Sec. 310. Inadmissibility and deportability of drunk drivers. Sec. 311. Detention of dangerous aliens. Sec. 312. Grounds of inadmissibility and deportability for alien gang members. Sec. 313. Extension of identity theft offenses. Sec. 314. Laundering of monetary instruments. Sec. 315. Penalties for illegal entry or presence. Sec. 316. Illegal reentry. Sec. 317. Reform of passport, visa, and immigration fraud offenses. Sec. 318. Forfeiture. Sec. 319. Expedited removal for aliens inadmissible on criminal or security grounds. Sec. 320. Increased penalties barring the admission of convicted sex offenders failing to register and requiring deportation of sex offenders failing to register. Sec. 321. Protecting immigrants from convicted sex offenders. Sec. 322. Penalties for failure to obey removal orders.

Case 5:17-cv-00574 Document 1-2 Filed 02/03/17 Page 4 of 92 Sec. 323. Pardons. Sec. 324. Convictions.
TITLE IV—VISA SECURITY
Sec. 401. Cancellation of additional visas. Sec. 402. Visa information sharing. Sec. 403. Restricting waiver of visa interviews. Sec. 404. Non­interview of certain ineligible visa applicants. Sec. 405. Visa refusal and revocation. Sec. 406. Funding for the visa security program. Sec. 407. Expeditious expansion of visa security program to high­risk posts. Sec. 408. Expedited clearance and placement of Department of Homeland Security personnel at overseas embassies and consular posts. Sec. 409. Accreditation requirements. Sec. 410. Visa fraud. Sec. 411. Background checks. Sec. 412. Number of designated school officials. Sec. 413. Reporting requirement. Sec. 414. Flight schools not certified by FAA. Sec. 415. Revocation of accreditation. Sec. 416. Report on risk assessment. Sec. 417. Implementation of GAO recommendations. Sec. 418. Implementation of SEVIS II. Sec. 419. Definitions.
TITLE V—AID TO U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT OFFICERS
Sec. 501. ICE immigration enforcement agents. Sec. 502. ICE detention enforcement officers. Sec. 503. Ensuring the safety of ICE officers and agents. Sec. 504. ICE Advisory Council. Sec. 505. Pilot program for electronic field processing. Sec. 506. Additional ICE deportation officers and support staff. Sec. 507. Additional ICE prosecutors.
TITLE VI—MISCELLANEOUS ENFORCEMENT PROVISIONS
Sec. 601. Timely repatriation. Sec. 602. Encouraging aliens to depart voluntarily. Sec. 603. Deterring aliens ordered removed from remaining in the United States unlawfully. Sec. 604. Reinstatement of removal orders. Sec. 605. Clarification with respect to definition of admission. Sec. 606. Reports to Congress. Sec. 607. Certain activities restricted. Sec. 608. GAO study on deaths in custody. Sec. 609. Removal proceedings. Sec. 610. Eliminating backlog in the immigration court system. Sec. 611. Proper filing of income taxes required for good moral character.
TITLE I—IMMIGRATION LAW ENFORCEMENT BY STATES AND LOCALITIES

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SEC. 101. DEFINITIONS AND SEVERABILITY.
(a) STATE DEFINED.—For the purposes of this title, the term “State” has the meaning given to such term in section 101(a)(36) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(36)).
(b) SECRETARY DEFINED.—For the purpose of this title, the term “Secretary” means the Secretary of Homeland Security.
(c) SEVERABILITY.—If any provision of this title, or the application of such provision to any person or circumstance, is held invalid, the remainder of this title, and the application of such provision to other persons not similarly situated or to other circumstances, shall not be affected by such invalidation.
SEC. 102. IMMIGRATION LAW ENFORCEMENT BY STATES AND LOCALITIES.
(a) IN GENERAL.—Subject to section 274A(h)(2) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(2)), States, or political subdivisions of States, may enact, implement and enforce criminal penalties that penalize the same conduct that is prohibited in the criminal provisions of immigration laws (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))), as long as the criminal penalties do not exceed the relevant Federal criminal penalties (without regard to ancillary issues such as the availability of probation or pardon). States, or political subdivisions of States, may enact, implement and enforce civil penalties that penalize the same conduct that is prohibited in the civil provisions of immigration laws (as defined in such section 101(a)(17)), as long as the civil penalties do not exceed the relevant Federal civil penalties.
(b) LAW ENFORCEMENT PERSONNEL.—Subject to section 274A(h)(2) of the Immigration and Nationality Act (8 U.S.C. 1324a(h)(2)), law enforcement personnel of a State, or of a political subdivision of a State, may investigate, identify, apprehend, arrest, detain, or transfer to Federal custody aliens for the purposes of enforcing the immigration laws of the United States to the same extent as Federal law enforcement personnel. Law enforcement personnel of a State, or of a political subdivision of a State, may also investigate, identify, apprehend, arrest, or detain aliens for the purposes of enforcing the immigration laws of a State or of a political subdivision of State, as long as those immigration laws are permissible under this section. Law enforcement personnel of a State, or of a political subdivision of a State, may not admit aliens to or remove them from the United States.
SEC. 103. LISTING OF IMMIGRATION VIOLATORS IN THE NATIONAL CRIME
INFORMATION CENTER DATABASE.
(a) PROVISION OF INFORMATION TO THE NCIC.—Not later than 180 days after the date of the enactment of this Act and periodically thereafter as updates may

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require, the Secretary shall provide the National Crime Information Center of the Department of Justice with all information that the Secretary may possess regarding any alien against whom a final order of removal has been issued, any alien who has entered into a voluntary departure agreement, any alien who has overstayed their authorized period of stay, and any alien whose visa has been revoked. The National Crime Information Center shall enter such information into the Immigration Violators File of the National Crime Information Center database, regardless of whether—
(1) the alien received notice of a final order of removal;
(2) the alien has already been removed; or
(3) sufficient identifying information is available with respect to the alien.
(b) INCLUSION OF INFORMATION IN THE NCIC DATABASE.—
(1) IN GENERAL.—Section 534(a) of title 28, United States Code, is
amended—
(A) in paragraph (3), by striking “and” at the end;
(B) by redesignating paragraph (4) as paragraph (5); and
(C) by inserting after paragraph (3) the following:
“(4) acquire, collect, classify, and preserve records of violations by aliens of the immigration laws of the United States, regardless of whether any such alien has received notice of the violation or whether sufficient identifying information is available with respect to any such alien or whether any such alien has already been removed from the United States; and”.
(2) EFFECTIVE DATE.—The Attorney General and the Secretary shall
ensure that the amendment made by paragraph (1) is implemented by not later than 6 months after the date of the enactment of this Act.
SEC. 104. TECHNOLOGY ACCESS.
States shall have access to Federal programs or technology directed broadly at identifying inadmissible or deportable aliens.
SEC. 105. STATE AND LOCAL LAW ENFORCEMENT PROVISION OF
INFORMATION ABOUT APPREHENDED ALIENS.
(a) PROVISION OF INFORMATION.—In compliance with section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C.

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1373) and section 434 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (8 U.S.C. 1644), each State, and each political subdivision of a State, shall provide the Secretary of Homeland Security in a timely manner with the information specified in subsection (b) with respect to each alien apprehended in the jurisdiction of the State, or in the political subdivision of the State, who is believed to be inadmissible or deportable.
(b) INFORMATION REQUIRED.—The information referred to in subsection (a) is as follows:
(1) The alien’s name.
(2) The alien’s address or place of residence.
(3) A physical description of the alien.
(4) The date, time, and location of the encounter with the alien and reason for stopping, detaining, apprehending, or arresting the alien.
(5) If applicable, the alien’s driver’s license number and the State of issuance of such license.
(6) If applicable, the type of any other identification document issued to the alien, any designation number contained on the identification document, and the issuing entity for the identification document.
(7) If applicable, the license plate number, make, and model of any automobile registered to, or driven by, the alien.
(8) A photo of the alien, if available or readily obtainable.
(9) The alien’s fingerprints, if available or readily obtainable.
(10) If applicable, the phone number and email address pertaining to the alien.
(c) ANNUAL REPORT ON REPORTING.—The Secretary shall maintain and annually submit to the Congress a detailed report listing the States, or the political subdivisions of States, that have provided information under subsection (a) in the preceding year.
(d) REIMBURSEMENT.—The Secretary shall reimburse States, and political subdivisions of a State, for all reasonable costs, as determined by the Secretary, incurred by the State, or the political subdivision of a State, as a result of providing information under subsection (a).

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(e) CONSTRUCTION.—Nothing in this section shall require law enforcement officials of a State, or of a political subdivision of a State, to provide the Secretary with information related to a victim of a crime or witness to a criminal offense.
(f) EFFECTIVE DATE.—This section shall take effect on the date that is 120 days after the date of the enactment of this Act and shall apply with respect to aliens apprehended on or after such date.
SEC. 106. FINANCIAL ASSISTANCE TO STATE AND LOCAL POLICE AGENCIES
THAT ASSIST IN THE ENFORCEMENT OF IMMIGRATION LAWS.
(a) GRANTS FOR SPECIAL EQUIPM ENT FOR HOUSING AND PROCESSING CERTAIN ALIENS.—From amounts made available to make grants under this section, the Secretary shall make grants to States, and to political subdivisions of States, for procurement of equipment, technology, facilities, and other products that facilitate and are directly related to investigating, apprehending, arresting, detaining, or transporting aliens who are inadmissible or deportable, including additional administrative costs incurred under this title.
(b) ELIGIBILITY.—To be eligible to receive a grant under this section, a State, or a political subdivision of a State, must have the authority to, and shall have a written policy and a practice to, assist in the enforcement of the immigration laws of the United States in the course of carrying out the routine law enforcement duties of such State or political subdivision of a State. Entities covered under this section may not have any policy or practice that prevents local law enforcement from inquiring about a suspect’s immigration status.
(c) GAO AUDIT.—Not later than 3 years after the date of the enactment of this Act, the Comptroller General of the United States shall conduct an audit of funds distributed to States, and to political subdivisions of a State, under subsection (a).
SEC. 107. INCREASED FEDERAL DETENTION SPACE.
(a) CONSTRUCTION OR ACQUISITION OF DETENTION FACILITIES.—
(1) IN GENERAL.—The Secretary shall construct or acquire, in addition to
existing facilities for the detention of aliens, detention facilities in the United States, for aliens detained pending removal from the United States or a decision regarding such removal. Each facility shall have a number of beds necessary to effectuate the purposes of this title.
(2) DETERMINATIONS.—The location of any detention facility built or
acquired in accordance with this subsection shall be determined by the Secretary.

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(b) TECHNICAL AND CONFORMING AMENDMENT.—Section 241(g)(1) of the Immigration and Nationality Act (8 U.S.C. 1231(g)(1)) is amended by striking “may expend” and inserting “shall expend”.
SEC. 108. FEDERAL CUSTODY OF INADMISSIBLE AND DEPORTABLE ALIENS IN
THE UNITED STATES APPREHENDED BY STATE OR LOCAL LAW ENFORCEMENT.
(a) STATE APPREHENSION.—
(1) IN GENERAL.—Title II of the Immigration and Nationality Act (8
U.S.C. 1151 et seq.) is amended by inserting after section 240C the following:
“CUSTODY OF INADMISSIBLE AND DEPORTABLE ALIENS PRESENT IN THE
UNITED STATES
“SEC. 240D. (a) TRANSFER OF CUSTODY BY STATE AND LOCAL OFFICIALS.—If a State, or a political subdivision of the State, exercising authority with respect to the apprehension or arrest of an inadmissible or deportable alien submits to the Secretary of Homeland Security a request that the alien be taken into Federal custody, notwithstanding any other provision of law, regulation, or policy the Secretary shall—
“(1) request that the relevant State or local law enforcement agency temporarily hold the alien in their custody or transport the alien for transfer to Federal custody; and
“(2) if the State or local law enforcement agency is unable to transport the alien for transfer to Federal custody, take the alien into custody not later than 48 hours (excluding Saturdays, Sundays, and holidays) after the alien’s release from the custody of the State or political subdivision of the State.
“(b) POLICY ON DETENTION IN FEDERAL, CONTRACT, STATE, OR LOCAL DETENTION FACILITIES.—In carrying out section 241(g)(1), the Attorney General or Secretary of Homeland Security shall ensure that an alien arrested under this title shall be held in custody, pending the alien’s examination under this section, in a Federal, contract, State, or local prison, jail, detention center, or other comparable facility. Notwithstanding any other provision of law, regulation or policy, such facility is adequate for detention, if—
“(1) such a facility is the most suitably located Federal, contract, State, or local facility available for such purpose under the circumstances;
“(2) an appropriate arrangement for such use of the facility can be made; and

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“(3) the facility satisfies the standards for the housing, care, and security of persons held in custody by a United States Marshal.
“(c) REIMBURSEMENT.—The Secretary of Homeland Security shall reimburse a State, and a political subdivision of a State, for all reasonable expenses, as determined by the Secretary, incurred by the State, or political subdivision, as a result of the incarceration and transportation of an alien who is inadmissible or deportable as described in subsections (a) and (b). Compensation provided for costs incurred under such subsections shall be the average cost of incarceration of a prisoner in the relevant State, as determined by the chief executive officer of a State, or of a political subdivision of a State, plus the cost of transporting the alien from the point of apprehension to the place of detention, and to the custody transfer point if the place of detention and place of custody are different.
“(d) SECURE FACILITIES.—The Secretary of Homeland Security shall ensure that aliens incarcerated pursuant to this title are held in facilities that provide an appropriate level of security.
“(e) TRANSFER.—
“(1) IN GENERAL.—In carrying out this section, the Secretary of
Homeland Security shall establish a regular circuit and schedule for the prompt transfer of apprehended aliens from the custody of States, and political subdivisions of a State, to Federal custody.
“(2) CONTRACTS.—The Secretary may enter into contracts, including
appropriate private contracts, to implement this subsection.”.
(2) CLERICAL AMENDMENT.—The table of contents of such Act is
amended by inserting after the item relating to section 240C the following new item:
“Sec. 240D. Custody of inadmissible and deportable aliens present in the United States.”.
(b) GAO AUDIT.—Not later than 3 years after the date of the enactment of this Act, the Comptroller General of the United States shall conduct an audit of compensation to States, and to political subdivisions of a State, for the incarceration of inadmissible or deportable aliens under section 240D(a) of the Immigration and Nationality Act (as added by subsection (a)(1)).
(c) EFFECTIVE DATE.—Section 240D of the Immigration and Nationality Act, as added by subsection (a), shall take effect on the date of the enactment of this Act, except that subsection (e) of such section shall take effect on the date that is 120 day after the date of the enactment of this Act.

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SEC. 109. TRAINING OF STATE AND LOCAL LAW ENFORCEMENT PERSONNEL
RELATING TO THE ENFORCEMENT OF IMMIGRATION LAWS.
(a) ESTABLISHMENT OF TRAINING MANUAL AND POCKET GUIDE.—Not later than 180 days after the date of the enactment of this Act, the Secretary shall establish—
(1) a training manual for law enforcement personnel of a State, or of a political subdivision of a State, to train such personnel in the investigation, identification, apprehension, arrest, detention, and transfer to Federal custody of inadmissible and deportable aliens in the United States (including the transportation of such aliens across State lines to detention centers and the identification of fraudulent documents); and
(2) an immigration enforcement pocket guide for law enforcement personnel of a State, or of a political subdivision of a State, to provide a quick reference for such personnel in the course of duty.
(b) AVAILABILITY.—The training manual and pocket guide established in accordance with subsection (a) shall be made available to all State and local law enforcement personnel.
(c) APPLICABILITY.—Nothing in this section shall be construed to require State or local law enforcement personnel to carry the training manual or pocket guide with them while on duty.
(d) COSTS.—The Secretary shall be responsible for any costs incurred in establishing the training manual and pocket guide.
(e) TRAINING FLEXIBILITY.—
(1) IN GENERAL.—The Secretary shall make training of State and local
law enforcement officers available through as many means as possible, including through residential training at the Center for Domestic Preparedness, onsite training held at State or local police agencies or facilities, online training courses by computer, teleconferencing, and videotape, or the digital video display (DVD) of a training course or courses. E­learning through a secure, encrypted distributed learning system that has all its servers based in the United States, is scalable, survivable, and can have a portal in place not later than 30 days after the date of the enactment of this Act, shall be made available by the Federal Law Enforcement Training Center Distributed Learning Program for State and local law enforcement personnel.
(2) FEDERAL PERSONNEL TRAINING.—The training of State and local
law enforcement personnel under this section shall not displace the training of

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Federal personnel.
(3) CLARIFICATION.—Nothing in this title or any other provision of law
shall be construed as making any immigration­related training a requirement for, or prerequisite to, any State or local law enforcement officer to assist in the enforcement of Federal immigration laws.
(4) PRIORITY.—In carrying out this subsection, priority funding shall be
given for existing web­based immigration enforcement training systems.
SEC. 110. IMMUNITY.
Notwithstanding any other provision of law, a law enforcement officer of a State or local law enforcement agency who is acting within the scope of the officer’s official duties shall be immune, to the same extent as a Federal law enforcement officer, from personal liability arising out of the performance of any duty described in this title, including the authorities to investigate, identify, apprehend, arrest, detain, or transfer to Federal custody, an alien for the purposes of enforcing the immigration laws of the United States (as defined in section 101(a)(17) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(17))) or the immigration laws of a State or a political subdivision of a State.
SEC. 111. CRIMINAL ALIEN IDENTIFICATION PROGRAM.
(a) CONTINUATION AND EXPANSION.—
(1) IN GENERAL.—The Secretary shall continue to operate and implement
a program that—
(A) identifies removable criminal aliens in Federal and State correctional facilities;
(B) ensures such aliens are not released into the community; and
(C) removes such aliens from the United States after the completion of their sentences.
(2) EXPANSION.—The program shall be extended to all States. Any State
that receives Federal funds for the incarceration of criminal aliens (pursuant to the State Criminal Alien Assistance Program authorized under section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) or other similar program) shall—
(A) cooperate with officials of the program;

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(B) expeditiously and systematically identify criminal aliens in its prison and jail populations; and
(C) promptly convey such information to officials of such program as a condition of receiving such funds.
(b) AUTHORIZATION FOR DETENTION AFTER COM PLETION OF STATE OR LOCAL PRISON SENTENCE.—Law enforcement officers of a State, or of a political subdivision of a State, are authorized to—
(1) hold a criminal alien for a period of up to 48 hours (excluding Saturdays, Sundays, and holidays) after the alien has completed the alien’s sentence under State or local law in order to effectuate the transfer of the alien to Federal custody when the alien is inadmissible or deportable; or
(2) issue a detainer that would allow aliens who have served a prison sentence under State or local law to be detained by the State or local prison or jail until the Secretary can take the alien into custody.
(c) TECHNOLOGY USAGE.—Technology, such as video conferencing, shall be used to the maximum extent practicable in order to make the program available in remote locations. Mobile access to Federal databases of aliens and live scan technology shall be used to the maximum extent practicable in order to make these resources available to State and local law enforcement agencies in remote locations.
(d) EFFECTIVE DATE.—This section shall take effect of the date of the enactment of this Act, except that subsection (a)(2) shall take effect on the date that is 180 days after such date.
SEC. 112. CLARIFICATION OF CONGRESSIONAL INTENT.
Section 287(g) of the Immigration and Nationality Act (8 U.S.C. 1357(g)) is amended—
(1) in paragraph (1) by striking “may enter” and all that follows through the period at the end and inserting the following: “shall enter into a written agreement with a State, or any political subdivision of a State, upon request of the State or political subdivision, pursuant to which an officer or employee of the State or subdivision, who is determined by the Secretary to be qualified to perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States (including the transportation of such aliens across State lines to detention centers), may carry out such function at the expense of the State or political subdivision and to extent consistent with State and local law. No request from a bona fide State or political subdivision or bona fide law enforcement agency shall be denied

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absent a compelling reason. No limit on the number of agreements under this subsection may be imposed. The Secretary shall process requests for such agreements with all due haste, and in no case shall take not more than 90 days from the date the request is made until the agreement is consummated.”;
(2) by redesignating paragraph (2) as paragraph (5) and paragraphs (3) through (10) as paragraphs (7) through (14), respectively;
(3) by inserting after paragraph (1) the following:
“(2) An agreement under this subsection shall accommodate a requesting State or political subdivision with respect to the enforcement model or combination of models, and shall accommodate a patrol model, task force model, jail model, any combination thereof, or any other reasonable model the State or political subdivision believes is best suited to the immigration enforcement needs of its jurisdiction.
“(3) No Federal program or technology directed broadly at identifying inadmissible or deportable aliens shall substitute for such agreements, including those establishing a jail model, and shall operate in addition to any agreement under this subsection.
“(4)(A) No agreement under this subsection shall be terminated absent a compelling reason.
“(B)(i) The Secretary shall provide a State or political subdivision written notice of intent to terminate at least 180 days prior to date of intended termination, and the notice shall fully explain the grounds for termination, along with providing evidence substantiating the Secretary’s allegations.
“(ii) The State or political subdivision shall have a cause of action against the Secretary in a United States District Court within the State regarding the termination of the agreement, and if the ruling is against the State or political subdivision, to appeal the ruling to the Federal Circuit Court of Appeals and, if the ruling is against the State or political subdivision, to the Supreme Court.
“(C) The agreement shall remain in full effect during the course of any and all legal proceedings.”; and
(4) by inserting after paragraph (5) (as redesignated) the following:
“(6) The Secretary of Homeland Security shall make training of State and local law enforcement officers available through as many means as possible, including through residential training at the Center for Domestic Preparedness and the Federal Law Enforcement Training Center, onsite training held at State or local police agencies or facilities, online training courses by computer, teleconferencing, and

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videotape, or the digital video display (DVD) of a training course or courses. Distance learning through a secure, encrypted distributed learning system that has all its servers based in the United States, is scalable, survivable, and can have a portal in place not later than 30 days after the date of the enactment of this Act, shall be made available by the COPS Office of the Department of Justice and the Federal Law Enforcement Training Center Distributed Learning Program for State and local law enforcement personnel. Preference shall be given to private sector­based web­ based immigration enforcement training programs for which the Federal Government has already provided support to develop.”.
SEC. 113. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM (SCAAP).
Section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) is amended—
(1) by striking “Attorney General” the first place such term appears and inserting “Secretary of Homeland Security”;
(2) by striking “Attorney General” each place such term appears thereafter and inserting “Secretary”; and
(3) in paragraph (3)(A), by inserting “charged with or” before “convicted”.
SEC. 114. STATE VIOLATIONS OF ENFORCEMENT OF IMMIGRATION LAWS.
(a) IN GENERAL.—Section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373) is amended—
(1) by striking “Immigration and Naturalization Service” each place it appears and inserting “Department of Homeland Security”;
(2) in subsection (a), by striking “may” and inserting “shall”;
(3) in subsection (b)—
(A) by striking “no person or agency may ” and inserting “a person or agency shall not”;
(B) by striking “doing any of the following with respect to information” and inserting “undertaking any of the following law enforcement activities”; and
(C) by striking paragraphs (1) through (3) and inserting the following:

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“(1) Notifying the Federal Government regarding the presence of inadmissible and deportable aliens who are encountered by law enforcement personnel of a State or political subdivision of a State.
“(2) Complying with requests for information from Federal law enforcement.
“(3) Issuing policies in the form of a resolutions, ordinances, administrative actions, general or special orders, or departmental policies that violate Federal law or restrict a State or political subdivision of a State from complying with Federal law or coordinating with Federal law enforcement.”; and
(4) by adding at the end the following:
“(d) COMPLIANCE.—
“(1) IN GENERAL.—A State, or a political subdivision of a State, that has
in effect a statute, policy, or practice that prohibits law enforcement officers of the State, or of a political subdivision of the State, from assisting or cooperating with Federal immigration law enforcement in the course of carrying out the officers’ routine law enforcement duties shall not be eligible to receive—
“(A) any of the funds that would otherwise be allocated to the State or political subdivision under section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) or the ‘Cops on the Beat’ program under part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd et seq.); or
“(B) any other law enforcement or Department of Homeland Security grant.
“(2) ANNUAL DETERMINATION.—The Secretary shall determine annually
which State or political subdivision of a State are not in compliance with this section and shall report such determinations to Congress on March 1 of each year.
“(3) REPORTS.—The Attorney General shall issue a report concerning the
compliance of any particular State or political subdivision at the request of the House or Senate Judiciary Committee. Any jurisdiction that is found to be out of compliance shall be ineligible to receive Federal financial assistance as provided in paragraph (1) for a minimum period of 1 year, and shall only become eligible again after the Attorney General certifies that the jurisdiction is in compliance.

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“(4) REALLOCATION.—Any funds that are not allocated to a State or to a
political subdivision of a State, due to the failure of the State, or of the political subdivision of the State, to comply with subsection (c) shall be reallocated to States, or to political subdivisions of States, that comply with such subsection.
“(e) CONSTRUCTION.—Nothing in this section shall require law enforcement officials from States, or from political subdivisions of States, to report or arrest victims or witnesses of a criminal offense.”.
(b) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act, except that subsection (d) of section 642 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1373), as added by this section, shall take effect beginning one year after the date of the enactment of this Act.
SEC. 115. CLARIFYING THE AUTHORITY OF ICE DETAINERS.
(a) IN GENERAL.—Except as otherwise provided by Federal law or rule of procedure, the Secretary of Homeland Security shall execute all lawful writs, process, and orders issued under the authority of the United States, and shall command all necessary assistance to execute the Secretary’s duties.
(b) STATE AND LOCAL COOPERATION WITH DHS DETAINERS.—A State, or a political subdivision of a State, that has in effect a statute or policy or practice providing that it not comply with any Department of Homeland Security detainer ordering that it temporarily hold an alien in their custody so that the alien may be taken into Federal custody, or transport the alien for transfer to Federal custody, shall not be eligible to receive—
(1) any of the funds that would otherwise be allocated to the State or political subdivision under section 241(i) of the Immigration and Nationality Act (8 U.S.C. 1231(i)) or the “Cops on the Beat” program under part Q of title I of the Omnibus Crime Control and Safe Streets Act of 1968 (42 U.S.C. 3796dd et seq.); or
(2) any other law enforcement or Department of Homeland Security grant.
(c) IMMUNITY.—A State or a political subdivision of a State acting in compliance with a Department of Homeland Security detainer who temporarily holds aliens in its custody so that they may be taken into Federal custody, or transports the aliens for transfer to Federal custody, shall be considered to be acting under color of Federal authority for purposes of determining its liability, and immunity from suit, in civil actions brought by the aliens under Federal or State law.

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(d) PROBABLE CAUSE.—It is the sense of Congress that the Department of Homeland Security has probable cause to believe that an alien is inadmissible or deportable when it issues a detainer regarding such alien under the standards in place on the date of introduction of this Act.
TITLE II—NATIONAL SECURITY
SEC. 201. REMOVAL OF, AND DENIAL OF BENEFITS TO, TERRORIST ALIENS.
(a) ASYLUM.—Section 208(b)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1158(b)(2)(A)) is amended—
(1) by inserting “or the Secretary of Homeland Security” after “if the Attorney General”; and
(2) by amending clause (v) to read as follows:
“(v) the alien is described in subparagraph (B)(i) or (F) of section 212(a)(3), unless, in the case of an alien described in subparagraph (IV) of section 212(a)(3)(B)(i), the Secretary of Homeland Security or the Attorney General determines, in the discretion of the Secretary or the Attorney General, that there are not reasonable grounds for regarding the alien as a danger to the security of the United States; or”.
(b) CANCELLATION OF REMOVAL.—Section 240A(c)(4) of such Act (8 U.S.C. 1229b(c)(4)) is amended—
(1) by striking “inadmissible under” and inserting “described in”; and
(2) by striking “deportable under” and inserting “described in”.
(c) VOLUNTARY DEPARTURE.—Section 240B(b)(1)(C) of such Act (8 U.S.C. 1229c(b)(1)(C)) is amended by striking “deportable under section 237(a)(2)(A)(iii) or section 237(a)(4);” and inserting “described in paragraph (2)(A)(iii) or (4) of section 237(a);”.
(d) RESTRICTION ON REMOVAL.—Section 241(b)(3)(B) of such Act (8 U.S.C. 1231(b)(3)(B)) is amended—
(1) in the matter preceding clause (i), by inserting “or the Secretary of Homeland Security” after “Attorney General” each place it appears;
(2) in clause (iii), by striking “or” at the end;

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(3) in clause (iv), by striking the period at the end and inserting a semicolon;
(4) by striking the flush matter that follows after clause (iv); and
(5) by inserting after clause (iv) the following:
“(v) the alien is described in subparagraph (B)(i) or (F) of section 212(a)(3); or”.
(e) RECORD OF ADMISSION.—
(1) IN GENERAL.—Section 249 of such Act (8 U.S.C. 1259) is amended
to read as follows:
“RECORD OF ADMISSION FOR PERMANENT RESIDENCE IN THE CASE OF
CERTAIN ALIENS WHO ENTERED THE UNITED STATES PRIOR TO JANUARY 1, 1972
“SEC. 249. The Secretary of Homeland Security, in the discretion of the Secretary and under such regulations as the Secretary may prescribe, may enter a record of lawful admission for permanent residence in the case of any alien, if no such record is otherwise available and the alien—
“(1) entered the United States before January 1, 1972;
“(2) has continuously resided in the United States since such entry;
“(3) has been a person of good moral character since such entry;
“(4) is not ineligible for citizenship;
“(5) is not described in paragraph (1)(A)(iv), (2), (3), (6)(C), (6)(E), or (8) of section 212(a); and
“(6) did not, at any time, without reasonable cause fail or refuse to attend or remain in attendance at a proceeding to determine the alien’s inadmissibility or deportability.
(2) CLERICAL AMENDMENT.—The table of contents for such Act is
amended by amending the item relating to section 249 to read as follows:
“Sec. 249. Record of admission for permanent residence in the case of certain aliens who entered the United States prior to January 1, 1972.”.

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(f) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of enactment of this Act and sections 208(b)(2)(A), 212(a), 240A, 240B, 241(b)(3), and 249 of the Immigration and Nationality Act, as so amended, shall apply to—
(1) all aliens in removal, deportation, or exclusion proceedings;
(2) all applications pending on, or filed after, the date of the enactment of this Act; and
(3) with respect to aliens and applications described in paragraph (1) or (2) of this subsection, acts and conditions constituting a ground for exclusion, deportation, or removal occurring or existing before, on, or after the date of the enactment of this Act.
SEC. 202. TERRORIST BAR TO GOOD MORAL CHARACTER.
(a) DEFINITION OF GOOD MORAL CHARACTER.—Section 101(f) of the Immigration and Nationality Act (8 U.S.C. 1101(f)) is amended—
(1) in the matter preceding paragraph (1), by striking “who, during the period for which good moral character is required to be established, is,” and inserting “who is”;
(2) by inserting after paragraph (1) the following:
“(2) one who the Secretary of Homeland Security or Attorney General determines to have been at any time an alien described in section 212(a)(3) or 237(a)(4), which determination may be based upon any relevant information or evidence, including classified, sensitive, or national security information;”;
(3) in paragraph (8), by striking “subsection (a)(43));” and inserting “subsection (a)(43)), regardless whether the crime was classified as an aggravated felony at the time of conviction;”; and
(4) in the matter following paragraph (9), by striking the first sentence and inserting the following: “The fact that any person is not within any of the foregoing classes shall not preclude a discretionary finding for other reasons that such a person is or was not of good moral character. The Secretary or the Attorney General shall not be limited to the applicant’s conduct during the period for which good moral character is required, but may take into consideration as a basis for determination the applicant’s conduct and acts at any time.”.
(b) AGGRAVATED FELONS.—Section 509(b) of the Immigration Act of 1990 (8 U.S.C. 1101 note) is amended to read as follows:

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“(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on November 29, 1990, and shall apply to convictions occurring before, on or after such date.”.
(c) TECHNICAL CORRECTION TO THE INTELLIGENCE REFORM ACT.—Section 5504(2) of the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458) is amended by striking “adding at the end” and inserting “inserting after paragraph (8)”.
(d) EFFECTIVE DATE.—The amendments made by subsections (a) and (b) shall take effect on the date of enactment of this Act, shall apply to any act that occurred before, on, or after such date and shall apply to any application for naturalization or any other benefit or relief, or any other case or matter under the immigration laws pending on or filed after such date. The amendments made by subsection (c) shall take effect as if enacted in the Intelligence Reform and Terrorism Prevention Act of 2004 (Public Law 108–458).
SEC. 203. TERRORIST BAR TO NATURALIZATION.
(a) NATURALIZATION OF PERSONS ENDANGERING THE NATIONAL SECURITY. —Section 316 of the Immigration and Nationality Act (8 U.S.C. 1427) is amended by adding at the end the following:
“(g) PERSONS ENDANGERING THE NATIONAL SECURITY.—No person shall be naturalized who the Secretary of Homeland Security determines to have been at any time an alien described in section 212(a)(3) or 237(a)(4). Such determination may be based upon any relevant information or evidence, including classified, sensitive, or national security information.”.
(b) CONCURRENT NATURALIZATION AND REMOVAL PROCEEDINGS.—Section 318 of the Immigration and Nationality Act (8 U.S.C. 1429) is amended by striking “other Act;” and inserting “other Act; and no application for naturalization shall be considered by the Secretary of Homeland Security or any court if there is pending against the applicant any removal proceeding or other proceeding to determine the applicant’s inadmissibility or deportability, or to determine whether the applicant’s lawful permanent resident status should be rescinded, regardless of when such proceeding was commenced: Provided, That the findings of the Attorney General in terminating removal proceedings or in canceling the removal of an alien pursuant to the provisions of this Act, shall not be deemed binding in any way upon the Secretary of Homeland Security with respect to the question of whether such person has established his eligibility for naturalization as required by this title;”.
(c) PENDING DENATURALIZATION OR REMOVAL PROCEEDINGS.—Section 204(b) of the Immigration and Nationality Act (8 U.S.C. 1154(b)) is amended by adding at the end the following: “No petition shall be approved pursuant to this

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section if there is any administrative or judicial proceeding (whether civil or criminal) pending against the petitioner that could (whether directly or indirectly) result in the petitioner’s denaturalization or the loss of the petitioner’s lawful permanent resident status.”.
(d) CONDITIONAL PERMANENT RESIDENTS.—Sections 216(e) and section 216A(e) of the Immigration and Nationality Act (8 U.S.C. 1186a(e) and 1186b(e)) are each amended by striking the period at the end and inserting “, if the alien has had the conditional basis removed pursuant to this section.”.
(e) DISTRICT COURT JURISDICTION.—Subsection 336(b) of the Immigration and Nationality Act (8 U.S.C. 1447(b)) is amended to read as follows:
“(b) If there is a failure to render a final administrative decision under section 335 before the end of the 180­day period after the date on which the Secretary of Homeland Security completes all examinations and interviews conducted under such section, as such terms are defined by the Secretary of Homeland Security pursuant to regulations, the applicant may apply to the district court for the district in which the applicant resides for a hearing on the matter. Such court shall only have jurisdiction to review the basis for delay and remand the matter to the Secretary of Homeland Security for the Secretary’s determination on the application.”.
(f) CONFORMING AMENDMENT.—Section 310(c) of the Immigration and Nationality Act (8 U.S.C. 1421(c)) is amended—
(1) by inserting “, not later than the date that is 120 days after the Secretary of Homeland Security’s final determination,” after “seek”; and
(2) by striking the second sentence and inserting the following: “The burden shall be upon the petitioner to show that the Secretary’s denial of the application was not supported by facially legitimate and bona fide reasons. Except in a proceeding under section 340, notwithstanding any other provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to determine, or to review a determination of the Secretary made at any time regarding, whether, for purposes of an application for naturalization, an alien is a person of good moral character, whether the alien understands and is attached to the principles of the Constitution of the United States, or whether an alien is well disposed to the good order and happiness of the United States.”.
(g) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of enactment of this Act, shall apply to any act that occurred before, on, or after such date, and shall apply to any application for naturalization or any other case or matter under the immigration laws pending on, or filed after, such date.

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SEC. 204. DENATURALIZATION FOR TERRORISTS.
(a) IN GENERAL.—Section 340 of the Immigration and Nationality Act is amended—
(1) by redesignating subsections (f) through (h) as subsections (g) through (i), respectively; and
(2) by inserting after subsection (e) the following:
“(f)(1) If a person who has been naturalized participates in any act described in paragraph (2), the Attorney General is authorized to find that, as of the date of such naturalization, such person was not attached to the principles of the Constitution of the United States and was not well disposed to the good order and happiness of the United States at the time of naturalization, and upon such finding shall set aside the order admitting such person to citizenship and cancel the certificate of naturalization as having been obtained by concealment of a material fact or by willful misrepresentation, and such revocation and setting aside of the order admitting such person to citizenship and such canceling of certificate of naturalization shall be effective as of the original date of the order and certificate, respectively.
“(2) The acts described in this paragraph are the following:
“(A) Any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means.
“(B) Engaging in a terrorist activity (as defined in clauses (iii) and (iv) of section 212(a)(3)(B)).
“(C) Incitement of terrorist activity under circumstances indicating an intention to cause death or serious bodily harm.
“(D) Receiving military­type training (as defined in section 2339D(c)(1) of title 18, United States Code) from or on behalf of any organization that, at the time the training was received, was a terrorist organization (as defined in section 212(a)(3)(B)(vi)).”.
(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to acts that occur on or after such date.
SEC. 205. USE OF 1986 IRCA LEGALIZATION INFORMATION FOR NATIONAL
SECURITY PURPOSES.

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(a) SPECIAL AGRICULTURAL WORKERS.—Section 210(b)(6) of the Immigration and Nationality Act (8 U.S.C. 1160(b)(6)) is amended—
(1) by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security”;
(2) in subparagraph (A), by striking “Department of Justice,” and inserting “Department of Homeland Security,”;
(3) by redesignating subparagraphs (C) and (D) as subparagraphs (D) and (E), respectively;
(4) by inserting after subparagraph (B) the following:
“(C) AUTHORIZED DISCLOSURES.—
“(i) CENSUS PURPOSE.—The Secretary of Homeland Security
may provide, in his discretion, for the furnishing of information furnished under this section in the same manner and circumstances as census information may be disclosed under section 8 of title 13, United States Code.
“(ii) NATIONAL SECURITY PURPOSE.—The Secretary of
Homeland Security may provide, in his discretion, for the furnishing, use, publication, or release of information furnished under this section in any investigation, case, or matter, or for any purpose, relating to terrorism, national intelligence or the national security.”; and
(5) in subparagraph (D), as redesignated, by striking “Service” and inserting “Department of Homeland Security”.
(b) ADJUSTM ENT OF STATUS UNDER THE IM M IGRATION REFORM AND CONTROL ACT OF 1986.—Section 245A(c)(5) of the Immigration and Nationality Act (8 U.S.C. 1255a(c)(5)), is amended—
(1) by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security”;
(2) in subparagraph (A), by striking “Department of Justice,” and inserting “Department of Homeland Security,”;
(3) by amending subparagraph (C) to read as follows:
“(C) AUTHORIZED DISCLOSURES.—

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“(i) CENSUS PURPOSE.—The Secretary of Homeland Security
may provide, in his discretion, for the furnishing of information furnished under this section in the same manner and circumstances as census information may be disclosed under section 8 of title 13, United States Code.
“(ii) NATIONAL SECURITY PURPOSE.—The Secretary of
Homeland Security may provide, in his discretion, for the furnishing, use, publication, or release of information furnished under this section in any investigation, case, or matter, or for any purpose, relating to terrorism, national intelligence or the national security.”; and
(4) in subparagraph (D)(i), striking “Service” and inserting “Department of Homeland Security”.
SEC. 206. BACKGROUND AND SECURITY CHECKS.
(a) REQUIREM ENT TO COM PLETE BACKGROUND AND SECURITY CHECKS.— Section 103 of the Immigration and Nationality Act (8 U.S.C. 1103) is amended by adding at the end the following:
“(h) Notwithstanding any other provision of law (statutory or nonstatutory), including but not limited to section 309 of Public Law 107–173, sections 1361 and 1651 of title 28, United States Code, and section 706(1) of title 5, United States Code, neither the Secretary of Homeland Security, the Attorney General, nor any court may—
“(1) grant, or order the grant of or adjudication of an application for adjustment of status to that of an alien lawfully admitted for permanent residence;
“(2) grant, or order the grant of or adjudication of an application for United States citizenship or any other status, relief, protection from removal, employment authorization, or other benefit under the immigration laws;
“(3) grant, or order the grant of or adjudication of, any immigrant or nonimmigrant petition; or
“(4) issue or order the issuance of any documentation evidencing or related to any such grant, until such background and security checks as the Secretary may in his discretion require have been completed or updated to the satisfaction of the Secretary.

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“(i) Notwithstanding any other provision of law (statutory or nonstatutory), including but not limited to section 309 of Public Law 107–173, sections 1361 and 1651 of title 28, United States Code, and section 706(1) of title 5, United States Code, neither the Secretary of Homeland Security nor the Attorney General may be required to—
“(1) grant, or order the grant of or adjudication of an application for adjustment of status to that of an alien lawfully admitted for permanent residence,
“(2) grant, or order the grant of or adjudication of an application for United States citizenship or any other status, relief, protection from removal, employment authorization, or other benefit under the immigration laws,
“(3) grant, or order the grant of or adjudication of, any immigrant or nonimmigrant petition, or
“(4) issue or order the issuance of any documentation evidencing or related to any such grant, until any suspected or alleged materially false information, material misrepresentation or omission, concealment of a material fact, fraud or forgery, counterfeiting, or alteration, or falsification of a document, as determined by the Secretary, relating to the adjudication of an application or petition for any status (including the granting of adjustment of status), relief, protection from removal, or other benefit under this subsection has been investigated and resolved to the Secretary’s satisfaction.
“(j) Notwithstanding any other provision of law (statutory or nonstatutory), including section 309 of the Enhanced Border Security and Visa Entry Reform Act (8 U.S.C. 1738), sections 1361 and 1651 of title 28, United States Code, and section 706(1) of title 5, United States Code, no court shall have jurisdiction to require any of the acts in subsection (h) or (i) to be completed by a certain time or award any relief for failure to complete or delay in completing such acts.”.
(b) CONSTRUCTION.—
(1) IN GENERAL.—Chapter 4 of title III of the Immigration and
Nationality Act (8 U.S.C. 1501 et seq.) is amended by adding at the end the following:
“CONSTRUCTION
“SEC. 362. (a) IN GENERAL.—Nothing in this Act or any other law, except as provided in subsection (d), shall be construed to require the Secretary of Homeland Security, the Attorney General, the Secretary of State, the Secretary of Labor, or a consular officer to grant any application, approve any petition, or grant or continue

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any relief, protection from removal, employment authorization, or any other status or benefit under the immigration laws by, to, or on behalf of—
“(1) any alien deemed by the Secretary to be described in section 212(a) (3) or section 237(a)(4); or
“(2) any alien with respect to whom a criminal or other proceeding or investigation is open or pending (including, but not limited to, issuance of an arrest warrant, detainer, or indictment), where such proceeding or investigation is deemed by the official described in subsection (a) to be material to the alien’s eligibility for the status or benefit sought.
“(b) DENIAL OR WITHHOLDING OF ADJUDICATION.—An official described in subsection (a) may, in the discretion of the official, deny (with respect to an alien described in paragraph (1) or (2) of subsection (a)) or withhold adjudication of pending resolution of the investigation or case (with respect to an alien described in subsection (a)(2) of this section) any application, petition, relief, protection from removal, employment authorization, status or benefit.
“(c) JURISDICTION.—Notwithstanding any other provision of law (statutory or nonstatutory), including section 309 of the Enhanced Border Security and Visa Entry Reform Act (8 U.S.C. 1738), sections 1361 and 1651 of title 28, United States Code, and section 706(1) of title 5, United States Code, no court shall have jurisdiction to review a decision to deny or withhold adjudication pursuant to subsection (b) of this section.
“(d) WITHHOLDING OF REMOVAL AND TORTURE CONVENTION.—This section does not limit or modify the applicability of section 241(b)(3) or the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, subject to any reservations, understandings, declarations and provisos contained in the United States Senate resolution of ratification of the Convention, as implemented by section 2242 of the Foreign Affairs Reform and Restructuring Act of 1998 (Public Law 105–277) with respect to an alien otherwise eligible for protection under such provisions.”.
(2) CLERICAL AMENDMENT.—The table of contents for such Act is
amended by inserting after the item relating to section 361 the following:
“Sec. 362. Construction.”.
(c) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to applications for immigration benefits pending on or after such date.

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SEC. 207. TECHNICAL AMENDMENTS RELATING TO THE INTELLIGENCE
REFORM AND TERRORISM PREVENTION ACT OF 2004.
(a) TRANSIT WITHOUT VISA PROGRAM.—Section 7209(d) of the Intelligence Reform and Terrorism Prevention Act of 2004 (8 U.S.C. 1185 note) is amended by striking “the Secretary, in conjunction with the Secretary of Homeland Security,” and inserting “the Secretary of Homeland Security, in consultation with the Secretary of State,”.
(b) TECHNOLOGY ACQUISITION AND DISSEMINATION PLAN.—Section 7201(c) (1) of such Act is amended by inserting “and the Department of State” after “used by the Department of Homeland Security”.
TITLE III—REMOVAL OF CRIMINAL ALIENS
SEC. 301. DEFINITION OF AGGRAVATED FELONY.
(a) DEFINITION OF AGGRAVATED FELONY.—Section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) is amended—
(1) by striking “The term ‘aggravated felony’ means—” and inserting “Notwithstanding any other provision of law, the term ‘aggravated felony’ applies to an offense described in this paragraph, whether in violation of Federal or State law, or in violation of the law of a foreign country for which the term of imprisonment was completed within the previous 15 years, even if the length of the term of imprisonment for the offense is based on recidivist or other enhancements and regardless of whether the conviction was entered before, on, or after September 30, 1996, and means—”;
(2) in subparagraph (A), by striking “murder, rape, or sexual abuse of a minor;” and inserting “an offense relating to murder, manslaughter, homicide, rape (whether the victim was conscious or unconscious), or any offense of a sexual nature involving a victim under the age of 18 years;”;
(3) in subparagraph (B), by inserting “an offense relating to” before “illicit trafficking”;
(4) in subparagraph (C), by inserting “an offense relating to” before “illicit trafficking in firearms”;
(5) in subparagraph (F), by inserting “an offense relating to” before “a crime of violence”;
(6) in subparagraph (G), by striking “a theft offense (including receipt of stolen property) or a burglary offense” and inserting “an offense relating to theft (including receipt of stolen property) or burglary”;

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(7) in subparagraph (I), by striking “or 2252” and inserting “2252, or 2252A”;
(8) in subparagraph (N), by striking “paragraph (1)(A) or (2) of” and all that follows through the end and inserting “section 274(a) (relating to alien smuggling);”;
(9) in subparagraph (O), by striking “section 275(a) or 276 committed by an alien who was previously deported on the basis of a conviction for an offense described in another subparagraph of this paragraph;” and inserting “section 275 or 276 for which the term of imprisonment is at least 6 months;”;
(10) in subparagraph (U), by striking “an attempt or conspiracy to commit an offense described in this paragraph” and inserting “attempting or conspiring to commit an offense described in this paragraph, or aiding, abetting, counseling, procuring, commanding, inducing, or soliciting the commission of such an offense”; and
(11) by striking the undesignated matter following subparagraph (U).
(b) EFFECTIVE DATE; APPLICATION OF AMENDMENTS.—
(1) IN GENERAL.—The amendments made by subsection (a)—
(A) shall take effect on the date of the enactment of this Act; and
(B) shall apply to any act or conviction that occurred before, on, or after such date.
(2) APPLICATION OF IIRIRA AMENDMENTS.—The amendments to section
101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) made by section 321 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208; 110 Stat. 3009–627) shall continue to apply, whether the conviction was entered before, on, or after September 30, 1996.
SEC. 302. PRECLUDING ADMISSIBILITY OF ALIENS CONVICTED OF
AGGRAVATED FELONIES OR OTHER SERIOUS OFFENSES.
(a) INADM ISSIBILITY ON CRIM INAL AND RELATED GROUNDS; WAIVERS.— Section 212 of the Immigration and Nationality Act (8 U.S.C. 1182) is amended—
(1) in subsection (a)(2)(A)(i)—
(A) in subclause (I), by striking “or” at the end;

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(B) in subclause (II), by adding “or” at the end; and
(C) by inserting after subclause (II) the following:
“(III) a violation of (or a conspiracy or attempt to violate) an offense described in section 408 of title 42, United States Code (relating to social security account numbers or social security cards) or section 1028 of title 18, United States Code (relating to fraud and related activity in connection with identification documents, authentication features, and information),”;
(2) by adding at the end of subsection (a)(2) the following:
“(J) PROCUREMENT OF CITIZENSHIP OR NATURALIZATION
UNLAWFULLY.—Any alien convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of, a violation of, or an attempt or a conspiracy to violate, subsection (a) or (b) of section 1425 of title 18, United States Code (relating to the procurement of citizenship or naturalization unlawfully) is inadmissible.
“(K) CERTAIN FIREARM OFFENSES.—Any alien who at any time has
been convicted under any law of, or who admits having committed or admits committing acts which constitute the essential elements of, purchasing, selling, offering for sale, exchanging, using, owning, possessing, or carrying, or of attempting or conspiring to purchase, sell, offer for sale, exchange, use, own, possess, or carry, any weapon, part, or accessory which is a firearm or destructive device (as defined in section 921(a) of title 18, United States Code) in violation of any law is inadmissible.
“(L) AGGRAVATED FELONS.—Any alien who has been convicted of
an aggravated felony at any time is inadmissible.
“(M) CRIMES OF DOMESTIC VIOLENCE, STALKING, OR VIOLATION
OF PROTECTION ORDERS, CRIMES AGAINST CHILDREN.—
“(i) DOMESTIC VIOLENCE, STALKING, AND CHILD ABUSE.—
Any alien who at any time is convicted of, or who admits having committed or admits committing acts which constitute the essential elements of, a crime of domestic violence, a crime of stalking, or a crime of child abuse, child neglect, or child abandonment is inadmissible. For purposes of this clause, the term ‘crime of domestic violence’ means any crime of violence (as defined in section 16 of

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title 18, United States Code) against a person committed by a current or former spouse of the person, by an individual with whom the person shares a child in common, by an individual who is cohabiting with or has cohabited with the person as a spouse, by an individual similarly situated to a spouse of the person under the domestic or family violence laws of the jurisdiction where the offense occurs, or by any other individual against a person who is protected from that individual’s acts under the domestic or family violence laws of the United States or any State, Indian tribal government, or unit of local or foreign government.
“(ii) VIOLATORS OF PROTECTION ORDERS.—Any alien who at
any time is enjoined under a protection order issued by a court and whom the court determines has engaged in conduct that violates the portion of a protection order that involves protection against credible threats of violence, repeated harassment, or bodily injury to the person or persons for whom the protection order was issued is inadmissible. For purposes of this clause, the term ‘protection order’ means any injunction issued for the purpose of preventing violent or threatening acts of domestic violence, including temporary or final orders issued by civil or criminal courts (other than support or child custody orders or provisions) whether obtained by filing an independent action or as a independent order in another proceeding.
“(iii) WAIVER AUTHORIZED.—The waiver authority available
under section 237(a)(7) with respect to section 237(a)(2)(E)(i) shall be available on a comparable basis with respect to this subparagraph.”; and
(3) in subsection (h)—
(A) by striking “The Attorney General may, in his discretion, waive the application of subparagraphs (A)(i)(I), (B), (D), and (E) of subsection (a)(2)” and inserting “The Attorney General or the Secretary of Homeland Security may, in the discretion of the Attorney General or the Secretary, waive the application of subparagraphs (A)(i)(I), (III), (B), (D), (E), or (M) of subsection (a)(2)”;
(B) by striking “a criminal act involving torture.” and inserting “a criminal act involving torture, or has been convicted of an aggravated felony.”;
(C) by striking “if either since the date of such admission the alien has been convicted of an aggravated felony or the alien” and inserting “if since the date of such admission the alien”; and

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(D) by inserting “or Secretary of Homeland Security” after “the Attorney General” each place it appears.
(b) DEPORTABILITY; CRIMINAL OFFENSES.—Section 237(a)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(3)(B)) is amended—
(1) in clause (ii), by striking “or” at the end;
(2) in clause (iii), by inserting “or” at the end; and
(3) by inserting after clause (iii) the following:
“(iv) of a violation of, or an attempt or a conspiracy to violate, section 1425(a) or (b) of title 18 (relating to the procurement of citizenship or naturalization unlawfully),”.
(c) DEPORTABILITY; OTHER CRIMINAL OFFENSES.—Section 237(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)) is amended by adding at the end the following:
“(G) FRAUD AND RELATED ACTIVITY ASSOCIATED WITH SOCIAL
SECURITY ACT BENEFITS AND IDENTIFICATION DOCUMENTS.—Any alien who at any time after admission has been convicted of a violation of (or a conspiracy or attempt to violate) section 208 of the Social Security Act (42 U.S.C. 408) (relating to social security account numbers or social security cards) or section 1028 of title 18, United States Code (relating to fraud and related activity in connection with identification) is deportable.”.
(d) EFFECTIVE DATE.—The amendments made by this section shall apply—
(1) to any act that occurred before, on, or after the date of the enactment of this Act; and
(2) to all aliens who are required to establish admissibility on or after such date, and in all removal, deportation, or exclusion proceedings that are filed, pending, or reopened, on or after such date.
(e) CONSTRUCTION.—The amendments made by subsection (a) shall not be construed to create eligibility for relief from removal under former section 212(c) of the Immigration and Nationality Act where such eligibility did not exist before these amendments became effective.
SEC. 303. ESPIONAGE CLARIFICATION.

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Section 212(a)(3)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a) (3)(A)), is amended to read as follows:
“(A) IN GENERAL.—Any alien who a consular officer, the Attorney
General, or the Secretary of Homeland Security knows, or has reasonable ground to believe, seeks to enter the United States to engage solely, principally, or incidentally in, or who is engaged in, or with respect to clauses (i) and (iii) of this subparagraph has engaged in—
“(i) any activity—
“(I) to violate any law of the United States relating to espionage or sabotage; or
“(II) to violate or evade any law prohibiting the export from the United States of goods, technology, or sensitive information;
“(ii) any other unlawful activity; or
“(iii) any activity a purpose of which is the opposition to, or the control or overthrow of, the Government of the United States by force, violence, or other unlawful means;
is inadmissible.”.
SEC. 304. PROHIBITION OF THE SALE OF FIREARMS TO, OR THE POSSESSION
OF FIREARMS BY, CERTAIN ALIENS.
Section 922 of title 18, United States Code, is amended—
(1) in subsection (d)(5), in subparagraph (B), by striking “(y)(2)” and all that follows and inserting “(y), is in the United States not as an alien lawfully admitted for permanent residence;”;
(2) in subsection (g)(5), in subparagraph (B), by striking “(y)(2)” and all that follows and inserting “(y), is in the United States not as an alien lawfully admitted for permanent residence;”; and
(3) in subsection (y)—
(A) in the header, by striking “ADMITTED UNDER NONIMMIGRANT VISAS.—” and inserting “NOT LAWFULLY ADMITTED FOR PERMANENT R E S I DE NC E . — ”;

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(B) in paragraph (1), by amending subparagraph (B) to read as follows:
“(B) the term ‘lawfully admitted for permanent residence’ has the same meaning as in section 101(a)(20) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(20)).”;
(C) in paragraph (2), by striking “under a nonimmigrant visa” and inserting “but not lawfully admitted for permanent residence”; and
(D) in paragraph (3)(A), by striking “admitted to the United States under a nonimmigrant visa” and inserting “lawfully admitted to the United States but not as an alien lawfully admitted for permanent residence”.
SEC. 305. UNIFORM STATUTE OF LIMITATIONS FOR CERTAIN IMMIGRATION,
NATURALIZATION, AND PEONAGE OFFENSES.
Section 3291 of title 18, United States Code, is amended by striking “No person” and all that follows through the period at the end and inserting the following: “No person shall be prosecuted, tried, or punished for a violation of any section of chapters 69 (relating to nationality and citizenship offenses) and 75 (relating to passport, visa, and immigration offenses), or for a violation of any criminal provision of section 243, 266, 274, 275, 276, 277, or 278 of the Immigration and Nationality Act, or for an attempt or conspiracy to violate any such section, unless the indictment is returned or the information is filed within ten years after the commission of the offense.”.
SEC. 306. CONFORMING AMENDMENT TO THE DEFINITION OF
RACKETEERING ACTIVITY.
Section 1961(1) of title 18, United States Code, is amended by striking “section 1542” through “section 1546 (relating to fraud and misuse of visas, permits, and other documents)” and inserting “sections 1541–1548 (relating to passports and visas)”.
SEC. 307. CONFORMING AMENDMENTS FOR THE AGGRAVATED FELONY
DEFINITION.
(a) IN GENERAL.—Subparagraph (P) of section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) is amended to read as follows:
“(P) an offense which is described in any section of chapter 75 of title 18, United States Code, for which the term of imprisonment is at least 12 months;”.

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(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to acts that occur before, on, or after the date of the enactment of this Act.
SEC. 308. PRECLUDING REFUGEE OR ASYLEE ADJUSTMENT OF STATUS FOR
AGGRAVATED FELONS.
(a) IN GENERAL.—Section 209(c) of the Immigration and Nationality Act (8 U.S.C. 1159(c)) is amended by adding at the end thereof the following: “However, an alien who is convicted of an aggravated felony is not eligible for a waiver or for adjustment of status under this section.”.
(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall apply—
(1) to any act that occurred before, on, or after the date of the enactment of this Act; and
(2) to all aliens who are required to establish admissibility on or after such date, and in all removal, deportation, or exclusion proceedings that are filed, pending, or reopened, on or after such date.
SEC. 309. PRECLUDING WITHHOLDING OF REMOVAL FOR AGGRAVATED
FELONS.
(a) IN GENERAL.—Section 241(b)(3)(B) (8 U.S.C. 1231(b)(3)(B)), as amended by section 201, is further amended by inserting after clause (v), as inserted by section 201, the following:
“(vi) the alien is convicted of an aggravated felony.”.
(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall apply—
(1) to any act that occurred before, on, or after the date of the enactment of this Act; and
(2) to all aliens who are required to establish admissibility on or after such date, and in all removal, deportation, or exclusion proceedings that are filed, pending, or reopened on or after such date.
SEC. 310. INADMISSIBILITY AND DEPORTABILITY OF DRUNK DRIVERS.
(a) IN GENERAL.—Section 101(a)(43) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(43)) (as amended by this Act) is further amended—
(1) in subparagraph (T), by striking “and”;

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(2) in subparagraph (U), by striking the period at the end and inserting “; and”; and
(3) by inserting after subparagraph (U) the following:
“(V) a second or subsequent conviction for driving while intoxicated (including a conviction for driving while under the influence of or impaired by alcohol or drugs) without regard to whether the conviction is classified as a misdemeanor or felony under State law.”.
(b) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act and apply to convictions entered on or after such date.
SEC. 311. DETENTION OF DANGEROUS ALIENS.
(a) IN GENERAL.—Section 241(a) of the Immigration and Nationality Act (8 U.S.C. 1231(a)) is amended—
(1) by striking “Attorney General” each place it appears, except for the first reference in paragraph (4)(B)(i), and inserting “Secretary of Homeland Security”;
(2) in paragraph (1), by amending subparagraph (B) to read as follows:
“(B) BEGINNING OF PERIOD.—The removal period begins on the
latest of the following:
“(i) The date the order of removal becomes administratively final.
“(ii) If the alien is not in the custody of the Secretary on the date the order of removal becomes administratively final, the date the alien is taken into such custody.
“(iii) If the alien is detained or confined (except under an immigration process) on the date the order of removal becomes administratively final, the date the alien is taken into the custody of the Secretary, after the alien is released from such detention or confinement.”;
(3) in paragraph (1), by amending subparagraph (C) to read as follows:
“(C) SUSPENSION OF PERIOD.—

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“(i) EXTENSION.—The removal period shall be extended
beyond a period of 90 days and the Secretary may, in the Secretary’s sole discretion, keep the alien in detention during such extended period if—
“(I) the alien fails or refuses to make all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure or conspires or acts to prevent the alien's removal that is subject to an order of removal;
“(II) a court, the Board of Immigration Appeals, or an immigration judge orders a stay of removal of an alien who is subject to an administratively final order of removal;
“(III) the Secretary transfers custody of the alien pursuant to law to another Federal agency or a State or local government agency in connection with the official duties of such agency; or
“(IV) a court or the Board of Immigration Appeals orders a remand to an immigration judge or the Board of Immigration Appeals, during the time period when the case is pending a decision on remand (with the removal period beginning anew on the date that the alien is ordered removed on remand).
“(ii) RENEWAL.—If the removal period has been extended
under clause (C)(i), a new removal period shall be deemed to have begun on the date—
“(I) the alien makes all reasonable efforts to comply with the removal order, or to fully cooperate with the Secretary’s efforts to establish the alien’s identity and carry out the removal order;
“(II) the stay of removal is no longer in effect; or
“(III) the alien is returned to the custody of the Secretary.
“(iii) MANDATORY DETENTION FOR CERTAIN ALIENS.—In the
case of an alien described in section 236(c)(1), the Secretary shall keep that alien in detention during the extended period described in clause (i).

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“(iv) SOLE FORM OF RELIEF.—An alien may seek relief from
detention under this subparagraph only by filing an application for a writ of habeas corpus in accordance with chapter 153 of title 28, United States Code. No alien whose period of detention is extended under this subparagraph shall have the right to seek release on bond.”;
(4) in paragraph (3)—
(A) by adding after “If the alien does not leave or is not removed within the removal period” the following: “or is not detained pursuant to paragraph (6) of this subsection”; and
(B) by striking subparagraph (D) and inserting the following:
“(D) to obey reasonable restrictions on the alien’s conduct or activities that the Secretary prescribes for the alien, in order to prevent the alien from absconding, for the protection of the community, or for other purposes related to the enforcement of the immigration laws.”;
(5) in paragraph (4)(A), by striking “paragraph (2)” and inserting “subparagraph (B)”; and
(6) by striking paragraph (6) and inserting the following:
“(6) ADDITIONAL RULES FOR DETENTION OR RELEASE OF CERTAIN
ALIENS.—
“(A) DETENTION REVIEW PROCESS FOR COOPERATIVE ALIENS
ESTABLISHED.—For an alien who is not otherwise subject to mandatory detention, who has made all reasonable efforts to comply with a removal order and to cooperate fully with the Secretary of Homeland Security's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, and who has not conspired or acted to prevent removal, the Secretary shall establish an administrative review process to determine whether the alien should be detained or released on conditions. The Secretary shall make a determination whether to release an alien after the removal period in accordance with subparagraph (B). The determination shall include consideration of any evidence submitted by the alien, and may include consideration of any other evidence, including any information or assistance provided by the Secretary of State or other Federal official and any other information available to the Secretary of Homeland Security pertaining to the ability to remove the alien.

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“(B) AUTHORITY TO DETAIN BEYOND REMOVAL PERIOD.—
“(i) IN GENERAL.—The Secretary of Homeland Security, in the
exercise of the Secretary’s sole discretion, may continue to detain an alien for 90 days beyond the removal period (including any extension of the removal period as provided in paragraph (1)(C)). An alien whose detention is extended under this subparagraph shall have no right to seek release on bond.
“(ii) SPECIFIC CIRCUMSTANCES.—The Secretary of Homeland
Security, in the exercise of the Secretary’s sole discretion, may continue to detain an alien beyond the 90 days authorized in clause (i)—
“(I) until the alien is removed, if the Secretary, in the Secretary’s sole discretion, determines that there is a significant likelihood that the alien—
“(aa) will be removed in the reasonably foreseeable future; or
“(bb) would be removed in the reasonably foreseeable future, or would have been removed, but for the alien's failure or refusal to make all reasonable efforts to comply with the removal order, or to cooperate fully with the Secretary's efforts to establish the alien's identity and carry out the removal order, including making timely application in good faith for travel or other documents necessary to the alien's departure, or conspires or acts to prevent removal;
“(II) until the alien is removed, if the Secretary of Homeland Security certifies in writing—
“(aa) in consultation with the Secretary of Health and Human Services, that the alien has a highly contagious disease that poses a threat to public safety;
“(bb) after receipt of a written recommendation from the Secretary of State, that release of the alien is likely to have serious adverse foreign policy consequences for the United States;
“(cc) based on information available to the Secretary of Homeland Security (including classified, sensitive, or national security information, and without regard to the

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grounds upon which the alien was ordered removed), that there is reason to believe that the release of the alien would threaten the national security of the United States; or
“(dd) that the release of the alien will threaten the safety of the community or any person, conditions of release cannot reasonably be expected to ensure the safety of the community or any person, and either—
“(AA) the alien has been convicted of one or more aggravated felonies (as defined in section 101(a) (43)(A)) or of one or more crimes identified by the Secretary of Homeland Security by regulation, or of one or more attempts or conspiracies to commit any such aggravated felonies or such identified crimes, if the aggregate term of imprisonment for such attempts or conspiracies is at least 5 years; or
“(BB) the alien has committed one or more crimes of violence (as defined in section 16 of title 18, United States Code, but not including a purely political offense) and, because of a mental condition or personality disorder and behavior associated with that condition or disorder, the alien is likely to engage in acts of violence in the future; or
“(III) pending a certification under subclause (II), so long as the Secretary of Homeland Security has initiated the administrative review process not later than 30 days after the expiration of the removal period (including any extension of the removal period, as provided in paragraph (1)(C)).
“(iii) NO RIGHT TO BOND HEARING.—An alien whose
detention is extended under this subparagraph shall have no right to seek release on bond, including by reason of a certification under clause (ii)(II).
“(C) RENEWAL AND DELEGATION OF CERTIFICATION.—
“(i) RENEWAL.—The Secretary of Homeland Security may
renew a certification under subparagraph (B)(ii)(II) every 6 months, after providing an opportunity for the alien to request reconsideration of the certification and to submit documents or other evidence in support of that request. If the Secretary does not renew a

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certification, the Secretary may not continue to detain the alien under subparagraph (B)(ii)(II).
“(ii) DELEGATION.—Notwithstanding section 103, the
Secretary of Homeland Security may not delegate the authority to make or renew a certification described in item (bb), (cc), or (dd) of subparagraph (B)(ii)(II) below the level of the Assistant Secretary for Immigration and Customs Enforcement.
“(iii) HEARING.—The Secretary of Homeland Security may
request that the Attorney General or the Attorney General's designee provide for a hearing to make the determination described in item (dd)(BB) of subparagraph (B)(ii)(II).
“(D) RELEASE ON CONDITIONS.—If it is determined that an alien
should be released from detention by a Federal court, the Board of Immigration Appeals, or if an immigration judge orders a stay of removal, the Secretary of Homeland Security, in the exercise of the Secretary's discretion, may impose conditions on release as provided in paragraph (3).
“(E) REDETENTION.—The Secretary of Homeland Security, in the
exercise of the Secretary's discretion, without any limitations other than those specified in this section, may again detain any alien subject to a final removal order who is released from custody, if removal becomes likely in the reasonably foreseeable future, the alien fails to comply with the conditions of release, or to continue to satisfy the conditions described in subparagraph (A), or if, upon reconsideration, the Secretary, in the Secretary’s sole discretion, determines that the alien can be detained under subparagraph (B). This section shall apply to any alien returned to custody pursuant to this subparagraph, as if the removal period terminated on the day of the redetention.
“(F) REVIEW OF DETERMINATIONS BY SECRETARY.—A
determination by the Secretary under this paragraph shall not be subject to review by any other agency.”.
(b) DETENTION OF ALIENS DURING REM OVAL PROCEEDINGS.—
(1) CLERICAL AMENDMENT.—Section 236 of the Immigration and
Nationality Act (8 U.S.C. 1226) is amended—
(A) by striking “Attorney General” each place it appears (except in the second place that term appears in subsection (a)) and inserting “Secretary of Homeland Security”;

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(B) in subsection (a) of such Act, by inserting “the Secretary of Homeland Security or” before “the Attorney General—”; and
(C) in subsection (e) by striking “Attorney General’s” and inserting “Secretary of Homeland Security’s”.
(2) LENGTH OF DETENTION.—Section 236 of such Act (8 U.S.C. 1226) is
amended by adding at the end the following:
“(f) LENGTH OF DETENTION.—
“(1) IN GENERAL.—Notwithstanding any other provision of this section,
an alien may be detained, and for an alien described in subsection (c) shall be detained, under this section without time limitation, except as provided in subsection (h), during the pendency of removal proceedings.
“(2) CONSTRUCTION.—The length of detention under this section shall
not affect detention under section 241.”.
(3) DETENTION OF CRIMINAL ALIENS.—Section 236(c)(1) of the
Immigration and Nationality Act (8 U.S.C. 1226(c)(1)) is amended to read as follows:
“(1) CUSTODY.—
“(A) IN GENERAL.—The Secretary of Homeland Security shall take
into custody any alien who is described in paragraph (2) or (3) of section 212(a), section 237(a)(2), section 237(a)(4), or who has no lawful status in the United States and has been convicted one or more times for driving while intoxicated (including a conviction for driving while under the influence or impaired by alcohol or drugs), any time after the alien is released, without regarding to whether—
“(i) an alien is released related to any activity, offense, or conviction described in this paragraph;
“(ii) the alien is released on parole, supervised release or probation; or
“(iii) the alien may be arrested or imprisoned again for the same offense.
“(B) SUBSEQUENT CUSTODY.—If the activity described in this
paragraph does not result in the alien being taken into custody by any person other than the Secretary of Homeland Security, then when the alien

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is brought to the attention of the Secretary or when the Secretary determines it is practical to take such alien into custody, the Secretary shall take such alien into custody.”.
(4) RELEASE ON BOND.—Section 236 of the Immigration and Nationality
Act (8 U.S.C. 1226), as amended by paragraph (2), is further amended by adding at the end the following:
“(g) RELEASE ON BOND.—
“(1) IN GENERAL.—An alien detained under subsection (a) may seek
release on bond. No bond may be granted except to an alien who establishes by clear and convincing evidence that the alien is not a flight risk or a risk to another person or the community.
“(2) CERTAIN ALIENS INELIGIBLE.—No alien detained under subsection
(c) may seek release on bond.”.
(5) CLERICAL AMENDMENTS.—Section 236 of the Immigration and
Nationality Act (8 U.S.C. 1226) is amended—
(A) in subsection (a)(2)(B), by striking “conditional parole;” and inserting “recognizance;”; and
(B) in subsection (b), by striking “parole” and inserting “recognizance”.
(c) SEVERABILITY.—If any of the provisions of this section or any amendment by this section, or the application of any such provision to any person or circumstance, is held to be invalid for any reason, the remainder of this section and of amendments made by this section, and the application of the provisions and of the amendments made by this section to any other person or circumstance shall not be affected by such holding.
(d) EFFECTIVE DATES.—
(1) SUBSECTION (a).—The amendments made by subsection (a) shall take effect upon the date of enactment of this Act, and section 241 of the Immigration and Nationality Act, as so amended, shall in addition apply to—
(A) all aliens subject to a final administrative removal, deportation, or exclusion order that was issued before, on, or after the date of the enactment of this Act; and
(B) acts and conditions occurring or existing before, on, or after such date.

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(2) SUBSECTION (b).—The amendments made by subsection (b) shall take effect upon the date of the enactment of this Act, and section 236 of the Immigration and Nationality Act, as so amended, shall in addition apply to any alien in detention under provisions of such section on or after such date.
SEC. 312. GROUNDS OF INADMISSIBILITY AND DEPORTABILITY FOR ALIEN
GANG MEMBERS.
(a) DEFINITION OF GANG MEMBER.—Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is amended by adding at the end the following:
“(53)(A) The term ‘criminal gang’ means an ongoing group, club, organization, or association of 5 or more persons that has as one of its primary purposes the commission of 1 or more of the following criminal offenses and the members of which engage, or have engaged within the past 5 years, in a continuing series of such offenses, or that has been designated as a criminal gang by the Secretary of Homeland Security, in consultation with the Attorney General, as meeting these criteria. The offenses described, whether in violation of Federal or State law or foreign law and regardless of whether the offenses occurred before, on, or after the date of the enactment of this paragraph, are the following:
“(i) A ‘felony drug offense’ (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).
“(ii) An offense under section 274 (relating to bringing in and harboring certain aliens), section 277 (relating to aiding or assisting certain aliens to enter the United States), or section 278 (relating to importation of alien for immoral purpose).
“(iii) A crime of violence (as defined in section 16 of title 18, United States Code).
“(iv) A crime involving obstruction of justice, tampering with or retaliating against a witness, victim, or informant, or burglary.
“(v) Any conduct punishable under sections 1028 and 1029 of title 18, United States Code (relating to fraud and related activity in connection with identification documents or access devices), sections 1581 through 1594 of such title (relating to peonage, slavery and trafficking in persons), section 1952 of such title (relating to interstate and foreign travel or transportation in aid of racketeering enterprises), section 1956 of such title (relating to the laundering of monetary instruments), section 1957 of such title (relating to engaging in monetary transactions in property derived from specified unlawful activity), or sections 2312 through 2315 of such title (relating to interstate transportation of stolen motor vehicles or stolen property).

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“(vi) A conspiracy to commit an offense described in clauses (i) through (v).
“(B) Notwithstanding any other provision of law (including any effective date), the term applies regardless of whether the conduct occurred before, on, or after the date of the enactment of this paragraph.”.
(b) INADMISSIBILITY.—Section 212(a)(2) of such Act (8 U.S.C. 1182(a)(2)), as amended by section 302(a)(2) of this Act, is further amended by adding at the end the following:
“(O) ALIENS ASSOCIATED WITH CRIMINAL GANGS.—Any alien is
inadmissible who a consular officer, the Secretary of Homeland Security, or the Attorney General knows or has reason to believe—
“(i) to be or to have been a member of a criminal gang (as defined in section 101(a)(53)); or
“(ii) to have participated in the activities of a criminal gang (as defined in section 101(a)(53)), knowing or having reason to know that such activities will promote, further, aid, or support the illegal activity of the criminal gang.”.
(c) DEPORTABILITY.—Section 237(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)), as amended by section 302(c) of this Act, is further amended by adding at the end the following:
“(H) ALIENS ASSOCIATED WITH CRIMINAL GANGS.—Any alien is
deportable who the Secretary of Homeland Security or the Attorney General knows or has reason to believe—
“(i) is or has been a member of a criminal gang (as defined in section 101(a)(53)); or
“(ii) has participated in the activities of a criminal gang (as so defined), knowing or having reason to know that such activities will promote, further, aid, or support the illegal activity of the criminal gang.”.
(d) DESIGNATION.—
(1) IN GENERAL.—Chapter 2 of title II of the Immigration and Nationality
Act (8 U.S.C. 1182) is amended by inserting after section 219 the following:
“DESIGNATION

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“SEC. 220. (a) IN GENERAL.—The Secretary of Homeland Security, in consultation with the Attorney General, and the Secretary of State may designate a group or association as a criminal street gang if their conduct is described in section 101(a)(53) or if the group or association conduct poses a significant risk that threatens the security and the public safety of United States nationals or the national security, homeland security, foreign policy, or economy of the United States.
“(b) EFFECTIVE DATE.—Designations under subsection (a) shall remain in effect until the designation is revoked after consultation between the Secretary of Homeland Security, the Attorney General, and the Secretary of State or is terminated in accordance with Federal law.”.
(2) CLERICAL AMENDMENT.—The table of contents for such Act is
amended by inserting after the item relating to section 219 the following:
“220. Designation.”.
(e) ANNUAL REPORT ON DETENTION OF CRIM INAL STREET GANG MEMBERS.—Not later than March 1 of each year (beginning 1 year after the date of the enactment of this Act), the Secretary of Homeland Security, after consultation with the appropriate Federal agencies, shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the number of aliens detained who are described by subparagraph (O) of section 212(a)(2) and subparagraph (H) of section 237(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2) and 1227(a)(2)), as added by subsections (b) and (c).
(f) ASYLUM CLAIMS BASED ON GANG AFFILIATION.—
(1) INAPPLICABILITY OF RESTRICTION ON REMOVAL TO CERTAIN
COUNTRIES.—Section 241(b)(3)(B) of the Immigration and Nationality Act (8 U.S.C. 1251(b)(3)(B)) is amended, in the matter preceding clause (i), by inserting “who is described in section 212(a)(2)(O)(i) or section 237(a)(2)(H) (i) or who is” after “to an alien”.
(2) INELIGIBILITY FOR ASYLUM.—Section 208(b)(2)(A) of such Act (8
U.S.C. 1158(b)(2)(A)) (as amended by this Act) is further amended—
(A) in clause (v), by striking “or” at the end;
(B) by redesignating clause (vi) as clause (vii); and
(C) by inserting after clause (v) the following:

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“(vi) the alien is described in section 212(a)(2)(O)(i) or section 237(a)(2)(H)(i) (relating to participation in criminal street gangs); or”.
(g) TEMPORARY PROTECTED STATUS.—Section 244 of such Act (8 U.S.C. 1254a) is amended—
(1) by striking “Attorney General” each place it appears and inserting “Secretary of Homeland Security”;
(2) in subparagraph (c)(2)(B)—
(A) in clause (i), by striking “States, or” and inserting “States;”;
(B) in clause (ii), by striking the period and inserting “; or”; and
(C) by adding at the end the following:
“(iii) the alien is, or at any time has been, an alien described in section 212(a)(2)(O)(i) or section 237(a)(2)(H)(i).”; and
(3) in subsection (d)—
(A) by striking paragraph (3); and
(B) in paragraph (4), by adding at the end the following: “The Secretary of Homeland Security may detain an alien provided temporary protected status under this section whenever appropriate under any other provision of law.”.
(h) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to acts that occur before, on, or after the date of the enactment of this Act.
SEC. 313. EXTENSION OF IDENTITY THEFT OFFENSES.
Section 1028A of title 18, United States Code, is amended by adding at the end the following:
“(d) STATE OF MIND PROOF REQUIREMENT.—In a prosecution for a violation of subsection (a)(1) predicated on a violation described in subsection (c)(2), (6), (7), (9), or (10) of this section, the Government need not prove that the defendant knew the means of identification was of another person.”.
SEC. 314. LAUNDERING OF MONETARY INSTRUMENTS.

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(a) ADDITIONAL PREDICATE OFFENSES.—Section 1956(c)(7)(D) of title 18, United States Code, is amended—
(1) by inserting “section 1590 (relating to trafficking with respect to peonage, slavery, involuntary servitude, or forced labor),” after “section 1363 (relating to destruction of property within the special maritime and territorial jurisdiction),”; and
(2) by inserting “section 274(a) of the Immigration and Nationality Act (8 U.S.C. 1324(a)) (relating to bringing in and harboring certain aliens),” after “section 590 of the Tariff Act of 1930 (19 U.S.C. 1590) (relating to aviation smuggling),”.
(b) INTENT TO CONCEAL OR DISGUISE.—Section 1956(a) of title 18, United States Code, is amended—
(1) in paragraph (1) so that subparagraph (B) reads as follows:
“(B) knowing that the transaction—
“(i) conceals or disguises, or is intended to conceal or disguise, the nature, source, location, ownership, or control of the proceeds of some form of unlawful activity; or
“(ii) avoids, or is intended to avoid, a transaction reporting requirement under State or Federal law,”; and
(2) in paragraph (2) so that subparagraph (B) reads as follows:
“(B) knowing that the monetary instrument or funds involved in the transportation, transmission, or transfer represent the proceeds of some form of unlawful activity, and knowing that such transportation, transmission, or transfer—
“(i) conceals or disguises, or is intended to conceal or disguise, the nature, source, location, ownership, or control of the proceeds of some form of unlawful activity; or
“(ii) avoids, or is intended to avoid, a transaction reporting requirement under State or Federal law,”.
SEC. 315. PENALTIES FOR ILLEGAL ENTRY OR PRESENCE.
(a) IN GENERAL.—Section 275 of the Immigration and Nationality Act (8 U.S.C. 1325) is amended to read as follows:

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“SEC. 275. (a) IN GENERAL.—
“(1) ILLEGAL ENTRY OR PRESENCE.—An alien shall be subject to the
penalties set forth in paragraph (2) if the alien—
“(A) knowingly enters or crosses the border into the United States at any time or place other than as designated by the Secretary of Homeland Security;
“(B) knowingly eludes, at any time or place, examination or inspection by an authorized immigration, customs, or agriculture officer (including by failing to stop at the command of such officer);
“(C) knowingly enters or crosses the border to the United States and, upon examination or inspection, knowingly makes a false or misleading representation or the knowing concealment of a material fact (including such representation or concealment in the context of arrival, reporting, entry, or clearance requirements of the customs laws, immigration laws, agriculture laws, or shipping laws);
“(D) knowingly violates the terms or conditions of the alien’s admission or parole into the United States; or
“(E) knowingly is unlawfully present in the United States (as defined in section 212(a)(9)(B)(ii) subject to the exceptions set forth in section 212(a)(9)(B)(iii)).
“(2) CRIMINAL PENALTIES.—Any alien who violates any provision under
paragraph (1)—
“(A) shall, for the first violation, be fined under title 18, United States Code, imprisoned not more than 6 months, or both;
“(B) shall, for a second or subsequent violation, or following an order of voluntary departure, be fined under such title, imprisoned not more than 2 years (or not more than 6 months in the case of a second or subsequent violation of paragraph (1)(E)), or both;
“(C) if the violation occurred after the alien had been convicted of 3 or more misdemeanors or for a felony, shall be fined under such title, imprisoned not more than 10 years, or both;
“(D) if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 30 months, shall be fined under such title, imprisoned not more than 15 years, or both; and

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“(E) if the violation occurred after the alien had been convicted of a felony for which the alien received a term of imprisonment of not less than 60 months, such alien shall be fined under such title, imprisoned not more than 20 years, or both.
“(3) PRIOR CONVICTIONS.—The prior convictions described in
subparagraphs (C) through (E) of paragraph (2) are elements of the offenses described and the penalties in such subparagraphs shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are—
“(A) alleged in the indictment or information; and
“(B) proven beyond a reasonable doubt at trial or admitted by the defendant.
“(4) DURATION OF OFFENSE.—An offense under this subsection
continues until the alien is discovered within the United States by an immigration, customs, or agriculture officer.
“(5) ATTEMPT.—Whoever attempts to commit any offense under this
section shall be punished in the same manner as for a completion of such offense.
“(b) IMPROPER TIME OR PLACE; CIVIL PENALTIES.—Any alien who is apprehended while entering, attempting to enter, or knowingly crossing or attempting to cross the border to the United States at a time or place other than as designated by immigration officers shall be subject to a civil penalty, in addition to any criminal or other civil penalties that may be imposed under any other provision of law, in an amount equal to—
“(1) not less than $50 or more than $250 for each such entry, crossing, attempted entry, or attempted crossing; or
“(2) twice the amount specified in paragraph (1) if the alien had previously been subject to a civil penalty under this subsection.”.
(b) CLERICAL AMENDMENT.—The table of contents for the Immigration and Nationality Act is amended by striking the item relating to section 275 and inserting the following:
“Sec. 275. Illegal entry or presence.”.
SEC. 316. ILLEGAL REENTRY.

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Section 276 of the Immigration and Nationality Act (8 U.S.C. 1326) is amended to read as follows:
“REENTRY OF REMOVED ALIEN
“SEC. 276. (a) REENTRY AFTER REMOVAL.—Any alien who has been denied admission, excluded, deported, or removed, or who has departed the United States while an order of exclusion, deportation, or removal is outstanding, and subsequently enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 2 years, or both.
“(b) REENTRY OF CRIMINAL OFFENDERS.—Notwithstanding the penalty provided in subsection (a), if an alien described in that subsection was convicted before such removal or departure—
“(1) for 3 or more misdemeanors or for a felony, the alien shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both;
“(2) for a felony for which the alien was sentenced to a term of imprisonment of not less than 30 months, the alien shall be fined under such title, imprisoned not less than 2 years and not more than 15 years, or both;
“(3) for a felony for which the alien was sentenced to a term of imprisonment of not less than 60 months, the alien shall be fined under such title, imprisoned not less than 4 years and not more than 20 years, or both; or
“(4) for murder, rape, kidnapping, or a felony offense described in chapter 77 (relating to peonage and slavery) or 113B (relating to terrorism) of such title, or for 3 or more felonies of any kind, the alien shall be fined under such title, imprisoned not less than 5 years and not more than 25 years, or both.
“(c) REENTRY AFTER REPEATED REMOVAL.—Any alien who has been denied admission, excluded, deported, or removed 3 or more times and thereafter enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in the United States, shall be fined under title 18, United States Code, imprisoned not more than 10 years, or both.
“(d) PROOF OF PRIOR CONVICTIONS.—The prior convictions described in subsection (b) are elements of the crimes described, and the penalties in that subsection shall apply only in cases in which the conviction or convictions that form the basis for the additional penalty are—
“(1) alleged in the indictment or information; and

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“(2) proven beyond a reasonable doubt at trial or admitted by the defendant.
“(e) AFFIRMATIVE DEFENSES.—It shall be an affirmative defense to a violation of this section that—
“(1) prior to the alleged violation, the alien had sought and received the express consent of the Secretary of Homeland Security to reapply for admission into the United States; or
“(2) with respect to an alien previously denied admission and removed, the alien—
“(A) was not required to obtain such advance consent under the Immigration and Nationality Act or any prior Act; and
“(B) had complied with all other laws and regulations governing the alien’s admission into the United States.
“(f) LIMITATION ON COLLATERAL ATTACK ON UNDERLYING REMOVAL ORDER.—In a criminal proceeding under this section, an alien may not challenge the validity of any prior removal order concerning the alien.
“(g) REENTRY OF ALIEN REMOVED PRIOR TO COMPLETION OF TERM OF IMPRISONMENT.—Any alien removed pursuant to section 241(a)(4) who enters, attempts to enter, crosses the border to, attempts to cross the border to, or is at any time found in, the United States shall be incarcerated for the remainder of the sentence of imprisonment which was pending at the time of deportation without any reduction for parole or supervised release unless the alien affirmatively demonstrates that the Secretary of Homeland Security has expressly consented to the alien’s reentry. Such alien shall be subject to such other penalties relating to the reentry of removed aliens as may be available under this section or any other provision of law.
“(h) DEFINITIONS.—For purposes of this section and section 275, the following definitions shall apply:
“(1) CROSSES THE BORDER TO THE UNITED STATES.—The term ‘crosses
the border’ refers to the physical act of crossing the border, regardless of whether the alien is free from official restraint.
“(2) FELONY.—The term ‘felony’ means any criminal offense punishable
by a term of imprisonment of more than 1 year under the laws of the United States, any State, or a foreign government.

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“(3) MISDEMEANOR.—The term ‘misdemeanor’ means any criminal
offense punishable by a term of imprisonment of not more than 1 year under the applicable laws of the United States, any State, or a foreign government.
“(4) REMOVAL.—The term ‘removal’ includes any denial of admission,
exclusion, deportation, or removal, or any agreement by which an alien stipulates or agrees to exclusion, deportation, or removal.
“(5) STATE.—The term ‘State’ means a State of the United States, the
District of Columbia, and any commonwealth, territory, or possession of the United States.”.
SEC. 317. REFORM OF PASSPORT, VISA, AND IMMIGRATION FRAUD OFFENSES.
Chapter 75 of title 18, United States Code, is amended to read as follows:
“CHAPTER 75—PASSPORTS AND VISAS
“1541. Issuance without authority. “1542. False statement in application and use of passport. “1543. Forgery or false use of passport. “1544. Misuse of a passport. “1545. Schemes to defraud aliens. “1546. Immigration and visa fraud. “1547. Attempts and conspiracies. “1548. Alternative penalties for certain offenses. “1549. Definitions.
“§ 1541. Issuance without authority
“(a) IN GENERAL.—Whoever—
“(1) acting or claiming to act in any office or capacity under the United States, or a State, without lawful authority grants, issues, or verifies any passport or other instrument in the nature of a passport to or for any person; or
“(2) being a consular officer authorized to grant, issue, or verify passports, knowingly grants, issues, or verifies any such passport to or for any person not owing allegiance, to the United States, whether a citizen or not;
shall be fined under this title or imprisoned not more than 15 years, or both.
“(b) DEFINITION.—In this section, the term ‘State’ means a State of the United States, the District of Columbia, and any commonwealth, territory, or possession of the United States.
“§ 1542. False statement in application and use of passport

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“Whoever knowingly—
“(1) makes any false statement in an application for passport with intent to induce or secure the issuance of a passport under the authority of the United States, either for his own use or the use of another, contrary to the laws regulating the issuance of passports or the rules prescribed pursuant to such laws; or
“(2) uses or attempts to use, or furnishes to another for use any passport the issue of which was secured in any way by reason of any false statement;
shall be fined under this title or imprisoned not more than 15 years, or both.
“§ 1543. Forgery or false use of passport
“Whoever—
“(1) falsely makes, forges, counterfeits, mutilates, or alters any passport or instrument purporting to be a passport, with intent that the same may be used; or
“(2) knowingly uses, or attempts to use, or furnishes to another for use any such false, forged, counterfeited, mutilated, or altered passport or instrument purporting to be a passport, or any passport validly issued which has become void by the occurrence of any condition therein prescribed invalidating the same;
shall be fined under this title or imprisoned not more than 15 years, or both.
“§ 1544. Misuse of a passport
“Whoever knowingly—
“(1) uses any passport issued or designed for the use of another;
“(2) uses any passport in violation of the conditions or restrictions therein contained, or in violation of the laws, regulations, or rules governing the issuance and use of the passport;
“(3) secures, possesses, uses, receives, buys, sells, or distributes any passport knowing it to be forged, counterfeited, altered, falsely made, procured by fraud, stolen, or produced or issued without lawful authority; or
“(4) violates the terms and conditions of any safe conduct duly obtained and issued under the authority of the United States;

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shall be fined under this title, imprisoned not more than 15 years, or both.
“§ 1545. Schemes to defraud aliens
“Whoever inside the United States, or in or affecting interstate or foreign commerce, in connection with any matter that is authorized by or arises under the immigration laws of the United States or any matter the offender claims or represents is authorized by or arises under the immigration laws of the United States, knowingly executes a scheme or artifice—
“(1) to defraud any person, or
“(2) to obtain or receive money or anything else of value from any person by means of false or fraudulent pretenses, representations, or promises;
shall be fined under this title, imprisoned not more than 15 years, or both.
“§ 1546. Immigration and visa fraud
“Whoever knowingly—
“(1) uses any immigration document issued or designed for the use of another;
“(2) forges, counterfeits, alters, or falsely makes any immigration document;
“(3) mails, prepares, presents, or signs any immigration document knowing it to contain any materially false statement or representation;
“(4) secures, possesses, uses, transfers, receives, buys, sells, or distributes any immigration document knowing it to be forged, counterfeited, altered, falsely made, stolen, procured by fraud, or produced or issued without lawful authority;
“(5) adopts or uses a false or fictitious name to evade or to attempt to evade the immigration laws;
“(6) transfers or furnishes, without lawful authority, an immigration document to another person for use by a person other than the person for whom the immigration document was issued or designed; or
“(7) produces, issues, authorizes, or verifies, without lawful authority, an immigration document;
shall be fined under this title, imprisoned not more than 15 years, or both.

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“§ 1547. Attempts and conspiracies
“Whoever attempts or conspires to violate this chapter shall be punished in the same manner as a person who completes that violation.
“§ 1548. Alternative penalties for certain offenses
“(a) TERRORISM.—Whoever violates any section in this chapter to facilitate an act of international terrorism or domestic terrorism (as such terms are defined in section 2331), shall be fined under this title or imprisoned not more than 25 years, or both.
“(b) DRUG TRAFFICKING OFFENSES.—Whoever violates any section in this chapter to facilitate a drug trafficking crime (as defined in section 929(a)) shall be fined under this title or imprisoned not more than 20 years, or both.
“§ 1549. Definitions
“In this chapter:
“(1) An ‘application for a United States passport’ includes any document, photograph, or other piece of evidence attached to or submitted in support of the application.
“(2) The term ‘immigration document’ means any instrument on which is recorded, by means of letters, figures, or marks, matters which may be used to fulfill any requirement of the Immigration and Nationality Act.”.
SEC. 318. FORFEITURE.
Section 981(a)(1) of title 18, United States Code, is amended by adding at the end the following:
“(I) Any property, real or personal, that has been used to commit or facilitate the commission of a violation of chapter 75, the gross proceeds of such violation, and any property traceable to any such property or proceeds.”.
SEC. 319. EXPEDITED REMOVAL FOR ALIENS INADMISSIBLE ON CRIMINAL OR
SECURITY GROUNDS.
(a) IN GENERAL.—Section 238(b) of the Immigration and Nationality Act (8 U.S.C. 1228(b)) is amended–
(1) in paragraph (1)—

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(A) by striking “Attorney General” and inserting “Secretary of Homeland Security in the exercise of discretion”; and
(B) by striking “set forth in this subsection or” and inserting “set forth in this subsection, in lieu of removal proceedings under”;
(2) in paragraph (3), by striking “paragraph (1) until 14 calendar days” and inserting “paragraph (1) or (3) until 7 calendar days”;
(3) by striking “Attorney General” each place it appears in paragraphs (3) and (4) and inserting “Secretary of Homeland Security”;
(4) in paragraph (5)—
(A) by striking “described in this section” and inserting “described in paragraph (1) or (2)”; and
(B) by striking “the Attorney General may grant in the Attorney General’s discretion” and inserting “the Secretary of Homeland Security or the Attorney General may grant, in the discretion of the Secretary or Attorney General, in any proceeding”;
(5) by redesignating paragraphs (3), (4), and (5) as paragraphs (4), (5), and (6), respectively; and
(6) by inserting after paragraph (2) the following new paragraph:
“(3) The Secretary of Homeland Security in the exercise of discretion may determine inadmissibility under section 212(a)(2) (relating to criminal offenses) or section 212(a)(3) (related to security grounds) and issue an order of removal pursuant to the procedures set forth in this subsection, in lieu of removal proceedings under section 240, with respect to an alien who—
“(A) has not been admitted or paroled;
“(B) has not been found to have a credible fear of persecution pursuant to the procedures set forth in section 235(b)(1)(B); and
“(C) is not eligible for a waiver of inadmissibility or relief from removal.”.
(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect on the date of the enactment of this Act but shall not apply to aliens who are in removal proceedings under section 240 of the Immigration and Nationality Act as of such date.

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SEC. 320. INCREASED PENALTIES BARRING THE ADMISSION OF CONVICTED
SEX OFFENDERS FAILING TO REGISTER AND REQUIRING DEPORTATION OF SEX OFFENDERS FAILING TO REGISTER.
(a) INADMISSIBILITY.—Section 212(a)(2)(A)(i) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)(A)(i)), as amended by section 302(a) of this Act, is further amended—
(1) in subclause (II), by striking “or” at the end;
(2) in subclause (III), by adding “or” at the end; and
(3) by inserting after subclause (III) the following:
“(IV) a violation of section 2250 of title 18, United States Code (relating to failure to register as a sex offender),”.
(b) DEPORTABILITY.—Section 237(a)(2) of such Act (8 U.S.C. 1227(a)(2)), as amended by sections 302(c) and 311(c) of this Act, is further amended—
(1) in subparagraph (A), by striking clause (v); and
(2) by adding at the end the following:
“(I) FAILURE TO REGISTER AS A SEX OFFENDER.—Any alien
convicted of, or who admits having committed, or who admits committing acts which constitute the essential elements of a violation of section 2250 of title 18, United States Code (relating to failure to register as a sex offender) is deportable.”.
(c) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to acts that occur before, on, or after the date of the enactment of this Act.
SEC. 321. PROTECTING IMMIGRANTS FROM CONVICTED SEX OFFENDERS.
(a) IMMIGRANTS.—Section 204(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1154(a)(1)), is amended—
(1) in subparagraph (A), by amending clause (viii) to read as follows:
“(viii) Clause (i) shall not apply to a citizen of the United States who has been convicted of an offense described in subparagraph (A), (I), or (K) of section 101(a) (43) or any offense defined in section 111 of the Adam Walsh Child Protection and Safety Act of 2006 (42 U.S.C. 16911), unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the citizen poses

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no risk to the alien with respect to whom a petition described in clause (i) is filed.”; and
(2) in subparagraph (B)(i)—
(A) by redesignating the second subclause (I) as subclause (II); and
(B) by amending such subclause (II) to read as follows:
“(II) Subclause (I) shall not apply in the case of an alien admitted for permanent residence who has been convicted of an offense described in subparagraph (A), (I), or (K) of section 101(a)(43), unless the Secretary of Homeland Security, in the Secretary's sole and unreviewable discretion, determines that the alien lawfully admitted for permanent residence poses no risk to the alien with respect to whom a petition described in subclause (I) is filed.”.
(b) NONIMMIGRANTS.—Section 101(a)(15)(K) of such Act (8 U.S.C. 1101(a) (15)(K)), is amended by striking “204(a)(1)(A)(viii)(I))” each place such term appears and inserting “204(a)(1)(A)(viii))”.
(c) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to petitions filed on or after such date.
SEC. 322. PENALTIES FOR FAILURE TO OBEY REMOVAL ORDERS.
(a) IN GENERAL.—Section 243(a) of the Immigration and Nationality Act (8 U.S.C. 1253(a)) is amended—
(1) in the matter preceding subparagraph (A) of paragraph (1), by inserting “212(a) or” before “237(a),”; and
(2) by striking paragraph (3).
(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to acts that are described in subparagraphs (A) through (D) of section 243(a)(1) of the Immigration and Nationality Act (8 U.S.C. 1253(a)(1)) that occur on or after the date of the enactment of this Act.
SEC. 323. PARDONS.
(a) DEFINITION.—Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)), as amended by section 312(a) of this Act, is further amended by adding at the end the following:

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“(54) The term ‘pardon’ means a full and unconditional pardon granted by the President of the United States, Governor of any of the several States or constitutionally recognized body.”.
(b) DEPORTABILITY.—Section 237(a) of such Act (8 U.S.C. 1227(a)) is amended—
(1) in paragraph (2)(A), by striking clause (vi); and
(2) by adding at the end the following:
“(8) PARDONS.—In the case of an alien who has been convicted of a
crime and is subject to removal due to that conviction, if the alien, subsequent to receiving the criminal conviction, is granted a pardon, the alien shall not be deportable by reason of that criminal conviction.”.
(c) EFFECTIVE DATE.—The amendments made by this section shall take effect on the date of the enactment of this Act and shall apply to a pardon granted before, on, or after such date.
SEC. 324. CONVICTIONS.
(a) IN GENERAL.—Section 212(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)) is amended by adding at the end the following subparagraph:
“(J) CONVICTIONS.—
“(i) IN GENERAL.—For purposes of determining whether an
underlying criminal offense constitutes a ground of inadmissibility under this subsection, all statutes or common law offenses are divisible so long as any of the conduct encompassed by the statute constitutes an offense that is a ground of inadmissibility.
“(ii) OTHER EVIDENCE.—If the conviction records do not
conclusively establish whether a crime constitutes a ground of inadmissibility, the Attorney General or the Secretary of Homeland Security may consider other evidence related to the conviction that clearly establishes that the conduct for which the alien was engaged constitutes a ground of inadmissibility.”.
(b) CRIMINAL OFFENSES.—Section 237(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1227(a)(2)) is amended by adding at the end the following subparagraph:
“(G) CRIMINAL OFFENSES.—

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“(i) IN GENERAL.—For purposes of determining whether an
underlying criminal offense constitutes a ground of deportability under this subsection, all statutes or common law offenses are divisible so long as any of the conduct encompassed by the statute constitutes an offense that is a ground of deportability.
“(ii) OTHER EVIDENCE.—If the conviction records do not
conclusively establish whether a crime constitutes a ground of deportability, the Attorney General or the Secretary of Homeland Security may consider other evidence related to the conviction that clearly establishes that the conduct for which the alien was engaged constitutes a ground of deportability.”.
(c) FINALITY OF SENTENCES FOR IMMIGRATION PURPOSES.—Section 101(a) (48) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(48)) is amended by adding at the end the following subparagraph:
“(C) Any modification, clarification, vacatur, or any other such similar action with respect to an alien’s conviction, other than a full and complete pardon, made after the initiation of any proceedings to remove the alien from the United States shall have no effect for the purposes of this Act.”.
TITLE IV—VISA SECURITY
SEC. 401. CANCELLATION OF ADDITIONAL VISAS.
(a) IN GENERAL.—Section 222(g) of the Immigration and Nationality Act (8 U.S.C. 1202(g)) is amended—
(1) in paragraph (1)—
(A) by striking “Attorney General” and inserting “Secretary”; and
(B) by inserting “and any other nonimmigrant visa issued by the United States that is in the possession of the alien” after “such visa”; and
(2) in paragraph (2)(A), by striking “(other than the visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality” and inserting “(other than a visa described in paragraph (1)) issued in a consular office located in the country of the alien's nationality or foreign residence”.
(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on the date of the enactment of this Act and shall apply to a visa issued before, on, or after such date.

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SEC. 402. VISA INFORMATION SHARING.
(a) IN GENERAL.—Section 222(f) of the Immigration and Nationality Act (8 U.S.C. 1202(f)(2)) is amended—
(1) by striking “issuance or refusal” and inserting “issuance, refusal, or revocation”;
(2) in paragraph (2), in the matter preceding subparagraph (A), by striking “and on the basis of reciprocity”;
(3) in paragraph (2)(A)—
(A) by inserting “(i)” after “for the purpose of”; and
(B) by striking “illicit weapons; or” and inserting “illicit weapons, or (ii) determining a person’s deportability or eligibility for a visa, admission, or other immigration benefit;”;
(4) in paragraph (2)(B)—
(A) by striking “for the purposes” and inserting “for one of the purposes”; and
(B) by striking “or to deny visas to persons who would be inadmissible to the United States.” and inserting “; or”; and
(5) in paragraph (2), by adding at the end the following:
“(C) with regard to any or all aliens in the database specified data elements from each record, if the Secretary of State determines that it is in the national interest to provide such information to a foreign government.”.
(b) EFFECTIVE DATE.—The amendments made by subsection (a) shall take effect 60 days after the date of the enactment of the Act.
SEC. 403. RESTRICTING WAIVER OF VISA INTERVIEWS.
Section 222(h) of the Immigration and Nationality Act (8 U.S.C. 1202(h)(1) (B)) is amended—
(1) in paragraph (1)(C), by inserting “, in consultation with the Secretary of Homeland Security,” after “if the Secretary”;

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(2) in paragraph (1)(C)(i), by inserting “, where such national interest shall not include facilitation of travel of foreign nationals to the United States, reduction of visa application processing times, or the allocation of consular resources” before the semicolon at the end; and
(3) in paragraph (2)—
(A) by striking “or” at the end of subparagraph (E);
(B) by striking the period at the end of subparagraph (F) and inserting “; or”; and
(C) by adding at the end the following:
“(G) is an individual—
“(i) determined to be in a class of aliens determined by the Secretary of Homeland Security to be threats to national security;
“(ii) identified by the Secretary of Homeland Security as a person of concern; or
“(iii) applying for a visa in a visa category with respect to which the Secretary of Homeland Security has determined that a waiver of the visa interview would create a high risk of degradation of visa program integrity.”.
SEC. 404. NON­INTERVIEW OF CERTAIN INELIGIBLE VISA APPLICANTS.
(a) IN GENERAL.—Section 222(h)(1) of the Immigration and Nationality Act (8 U.S.C. 1202(h)(1)) is amended by inserting “the alien is determined by the Secretary of State to be ineligible for a visa based upon review of the application or” after “unless”.
(b) GUIDANCE.—Not later than 90 days after the date of the enactment of this Act, the Secretary of State shall issue guidance to consular officers on the standards and processes for implementing the authority to deny visa applications without interview in cases where the alien is determined by the Secretary of State to be ineligible for a visa based upon review of the application.
(c) REPORTS.—Not less frequently than once each quarter, the Secretary of State shall submit to the Congress a report on the denial of visa applications without interview, including—
(1) the number of such denials; and

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(2) a post­by­post breakdown of such denials.
SEC. 405. VISA REFUSAL AND REVOCATION.
(a) AUTHORITY OF THE SECRETARY OF HOM ELAND SECURITY AND THE SECRETARY OF STATE.—
(1) IN GENERAL.—Section 428 of the Homeland Security Act of 2002 (6
U.S.C. 236) is amended by striking subsections (b) and (c) and inserting the following:
“(b) AUTHORITY OF THE SECRETARY OF HOMELAND SECURITY.—
“(1) IN GENERAL.—Notwithstanding section 104(a) of the Immigration
and Nationality Act (8 U.S.C. 1104(a)) or any other provision of law, and except as provided in subsection (c) and except for the authority of the Secretary of State under subparagraphs (A) and (G) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)), the Secretary—
“(A) shall have exclusive authority to issue regulations, establish policy, and administer and enforce the provisions of the Immigration and Nationality Act (8 U.S.C. 1101 et seq.) and all other immigration or nationality laws relating to the functions of consular officers of the United States in connection with the granting and refusal of a visa; and
“(B) may refuse or revoke any visa to any alien or class of aliens if the Secretary, or designee, determines that such refusal or revocation is necessary or advisable in the security or foreign policy interests of the United States.
“(2) EFFECT OF REVOCATION.—The revocation of any visa under
paragraph (1)(B)—
“(A) shall take effect immediately; and
“(B) shall automatically cancel any other valid visa that is in the alien’s possession.
“(3) JUDICIAL REVIEW.—Notwithstanding any other provision of law,
including section 2241 of title 28, United States Code, or any other habeas corpus provision, and sections 1361 and 1651 of such title, no court shall have jurisdiction to review a decision by the Secretary of Homeland Security to refuse or revoke a visa, and no court shall have jurisdiction to hear any claim arising from, or any challenge to, such a refusal or revocation.
“(c) AUTHORITY OF THE SECRETARY OF STATE.—

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“(1) IN GENERAL.—The Secretary of State may direct a consular officer
to refuse a visa requested by an alien if the Secretary of State determines such refusal to be necessary or advisable in the security or foreign policy interests of the United States.
“(2) LIMITATION.—No decision by the Secretary of State to approve a
visa may override a decision by the Secretary of Homeland Security under subsection (b).”.
(2) CONFORMING AMENDMENT.—Section 237(a)(1)(B) of the
Immigration and Nationality Act (8 U.S.C. 1227(a)(1)(B)) is amended by striking “under section 221(i)”.
(3) EFFECTIVE DATE.—The amendment made by paragraph (1) shall take
effect on the date of the enactment of this Act and shall apply to visa refusals and revocations occurring before, on, or after such date.
(b) TECHNICAL CORRECTIONS TO THE HOMELAND SECURITY ACT.—Section 428(a) of the Homeland Security Act of 2002 (6 U.S.C. 236(a)) is amended by—
(1) striking “subsection” and inserting “section”; and
(2) striking “consular office” and inserting “consular officer”.
SEC. 406. FUNDING FOR THE VISA SECURITY PROGRAM.
(a) IN GENERAL.—The Department of State and Related Agency Appropriations Act, 2005 (title IV of division B of Public Law 108–447) is amended, in the fourth paragraph under the heading “Diplomatic and Consular Programs”, by striking “Beginning” and all that follows through the period at the end and inserting the following: “Beginning in fiscal year 2005 and thereafter, the Secretary of State is authorized to charge surcharges related to consular services in support of enhanced border security that are in addition to the immigrant visa fees in effect on January 1, 2004: Provided, That funds collected pursuant to this authority shall be credited to the appropriation for U.S. Immigration and Customs Enforcement for the fiscal year in which the fees were collected, and shall be available until expended for the funding of the Visa Security Program established by the Secretary of Homeland Security under section 428(e) of the Homeland Security Act of 2002 (Public Law 107–296): Provided further, That such surcharges shall be 10 percent of the fee assessed on immigrant visa applications.”.
(b) REPAYMENT OF APPROPRIATED FUNDS.—Twenty percent of the funds collected each fiscal year under the heading “Diplomatic and Consular Programs” in the Department of State and Related Agency Appropriations Act, 2005 (title IV of division B of Public Law 108–447), as amended by subsection (a), shall be

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deposited into the general fund of the Treasury as repayment of funds appropriated pursuant to section 407(c) of this Act until the entire appropriated sum has been repaid.
SEC. 407. EXPEDITIOUS EXPANSION OF VISA SECURITY PROGRAM TO HIGH­
RISK POSTS.
(a) IN GENERAL.—Section 428(i) of the Homeland Security Act of 2002 (6 U.S.C. 236(i)) is amended to read as follows:
“(i) VISA ISSUANCE AT DESIGNATED HIGH­RISK POSTS.—Notwithstanding any other provision of law, the Secretary of Homeland Security shall conduct an on­ site review of all visa applications and supporting documentation before adjudication at the top 30 visa­issuing posts designated jointly by the Secretaries of State and Homeland Security as high­risk posts.”.
(b) ASSIGNMENT OF PERSONNEL.—Not later than one year after the date of enactment of this section, the Secretary of Homeland Security shall assign personnel to the visa­issuing posts referenced in section 428(i) of the Homeland Security Act of 2002 (6 U.S.C. 236(i)), as amended by this section, and communicate such assignments to the Secretary of State.
(c) APPROPRIATIONS.—There is authorized to be appropriated $60,000,000 for each of the fiscal years 2015 and 2016, which shall be used to expedite the implementation of section 428(i) of the Homeland Security Act, as amended by this section.
SEC. 408. EXPEDITED CLEARANCE AND PLACEMENT OF DEPARTMENT OF
HOMELAND SECURITY PERSONNEL AT OVERSEAS EMBASSIES AND CONSULAR POSTS.
Section 428 of the Homeland Security Act of 2002 (6 U.S.C. 236) is amended by adding at the end the following:
“(j) EXPEDITED CLEARANCE AND PLACEM ENT OF DEPARTM ENT OF HOMELAND SECURITY PERSONNEL AT OVERSEAS EMBASSIES AND CONSULAR POSTS.—Notwithstanding any other provision of law, and the processes set forth in National Security Defense Directive 38 (dated June 2, 1982) or any successor Directive, the Chief of Mission of a post to which the Secretary of Homeland Security has assigned personnel under subsection (e) or (i) shall ensure, not later than one year after the date on which the Secretary of Homeland Security communicates such assignment to the Secretary of State, that such personnel have been stationed and accommodated at post and are able to carry out their duties.”.
SEC. 409. ACCREDITATION REQUIREMENTS.

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(a) COLLEGES, UNIVERSITIES, AND LANGUAGE TRAINING PROGRAM S.— Section 101(a) of the Immigration and Nationality Act (8 U.S.C. 1101(a)) is amended—
(1) in paragraph (15)(F)(i)—
(A) by striking “section 214(l) at an established college, university, seminary, conservatory, academic high school, elementary school, or other academic institution or in an accredited language training program in the United States” and inserting “section 214(m) at an accredited college, university, or language training program, or at an established seminary, conservatory, academic high school, elementary school, or other academic institution in the United States”;
(B) by striking “Attorney General” each place such term appears and inserting “Secretary of Homeland Security”; and
(C) by striking “and if any such institution of learning or place of study fails to make reports promptly the approval shall be withdrawn,” and inserting “and if any such institution of learning of place of study fails to make reports promptly or fails to comply with any accreditation requirement (including deadlines for submitting accreditation applications or obtaining accreditation) the approval shall be withdrawn,”; and
(2) by amending paragraph (52) to read as follows:
“(52) Except as provided in section 214(m)(4), the term ‘accredited college, university, or language training program’ means a college, university, or language training program that is accredited by an accrediting agency recognized by the Secretary of Education.”.
(b) OTHER ACADEMIC INSTITUTIONS.—Section 214(m) of the Immigration and Nationality Act (8 U.S.C. 1184(m)) is amended by adding at the end the following:
“(3) The Secretary of Homeland Security shall require accreditation of an academic institution (except for seminaries or other religious institutions) for purposes of section 101(a)(15)(F) if—
“(A) that institution is not already required to be accredited under section 101(a)(15)(F)(i); and
“(B) an appropriate accrediting agency recognized by the Secretary of Education is able to provide such accreditation.
“(4) The Secretary of Homeland Security, in the Secretary’s discretion, may waive the accreditation requirement in paragraph (3) or section 101(a)(15)(F)(i)

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with respect to an institution if such institution—
“(A) is otherwise in compliance with the requirements of section 101(a) (15)(F)(i); and
“(B) has been a candidate for accreditation for at least 1 year and continues to progress toward accreditation by an accrediting agency recognized by the Secretary of Education.”.
(c) EFFECTIVE DATE.—
(1) IN GENERAL.—Except as provided in paragraph (2), the amendments
made by this section shall—
(A) take effect on the date that is 180 days after the date of enactment of this Act; and
(B) apply with respect to applications for nonimmigrant visas that are filed on or after the effective date described in subparagraph (A).
(2) TEMPORARY EXCEPTION.—During the 3­year period beginning on
the effective date described in paragraph (1)(A), an institution that is newly required to be accredited under this section may continue to participate in the Student and Exchange Visitor Program notwithstanding the institution’s lack of accreditation if the institution—
(A) was certified under the Student and Exchange Visitor Program on such date;
(B) submitted an application for accreditation to an accrediting agency recognized by the Secretary of Education during the 6­month period ending on such date; and
(C) continues to progress toward accreditation by such accrediting agency.
SEC. 410. VISA FRAUD.
(a) TEMPORARY SUSPENSION OF SEVIS ACCESS.—Section 641(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372(d)) is amended—
(1) in paragraph (1)(A), by striking “institution,,” and inserting “institution,”; and
(2) by adding at the end the following:

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“(3) EFFECT OF REASONABLE SUSPICION OF FRAUD.—If the Secretary of
Homeland Security has reasonable suspicion that an owner of, or a designated school official at, an approved institution of higher education, an other approved educational institution, or a designated exchange visitor program has committed fraud or attempted to commit fraud relating to any aspect of the Student and Exchange Visitor Program (SEVP), the Secretary may immediately suspend, without notice, such official’s or such school’s access to the Student and Exchange Visitor Information System (SEVIS), including the ability to issue Form I–20s, pending a final determination by the Secretary with respect to the institution’s certification under the Student and Exchange Visitor Program.”.
(b) EFFECT OF CONVICTION FOR VISA FRAUD.—Such section 641(d), as amended by subsection (a)(2), is further amended by adding at the end the following:
“(4) PERMANENT DISQUALIFICATION FOR FRAUD.—A designated school
official at, or an owner of, an approved institution of higher education, an other approved educational institution, or a designated exchange visitor program who is convicted for fraud relating to any aspect of the Student and Exchange Visitor Program shall be permanently disqualified from filing future petitions and from having an ownership interest or a management role, including serving as a principal, owner, officer, board member, general partner, designated school official, or any other position of substantive authority for the operations or management of the institution, in any United States educational institution that enrolls nonimmigrant alien students described in subparagraph (F) or (M) of section 101(a)(15) the Immigration and Nationality Act (8 U.S.C. 1101(a) (15)).”.
SEC. 411. BACKGROUND CHECKS.
(a) IN GENERAL.—Section 641(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372(d)), as amended by section 411(b) of this Act, is further amended by adding at the end the following:
“(5) BACKGROUND CHECK REQUIREMENT.—
“(A) IN GENERAL.—An individual may not serve as a designated
school official or be granted access to SEVIS unless the individual is a national of the United States or an alien lawfully admitted for permanent residence and during the most recent 3­year period—
“(i) the Secretary of Homeland Security has—

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“(I) conducted a thorough background check on the individual, including a review of the individual’s criminal and sex offender history and the verification of the individual’s immigration status; and
“(II) determined that the individual has not been convicted of any violation of United States immigration law and is not a risk to national security of the United States; and
“(ii) the individual has successfully completed an on­line training course on SEVP and SEVIS, which has been developed by the Secretary.
“(B) INTERIM DESIGNATED SCHOOL OFFICIAL.—
“(i) IN GENERAL.—An individual may serve as an interim
designated school official during the period that the Secretary is conducting the background check required by subparagraph (A)(i)(I).
“(ii) REVIEWS BY THE SECRETARY.—If an individual serving
as an interim designated school official under clause (i) does not successfully complete the background check required by subparagraph (A)(i)(I), the Secretary shall review each Form I–20 issued by such interim designated school official.
“(6) FEE.—The Secretary is authorized to collect a fee from an approved
school for each background check conducted under paragraph (6)(A)(i). The amount of such fee shall be equal to the average amount expended by the Secretary to conduct such background checks.”.
(b) EFFECTIVE DATE.—The amendment made by subsection (a) shall take effect on the date that is 1 year after the date of the enactment of this Act.
SEC. 412. NUMBER OF DESIGNATED SCHOOL OFFICIALS.
Section 641(d) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (8 U.S.C. 1372(d)), as amended by section 412(a) of this Act, is further amended by adding at the end the following:
“(7) NUMBER OF DESIGNATED SCHOOL OFFICIALS.—School officials
may nominate as many Designated School Officials (DSOs) in addition to the school’s Principal Designated School Official (PDSO) as they determine necessary to adequately provide recommendations to students enrolled at the school regarding maintenance of nonimmigrant status under subparagraph (F) or (M) of section 101(a)(15) and to support timely and complete recordkeeping

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and reporting to the Secretary of Homeland Security, as required by this section, except that a school may not have less than one DSO per every 200 students who have nonimmigrant status pursuant to subparagraph (F), (J), or (M) of such section. School officials shall not permit a DSO or PDSO nominee access to SEVIS until the Secretary approves the nomination.”.
SEC. 413. REPORTING REQUIREMENT.
Section 442(a) of the Homeland Security Act of 2002 (6 U.S.C. 252(a)) is amended—
(1) by redesignating paragraph (5) as paragraph (6); and
(2) by inserting after paragraph (4) the following:
“(5) STUDENT AND EXCHANGE VISITOR PROGRAM.—In administering
the program under paragraph (4), the Secretary shall, not later than one year after the date of the enactment of this paragraph, prescribe regulations to require an institution or exchange visitor program sponsor participating in the Student Exchange Visitor Program to ensure that each student or exchange visitor who has nonimmigrant status pursuant to subparagraph (F), (J), or (M) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a) (15)) enrolled at the institution or attending the exchange visitor program is reported to the Department within 10 days of—
“(A) transferring to another institution or program;
“(B) changing academic majors; or
“(C) any other changes to information required to be maintained in the system described in paragraph (4).”.
SEC. 414. FLIGHT SCHOOLS NOT CERTIFIED BY FAA.
(a) IN GENERAL.—Except as provided in subsection (b), the Secretary of Homeland Security shall prohibit any flight school in the United States from accessing SEVIS or issuing a Form I–20 to an alien seeking a student visa pursuant to subparagraph (F)(i) or (M)(i) of section 101(a)(15) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)) if the flight school has not been certified to the satisfaction of the Secretary and by the Federal Aviation Administration pursuant to part 141 or part 142 of title 14, Code of Federal Regulations (or similar successor regulations).
(b) TEMPORARY EXCEPTION.—During the 5­year period beginning on the date of the enactment of this Act, the Secretary may waive the requirement under

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subsection (a) that a flight school be certified by the Federal Aviation Administration if such flight school—
(1) was certified under the Student and Exchange Visitor Program on the date of the enactment of this Act;
(2) submitted an application for certification with the Federal Aviation Administration during the 1­year period beginning on such date; and
(3) continues to progress toward certification by the Federal Aviation Administration.
SEC. 415. REVOCATION OF ACCREDITATION.
At the time an accrediting agency or association is required to notify the Secretary of Education and the appropriate State licensing or authorizing agency of the final denial, withdrawal, suspension, or termination of accreditation of an institution pursuant to section 496 of the Higher Education Act of 1965 (20 U.S.C. 1099b), such accrediting agency or association shall notify the Secretary of Homeland Security of such determination and the Secretary of Homeland Security shall immediately terminate the school’s Student and Exchange Visitor Program (SEVP) certification and prohibit the school from accessing the Student and Exchange Visitor Information System (SEVIS).
SEC. 416. REPORT ON RISK ASSESSMENT.
Not later than 180 days after the date of the enactment of this Act, the Secretary of Homeland Security shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report that contains the risk assessment strategy that will be employed by the Secretary to identify, investigate, and take appropriate action against schools and school officials that are facilitating the issuance of Form I–20 and the maintenance of student visa status in violation of the immigration laws of the United States.
SEC. 417. IMPLEMENTATION OF GAO RECOMMENDATIONS.
Not later than 180 days after the date of the enactment of this act, the Secretary of Homeland Security shall submit to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report that describes—
(1) the process in place to identify and assess risks in the SEVP;
(2) a risk assessment process to allocate SEVP’s resources based on risk;

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(3) the procedures in place for consistently ensuring a school’s eligibility, including consistently verifying in lieu of letters;
(4) how SEVP identified and addressed missing school case files;
(5) a plan to develop and implement a process to monitor State licensing and accreditation status of all SEVP­certified schools;
(6) whether all flight schools that have not been certified to the satisfaction of the Secretary and by the Federal Aviation Administration have been removed from the program and have been restricted from accessing SEVIS;
(7) the standard operating procedures that govern coordination among SEVP, the U.S. Immigration and Customs Enforcement (ICE) Counterterrorism and Criminal Exploitation Unit, and ICE field offices; and
(8) the established criteria for referring cases of a potentially criminal nature from SEVP to the counterterrorism and intelligence community.
SEC. 418. IMPLEMENTATION OF SEVIS II.
Not later than 2 years after the date of the enactment of this Act, the Secretary of Homeland Security shall complete the deployment of both phases of the 2nd generation Student and Exchange Visitor Information System (commonly known as “SEVIS II”).
SEC. 419. DEFINITIONS.
(a) DEFINITIONS.—For purposes of this title:
(1) SEVIS.—The term “SEVIS” means the Student and Exchange Visitor
Information System of the Department of Homeland Security.
(2) SEVP.—The term “SEVP” means the Student and Exchange Visitor
Program of the Department of Homeland Security.
TITLE V—AID TO U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT OFFICERS
SEC. 501. ICE IMMIGRATION ENFORCEMENT AGENTS.
(a) IN GENERAL.—The Secretary of Homeland Security shall authorize all immigration enforcement agents and deportation officers of the Department of Homeland Security who have successfully completed basic immigration law enforcement training to exercise the powers conferred by—

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(1) section 287(a)(5)(A) of the Immigration and Nationality Act to arrest for any offense against the United States;
(2) section 287(a)(5)(B) of such Act to arrest for any felony;
(3) section 274(a) of such Act to arrest for bringing in, transporting, or harboring certain aliens, or inducing them to enter;
(4) section 287(a) of such Act to execute warrants of arrest for administrative immigration violations issued under section 236 of the Act or to execute warrants of criminal arrest issued under the authority of the United States; and
(5) section 287(a) of such Act to carry firearms, provided that they are individually qualified by training and experience to handle and safely operate the firearms they are permitted to carry, maintain proficiency in the use of such firearms, and adhere to the provisions of the enforcement standard governing the use of force.
(b) ARREST POWERS.—Section 287(a)(2) of the Immigration and Nationality Act (8 U.S.C. 1357(a)(2)) is amended by striking “regulation and is likely to escape before a warrant can be obtained for his arrest,” and inserting “regulation,”.
(c) PAY.—Immigration enforcement agents shall be paid on the same scale as Immigration and Customs Enforcement deportation officers and shall receive the same benefits.
SEC. 502. ICE DETENTION ENFORCEMENT OFFICERS.
(a) AUTHORIZATION.—The Secretary of Homeland Security is authorized to hire 2,500 Immigration and Customs Enforcement detention enforcement officers.
(b) DUTIES.—Immigration and Customs Enforcement detention enforcement officers who have successfully completed detention enforcement officers’ basic training shall be responsible for—
(1) taking and maintaining custody of any person who has been arrested by an immigration officer;
(2) transporting and guarding immigration detainees;
(3) securing Department of Homeland Security detention facilities; and
(4) assisting in the processing of detainees.
SEC. 503. ENSURING THE SAFETY OF ICE OFFICERS AND AGENTS.

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(a) BODY ARMOR.—The Secretary of Homeland Security shall ensure that every Immigration and Customs Enforcement deportation officer and immigration enforcement agent on duty is issued high­quality body armor that is appropriate for the climate and risks faced by the agent. Enough body armor must be purchased to cover every agent in the field.
(b) WEAPONS.—Such Secretary shall ensure that Immigration and Customs Enforcement deportation officers and immigration enforcement agents are equipped with weapons that are reliable and effective to protect themselves, their fellow agents, and innocent third parties from the threats posed by armed criminals. Such weapons shall include, at a minimum, standard­issue handguns, M–4 (or equivalent) rifles, and Tasers.
(c) EFFECTIVE DATE.—This section shall take effect 90 days after the date of the enactment of this Act.
SEC. 504. ICE ADVISORY COUNCIL.
(a) ESTABLISHMENT.—An ICE Advisory Council shall be established not later than 3 months after the date of the enactment of this Act.
(b) MEMBERSHIP.—The ICE Advisor Council shall be comprised of 7 members.
(c) APPOINTMENT.—Members shall to be appointed in the following manner:
(1) One member shall be appointed by the President.
(2) One member shall be appointed by the Chairman of the Judiciary Committee of the House of Representatives.
(3) One member shall be appointed by the Chairman of the Judiciary Committee of the Senate.
(4) One member shall be appointed by the Local 511, the ICE prosecutor’s union.
(5) Three members shall be appointed by the National Immigration and Customs Enforcement Council.
(d) TERM.—Members shall serve renewable, 2­year terms.
(e) VOLUNTARY.—Membership shall be voluntary and non­remunerated, except that members will receive reimbursement from the Secretary of Homeland Security for travel and other related expenses.

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(f) RETALIATION PROTECTION.—Members who are employed by the Secretary of Homeland Security shall be protected from retaliation by their supervisors, managers, and other Department of Homeland Security employees for their participation on the Council.
(g) PURPOSE.—The purpose of the Council is to advise the Congress and the Secretary of Homeland Security on issues including the following:
(1) The current status of immigration enforcement efforts, including prosecutions and removals, the effectiveness of such efforts, and how enforcement could be improved.
(2) The effectiveness of cooperative efforts between the Secretary of Homeland Security and other law enforcement agencies, including additional types of enforcement activities that the Secretary should be engaged in, such as State and local criminal task forces.
(3) Personnel, equipment, and other resource needs of field personnel.
(4) Improvements that should be made to the organizational structure of the Department of Homeland Security, including whether the position of immigration enforcement agent should be merged into the deportation officer position.
(5) The effectiveness of specific enforcement policies and regulations promulgated by the Secretary of Homeland Security, and whether other enforcement priorities should be considered.
(h) REPORTS.—The Council shall provide quarterly reports to the Chairmen and Ranking Members of the Judiciary Committees of the Senate and the House of Representatives and to the Secretary of Homeland Security. The Council members shall meet directly with the Chairmen and Ranking Members (or their designated representatives) and with the Secretary to discuss their reports every 6 months.
SEC. 505. PILOT PROGRAM FOR ELECTRONIC FIELD PROCESSING.
(a) IN GENERAL.—The Secretary of Homeland Security shall establish a pilot program in at least five of the ten Immigration and Customs Enforcement field offices with the largest removal caseloads to allow Immigration and Customs deportation officers and immigration enforcement agents to—
(1) electronically process and serve charging documents, including Notices to Appear, while in the field; and
(2) electronically process and place detainers while in the field.

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(b) DUTIES.—The pilot program described in subsection (a) shall be designed to allow deportation officers and immigration enforcement agents to use handheld or vehicle­mounted computers to—
(1) enter any required data, including personal information about the alien subject and the reason for issuing the document;
(2) apply the electronic signature of the issuing officer or agent;
(3) set the date the alien is required to appear before an immigration judge, in the case of Notices to Appear;
(4) print any documents the alien subject may be required to sign, along with additional copies of documents to be served on the alien; and
(5) interface with the ENFORCE database so that all data is stored and retrievable.
(c) CONSTRUCTION.—The pilot program described in subsection (a) shall be designed to replace, to the extent possible, the current paperwork and data­entry process used for issuing such charging documents and detainers.
(d) DEADLINE.—The Secretary shall initiate the pilot program described in subsection (a) within 6 months of the date of enactment of this Act.
(e) REPORT.—The Government Accountability Office shall report to the Judiciary Committee of the Senate and the House of Representatives no later than 18 months after the date of enactment of this Act on the effectiveness of the pilot program and provide recommendations for improving it.
(f) ADVISORY COUNCIL.—The ICE Advisory Council established by section 504 shall include recommendations on how the pilot program should work in the first quarterly report of the Council, and shall include assessments of the program and recommendations for improvement in each subsequent report.
(g) EFFECTIVE DATE.—This section shall take effect 180 days after the date of the enactment of this Act.
SEC. 506. ADDITIONAL ICE DEPORTATION OFFICERS AND SUPPORT STAFF.
(a) IN GENERAL.—The Secretary of Homeland Security shall, subject to the availability of appropriations for such purpose, increase the number of positions for full­time active­duty Immigration and Customs Enforcement deportation officers by 5,000 above the number of full­time positions for which funds were appropriated for fiscal year 2013. The Secretary will determine the rate at which the additional officers will be added with due regard to filling the positions as expeditiously as

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possible without making any compromises in the selection or the training of the additional officers.
(b) SUPPORT STAFF.—The Secretary shall, subject to the availability of appropriations for such purpose, increase the number of positions for full­time support staff for Immigration and Customs Enforcement deportation officers by 700 above the number of full­time positions for which funds were appropriated for fiscal year 2013.
SEC. 507. ADDITIONAL ICE PROSECUTORS.
The Secretary of Homeland Security shall increase by 60 the number of full­ time trial attorneys working for the Immigration and Customs Enforcement Office of the Principal Legal Advisor.
TITLE VI—MISCELLANEOUS ENFORCEMENT PROVISIONS
SEC. 601. TIMELY REPATRIATION.
(a) LISTING OF COUNTRIES.—Beginning on the date that is 6 months after the date of enactment of this Act, and every 6 months thereafter, the Secretary of Homeland Security shall publish a report including the following:
(1) A list of the following:
(A) Countries that have refused or unreasonably delayed repatriation of an alien who is a national of that country since the date of enactment of this Act and the total number of such aliens, disaggregated by nationality.
(B) Countries that have an excessive repatriation failure rate.
(2) A list of each country that was included under subparagraph (B) or (C) of paragraph (1) in both the report preceding the current report and the current report.
(b) SANCTIONS.—Beginning on the date that a country is included in a list under subsection (a)(2) and ending on the date that such country is not included in such list, such country shall be subject to the following:
(1) The Secretary of State may not issue visas under section 101(a)(15)(A) (iii) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(A)(iii)) to attendants, servants, personal employees, and members of their immediate families, of the officials and employees of such country who receive

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nonimmigrant status under clause (i) or (ii) of section 101(a)(15)(A) of such Act.
(2) Each 6 months thereafter that the country is included in that list, the Secretary of State shall reduce the number of visas available under clause (i) or (ii) of section 101(a)(15)(A) of the Immigration and Nationality Act in a fiscal year to nationals of that country by an amount equal to 10 percent of the baseline visa number for such country. Except as provided under section 243(d) of the Immigration and Nationality Act (8 U.S.C. 1253), the Secretary may not reduce the number to a level below 20 percent of the baseline visa number.
(c) WAIVERS.—
(1) NATIONAL SECURITY WAIVER.—If the Secretary of State submits to
Congress a written determination that significant national security interests of the United States require a waiver of the sanctions under subsection (b), the Secretary may waive any reduction below 80 percent of the baseline visa number. The Secretary of Homeland Security may not delegate the authority under this subsection.
(2) TEMPORARY EXIGENT CIRCUMSTANCES.—If the Secretary of State
submits to Congress a written determination that temporary exigent circumstances require a waiver of the sanctions under subsection (b), the Secretary may waive any reduction below 80 percent of the baseline visa number during 6­month renewable periods. The Secretary of Homeland Security may not delegate the authority under this subsection.
(d) EXEMPTION.—The Secretary of Homeland Security, in consultation with the Secretary of State, may exempt a country from inclusion in a list under subsection (a)(2) if the total number of nonrepatriations outstanding is less than 10 for the preceding 3­year period.
(e) UNAUTHORIZED VISA ISSUANCE.—Any visa issued in violation of this section shall be void.
(f) NOTICE.—If an alien who has been convicted of a criminal offense before a Federal or State court whose repatriation was refused or unreasonably delayed is to be released from detention by the Secretary of Homeland Security, the Secretary shall provide notice to the State and local law enforcement agency for the jurisdictions in which the alien is required to report or is to be released. When possible, and particularly in the case of violent crime, the Secretary shall make a reasonable effort to provide notice of such release to any crime victims and their immediate family members.
(g) DEFINITIONS.—For purposes of this section:

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(1) REFUSED OR UNREASONABLY DELAYED.—A country is deemed to
have refused or unreasonably delayed the acceptance of an alien who is a citizen, subject, national, or resident of such country if, not later than 90 days after receiving a request to repatriate such alien from an official of the United States who is authorized to make such a request, the country does not accept the alien or issue valid travel documents.
(2) FAILURE RATE.—The term “failure rate” for a period means the
percentage determined by dividing the total number of repatriation requests for aliens who are citizens, subjects, nationals, or residents of a country that such country refused or unreasonably delayed during that period by the total number of such requests during that period.
(3) EXCESSIVE REPATRIATION FAILURE RATE.—The term “excessive
repatriation failure rate” means, with respect to a report under subsection (a), a failure rate greater than 10 percent for any of the following:
(A) The period of the 3 full fiscal years preceding the date of publication of the report.
(B) The period of 1 year preceding the date of publication of the report.
(4) NUMBER OF NON­REPATRIATIONS OUTSTANDING.—The term
“number of non­repatriations outstanding” means, for a period, the number of unique aliens whose repatriation a country has refused or unreasonably delayed and whose repatriation has not occurred during that period.
(5) BASELINE VISA NUMBER.—The term “baseline visa number” means,
with respect to a country, the average number of visas issued each fiscal year to nationals of that country under clauses (i) and (ii) of section 101(a)(15)(A) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(15)(A)) for the 3 full fiscal years immediately preceding the first report under subsection (a) in which such country is included in the list under subsection (a)(2).
(h) GAO REPORT.—On the date that is 1 day after the date that the President submits a budget under section 1105(a) of title 31, United States Code, for fiscal year 2016, the Comptroller General of the United States shall submit a report to Congress regarding the progress of the Secretary of Homeland Security and the Secretary of State in implementation of this section and in making requests to repatriate aliens as appropriate.
SEC. 602. ENCOURAGING ALIENS TO DEPART VOLUNTARILY.

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(a) IN GENERAL.—Section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) is amended—
(1) in subsection (a)—
(A) by amending paragraph (1) to read as follows:
“(1) INSTEAD OF REMOVAL PROCEEDINGS.—If an alien is not described
in paragraph (2)(A)(iii) or (4) of section 237(a), the Secretary of Homeland Security may permit the alien to voluntarily depart the United States at the alien’s own expense under this subsection instead of being subject to proceedings under section 240.”;
(B) by striking paragraph (3);
(C) by redesignating paragraph (2) as paragraph (3);
(D) by adding after paragraph (1) the following:
“(2) BEFORE THE CONCLUSION OF REMOVAL PROCEEDINGS.—If an
alien is not described in paragraph (2)(A)(iii) or (4) of section 237(a), the Attorney General may permit the alien to voluntarily depart the United States at the alien’s own expense under this subsection after the initiation of removal proceedings under section 240 and before the conclusion of such proceedings before an immigration judge.”;
(E) in paragraph (3), as redesignated—
(i) by amending subparagraph (A) to read as follows:
“(A) INSTEAD OF REMOVAL.—Subject to subparagraph (C),
permission to voluntarily depart under paragraph (1) shall not be valid for any period in excess of 120 days. The Secretary may require an alien permitted to voluntarily depart under paragraph (1) to post a voluntary departure bond, to be surrendered upon proof that the alien has departed the United States within the time specified.”;
(ii) by redesignating subparagraphs (B), (C), and (D) as subparagraphs (C), (D), and (E), respectively;
(iii) by adding after subparagraph (A) the following:
“(B) BEFORE THE CONCLUSION OF REMOVAL PROCEEDINGS.—
Permission to voluntarily depart under paragraph (2) shall not be valid for any period in excess of 60 days, and may be granted only after a finding that the alien has the means to depart the United States and intends to do

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so. An alien permitted to voluntarily depart under paragraph (2) shall post a voluntary departure bond, in an amount necessary to ensure that the alien will depart, to be surrendered upon proof that the alien has departed the United States within the time specified.”;
(iv) in subparagraph (C), as redesignated, by striking “subparagraphs (C) and (D)(ii)” and inserting “subparagraphs (D) and (E)(ii)”;
(v) in subparagraph (D), as redesignated, by striking “subparagraph (B)” each place that term appears and inserting “subparagraph (C)”; and
(vi) in subparagraph (E), as redesignated, by striking “subparagraph (B)” each place that term appears and inserting “subparagraph (C)”; and
(F) in paragraph (4), by striking “paragraph (1)” and inserting “paragraphs (1) and (2)”;
(2) in subsection (b)(2), by striking “a period exceeding 60 days” and inserting “any period in excess of 45 days”;
(3) by amending subsection (c) to read as follows:
“(c) CONDITIONS ON VOLUNTARY DEPARTURE.—
“(1) VOLUNTARY DEPARTURE AGREEMENT.—Voluntary departure may
only be granted as part of an affirmative agreement by the alien. A voluntary departure agreement under subsection (b) shall include a waiver of the right to any further motion, appeal, application, petition, or petition for review relating to removal or relief or protection from removal.
“(2) CONCESSIONS BY THE SECRETARY.—In connection with the alien’s
agreement to depart voluntarily under paragraph (1), the Secretary of Homeland Security may agree to a reduction in the period of inadmissibility under subparagraph (A) or (B)(i) of section 212(a)(9).
“(3) ADVISALS.—Agreements relating to voluntary departure granted
during removal proceedings under section 240, or at the conclusion of such proceedings, shall be presented on the record before the immigration judge. The immigration judge shall advise the alien of the consequences of a voluntary departure agreement before accepting such agreement.
“(4) FAILURE TO COMPLY WITH AGREEMENT.—

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“(A) IN GENERAL.—If an alien agrees to voluntary departure under
this section and fails to depart the United States within the time allowed for voluntary departure or fails to comply with any other terms of the agreement (including failure to timely post any required bond), the alien is —
“(i) ineligible for the benefits of the agreement;
“(ii) subject to the penalties described in subsection (d); and
“(iii) subject to an alternate order of removal if voluntary departure was granted under subsection (a)(2) or (b).
“(B) EFFECT OF FILING TIMELY APPEAL.—If, after agreeing to
voluntary departure, the alien files a timely appeal of the immigration judge’s decision granting voluntary departure, the alien may pursue the appeal instead of the voluntary departure agreement. Such appeal operates to void the alien’s voluntary departure agreement and the consequences of such agreement, but precludes the alien from another grant of voluntary departure while the alien remains in the United States.
“(5) VOLUNTARY DEPARTURE PERIOD NOT AFFECTED.—Except as
expressly agreed to by the Secretary in writing in the exercise of the Secretary’s discretion before the expiration of the period allowed for voluntary departure, no motion, appeal, application, petition, or petition for review shall affect, reinstate, enjoin, delay, stay, or toll the alien’s obligation to depart from the United States during the period agreed to by the alien and the Secretary.”;
(4) by amending subsection (d) to read as follows:
“(d) PENALTIES FOR FAILURE TO DEPART.—If an alien is permitted to voluntarily depart under this section and fails to voluntarily depart from the United States within the time period specified or otherwise violates the terms of a voluntary departure agreement, the alien will be subject to the following penalties:
“(1) CIVIL PENALTY.—The alien shall be liable for a civil penalty of
$3,000. The order allowing voluntary departure shall specify this amount, which shall be acknowledged by the alien on the record. If the Secretary thereafter establishes that the alien failed to depart voluntarily within the time allowed, no further procedure will be necessary to establish the amount of the penalty, and the Secretary may collect the civil penalty at any time thereafter and by whatever means provided by law. An alien will be ineligible for any benefits under this chapter until this civil penalty is paid.

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“(2) INELIGIBILITY FOR RELIEF.—The alien shall be ineligible during the
time the alien remains in the United States and for a period of 10 years after the alien’s departure for any further relief under this section and sections 240A, 245, 248, and 249. The order permitting the alien to depart voluntarily shall inform the alien of the penalties under this subsection.
“(3) REOPENING.—The alien shall be ineligible to reopen the final order
of removal that took effect upon the alien’s failure to depart, or upon the alien’s other violations of the conditions for voluntary departure, during the period described in paragraph (2). This paragraph does not preclude a motion to reopen to seek withholding of removal under section 241(b)(3) or protection against torture, if the motion—
“(A) presents material evidence of changed country conditions arising after the date of the order granting voluntary departure in the country to which the alien would be removed; and
“(B) makes a sufficient showing to the satisfaction of the Attorney General that the alien is otherwise eligible for such protection.”;
(5) by amending subsection (e) to read as follows:
“(e) ELIGIBILITY.—
“(1) PRIOR GRANT OF VOLUNTARY DEPARTURE.—An alien shall not be
permitted to voluntarily depart under this section if the Secretary of Homeland Security or the Attorney General previously permitted the alien to depart voluntarily.
“(2) RULEMAKING.—The Secretary may promulgate regulations to limit
eligibility or impose additional conditions for voluntary departure under subsection (a)(1) for any class of aliens. The Secretary or Attorney General may by regulation limit eligibility or impose additional conditions for voluntary departure under subsection (a)(2) or (b) of this section for any class or classes of aliens.”; and
(6) in subsection (f), by adding at the end the following: “Notwithstanding section 242(a)(2)(D) of this Act, sections 1361, 1651, and 2241 of title 28, United States Code, any other habeas corpus provision, and any other provision of law (statutory or nonstatutory), no court shall have jurisdiction to affect, reinstate, enjoin, delay, stay, or toll the period allowed for voluntary departure under this section.”.
(b) RULEMAKING.—The Secretary shall within one year of the date of enactment of this Act promulgate regulations to provide for the imposition and

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collection of penalties for failure to depart under section 240B(d) of the Immigration and Nationality Act (8 U.S.C. 1229c(d)).
(c) EFFECTIVE DATES.—
(1) IN GENERAL.—Except as provided in paragraph (2), the amendments
made by this section shall apply with respect to all orders granting voluntary departure under section 240B of the Immigration and Nationality Act (8 U.S.C. 1229c) made on or after the date that is 180 days after the enactment of this Act.
(2) EXCEPTION.—The amendment made by subsection (a)(6) shall take
effect on the date of the enactment of this Act and shall apply with respect to any petition for review which is filed on or after such date.
SEC. 603. DETERRING ALIENS ORDERED REMOVED FROM REMAINING IN THE
UNITED STATES UNLAWFULLY.
(a) INADMISSIBLE ALIENS.—Section 212(a)(9)(A) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(9)(A)) is amended—
(1) in clause (i), by striking “seeks admission within 5 years of the date of such removal (or within 20 years” and inserting “seeks admission not later than 5 years after the date of the alien’s removal (or not later than 20 years after the alien’s removal”; and
(2) in clause (ii), by striking “seeks admission within 10 years of the date of such alien’s departure or removal (or within 20 years of” and inserting “seeks admission not later than 10 years after the date of the alien’s departure or removal (or not later than 20 years after”.
(b) BAR ON DISCRETIONARY RELIEF.—Section 274D of such Act (8 U.S.C. 324d) is amended—
(1) in subsection (a), by striking “Commissioner” and inserting “Secretary of Homeland Security”; and
(2) by adding at the end the following:
“(c) INELIGIBILITY FOR RELIEF.—
“(1) IN GENERAL.—Unless a timely motion to reopen is granted under
section 240(c)(6), an alien described in subsection (a) shall be ineligible for any discretionary relief from removal (including cancellation of removal and adjustment of status) during the time the alien remains in the United States and for a period of 10 years after the alien’s departure from the United States.

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“(2) SAVINGS PROVISION.—Nothing in paragraph (1) shall preclude a
motion to reopen to seek withholding of removal under section 241(b)(3) or protection against torture, if the motion—
“(A) presents material evidence of changed country conditions arising after the date of the final order of removal in the country to which the alien would be removed; and
“(B) makes a sufficient showing to the satisfaction of the Attorney General that the alien is otherwise eligible for such protection.”.
(c) EFFECTIVE DATES.—The amendments made by this section shall take effect on the date of the enactment of this Act with respect to aliens who are subject to a final order of removal entered before, on, or after such date.
SEC. 604. REINSTATEMENT OF REMOVAL ORDERS.
(a) IN GENERAL.—Section 241(a)(5) of the Immigration and Nationality Act (8 U.S.C. 1231(a)(5)) is amended to read as follows:
“(5) REINSTATEMENT OF REMOVAL ORDERS AGAINST ALIENS
ILLEGALLY REENTERING.—If the Secretary of Homeland Security finds that an alien has entered the United States illegally after having been removed, deported, or excluded or having departed voluntarily, under an order of removal, deportation, or exclusion, regardless of the date of the original order or the date of the illegal entry—
“(A) the order of removal, deportation, or exclusion is reinstated from its original date and is not subject to being reopened or reviewed notwithstanding section 242(a)(2)(D);
“(B) the alien is not eligible and may not apply for any relief under this Act, regardless of the date that an application or request for such relief may have been filed or made; and
“(C) the alien shall be removed under the order of removal, deportation, or exclusion at any time after the illegal entry.
Reinstatement under this paragraph shall not require proceedings under section 240 or other proceedings before an immigration judge.”.
(b) JUDICIAL REVIEW.—Section 242 of the Immigration and Nationality Act (8 U.S.C. 1252) is amended by adding at the end the following:
“(h) JUDICIAL REVIEW OF REINSTATEMENT UNDER SECTION 241(a)(5).—

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“(1) REVIEW OF REINSTATEMENT.—Judicial review of determinations
under section 241(a)(5) is available in an action under subsection (a).
“(2) NO REVIEW OF ORIGINAL ORDER.—Notwithstanding any other
provision of law (statutory or nonstatutory), including section 2241 of title 28, United States Code, any other habeas corpus provision, or sections 1361 and 1651 of such title, no court shall have jurisdiction to review any cause or claim, arising from, or relating to, any challenge to the original order.”.
(c) EFFECTIVE DATE.—The amendments made by subsections (a) and (b) shall take effect as if enacted on April 1, 1997, and shall apply to all orders reinstated or after that date by the Secretary of Homeland Security (or by the Attorney General prior to March 1, 2003), regardless of the date of the original order.
SEC. 605. CLARIFICATION WITH RESPECT TO DEFINITION OF ADMISSION.
Section 101(a)(13)(A) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(13)(A)) is amended by adding at the end the following: “An alien’s adjustment of status to that of lawful permanent resident status under any provision of this Act, or under any other provision of law, shall be considered an ‘admission’ for any purpose under this Act, even if the adjustment of status occurred while the alien was present in the United States.”.
SEC. 606. REPORTS TO CONGRESS.
(a) IN GENERAL.—Not later than 30 days after the end of each quarter of a fiscal year, the Secretary of Homeland Security and the Attorney General shall each provide to the Committee on the Judiciary of the Senate and the Committee on the Judiciary of the House of Representatives a report on the following:
(1) Aliens apprehended or arrested by State or local law enforcement agencies who were identified by the Department of Homeland Security in the previous quarter and for whom the Department of Homeland Security did not issue detainers and did not take into custody despite the Department of Homeland Security’s findings that the aliens were inadmissible or deportable.
(2) Aliens who were applicants for admission in the previous quarter but not clearly and beyond a doubt entitled to be admitted by an immigration officer and who were not detained as required pursuant to section 235(b)(2)(A) of the Immigration and Nationality Act (8 U.S.C. 1225(b)(2)(A)).
(3) Aliens who in the previous quarter were found by Department of Homeland Security officials performing duties related to the adjudication of applications for immigration benefits or the enforcement of the immigration laws to be inadmissible or deportable who were not issued notices to appear

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pursuant to section 239 of such Act (8 U.S.C. 1229) or placed into removal proceedings pursuant to section 240 (8 U.S.C. 1229a), unless the aliens were placed into expedited removal proceedings pursuant to section 235(b)(1)(A)(i) (8 U.S.C. 1225(b)(1)(A)(5)) or section 238 (8 U.S.C. 1228), were granted voluntary departure pursuant to section 240B, were granted relief from removal pursuant to statute, were granted legal nonimmigrant or immigrant status pursuant to statute, or were determined not to be inadmissible or deportable.
(4) Aliens issued notices to appear that were cancelled in the previous quarter despite the Department of Homeland Security’s findings that the aliens were inadmissible or deportable, unless the aliens were granted relief from removal pursuant to statute, were granted voluntary departure pursuant to section 240B of such Act (8 U.S.C. 1229c), or were granted legal nonimmigrant or immigrant status pursuant to statute.
(5) Aliens who were placed into removal proceedings, whose removal proceedings were terminated or administratively closed in the previous quarter prior to their conclusion, unless the aliens were granted relief from removal pursuant to statute, were granted voluntary departure pursuant to section 240B, were granted legal nonimmigrant or immigrant status pursuant to statute, or were determined not to be inadmissible or deportable.
(6) Aliens granted parole pursuant to section 212(d)(5)(A) of such Act (8 U.S.C. 1182(d)(5)(A)).
(7) Aliens granted deferred action, extended voluntary departure or any other type of relief from removal not specified in the Immigration and Nationality Act or where determined not to be inadmissible or deportable.
(8) Aliens released from custody, including the number of releases, the number of aliens who were released who have a criminal history, the general reasons for release, the conditions of release, and the zip codes of the last known addresses.
(9) Aliens granted an administrative stay of removal, or otherwise permitted to remain in the United States through any similar process by U.S. Immigration and Customs Enforcement.
(b) CONTENTS OF REPORT.—The report shall include a listing of each alien described in each paragraph of subsection (a), including when in the possession of the Department of Homeland Security their names, fingerprint identification numbers, alien registration numbers, and reason why each was granted the type of prosecutorial discretion received. The report shall also include current criminal histories on each alien from the Federal Bureau of Investigation.

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SEC. 607. CERTAIN ACTIVITIES RESTRICTED.
(a) IN GENERAL.—
(1) PROHIBITION ON USE OF FUNDS.—No funds, resources, or fees made
available to the Secretary of Homeland Security, or to any other official of a Federal agency, by this Act or any other Act for any fiscal year, including any deposits into the “Immigration Examinations Fee Account” established under section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)), may be used to implement, administer, enforce, or carry out (including through the issuance of any regulations) any of the policy changes set forth in the following memoranda (or any substantially similar policy changes issued or taken on or after January 9, 2015, whether set forth in memorandum, Executive order, regulation, directive, or by other action):
(A) The memorandum from the Director of United States Immigration and Customs Enforcement entitled “Civil Immigration Enforcement: Priorities for the Apprehension, Detention, and Removal of Aliens” dated March 2, 2011.
(B) The memorandum from the Director of United States Immigration and Customs Enforcement entitled “Exercising Prosecutorial Discretion Consistent with the Civil Immigration Enforcement Priorities of the Agency for the Apprehension, Detention, and Removal of Aliens” dated June 17, 2011.
(C) The memorandum from the Principal Legal Advisor of United States Immigration and Customs Enforcement entitled “Case­by­Case Review of Incoming and Certain Pending Cases” dated November 17, 2011.
(D) The memorandum from the Director of United States Immigration and Customs Enforcement entitled “Civil Immigration Enforcement: Guidance on the Use of Detainers in the Federal, State, Local, and Tribal Criminal Justice Systems” dated December 21, 2012.
(E) The memorandum from the Secretary of Homeland Security entitled “Southern Border and Approaches Campaign” dated November 20, 2014.
(F) The memorandum from the Secretary of Homeland Security entitled “Policies for the Apprehension, Detention and Removal of Undocumented Immigrants” dated November 20, 2014.

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(G) The memorandum from the Secretary of Homeland Security entitled “Secure Communities” dated November 20, 2014.
(H) The memorandum from the Secretary of Homeland Security entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children and with Respect to Certain Individuals Who Are the Parents of U.S. Citizens or Permanent Residents” dated November 20, 2014.
(I) The memorandum from the Secretary of Homeland Security entitled “Expansion of the Provisional Waiver Program” dated November 20, 2014.
(J) The memorandum from the Secretary of Homeland Security entitled “Policies Supporting U.S. High­Skilled Businesses and Workers” dated November 20, 2014.
(K) The memorandum from the Secretary of Homeland Security entitled “Families of U.S. Armed Forces Members and Enlistees” dated November 20, 2014.
(L) The memorandum from the Secretary of Homeland Security entitled “Directive to Provide Consistency Regarding Advance Parole” dated November 20, 2014.
(M) The memorandum from the Secretary of Homeland Security entitled “Policies to Promote and Increase Access to U.S. Citizenship” dated November 20, 2014.
(N) The memorandum from the President entitled “Modernizing and Streamlining the U.S. Immigrant Visa System for the 21st Century” dated November 21, 2014.
(O) The memorandum from the President entitled “Creating Welcoming Communities and Fully Integrating Immigrants and Refugees” dated November 21, 2014.
(2) NO LEGAL EFFECT.—The memoranda referred to in subsection (a) (or
any substantially similar policy changes issued or taken on or after January 9, 2015, whether set forth in memorandum, Executive order, regulation, directive, or by other action) have no statutory or constitutional basis and therefore have no legal effect.
(3) PROHIBITION ON FEDERAL BENEFITS.—No funds or fees made
available to the Secretary of Homeland Security, or to any other official of a

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Federal agency, by this Act or any other Act for any fiscal year, including any deposits into the “Immigration Examinations Fee Account” established under section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)), may be used to grant any Federal benefit to any alien pursuant to any of the policy changes set forth in the memoranda referred to in subsection (a) (or any substantially similar policy changes issued or taken on or after January 9, 2015, whether set forth in memorandum, Executive order, regulation, directive, or by other action).
(b) DEFERRED ACTION FOR CHILDHOOD ARRIVALS.—No funds, resources, or fees made available to the Secretary of Homeland Security, or to any other official of a Federal agency, by this Act or any other Act for any fiscal year, including any deposits into the “Immigration Examinations Fee Account” established under section 286(m) of the Immigration and Nationality Act (8 U.S.C. 1356(m)), may be used to consider or adjudicate any new, renewal, or previously denied application for any alien requesting consideration of deferred action pursuant to the guidance in the June 15, 2012, memorandum entitled “Exercising Prosecutorial Discretion with Respect to Individuals Who Came to the United States as Children” (or any substantially similar policy changes issued or taken on or after January 9, 2015, whether set forth in memorandum, Executive order, regulation, directive, or by other action).
SEC. 608. GAO STUDY ON DEATHS IN CUSTODY.
The Comptroller General of the United States shall submit to Congress within 6 months after the date of the enactment of this Act, a report on the deaths in custody of detainees held by the Department of Homeland Security. The report shall include the following information with respect to any such deaths and in connection therewith:
(1) Whether any such deaths could have been prevented by the delivery of medical treatment administered while the detainee is in the custody of the Department of Homeland Security.
(2) Whether Department practice and procedures were properly followed and obeyed.
(3) Whether such practice and procedures are sufficient to protect the health and safety of such detainees.
(4) Whether reports of such deaths were made to the Deaths in Custody Reporting Program.
SEC. 609. REMOVAL PROCEEDINGS.

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Subsection (b) of section 240 of the Immigration and Nationality Act (8 U.S.C. 1229a) is amended by adding at the end the following paragraph:
“(8) ORDER OF CONSIDERATION OF PROCEEDINGS.—Whenever
possible, proceedings shall take place in the order in which aliens are placed in proceedings.”.
SEC. 610. ELIMINATING BACKLOG IN THE IMMIGRATION COURT SYSTEM.
Section 240A(e) of the Immigration and Nationality Act (8 U.S.C. 1229b(e)) is amended—
(1) in paragraph (1), by striking “(2) and (3),” and inserting “(2), (3), and (4),”; and
(2) by adding at the end the following paragraph:
“(4) PROHIBITION ON DELAY.—The Attorney General may not, except
for in cases in which the Attorney General has decided to grant an application under this section and the fiscal year cap has been reached, in any way delay or suspend making a final decision for an application submitted under this section.”.
SEC. 611. PROPER FILING OF INCOME TAXES REQUIRED FOR GOOD MORAL
CHARACTER.
Section 101(f) of the Immigration and Nationality Act (8 U.S.C. 1101(f)) is amended by inserting after paragraph (1) the following paragraph:
“(2) one who has failed to properly file an income tax return for each year that one was required to be filed;”.

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EXHIBIT C

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I
H. R. 1148 114TH CONGRESS 1ST SESSION To amend the Immigration and Nationality Act to improve immigration
law enforcement within the interior of the United States, and for other purposes.

IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 27, 2015
Mr. GOWDY (for himself, Mr. GOODLATTE, Mr. SMITH of Texas, Mr. COLLINS of Georgia, Mr. POE of Texas, Mr. FORBES, Mr. CARTER of Texas, and Mr. CHABOT) introduced the following bill; which was referred to the Committee on the Judiciary, and in addition to the Committee on Homeland Security, for a period to be subsequently determined by the Speaker, in each case for consideration of such provisions as fall within the jurisdiction of the committee concerned

A BILL
To amend the Immigration and Nationality Act to improve immigration law enforcement within the interior of the United States, and for other purposes.

1

Be it enacted by the Senate and House of Representa-

2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4

This Act may be cited as the ‘‘Michael Davis, Jr. in

5 Honor of State and Local Law Enforcement Act’’.

6 SEC. 2. TABLE OF CONTENTS.

7

The table of contents for this Act is as follows:

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Sec. 1. Short title. Sec. 2. Table of contents.
TITLE I—IMMIGRATION LAW ENFORCEMENT BY STATES AND LOCALITIES
Sec. 101. Definitions and severability. Sec. 102. Immigration law enforcement by States and localities. Sec. 103. Listing of immigration violators in the national crime information
center database. Sec. 104. Technology access. Sec. 105. State and local law enforcement provision of information about appre-
hended aliens. Sec. 106. Financial assistance to State and local police agencies that assist in
the enforcement of immigration laws. Sec. 107. Increased Federal detention space. Sec. 108. Federal custody of inadmissible and deportable aliens in the United
States apprehended by State or local law enforcement. Sec. 109. Training of State and local law enforcement personnel relating to the
enforcement of immigration laws. Sec. 110. Immunity. Sec. 111. Criminal alien identification program. Sec. 112. Clarification of congressional intent. Sec. 113. State criminal alien assistance program (SCAAP). Sec. 114. State violations of enforcement of immigration laws. Sec. 115. Clarifying the authority of ICE detainers.
TITLE II—NATIONAL SECURITY
Sec. 201. Removal of, and denial of benefits to, terrorist aliens. Sec. 202. Terrorist bar to good moral character. Sec. 203. Terrorist bar to naturalization. Sec. 204. Denaturalization for terrorists. Sec. 205. Use of 1986 IRCA legalization information for national security pur-
poses. Sec. 206. Background and security checks. Sec. 207. Technical amendments relating to the Intelligence Reform and Ter-
rorism Prevention Act of 2004.
TITLE III—REMOVAL OF CRIMINAL ALIENS
Sec. 301. Definition of aggravated felony. Sec. 302. Precluding admissibility of aliens convicted of aggravated felonies or
other serious offenses. Sec. 303. Espionage clarification. Sec. 304. Prohibition of the sale of firearms to, or the possession of firearms
by, certain aliens. Sec. 305. Uniform statute of limitations for certain immigration, naturalization,
and peonage offenses. Sec. 306. Conforming amendment to the definition of racketeering activity. Sec. 307. Conforming amendments for the aggravated felony definition. Sec. 308. Precluding refugee or asylee adjustment of status for aggravated fel-
ons. Sec. 309. Precluding withholding of removal for aggravated felons. Sec. 310. Inadmissibility, deportability, and detention of drunk drivers. Sec. 311. Detention of dangerous aliens.
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Sec. 312. Grounds of inadmissibility and deportability for alien gang members. Sec. 313. Extension of identity theft offenses. Sec. 314. Laundering of monetary instruments. Sec. 315. Penalties for illegal entry or presence. Sec. 316. Illegal reentry. Sec. 317. Reform of passport, visa, and immigration fraud offenses. Sec. 318. Forfeiture. Sec. 319. Expedited removal for aliens inadmissible on criminal or security
grounds. Sec. 320. Increased penalties barring the admission of convicted sex offenders
failing to register and requiring deportation of sex offenders failing to register. Sec. 321. Protecting immigrants from convicted sex offenders. Sec. 322. Clarification to crimes of violence and crimes involving moral turpitude. Sec. 323. Penalties for failure to obey removal orders. Sec. 324. Pardons. Sec. 325. Convictions.
TITLE IV—VISA SECURITY
Sec. 401. Cancellation of additional visas. Sec. 402. Visa information sharing. Sec. 403. Restricting waiver of visa interviews. Sec. 404. Authorizing the Department of State to not interview certain ineli-
gible visa applicants. Sec. 405. Visa refusal and revocation. Sec. 406. Funding for the visa security program. Sec. 407. Expeditious expansion of visa security program to high-risk posts. Sec. 408. Expedited clearance and placement of Department of Homeland Se-
curity personnel at overseas embassies and consular posts. Sec. 409. Accreditation requirements. Sec. 410. Visa fraud. Sec. 411. Background checks. Sec. 412. Number of designated school officials. Sec. 413. Reporting requirement. Sec. 414. Flight schools not certified by FAA. Sec. 415. Revocation of accreditation. Sec. 416. Report on risk assessment. Sec. 417. Implementation of GAO recommendations. Sec. 418. Implementation of SEVIS II. Sec. 419. Definitions.
TITLE V—AID TO U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT OFFICERS
Sec. 501. ICE immigration enforcement agents. Sec. 502. ICE detention enforcement officers. Sec. 503. Ensuring the safety of ICE officers and agents. Sec. 504. ICE Advisory Council. Sec. 505. Pilot program for electronic field processing. Sec. 506. Additional ICE deportation officers and support staff. Sec. 507. Additional ICE prosecutors.
TITLE VI—MISCELLANEOUS ENFORCEMENT PROVISIONS
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Sec. 601. Timely repatriation. Sec. 602. Encouraging aliens to depart voluntarily. Sec. 603. Deterring aliens ordered removed from remaining in the United
States unlawfully. Sec. 604. Reinstatement of removal orders. Sec. 605. Clarification with respect to definition of admission. Sec. 606. Reports to Congress on the exercise and abuse of prosecutorial discre-
tion. Sec. 607. Certain activities restricted. Sec. 608. GAO study on deaths in custody. Sec. 609. Removal proceedings.
1 TITLE I—IMMIGRATION LAW EN-
2 FORCEMENT BY STATES AND
3 LOCALITIES

4 SEC. 101. DEFINITIONS AND SEVERABILITY.

5

(a) STATE DEFINED.—For the purposes of this title,

6 the term ‘‘State’’ has the meaning given to such term in

7 section 101(a)(36) of the Immigration and Nationality Act

8 (8 U.S.C. 1101(a)(36)).

9

(b) SECRETARY DEFINED.—For the purpose of this

10 title, the term ‘‘Secretary’’ means the Secretary of Home-

11 land Security.

12

(c) SEVERABILITY.—If any provision of this title, or

13 the application of such provision to any person or cir-

14 cumstance, is held invalid, the remainder of this title, and

15 the application of such provision to other persons not simi-

16 larly situated or to other circumstances, shall not be af-

17 fected by such invalidation.

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5 1 SEC. 102. IMMIGRATION LAW ENFORCEMENT BY STATES

2

AND LOCALITIES.

3

(a) IN GENERAL.—Subject to section 274A(h)(2) of

4 the Immigration and Nationality Act (8 U.S.C.

5 1324a(h)(2)), States, or political subdivisions of States,

6 may enact, implement and enforce criminal penalties that

7 penalize the same conduct that is prohibited in the crimi-

8 nal provisions of immigration laws (as defined in section

9 101(a)(17) of the Immigration and Nationality Act (8

10 U.S.C. 1101(a)(17))), as long as the criminal penalties do

11 not exceed the relevant Federal criminal penalties (without

12 regard to ancillary issues such as the availability of proba-

13 tion or pardon). States, or political subdivisions of States,

14 may enact, implement and enforce civil penalties that pe-

15 nalize the same conduct that is prohibited in the civil pro-

16 visions of immigration laws (as defined in such section

17 101(a)(17)), as long as the civil penalties do not exceed

18 the relevant Federal civil penalties.

19

(b) LAW ENFORCEMENT PERSONNEL.—Subject to

20 section 274A(h)(2) of the Immigration and Nationality

21 Act (8 U.S.C. 1324a(h)(2)), law enforcement personnel of

22 a State, or of a political subdivision of a State, may inves-

23 tigate, identify, apprehend, arrest, detain, or transfer to

24 Federal custody aliens for the purposes of enforcing the

25 immigration laws of the United States to the same extent

26 as Federal law enforcement personnel. Law enforcement

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6

1 personnel of a State, or of a political subdivision of a

2 State, may also investigate, identify, apprehend, arrest, or

3 detain aliens for the purposes of enforcing the immigration

4 laws of a State or of a political subdivision of State, as

5 long as those immigration laws are permissible under this

6 section. Law enforcement personnel of a State, or of a po-

7 litical subdivision of a State, may not admit aliens to or

8 remove them from the United States.

9 SEC. 103. LISTING OF IMMIGRATION VIOLATORS IN THE NA-

10

TIONAL CRIME INFORMATION CENTER DATA-

11

BASE.

12

(a) PROVISION OF INFORMATION TO THE NCIC.—

13 Not later than 180 days after the date of the enactment

14 of this Act and periodically thereafter as updates may re-

15 quire, the Secretary shall provide the National Crime In-

16 formation Center of the Department of Justice with all

17 information that the Secretary may possess regarding any

18 alien against whom a final order of removal has been

19 issued, any alien who has entered into a voluntary depar-

20 ture agreement, any alien who has overstayed their au-

21 thorized period of stay, and any alien whose visa has been

22 revoked. The National Crime Information Center shall

23 enter such information into the Immigration Violators File

24 of the National Crime Information Center database, re-

25 gardless of whether—

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7

1

(1) the alien received notice of a final order of

2

removal;

3

(2) the alien has already been removed; or

4

(3) sufficient identifying information is avail-

5

able with respect to the alien.

6

(b) INCLUSION OF INFORMATION IN THE NCIC

7 DATABASE.—

8

(1) IN GENERAL.—Section 534(a) of title 28,

9

United States Code, is amended—

10

(A) in paragraph (3), by striking ‘‘and’’ at

11

the end;

12

(B) by redesignating paragraph (4) as

13

paragraph (5); and

14

(C) by inserting after paragraph (3) the

15

following:

16

‘‘(4) acquire, collect, classify, and preserve

17

records of violations by aliens of the immigration

18

laws of the United States, regardless of whether any

19

such alien has received notice of the violation or

20

whether sufficient identifying information is avail-

21

able with respect to any such alien or whether any

22

such alien has already been removed from the

23

United States; and’’.

24

(2) EFFECTIVE DATE.—The Attorney General

25

and the Secretary shall ensure that the amendment

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1

made by paragraph (1) is implemented by not later

2

than 6 months after the date of the enactment of

3

this Act.

4 SEC. 104. TECHNOLOGY ACCESS.

5

States shall have access to Federal programs or tech-

6 nology directed broadly at identifying inadmissible or de-

7 portable aliens.

8 SEC. 105. STATE AND LOCAL LAW ENFORCEMENT PROVI-

9

SION OF INFORMATION ABOUT APPRE-

10

HENDED ALIENS.

11

(a) PROVISION OF INFORMATION.—In compliance

12 with section 642(a) of the Illegal Immigration Reform and

13 Immigrant Responsibility Act of 1996 (8 U.S.C. 1373)

14 and section 434 of the Personal Responsibility and Work

15 Opportunity Reconciliation Act of 1996 (8 U.S.C. 1644),

16 each State, and each political subdivision of a State, shall

17 provide the Secretary of Homeland Security in a timely

18 manner with the information specified in subsection (b)

19 with respect to each alien apprehended in the jurisdiction

20 of the State, or in the political subdivision of the State,

21 who is believed to be inadmissible or deportable.

22

(b) INFORMATION REQUIRED.—The information re-

23 ferred to in subsection (a) is as follows:

24

(1) The alien’s name.

25

(2) The alien’s address or place of residence.

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(3) A physical description of the alien.

2

(4) The date, time, and location of the encoun-

3

ter with the alien and reason for stopping, detaining,

4

apprehending, or arresting the alien.

5

(5) If applicable, the alien’s driver’s license

6

number and the State of issuance of such license.

7

(6) If applicable, the type of any other identi-

8

fication document issued to the alien, any designa-

9

tion number contained on the identification docu-

10

ment, and the issuing entity for the identification

11

document.

12

(7) If applicable, the license plate number,

13

make, and model of any automobile registered to, or

14

driven by, the alien.

15

(8) A photo of the alien, if available or readily

16

obtainable.

17

(9) The alien’s fingerprints, if available or read-

18

ily obtainable.

19

(c) ANNUAL REPORT ON REPORTING.—The Sec-

20 retary shall maintain and annually submit to the Congress

21 a detailed report listing the States, or the political subdivi-

22 sions of States, that have provided information under sub-

23 section (a) in the preceding year.

24

(d) REIMBURSEMENT.—The Secretary shall reim-

25 burse States, and political subdivisions of a State, for all

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1 reasonable costs, as determined by the Secretary, incurred

2 by the State, or the political subdivision of a State, as

3 a result of providing information under subsection (a).

4

(e) CONSTRUCTION.—Nothing in this section shall re-

5 quire law enforcement officials of a State, or of a political

6 subdivision of a State, to provide the Secretary with infor-

7 mation related to a victim of a crime or witness to a crimi-

8 nal offense.

9

(f) EFFECTIVE DATE.—This section shall take effect

10 on the date that is 120 days after the date of the enact-

11 ment of this Act and shall apply with respect to aliens

12 apprehended on or after such date.

13 SEC. 106. FINANCIAL ASSISTANCE TO STATE AND LOCAL

14

POLICE AGENCIES THAT ASSIST IN THE EN-

15

FORCEMENT OF IMMIGRATION LAWS.

16

(a) GRANTS FOR SPECIAL EQUIPMENT FOR HOUSING

17 AND PROCESSING CERTAIN ALIENS.—From amounts

18 made available to make grants under this section, the Sec-

19 retary shall make grants to States, and to political subdivi-

20 sions of States, for procurement of equipment, technology,

21 facilities, and other products that facilitate and are di-

22 rectly related to investigating, apprehending, arresting,

23 detaining, or transporting aliens who are inadmissible or

24 deportable, including additional administrative costs in-

25 curred under this title.

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(b) ELIGIBILITY.—To be eligible to receive a grant

2 under this section, a State, or a political subdivision of

3 a State, must have the authority to, and shall have a writ-

4 ten policy and a practice to, assist in the enforcement of

5 the immigration laws of the United States in the course

6 of carrying out the routine law enforcement duties of such

7 State or political subdivision of a State. Entities covered

8 under this section may not have any policy or practice that

9 prevents local law enforcement from inquiring about a sus-

10 pect’s immigration status.

11

(c) GAO AUDIT.—Not later than 3 years after the

12 date of the enactment of this Act, the Comptroller General

13 of the United States shall conduct an audit of funds dis-

14 tributed to States, and to political subdivisions of a State,

15 under subsection (a).

16 SEC. 107. INCREASED FEDERAL DETENTION SPACE.

17

(a) CONSTRUCTION OR ACQUISITION OF DETENTION

18 FACILITIES.—

19

(1) IN GENERAL.—The Secretary shall con-

20

struct or acquire, in addition to existing facilities for

21

the detention of aliens, detention facilities in the

22

United States, for aliens detained pending removal

23

from the United States or a decision regarding such

24

removal. Each facility shall have a number of beds

25

necessary to effectuate the purposes of this title.

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(2) DETERMINATIONS.—The location of any de-

2

tention facility built or acquired in accordance with

3

this subsection shall be determined by the Secretary.

4

(b) TECHNICAL AND CONFORMING AMENDMENT.—

5 Section 241(g)(1) of the Immigration and Nationality Act

6 (8 U.S.C. 1231(g)(1)) is amended by striking ‘‘may ex-

7 pend’’ and inserting ‘‘shall expend’’.

8 SEC. 108. FEDERAL CUSTODY OF INADMISSIBLE AND DE-

9

PORTABLE ALIENS IN THE UNITED STATES

10

APPREHENDED BY STATE OR LOCAL LAW EN-

11

FORCEMENT.

12

(a) STATE APPREHENSION.—

13

(1) IN GENERAL.—Title II of the Immigration

14

and Nationality Act (8 U.S.C. 1151 et seq.) is

15

amended by inserting after section 240C the fol-

16

lowing:

17 ‘‘CUSTODY OF INADMISSIBLE AND DEPORTABLE ALIENS

18

PRESENT IN THE UNITED STATES

19

‘‘SEC. 240D. (a) TRANSFER OF CUSTODY BY STATE

20 AND LOCAL OFFICIALS.—If a State, or a political subdivi-

21 sion of the State, exercising authority with respect to the

22 apprehension or arrest of an inadmissible or deportable

23 alien submits to the Secretary of Homeland Security a re-

24 quest that the alien be taken into Federal custody, not-

25 withstanding any other provision of law, regulation, or pol-

26 icy the Secretary—

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‘‘(1) shall take the alien into custody not later

2

than 48 hours (excluding Saturdays, Sundays, and

3

holidays) after the detainer has been issued following

4

the conclusion of the State or local charging process

5

or dismissal process, or if no State or local charging

6

or dismissal process is required, the Secretary

7

should issue a detainer and take the alien into cus-

8

tody not later than 48 hours (excluding Saturdays,

9

Sundays, and holidays) after the alien is appre-

10

hended, in order to determine whether the alien

11

should be detained, placed in removal proceedings,

12

released, or removed; and

13

‘‘(2) shall request that the relevant State or

14

local law enforcement agency temporarily hold the

15

alien in their custody or transport the alien for

16

transfer to Federal custody.

17

‘‘(b) POLICY ON DETENTION IN FEDERAL, CON-

18 TRACT, STATE, OR LOCAL DETENTION FACILITIES.—In

19 carrying out section 241(g)(1), the Attorney General or

20 Secretary of Homeland Security shall ensure that an alien

21 arrested under this title shall be held in custody, pending

22 the alien’s examination under this section, in a Federal,

23 contract, State, or local prison, jail, detention center, or

24 other comparable facility. Notwithstanding any other pro-

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1 vision of law, regulation or policy, such facility is adequate

2 for detention, if—

3

‘‘(1) such a facility is the most suitably located

4

Federal, contract, State, or local facility available for

5

such purpose under the circumstances;

6

‘‘(2) an appropriate arrangement for such use

7

of the facility can be made; and

8

‘‘(3) the facility satisfies the standards for the

9

housing, care, and security of persons held in cus-

10

tody by a United States Marshal.

11

‘‘(c) REIMBURSEMENT.—The Secretary of Homeland

12 Security shall reimburse a State, and a political subdivi-

13 sion of a State, for all reasonable expenses, as determined

14 by the Secretary, incurred by the State, or political sub-

15 division, as a result of the incarceration and transpor-

16 tation of an alien who is inadmissible or deportable as de-

17 scribed in subsections (a) and (b). Compensation provided

18 for costs incurred under such subsections shall be the av-

19 erage cost of incarceration of a prisoner in the relevant

20 State, as determined by the chief executive officer of a

21 State, or of a political subdivision of a State, plus the cost

22 of transporting the alien from the point of apprehension

23 to the place of detention, and to the custody transfer point

24 if the place of detention and place of custody are different.

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‘‘(d) SECURE FACILITIES.—The Secretary of Home-

2 land Security shall ensure that aliens incarcerated pursu-

3 ant to this title are held in facilities that provide an appro-

4 priate level of security.

5

‘‘(e) TRANSFER.—

6

‘‘(1) IN GENERAL.—In carrying out this sec-

7

tion, the Secretary of Homeland Security shall es-

8

tablish a regular circuit and schedule for the prompt

9

transfer of apprehended aliens from the custody of

10

States, and political subdivisions of a State, to Fed-

11

eral custody.

12

‘‘(2) CONTRACTS.—The Secretary may enter

13

into contracts, including appropriate private con-

14

tracts, to implement this subsection.’’.

15

(2) CLERICAL AMENDMENT.—The table of con-

16

tents of such Act is amended by inserting after the

17

item relating to section 240C the following new item:

‘‘Sec. 240D. Custody of inadmissible and deportable aliens present in the United States.’’.

18

(b) GAO AUDIT.—Not later than 3 years after the

19 date of the enactment of this Act, the Comptroller General

20 of the United States shall conduct an audit of compensa-

21 tion to States, and to political subdivisions of a State, for

22 the incarceration of inadmissible or deportable aliens

23 under section 240D(a) of the Immigration and Nationality

24 Act (as added by subsection (a)(1)).

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(c) EFFECTIVE DATE.—Section 240D of the Immi-

2 gration and Nationality Act, as added by subsection (a),

3 shall take effect on the date of the enactment of this Act,

4 except that subsection (e) of such section shall take effect

5 on the date that is 120 day after the date of the enactment

6 of this Act.

7 SEC. 109. TRAINING OF STATE AND LOCAL LAW ENFORCE-

8

MENT PERSONNEL RELATING TO THE EN-

9

FORCEMENT OF IMMIGRATION LAWS.

10

(a) ESTABLISHMENT OF TRAINING MANUAL AND

11 POCKET GUIDE.—Not later than 180 days after the date

12 of the enactment of this Act, the Secretary shall estab-

13 lish—

14

(1) a training manual for law enforcement per-

15

sonnel of a State, or of a political subdivision of a

16

State, to train such personnel in the investigation,

17

identification, apprehension, arrest, detention, and

18

transfer to Federal custody of inadmissible and de-

19

portable aliens in the United States (including the

20

transportation of such aliens across State lines to

21

detention centers and the identification of fraudulent

22

documents); and

23

(2) an immigration enforcement pocket guide

24

for law enforcement personnel of a State, or of a po-

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1

litical subdivision of a State, to provide a quick ref-

2

erence for such personnel in the course of duty.

3

(b) AVAILABILITY.—The training manual and pocket

4 guide established in accordance with subsection (a) shall

5 be made available to all State and local law enforcement

6 personnel.

7

(c) APPLICABILITY.—Nothing in this section shall be

8 construed to require State or local law enforcement per-

9 sonnel to carry the training manual or pocket guide with

10 them while on duty.

11

(d) COSTS.—The Secretary shall be responsible for

12 any costs incurred in establishing the training manual and

13 pocket guide.

14

(e) TRAINING FLEXIBILITY.—

15

(1) IN GENERAL.—The Secretary shall make

16

training of State and local law enforcement officers

17

available through as many means as possible, includ-

18

ing through residential training at the Center for

19

Domestic Preparedness, onsite training held at State

20

or local police agencies or facilities, online training

21

courses by computer, teleconferencing, and video-

22

tape, or the digital video display (DVD) of a train-

23

ing course or courses. E-learning through a secure,

24

encrypted distributed learning system that has all its

25

servers based in the United States, is scalable, sur-

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1

vivable, and can have a portal in place not later than

2

30 days after the date of the enactment of this Act,

3

shall be made available by the Federal Law Enforce-

4

ment Training Center Distributed Learning Pro-

5

gram for State and local law enforcement personnel.

6

(2) FEDERAL PERSONNEL TRAINING.—The

7

training of State and local law enforcement per-

8

sonnel under this section shall not displace the train-

9

ing of Federal personnel.

10

(3) CLARIFICATION.—Nothing in this title or

11

any other provision of law shall be construed as

12

making any immigration-related training a require-

13

ment for, or prerequisite to, any State or local law

14

enforcement officer to assist in the enforcement of

15

Federal immigration laws.

16

(4) PRIORITY.—In carrying out this subsection,

17

priority funding shall be given for existing web-based

18

immigration enforcement training systems.

19 SEC. 110. IMMUNITY.

20

Notwithstanding any other provision of law, a law en-

21 forcement officer of a State or local law enforcement agen-

22 cy who is acting within the scope of the officer’s official

23 duties shall be immune, to the same extent as a Federal

24 law enforcement officer, from personal liability arising out

25 of the performance of any duty described in this title, in-

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1 cluding the authorities to investigate, identify, apprehend,

2 arrest, detain, or transfer to Federal custody, an alien for

3 the purposes of enforcing the immigration laws of the

4 United States (as defined in section 101(a)(17) of the Im-

5 migration and Nationality Act (8 U.S.C. 1101(a)(17))) or

6 the immigration laws of a State or a political subdivision

7 of a State.

8 SEC. 111. CRIMINAL ALIEN IDENTIFICATION PROGRAM.

9

(a) CONTINUATION AND EXPANSION.—

10

(1) IN GENERAL.—The Secretary shall continue

11

to operate and implement a program that—

12

(A) identifies removable criminal aliens in

13

Federal and State correctional facilities;

14

(B) ensures such aliens are not released

15

into the community; and

16

(C) removes such aliens from the United

17

States after the completion of their sentences.

18

(2) EXPANSION.—The program shall be ex-

19

tended to all States. Any State that receives Federal

20

funds for the incarceration of criminal aliens (pursu-

21

ant to the State Criminal Alien Assistance Program

22

authorized under section 241(i) of the Immigration

23

and Nationality Act (8 U.S.C. 1231(i)) or other

24

similar program) shall—

25

(A) cooperate with officials of the program;

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1

(B) expeditiously and systematically iden-

2

tify criminal aliens in its prison and jail popu-

3

lations; and

4

(C) promptly convey such information to

5

officials of such program as a condition of re-

6

ceiving such funds.

7

(b) AUTHORIZATION FOR DETENTION AFTER COM-

8 PLETION OF STATE OR LOCAL PRISON SENTENCE.—Law

9 enforcement officers of a State, or of a political subdivision

10 of a State, are authorized to—

11

(1) hold a criminal alien for a period of up to

12

48 hours (excluding Saturdays, Sundays, and holi-

13

days) after the alien has completed the alien’s sen-

14

tence under State or local law in order to effectuate

15

the transfer of the alien to Federal custody when the

16

alien is inadmissible or deportable; or

17

(2) issue a detainer that would allow aliens who

18

have served a prison sentence under State or local

19

law to be detained by the State or local prison or jail

20

until the Secretary can take the alien into custody.

21

(c) TECHNOLOGY USAGE.—Technology, such as video

22 conferencing, shall be used to the maximum extent prac-

23 ticable in order to make the program available in remote

24 locations. Mobile access to Federal databases of aliens and

25 live scan technology shall be used to the maximum extent

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1 practicable in order to make these resources available to

2 State and local law enforcement agencies in remote loca-

3 tions.

4

(d) EFFECTIVE DATE.—This section shall take effect

5 of the date of the enactment of this Act, except that sub-

6 section (a)(2) shall take effect on the date that is 180 days

7 after such date.

8 SEC. 112. CLARIFICATION OF CONGRESSIONAL INTENT.

9

Section 287(g) of the Immigration and Nationality

10 Act (8 U.S.C. 1357(g)) is amended—

11

(1) in paragraph (1) by striking ‘‘may enter’’

12

and all that follows through the period at the end

13

and inserting the following: ‘‘shall enter into a writ-

14

ten agreement with a State, or any political subdivi-

15

sion of a State, upon request of the State or political

16

subdivision, pursuant to which an officer or em-

17

ployee of the State or subdivision, who is determined

18

by the Secretary to be qualified to perform a func-

19

tion of an immigration officer in relation to the in-

20

vestigation, apprehension, or detention of aliens in

21

the United States (including the transportation of

22

such aliens across State lines to detention centers),

23

may carry out such function at the expense of the

24

State or political subdivision and to extent consistent

25

with State and local law. No request from a bona

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1

fide State or political subdivision or bona fide law

2

enforcement agency shall be denied absent a compel-

3

ling reason. No limit on the number of agreements

4

under this subsection may be imposed. The Sec-

5

retary shall process requests for such agreements

6

with all due haste, and in no case shall take not

7

more than 90 days from the date the request is

8

made until the agreement is consummated.’’;

9

(2) by redesignating paragraph (2) as para-

10

graph (5) and paragraphs (3) through (10) as para-

11

graphs (7) through (14), respectively;

12

(3) by inserting after paragraph (1) the fol-

13

lowing:

14

‘‘(2) An agreement under this subsection shall accom-

15 modate a requesting State or political subdivision with re-

16 spect to the enforcement model or combination of models,

17 and shall accommodate a patrol model, task force model,

18 jail model, any combination thereof, or any other reason-

19 able model the State or political subdivision believes is best

20 suited to the immigration enforcement needs of its juris-

21 diction.

22

‘‘(3) No Federal program or technology directed

23 broadly at identifying inadmissible or deportable aliens

24 shall substitute for such agreements, including those es-

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1 tablishing a jail model, and shall operate in addition to

2 any agreement under this subsection.

3

‘‘(4)(A) No agreement under this subsection shall be

4 terminated absent a compelling reason.

5

‘‘(B)(i) The Secretary shall provide a State or polit-

6 ical subdivision written notice of intent to terminate at

7 least 180 days prior to date of intended termination, and

8 the notice shall fully explain the grounds for termination,

9 along with providing evidence substantiating the Sec-

10 retary’s allegations.

11

‘‘(ii) The State or political subdivision shall have the

12 right to a hearing before an administrative law judge and,

13 if the ruling is against the State or political subdivision,

14 to appeal the ruling to the Federal Circuit Court of Ap-

15 peals and, if the ruling is against the State or political

16 subdivision, to the Supreme Court.

17

‘‘(C) The agreement shall remain in full effect during

18 the course of any and all legal proceedings.’’; and

19

(4) by inserting after paragraph (5) (as redesig-

20

nated) the following:

21

‘‘(6) The Secretary of Homeland Security shall make

22 training of State and local law enforcement officers avail-

23 able through as many means as possible, including

24 through residential training at the Center for Domestic

25 Preparedness and the Federal Law Enforcement Training

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1 Center, onsite training held at State or local police agen-

2 cies or facilities, online training courses by computer, tele-

3 conferencing, and videotape, or the digital video display

4 (DVD) of a training course or courses. Distance learning

5 through a secure, encrypted distributed learning system

6 that has all its servers based in the United States, is scal-

7 able, survivable, and can have a portal in place not later

8 than 30 days after the date of the enactment of this Act,

9 shall be made available by the COPS Office of the Depart-

10 ment of Justice and the Federal Law Enforcement Train-

11 ing Center Distributed Learning Program for State and

12 local law enforcement personnel. Preference shall be given

13 to private sector-based web-based immigration enforce-

14 ment training programs for which the Federal Govern-

15 ment has already provided support to develop.’’.

16 SEC. 113. STATE CRIMINAL ALIEN ASSISTANCE PROGRAM

17

(SCAAP).

18

Section 241(i) of the Immigration and Nationality

19 Act (8 U.S.C. 1231(i)) is amended—

20

(1) by striking ‘‘Attorney General’’ the first

21

place such term appears and inserting ‘‘Secretary of

22

Homeland Security’’;

23

(2) by striking ‘‘Attorney General’’ each place

24

such term appears thereafter and inserting ‘‘Sec-

25

retary’’; and

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1

(3) in paragraph (3)(A), by inserting ‘‘charged

2

with or’’ before ‘‘convicted’’.

3 SEC. 114. STATE VIOLATIONS OF ENFORCEMENT OF IMMI-

4

GRATION LAWS.

5

(a) IN GENERAL.—Section 642 of the Illegal Immi-

6 gration Reform and Immigrant Responsibility Act of 1996

7 (8 U.S.C. 1373) is amended—

8

(1) by striking ‘‘Immigration and Naturaliza-

9

tion Service’’ each place it appears and inserting

10

‘‘Department of Homeland Security’’;

11

(2) in subsection (a), by striking ‘‘may’’ and in-

12

serting ‘‘shall’’;

13

(3) in subsection (b)—

14

(A) by striking ‘‘no person or agency may’’

15

and inserting ‘‘a person or agency shall not’’;

16

(B) by striking ‘‘doing any of the following

17

with respect to information’’ and inserting ‘‘un-

18

dertaking any of the following law enforcement

19

activities’’; and

20

(C) by striking paragraphs (1) through (3)

21

and inserting the following:

22

‘‘(1) Notifying the Federal Government regard-

23

ing the presence of inadmissible and deportable

24

aliens who are encountered by law enforcement per-

25

sonnel of a State or political subdivision of a State.

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‘‘(2) Complying with requests for information

2

from Federal law enforcement.

3

‘‘(3) Issuing policies in the form of a resolu-

4

tions, ordinances, administrative actions, general or

5

special orders, or departmental policies that violate

6

Federal law or restrict a State or political subdivi-

7

sion of a State from complying with Federal law or

8

coordinating with Federal law enforcement.’’; and

9

(4) by adding at the end the following:

10

‘‘(d) COMPLIANCE.—

11

‘‘(1) IN GENERAL.—A State, or a political sub-

12

division of a State, that has in effect a statute, pol-

13

icy, or practice that prohibits law enforcement offi-

14

cers of the State, or of a political subdivision of the

15

State, from assisting or cooperating with Federal

16

immigration law enforcement in the course of car-

17

rying out the officers’ routine law enforcement du-

18

ties shall not be eligible to receive—

19

‘‘(A) any of the funds that would otherwise

20

be allocated to the State or political subdivision

21

under section 241(i) of the Immigration and

22

Nationality Act (8 U.S.C. 1231(i)) or the ‘Cops

23

on the Beat’ program under part Q of title I of

24

the Omnibus Crime Control and Safe Streets

25

Act of 1968 (42 U.S.C. 3796dd et seq.); or

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1

‘‘(B) any other law enforcement or Depart-

2

ment of Homeland Security grant.

3

‘‘(2) ANNUAL DETERMINATION.—The Secretary

4

shall determine annually which State or political

5

subdivision of a State are not in compliance with

6

this section and shall report such determinations to

7

Congress on March 1 of each year.

8

‘‘(3) REPORTS.—The Attorney General shall

9

issue a report concerning the compliance of any par-

10

ticular State or political subdivision at the request of

11

the House or Senate Judiciary Committee. Any ju-

12

risdiction that is found to be out of compliance shall

13

be ineligible to receive Federal financial assistance

14

as provided in paragraph (1) for a minimum period

15

of 1 year, and shall only become eligible again after

16

the Attorney General certifies that the jurisdiction is

17

in compliance.

18

‘‘(4) REALLOCATION.—Any funds that are not

19

allocated to a State or to a political subdivision of

20

a State, due to the failure of the State, or of the po-

21

litical subdivision of the State, to comply with sub-

22

section (c) shall be reallocated to States, or to polit-

23

ical subdivisions of States, that comply with such

24

subsection.

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1

‘‘(e) CONSTRUCTION.—Nothing in this section shall

2 require law enforcement officials from States, or from po-

3 litical subdivisions of States, to report or arrest victims

4 or witnesses of a criminal offense.’’.

5

(b) EFFECTIVE DATE.—The amendments made by

6 this section shall take effect on the date of the enactment

7 of this Act, except that subsection (d) of section 642 of

8 the Illegal Immigration Reform and Immigrant Responsi-

9 bility Act of 1996 (8 U.S.C. 1373), as added by this sec-

10 tion, shall take effect beginning one year after the date

11 of the enactment of this Act.

12 SEC. 115. CLARIFYING THE AUTHORITY OF ICE DETAINERS.

13

(a) IN GENERAL.—Except as otherwise provided by

14 Federal law or rule of procedure, the Secretary of Home-

15 land Security shall execute all lawful writs, process, and

16 orders issued under the authority of the United States,

17 and shall command all necessary assistance to execute the

18 Secretary’s duties.

19

(b) STATE AND LOCAL COOPERATION WITH DHS

20 DETAINERS.—A State, or a political subdivision of a

21 State, that has in effect a statute or policy or practice

22 providing that it not comply with any Department of

23 Homeland Security detainer ordering that it temporarily

24 hold an alien in their custody so that the alien may be

25 taken into Federal custody, or transport the alien for

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1 transfer to Federal custody, shall not be eligible to re-

2 ceive—

3

(1) any of the funds that would otherwise be al-

4

located to the State or political subdivision under

5

section 241(i) of the Immigration and Nationality

6

Act (8 U.S.C. 1231(i)) or the ‘‘Cops on the Beat’’

7

program under part Q of title I of the Omnibus

8

Crime Control and Safe Streets Act of 1968 (42

9

U.S.C. 3796dd et seq.); or

10

(2) any other law enforcement or Department

11

of Homeland Security grant.

12

(c) IMMUNITY.—A State or a political subdivision of

13 a State acting in compliance with a Department of Home-

14 land Security detainer who temporarily holds aliens in its

15 custody so that they may be taken into Federal custody,

16 or transports the aliens for transfer to Federal custody,

17 shall be considered to be acting under color of Federal

18 authority for purposes of determining its liability, and im-

19 munity from suit, in civil actions brought by the aliens

20 under Federal or State law.

21

(d) PROBABLE CAUSE.—It is the sense of Congress

22 that the Department of Homeland Security has probable

23 cause to believe that an alien is inadmissible or deportable

24 when it issues a detainer regarding such alien under the

25 standards in place on the date of introduction of this Act.

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1 TITLE II—NATIONAL SECURITY

2 SEC. 201. REMOVAL OF, AND DENIAL OF BENEFITS TO, TER-

3

RORIST ALIENS.

4

(a) ASYLUM.—Section 208(b)(2)(A) of the Immigra-

5 tion and Nationality Act (8 U.S.C. 1158(b)(2)(A)) is

6 amended—

7

(1) by inserting ‘‘or the Secretary of Homeland

8

Security’’ after ‘‘if the Attorney General’’; and

9

(2) by amending clause (v) to read as follows:

10

‘‘(v) the alien is described in subpara-

11

graph (B)(i) or (F) of section 212(a)(3),

12

unless, in the case of an alien described in

13

subparagraph (IV), (V), or (IX) of section

14

212(a)(3)(B)(i), the Secretary of Home-

15

land Security or the Attorney General de-

16

termines, in the discretion of the Secretary

17

or the Attorney General, that there are not

18

reasonable grounds for regarding the alien

19

as a danger to the security of the United

20

States; or’’.

21

(b) CANCELLATION OF REMOVAL.—Section

22 240A(c)(4) of such Act (8 U.S.C. 1229b(c)(4)) is amend-

23 ed—

24

(1) by striking ‘‘inadmissible under’’ and insert-

25

ing ‘‘described in’’; and

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1

(2) by striking ‘‘deportable under’’ and insert-

2

ing ‘‘described in’’.

3

(c)

VOLUNTARY

DEPARTURE.—Section

4 240B(b)(1)(C) of such Act (8 U.S.C. 1229c(b)(1)(C)) is

5 amended by striking ‘‘deportable under section

6 237(a)(2)(A)(iii) or section 237(a)(4);’’ and inserting ‘‘de-

7 scribed in paragraph (2)(A)(iii) or (4) of section 237(a);’’.

8

(d) RESTRICTION ON REMOVAL.—Section

9 241(b)(3)(B) of such Act (8 U.S.C. 1231(b)(3)(B)) is

10 amended—

11

(1) in the matter preceding clause (i), by insert-

12

ing ‘‘or the Secretary of Homeland Security’’ after

13

‘‘Attorney General’’ each place it appears;

14

(2) in clause (iii), by striking ‘‘or’’ at the end;

15

(3) in clause (iv), by striking the period at the

16

end and inserting a semicolon;

17

(4) by striking the flush matter that follows

18

after clause (iv); and

19

(5) by inserting after clause (iv) the following:

20

‘‘(v) the alien is described in subpara-

21

graph (B)(i) or (F) of section 212(a)(3),

22

unless, in the case of an alien described in

23

subparagraph (IV), (V), or (IX) of section

24

212(a)(3)(B)(i), the Secretary of Home-

25

land Security or the Attorney General de-

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1

termines, in discretion of the Secretary or

2

the Attorney General, that there are not

3

reasonable grounds for regarding the alien

4

as a danger to the security of the United

5

States; or’’.

6

(e) RECORD OF ADMISSION.—

7

(1) IN GENERAL.—Section 249 of such Act (8

8

U.S.C. 1259) is amended to read as follows:

9 ‘‘RECORD OF ADMISSION FOR PERMANENT RESIDENCE IN

10

THE CASE OF CERTAIN ALIENS WHO ENTERED THE

11

UNITED STATES PRIOR TO JANUARY 1, 1972

12

‘‘SEC. 249. The Secretary of Homeland Security, in

13 the discretion of the Secretary and under such regulations

14 as the Secretary may prescribe, may enter a record of law-

15 ful admission for permanent residence in the case of any

16 alien, if no such record is otherwise available and the

17 alien—

18

‘‘(1) entered the United States before January

19

1, 1972;

20

‘‘(2) has continuously resided in the United

21

States since such entry;

22

‘‘(3) has been a person of good moral character

23

since such entry;

24

‘‘(4) is not ineligible for citizenship;

25

‘‘(5) is not described in paragraph (1)(A)(iv),

26

(2), (3), (6)(C), (6)(E), or (8) of section 212(a); and

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1

‘‘(6) did not, at any time, without reasonable

2

cause fail or refuse to attend or remain in attend-

3

ance at a proceeding to determine the alien’s inad-

4

missibility or deportability.

5 Such recordation shall be effective as of the date of ap-

6 proval of the application or as of the date of entry if such

7 entry occurred prior to July 1, 1924.’’.

8

(2) CLERICAL AMENDMENT.—The table of con-

9

tents for such Act is amended by amending the item

10

relating to section 249 to read as follows:

‘‘Sec. 249. Record of admission for permanent residence in the case of certain aliens who entered the United States prior to January 1, 1972.’’.

11

(f) EFFECTIVE DATE.—The amendments made by

12 this section shall take effect on the date of enactment of

13 this Act and sections 208(b)(2)(A), 212(a), 240A, 240B,

14 241(b)(3), and 249 of the Immigration and Nationality

15 Act, as so amended, shall apply to—

16

(1) all aliens in removal, deportation, or exclu-

17

sion proceedings;

18

(2) all applications pending on, or filed after,

19

the date of the enactment of this Act; and

20

(3) with respect to aliens and applications de-

21

scribed in paragraph (1) or (2) of this subsection,

22

acts and conditions constituting a ground for exclu-

23

sion, deportation, or removal occurring or existing

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1

before, on, or after the date of the enactment of this

2

Act.

3 SEC. 202. TERRORIST BAR TO GOOD MORAL CHARACTER.

4

(a) DEFINITION OF GOOD MORAL CHARACTER.—

5 Section 101(f) of the Immigration and Nationality Act (8

6 U.S.C. 1101(f)) is amended—

7

(1) by inserting after paragraph (1) the fol-

8

lowing:

9

‘‘(2) one who the Secretary of Homeland Secu-

10

rity or Attorney General determines to have been at

11

any time an alien described in section 212(a)(3) or

12

237(a)(4), which determination may be based upon

13

any relevant information or evidence, including clas-

14

sified, sensitive, or national security information;’’;

15

(2) in paragraph (8), by inserting ‘‘, regardless

16

whether the crime was classified as an aggravated

17

felony at the time of conviction, except that the Sec-

18

retary of Homeland Security or Attorney General

19

may, in the unreviewable discretion of the Secretary

20

or Attorney General, determine that this paragraph

21

shall not apply in the case of a single aggravated fel-

22

ony conviction (other than murder, manslaughter,

23

homicide, rape, or any sex offense when the victim

24

of such sex offense was a minor) for which comple-

25

tion of the term of imprisonment or the sentence

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1

(whichever is later) occurred 10 or more years prior

2

to the date of application’’ after ‘‘(as defined in sub-

3

section (a)(43))’’; and

4

(3) in the matter following paragraph (9), by

5

striking the first sentence and inserting the fol-

6

lowing: ‘‘The fact that any person is not within any

7

of the foregoing classes shall not preclude a discre-

8

tionary finding for other reasons that such a person

9

is or was not of good moral character. The Secretary

10

or the Attorney General shall not be limited to the

11

applicant’s conduct during the period for which good

12

moral character is required, but may take into con-

13

sideration as a basis for determination the appli-

14

cant’s conduct and acts at any time.’’.

15

(b) AGGRAVATED FELONS.—Section 509(b) of the

16 Immigration Act of 1990 (8 U.S.C. 1101 note) is amended

17 to read as follows:

18

‘‘(b) EFFECTIVE DATE.—The amendment made by

19 subsection (a) shall take effect on November 29, 1990,

20 and shall apply to convictions occurring before, on or after

21 such date.’’.

22

(c) TECHNICAL CORRECTION TO THE INTELLIGENCE

23 REFORM ACT.—Section 5504(2) of the Intelligence Re-

24 form and Terrorism Prevention Act of 2004 (Public Law

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1 108–458) is amended by striking ‘‘adding at the end’’ and

2 inserting ‘‘inserting after paragraph (8)’’.

3

(d) EFFECTIVE DATE.—The amendments made by

4 subsections (a) and (b) shall take effect on the date of

5 enactment of this Act, shall apply to any act that occurred

6 before, on, or after such date and shall apply to any appli-

7 cation for naturalization or any other benefit or relief, or

8 any other case or matter under the immigration laws

9 pending on or filed after such date. The amendments

10 made by subsection (c) shall take effect as if enacted in

11 the Intelligence Reform and Terrorism Prevention Act of

12 2004 (Public Law 108–458).

13 SEC. 203. TERRORIST BAR TO NATURALIZATION.

14

(a) NATURALIZATION OF PERSONS ENDANGERING

15 THE NATIONAL SECURITY.—Section 316 of the Immigra-

16 tion and Nationality Act (8 U.S.C. 1426) is amended by

17 adding at the end the following:

18

‘‘(g) PERSONS ENDANGERING THE NATIONAL SECU-

19 RITY.—No person shall be naturalized who the Secretary

20 of Homeland Security determines to have been at any time

21 an alien described in section 212(a)(3) or 237(a)(4). Such

22 determination may be based upon any relevant informa-

23 tion or evidence, including classified, sensitive, or national

24 security information.’’.

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1

(b) CONCURRENT NATURALIZATION AND REMOVAL

2 PROCEEDINGS.—Section 318 of the Immigration and Na-

3 tionality Act (8 U.S.C. 1429) is amended by striking

4 ‘‘other Act;’’ and inserting ‘‘other Act; and no application

5 for naturalization shall be considered by the Secretary of

6 Homeland Security or any court if there is pending

7 against the applicant any removal proceeding or other pro-

8 ceeding to determine the applicant’s inadmissibility or de-

9 portability, or to determine whether the applicant’s lawful

10 permanent resident status should be rescinded, regardless

11 of when such proceeding was commenced: Provided, That

12 the findings of the Attorney General in terminating re-

13 moval proceedings or in canceling the removal of an alien

14 pursuant to the provisions of this Act, shall not be deemed

15 binding in any way upon the Secretary of Homeland Secu-

16 rity with respect to the question of whether such person

17 has established his eligibility for naturalization as required

18 by this title;’’.

19

(c) PENDING DENATURALIZATION OR REMOVAL

20 PROCEEDINGS.—Section 204(b) of the Immigration and

21 Nationality Act (8 U.S.C. 1154(b)) is amended by adding

22 at the end the following: ‘‘No petition shall be approved

23 pursuant to this section if there is any administrative or

24 judicial proceeding (whether civil or criminal) pending

25 against the petitioner that could (whether directly or indi-

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1 rectly) result in the petitioner’s denaturalization or the

2 loss of the petitioner’s lawful permanent resident status.’’.

3

(d) CONDITIONAL PERMANENT RESIDENTS.—Sec-

4 tions 216(e) and section 216A(e) of the Immigration and

5 Nationality Act (8 U.S.C. 1186a(e) and 1186b(e)) are

6 each amended by striking the period at the end and insert-

7 ing ‘‘, if the alien has had the conditional basis removed

8 pursuant to this section.’’.

9

(e) DISTRICT COURT JURISDICTION.—Subsection

10 336(b) of the Immigration and Nationality Act (8 U.S.C.

11 1447(b)) is amended to read as follows:

12

‘‘(b) If there is a failure to render a final administra-

13 tive decision under section 335 before the end of the 180-

14 day period after the date on which the Secretary of Home-

15 land Security completes all examinations and interviews

16 conducted under such section, as such terms are defined

17 by the Secretary of Homeland Security pursuant to regu-

18 lations, the applicant may apply to the district court for

19 the district in which the applicant resides for a hearing

20 on the matter. Such court shall only have jurisdiction to

21 review the basis for delay and remand the matter to the

22 Secretary of Homeland Security for the Secretary’s deter-

23 mination on the application.’’.

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1

(f) CONFORMING AMENDMENT.—Section 310(c) of

2 the Immigration and Nationality Act (8 U.S.C. 1421(c))

3 is amended—

4

(1) by inserting ‘‘, not later than the date that

5

is 120 days after the Secretary of Homeland Secu-

6

rity’s final determination,’’ after ‘‘seek’’; and

7

(2) by striking the second sentence and insert-

8

ing the following: ‘‘The burden shall be upon the pe-

9

titioner to show that the Secretary’s denial of the

10

application was not supported by facially legitimate

11

and bona fide reasons. Except in a proceeding under

12

section 340, notwithstanding any other provision of

13

law (statutory or nonstatutory), including section

14

2241 of title 28, United States Code, or any other

15

habeas corpus provision, and sections 1361 and

16

1651 of such title, no court shall have jurisdiction

17

to determine, or to review a determination of the

18

Secretary made at any time regarding, whether, for

19

purposes of an application for naturalization, an

20

alien is a person of good moral character, whether

21

the alien understands and is attached to the prin-

22

ciples of the Constitution of the United States, or

23

whether an alien is well disposed to the good order

24

and happiness of the United States.’’.

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1

(g) EFFECTIVE DATE.—The amendments made by

2 this section shall take effect on the date of enactment of

3 this Act, shall apply to any act that occurred before, on,

4 or after such date, and shall apply to any application for

5 naturalization or any other case or matter under the immi-

6 gration laws pending on, or filed after, such date.

7 SEC. 204. DENATURALIZATION FOR TERRORISTS.

8

(a) IN GENERAL.—Section 340 of the Immigration

9 and Nationality Act is amended—

10

(1) by redesignating subsections (f) through (h)

11

as subsections (g) through (i), respectively; and

12

(2) by inserting after subsection (e) the fol-

13

lowing:

14

‘‘(f)(1) If a person who has been naturalized partici-

15 pates in any act described in paragraph (2), the Attorney

16 General is authorized to find that, as of the date of such

17 naturalization, such person was not attached to the prin-

18 ciples of the Constitution of the United States and was

19 not well disposed to the good order and happiness of the

20 United States at the time of naturalization, and upon such

21 finding shall set aside the order admitting such person to

22 citizenship and cancel the certificate of naturalization as

23 having been obtained by concealment of a material fact

24 or by willful misrepresentation, and such revocation and

25 setting aside of the order admitting such person to citizen-

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1 ship and such canceling of certificate of naturalization

2 shall be effective as of the original date of the order and

3 certificate, respectively.

4

‘‘(2) The acts described in this paragraph are the fol-

5 lowing:

6

‘‘(A) Any activity a purpose of which is the op-

7

position to, or the control or overthrow of, the Gov-

8

ernment of the United States by force, violence, or

9

other unlawful means.

10

‘‘(B) Engaging in a terrorist activity (as de-

11

fined in clauses (iii) and (iv) of section

12

212(a)(3)(B)).

13

‘‘(C) Incitement of terrorist activity under cir-

14

cumstances indicating an intention to cause death or

15

serious bodily harm.

16

‘‘(D) Receiving military-type training (as de-

17

fined in section 2339D(c)(1) of title 18, United

18

States Code) from or on behalf of any organization

19

that, at the time the training was received, was a

20

terrorist organization (as defined in section

21

212(a)(3)(B)(vi)).’’.

22

(b) EFFECTIVE DATE.—The amendments made by

23 subsection (a) shall take effect on the date of the enact-

24 ment of this Act and shall apply to acts that occur on

25 or after such date.

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42 1 SEC. 205. USE OF 1986 IRCA LEGALIZATION INFORMATION

2

FOR NATIONAL SECURITY PURPOSES.

3

(a) SPECIAL AGRICULTURAL WORKERS.—Section

4 210(b)(6) of the Immigration and Nationality Act (8

5 U.S.C. 1160(b)(6)) is amended—

6

(1) by striking ‘‘Attorney General’’ each place

7

such term appears and inserting ‘‘Secretary of

8

Homeland Security’’;

9

(2) in subparagraph (A), by striking ‘‘Depart-

10

ment of Justice,’’ and inserting ‘‘Department of

11

Homeland Security,’’;

12

(3) by redesignating subparagraphs (C) and

13

(D) as subparagraphs (D) and (E), respectively;

14

(4) by inserting after subparagraph (B) the fol-

15

lowing:

16

‘‘(C) AUTHORIZED DISCLOSURES.—

17

‘‘(i) CENSUS PURPOSE.—The Sec-

18

retary of Homeland Security may provide,

19

in his discretion, for the furnishing of in-

20

formation furnished under this section in

21

the same manner and circumstances as

22

census information may be disclosed under

23

section 8 of title 13, United States Code.

24

‘‘(ii) NATIONAL SECURITY PUR-

25

POSE.—The Secretary of Homeland Secu-

26

rity may provide, in his discretion, for the

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1

furnishing, use, publication, or release of

2

information furnished under this section in

3

any investigation, case, or matter, or for

4

any purpose, relating to terrorism, national

5

intelligence or the national security.’’; and

6

(5) in subparagraph (D), as redesignated, by

7

striking ‘‘Service’’ and inserting ‘‘Department of

8

Homeland Security’’.

9

(b) ADJUSTMENT OF STATUS UNDER THE IMMIGRA-

10 TION REFORM AND CONTROL ACT OF 1986.—Section

11 245A(c)(5) of the Immigration and Nationality Act (8

12 U.S.C. 1255a(c)(5)), is amended—

13

(1) by striking ‘‘Attorney General’’ each place

14

such term appears and inserting ‘‘Secretary of

15

Homeland Security’’;

16

(2) in subparagraph (A), by striking ‘‘Depart-

17

ment of Justice,’’ and inserting ‘‘Department of

18

Homeland Security,’’;

19

(3) by amending subparagraph (C) to read as

20

follows:

21

‘‘(C) AUTHORIZED DISCLOSURES.—

22

‘‘(i) CENSUS PURPOSE.—The Sec-

23

retary of Homeland Security may provide,

24

in his discretion, for the furnishing of in-

25

formation furnished under this section in

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44

1

the same manner and circumstances as

2

census information may be disclosed under

3

section 8 of title 13, United States Code.

4

‘‘(ii) NATIONAL SECURITY PUR-

5

POSE.—The Secretary of Homeland Secu-

6

rity may provide, in his discretion, for the

7

furnishing, use, publication, or release of

8

information furnished under this section in

9

any investigation, case, or matter, or for

10

any purpose, relating to terrorism, national

11

intelligence or the national security.’’; and

12

(4) in subparagraph (D)(i), striking ‘‘Service’’

13

and inserting ‘‘Department of Homeland Security’’.

14 SEC. 206. BACKGROUND AND SECURITY CHECKS.

15

(a) REQUIREMENT TO COMPLETE BACKGROUND AND

16 SECURITY CHECKS.—Section 103 of the Immigration and

17 Nationality Act (8 U.S.C. 1103) is amended by adding

18 at the end the following:

19

‘‘(h) Notwithstanding any other provision of law

20 (statutory or nonstatutory), including but not limited to

21 section 309 of Public Law 107–173, sections 1361 and

22 1651 of title 28, United States Code, and section 706(1)

23 of title 5, United States Code, neither the Secretary of

24 Homeland Security, the Attorney General, nor any court

25 may—

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45

1

‘‘(1) grant, or order the grant of or adjudica-

2

tion of an application for adjustment of status to

3

that of an alien lawfully admitted for permanent res-

4

idence;

5

‘‘(2) grant, or order the grant of or adjudica-

6

tion of an application for United States citizenship

7

or any other status, relief, protection from removal,

8

employment authorization, or other benefit under

9

the immigration laws;

10

‘‘(3) grant, or order the grant of or adjudica-

11

tion of, any immigrant or nonimmigrant petition; or

12

‘‘(4) issue or order the issuance of any docu-

13

mentation evidencing or related to any such grant,

14

until such background and security checks as the

15

Secretary may in his discretion require have been

16

completed or updated to the satisfaction of the Sec-

17

retary.

18

‘‘(i) Notwithstanding any other provision of law (stat-

19 utory or nonstatutory), including but not limited to section

20 309 of Public Law 107–173, sections 1361 and 1651 of

21 title 28, United States Code, and section 706(1) of title

22 5, United States Code, neither the Secretary of Homeland

23 Security nor the Attorney General may be required to—

24

‘‘(1) grant, or order the grant of or adjudica-

25

tion of an application for adjustment of status to

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46

1

that of an alien lawfully admitted for permanent res-

2

idence,

3

‘‘(2) grant, or order the grant of or adjudica-

4

tion of an application for United States citizenship

5

or any other status, relief, protection from removal,

6

employment authorization, or other benefit under

7

the immigration laws,

8

‘‘(3) grant, or order the grant of or adjudica-

9

tion of, any immigrant or nonimmigrant petition, or

10

‘‘(4) issue or order the issuance of any docu-

11

mentation evidencing or related to any such grant,

12

until any suspected or alleged materially false infor-

13

mation, material misrepresentation or omission, con-

14

cealment of a material fact, fraud or forgery, coun-

15

terfeiting, or alteration, or falsification of a docu-

16

ment, as determined by the Secretary, relating to

17

the adjudication of an application or petition for any

18

status (including the granting of adjustment of sta-

19

tus), relief, protection from removal, or other benefit

20

under this subsection has been investigated and re-

21

solved to the Secretary’s satisfaction.

22

‘‘(j) Notwithstanding any other provision of law (stat-

23 utory or nonstatutory), including section 309 of the En-

24 hanced Border Security and Visa Entry Reform Act (8

25 U.S.C. 1738), sections 1361 and 1651 of title 28, United

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47

1 States Code, and section 706(1) of title 5, United States

2 Code, no court shall have jurisdiction to require any of

3 the acts in subsection (h) or (i) to be completed by a cer-

4 tain time or award any relief for failure to complete or

5 delay in completing such acts.’’.

6

(b) CONSTRUCTION.—

7

(1) IN GENERAL.—Chapter 4 of title III of the

8

Immigration and Nationality Act (8 U.S.C. 1501 et

9

seq.) is amended by adding at the end the following:

10

‘‘CONSTRUCTION

11

‘‘SEC. 362. (a) IN GENERAL.—Nothing in this Act

12 or any other law, except as provided in subsection (d),

13 shall be construed to require the Secretary of Homeland

14 Security, the Attorney General, the Secretary of State, the

15 Secretary of Labor, or a consular officer to grant any ap-

16 plication, approve any petition, or grant or continue any

17 relief, protection from removal, employment authorization,

18 or any other status or benefit under the immigration laws

19 by, to, or on behalf of—

20

‘‘(1) any alien deemed by the Secretary to be

21

described in section 212(a)(3) or section 237(a)(4);

22

or

23

‘‘(2) any alien with respect to whom a criminal

24

or other proceeding or investigation is open or pend-

25

ing (including, but not limited to, issuance of an ar-

26

rest warrant, detainer, or indictment), where such

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48

1

proceeding or investigation is deemed by the official

2

described in subsection (a) to be material to the

3

alien’s eligibility for the status or benefit sought.

4

‘‘(b) DENIAL OR WITHHOLDING OF ADJUDICA-

5 TION.—An official described in subsection (a) may, in the

6 discretion of the official, deny (with respect to an alien

7 described in paragraph (1) or (2) of subsection (a)) or

8 withhold adjudication of pending resolution of the inves-

9 tigation or case (with respect to an alien described in sub-

10 section (a)(2) of this section) any application, petition, re-

11 lief, protection from removal, employment authorization,

12 status or benefit.

13

‘‘(c) JURISDICTION.—Notwithstanding any other pro-

14 vision of law (statutory or nonstatutory), including section

15 309 of the Enhanced Border Security and Visa Entry Re-

16 form Act (8 U.S.C. 1738), sections 1361 and 1651 of title

17 28, United States Code, and section 706(1) of title 5,

18 United States Code, no court shall have jurisdiction to re-

19 view a decision to deny or withhold adjudication pursuant

20 to subsection (b) of this section.

21

‘‘(d) WITHHOLDING OF REMOVAL AND TORTURE

22 CONVENTION.—This section does not limit or modify the

23 applicability of section 241(b)(3) or the United Nations

24 Convention Against Torture and Other Cruel, Inhuman or

25 Degrading Treatment or Punishment, subject to any res-

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49 1 ervations, understandings, declarations and provisos con-

2 tained in the United States Senate resolution of ratifica-

3 tion of the Convention, as implemented by section 2242

4 of the Foreign Affairs Reform and Restructuring Act of

5 1998 (Public Law 105–277) with respect to an alien oth-

6 erwise eligible for protection under such provisions.’’.

7

(2) CLERICAL AMENDMENT.—The table of con-

8

tents for such Act is amended by inserting after the

9

item relating to section 361 the following:

‘‘Sec. 362. Construction.’’.

10

(c) EFFECTIVE DATE.—The amendments made by

11 this section shall take effect on the date of the enactment

12 of this Act and shall apply to applications for immigration

13 benefits pending on or after such date.

14 SEC. 207. TECHNICAL AMENDMENTS RELATING TO THE IN-

15

TELLIGENCE REFORM AND TERRORISM PRE-

16

VENTION ACT OF 2004.

17

(a) TRANSIT WITHOUT VISA PROGRAM.—Section

18 7209(d) of the Intelligence Reform and Terrorism Preven-

19 tion Act of 2004 (8 U.S.C. 1185 note) is amended by

20 striking ‘‘the Secretary, in conjunction with the Secretary

21 of Homeland Security,’’ and inserting ‘‘the Secretary of

22 Homeland Security, in consultation with the Secretary of

23 State,’’.

24

(b) TECHNOLOGY ACQUISITION AND DISSEMINATION

25 PLAN.—Section 7201(c)(1) of such Act is amended by in-

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50

1 serting ‘‘and the Department of State’’ after ‘‘used by the

2 Department of Homeland Security’’.

3

TITLE III—REMOVAL OF

4

CRIMINAL ALIENS

5 SEC. 301. DEFINITION OF AGGRAVATED FELONY.

6

(a) DEFINITION OF AGGRAVATED FELONY.—Section

7 101(a)(43) of the Immigration and Nationality Act (8

8 U.S.C. 1101(a)(43)) is amended—

9

(1) by striking ‘‘The term ‘aggravated felony’

10

means—’’ and inserting ‘‘Notwithstanding any other

11

provision of law, the term ‘aggravated felony’ applies

12

to an offense described in this paragraph, whether in

13

violation of Federal or State law, or in violation of

14

the law of a foreign country for which the term of

15

imprisonment was completed within the previous 15

16

years, even if the length of the term of imprisonment

17

for the offense is based on recidivist or other en-

18

hancements and regardless of whether the conviction

19

was entered before, on, or after September 30, 1996,

20

and means—’’;

21

(2) in subparagraph (A), by striking ‘‘murder,

22

rape, or sexual abuse of a minor;’’ and inserting

23

‘‘murder, manslaughter, homicide, rape (whether the

24

victim was conscious or unconscious), or any offense

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51

1

of a sexual nature involving a victim under the age

2

of 18 years;’’;

3

(3) in subparagraph (I), by striking ‘‘or 2252’’

4

and inserting ‘‘2252, or 2252A’’;

5

(4) in subparagraph (F), by striking ‘‘at least

6

one year;’’ and inserting ‘‘is at least one year, except

7

that if the conviction records do not conclusively es-

8

tablish whether a crime constitutes a crime of vio-

9

lence, the Attorney General may consider other evi-

10

dence related to the conviction that clearly estab-

11

lishes that the conduct for which the alien was en-

12

gaged constitutes a crime of violence;’’;

13

(5) in subparagraph (N)—

14

(A) by striking ‘‘paragraph (1)(A) or (2)

15

of’’; and

16

(B) by inserting a semicolon at the end;

17

(6) in subparagraph (O), by striking ‘‘section

18

275(a) or 276 committed by an alien who was pre-

19

viously deported on the basis of a conviction for an

20

offense described in another subparagraph of this

21

paragraph’’ and inserting ‘‘section 275 or 276 for

22

which the term of imprisonment is at least 1 year’’;

23

(7) in subparagraph (U), by striking ‘‘an at-

24

tempt or conspiracy to commit an offense described

25

in this paragraph’’ and inserting ‘‘attempting or

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52

1

conspiring to commit an offense described in this

2

paragraph, or aiding, abetting, counseling, pro-

3

curing, commanding, inducing, or soliciting the com-

4

mission of such an offense’’; and

5

(8) by striking the undesignated matter fol-

6

lowing subparagraph (U).

7

(b) EFFECTIVE DATE; APPLICATION OF AMEND-

8 MENTS.—

9

(1) IN GENERAL.—The amendments made by

10

subsection (a)—

11

(A) shall take effect on the date of the en-

12

actment of this Act; and

13

(B) shall apply to any act or conviction

14

that occurred before, on, or after such date.

15

(2) APPLICATION OF IIRIRA AMENDMENTS.—

16

The amendments to section 101(a)(43) of the Immi-

17

gration and Nationality Act (8 U.S.C. 1101(a)(43))

18

made by section 321 of the Illegal Immigration Re-

19

form and Immigrant Responsibility Act of 1996 (di-

20

vision C of Public Law 104–208; 110 Stat. 3009–

21

627) shall continue to apply, whether the conviction

22

was entered before, on, or after September 30, 1996.

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53 1 SEC. 302. PRECLUDING ADMISSIBILITY OF ALIENS CON-

2

VICTED OF AGGRAVATED FELONIES OR

3

OTHER SERIOUS OFFENSES.

4

(a) INADMISSIBILITY ON CRIMINAL AND RELATED

5 GROUNDS; WAIVERS.—Section 212 of the Immigration

6 and Nationality Act (8 U.S.C. 1182) is amended—

7

(1) in subsection (a)(2)(A)(i)—

8

(A) in subclause (I), by striking ‘‘or’’ at

9

the end;

10

(B) in subclause (II), by adding ‘‘or’’ at

11

the end; and

12

(C) by inserting after subclause (II) the

13

following:

14

‘‘(III) a violation of (or a con-

15

spiracy or attempt to violate) an of-

16

fense described in section 408 of title

17

42, United States Code (relating to

18

social security account numbers or so-

19

cial security cards) or section 1028 of

20

title 18, United States Code (relating

21

to fraud and related activity in con-

22

nection with identification documents,

23

authentication features, and informa-

24

tion),’’;

25

(2) by adding at the end of subsection (a)(2)

26

the following:

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1

‘‘(J) PROCUREMENT OF CITIZENSHIP OR

2

NATURALIZATION UNLAWFULLY.—Any alien

3

convicted of, or who admits having committed,

4

or who admits committing acts which constitute

5

the essential elements of, a violation of, or an

6

attempt or a conspiracy to violate, subsection

7

(a) or (b) of section 1425 of title 18, United

8

States Code (relating to the procurement of

9

citizenship or naturalization unlawfully) is inad-

10

missible.

11

‘‘(K) CERTAIN FIREARM OFFENSES.—Any

12

alien who at any time has been convicted under

13

any law of, or who admits having committed or

14

admits committing acts which constitute the es-

15

sential elements of, purchasing, selling, offering

16

for sale, exchanging, using, owning, possessing,

17

or carrying, or of attempting or conspiring to

18

purchase, sell, offer for sale, exchange, use,

19

own, possess, or carry, any weapon, part, or ac-

20

cessory which is a firearm or destructive device

21

(as defined in section 921(a) of title 18, United

22

States Code) in violation of any law is inadmis-

23

sible.

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1

‘‘(L) AGGRAVATED FELONS.—Any alien

2

who has been convicted of an aggravated felony

3

at any time is inadmissible.

4

‘‘(M) CRIMES OF DOMESTIC VIOLENCE,

5

STALKING, OR VIOLATION OF PROTECTION OR-

6

DERS, CRIMES AGAINST CHILDREN.—

7

‘‘(i) DOMESTIC VIOLENCE, STALKING,

8

AND CHILD ABUSE.—Any alien who at any

9

time is convicted of, or who admits having

10

committed or admits committing acts

11

which constitute the essential elements of,

12

a crime of domestic violence, a crime of

13

stalking, or a crime of child abuse, child

14

neglect, or child abandonment is inadmis-

15

sible. For purposes of this clause, the term

16

‘crime of domestic violence’ means any

17

crime of violence (as defined in section 16

18

of title 18, United States Code) against a

19

person committed by a current or former

20

spouse of the person, by an individual with

21

whom the person shares a child in com-

22

mon, by an individual who is cohabiting

23

with or has cohabited with the person as a

24

spouse, by an individual similarly situated

25

to a spouse of the person under the domes-

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56

1

tic or family violence laws of the jurisdic-

2

tion where the offense occurs, or by any

3

other individual against a person who is

4

protected from that individual’s acts under

5

the domestic or family violence laws of the

6

United States or any State, Indian tribal

7

government, or unit of local or foreign gov-

8

ernment.

9

‘‘(ii) VIOLATORS OF PROTECTION OR-

10

DERS.—Any alien who at any time is en-

11

joined under a protection order issued by

12

a court and whom the court determines

13

has engaged in conduct that violates the

14

portion of a protection order that involves

15

protection against credible threats of vio-

16

lence, repeated harassment, or bodily in-

17

jury to the person or persons for whom the

18

protection order was issued is inadmissible.

19

For purposes of this clause, the term ‘pro-

20

tection order’ means any injunction issued

21

for the purpose of preventing violent or

22

threatening acts of domestic violence, in-

23

cluding temporary or final orders issued by

24

civil or criminal courts (other than support

25

or child custody orders or provisions)

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57

1

whether obtained by filing an independent

2

action or as a independent order in an-

3

other proceeding.

4

‘‘(iii) WAIVER AUTHORIZED.—The

5

waiver authority available under section

6

237(a)(7) with respect to section

7

237(a)(2)(E)(i) shall be available on a

8

comparable basis with respect to this sub-

9

paragraph.

10

‘‘(iv) CLARIFICATION.—If the convic-

11

tion records do not conclusively establish

12

whether a crime of domestic violence con-

13

stitutes a crime of violence (as defined in

14

section 16 of title 18, United States Code),

15

the Attorney General may consider other

16

evidence related to the conviction that

17

clearly establishes that the conduct for

18

which the alien was engaged constitutes a

19

crime of violence.’’; and

20

(3) in subsection (h)—

21

(A) by striking ‘‘The Attorney General

22

may, in his discretion, waive the application of

23

subparagraphs (A)(i)(I), (B), (D), and (E) of

24

subsection (a)(2)’’ and inserting ‘‘The Attorney

25

General or the Secretary of Homeland Security

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1

may, in the discretion of the Attorney General

2

or the Secretary, waive the application of sub-

3

paragraphs (A)(i)(I), (III), (B), (D), (E), (K),

4

and (M) of subsection (a)(2)’’;

5

(B) by striking ‘‘a criminal act involving

6

torture.’’ and inserting ‘‘a criminal act involving

7

torture, or has been convicted of an aggravated

8

felony.’’;

9

(C) by striking ‘‘if either since the date of

10

such admission the alien has been convicted of

11

an aggravated felony or the alien’’ and inserting

12

‘‘if since the date of such admission the alien’’;

13

and

14

(D) by inserting ‘‘or Secretary of Home-

15

land Security’’ after ‘‘the Attorney General’’

16

each place it appears.

17

(b) DEPORTABILITY; CRIMINAL OFFENSES.—Section

18 237(a)(3)(B) of the Immigration and Nationality Act (8

19 U.S.C. 1227(a)(3)(B)) is amended—

20

(1) in clause (ii), by striking ‘‘or’’ at the end;

21

(2) in clause (iii), by inserting ‘‘or’’ at the end;

22

and

23

(3) by inserting after clause (iii) the following:

24

‘‘(iv) of a violation of, or an attempt

25

or a conspiracy to violate, section 1425(a)

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59

1

or (b) of title 18 (relating to the procure-

2

ment of citizenship or naturalization un-

3

lawfully),’’.

4

(c) DEPORTABILITY; OTHER CRIMINAL OFFENSES.—

5 Section 237(a)(2) of the Immigration and Nationality Act

6 (8 U.S.C. 1227(a)(2)) is amended by adding at the end

7 the following:

8

‘‘(G) FRAUD AND RELATED ACTIVITY AS-

9

SOCIATED WITH SOCIAL SECURITY ACT BENE-

10

FITS AND IDENTIFICATION DOCUMENTS.—Any

11

alien who at any time after admission has been

12

convicted of a violation of (or a conspiracy or

13

attempt to violate) section 208 of the Social Se-

14

curity Act (42 U.S.C. 408) (relating to social

15

security account numbers or social security

16

cards) or section 1028 of title 18, United States

17

Code (relating to fraud and related activity in

18

connection with identification) is deportable.’’.

19

(d) EFFECTIVE DATE.—The amendments made by

20 this section shall apply—

21

(1) to any act that occurred before, on, or after

22

the date of the enactment of this Act; and

23

(2) to all aliens who are required to establish

24

admissibility on or after such date, and in all re-

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1

moval, deportation, or exclusion proceedings that are

2

filed, pending, or reopened, on or after such date.

3

(e) CONSTRUCTION.—The amendments made by sub-

4 section (a) shall not be construed to create eligibility for

5 relief from removal under former section 212(c) of the Im-

6 migration and Nationality Act where such eligibility did

7 not exist before these amendments became effective.

8 SEC. 303. ESPIONAGE CLARIFICATION.

9

Section 212(a)(3)(A) of the Immigration and Nation-

10 ality Act (8 U.S.C. 1182(a)(3)(A)), is amended to read

11 as follows:

12

‘‘(A) IN GENERAL.—Any alien who a con-

13

sular officer, the Attorney General, or the Sec-

14

retary of Homeland Security knows, or has rea-

15

sonable ground to believe, seeks to enter the

16

United States to engage solely, principally, or

17

incidentally in, or who is engaged in, or with re-

18

spect to clauses (i) and (iii) of this subpara-

19

graph has engaged in—

20

‘‘(i) any activity—

21

‘‘(I) to violate any law of the

22

United States relating to espionage or

23

sabotage; or

24

‘‘(II) to violate or evade any law

25

prohibiting the export from the

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United States of goods, technology, or

2

sensitive information;

3

‘‘(ii) any other unlawful activity; or

4

‘‘(iii) any activity a purpose of which

5

is the opposition to, or the control or over-

6

throw of, the Government of the United

7

States by force, violence, or other unlawful

8

means;

9

is inadmissible.’’.

10 SEC. 304. PROHIBITION OF THE SALE OF FIREARMS TO, OR

11

THE POSSESSION OF FIREARMS BY, CERTAIN

12

ALIENS.

13

Section 922 of title 18, United States Code, is

14 amended—

15

(1) in subsection (d)(5), in subparagraph (B),

16

by striking ‘‘(y)(2)’’ and all that follows and insert-

17

ing ‘‘(y), is in the United States not as an alien law-

18

fully admitted for permanent residence;’’;

19

(2) in subsection (g)(5), in subparagraph (B),

20

by striking ‘‘(y)(2)’’ and all that follows and insert-

21

ing ‘‘(y), is in the United States not as an alien law-

22

fully admitted for permanent residence;’’; and

23

(3) in subsection (y)—

24

(A) in the header, by striking ‘‘ADMITTED

25

UNDER NONIMMIGRANT VISAS.—’’ and insert-

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1

ing ‘‘NOT LAWFULLY ADMITTED FOR PERMA-

2

NENT RESIDENCE.—’’;

3

(B) in paragraph (1), by amending sub-

4

paragraph (B) to read as follows:

5

‘‘(B) the term ‘lawfully admitted for per-

6

manent residence’ has the same meaning as in

7

section 101(a)(20) of the Immigration and Na-

8

tionality Act (8 U.S.C. 1101(a)(20)).’’;

9

(C) in paragraph (2), by striking ‘‘under a

10

nonimmigrant visa’’ and inserting ‘‘but not law-

11

fully admitted for permanent residence’’; and

12

(D) in paragraph (3)(A), by striking ‘‘ad-

13

mitted to the United States under a non-

14

immigrant visa’’ and inserting ‘‘lawfully admit-

15

ted to the United States but not as an alien

16

lawfully admitted for permanent residence’’.

17 SEC. 305. UNIFORM STATUTE OF LIMITATIONS FOR CER-

18

TAIN IMMIGRATION, NATURALIZATION, AND

19

PEONAGE OFFENSES.

20

Section 3291 of title 18, United States Code, is

21 amended by striking ‘‘No person’’ and all that follows

22 through the period at the end and inserting the following:

23 ‘‘No person shall be prosecuted, tried, or punished for a

24 violation of any section of chapters 69 (relating to nation-

25 ality and citizenship offenses) and 75 (relating to pass-

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1 port, visa, and immigration offenses), or for a violation

2 of any criminal provision of sections 243, 266, 274, 275,

3 276, 277, or 278 of the Immigration and Nationality Act,

4 or for an attempt or conspiracy to violate any such section,

5 unless the indictment is returned or the information is

6 filed within ten years after the commission of the of-

7 fense.’’.

8 SEC. 306. CONFORMING AMENDMENT TO THE DEFINITION

9

OF RACKETEERING ACTIVITY.

10

Section 1961(1) of title 18, United States Code, is

11 amended by striking ‘‘section 1542’’ through ‘‘section

12 1546 (relating to fraud and misuse of visas, permits, and

13 other documents)’’ and inserting ‘‘sections 1541–1548 (re-

14 lating to passports and visas)’’.

15 SEC. 307. CONFORMING AMENDMENTS FOR THE AGGRA-

16

VATED FELONY DEFINITION.

17

(a) IN GENERAL.—Subparagraph (P) of section

18 101(a)(43) of the Immigration and Nationality Act (8

19 U.S.C. 1101(a)(43)) is amended—

20

(1) by striking ‘‘(i) which either is falsely mak-

21

ing, forging, counterfeiting, mutilating, or altering a

22

passport or instrument in violation of section 1543

23

of title 18, United States Code, or is described in

24

section 1546(a) of such title (relating to document

25

fraud) and (ii)’’ and inserting ‘‘which is described in

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1

any section of chapter 75 of title 18, United States

2

Code,’’; and

3

(2) by inserting after ‘‘first offense’’ the fol-

4

lowing: ‘‘(i) that is not described in section 1548 of

5

such title (relating to increased penalties), and (ii)’’.

6

(b) EFFECTIVE DATE.—The amendment made by

7 subsection (a) shall take effect on the date of the enact-

8 ment of this Act and shall apply to acts that occur before,

9 on, or after the date of the enactment of this Act.

10 SEC. 308. PRECLUDING REFUGEE OR ASYLEE ADJUSTMENT

11

OF STATUS FOR AGGRAVATED FELONS.

12

(a) IN GENERAL.—Section 209(c) of the Immigration

13 and Nationality Act (8 U.S.C. 1159(c)) is amended by

14 adding at the end thereof the following: ‘‘However, an

15 alien who is convicted of an aggravated felony is not eligi-

16 ble for a waiver or for adjustment of status under this

17 section.’’.

18

(b) EFFECTIVE DATE.—The amendment made by

19 subsection (a) shall apply—

20

(1) to any act that occurred before, on, or after

21

the date of the enactment of this Act; and

22

(2) to all aliens who are required to establish

23

admissibility on or after such date, and in all re-

24

moval, deportation, or exclusion proceedings that are

25

filed, pending, or reopened, on or after such date.

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65 1 SEC. 309. PRECLUDING WITHHOLDING OF REMOVAL FOR

2

AGGRAVATED FELONS.

3

(a) IN GENERAL.—Section 241(b)(3)(B) (8 U.S.C.

4 1231(b)(3)(B)), as amended by section 201, is further

5 amended by inserting after clause (v), as inserted by sec-

6 tion 201, the following:

7

‘‘(vi) the alien is convicted of an ag-

8

gravated felony.’’.

9

(b) EFFECTIVE DATE.—The amendment made by

10 subsection (a) shall apply—

11

(1) to any act that occurred before, on, or after

12

the date of the enactment of this Act; and

13

(2) to all aliens who are required to establish

14

admissibility on or after such date, and in all re-

15

moval, deportation, or exclusion proceedings that are

16

filed, pending, or reopened on or after such date.

17 SEC. 310. INADMISSIBILITY, DEPORTABILITY, AND DETEN-

18

TION OF DRUNK DRIVERS.

19

(a) IN GENERAL.—Section 101(a)(43) of the Immi-

20 gration and Nationality Act (8 U.S.C. 1101(a)(43)) (as

21 amended by this Act) is further amended—

22

(1) in subparagraph (T), by striking ‘‘and’’;

23

(2) in subparagraph (U), by striking the period

24

at the end and inserting ‘‘; and’’; and

25

(3) by inserting after subparagraph (U) the fol-

26

lowing:

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1

‘‘(V) a second or subsequent conviction for

2

driving while intoxicated (including a conviction

3

for driving while under the influence of or im-

4

paired by alcohol or drugs) without regard to

5

whether the conviction is classified as a mis-

6

demeanor or felony under State law.’’.

7

(b) DETENTION.—Section 236(c)(1) of the Immigra-

8 tion and Nationality Act (8 U.S.C. 1226(c)(1)) is amend-

9 ed—

10

(1) in subparagraph (C), by striking ‘‘or’’ at

11

the end;

12

(2) in subparagraph (D), by adding ‘‘or’’ at the

13

end; and

14

(3) by inserting after subparagraph (D) the fol-

15

lowing:

16

‘‘(E) is unlawfully present in the United

17

States and has been convicted one or multiple

18

times for driving while intoxicated (including a

19

conviction for driving while under the influence

20

or impaired by alcohol or drugs) without regard

21

to whether the conviction is classified as a mis-

22

demeanor or felony under State law,’’.

23

(c) EFFECTIVE DATE.—The amendments made by

24 this section shall take effect on the date of the enactment

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1 of this Act and apply to convictions entered on or after

2 such date.

3 SEC. 311. DETENTION OF DANGEROUS ALIENS.

4

(a) IN GENERAL.—Section 241(a) of the Immigra-

5 tion and Nationality Act (8 U.S.C. 1231(a)) is amended—

6

(1) by striking ‘‘Attorney General’’ each place

7

it appears, except for the first reference in para-

8

graph (4)(B)(i), and inserting ‘‘Secretary of Home-

9

land Security’’;

10

(2) in paragraph (1), by amending subpara-

11

graph (B) to read as follows:

12

‘‘(B) BEGINNING OF PERIOD.—The re-

13

moval period begins on the latest of the fol-

14

lowing:

15

‘‘(i) The date the order of removal be-

16

comes administratively final.

17

‘‘(ii) If the alien is not in the custody

18

of the Secretary on the date the order of

19

removal becomes administratively final, the

20

date the alien is taken into such custody.

21

‘‘(iii) If the alien is detained or con-

22

fined (except under an immigration proc-

23

ess) on the date the order of removal be-

24

comes administratively final, the date the

25

alien is taken into the custody of the Sec-

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1

retary, after the alien is released from such

2

detention or confinement.’’;

3

(3) in paragraph (1), by amending subpara-

4

graph (C) to read as follows:

5

‘‘(C) SUSPENSION OF PERIOD.—

6

‘‘(i) EXTENSION.—The removal period

7

shall be extended beyond a period of 90

8

days and the Secretary may, in the Sec-

9

retary’s sole discretion, keep the alien in

10

detention during such extended period if—

11

‘‘(I) the alien fails or refuses to

12

make all reasonable efforts to comply

13

with the removal order, or to fully co-

14

operate with the Secretary’s efforts to

15

establish the alien’s identity and carry

16

out the removal order, including mak-

17

ing timely application in good faith

18

for travel or other documents nec-

19

essary to the alien’s departure or con-

20

spires or acts to prevent the alien’s

21

removal that is subject to an order of

22

removal;

23

‘‘(II) a court, the Board of Immi-

24

gration Appeals, or an immigration

25

judge orders a stay of removal of an

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1

alien who is subject to an administra-

2

tively final order of removal;

3

‘‘(III) the Secretary transfers

4

custody of the alien pursuant to law

5

to another Federal agency or a State

6

or local government agency in connec-

7

tion with the official duties of such

8

agency; or

9

‘‘(IV) a court or the Board of

10

Immigration Appeals orders a remand

11

to an immigration judge or the Board

12

of Immigration Appeals, during the

13

time period when the case is pending

14

a decision on remand (with the re-

15

moval period beginning anew on the

16

date that the alien is ordered removed

17

on remand).

18

‘‘(ii) RENEWAL.—If the removal pe-

19

riod has been extended under clause (C)(i),

20

a new removal period shall be deemed to

21

have begun on the date—

22

‘‘(I) the alien makes all reason-

23

able efforts to comply with the re-

24

moval order, or to fully cooperate with

25

the Secretary’s efforts to establish the

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1

alien’s identity and carry out the re-

2

moval order;

3

‘‘(II) the stay of removal is no

4

longer in effect; or

5

‘‘(III) the alien is returned to the

6

custody of the Secretary.

7

‘‘(iii) MANDATORY DETENTION FOR

8

CERTAIN ALIENS.—In the case of an alien

9

described in subparagraphs (A) through

10

(D) of section 236(c)(1), the Secretary

11

shall keep that alien in detention during

12

the extended period described in clause (i).

13

‘‘(iv) SOLE FORM OF RELIEF.—An

14

alien may seek relief from detention under

15

this subparagraph only by filing an appli-

16

cation for a writ of habeas corpus in ac-

17

cordance with chapter 153 of title 28,

18

United States Code. No alien whose period

19

of detention is extended under this sub-

20

paragraph shall have the right to seek re-

21

lease on bond.’’;

22

(4) in paragraph (3)—

23

(A) by adding after ‘‘If the alien does not

24

leave or is not removed within the removal pe-

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1

riod’’ the following: ‘‘or is not detained pursu-

2

ant to paragraph (6) of this subsection’’; and

3

(B) by striking subparagraph (D) and in-

4

serting the following:

5

‘‘(D) to obey reasonable restrictions on the

6

alien’s conduct or activities that the Secretary

7

prescribes for the alien, in order to prevent the

8

alien from absconding, for the protection of the

9

community, or for other purposes related to the

10

enforcement of the immigration laws.’’;

11

(5) in paragraph (4)(A), by striking ‘‘paragraph

12

(2)’’ and inserting ‘‘subparagraph (B)’’; and

13

(6) by striking paragraph (6) and inserting the

14

following:

15

‘‘(6) ADDITIONAL RULES FOR DETENTION OR

16

RELEASE OF CERTAIN ALIENS.—

17

‘‘(A) DETENTION REVIEW PROCESS FOR

18

COOPERATIVE ALIENS ESTABLISHED.—For an

19

alien who is not otherwise subject to mandatory

20

detention, who has made all reasonable efforts

21

to comply with a removal order and to cooper-

22

ate fully with the Secretary of Homeland Secu-

23

rity’s efforts to establish the alien’s identity and

24

carry out the removal order, including making

25

timely application in good faith for travel or

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72

1

other documents necessary to the alien’s depar-

2

ture, and who has not conspired or acted to

3

prevent removal, the Secretary shall establish

4

an administrative review process to determine

5

whether the alien should be detained or released

6

on conditions. The Secretary shall make a de-

7

termination whether to release an alien after

8

the removal period in accordance with subpara-

9

graph (B). The determination shall include con-

10

sideration of any evidence submitted by the

11

alien, and may include consideration of any

12

other evidence, including any information or as-

13

sistance provided by the Secretary of State or

14

other Federal official and any other information

15

available to the Secretary of Homeland Security

16

pertaining to the ability to remove the alien.

17

‘‘(B) AUTHORITY TO DETAIN BEYOND RE-

18

MOVAL PERIOD.—

19

‘‘(i) IN GENERAL.—The Secretary of

20

Homeland Security, in the exercise of the

21

Secretary’s sole discretion, may continue to

22

detain an alien for 90 days beyond the re-

23

moval period (including any extension of

24

the removal period as provided in para-

25

graph (1)(C)). An alien whose detention is

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1

extended under this subparagraph shall

2

have no right to seek release on bond.

3

‘‘(ii) SPECIFIC CIRCUMSTANCES.—The

4

Secretary of Homeland Security, in the ex-

5

ercise of the Secretary’s sole discretion,

6

may continue to detain an alien beyond the

7

90 days authorized in clause (i)—

8

‘‘(I) until the alien is removed, if

9

the Secretary, in the Secretary’s sole

10

discretion, determines that there is a

11

significant likelihood that the alien—

12

‘‘(aa) will be removed in the

13

reasonably foreseeable future; or

14

‘‘(bb) would be removed in

15

the reasonably foreseeable future,

16

or would have been removed, but

17

for the alien’s failure or refusal

18

to make all reasonable efforts to

19

comply with the removal order,

20

or to cooperate fully with the

21

Secretary’s efforts to establish

22

the alien’s identity and carry out

23

the removal order, including

24

making timely application in

25

good faith for travel or other doc-

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1

uments necessary to the alien’s

2

departure, or conspires or acts to

3

prevent removal;

4

‘‘(II) until the alien is removed,

5

if the Secretary of Homeland Security

6

certifies in writing—

7

‘‘(aa) in consultation with

8

the Secretary of Health and

9

Human Services, that the alien

10

has a highly contagious disease

11

that poses a threat to public safe-

12

ty;

13

‘‘(bb) after receipt of a writ-

14

ten recommendation from the

15

Secretary of State, that release

16

of the alien is likely to have seri-

17

ous adverse foreign policy con-

18

sequences for the United States;

19

‘‘(cc) based on information

20

available to the Secretary of

21

Homeland Security (including

22

classified, sensitive, or national

23

security information, and without

24

regard to the grounds upon

25

which the alien was ordered re-

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1

moved), that there is reason to

2

believe that the release of the

3

alien would threaten the national

4

security of the United States; or

5

‘‘(dd) that the release of the

6

alien will threaten the safety of

7

the community or any person,

8

conditions of release cannot rea-

9

sonably be expected to ensure the

10

safety of the community or any

11

person, and either (AA) the alien

12

has been convicted of one or

13

more aggravated felonies (as de-

14

fined in section 101(a)(43)(A))

15

or of one or more crimes identi-

16

fied by the Secretary of Home-

17

land Security by regulation, or of

18

one or more attempts or conspir-

19

acies to commit any such aggra-

20

vated felonies or such identified

21

crimes, if the aggregate term of

22

imprisonment for such attempts

23

or conspiracies is at least 5

24

years; or (BB) the alien has com-

25

mitted one or more crimes of vio-

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1

lence (as defined in section 16 of

2

title 18, United States Code, but

3

not including a purely political

4

offense) and, because of a mental

5

condition or personality disorder

6

and behavior associated with that

7

condition or disorder, the alien is

8

likely to engage in acts of vio-

9

lence in the future; or

10

‘‘(III) pending a certification

11

under subclause (II), so long as the

12

Secretary of Homeland Security has

13

initiated the administrative review

14

process not later than 30 days after

15

the expiration of the removal period

16

(including any extension of the re-

17

moval period, as provided in para-

18

graph (1)(C)).

19

‘‘(iii) NO RIGHT TO BOND HEARING.—

20

An alien whose detention is extended under

21

this subparagraph shall have no right to

22

seek release on bond, including by reason

23

of a certification under clause (ii)(II).

24

‘‘(C) RENEWAL AND DELEGATION OF CER-

25

TIFICATION.—

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1

‘‘(i) RENEWAL.—The Secretary of

2

Homeland Security may renew a certifi-

3

cation under subparagraph (B)(ii)(II)

4

every 6 months, after providing an oppor-

5

tunity for the alien to request reconsider-

6

ation of the certification and to submit

7

documents or other evidence in support of

8

that request. If the Secretary does not

9

renew a certification, the Secretary may

10

not continue to detain the alien under sub-

11

paragraph (B)(ii)(II).

12

‘‘(ii) DELEGATION.—Notwithstanding

13

section 103, the Secretary of Homeland

14

Security may not delegate the authority to

15

make or renew a certification described in

16

item (bb), (cc), or (dd) of subparagraph

17

(B)(ii)(II) below the level of the Assistant

18

Secretary for Immigration and Customs

19

Enforcement.

20

‘‘(iii) HEARING.—The Secretary of

21

Homeland Security may request that the

22

Attorney General or the Attorney General’s

23

designee provide for a hearing to make the

24

determination described in item (dd)(BB)

25

of subparagraph (B)(ii)(II).

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1

‘‘(D) RELEASE ON CONDITIONS.—If it is

2

determined that an alien should be released

3

from detention by a Federal court, the Board of

4

Immigration Appeals, or if an immigration

5

judge orders a stay of removal, the Secretary of

6

Homeland Security, in the exercise of the Sec-

7

retary’s discretion, may impose conditions on

8

release as provided in paragraph (3).

9

‘‘(E) REDETENTION.—The Secretary of

10

Homeland Security, in the exercise of the Sec-

11

retary’s discretion, without any limitations

12

other than those specified in this section, may

13

again detain any alien subject to a final re-

14

moval order who is released from custody, if re-

15

moval becomes likely in the reasonably foresee-

16

able future, the alien fails to comply with the

17

conditions of release, or to continue to satisfy

18

the conditions described in subparagraph (A),

19

or if, upon reconsideration, the Secretary, in

20

the Secretary’s sole discretion, determines that

21

the alien can be detained under subparagraph

22

(B). This section shall apply to any alien re-

23

turned to custody pursuant to this subpara-

24

graph, as if the removal period terminated on

25

the day of the redetention.

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1

‘‘(F) REVIEW OF DETERMINATIONS BY

2

SECRETARY.—A determination by the Secretary

3

under this paragraph shall not be subject to re-

4

view by any other agency.’’.

5

(b) DETENTION OF ALIENS DURING REMOVAL PRO-

6 CEEDINGS.—

7

(1) CLERICAL AMENDMENT.—(A) Section 236

8

of the Immigration and Nationality Act (8 U.S.C.

9

1226) is amended by striking ‘‘Attorney General’’

10

each place it appears (except in the second place

11

that term appears in section 236(a)) and inserting

12

‘‘Secretary of Homeland Security’’.

13

(B) Section 236(a) of such Act (8 U.S.C.

14

1226(a)) is amended by inserting ‘‘the Secretary of

15

Homeland Security or’’ before ‘‘the Attorney Gen-

16

eral—’’.

17

(C) Section 236(e) of such Act (8 U.S.C.

18

1226(e)) is amended by striking ‘‘Attorney Gen-

19

eral’s’’ and inserting ‘‘Secretary of Homeland Secu-

20

rity’s’’.

21

(2) LENGTH OF DETENTION.—Section 236 of

22

such Act (8 U.S.C. 1226) is amended by adding at

23

the end the following:

24

‘‘(f) LENGTH OF DETENTION.—

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1

‘‘(1) IN GENERAL.—Notwithstanding any other

2

provision of this section, an alien may be detained,

3

and for an alien described in subsection (c) shall be

4

detained, under this section without time limitation,

5

except as provided in subsection (h), during the

6

pendency of removal proceedings.

7

‘‘(2) CONSTRUCTION.—The length of detention

8

under this section shall not affect detention under

9

section 241.’’.

10

(3) DETENTION OF CRIMINAL ALIENS.—Section

11

236(c)(1) of the Immigration and Nationality Act (8

12

U.S.C. 1226(c)(1)) (as amended by section 310(b))

13

is further amended, in the matter following subpara-

14

graph (E) to read as follows:

15

‘‘any time after the alien is released, without regard

16

to whether an alien is released related to any activ-

17

ity, offense, or conviction described in this para-

18

graph; to whether the alien is released on parole, su-

19

pervised release, or probation; or to whether the

20

alien may be arrested or imprisoned again for the

21

same offense. If the activity described in this para-

22

graph does not result in the alien being taken into

23

custody by any person other than the Secretary,

24

then when the alien is brought to the attention of

25

the Secretary or when the Secretary determines it is

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1

practical to take such alien into custody, the Sec-

2

retary shall take such alien into custody.’’.

3

(4) ADMINISTRATIVE REVIEW.—Section 236 of

4

the Immigration and Nationality Act (8 U.S.C.

5

1226), as amended by paragraph (2), is further

6

amended by adding at the end the following:

7

‘‘(g) ADMINISTRATIVE REVIEW.—

8

‘‘(1) IN GENERAL.—The Attorney General’s re-

9

view of the Secretary’s custody determinations under

10

subsection (a) for the following classes of aliens shall

11

be limited to whether the alien may be detained, re-

12

leased on bond (of at least $1,500 with security ap-

13

proved by the Secretary), or released with no bond:

14

‘‘(A) Aliens in exclusion proceedings.

15

‘‘(B) Aliens described in section 212(a)(3)

16

or 237(a)(4).

17

‘‘(C) Aliens described in subsection (c).

18

‘‘(2) SPECIAL RULE.—

19

‘‘(h) RELEASE ON BOND.—

20

‘‘(1) IN GENERAL.—An alien detained under

21

subsection (a) may seek release on bond. No bond

22

may be granted except to an alien who establishes

23

by clear and convincing evidence that the alien is not

24

a flight risk or a risk to another person or the com-

25

munity.

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1

‘‘(2) CERTAIN ALIENS INELIGIBLE.—No alien

2

detained under subsection (c) may seek release on

3

bond.’’.

4

(5) CLERICAL AMENDMENTS.—(A) Section

5

236(a)(2)(B) of the Immigration and Nationality

6

Act (8 U.S.C. 1226(a)(2)(B)) is amended by strik-

7

ing ‘‘conditional parole’’ and inserting ‘‘recog-

8

nizance’’.

9

(B) Section 236(b) of such Act (8 U.S.C.

10

1226(b)) is amended by striking ‘‘parole’’ and in-

11

serting ‘‘recognizance’’.

12

(c) SEVERABILITY.—If any of the provisions of this

13 section or any amendment by this section, or the applica-

14 tion of any such provision to any person or circumstance,

15 is held to be invalid for any reason, the remainder of this

16 section and of amendments made by this section, and the

17 application of the provisions and of the amendments made

18 by this section to any other person or circumstance shall

19 not be affected by such holding.

20

(d) EFFECTIVE DATES.—

21

(1) The amendments made by subsection (a)

22

shall take effect upon the date of enactment of this

23

Act, and section 241 of the Immigration and Na-

24

tionality Act, as so amended, shall in addition apply

25

to—

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1

(A) all aliens subject to a final administra-

2

tive removal, deportation, or exclusion order

3

that was issued before, on, or after the date of

4

the enactment of this Act; and

5

(B) acts and conditions occurring or exist-

6

ing before, on, or after such date.

7

(2) The amendments made by subsection (b)

8

shall take effect upon the date of the enactment of

9

this Act, and section 236 of the Immigration and

10

Nationality Act, as so amended, shall in addition

11

apply to any alien in detention under provisions of

12

such section on or after such date.

13 SEC. 312. GROUNDS OF INADMISSIBILITY AND DEPORT-

14

ABILITY FOR ALIEN GANG MEMBERS.

15

(a) DEFINITION OF GANG MEMBER.—Section 101(a)

16 of the Immigration and Nationality Act (8 U.S.C.

17 1101(a)) is amended by adding at the end the following:

18

‘‘(53)(A) The term ‘criminal gang’ means an ongoing

19 group, club, organization, or association of 5 or more per-

20 sons that has as one of its primary purposes the commis-

21 sion of 1 or more of the following criminal offenses and

22 the members of which engage, or have engaged within the

23 past 5 years, in a continuing series of such offenses, or

24 that has been designated as a criminal gang by the Sec-

25 retary of Homeland Security, in consultation with the At-

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1 torney General, as meeting these criteria. The offenses de-

2 scribed, whether in violation of Federal or State law or

3 foreign law and regardless of whether the offenses oc-

4 curred before, on, or after the date of the enactment of

5 this paragraph, are the following:

6

‘‘(i) A ‘felony drug offense’ (as defined in sec-

7

tion 102 of the Controlled Substances Act (21

8

U.S.C. 802)).

9

‘‘(ii) An offense under section 274 (relating to

10

bringing in and harboring certain aliens), section

11

277 (relating to aiding or assisting certain aliens to

12

enter the United States), or section 278 (relating to

13

importation of alien for immoral purpose).

14

‘‘(iii) A crime of violence (as defined in section

15

16 of title 18, United States Code).

16

‘‘(iv) A crime involving obstruction of justice,

17

tampering with or retaliating against a witness, vic-

18

tim, or informant, or burglary.

19

‘‘(v) Any conduct punishable under sections

20

1028 and 1029 of title 18, United States Code (re-

21

lating to fraud and related activity in connection

22

with identification documents or access devices), sec-

23

tions 1581 through 1594 of such title (relating to

24

peonage, slavery and trafficking in persons), section

25

1952 of such title (relating to interstate and foreign

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85

1

travel or transportation in aid of racketeering enter-

2

prises), section 1956 of such title (relating to the

3

laundering of monetary instruments), section 1957

4

of such title (relating to engaging in monetary trans-

5

actions in property derived from specified unlawful

6

activity), or sections 2312 through 2315 of such title

7

(relating to interstate transportation of stolen motor

8

vehicles or stolen property).

9

‘‘(vi) A conspiracy to commit an offense de-

10

scribed in clauses (i) through (v).

11

‘‘(B) Notwithstanding any other provision of law (in-

12 cluding any effective date), the term applies regardless of

13 whether the conduct occurred before, on, or after the date

14 of the enactment of this paragraph.’’.

15

(b) INADMISSIBILITY.—Section 212(a)(2) of such Act

16 (8 U.S.C. 1182(a)(2)), as amended by section 302(a)(2)

17 of this Act, is further amended by adding at the end the

18 following:

19

‘‘(N) ALIENS ASSOCIATED WITH CRIMINAL

20

GANGS.—Any alien is inadmissible who a con-

21

sular officer, the Secretary of Homeland Secu-

22

rity, or the Attorney General knows or has rea-

23

son to believe—

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1

‘‘(i) to be or to have been a member

2

of a criminal gang (as defined in section

3

101(a)(53)); or

4

‘‘(ii) to have participated in the activi-

5

ties of a criminal gang (as defined in sec-

6

tion 101(a)(53)), knowing or having reason

7

to know that such activities will promote,

8

further, aid, or support the illegal activity

9

of the criminal gang.’’.

10

(c) DEPORTABILITY.—Section 237(a)(2) of the Im-

11 migration and Nationality Act (8 U.S.C. 1227(a)(2)), as

12 amended by section 302(c) of this Act, is further amended

13 by adding at the end the following:

14

‘‘(H) ALIENS ASSOCIATED WITH CRIMINAL

15

GANGS.—Any alien is deportable who the Sec-

16

retary of Homeland Security or the Attorney

17

General knows or has reason to believe—

18

‘‘(i) is or has been a member of a

19

criminal gang (as defined in section

20

101(a)(53)); or

21

‘‘(ii) has participated in the activities

22

of a criminal gang (as so defined), knowing

23

or having reason to know that such activi-

24

ties will promote, further, aid, or support

25

the illegal activity of the criminal gang.’’.

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1

(d) DESIGNATION.—

2

(1) IN GENERAL.—Chapter 2 of title II of the

3

Immigration and Nationality Act (8 U.S.C. 1182) is

4

amended by inserting after section 219 the fol-

5

lowing:

6

‘‘DESIGNATION

7

‘‘SEC. 220. (a) IN GENERAL.—The Secretary of

8 Homeland Security, in consultation with the Attorney

9 General, and the Secretary of State may designate a group

10 or association as a criminal street gang if their conduct

11 is described in section 101(a)(53) or if the group or asso-

12 ciation conduct poses a significant risk that threatens the

13 security and the public safety of United States nationals

14 or the national security, homeland security, foreign policy,

15 or economy of the United States.

16

‘‘(b) EFFECTIVE DATE.—Designations under sub-

17 section (a) shall remain in effect until the designation is

18 revoked after consultation between the Secretary of Home-

19 land Security, the Attorney General, and the Secretary of

20 State or is terminated in accordance with Federal law.’’.

21

(2) CLERICAL AMENDMENT.—The table of con-

22

tents for such Act is amended by inserting after the

23

item relating to section 219 the following:

‘‘220. Designation.’’.

24

(e) MANDATORY DETENTION OF CRIMINAL STREET

25 GANG MEMBERS.—

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1

(1) IN GENERAL.—Section 236(c)(1)(D) of the

2

Immigration and Nationality Act (8 U.S.C.

3

1226(c)(1)(D)) is amended—

4

(A) by inserting ‘‘or 212(a)(2)(N)’’ after

5

‘‘212(a)(3)(B)’’; and

6

(B) by inserting ‘‘237(a)(2)(H) or’’ before

7

‘‘237(a)(4)(B)’’.

8

(2) ANNUAL REPORT.—Not later than March 1

9

of each year (beginning 1 year after the date of the

10

enactment of this Act), the Secretary of Homeland

11

Security, after consultation with the appropriate

12

Federal agencies, shall submit a report to the Com-

13

mittees on the Judiciary of the House of Represent-

14

atives and of the Senate on the number of aliens de-

15

tained under the amendments made by paragraph

16

(1).

17

(f) ASYLUM CLAIMS BASED ON GANG AFFILI-

18 ATION.—

19

(1) INAPPLICABILITY OF RESTRICTION ON RE-

20

MOVAL TO CERTAIN COUNTRIES.—Section

21

241(b)(3)(B) of the Immigration and Nationality

22

Act (8 U.S.C. 1251(b)(3)(B)) is amended, in the

23

matter preceding clause (i), by inserting ‘‘who is de-

24

scribed in section 212(a)(2)(N)(i) or section

25

237(a)(2)(H)(i) or who is’’ after ‘‘to an alien’’.

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89

1

(2) INELIGIBILITY FOR ASYLUM.—Section

2

208(b)(2)(A) of such Act (8 U.S.C. 1158(b)(2)(A))

3

(as amended by this Act) is further amended—

4

(A) in clause (v), by striking ‘‘or’’ at the

5

end;

6

(B) by redesignating clause (vi) as clause

7

(vii); and

8

(C) by inserting after clause (v) the fol-

9

lowing:

10

‘‘(vi) the alien is described in section

11

212(a)(2)(N)(i) or section 237(a)(2)(H)(i)

12

(relating to participation in criminal street

13

gangs); or’’.

14

(g) TEMPORARY PROTECTED STATUS.—Section 244

15 of such Act (8 U.S.C. 1254a) is amended—

16

(1) by striking ‘‘Attorney General’’ each place

17

it appears and inserting ‘‘Secretary of Homeland Se-

18

curity’’;

19

(2) in subparagraph (c)(2)(B)—

20

(A) in clause (i), by striking ‘‘or’’ at the

21

end;

22

(B) in clause (ii), by striking the period

23

and inserting ‘‘; or’’; and

24

(C) by adding at the end the following:

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1

‘‘(iii) the alien is, or at any time after

2

admission has been, a member of a crimi-

3

nal gang (as defined in section

4

101(a)(53)).’’; and

5

(3) in subsection (d)—

6

(A) by striking paragraph (3); and

7

(B) in paragraph (4), by adding at the end

8

the following: ‘‘The Secretary of Homeland Se-

9

curity may detain an alien provided temporary

10

protected status under this section whenever

11

appropriate under any other provision of law.’’.

12

(h) EFFECTIVE DATE.—The amendments made by

13 this section shall take effect on the date of the enactment

14 of this Act and shall apply to acts that occur before, on,

15 or after the date of the enactment of this Act.

16 SEC. 313. EXTENSION OF IDENTITY THEFT OFFENSES.

17

Section 1028A of title 18, United States Code, is

18 amended by adding at the end the following:

19

‘‘(d) STATE OF MIND PROOF REQUIREMENT.—In a

20 prosecution for a violation of subsection (a)(1) predicated

21 on a violation described in subsection (c)(2), (6), (7), (9),

22 or (10) of this section, the Government need not prove

23 that the defendant knew the means of identification was

24 of another person.’’.

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91 1 SEC. 314. LAUNDERING OF MONETARY INSTRUMENTS.

2

(a) ADDITIONAL PREDICATE OFFENSES.—Section

3 1956(c)(7)(D) of title 18, United States Code, is amend-

4 ed—

5

(1) by inserting ‘‘section 1590 (relating to traf-

6

ficking with respect to peonage, slavery, involuntary

7

servitude, or forced labor),’’ after ‘‘section 1363 (re-

8

lating to destruction of property within the special

9

maritime and territorial jurisdiction),’’; and

10

(2) by inserting ‘‘section 274(a) of the Immi-

11

gration and Nationality Act (8 U.S.C.1324(a)) (re-

12

lating to bringing in and harboring certain aliens),’’

13

after ‘‘section 590 of the Tariff Act of 1930 (19

14

U.S.C. 1590) (relating to aviation smuggling),’’.

15

(b) INTENT TO CONCEAL OR DISGUISE.—Section

16 1956(a) of title 18, United States Code, is amended—

17

(1) in paragraph (1) so that subparagraph (B)

18

reads as follows:

19

‘‘(B) knowing that the transaction—

20

‘‘(i) conceals or disguises, or is intended to

21

conceal or disguise, the nature, source, location,

22

ownership, or control of the proceeds of some

23

form of unlawful activity; or

24

‘‘(ii) avoids, or is intended to avoid, a

25

transaction reporting requirement under State

26

or Federal law,’’; and

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1

(2) in paragraph (2) so that subparagraph (B)

2

reads as follows:

3

‘‘(B) knowing that the monetary instrument or

4

funds involved in the transportation, transmission,

5

or transfer represent the proceeds of some form of

6

unlawful activity, and knowing that such transpor-

7

tation, transmission, or transfer—

8

‘‘(i) conceals or disguises, or is intended to

9

conceal or disguise, the nature, source, location,

10

ownership, or control of the proceeds of some

11

form of unlawful activity; or

12

‘‘(ii) avoids, or is intended to avoid, a

13

transaction reporting requirement under State

14

or Federal law,’’.

15 SEC. 315. PENALTIES FOR ILLEGAL ENTRY OR PRESENCE.

16

(a) IN GENERAL.—Section 275 of the Immigration

17 and Nationality Act (8 U.S.C. 1325) is amended to read

18 as follows:

19

‘‘SEC. 275. (a) IN GENERAL.—

20

‘‘(1) ILLEGAL ENTRY OR PRESENCE.—An alien

21

shall be subject to the penalties set forth in para-

22

graph (2) if the alien—

23

‘‘(A) knowingly enters or crosses the bor-

24

der into the United States at any time or place

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1

other than as designated by the Secretary of

2

Homeland Security;

3

‘‘(B) knowingly eludes, at any time or

4

place, examination or inspection by an author-

5

ized immigration, customs, or agriculture offi-

6

cer (including by failing to stop at the com-

7

mand of such officer);

8

‘‘(C) knowingly enters or crosses the bor-

9

der to the United States and, upon examination

10

or inspection, knowingly makes a false or mis-

11

leading representation or the knowing conceal-

12

ment of a material fact (including such rep-

13

resentation or concealment in the context of ar-

14

rival, reporting, entry, or clearance require-

15

ments of the customs laws, immigration laws,

16

agriculture laws, or shipping laws);

17

‘‘(D) knowingly violates the terms or con-

18

ditions of the alien’s admission or parole into

19

the United States; or

20

‘‘(E) knowingly is unlawfully present in the

21

United States (as defined in section

22

212(a)(9)(B)(ii) subject to the exceptions set

23

for in section 212(a)(9)(B)(iii)).

24

‘‘(2) CRIMINAL PENALTIES.—Any alien who

25

violates any provision under paragraph (1)—

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1

‘‘(A) shall, for the first violation, be fined

2

under title 18, United States Code, imprisoned

3

not more than 6 months, or both;

4

‘‘(B) shall, for a second or subsequent vio-

5

lation, or following an order of voluntary depar-

6

ture, be fined under such title, imprisoned not

7

more than 2 years (or not more than 6 months

8

in the case of a second or subsequent violation

9

of paragraph (1)(E)), or both;

10

‘‘(C) if the violation occurred after the

11

alien had been convicted of 3 or more mis-

12

demeanors or for a felony, shall be fined under

13

such title, imprisoned not more than 10 years,

14

or both;

15

‘‘(D) if the violation occurred after the

16

alien had been convicted of a felony for which

17

the alien received a term of imprisonment of

18

not less than 30 months, shall be fined under

19

such title, imprisoned not more than 15 years,

20

or both; and

21

‘‘(E) if the violation occurred after the

22

alien had been convicted of a felony for which

23

the alien received a term of imprisonment of

24

not less than 60 months, such alien shall be

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1

fined under such title, imprisoned not more

2

than 20 years, or both.

3

‘‘(3) PRIOR CONVICTIONS.—The prior convic-

4

tions described in subparagraphs (C) through (E) of

5

paragraph (2) are elements of the offenses described

6

and the penalties in such subparagraphs shall apply

7

only in cases in which the conviction or convictions

8

that form the basis for the additional penalty are—

9

‘‘(A) alleged in the indictment or informa-

10

tion; and

11

‘‘(B) proven beyond a reasonable doubt at

12

trial or admitted by the defendant.

13

‘‘(4) DURATION OF OFFENSE.—An offense

14

under this subsection continues until the alien is dis-

15

covered within the United States by an immigration,

16

customs, or agriculture officer.

17

‘‘(5) ATTEMPT.—Whoever attempts to commit

18

any offense under this section shall be punished in

19

the same manner as for a completion of such of-

20

fense.

21

‘‘(b) IMPROPER TIME OR PLACE; CIVIL PEN-

22 ALTIES.—Any alien who is apprehended while entering, at-

23 tempting to enter, or knowingly crossing or attempting to

24 cross the border to the United States at a time or place

25 other than as designated by immigration officers shall be

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1 subject to a civil penalty, in addition to any criminal or

2 other civil penalties that may be imposed under any other

3 provision of law, in an amount equal to—

4

‘‘(1) not less than $50 or more than $250 for

5

each such entry, crossing, attempted entry, or at-

6

tempted crossing; or

7

‘‘(2) twice the amount specified in paragraph

8

(1) if the alien had previously been subject to a civil

9

penalty under this subsection.’’.

10

(b) CLERICAL AMENDMENT.—The table of contents

11 for the Immigration and Nationality Act is amended by

12 striking the item relating to section 275 and inserting the

13 following:

‘‘Sec. 275. Illegal entry or presence.’’.

14 SEC. 316. ILLEGAL REENTRY.

15

Section 276 of the Immigration and Nationality Act

16 (8 U.S.C. 1326) is amended to read as follows:

17

‘‘REENTRY OF REMOVED ALIEN

18

‘‘SEC. 276. (a) REENTRY AFTER REMOVAL.—Any

19 alien who has been denied admission, excluded, deported,

20 or removed, or who has departed the United States while

21 an order of exclusion, deportation, or removal is out-

22 standing, and subsequently enters, attempts to enter,

23 crosses the border to, attempts to cross the border to, or

24 is at any time found in the United States, shall be fined

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1 under title 18, United States Code, imprisoned not more

2 than 2 years, or both.

3

‘‘(b) REENTRY OF CRIMINAL OFFENDERS.—Not-

4 withstanding the penalty provided in subsection (a), if an

5 alien described in that subsection was convicted before

6 such removal or departure—

7

‘‘(1) for 3 or more misdemeanors or for a fel-

8

ony, the alien shall be fined under title 18, United

9

States Code, imprisoned not more than 10 years, or

10

both;

11

‘‘(2) for a felony for which the alien was sen-

12

tenced to a term of imprisonment of not less than

13

30 months, the alien shall be fined under such title,

14

imprisoned not less than 2 years and not more than

15

15 years, or both;

16

‘‘(3) for a felony for which the alien was sen-

17

tenced to a term of imprisonment of not less than

18

60 months, the alien shall be fined under such title,

19

imprisoned not less than 4 years and not more than

20

20 years, or both; or

21

‘‘(4) for murder, rape, kidnapping, or a felony

22

offense described in chapter 77 (relating to peonage

23

and slavery) or 113B (relating to terrorism) of such

24

title, or for 3 or more felonies of any kind, the alien

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1

shall be fined under such title, imprisoned not less

2

than 5 years and not more than 25 years, or both.

3

‘‘(c) REENTRY AFTER REPEATED REMOVAL.—Any

4 alien who has been denied admission, excluded, deported,

5 or removed 3 or more times and thereafter enters, at-

6 tempts to enter, crosses the border to, attempts to cross

7 the border to, or is at any time found in the United States,

8 shall be fined under title 18, United States Code, impris-

9 oned not more than 10 years, or both.

10

‘‘(d) PROOF OF PRIOR CONVICTIONS.—The prior

11 convictions described in subsection (b) are elements of the

12 crimes described, and the penalties in that subsection shall

13 apply only in cases in which the conviction or convictions

14 that form the basis for the additional penalty are—

15

‘‘(1) alleged in the indictment or information;

16

and

17

‘‘(2) proven beyond a reasonable doubt at trial

18

or admitted by the defendant.

19

‘‘(e) AFFIRMATIVE DEFENSES.—It shall be an af-

20 firmative defense to a violation of this section that—

21

‘‘(1) prior to the alleged violation, the alien had

22

sought and received the express consent of the Sec-

23

retary of Homeland Security to reapply for admis-

24

sion into the United States; or

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1

‘‘(2) with respect to an alien previously denied

2

admission and removed, the alien—

3

‘‘(A) was not required to obtain such ad-

4

vance consent under the Immigration and Na-

5

tionality Act or any prior Act; and

6

‘‘(B) had complied with all other laws and

7

regulations governing the alien’s admission into

8

the United States.

9

‘‘(f) LIMITATION ON COLLATERAL ATTACK ON UN-

10 DERLYING REMOVAL ORDER.—In a criminal proceeding

11 under this section, an alien may not challenge the validity

12 of any prior removal order concerning the alien.

13

‘‘(g) REENTRY OF ALIEN REMOVED PRIOR TO COM-

14 PLETION OF TERM OF IMPRISONMENT.—Any alien re-

15 moved pursuant to section 241(a)(4) who enters, attempts

16 to enter, crosses the border to, attempts to cross the bor-

17 der to, or is at any time found in, the United States shall

18 be incarcerated for the remainder of the sentence of im-

19 prisonment which was pending at the time of deportation

20 without any reduction for parole or supervised release un-

21 less the alien affirmatively demonstrates that the Sec-

22 retary of Homeland Security has expressly consented to

23 the alien’s reentry. Such alien shall be subject to such

24 other penalties relating to the reentry of removed aliens

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100

1 as may be available under this section or any other provi-

2 sion of law.

3

‘‘(h) DEFINITIONS.—For purposes of this section and

4 section 275, the following definitions shall apply:

5

‘‘(1) CROSSES THE BORDER TO THE UNITED

6

STATES.—The term ‘crosses the border’ refers to the

7

physical act of crossing the border, regardless of

8

whether the alien is free from official restraint.

9

‘‘(2) FELONY.—The term ‘felony’ means any

10

criminal offense punishable by a term of imprison-

11

ment of more than 1 year under the laws of the

12

United States, any State, or a foreign government.

13

‘‘(3) MISDEMEANOR.—The term ‘misdemeanor’

14

means any criminal offense punishable by a term of

15

imprisonment of not more than 1 year under the ap-

16

plicable laws of the United States, any State, or a

17

foreign government.

18

‘‘(4) REMOVAL.—The term ‘removal’ includes

19

any denial of admission, exclusion, deportation, or

20

removal, or any agreement by which an alien stipu-

21

lates or agrees to exclusion, deportation, or removal.

22

‘‘(5) STATE.—The term ‘State’ means a State

23

of the United States, the District of Columbia, and

24

any commonwealth, territory, or possession of the

25

United States.’’.

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101 1 SEC. 317. REFORM OF PASSPORT, VISA, AND IMMIGRATION

2

FRAUD OFFENSES.

3

Chapter 75 of title 18, United States Code, is amend-

4 ed to read as follows:

5 ‘‘CHAPTER 75—PASSPORTS AND VISAS

‘‘1541. Issuance without authority. ‘‘1542. False statement in application and use of passport. ‘‘1543. Forgery or false use of passport. ‘‘1544. Misuse of a passport. ‘‘1545. Schemes to defraud aliens. ‘‘1546. Immigration and visa fraud. ‘‘1547. Attempts and conspiracies. ‘‘1548. Alternative penalties for certain offenses. ‘‘1549. Definitions.

6 ‘‘§ 1541. Issuance without authority

7

‘‘(a) IN GENERAL.—Whoever—

8

‘‘(1) acting or claiming to act in any office or

9

capacity under the United States, or a State, with-

10

out lawful authority grants, issues, or verifies any

11

passport or other instrument in the nature of a

12

passport to or for any person; or

13

‘‘(2) being a consular officer authorized to

14

grant, issue, or verify passports, knowingly grants,

15

issues, or verifies any such passport to or for any

16

person not owing allegiance, to the United States,

17

whether a citizen or not;

18 shall be fined under this title or imprisoned not more than

19 15 years, or both.

20

‘‘(b) DEFINITION.—In this section, the term ‘State’

21 means a State of the United States, the District of Colum-

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102

1 bia, and any commonwealth, territory, or possession of the

2 United States.

3 ‘‘§ 1542. False statement in application and use of

4

passport

5

‘‘Whoever knowingly—

6

‘‘(1) makes any false statement in an applica-

7

tion for passport with intent to induce or secure the

8

issuance of a passport under the authority of the

9

United States, either for his own use or the use of

10

another, contrary to the laws regulating the issuance

11

of passports or the rules prescribed pursuant to such

12

laws; or

13

‘‘(2) uses or attempts to use, or furnishes to

14

another for use any passport the issue of which was

15

secured in any way by reason of any false statement;

16 shall be fined under this title or imprisoned not more than

17 15 years, or both.

18 ‘‘§ 1543. Forgery or false use of passport

19

‘‘Whoever—

20

‘‘(1) falsely makes, forges, counterfeits, muti-

21

lates, or alters any passport or instrument pur-

22

porting to be a passport, with intent that the same

23

may be used; or

24

‘‘(2) knowingly uses, or attempts to use, or fur-

25

nishes to another for use any such false, forged,

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103

1

counterfeited, mutilated, or altered passport or in-

2

strument purporting to be a passport, or any pass-

3

port validly issued which has become void by the oc-

4

currence of any condition therein prescribed invali-

5

dating the same;

6 shall be fined under this title or imprisoned not more than

7 15 years, or both.

8 ‘‘§ 1544. Misuse of a passport

9

‘‘Whoever knowingly—

10

‘‘(1) uses any passport issued or designed for

11

the use of another;

12

‘‘(2) uses any passport in violation of the condi-

13

tions or restrictions therein contained, or in violation

14

of the laws, regulations, or rules governing the

15

issuance and use of the passport;

16

‘‘(3) secures, possesses, uses, receives, buys,

17

sells, or distributes any passport knowing it to be

18

forged, counterfeited, altered, falsely made, procured

19

by fraud, stolen, or produced or issued without law-

20

ful authority; or

21

‘‘(4) violates the terms and conditions of any

22

safe conduct duly obtained and issued under the au-

23

thority of the United States;

24 shall be fined under this title, imprisoned not more than

25 15 years, or both.

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104 1 ‘‘§ 1545. Schemes to defraud aliens

2

‘‘Whoever inside the United States, or in or affecting

3 interstate or foreign commerce, in connection with any

4 matter that is authorized by or arises under the immigra-

5 tion laws of the United States or any matter the offender

6 claims or represents is authorized by or arises under the

7 immigration laws of the United States, knowingly executes

8 a scheme or artifice—

9

‘‘(1) to defraud any person, or

10

‘‘(2) to obtain or receive money or anything else

11

of value from any person by means of false or fraud-

12

ulent pretenses, representations, or promises;

13 shall be fined under this title, imprisoned not more than

14 15 years, or both.

15 ‘‘§ 1546. Immigration and visa fraud

16

‘‘Whoever knowingly—

17

‘‘(1) uses any immigration document issued or

18

designed for the use of another;

19

‘‘(2) forges, counterfeits, alters, or falsely

20

makes any immigration document;

21

‘‘(3) mails, prepares, presents, or signs any im-

22

migration document knowing it to contain any mate-

23

rially false statement or representation;

24

‘‘(4) secures, possesses, uses, transfers, re-

25

ceives, buys, sells, or distributes any immigration

26

document knowing it to be forged, counterfeited, al-

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1

tered, falsely made, stolen, procured by fraud, or

2

produced or issued without lawful authority;

3

‘‘(5) adopts or uses a false or fictitious name to

4

evade or to attempt to evade the immigration laws;

5

‘‘(6) transfers or furnishes, without lawful au-

6

thority, an immigration document to another person

7

for use by a person other than the person for whom

8

the immigration document was issued or designed;

9

or

10

‘‘(7) produces, issues, authorizes, or verifies,

11

without lawful authority, an immigration document;

12 shall be fined under this title, imprisoned not more than

13 15 years, or both.

14 ‘‘§ 1547. Attempts and conspiracies

15

‘‘Whoever attempts or conspires to violate this chap-

16 ter shall be punished in the same manner as a person who

17 completes that violation.

18 ‘‘§ 1548. Alternative penalties for certain offenses

19

‘‘(a) TERRORISM.—Whoever violates any section in

20 this chapter to facilitate an act of international terrorism

21 or domestic terrorism (as such terms are defined in section

22 2331), shall be fined under this title or imprisoned not

23 more than 25 years, or both.

24

‘‘(b) DRUG TRAFFICKING OFFENSES.—Whoever vio-

25 lates any section in this chapter to facilitate a drug traf-

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106

1 ficking crime (as defined in section 929(a)) shall be fined

2 under this title or imprisoned not more than 20 years, or

3 both.

4 ‘‘§ 1549. Definitions

5

‘‘In this chapter:

6

‘‘(1) An ‘application for a United States pass-

7

port’ includes any document, photograph, or other

8

piece of evidence attached to or submitted in support

9

of the application.

10

‘‘(2) The term ‘immigration document’ means

11

any instrument on which is recorded, by means of

12

letters, figures, or marks, matters which may be

13

used to fulfill any requirement of the Immigration

14

and Nationality Act.’’.

15 SEC. 318. FORFEITURE.

16

Section 981(a)(1) of title 18, United States Code, is

17 amended by adding at the end the following:

18

‘‘(I) Any property, real or personal, that has

19

been used to commit or facilitate the commission of

20

a violation of chapter 75, the gross proceeds of such

21

violation, and any property traceable to any such

22

property or proceeds.’’.

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107 1 SEC. 319. EXPEDITED REMOVAL FOR ALIENS INADMISSIBLE

2

ON CRIMINAL OR SECURITY GROUNDS.

3

(a) IN GENERAL.—Section 238(b) of the Immigra-

4 tion and Nationality Act (8 U.S.C. 1228(b)) is amended–

5

(1) in paragraph (1)—

6

(A) by striking ‘‘Attorney General’’ and in-

7

serting ‘‘Secretary of Homeland Security in the

8

exercise of discretion’’; and

9

(B) by striking ‘‘set forth in this sub-

10

section or’’ and inserting ‘‘set forth in this sub-

11

section, in lieu of removal proceedings under’’;

12

(2) in paragraph (3), by striking ‘‘paragraph

13

(1) until 14 calendar days’’ and inserting ‘‘para-

14

graph (1) or (3) until 7 calendar days’’;

15

(3) by striking ‘‘Attorney General’’ each place

16

it appears in paragraphs (3) and (4) and inserting

17

‘‘Secretary of Homeland Security’’;

18

(4) in paragraph (5)—

19

(A) by striking ‘‘described in this section’’

20

and inserting ‘‘described in paragraph (1) or

21

(2)’’; and

22

(B) by striking ‘‘the Attorney General may

23

grant in the Attorney General’s discretion’’ and

24

inserting ‘‘the Secretary of Homeland Security

25

or the Attorney General may grant, in the dis-

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108

1

cretion of the Secretary or Attorney General, in

2

any proceeding’’;

3

(5) by redesignating paragraphs (3), (4), and

4

(5) as paragraphs (4), (5), and (6), respectively; and

5

(6) by inserting after paragraph (2) the fol-

6

lowing new paragraph:

7

‘‘(3) The Secretary of Homeland Security in

8

the exercise of discretion may determine inadmis-

9

sibility under section 212(a)(2) (relating to criminal

10

offenses) or section 212(a)(3)(related to security

11

grounds) and issue an order of removal pursuant to

12

the procedures set forth in this subsection, in lieu of

13

removal proceedings under section 240, with respect

14

to an alien who—

15

‘‘(A) has not been admitted or paroled;

16

‘‘(B) has not been found to have a credible

17

fear of persecution pursuant to the procedures

18

set forth in section 235(b)(1)(B); and

19

‘‘(C) is not eligible for a waiver of inadmis-

20

sibility or relief from removal.’’.

21

(b) EFFECTIVE DATE.—The amendments made by

22 subsection (a) shall take effect on the date of the enact-

23 ment of this Act but shall not apply to aliens who are

24 in removal proceedings under section 240 of the Immigra-

25 tion and Nationality Act as of such date.

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109 1 SEC. 320. INCREASED PENALTIES BARRING THE ADMIS-

2

SION OF CONVICTED SEX OFFENDERS FAIL-

3

ING TO REGISTER AND REQUIRING DEPORTA-

4

TION OF SEX OFFENDERS FAILING TO REG-

5

ISTER.

6

(a) INADMISSIBILITY.—Section 212(a)(2)(A)(i) of

7 the Immigration and Nationality Act (8 U.S.C.

8 1182(a)(2)(A)(i)), as amended by section 302(a) of this

9 Act, is further amended—

10

(1) in subclause (II), by striking ‘‘or’’ at the

11

end;

12

(2) in subclause (III), by adding ‘‘or’’ at the

13

end; and

14

(3) by inserting after subclause (III) the fol-

15

lowing:

16

‘‘(IV) a violation of section 2250

17

of title 18, United States Code (relat-

18

ing to failure to register as a sex of-

19

fender),’’.

20

(b) DEPORTABILITY.—Section 237(a)(2) of such Act

21 (8 U.S.C. 1227(a)(2)), as amended by sections 302(c) and

22 311(c) of this Act, is further amended—

23

(1) in subparagraph (A), by striking clause (v);

24

and

25

(2) by adding at the end the following:

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1

‘‘(I) FAILURE TO REGISTER AS A SEX OF-

2

FENDER.—Any alien convicted of, or who ad-

3

mits having committed, or who admits commit-

4

ting acts which constitute the essential elements

5

of a violation of section 2250 of title 18, United

6

States Code (relating to failure to register as a

7

sex offender) is deportable.’’.

8

(c) EFFECTIVE DATE.—The amendments made by

9 this section shall take effect on the date of the enactment

10 of this Act and shall apply to acts that occur before, on,

11 or after the date of the enactment of this Act.

12 SEC. 321. PROTECTING IMMIGRANTS FROM CONVICTED

13

SEX OFFENDERS.

14

(a) IMMIGRANTS.—Section 204(a)(1) of the Immigra-

15 tion and Nationality Act (8 U.S.C. 1154(a)(1)), is amend-

16 ed—

17

(1) in subparagraph (A), by amending clause

18

(viii) to read as follows:

19

‘‘(viii) Clause (i) shall not apply to a citizen of the

20 United States who has been convicted of an offense de-

21 scribed in subparagraph (A), (I), or (K) of section

22 101(a)(43), unless the Secretary of Homeland Security,

23 in the Secretary’s sole and unreviewable discretion, deter-

24 mines that the citizen poses no risk to the alien with re-

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111

1 spect to whom a petition described in clause (i) is filed.’’;

2 and

3

(2) in subparagraph (B)(i)—

4

(A) by redesignating the second subclause

5

(I) as subclause (II); and

6

(B) by amending such subclause (II) to

7

read as follows:

8

‘‘(II) Subclause (I) shall not apply in the case of an

9 alien admitted for permanent residence who has been con-

10 victed of an offense described in subparagraph (A), (I),

11 or (K) of section 101(a)(43), unless the Secretary of

12 Homeland Security, in the Secretary’s sole and

13 unreviewable discretion, determines that the alien lawfully

14 admitted for permanent residence poses no risk to the

15 alien with respect to whom a petition described in sub-

16 clause (I) is filed.’’.

17

(b) NONIMMIGRANTS.—Section 101(a)(15)(K) of

18 such Act (8 U.S.C. 1101(a)(15)(K)), is amended by strik-

19 ing ‘‘204(a)(1)(A)(viii)(I))’’ each place such term appears

20 and inserting ‘‘204(a)(1)(A)(viii))’’.

21

(c) EFFECTIVE DATE.—The amendments made by

22 this section shall take effect on the date of the enactment

23 of this Act and shall apply to petitions filed on or after

24 such date.

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112 1 SEC. 322. CLARIFICATION TO CRIMES OF VIOLENCE AND

2

CRIMES INVOLVING MORAL TURPITUDE.

3

(a) INADMISSIBLE ALIENS.—Section 212(a)(2)(A) of

4 the Immigration and Nationality Act (8 U.S.C.

5 1182(a)(2)(A)) is amended by adding at the end the fol-

6 lowing:

7

‘‘(iii) CLARIFICATION.—If the convic-

8

tion records do not conclusively establish

9

whether a crime constitutes a crime involv-

10

ing moral turpitude, the Attorney General

11

may consider other evidence related to the

12

conviction that clearly establishes that the

13

conduct for which the alien was engaged

14

constitutes a crime involving moral turpi-

15

tude.’’.

16

(b) DEPORTABLE ALIENS.—

17

(1) GENERAL CRIMES.—Section 237(a)(2)(A)

18

of such Act (8 U.S.C. 1227(a)(2)(A)), as amended

19

by section 320(b) of this Act, is further amended by

20

inserting after clause (iv) the following:

21

‘‘(v) CRIMES INVOLVING MORAL TUR-

22

PITUDE.—If the conviction records do not

23

conclusively establish whether a crime con-

24

stitutes a crime involving moral turpitude,

25

the Attorney General may consider other

26

evidence related to the conviction that

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113

1

clearly establishes that the conduct for

2

which the alien was engaged constitutes a

3

crime involving moral turpitude.’’.

4

(2)

DOMESTIC

VIOLENCE.—Section

5

237(a)(2)(E) of such Act (8 U.S.C. 1227(a)(2)(E))

6

is amended by adding at the end the following:

7

‘‘(iii) CRIMES OF VIOLENCE.—If the

8

conviction records do not conclusively es-

9

tablish whether a crime of domestic vio-

10

lence constitutes a crime of violence (as de-

11

fined in section 16 of title 18, United

12

States Code), the Attorney General may

13

consider other evidence related to the con-

14

viction that clearly establishes that the

15

conduct for which the alien was engaged

16

constitutes a crime of violence.’’.

17

(c) EFFECTIVE DATE.—The amendments made by

18 this section shall take effect on the date of the enactment

19 of this Act and shall apply to acts that occur before, on,

20 or after the date of the enactment of this Act.

21 SEC. 323. PENALTIES FOR FAILURE TO OBEY REMOVAL OR-

22

DERS.

23

(a) IN GENERAL.—Section 243(a) of the Immigra-

24 tion and Nationality Act (8 U.S.C. 1253(a)) is amended—

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114

1

(1) in the matter preceding subparagraph (A)

2

of paragraph (1), by inserting ‘‘212(a) or’’ before

3

‘‘237(a),’’; and

4

(2) by striking paragraph (3).

5

(b) EFFECTIVE DATE.—The amendments made by

6 subsection (a) shall take effect on the date of the enact-

7 ment of this Act and shall apply to acts that are described

8 in subparagraphs (A) through (D) of section 243(a)(1) of

9 the Immigration and Nationality Act (8 U.S.C.

10 1253(a)(1)) that occur on or after the date of the enact-

11 ment of this Act.

12 SEC. 324. PARDONS.

13

(a) DEFINITION.—Section 101(a) of the Immigration

14 and Nationality Act (8 U.S.C. 1101(a)), as amended by

15 section 312(a) of this Act, is further amended by adding

16 at the end the following:

17

‘‘(54) The term ‘pardon’ means a full and uncondi-

18 tional pardon granted by the President of the United

19 States, Governor of any of the several States or constitu-

20 tionally recognized body.’’.

21

(b) DEPORTABILITY.—Section 237(a) of such Act (8

22 U.S.C. 1227(a)) is amended—

23

(1) in paragraph (2)(A), by striking clause (vi);

24

and

25

(2) by adding at the end the following:

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115

1

‘‘(8) PARDONS.—In the case of an alien who

2

has been convicted of a crime and is subject to re-

3

moval due to that conviction, if the alien, subsequent

4

to receiving the criminal conviction, is granted a

5

pardon, the alien shall not be deportable by reason

6

of that criminal conviction.’’.

7

(c) EFFECTIVE DATE.—The amendments made by

8 this section shall take effect on the date of the enactment

9 of this Act and shall apply to a pardon granted before,

10 on, or after such date.

11 SEC. 325. CONVICTIONS.

12

(a) Section 212(a)(2) of the Immigration and Nation-

13 ality Act (8 U.S.C. 1182(a)(2)) is amended by adding at

14 the end the following subparagraph:

15

‘‘(J) CONVICTIONS.—

16

‘‘(i) IN GENERAL.—For purposes of

17

determining whether an underlying crimi-

18

nal offense constitutes a ground of inad-

19

missibility under this subsection, all stat-

20

utes or common law offenses are divisible

21

so long as any of the conduct encompassed

22

by the statute constitutes an offense that

23

is a ground of inadmissibility.

24

‘‘(ii) OTHER EVIDENCE.—If the con-

25

viction records do not conclusively establish

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116

1

whether a crime constitutes a ground of in-

2

admissibility, the Attorney General or the

3

Secretary of Homeland Security may con-

4

sider other evidence related to the convic-

5

tion that clearly establishes that the con-

6

duct for which the alien was engaged con-

7

stitutes a ground of inadmissibility.’’.

8

(b) Section 237(a)(2) of the Immigration and Nation-

9 ality Act (8 U.S.C. 1227(a)(2)) is amended by adding at

10 the end the following subparagraph:

11

‘‘(G) CRIMINAL OFFENSES.—

12

‘‘(i) IN GENERAL.—For purposes of

13

determining whether an underlying crimi-

14

nal offense constitutes a ground of deport-

15

ability under this subsection, all statutes or

16

common law offenses are divisible so long

17

as any of the conduct encompassed by the

18

statute constitutes an offense that is a

19

ground of deportability.

20

‘‘(ii) OTHER EVIDENCE.—If the con-

21

viction records do not conclusively establish

22

whether a crime constitutes a ground of

23

deportability, the Attorney General or the

24

Secretary of Homeland Security may con-

25

sider other evidence related to the convic-

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1

tion that clearly establishes that the con-

2

duct for which the alien was engaged con-

3

stitutes a ground of deportability.’’.

4

TITLE IV—VISA SECURITY

5 SEC. 401. CANCELLATION OF ADDITIONAL VISAS.

6

(a) IN GENERAL.—Section 222(g) of the Immigra-

7 tion and Nationality Act (8 U.S.C. 1202(g)) is amended—

8

(1) in paragraph (1)—

9

(A) by striking ‘‘Attorney General’’ and in-

10

serting ‘‘Secretary’’; and

11

(B) by inserting ‘‘and any other non-

12

immigrant visa issued by the United States that

13

is in the possession of the alien’’ after ‘‘such

14

visa’’; and

15

(2) in paragraph (2)(A), by striking ‘‘(other

16

than the visa described in paragraph (1)) issued in

17

a consular office located in the country of the alien’s

18

nationality’’ and inserting ‘‘(other than a visa de-

19

scribed in paragraph (1)) issued in a consular office

20

located in the country of the alien’s nationality or

21

foreign residence’’.

22

(b) EFFECTIVE DATE.—The amendment made by

23 subsection (a) shall take effect on the date of the enact-

24 ment of this Act and shall apply to a visa issued before,

25 on, or after such date.

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118 1 SEC. 402. VISA INFORMATION SHARING.

2

(a) IN GENERAL.—Section 222(f) of the Immigration

3 and Nationality Act (8 U.S.C. 1202(f)(2)) is amended—

4

(1) by striking ‘‘issuance or refusal’’ and insert-

5

ing ‘‘issuance, refusal, or revocation’’;

6

(2) in paragraph (2), in the matter preceding

7

subparagraph (A), by striking ‘‘and on the basis of

8

reciprocity’’;

9

(3) in paragraph (2)(A)—

10

(A) by inserting ‘‘(i)’’ after ‘‘for the pur-

11

pose of’’; and

12

(B) by striking ‘‘illicit weapons; or’’ and

13

inserting ‘‘illicit weapons, or (ii) determining a

14

person’s deportability or eligibility for a visa,

15

admission, or other immigration benefit;’’;

16

(4) in paragraph (2)(B)—

17

(A) by striking ‘‘for the purposes’’ and in-

18

serting ‘‘for one of the purposes’’; and

19

(B) by striking ‘‘or to deny visas to per-

20

sons who would be inadmissible to the United

21

States.’’ and inserting ‘‘; or’’; and

22

(5) in paragraph (2), by adding at the end the

23

following:

24

‘‘(C) with regard to any or all aliens in the

25

database specified data elements from each

26

record, if the Secretary of State determines that

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1

it is in the national interest to provide such in-

2

formation to a foreign government.’’.

3

(b) EFFECTIVE DATE.—The amendments made by

4 subsection (a) shall take effect 60 days after the date of

5 the enactment of the Act.

6 SEC. 403. RESTRICTING WAIVER OF VISA INTERVIEWS.

7

Section 222(h) of the Immigration and Nationality

8 Act (8 U.S.C. 1202(h)(1)(B)) is amended—

9

(1) in paragraph (1)(C), by inserting ‘‘, in con-

10

sultation with the Secretary of Homeland Security,’’

11

after ‘‘if the Secretary’’;

12

(2) in paragraph (1)(C)(i), by inserting ‘‘,

13

where such national interest shall not include facili-

14

tation of travel of foreign nationals to the United

15

States, reduction of visa application processing

16

times, or the allocation of consular resources’’ before

17

the semicolon at the end; and

18

(3) in paragraph (2)—

19

(A) by striking ‘‘or’’ at the end of subpara-

20

graph (E);

21

(B) by striking the period at the end of

22

subparagraph (F) and inserting ‘‘; or’’; and

23

(C) by adding at the end the following:

24

‘‘(G) is an individual—

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1

‘‘(i) determined to be in a class of

2

aliens determined by the Secretary of

3

Homeland Security to be threats to na-

4

tional security;

5

‘‘(ii) identified by the Secretary of

6

Homeland Security as a person of concern;

7

or

8

‘‘(iii) applying for a visa in a visa cat-

9

egory with respect to which the Secretary

10

of Homeland Security has determined that

11

a waiver of the visa interview would create

12

a high risk of degradation of visa program

13

integrity.’’.

14 SEC. 404. AUTHORIZING THE DEPARTMENT OF STATE TO

15

NOT INTERVIEW CERTAIN INELIGIBLE VISA

16

APPLICANTS.

17

(a) IN GENERAL.—Section 222(h)(1) of the Immi-

18 gration and Nationality Act (8 U.S.C. 1202(h)(1)) is

19 amended by inserting ‘‘the alien is determined by the Sec-

20 retary of State to be ineligible for a visa based upon review

21 of the application or’’ after ‘‘unless’’.

22

(b) GUIDANCE.—Not later than 90 days after the

23 date of the enactment of this Act, the Secretary of State

24 shall issue guidance to consular officers on the standards

25 and processes for implementing the authority to deny visa

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1 applications without interview in cases where the alien is

2 determined by the Secretary of State to be ineligible for

3 a visa based upon review of the application.

4

(c) REPORTS.—Not less frequently than once each

5 quarter, the Secretary of State shall submit to the Con-

6 gress a report on the denial of visa applications without

7 interview, including—

8

(1) the number of such denials; and

9

(2) a post-by-post breakdown of such denials.

10 SEC. 405. VISA REFUSAL AND REVOCATION.

11

(a) AUTHORITY OF THE SECRETARY OF HOMELAND

12 SECURITY AND THE SECRETARY OF STATE.—

13

(1) IN GENERAL.—Section 428 of the Home-

14

land Security Act of 2002 (6 U.S.C. 236) is amend-

15

ed by striking subsections (b) and (c) and inserting

16

the following:

17

‘‘(b) AUTHORITY OF THE SECRETARY OF HOMELAND

18 SECURITY.—

19

‘‘(1) IN GENERAL.—Notwithstanding section

20

104(a) of the Immigration and Nationality Act (8

21

U.S.C. 1104(a)) or any other provision of law, and

22

except as provided in subsection (c) and except for

23

the authority of the Secretary of State under sub-

24

paragraphs (A) and (G) of section 101(a)(15) of the

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1

Immigration and Nationality Act (8 U.S.C.

2

1101(a)(15)), the Secretary—

3

‘‘(A) shall have exclusive authority to issue

4

regulations, establish policy, and administer and

5

enforce the provisions of the Immigration and

6

Nationality Act (8 U.S.C. 1101 et seq.) and all

7

other immigration or nationality laws relating

8

to the functions of consular officers of the

9

United States in connection with the granting

10

and refusal of a visa; and

11

‘‘(B) may refuse or revoke any visa to any

12

alien or class of aliens if the Secretary, or des-

13

ignee, determines that such refusal or revoca-

14

tion is necessary or advisable in the security or

15

foreign policy interests of the United States.

16

‘‘(2) EFFECT OF REVOCATION.—The revocation

17

of any visa under paragraph (1)(B)—

18

‘‘(A) shall take effect immediately; and

19

‘‘(B) shall automatically cancel any other

20

valid visa that is in the alien’s possession.

21

‘‘(3) JUDICIAL REVIEW.—Notwithstanding any

22

other provision of law, including section 2241 of title

23

28, United States Code, or any other habeas corpus

24

provision, and sections 1361 and 1651 of such title,

25

no court shall have jurisdiction to review a decision

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1

by the Secretary of Homeland Security to refuse or

2

revoke a visa, and no court shall have jurisdiction to

3

hear any claim arising from, or any challenge to,

4

such a refusal or revocation.

5

‘‘(c) AUTHORITY OF THE SECRETARY OF STATE.—

6

‘‘(1) IN GENERAL.—The Secretary of State may

7

direct a consular officer to refuse a visa requested

8

by an alien if the Secretary of State determines such

9

refusal to be necessary or advisable in the security

10

or foreign policy interests of the United States.

11

‘‘(2) LIMITATION.—No decision by the Sec-

12

retary of State to approve a visa may override a de-

13

cision by the Secretary of Homeland Security under

14

subsection (b).’’.

15

(2) CONFORMING AMENDMENT.—Section

16

237(a)(1)(B) of the Immigration and Nationality

17

Act (8 U.S.C. 1227(a)(1)(B)) is amended by strik-

18

ing ‘‘under section 221(i)’’.

19

(3) EFFECTIVE DATE.—The amendment made

20

by paragraph (1) shall take effect on the date of the

21

enactment of this Act and shall apply to visa refus-

22

als and revocations occurring before, on, or after

23

such date.

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1

(b) TECHNICAL CORRECTIONS TO THE HOMELAND

2 SECURITY ACT.—Section 428(a) of the Homeland Secu-

3 rity Act of 2002 (6 U.S.C. 236(a)) is amended by—

4

(1) striking ‘‘subsection’’ and inserting ‘‘sec-

5

tion’’; and

6

(2) striking ‘‘consular office’’ and inserting

7

‘‘consular officer’’.

8 SEC. 406. FUNDING FOR THE VISA SECURITY PROGRAM.

9

(a) IN GENERAL.—The Department of State and Re-

10 lated Agency Appropriations Act, 2005 (title IV of division

11 B of Public Law 108–447) is amended, in the fourth para-

12 graph under the heading ‘‘Diplomatic and Consular Pro-

13 grams’’, by striking ‘‘Beginning’’ and all that follows

14 through the period at the end and inserting the following:

15 ‘‘Beginning in fiscal year 2005 and thereafter, the Sec-

16 retary of State is authorized to charge surcharges related

17 to consular services in support of enhanced border security

18 that are in addition to the immigrant visa fees in effect

19 on January 1, 2004: Provided, That funds collected pursu-

20 ant to this authority shall be credited to the appropriation

21 for U.S. Immigration and Customs Enforcement for the

22 fiscal year in which the fees were collected, and shall be

23 available until expended for the funding of the Visa Secu-

24 rity Program established by the Secretary of Homeland

25 Security under section 428(e) of the Homeland Security

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1 Act of 2002 (Public Law 107–296): Provided further, That

2 such surcharges shall be 10 percent of the fee assessed

3 on immigrant visa applications.’’.

4

(b) REPAYMENT OF APPROPRIATED FUNDS.—Twen-

5 ty percent of the funds collected each fiscal year under

6 the heading ‘‘Diplomatic and Consular Programs’’ in the

7 Department of State and Related Agency Appropriations

8 Act, 2005 (title IV of division B of Public Law 108–447),

9 as amended by subsection (a), shall be deposited into the

10 general fund of the Treasury as repayment of funds ap-

11 propriated pursuant to section 407(c) of this Act until the

12 entire appropriated sum has been repaid.

13 SEC. 407. EXPEDITIOUS EXPANSION OF VISA SECURITY

14

PROGRAM TO HIGH-RISK POSTS.

15

(a) IN GENERAL.—Section 428(i) of the Homeland

16 Security Act of 2002 (6 U.S.C. 236(i)) is amended to read

17 as follows:

18

‘‘(i) VISA ISSUANCE AT DESIGNATED HIGH-RISK

19 POSTS.—Notwithstanding any other provision of law, the

20 Secretary of Homeland Security shall conduct an on-site

21 review of all visa applications and supporting documenta-

22 tion before adjudication at the top 30 visa-issuing posts

23 designated jointly by the Secretaries of State and Home-

24 land Security as high-risk posts.’’.

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1

(b) ASSIGNMENT OF PERSONNEL.—Not later than

2 one year after the date of enactment of this section, the

3 Secretary of Homeland Security shall assign personnel to

4 the visa-issuing posts referenced in section 428(i) of the

5 Homeland Security Act of 2002 (6 U.S.C. 236(i)), as

6 amended by this section, and communicate such assign-

7 ments to the Secretary of State.

8

(c) APPROPRIATIONS.—There is authorized to be ap-

9 propriated $60,000,000 for each of the fiscal years 2014

10 and 2015, which shall be used to expedite the implementa-

11 tion of section 428(i) of the Homeland Security Act, as

12 amended by this section.

13 SEC. 408. EXPEDITED CLEARANCE AND PLACEMENT OF DE-

14

PARTMENT OF HOMELAND SECURITY PER-

15

SONNEL AT OVERSEAS EMBASSIES AND CON-

16

SULAR POSTS.

17

Section 428 of the Homeland Security Act of 2002

18 (6 U.S.C. 236) is amended by adding at the end the fol-

19 lowing:

20

‘‘(j) EXPEDITED CLEARANCE AND PLACEMENT OF

21 DEPARTMENT OF HOMELAND SECURITY PERSONNEL AT

22 OVERSEAS EMBASSIES AND CONSULAR POSTS.—Notwith-

23 standing any other provision of law, and the processes set

24 forth in National Security Defense Directive 38 (dated

25 June 2, 1982) or any successor Directive, the Chief of

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1 Mission of a post to which the Secretary of Homeland Se-

2 curity has assigned personnel under subsection (e) or (i)

3 shall ensure, not later than one year after the date on

4 which the Secretary of Homeland Security communicates

5 such assignment to the Secretary of State, that such per-

6 sonnel have been stationed and accommodated at post and

7 are able to carry out their duties.’’.

8 SEC. 409. ACCREDITATION REQUIREMENTS.

9

(a) COLLEGES, UNIVERSITIES, AND LANGUAGE

10 TRAINING PROGRAMS.—Section 101(a) of the Immigra-

11 tion and Nationality Act (8 U.S.C. 1101(a)) is amended—

12

(1) in paragraph (15)(F)(i)—

13

(A) by striking ‘‘section 214(l) at an estab-

14

lished college, university, seminary, conserv-

15

atory, academic high school, elementary school,

16

or other academic institution or in an accred-

17

ited language training program in the United

18

States’’ and inserting ‘‘section 214(m) at an ac-

19

credited college, university, or language training

20

program, or at an established seminary, con-

21

servatory, academic high school, elementary

22

school, or other academic institution in the

23

United States’’;

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1

(B) by striking ‘‘Attorney General’’ each

2

place such term appears and inserting ‘‘Sec-

3

retary of Homeland Security’’; and

4

(C) by striking ‘‘and if any such institution

5

of learning or place of study fails to make re-

6

ports promptly the approval shall be with-

7

drawn,’’ and inserting ‘‘and if any such institu-

8

tion of learning of place of study fails to make

9

reports promptly or fails to comply with any ac-

10

creditation requirement (including deadlines for

11

submitting accreditation applications or obtain-

12

ing accreditation) the approval shall be with-

13

drawn,’’; and

14

(2) by amending paragraph (52) to read as fol-

15

lows:

16

‘‘(52) Except as provided in section 214(m)(4), the

17 term ‘accredited college, university, or language training

18 program’ means a college, university, or language training

19 program that is accredited by an accrediting agency recog-

20 nized by the Secretary of Education.’’.

21

(b) OTHER ACADEMIC INSTITUTIONS.—Section

22 214(m) of the Immigration and Nationality Act (8 U.S.C.

23 1184(m)) is amended by adding at the end the following:

24

‘‘(3) The Secretary of Homeland Security shall re-

25 quire accreditation of an academic institution (except for

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1 seminaries or other religious institutions) for purposes of

2 section 101(a)(15)(F) if—

3

‘‘(A) that institution is not already required to

4

be accredited under section 101(a)(15)(F)(i); and

5

‘‘(B) an appropriate accrediting agency recog-

6

nized by the Secretary of Education is able to pro-

7

vide such accreditation.

8

‘‘(4) The Secretary of Homeland Security, in the Sec-

9 retary’s discretion, may waive the accreditation require-

10 ment in paragraph (3) or section 101(a)(15)(F)(i) with

11 respect to an institution if such institution—

12

‘‘(A) is otherwise in compliance with the re-

13

quirements of section 101(a)(15)(F)(i); and

14

‘‘(B) has been a candidate for accreditation for

15

at least 1 year and continues to progress toward ac-

16

creditation by an accrediting agency recognized by

17

the Secretary of Education.’’.

18

(c) EFFECTIVE DATE.—

19

(1) IN GENERAL.—Except as provided in para-

20

graph (2), the amendments made by this section

21

shall—

22

(A) take effect on the date that is 180

23

days after the date of enactment of this Act;

24

and

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1

(B) apply with respect to applications for

2

nonimmigrant visas that are filed on or after

3

the effective date described in subparagraph

4

(A).

5

(2) TEMPORARY EXCEPTION.—During the 3-

6

year period beginning on the effective date described

7

in paragraph (1)(A), an institution that is newly re-

8

quired to be accredited under this section may con-

9

tinue to participate in the Student and Exchange

10

Visitor Program notwithstanding the institution’s

11

lack of accreditation if the institution—

12

(A) was certified under the Student and

13

Exchange Visitor Program on such date;

14

(B) submitted an application for accredita-

15

tion to an accrediting agency recognized by the

16

Secretary of Education during the 6-month pe-

17

riod ending on such date; and

18

(C) continues to progress toward accredita-

19

tion by such accrediting agency.

20 SEC. 410. VISA FRAUD.

21

(a) TEMPORARY SUSPENSION OF SEVIS ACCESS.—

22 Section 641(d) of the Illegal Immigration Reform and Im-

23 migrant Responsibility Act of 1996 (8 U.S.C. 1372(d)) is

24 amended—

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1

(1) in paragraph (1)(A), by striking ‘‘institu-

2

tion,,’’ and inserting ‘‘institution,’’; and

3

(2) by adding at the end the following:

4

‘‘(3) EFFECT OF REASONABLE SUSPICION OF

5

FRAUD.—If the Secretary of Homeland Security has

6

reasonable suspicion that an owner of, or a des-

7

ignated school official at, an approved institution of

8

higher education, an other approved educational in-

9

stitution, or a designated exchange visitor program

10

has committed fraud or attempted to commit fraud

11

relating to any aspect of the Student and Exchange

12

Visitor Program, the Secretary may immediately

13

suspend, without notice, such official’s or such

14

school’s access to the Student and Exchange Visitor

15

Information System (SEVIS), including the ability

16

to issue Form I–20s, pending a final determination

17

by the Secretary with respect to the institution’s cer-

18

tification under the Student and Exchange Visitor

19

Program.’’.

20

(b) EFFECT OF CONVICTION FOR VISA FRAUD.—

21 Such section 641(d), as amended by subsection (a)(2), is

22 further amended by adding at the end the following:

23

‘‘(4) PERMANENT DISQUALIFICATION FOR

24

FRAUD.—A designated school official at, or an owner

25

of, an approved institution of higher education, an

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1

other approved educational institution, or a des-

2

ignated exchange visitor program who is convicted

3

for fraud relating to any aspect of the Student and

4

Exchange Visitor Program shall be permanently dis-

5

qualified from filing future petitions and from hav-

6

ing an ownership interest or a management role, in-

7

cluding serving as a principal, owner, officer, board

8

member, general partner, designated school official,

9

or any other position of substantive authority for the

10

operations or management of the institution, in any

11

United States educational institution that enrolls

12

nonimmigrant alien students described in subpara-

13

graph (F) or (M) of section 101(a)(15) the Immi-

14

gration and Nationality Act (8 U.S.C.

15

1101(a)(15)).’’.

16 SEC. 411. BACKGROUND CHECKS.

17

(a) IN GENERAL.—Section 641(d) of the Illegal Im-

18 migration Reform and Immigrant Responsibility Act of

19 1996 (8 U.S.C. 1372(d)), as amended by section 411(b)

20 of this Act, is further amended by adding at the end the

21 following:

22

‘‘(5) BACKGROUND CHECK REQUIREMENT.—

23

‘‘(A) IN GENERAL.—An individual may not

24

serve as a designated school official or be grant-

25

ed access to SEVIS unless the individual is a

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1

national of the United States or an alien law-

2

fully admitted for permanent residence and dur-

3

ing the most recent 3-year period—

4

‘‘(i) the Secretary of Homeland Secu-

5

rity has—

6

‘‘(I) conducted a thorough back-

7

ground check on the individual, in-

8

cluding a review of the individual’s

9

criminal and sex offender history and

10

the verification of the individual’s im-

11

migration status; and

12

‘‘(II) determined that the indi-

13

vidual has not been convicted of any

14

violation of United States immigration

15

law and is not a risk to national secu-

16

rity of the United States; and

17

‘‘(ii) the individual has successfully

18

completed an on-line training course on

19

SEVP and SEVIS, which has been devel-

20

oped by the Secretary.

21

‘‘(B) INTERIM DESIGNATED SCHOOL OFFI-

22

CIAL.—

23

‘‘(i) IN GENERAL.—An individual may

24

serve as an interim designated school offi-

25

cial during the period that the Secretary is

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1

conducting the background check required

2

by subparagraph (A)(i)(I).

3

‘‘(ii) REVIEWS BY THE SECRETARY.—

4

If an individual serving as an interim des-

5

ignated school official under clause (i) does

6

not successfully complete the background

7

check required by subparagraph (A)(i)(I),

8

the Secretary shall review each Form I–20

9

issued by such interim designated school

10

official.

11

‘‘(6) FEE.—The Secretary is authorized to col-

12

lect a fee from an approved school for each back-

13

ground check conducted under paragraph (6)(A)(i).

14

The amount of such fee shall be equal to the average

15

amount expended by the Secretary to conduct such

16

background checks.’’.

17

(b) EFFECTIVE DATE.—The amendment made by

18 subsection (a) shall take effect on the date that is 1 year

19 after the date of the enactment of this Act.

20 SEC. 412. NUMBER OF DESIGNATED SCHOOL OFFICIALS.

21

Section 641(d) of the Illegal Immigration Reform and

22 Immigrant Responsibility Act of 1996 (8 U.S.C. 1372(d)),

23 as amended by section 412(a) of this Act, is further

24 amended by adding at the end the following:

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1

‘‘(7) NUMBER OF DESIGNATED SCHOOL OFFI-

2

CIALS.—School officials may nominate as many Des-

3

ignated School Officials (DSOs) in addition to the

4

school’s Principal Designated School Official

5

(PDSO) as they determine necessary to adequately

6

provide recommendations to students enrolled at the

7

school regarding maintenance of nonimmigrant sta-

8

tus under subparagraph (F) or (M) of section

9

101(a)(15) and to support timely and complete rec-

10

ordkeeping and reporting to the Secretary of Home-

11

land Security, as required by this section, except

12

that a school may not have less than one DSO per

13

every 200 students who have nonimmigrant status

14

pursuant to subparagraph (F), (J), or (M) of such

15

section. School officials shall not permit a DSO or

16

PDSO nominee access to SEVIS until the Secretary

17

approves the nomination.’’.

18 SEC. 413. REPORTING REQUIREMENT.

19

Section 442(a) of the Homeland Security Act of 2002

20 (6 U.S.C. 252(a)) is amended—

21

(1) by redesignating paragraph (5) as para-

22

graph (6); and

23

(2) by inserting after paragraph (4) the fol-

24

lowing:

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1

‘‘(5) STUDENT AND EXCHANGE VISITOR PRO-

2

GRAM.—In administering the program under para-

3

graph (4), the Secretary shall, not later than one

4

year after the date of the enactment of this para-

5

graph, prescribe regulations to require an institution

6

or exchange visitor program sponsor participating in

7

the Student Exchange Visitor Program to ensure

8

that each student or exchange visitor who has non-

9

immigrant status pursuant to subparagraph (F),

10

(J), or (M) of section 101(a)(15) of the Immigration

11

and Nationality Act (8 U.S.C. 1101(a)(15)) enrolled

12

at the institution or attending the exchange visitor

13

program is reported to the Department within 10

14

days of—

15

‘‘(A) transferring to another institution or

16

program;

17

‘‘(B) changing academic majors; or

18

‘‘(C) any other changes to information re-

19

quired to be maintained in the system described

20

in paragraph (4).’’.

21 SEC. 414. FLIGHT SCHOOLS NOT CERTIFIED BY FAA.

22

(a) IN GENERAL.—Except as provided in subsection

23 (b), the Secretary of Homeland Security shall prohibit any

24 flight school in the United States from accessing SEVIS

25 or issuing a Form I–20 to an alien seeking a student visa

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1 pursuant to subparagraph (F)(i) or (M)(i) of section

2 101(a)(15) of the Immigration and Nationality Act (8

3 U.S.C. 1101(a)(15)) if the flight school has not been cer-

4 tified to the satisfaction of the Secretary and by the Fed-

5 eral Aviation Administration pursuant to part 141 or part

6 142 of title 14, Code of Federal Regulations (or similar

7 successor regulations).

8

(b) TEMPORARY EXCEPTION.—During the 5-year pe-

9 riod beginning on the date of the enactment of this Act,

10 the Secretary may waive the requirement under subsection

11 (a) that a flight school be certified by the Federal Aviation

12 Administration if such flight school—

13

(1) was certified under the Student and Ex-

14

change Visitor Program on the date of the enact-

15

ment of this Act;

16

(2) submitted an application for certification

17

with the Federal Aviation Administration during the

18

1-year period beginning on such date; and

19

(3) continues to progress toward certification by

20

the Federal Aviation Administration.

21 SEC. 415. REVOCATION OF ACCREDITATION.

22

At the time an accrediting agency or association is

23 required to notify the Secretary of Education and the ap-

24 propriate State licensing or authorizing agency of the final

25 denial, withdrawal, suspension, or termination of accredi-

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1 tation of an institution pursuant to section 496 of the

2 Higher Education Act of 1965 (20 U.S.C. 1099b), such

3 accrediting agency or association shall notify the Secretary

4 of Homeland Security of such determination and the Sec-

5 retary of Homeland Security shall immediately withdraw

6 the school from the SEVP and prohibit the school from

7 accessing SEVIS.

8 SEC. 416. REPORT ON RISK ASSESSMENT.

9

Not later than 180 days after the date of the enact-

10 ment of this Act, the Secretary of Homeland Security shall

11 submit to the Committee on the Judiciary of the Senate

12 and the Committee on the Judiciary of the House of Rep-

13 resentatives a report that contains the risk assessment

14 strategy that will be employed by the Secretary to identify,

15 investigate, and take appropriate action against schools

16 and school officials that are facilitating the issuance of

17 Form I–20 and the maintenance of student visa status

18 in violation of the immigration laws of the United States.

19 SEC. 417. IMPLEMENTATION OF GAO RECOMMENDATIONS.

20

Not later than 180 days after the date of the enact-

21 ment of this act, the Secretary of Homeland Security shall

22 submit to the Committee on the Judiciary of the Senate

23 and the Committee on the Judiciary of the House of Rep-

24 resentatives a report that describes—

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1

(1) the process in place to identify and assess

2

risks in the SEVP;

3

(2) a risk assessment process to allocate

4

SEVP’s resources based on risk;

5

(3) the procedures in place for consistently en-

6

suring a school’s eligibility, including consistently

7

verifying in lieu of letters;

8

(4) how SEVP identified and addressed missing

9

school case files;

10

(5) a plan to develop and implement a process

11

to monitor State licensing and accreditation status

12

of all SEVP-certified schools;

13

(6) whether all flight schools that have not been

14

certified to the satisfaction of the Secretary and by

15

the Federal Aviation Administration have been re-

16

moved from the program and have been restricted

17

from accessing SEVIS;

18

(7) the standard operating procedures that gov-

19

ern coordination among SEVP, Counterterrorism

20

and Criminal Exploitation Unit, and U.S. Immigra-

21

tion and Customs Enforcement field offices; and

22

(8) the established criteria for referring cases of

23

a potentially criminal nature from SEVP to the

24

counterterrorism and intelligence community.

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140 1 SEC. 418. IMPLEMENTATION OF SEVIS II.

2

Not later than 2 years after the date of the enact-

3 ment of this Act, the Secretary of Homeland Security shall

4 complete the deployment of both phases of the 2nd genera-

5 tion Student and Exchange Visitor Information System

6 (commonly known as ‘‘SEVIS II’’).

7 SEC. 419. DEFINITIONS.

8

(a) DEFINITIONS.—For purposes of this title:

9

(1) SEVIS.—The term ‘‘SEVIS’’ means the

10

Student and Exchange Visitor Information System

11

of the Department of Homeland Security.

12

(2) SEVP.—The term ‘‘SEVP’’ means the Stu-

13

dent and Exchange Visitor Program of the Depart-

14

ment of Homeland Security.

15 TITLE V—AID TO U.S. IMMIGRA-

16 TION AND CUSTOMS EN-

17 FORCEMENT OFFICERS

18 SEC. 501. ICE IMMIGRATION ENFORCEMENT AGENTS.

19

(a) IN GENERAL.—The Secretary of Homeland Secu-

20 rity shall authorize all immigration enforcement agents

21 and deportation officers of the Department of Homeland

22 Security who have successfully completed basic immigra-

23 tion law enforcement training to exercise the powers con-

24 ferred by—

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1

(1) section 287(a)(5)(A) of the Immigration

2

and Nationality Act to arrest for any offense against

3

the United States;

4

(2) section 287(a)(5)(B) of such Act to arrest

5

for any felony;

6

(3) section 274(a) of such Act to arrest for

7

bringing in, transporting, or harboring certain

8

aliens, or inducing them to enter;

9

(4) section 287(a) of such Act to execute war-

10

rants of arrest for administrative immigration viola-

11

tions issued under section 236 of the Act or to exe-

12

cute warrants of criminal arrest issued under the

13

authority of the United States; and

14

(5) section 287(a) of such Act to carry fire-

15

arms, provided that they are individually qualified by

16

training and experience to handle and safely operate

17

the firearms they are permitted to carry, maintain

18

proficiency in the use of such firearms, and adhere

19

to the provisions of the enforcement standard gov-

20

erning the use of force.

21

(b) ARREST POWERS.—Section 287(a)(2) of the Im-

22 migration and Nationality Act (8 U.S.C. 1357(a)(2)) is

23 amended by striking ‘‘regulation and is likely to escape

24 before a warrant can be obtained for his arrest,’’ and in-

25 serting ‘‘regulation,’’.

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1

(c) PAY.—Immigration enforcement agents shall be

2 paid on the same scale as Immigration and Customs En-

3 forcement deportation officers and shall receive the same

4 benefits.

5 SEC. 502. ICE DETENTION ENFORCEMENT OFFICERS.

6

(a) AUTHORIZATION.—The Secretary of Homeland

7 Security is authorized to hire 2,500 Immigration and Cus-

8 toms Enforcement detention enforcement officers.

9

(b) DUTIES.—Immigration and Customs Enforce-

10 ment detention enforcement officers who have successfully

11 completed detention enforcement officers’ basic training

12 shall be responsible for—

13

(1) taking and maintaining custody of any per-

14

son who has been arrested by an immigration offi-

15

cer;

16

(2) transporting and guarding immigration de-

17

tainees;

18

(3) securing Department of Homeland Security

19

detention facilities; and

20

(4) assisting in the processing of detainees.

21 SEC. 503. ENSURING THE SAFETY OF ICE OFFICERS AND

22

AGENTS.

23

(a) BODY ARMOR.—The Secretary of Homeland Se-

24 curity shall ensure that every Immigration and Customs

25 Enforcement deportation officer and immigration enforce-

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1 ment agent on duty is issued high-quality body armor that

2 is appropriate for the climate and risks faced by the agent.

3 Enough body armor must be purchased to cover every

4 agent in the field.

5

(b) WEAPONS.—Such Secretary shall ensure that Im-

6 migration and Customs Enforcement deportation officers

7 and immigration enforcement agents are equipped with

8 weapons that are reliable and effective to protect them-

9 selves, their fellow agents, and innocent third parties from

10 the threats posed by armed criminals. Such weapons shall

11 include, at a minimum, standard-issue handguns, M–4 (or

12 equivalent) rifles, and Tasers.

13

(c) EFFECTIVE DATE.—This section shall take effect

14 90 days after the date of the enactment of this Act.

15 SEC. 504. ICE ADVISORY COUNCIL.

16

(a) ESTABLISHMENT.—An ICE Advisory Council

17 shall be established not later than 3 months after the date

18 of the enactment of this Act.

19

(b) MEMBERSHIP.—The ICE Advisor Council shall

20 be comprised of 7 members.

21

(c) APPOINTMENT.—Members shall to be appointed

22 in the following manner:

23

(1) One member shall be appointed by the

24

President.

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1

(2) One member shall be appointed by the

2

Chairman of the Judiciary Committee of the House

3

of Representatives.

4

(3) One member shall be appointed by the

5

Chairman of the Judiciary Committee of the Senate.

6

(4) One member shall be appointed by the

7

Local 511, the ICE prosecutor’s union.

8

(5) Three members shall be appointed by the

9

National Immigration and Customs Enforcement

10

Council.

11

(d) TERM.—Members shall serve renewable, 2-year

12 terms.

13

(e) VOLUNTARY.—Membership shall be voluntary and

14 non-remunerated, except that members will receive reim-

15 bursement from the Secretary of Homeland Security for

16 travel and other related expenses.

17

(f) RETALIATION PROTECTION.—Members who are

18 employed by the Secretary of Homeland Security shall be

19 protected from retaliation by their supervisors, managers,

20 and other Department of Homeland Security employees

21 for their participation on the Council.

22

(g) PURPOSE.—The purpose of the Council is to ad-

23 vise the Congress and the Secretary of Homeland Security

24 on issues including the following:

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1

(1) The current status of immigration enforce-

2

ment efforts, including prosecutions and removals,

3

the effectiveness of such efforts, and how enforce-

4

ment could be improved.

5

(2) The effectiveness of cooperative efforts be-

6

tween the Secretary of Homeland Security and other

7

law enforcement agencies, including additional types

8

of enforcement activities that the Secretary should

9

be engaged in, such as State and local criminal task

10

forces.

11

(3) Personnel, equipment, and other resource

12

needs of field personnel.

13

(4) Improvements that should be made to the

14

organizational structure of the Department of

15

Homeland Security, including whether the position

16

of immigration enforcement agent should be merged

17

into the deportation officer position.

18

(5) The effectiveness of specific enforcement

19

policies and regulations promulgated by the Sec-

20

retary of Homeland Security, and whether other en-

21

forcement priorities should be considered.

22

(h) REPORTS.—The Council shall provide quarterly

23 reports to the Chairmen and Ranking Members of the Ju-

24 diciary Committees of the Senate and the House of Rep-

25 resentatives and to the Secretary of Homeland Security.

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1 The Council members shall meet directly with the Chair-

2 men and Ranking Members (or their designated represent-

3 atives) and with the Secretary to discuss their reports

4 every 6 months.

5 SEC. 505. PILOT PROGRAM FOR ELECTRONIC FIELD PROC-

6

ESSING.

7

(a) IN GENERAL.—The Secretary of Homeland Secu-

8 rity shall establish a pilot program in at least five of the

9 ten Immigration and Customs Enforcement field offices

10 with the largest removal caseloads to allow Immigration

11 and Customs deportation officers and immigration en-

12 forcement agents to—

13

(1) electronically process and serve charging

14

documents, including Notices to Appear, while in the

15

field; and

16

(2) electronically process and place detainers

17

while in the field.

18

(b) DUTIES.—The pilot program described in sub-

19 section (a) shall be designed to allow deportation officers

20 and immigration enforcement agents to use handheld or

21 vehicle-mounted computers to—

22

(1) enter any required data, including personal

23

information about the alien subject and the reason

24

for issuing the document;

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1

(2) apply the electronic signature of the issuing

2

officer or agent;

3

(3) set the date the alien is required to appear

4

before an immigration judge, in the case of Notices

5

to Appear;

6

(4) print any documents the alien subject may

7

be required to sign, along with additional copies of

8

documents to be served on the alien; and

9

(5) interface with the ENFORCE database so

10

that all data is stored and retrievable.

11

(c) CONSTRUCTION.—The pilot program described in

12 subsection (a) shall be designed to replace, to the extent

13 possible, the current paperwork and data-entry process

14 used for issuing such charging documents and detainers.

15

(d) DEADLINE.—The Secretary shall initiate the pilot

16 program described in subsection (a) within 6 months of

17 the date of enactment of this Act.

18

(e) REPORT.—The Government Accountability Office

19 shall report to the Judiciary Committee of the Senate and

20 the House of Representatives no later than 18 months

21 after the date of enactment of this Act on the effectiveness

22 of the pilot program and provide recommendations for im-

23 proving it.

24

(f) ADVISORY COUNCIL.—The ICE Advisory Council

25 established by section 504 shall include recommendations

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1 on how the pilot program should work in the first quar-

2 terly report of the Council, and shall include assessments

3 of the program and recommendations for improvement in

4 each subsequent report.

5

(g) EFFECTIVE DATE.—This section shall take effect

6 180 days after the date of the enactment of this Act.

7 SEC. 506. ADDITIONAL ICE DEPORTATION OFFICERS AND

8

SUPPORT STAFF.

9

(a) IN GENERAL.—The Secretary of Homeland Secu-

10 rity shall, subject to the availability of appropriations for

11 such purpose, increase the number of positions for full-

12 time active-duty Immigration and Customs Enforcement

13 deportation officers by 5,000 above the number of full-

14 time positions for which funds were appropriated for fiscal

15 year 2013. The Secretary will determine the rate at which

16 the additional officers will be added with due regard to

17 filling the positions as expeditiously as possible without

18 making any compromises in the selection or the training

19 of the additional officers.

20

(b) SUPPORT STAFF.—The Secretary shall, subject

21 to the availability of appropriations for such purpose, in-

22 crease the number of positions for full-time support staff

23 for Immigration and Customs Enforcement deportation

24 officers by 700 above the number of full-time positions for

25 which funds were appropriated for fiscal year 2013.

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149 1 SEC. 507. ADDITIONAL ICE PROSECUTORS.

2

The Secretary of Homeland Security shall increase

3 by 60 the number of full-time trial attorneys working for

4 the Immigration and Customs Enforcement Office of the

5 Principal Legal Advisor.
6 TITLE VI—MISCELLANEOUS 7 ENFORCEMENT PROVISIONS

8 SEC. 601. TIMELY REPATRIATION.

9

(a) LISTING OF COUNTRIES.—Beginning on the date

10 that is 6 months after the date of enactment of this Act,

11 and every 6 months thereafter, the Secretary of Homeland

12 Security shall publish a report including the following:

13

(1) A list of the following:

14

(A) Countries that have refused or unrea-

15

sonably delayed repatriation of an alien who is

16

a national of that country since the date of en-

17

actment of this Act and the total number of

18

such aliens, disaggregated by nationality.

19

(B) Countries that have an excessive repa-

20

triation failure rate.

21

(2) A list of each country that was included

22

under subparagraph (B) or (C) of paragraph (1) in

23

both the report preceding the current report and the

24

current report.

25

(b) SANCTIONS.—Beginning on the date that a coun-

26 try is included in a list under subsection (a)(2) and ending

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1 on the date that that country is not included in such list,

2 that country shall be subject to the following:

3

(1) The Secretary of State may not issue visas

4

under section 101(a)(15)(A)(iii) of the Immigration

5

and Nationality Act (8 U.S.C. 1101(a)(15)(A)(iii))

6

to attendants, servants, personal employees, and

7

members of their immediate families, of the officials

8

and employees of that country who receive non-

9

immigrant status under clause (i) or (ii) of section

10

101(a)(15)(A) of such Act.

11

(2) Each 6 months thereafter that the country

12

is included in that list, the Secretary of State shall

13

reduce the number of visas available under clause (i)

14

or (ii) of section 101(a)(15)(A) of the Immigration

15

and Nationality Act in a fiscal year to nationals of

16

that country by an amount equal to 10 percent of

17

the baseline visa number for that country. Except as

18

provided under section 243(d) of the Immigration

19

and Nationality Act (8 U.S.C. 1253), the Secretary

20

may not reduce the number to a level below 20 per-

21

cent of the baseline visa number.

22

(c) WAIVERS.—

23

(1) NATIONAL SECURITY WAIVER.—If the Sec-

24

retary of State submits to Congress a written deter-

25

mination that significant national security interests

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1

of the United States require a waiver of the sanc-

2

tions under subsection (b), the Secretary may waive

3

any reduction below 80 percent of the baseline visa

4

number. The Secretary of Homeland Security may

5

not delegate the authority under this subsection.

6

(2) TEMPORARY EXIGENT CIRCUMSTANCES.—If

7

the Secretary of State submits to Congress a written

8

determination that temporary exigent circumstances

9

require a waiver of the sanctions under subsection

10

(b), the Secretary may waive any reduction below 80

11

percent of the baseline visa number during 6-month

12

renewable periods. The Secretary of Homeland Secu-

13

rity may not delegate the authority under this sub-

14

section.

15

(d) EXEMPTION.—The Secretary of Homeland Secu-

16 rity, in consultation with the Secretary of State, may ex-

17 empt a country from inclusion in a list under subsection

18 (a)(2) if the total number of nonrepatriations outstanding

19 is less than 10 for the preceding 3-year period.

20

(e) UNAUTHORIZED VISA ISSUANCE.—Any visa

21 issued in violation of this section shall be void.

22

(f) NOTICE.—If an alien who has been convicted of

23 a criminal offense before a Federal or State court whose

24 repatriation was refused or unreasonably delayed is to be

25 released from detention by the Secretary of Homeland Se-

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1 curity, the Secretary shall provide notice to the State and

2 local law enforcement agency for the jurisdictions in which

3 the alien is required to report or is to be released. When

4 possible, and particularly in the case of violent crime, the

5 Secretary shall make a reasonable effort to provide notice

6 of such release to any crime victims and their immediate

7 family members.

8

(g) DEFINITIONS.—For purposes of this section:

9

(1) REFUSED OR UNREASONABLY DELAYED.—

10

A country is deemed to have refused or unreasonably

11

delayed the acceptance of an alien who is a citizen,

12

subject, national, or resident of that country if, not

13

later than 90 days after receiving a request to repa-

14

triate such alien from an official of the United

15

States who is authorized to make such a request, the

16

country does not accept the alien or issue valid trav-

17

el documents.

18

(2) FAILURE RATE.—The term ‘‘failure rate’’

19

for a period means the percentage determined by di-

20

viding the total number of repatriation requests for

21

aliens who are citizens, subjects, nationals, or resi-

22

dents of a country that that country refused or un-

23

reasonably delayed during that period by the total

24

number of such requests during that period.

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1

(3) EXCESSIVE REPATRIATION FAILURE

2

RATE.—The term ‘‘excessive repatriation failure

3

rate’’ means, with respect to a report under sub-

4

section (a), a failure rate greater than 10 percent

5

for any of the following:

6

(A) The period of the 3 full fiscal years

7

preceding the date of publication of the report.

8

(B) The period of 1 year preceding the

9

date of publication of the report.

10

(4) NUMBER OF NON-REPATRIATIONS OUT-

11

STANDING.—The term ‘‘number of non-repatriations

12

outstanding’’ means, for a period, the number of

13

unique aliens whose repatriation a country has re-

14

fused or unreasonably delayed and whose repatri-

15

ation has not occurred during that period.

16

(5) BASELINE VISA NUMBER.—The term ‘‘base-

17

line visa number’’ means, with respect to a country,

18

the average number of visas issued each fiscal year

19

to nationals of that country under clauses (i) and

20

(ii) of section 101(a)(15)(A) of the Immigration and

21

Nationality Act (8 U.S.C. 1101(a)(15)(A)) for the 3

22

full fiscal years immediately preceding the first re-

23

port under subsection (a) in which that country is

24

included in the list under subsection (a)(2).

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1

(h) GAO REPORT.—On the date that is 1 day after

2 the date that the President submits a budget under sec-

3 tion 1105(a) of title 31, United States Code, for fiscal year

4 2016, the Comptroller General of the United States shall

5 submit a report to Congress regarding the progress of the

6 Secretary of Homeland Security and the Secretary of

7 State in implementation of this section and in making re-

8 quests to repatriate aliens as appropriate.

9 SEC. 602. ENCOURAGING ALIENS TO DEPART VOLUN-

10

TARILY.

11

(a) IN GENERAL.—Section 240B of the Immigration

12 and Nationality Act (8 U.S.C. 1229c) is amended—

13

(1) in subsection (a)—

14

(A) by amending paragraph (1) to read as

15

follows:

16

‘‘(1) INSTEAD OF REMOVAL PROCEEDINGS.—If

17

an alien is not described in paragraph (2)(A)(iii) or

18

(4) of section 237(a), the Secretary of Homeland Se-

19

curity may permit the alien to voluntarily depart the

20

United States at the alien’s own expense under this

21

subsection instead of being subject to proceedings

22

under section 240.’’;

23

(B) by striking paragraph (3);

24

(C) by redesignating paragraph (2) as

25

paragraph (3);

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1

(D) by adding after paragraph (1) the fol-

2

lowing:

3

‘‘(2) BEFORE THE CONCLUSION OF REMOVAL

4

PROCEEDINGS.—If an alien is not described in para-

5

graph (2)(A)(iii) or (4) of section 237(a), the Attor-

6

ney General may permit the alien to voluntarily de-

7

part the United States at the alien’s own expense

8

under this subsection after the initiation of removal

9

proceedings under section 240 and before the con-

10

clusion of such proceedings before an immigration

11

judge.’’;

12

(E) in paragraph (3), as redesignated—

13

(i) by amending subparagraph (A) to

14

read as follows:

15

‘‘(A) INSTEAD OF REMOVAL.—Subject to

16

subparagraph (C), permission to voluntarily de-

17

part under paragraph (1) shall not be valid for

18

any period in excess of 120 days. The Secretary

19

may require an alien permitted to voluntarily

20

depart under paragraph (1) to post a voluntary

21

departure bond, to be surrendered upon proof

22

that the alien has departed the United States

23

within the time specified.’’;

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1

(ii) by redesignating subparagraphs

2

(B), (C), and (D) as subparagraphs (C),

3

(D), and (E), respectively;

4

(iii) by adding after subparagraph (A)

5

the following:

6

‘‘(B) BEFORE THE CONCLUSION OF RE-

7

MOVAL PROCEEDINGS.—Permission to volun-

8

tarily depart under paragraph (2) shall not be

9

valid for any period in excess of 60 days, and

10

may be granted only after a finding that the

11

alien has the means to depart the United States

12

and intends to do so. An alien permitted to vol-

13

untarily depart under paragraph (2) shall post

14

a voluntary departure bond, in an amount nec-

15

essary to ensure that the alien will depart, to be

16

surrendered upon proof that the alien has de-

17

parted the United States within the time speci-

18

fied. An immigration judge may waive the re-

19

quirement to post a voluntary departure bond

20

in individual cases upon a finding that the alien

21

has presented compelling evidence that the

22

posting of a bond will pose a serious financial

23

hardship and the alien has presented credible

24

evidence that such a bond is unnecessary to

25

guarantee timely departure.’’;

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1

(iv) in subparagraph (C), as redesig-

2

nated, by striking ‘‘subparagraphs (C) and

3

(D)(ii)’’ and inserting ‘‘subparagraphs (D)

4

and (E)(ii)’’;

5

(v) in subparagraph (D), as redesig-

6

nated, by striking ‘‘subparagraph (B)’’

7

each place that term appears and inserting

8

‘‘subparagraph (C)’’; and

9

(vi) in subparagraph (E), as redesig-

10

nated, by striking ‘‘subparagraph (B)’’

11

each place that term appears and inserting

12

‘‘subparagraph (C)’’; and

13

(F) in paragraph (4), by striking ‘‘para-

14

graph (1)’’ and inserting ‘‘paragraphs (1) and

15

(2)’’;

16

(2) in subsection (b)(2), by striking ‘‘a period

17

exceeding 60 days’’ and inserting ‘‘any period in ex-

18

cess of 45 days’’;

19

(3) by amending subsection (c) to read as fol-

20

lows:

21

‘‘(c) CONDITIONS ON VOLUNTARY DEPARTURE.—

22

‘‘(1) VOLUNTARY DEPARTURE AGREEMENT.—

23

Voluntary departure may only be granted as part of

24

an affirmative agreement by the alien. A voluntary

25

departure agreement under subsection (b) shall in-

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1

clude a waiver of the right to any further motion,

2

appeal, application, petition, or petition for review

3

relating to removal or relief or protection from re-

4

moval.

5

‘‘(2) CONCESSIONS BY THE SECRETARY.—In

6

connection with the alien’s agreement to depart vol-

7

untarily under paragraph (1), the Secretary of

8

Homeland Security may agree to a reduction in the

9

period of inadmissibility under subparagraph (A) or

10

(B)(i) of section 212(a)(9).

11

‘‘(3) ADVISALS.—Agreements relating to vol-

12

untary departure granted during removal pro-

13

ceedings under section 240, or at the conclusion of

14

such proceedings, shall be presented on the record

15

before the immigration judge. The immigration

16

judge shall advise the alien of the consequences of

17

a voluntary departure agreement before accepting

18

such agreement.

19

‘‘(4) FAILURE TO COMPLY WITH AGREE-

20

MENT.—

21

‘‘(A) IN GENERAL.—If an alien agrees to

22

voluntary departure under this section and fails

23

to depart the United States within the time al-

24

lowed for voluntary departure or fails to comply

25

with any other terms of the agreement (includ-

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1

ing failure to timely post any required bond),

2

the alien is—

3

‘‘(i) ineligible for the benefits of the

4

agreement;

5

‘‘(ii) subject to the penalties described

6

in subsection (d); and

7

‘‘(iii) subject to an alternate order of

8

removal if voluntary departure was granted

9

under subsection (a)(2) or (b).

10

‘‘(B) EFFECT OF FILING TIMELY AP-

11

PEAL.—If, after agreeing to voluntary depar-

12

ture, the alien files a timely appeal of the immi-

13

gration judge’s decision granting voluntary de-

14

parture, the alien may pursue the appeal in-

15

stead of the voluntary departure agreement.

16

Such appeal operates to void the alien’s vol-

17

untary departure agreement and the con-

18

sequences of such agreement, but precludes the

19

alien from another grant of voluntary departure

20

while the alien remains in the United States.

21

‘‘(5) VOLUNTARY DEPARTURE PERIOD NOT AF-

22

FECTED.—Except as expressly agreed to by the Sec-

23

retary in writing in the exercise of the Secretary’s

24

discretion before the expiration of the period allowed

25

for voluntary departure, no motion, appeal, applica-

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1

tion, petition, or petition for review shall affect, rein-

2

state, enjoin, delay, stay, or toll the alien’s obligation

3

to depart from the United States during the period

4

agreed to by the alien and the Secretary.’’;

5

(4) by amending subsection (d) to read as fol-

6

lows:

7

‘‘(d) PENALTIES FOR FAILURE TO DEPART.—If an

8 alien is permitted to voluntarily depart under this section

9 and fails to voluntarily depart from the United States

10 within the time period specified or otherwise violates the

11 terms of a voluntary departure agreement, the alien will

12 be subject to the following penalties:

13

‘‘(1) CIVIL PENALTY.—The alien shall be liable

14

for a civil penalty of $3,000. The order allowing vol-

15

untary departure shall specify this amount, which

16

shall be acknowledged by the alien on the record. If

17

the Secretary thereafter establishes that the alien

18

failed to depart voluntarily within the time allowed,

19

no further procedure will be necessary to establish

20

the amount of the penalty, and the Secretary may

21

collect the civil penalty at any time thereafter and

22

by whatever means provided by law. An alien will be

23

ineligible for any benefits under this chapter until

24

this civil penalty is paid.

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1

‘‘(2) INELIGIBILITY FOR RELIEF.—The alien

2

shall be ineligible during the time the alien remains

3

in the United States and for a period of 10 years

4

after the alien’s departure for any further relief

5

under this section and sections 240A, 245, 248, and

6

249. The order permitting the alien to depart volun-

7

tarily shall inform the alien of the penalties under

8

this subsection.

9

‘‘(3) REOPENING.—The alien shall be ineligible

10

to reopen the final order of removal that took effect

11

upon the alien’s failure to depart, or upon the alien’s

12

other violations of the conditions for voluntary de-

13

parture, during the period described in paragraph

14

(2). This paragraph does not preclude a motion to

15

reopen to seek withholding of removal under section

16

241(b)(3) or protection against torture, if the mo-

17

tion—

18

‘‘(A) presents material evidence of changed

19

country conditions arising after the date of the

20

order granting voluntary departure in the coun-

21

try to which the alien would be removed; and

22

‘‘(B) makes a sufficient showing to the sat-

23

isfaction of the Attorney General that the alien

24

is otherwise eligible for such protection.’’;

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1

(5) by amending subsection (e) to read as fol-

2

lows:

3

‘‘(e) ELIGIBILITY.—

4

‘‘(1) PRIOR GRANT OF VOLUNTARY DEPAR-

5

TURE.—An alien shall not be permitted to volun-

6

tarily depart under this section if the Secretary of

7

Homeland Security or the Attorney General pre-

8

viously permitted the alien to depart voluntarily.

9

‘‘(2) RULEMAKING.—The Secretary may pro-

10

mulgate regulations to limit eligibility or impose ad-

11

ditional conditions for voluntary departure under

12

subsection (a)(1) for any class of aliens. The Sec-

13

retary or Attorney General may by regulation limit

14

eligibility or impose additional conditions for vol-

15

untary departure under subsections (a)(2) or (b) of

16

this section for any class or classes of aliens.’’; and

17

(6) in subsection (f), by adding at the end the

18

following: ‘‘Notwithstanding section 242(a)(2)(D) of

19

this Act, sections 1361, 1651, and 2241 of title 28,

20

United States Code, any other habeas corpus provi-

21

sion, and any other provision of law (statutory or

22

nonstatutory), no court shall have jurisdiction to af-

23

fect, reinstate, enjoin, delay, stay, or toll the period

24

allowed for voluntary departure under this section.’’.

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1

(b) RULEMAKING.—The Secretary shall within one

2 year of the date of enactment of this Act promulgate regu-

3 lations to provide for the imposition and collection of pen-

4 alties for failure to depart under section 240B(d) of the

5 Immigration and Nationality Act (8 U.S.C. 1229c(d)).

6

(c) EFFECTIVE DATES.—

7

(1) IN GENERAL.—Except as provided in para-

8

graph (2), the amendments made by this section

9

shall apply with respect to all orders granting vol-

10

untary departure under section 240B of the Immi-

11

gration and Nationality Act (8 U.S.C. 1229c) made

12

on or after the date that is 180 days after the enact-

13

ment of this Act.

14

(2) EXCEPTION.—The amendment made by

15

subsection (a)(6) shall take effect on the date of the

16

enactment of this Act and shall apply with respect

17

to any petition for review which is filed on or after

18

such date.

19 SEC. 603. DETERRING ALIENS ORDERED REMOVED FROM

20

REMAINING IN THE UNITED STATES UNLAW-

21

FULLY.

22

(a) INADMISSIBLE ALIENS.—Section 212(a)(9)(A) of

23 the Immigration and Nationality Act (8 U.S.C.

24 1182(a)(9)(A)) is amended—

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1

(1) in clause (i), by striking ‘‘seeks admission

2

within 5 years of the date of such removal (or within

3

20 years’’ and inserting ‘‘seeks admission not later

4

than 5 years after the date of the alien’s removal (or

5

not later than 20 years after the alien’s removal’’;

6

and

7

(2) in clause (ii), by striking ‘‘seeks admission

8

within 10 years of the date of such alien’s departure

9

or removal (or within 20 years of’’ and inserting

10

‘‘seeks admission not later than 10 years after the

11

date of the alien’s departure or removal (or not later

12

than 20 years after’’.

13

(b) BAR ON DISCRETIONARY RELIEF.—Section 274D

14 of such Act (8 U.S.C. 324d) is amended—

15

(1) in subsection (a), by striking ‘‘Commis-

16

sioner’’ and inserting ‘‘Secretary of Homeland Secu-

17

rity’’; and

18

(2) by adding at the end the following:

19

‘‘(c) INELIGIBILITY FOR RELIEF.—

20

‘‘(1) IN GENERAL.—Unless a timely motion to

21

reopen is granted under section 240(c)(6), an alien

22

described in subsection (a) shall be ineligible for any

23

discretionary relief from removal (including cancella-

24

tion of removal and adjustment of status) during the

25

time the alien remains in the United States and for

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1

a period of 10 years after the alien’s departure from

2

the United States.

3

‘‘(2) SAVINGS PROVISION.—Nothing in para-

4

graph (1) shall preclude a motion to reopen to seek

5

withholding of removal under section 241(b)(3) or

6

protection against torture, if the motion—

7

‘‘(A) presents material evidence of changed

8

country conditions arising after the date of the

9

final order of removal in the country to which

10

the alien would be removed; and

11

‘‘(B) makes a sufficient showing to the sat-

12

isfaction of the Attorney General that the alien

13

is otherwise eligible for such protection.’’.

14

(c) EFFECTIVE DATES.—The amendments made by

15 this section shall take effect on the date of the enactment

16 of this Act with respect to aliens who are subject to a final

17 order of removal entered before, on, or after such date.

18 SEC. 604. REINSTATEMENT OF REMOVAL ORDERS.

19

(a) IN GENERAL.—Section 241(a)(5) of the Immi-

20 gration and Nationality Act (8 U.S.C. 1231(a)(5)) is

21 amended to read as follows:

22

‘‘(5) REINSTATEMENT OF REMOVAL ORDERS

23

AGAINST ALIENS ILLEGALLY REENTERING.—If the

24

Secretary of Homeland Security finds that an alien

25

has entered the United States illegally after having

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1

been removed, deported, or excluded or having de-

2

parted voluntarily, under an order of removal, depor-

3

tation, or exclusion, regardless of the date of the

4

original order or the date of the illegal entry—

5

‘‘(A) the order of removal, deportation, or

6

exclusion is reinstated from its original date

7

and is not subject to being reopened or reviewed

8

notwithstanding section 242(a)(2)(D);

9

‘‘(B) the alien is not eligible and may not

10

apply for any relief under this Act, regardless

11

of the date that an application or request for

12

such relief may have been filed or made; and

13

‘‘(C) the alien shall be removed under the

14

order of removal, deportation, or exclusion at

15

any time after the illegal entry.

16

Reinstatement under this paragraph shall not re-

17

quire proceedings under section 240 or other pro-

18

ceedings before an immigration judge.’’.

19

(b) JUDICIAL REVIEW.—Section 242 of the Immigra-

20 tion and Nationality Act (8 U.S.C. 1252) is amended by

21 adding at the end the following:

22

‘‘(h) JUDICIAL REVIEW OF REINSTATEMENT UNDER

23 SECTION 241(a)(5).—

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1

‘‘(1) REVIEW OF REINSTATEMENT.—Judicial

2

review of determinations under section 241(a)(5) is

3

available in an action under subsection (a).

4

‘‘(2) NO REVIEW OF ORIGINAL ORDER.—Not-

5

withstanding any other provision of law (statutory or

6

nonstatutory), including section 2241 of title 28,

7

United States Code, any other habeas corpus provi-

8

sion, or sections 1361 and 1651 of such title, no

9

court shall have jurisdiction to review any cause or

10

claim, arising from, or relating to, any challenge to

11

the original order.’’.

12

(c) EFFECTIVE DATE.—The amendments made by

13 subsections (a) and (b) shall take effect as if enacted on

14 April 1, 1997, and shall apply to all orders reinstated or

15 after that date by the Secretary of Homeland Security (or

16 by the Attorney General prior to March 1, 2003), regard-

17 less of the date of the original order.

18 SEC. 605. CLARIFICATION WITH RESPECT TO DEFINITION

19

OF ADMISSION.

20

Section 101(a)(13)(A) of the Immigration and Na-

21 tionality Act (8 U.S.C. 1101(a)(13)(A)) is amended by

22 adding at the end the following: ‘‘An alien’s adjustment

23 of status to that of lawful permanent resident status under

24 any provision of this Act, or under any other provision

25 of law, shall be considered an ‘admission’ for any purpose

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1 under this Act, even if the adjustment of status occurred

2 while the alien was present in the United States.’’.

3 SEC. 606. REPORTS TO CONGRESS ON THE EXERCISE AND

4

ABUSE OF PROSECUTORIAL DISCRETION.

5

(a) IN GENERAL.—Not later than 180 days after the

6 end of each fiscal year, the Secretary of Homeland Secu-

7 rity and the Attorney General shall each provide to the

8 Committees on the Judiciary of the House of Representa-

9 tives and of the Senate a report on the following:

10

(1) Aliens apprehended or arrested by State or

11

local law enforcement agencies who were identified

12

by the Department of Homeland Security in the pre-

13

vious fiscal year and for whom the Department of

14

Homeland Security did not issue detainers and did

15

not take into custody despite the Department of

16

Homeland Security’s findings that the aliens were

17

inadmissible or deportable.

18

(2) Aliens who were applicants for admission in

19

the previous fiscal year but not clearly and beyond

20

a doubt entitled to be admitted by an immigration

21

officer and who were not detained as required pursu-

22

ant to section 235(b)(2)(A) of the Immigration and

23

Nationality Act (8 U.S.C. 1225(b)(2)(A)).

24

(3) Aliens who in the previous fiscal year were

25

found by Department of Homeland Security officials

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1

performing duties related to the adjudication of ap-

2

plications for immigration benefits or the enforce-

3

ment of the immigration laws to be inadmissible or

4

deportable who were not issued notices to appear

5

pursuant to section 239 of such Act (8 U.S.C. 1229)

6

or placed into removal proceedings pursuant to sec-

7

tion 240 (8 U.S.C. 1229a), unless the aliens were

8

placed into expedited removal proceedings pursuant

9

to section 235(b)(1)(A)(i) (8 U.S.C.

10

1225(b)(1)(A)(5)) or section 238 (8 U.S.C. 1228),

11

were granted voluntary departure pursuant to sec-

12

tion 240B, were granted relief from removal pursu-

13

ant to statute, were granted legal nonimmigrant or

14

immigrant status pursuant to statute, or were deter-

15

mined not to be inadmissible or deportable.

16

(4) Aliens issued notices to appear that were

17

cancelled in the previous fiscal year despite the De-

18

partment of Homeland Security’s findings that the

19

aliens were inadmissible or deportable, unless the

20

aliens were granted relief from removal pursuant to

21

statute, were granted voluntary departure pursuant

22

to section 240B of such Act (8 U.S.C. 1229c), or

23

were granted legal nonimmigrant or immigrant sta-

24

tus pursuant to statute.

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1

(5) Aliens who were placed into removal pro-

2

ceedings, whose removal proceedings were termi-

3

nated in the previous fiscal year prior to their con-

4

clusion, unless the aliens were granted relief from

5

removal pursuant to statute, were granted voluntary

6

departure pursuant to section 240B, were granted

7

legal nonimmigrant or immigrant status pursuant to

8

statute, or were determined not to be inadmissible or

9

deportable.

10

(6) Aliens granted parole pursuant to section

11

212(d)(5)(A) of such Act (8 U.S.C. 1182(d)(5)(A)).

12

(7) Aliens granted deferred action, extended

13

voluntary departure or any other type of relief from

14

removal not specified in the Immigration and Na-

15

tionality Act or where determined not to be inadmis-

16

sible or deportable.

17

(b) CONTENTS OF REPORT.—The report shall include

18 a listing of each alien described in each paragraph of sub-

19 section (a), including when in the possession of the De-

20 partment of Homeland Security their names, fingerprint

21 identification numbers, alien registration numbers, and

22 reason why each was granted the type of prosecutorial dis-

23 cretion received. The report shall also include current

24 criminal histories on each alien from the Federal Bureau

25 of Investigation.

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171 1 SEC. 607. CERTAIN ACTIVITIES RESTRICTED.

2

(a) IN GENERAL.—

3

(1) No funds, resources, or fees made available

4

to the Secretary of Homeland Security, or to any

5

other official of a Federal agency, by this Act or any

6

other Act for any fiscal year, including any deposits

7

into the ‘‘Immigration Examinations Fee Account’’

8

established under section 286(m) of the Immigration

9

and Nationality Act (8 U.S.C. 1356(m)), may be

10

used to implement, administer, enforce, or carry out

11

(including through the issuance of any regulations)

12

any of the policy changes set forth in the following

13

memoranda (or any substantially similar policy

14

changes issued or taken on or after January 9,

15

2015, whether set forth in memorandum, Executive

16

order, regulation, directive, or by other action):

17

(A) The memorandum from the Director of

18

United States Immigration and Customs En-

19

forcement entitled ‘‘Civil Immigration Enforce-

20

ment: Priorities for the Apprehension, Deten-

21

tion, and Removal of Aliens’’ dated March 2,

22

2011.

23

(B) The memorandum from the Director

24

of United States Immigration and Customs En-

25

forcement entitled ‘‘Exercising Prosecutorial

26

Discretion Consistent with the Civil Immigra-

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1

tion Enforcement Priorities of the Agency for

2

the Apprehension, Detention, and Removal of

3

Aliens’’ dated June 17, 2011.

4

(C) The memorandum from the Principal

5

Legal Advisor of United States Immigration

6

and Customs Enforcement entitled ‘‘Case-by-

7

Case Review of Incoming and Certain Pending

8

Cases’’ dated November 17, 2011.

9

(D) The memorandum from the Director

10

of United States Immigration and Customs En-

11

forcement entitled ‘‘Civil Immigration Enforce-

12

ment: Guidance on the Use of Detainers in the

13

Federal, State, Local, and Tribal Criminal Jus-

14

tice Systems’’ dated December 21, 2012.

15

(E) The memorandum from the Secretary

16

of Homeland Security entitled ‘‘Southern Bor-

17

der and Approaches Campaign’’ dated Novem-

18

ber 20, 2014.

19

(F) The memorandum from the Secretary

20

of Homeland Security entitled ‘‘Policies for the

21

Apprehension, Detention and Removal of Un-

22

documented Immigrants’’ dated November 20,

23

2014.

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173

1

(G) The memorandum from the Secretary

2

of Homeland Security entitled ‘‘Secure Commu-

3

nities’’ dated November 20, 2014.

4

(H) The memorandum from the Secretary

5

of Homeland Security entitled ‘‘Exercising

6

Prosecutorial Discretion with Respect to Indi-

7

viduals Who Came to the United States as Chil-

8

dren and with Respect to Certain Individuals

9

Who Are the Parents of U.S. Citizens or Per-

10

manent Residents’’ dated November 20, 2014.

11

(I) The memorandum from the Secretary

12

of Homeland Security entitled ‘‘Expansion of

13

the Provisional Waiver Program’’ dated Novem-

14

ber 20, 2014.

15

(J) The memorandum from the Secretary

16

of Homeland Security entitled ‘‘Policies Sup-

17

porting U.S. High-Skilled Businesses and

18

Workers’’ dated November 20, 2014.

19

(K) The memorandum from the Secretary

20

of Homeland Security entitled ‘‘Families of

21

U.S. Armed Forces Members and Enlistees’’

22

dated November 20, 2014.

23

(L) The memorandum from the Secretary

24

of Homeland Security entitled ‘‘Directive to

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174

1

Provide Consistency Regarding Advance Pa-

2

role’’ dated November 20, 2014.

3

(M) The memorandum from the Secretary

4

of Homeland Security entitled ‘‘Policies to Pro-

5

mote and Increase Access to U.S. Citizenship’’

6

dated November 20, 2014.

7

(N) The memorandum from the President

8

entitled ‘‘Modernizing and Streamlining the

9

U.S. Immigrant Visa System for the 21st Cen-

10

tury’’ dated November 21, 2014.

11

(O) The memorandum from the President

12

entitled ‘‘Creating Welcoming Communities and

13

Fully Integrating Immigrants and Refugees’’

14

dated November 21, 2014.

15

(2) The memoranda referred to in subsection

16

(a) (or any substantially similar policy changes

17

issued or taken on or after January 9, 2015, wheth-

18

er set forth in memorandum, Executive order, regu-

19

lation, directive, or by other action) have no statu-

20

tory or constitutional basis and therefore have no

21

legal effect.

22

(3) No funds or fees made available to the Sec-

23

retary of Homeland Security, or to any other official

24

of a Federal agency, by this Act or any other Act

25

for any fiscal year, including any deposits into the

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1

‘‘Immigration Examinations Fee Account’’ estab-

2

lished under section 286(m) of the Immigration and

3

Nationality Act (8 U.S.C. 1356(m)), may be used to

4

grant any Federal benefit to any alien pursuant to

5

any of the policy changes set forth in the memo-

6

randa referred to in subsection (a) (or any substan-

7

tially similar policy changes issued or taken on or

8

after January 9, 2015, whether set forth in memo-

9

randum, Executive order, regulation, directive, or by

10

other action).

11

(b) DEFERRED ACTION FOR CHILDHOOD ARRIV-

12 ALS.—No funds, resources or fees made available to the

13 Secretary of Homeland Security, or to any other official

14 of a Federal agency, by this Act or any other Act for any

15 fiscal year, including any deposits into the ‘‘Immigration

16 Examinations Fee Account’’ established under section

17 286(m) of the Immigration and Nationality Act (8 U.S.C.

18 1356(m)), may be used to consider or adjudicate any new,

19 renewal or previously denied application for any alien re-

20 questing consideration of deferred action for childhood ar-

21 rivals, as authorized by the Executive memorandum dated

22 June 15, 2012, and effective on August 15, 2012 (or any

23 substantially similar policy changes issued or taken on or

24 after January 9, 2015, whether set forth in memorandum,

25 Executive order, regulation, directive, or by other action).

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176 1 SEC. 608. GAO STUDY ON DEATHS IN CUSTODY.

2

The Comptroller General of the United States shall

3 submit to Congress within 6 months after the date of the

4 enactment of this Act, a report on the deaths in custody

5 of detainees held by the Department of Homeland Secu-

6 rity. The report shall include the following information

7 with respect to any such deaths and in connection there-

8 with:

9

(1) Whether any such deaths could have been

10

prevented by the delivery of medical treatment ad-

11

ministered while the detainee is in the custody of the

12

Department of Homeland Security.

13

(2) Whether Department practice and proce-

14

dures were properly followed and obeyed.

15

(3) Whether such practice and procedures are

16

sufficient to protect the health and safety of such

17

detainees.

18

(4) Whether reports of such deaths were made

19

to the Deaths in Custody Reporting Program.

20 SEC. 609. REMOVAL PROCEEDINGS.

21

Subsection (b) of section 240 of the Immigration and

22 Nationality Act (8 U.S.C. 1229a) is amended by adding

23 at the end the following new paragraph (8):

24

‘‘(8) ORDER OF CONSIDERATION OF PRO-

25

CEEDINGS.—Whenever possible, proceedings shall

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1

take place in the order in which aliens are placed in

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proceedings.’’.

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 Case 5:17-cv-00574-WHO Document 26 Filed 02/23/17 Page 1 of 35

1 OFFICE OF THE COUNTY COUNSEL

COUNTY OF SANTA CLARA 2 JAMES R. WILLIAMS - # 271253

3

County Counsel james.williams@cco.sccgov.org

4 GRETA S. HANSEN - # 251471

DANIELLE L. GOLDSTEIN - # 257486

5 KAVITA NARAYAN - # 264191

6

JAVIER SERRANO - # 252266 JULIA B. SPIEGEL - # 292469

7 ADRIANA L. BENEDICT - # 306936 70 West Hedding Street

8 East Wing, Ninth Floor

San Jose, CA 95110-1770

9 Telephone: 408 299-5900

10 Facsimile: 408 292-7240

KEKER & VAN NEST LLP JOHN W. KEKER - # 49092 jkeker@kvn.com ROBERT A. VAN NEST - # 84065 rvannest@kvn.com DANIEL PURCELL - # 191424 dpurcell@kvn.com CODY S. HARRIS - # 255302 charris@kvn.com NICHOLAS S. GOLDBERG - # 273614 ngoldberg@kvn.com EDWARD BAYLEY - # 267532 ebayley@kvn.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188

11 Attorneys For Plaintiff COUNTY OF SANTA CLARA
12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO DIVISION

16 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

17

Plaintiff,

18

v.

19 DONALD J. TRUMP, President of the

20 United States of America, JOHN F. KELLY, in his official capacity as Secretary of the

21 United States Department of Homeland

Security, JEFFERSON B. SESSIONS, in his 22 official capacity as Attorney General of the

23

United States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as

24 Director of the Office of Management and Budget, and DOES 1-50,

25

Defendants. 26

COUNTY OF SANTA CLARA’S MOTION FOR PRELIMINARY INJUNCTION

Date: Time: Dept.: Judge:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

Date Filed: February 3, 2017

Trial Date: Not yet set

27

28

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TO DEFENDANTS AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on Wednesday, April 5, 2017, at 2:00 p.m., or as soon thereafter as the matter may be heard in Courtroom 2 of the Honorable William H. Orrick at the United States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, CA 94102, Plaintiff County of Santa Clara (the “County”) shall and hereby does move the Court pursuant to Federal Rule of Civil Procedure 65 for a preliminary injunction against Defendants Donald J. Trump, President of the United States of America, John F. Kelly, in his official capacity as Secretary of the United States Department of Homeland Security, Jefferson B. Sessions,1 in his official capacity as Attorney General of the United States, and John Michael “Mick” Mulvaney,2 in his official capacity as Director of the Office of Management and Budget (collectively, “Defendants”), and their officers, agents, servants, employees, and attorneys, and any other persons who are in active concert or participation with them (the “Enjoined Defendants”). Defendants are responsible for issuing, implementing, and enforcing an unconstitutional executive order—Executive Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order”)—which attempts to render “sanctuary jurisdictions” ineligible to receive all “Federal funds,” and to subject them to “enforcement action[s].” The County respectfully moves the Court to enter a nationwide preliminary injunction prohibiting the Enjoined Defendants from: 1. Enforcing Section 9 of the Executive Order; 2. Taking any action in furtherance of any withholding or conditioning of federal funds pursuant to the Executive Order; and 3. Taking any action pursuant to the Executive Order to declare any jurisdiction ineligible for federal funds or deprive any jurisdiction of funds already appropriated or allocated by Congress.
1 Mr. Sessions was sworn in as Attorney General on February 9, 2017, thereby replacing Acting Attorney General Dana Boente as a defendant pursuant to Fed. R. Civ. P. 25(d). 2 Mr. Mulvaney was sworn in as Director of the Office for Management and Budget on February 16, 2017, thereby replacing Acting Director Mark Sandy as a defendant pursuant to Fed. R. Civ. P. 25(d).
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Absent a preliminary injunction, the County and its approximately 1.9 million residents will suffer immediate, ongoing, and irreparable harm resulting from the Executive Order’s violation of the Constitution’s separation of powers, the Tenth Amendment’s prohibition on commandeering state or local governments to act as arms of the federal government, and the Fifth Amendment’s Due Process Clause. The County is suffering four types of irreparable harm, any one of which justifies the injunctive relief the County seeks. First, the County’s constitutional injuries constitute irreparable harm as a matter of law. Second, the Executive Order irreparably harms the County by attempting to force it to alter its policies and practices under threat of losing its federal funding. Third, because the County’s federally funded programs operate continuously and largely on a reimbursement basis, the County must decide now whether to continue expending those funds, or instead discontinue essential safety-net services, shelve plans, and cut staff. Fourth, by threatening roughly 35% of the County’s annual budget, the Executive Order has created a cloud of fiscal and budgetary uncertainty so overwhelming that it is imperiling the County’s ability to function. The requested injunction will alleviate these harms. And the public—including the County’s residents—have an overwhelming interest in preventing Defendants from implementing this unconstitutional order.
This motion is based on this Notice of Motion and Motion, the accompanying supporting Memorandum of Points and Authorities, the supporting declarations of Sara H. Cody, M.D. (County Public Health Officer), Paul Lorenz (Chief Executive Officer of Santa Clara Valley Medical Center), Miguel Márquez (County Chief Operating Officer), Robert Menicocci (Director of the County’s Social Services Agency), Carl Neusel (Undersheriff of the County), Dana Reed (Director of the County’s Office of Emergency Services), Jeffrey F. Rosen (District Attorney of the County), Jeffrey V. Smith (County Executive), Laurie Smith (Sheriff of the County), and Cody S. Harris, as well as the papers, evidence and records on file in this action, and any other written or oral evidence or argument as may be presented at or before the time this motion is heard by the Court.
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1 2 3 I. 4 II. 5 6 7 8 9 10 11 12 III. 13 IV. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 V.
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TABLE OF CONTENTS

Page

INTRODUCTION ...............................................................................................................1

STATEMENT OF FACTS ..................................................................................................3

A. The Executive Order threatens to strip the County of previously allocated federal funds and deny the County of all federal funds going forward. ..................3

B. The County’s policies and practices regarding cooperation with ICE conflict with the President’s immigration enforcement agenda. .............................5

C. The County relies on federal funding to provide essential services to 1.9 million residents.......................................................................................................9

D. The Executive Order forces the County to make immediate budget decisions. ................................................................................................................11

LEGAL STANDARD........................................................................................................11

ARGUMENT .....................................................................................................................12

A. The County is likely to succeed on the merits of its claims...................................12

1. The County is likely to prevail on its separation of powers claim because the Executive Order usurps and distorts Congress’s spending power without any constitutional or statutory authorization. .............................................................................................12

a. The Executive Order attempts to exercise spending power that even Congress lacks. ...............................................................12

b. The Executive Order is an invalid exercise of executive power under Youngstown...............................................................15

2. The County is likely to prevail on its claim that the Executive Order violates the Tenth Amendment. .................................................................17

3. The County is likely to prevail on its claim that the Executive Order is void for vagueness..................................................................................19

4. The County is likely to prevail on its claim that the Executive Order deprives the County of procedural due process. ........................................20

B. The Executive Order causes imminent and irreparable harm to the County. ........21

C. The balance of hardships and the public interest both favor the County...............24

CONCLUSION ..................................................................................................................25
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TABLE OF AUTHORITIES

Page(s)

Federal Cases

Alliance for the Wild Rockies v. Cottrell 632 F.3d 1127 (9th Cir. 2011) ................................................................................................. 11

Arc of Cal. v. Douglas 757 F.3d 975 (9th Cir. 2014) ................................................................................................... 11

Ariz. Dream Act Coal. v. Brewer 757 F.3d 1053 (9th Cir. 2014) ........................................................................................... 17, 24

Bd. of Regents v. Roth 408 U.S. 564 (1972)................................................................................................................. 20

City of Chicago v. Morales 527 U.S. 41 (1999)................................................................................................................... 20

Clinton v. New York 524 U.S. 417 (1998)................................................................................................................. 12

Coal. for Econ. Equity v. Wilson 1996 WL 691962 (N.D. Cal. Nov. 27, 1996) .......................................................................... 24

County of Santa Cruz v. Sebelius 399 Fed. App’x 174 (9th Cir. 2010) ........................................................................................ 20

Dames & Moore v. Regan 453 U.S. 654 (1981)................................................................................................................. 16

Doran v. Houle 721 F.2d 1182 (9th Cir. 1983) ................................................................................................. 20

Drakes Bay Oyster Co. v. Jewell 747 F.3d 1073 (9th Cir. 2014) ................................................................................................. 24

Giaccio v. Penn. 382 U.S. 399 (1966)................................................................................................................. 19

In re Aiken Cty. 725 F.3d 255 (D.C. Cir. 2013) ................................................................................................. 15

Legal Aid Soc. of Alameda Cty. v. Brennan 608 F.2d 1319 (9th Cir. 1979) ................................................................................................. 21

Melendres v. Arpaio 695 F.3d 990 (9th Cir. 2012) ............................................................................................. 22, 24

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1 Mendia v. Garcia

2016 WL 2654327 (N.D. Cal. May 10, 2016) ..................................................................... 8, 14 2

3

Miranda-Olivares v. Clackamas Cnty. 2014 WL 1414305 (D. Or. Apr. 11, 2014) .................................................................... 8, 14, 22

4 Morales v. Chadbourne

5

793 F.3d 208 (1st Cir. 2015) .......................................................................................... 8, 14, 22

6 Nat’l Fed. of Indep. Bus. v. Sebelius

132 S. Ct. 2566 (2012) ..................................................................................... 13, 14, 15, 19, 20 7

New York v. United States

8

505 U.S. 144 (1992)................................................................................................................. 18

9 Nken v. Holder

10

556 U.S. 418 (2009)................................................................................................................. 24

11 Orellana v. Nobles Cnty.

2017 WL 72397 (D. Minn. Jan. 6, 2017)............................................................................. 8, 14

12

Pangilinan v. I.N.S.

13

809 F.2d 1449 (9th Cir. 1987) ................................................................................................. 17

14 Pennhurst State Sch. & Hosp. v. Halderman

15

451 U.S. 1 (1981)..................................................................................................................... 20

16 Planned Parenthood Ass’n of Cincinnati, Inc. v. Cincinnati 822 F.2d 1390 (6th Cir. 1987) ................................................................................................. 25

17

Printz v. United States

18

521 U.S. 898 (1997)................................................................................................................. 18

19 Rodriguez v. Robbins

20

715 F.3d 1127 (9th Cir. 2013) ................................................................................................. 22

21 Shell Offshore, Inc. v. Greenpeace, Inc. 709 F.3d 1281 (9th Cir. 2013) ................................................................................................. 24

22 South Dakota v. Dole

23

483 U.S. 203 (1987)............................................................................................... 12, 13, 14, 20

24 Steinle v. City & Cty. of San Francisco

25

2017 WL 67064 (N.D. Cal. Jan. 6, 2017) ................................................................................ 13

26

Susan B. Anthony List v. Driehaus 134 S. Ct. 2334 (2014) ............................................................................................................. 24

27 Texas v. United States

28

809 F.3d 134 (5th Cir. 2015) ................................................................................................... 25

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Texas v. United States 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016)........................................................................ 22
Thornton v. City of St. Helens 425 F.3d 1158 (9th Cir. 2005) ................................................................................................. 20
United States v. Soussi 316 F.3d 1095 (10th Cir. 2002) ............................................................................................... 19
United States v. Williams 553 U.S. 285 (2008)................................................................................................................. 19
Valle del Sol Inc. v. Whiting 732 F.3d 1006 (9th Cir. 2013) ................................................................................................. 22
Washington v. Trump No. 17-35105, 2017 WL 526497 (9th Cir. Feb. 9, 2017) ........................................................ 25
Winter v. Nat. Res. Def. Council, Inc. 555 U.S. 7 (2008)............................................................................................................... 11, 24
Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952)................................................................................................. 2, 15, 16, 17
State Cases
Bologna v. City & Cty. of San Francisco 192 Cal. App. 4th 429 (2011) .................................................................................................. 13
Federal Statutes
2 U.S.C. § 683................................................................................................................................ 17
5 U.S.C. § 3331.............................................................................................................................. 16
8 U.S.C. § 1101.......................................................................................................................... 3, 16
8 U.S.C. § 1373....................................................................................................................... passim
State Statutes
Cal. Gov’t Code § 7282.5 .......................................................................................................... 8, 23
Federal Regulations
Exec. Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017).......................................................... passim
Constitutional Provisions
U.S. CONST. art. I § 7 cls. 2–3 ....................................................................................................... 12
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U.S. CONST. art. I, § 8 .......................................................................................................... 2, 12, 13
U.S. CONST. art. II, § 3............................................................................................................. 12, 16
Other Authorities
A Bill to Prohibit Appropriated Funds from Being Used in Contravention of Section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, S. 80, 114th Cong. (2015) ........................................................................................................ 17
Ending Sanctuary Cities Act of 2016, H.R. 6252, 114th Cong. (2016)......................................... 16
Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. (2015) ................................. 17
Executive Impoundment of Appropriated Funds: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 92d Cong. 279, 282 (1971) ...................................................................................................... 16
Improving Cooperation with States and Local Governments and Preventing the Catch and Release of Criminal Aliens Act of 2015, S. 1812, 114th Cong. (2015) .................................. 16
Kristen F. Butcher & Anne Morrison Piehl, Why are Immigrants’ Incarceration Rates So Low? Evidence on Selective Immigration, Deterrence, and Deportation, National Bureau of Economic Research Working Paper 13229, July 2007............................................. 7
Letter from Peter J. Kadzik, Asst. Att’y Gen. U.S. Dep’t of Justice, to Hon. John A. Culberson, Chairman of the Subcomm. on Commerce, Justice, Sci. & Related Agencies (Jul. 7, 2016) .............................................................................................................. 6
Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act, S. 1640, 114th Cong. (2015) .................................................................................................... 17
Memo. from William H. Rehnquist, Assistant Att’y Gen., Office of Legal Counsel, to Edward L. Morgan, Dep. Counsel to the President (Dec. 1, 1969) ...................................... 15
Mobilizing Against Sanctuary Cities Act, H.R. 3002, 114th Cong. (2015) .................................. 16
Protecting American Citizens Together Act, S. 1764, 114th Cong. (2015) .................................. 17
Sanctuary City All Funding Elimination Act of 2015, H.R. 3073, 114th Cong. (2015) ............... 16
Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016)........................................ 16
Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. (2016) ............................................ 16
Stop Sanctuary Cities Act, S. 1814, 114th Cong. (2015) .............................................................. 16
Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. (2015)...................... 16
U.S. Dep’t of Homeland Sec. Mem. from John Kelly, Sec’y of Homeland Sec., “Enforcement of the Immigration Laws to Serve the National Interest” (Feb. 20, 2017) ......... 6 vii
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Walter A. Ewing, Ph.D. et al., The Criminalization of Immigration in the United States, American Immigration Council, July 2015 ............................................................................... 7
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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION
On January 25, 2017, President Donald J. Trump issued an executive order granting the Attorney General and the Secretary of Homeland Security (the “Secretary”) the power to declare any state or local government a “sanctuary jurisdiction,” thereby rendering any such jurisdiction ineligible to receive federal funds. Exec. Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order”). The Executive Order also directs the Attorney General to take unspecified “enforcement action” against any state, local government, or other “entity” that he believes has a “practice that prevents or hinders the enforcement of Federal law.” Id. § 9(a).
The Executive Order is patently unconstitutional and the Court must enjoin Defendants from implementing it. It usurps and expands Congress’s spending power in a naked effort to coerce state and local governments, including Plaintiff County of Santa Clara (“County”), into enforcing the Trump Administration’s immigration agenda. It brazenly disregards fundamental principles of federalism and separation of powers that define our republican government.
In doing so, the Executive Order has also thrown the County’s budgeting and planning process into immediate and ongoing disarray. Because it annually receives roughly $1.7 billion in federal and federally dependent funds (about 35% of its total annual revenues), the Executive Order places the County—a governmental entity responsible for providing safety-net services to 1.9 million residents—in an untenable position. Unless Defendants are immediately restrained from implementing the Executive Order, the County will be forced to take one of three paths, none of which is viable: (1) continue to spend money today on services for which it may be denied federal reimbursement tomorrow, thereby courting a financial crisis; (2) begin slashing essential services, programs, and staff; or (3) comply with an unconstitutional directive to participate in the President’s federal immigration enforcement regime. Each of these three pathways leads to irreparable harm to the County. The County must make these decisions right now, and the health, welfare, and safety of the County’s 1.9 million residents hang in the balance. Sitting squarely in the President’s crosshairs, the County cannot wait and see what will become of the federal funding Congress has allocated to it, or what “enforcement actions” await it.
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The County is likely to succeed on all four of its claims for relief. First, the Executive Order shatters the constitutional boundary between executive and legislative authority. Article I, section 8 of the Constitution grants Congress the power of the purse, not the executive branch. Congress, not the President, may place conditions on federal funding, and even then only within clearly defined constitutional limitations that respect the independence of state and local governments. Ignoring these fundamental precepts, the President’s Executive Order purports to exercise spending powers so overbroad, retaliatory, and coercive that even Congress could not constitutionally have exercised them. In fact, Congress has repeatedly considered and rejected legislation that would have done what the President seeks to do through fiat: tying federal funds to local participation in federal immigration enforcement. The Supreme Court has long held that the President’s power is at its “lowest ebb” where, as here, he contravenes the “expressed or implied will of Congress.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). Second, the Executive Order is so sweeping and coercive that it violates the Tenth Amendment’s prohibition on commandeering local officials to become federal functionaries. Third, the challenged sections of the Executive Order are so vague and standardless that they violate the Fifth Amendment’s Due Process Clause. Fourth, by depriving the County—without any process whatsoever—of congressionally allocated funds to which it is legitimately entitled, the Executive Order fails to provide the procedural due process guaranteed by the Fifth Amendment. The Executive Order is neither a housekeeping measure nor an idle threat. It carries the force of law. And President Trump has repeatedly made clear, most recently in a televised interview on Super Bowl Sunday, that he believes he can deploy defunding as a “weapon” against state and local governments, withholding “the money they need to operate properly as a city or state” unless they fall in line with his vision of federal immigration enforcement. The President is wrong. In their wisdom, our nation’s founders declined to place such punitive and coercive powers in the hands of any branch of the federal government—especially the President’s. The Constitution secures for state and local governments the ability to make
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policy decisions regarding the health, welfare, and safety of the people to whom they are politically accountable. By misappropriating Congress’s spending power in an attempt to force local jurisdictions into carrying out the President’s immigration enforcement agenda, the Executive Order tramples the principles of federalism that embody and safeguard our American system of government.
Because the County satisfies the well-established standard for injunctive relief, it respectfully asks the Court to enter the requested preliminary injunction blocking implementation and enforcement of the Executive Order.
II. STATEMENT OF FACTS
A. The Executive Order threatens to strip the County of previously allocated federal funds and deny the County of all federal funds going forward.
On January 25, 2017, President Donald J. Trump issued Executive Order 13768, entitled “Enhancing Public Safety in the Interior of the United States.” See Decl. of Cody S. Harris in Support of Mot. for Prelim. Injunction ¶ 2 & Ex. A (“EO”). The Executive Order’s plain text reveals its broad scope, as well as its frontal assault on federalism and the separation of powers. Section 1 sets forth the Order’s purpose, declaring that “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States” and “have caused immeasurable harm to the American people and to the very fabric of our Republic.” EO § 1. Section 2 announces the “policy of the executive branch.” Id. § 2. It describes that policy as, among other things, “[e]nsur[ing] that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” Id. § 2(c).3
Section 9 of the Executive Order concerns “Sanctuary Jurisdictions.” That section vests executive branch officials with unlimited, unreviewable discretion to deny federal funds to whichever jurisdictions they deem to be “sanctuary jurisdictions,” and mandates unspecified
3 Section 3 of the Executive Order is titled “Definitions,” but contains no specific definitions applicable to the Order. EO § 3. Instead, it states that “the terms of this order, where applicable, shall have the meaning provided by” 8 U.S.C. § 1101, which is the definition section of the Immigration and Naturalization Act. Id. The most significant terms appearing in the Executive Order, however, appear nowhere in 8 U.S.C. § 1101.
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enforcement action against them. The phrase “sanctuary jurisdictions” applies—at a minimum—
to state and local governments who “willfully refuse to comply with 8 U.S.C. § 1373,” EO § 9(a),
or decline to honor Immigration and Customs Enforcement (“ICE”) civil detainer requests. Id. §
9(b) (identifying “sanctuary jurisdictions,” as those “that ignored or otherwise failed to honor any
detainers with respect to such aliens”). The section begins by directing executive branch officials
to strip state and local jurisdictions of all federal funding:
[T]he Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. Id. § 9(a) (the “Defunding Provision”). Thus, if the Attorney General and Secretary determine (in
their discretion) that the County is “willfully refus[ing] to comply with 8 U.S.C. 1373,” then it
“shall” be rendered “not eligible to receive Federal grants.” Id.
The Defunding Provision is intended to apply to all federal funds. The Executive Order
describes the President’s policy as ensuring “that jurisdictions that fail to comply” with federal
law “do not receive Federal funds.” EO § 2(c). To achieve this goal, Section 9(c) orders the
Director of the Office of Management and Budget to provide “information on all Federal grant money that currently is received by any sanctuary jurisdiction.” Id. § 9(c).4
Section 9(a) also contains an enforcement provision, which orders the Attorney General to
“take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has
in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.”
EO § 9(a) (the “Enforcement Provision”). The order nowhere defines what it means to “prevent[]
or hinder[]” federal law enforcement, leaving that determination to the Attorney General. Nor
does the provision specify which federal laws are at issue, applying equally to federal statutes,
4 Because the Executive Order nowhere defines or limits the phrase “Federal grants,” the County must interpret that phrase to apply to all federal funds, whatever their source. This interpretation is consistent with the Section 2(c) of the Executive Order, as well as the President’s many statements affirming his intention to deny all taxpayer funds to state and local governments he considers “sanctuary jurisdictions.” See Compl. ¶ 93.
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treaties, and presumably the entire Code of Federal Regulations. The Executive Order contains vague caveats suggesting that at least some of its terms will
be applied to the extent “consistent with law,” although that caveat is noticeably absent from the Enforcement Provision. See EO §§ 9(a), 18(b). But the Executive Order cannot be applied “consistent with law,” because it gives the executive branch power it cannot constitutionally possess. The President repeatedly pledged on the campaign trail and after election to deny all federal funding to jurisdictions he believes are hindering his immigration enforcement agenda, thereby “ending” such jurisdictions altogether. See Compl. ¶ 93 (listing statements). For example, after the Executive Order was issued, the President characterized defunding as a “weapon” he could wield to deprive jurisdictions of “the money they need to properly operate as a city or state.” Harris Decl. ¶ 3 & Ex. B (Tr. of Feb. 5, 2017 Bill O’Reilly Interview with President Donald J. Trump [“O’Reilly Interview”]) at 4. The President’s press secretary underscored the Executive Order’s broad reach, telling reporters that the President intended to ensure that “counties and other institutions that remain sanctuary cities don’t get federal government funding in compliance with the executive order.” Id. ¶ 4 & Ex. C (Tr. of Feb. 8, 2017 White House Press Briefing by Press Sec’y Sean Spicer) at 4–5.
B. The County’s policies and practices regarding cooperation with ICE conflict with the President’s immigration enforcement agenda.
The County is undoubtedly one of the President’s intended targets. The Executive Order expressly conditions federal funding, at a minimum, on “compl[iance] with 8 U.S.C. § 1373” and “honor[ing]” ICE civil detainer requests. See EO § 9(a), (b). The County’s policies and practices are at odds with this directive.
Section 1373 bars any local government from prohibiting “any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status . . . of any individual.” 8 U.S.C. § 1373(a). It further forbids any person or agency from restricting any government entity from sending, maintaining, or exchanging such information with federal immigration officials. Id. § 1373(b). Although Section 1373 nowhere mentions compliance with ICE civil detainer requests,
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the Executive Order links the two. See EO § 9(b) (identifying “sanctuary jurisdictions” as those
“that ignored or otherwise failed to honor any detainers with respect to such aliens”).
In 2010, the County Board of Supervisors adopted a Resolution barring all County
employees from using County resources to transmit to ICE information collected by the County
in the course of providing critical services or benefits, as well as initiating an inquiry or
enforcement action based solely on an individual’s actual or suspected immigration status,
national origin, race/ethnicity, or English-speaking ability. Márquez Decl. ¶ 27 & Ex. G; Neusel
Decl. ¶ 7; L. Smith Decl. ¶ 6. The Resolution further prohibits the use of County resources to
pursue an individual solely because of an actual or suspected violation of immigration law. Id.
Given these policies, the County declined two federal grants, both of which required the County to certify its compliance with “all applicable federal laws,” including 8 U.S.C. § 1373.5
Based on its extensive experience, the County has also developed policies and practices
regarding ICE civil detainer requests that are inconsistent with the Executive Order and the President’s stated immigration enforcement agenda.6 An ICE civil detainer request asks a local
law enforcement agency voluntarily to continue to hold an immigrant inmate—who is generally
5 In July 2016, the U.S. Department of Justice issued guidance linking two federal grant programs in which the County had participated—the State Criminal Alien Assistance Program (“SCAAP”) and Edward Byrne Memorial Justice Assistance Grant (“JAG”)—to compliance with 8 U.S.C. § 1373, stating that jurisdictions with any restrictions on information-sharing with ICE would be viewed as noncompliant. See Letter from Peter J. Kadzik, Asst. Att’y Gen. U.S. Dep’t of Justice, to Hon. John A. Culberson, Chairman of the Subcomm. on Commerce, Justice, Sci. & Related Agencies, (Jul. 7, 2016), http://culberson.house.gov/uploadedfiles/2016-7-7_section_1373__doj_letter_to_culberson.pdf. After receiving this guidance, to retain its full discretion in this policy area, the County decided in October 2016 to decline federal SCAAP or JAG funds. Márquez Decl. ¶ 29 & Ex. H. 6 On February 20, 2017, the Secretary issued guidance primarily relating to Section 5 of the Executive Order, which is not the subject of the requested injunction. See U.S. Dep’t of Homeland Sec. Mem. from John Kelly, Sec’y of Homeland Sec., “Enforcement of the Immigration Laws to Serve the National Interest” (Feb. 20, 2017), https://www.dhs.gov/sites/ default/files/publications/17_0220_ S1 _Enforcement-of-the-Immigration-Laws-to-Serve-theNational-Interest.pdf. The Secretary’s guidance confirms the linkage between compliance with ICE civil detainer requests and the Trump Administration’s immigration enforcement agenda. The guidance directs the Director of ICE to provide a weekly report to the public “of non-Federal jurisdictions that release aliens from their custody, notwithstanding that such aliens are subject to a detainer or similar request for custody issued by ICE to that jurisdiction.” Id. at 6.
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in a local jail because of actual or suspected violations of state criminal laws—for up to 48 hours after his or her scheduled release date so that ICE can decide whether to take the individual into custody and initiate removal proceedings. Neusel Decl. ¶ 9; Márquez Decl., Ex. C at 3.
Before late 2011, the County regularly responded to ICE civil detainer requests and other inquiries from federal immigration officials, housing an average of 135 additional inmates each day at a daily cost of approximately $159 per inmate. Neusel Decl. ¶ 4. These additional inmates strained the County jail’s resources and facilities. Id. When the County raised these concerns publicly, ICE refused to reimburse detention costs or indemnify the County for liability arising from detainer requests. Márquez Decl. ¶¶ 21–25 & Exs. B–D.
The County Board of Supervisors then convened a task force composed of top officials from each of the County’s criminal justice agencies to review the issue and recommend a local policy. L. Smith Decl. ¶ 5; Neusel Decl. ¶ 5. The task force recommended that the County honor ICE detainer requests only for individuals with serious or violent felony convictions, as defined by California law, and the final policy adopted by the County honors such requests only if ICE agrees to reimburse the full costs to the County of honoring the requests. L. Smith Decl. ¶ 5; Neusel Decl. ¶ 6; Márquez Decl. ¶ 26 & Ex. E. ICE continues to refuse to reimburse costs associated with honoring detainers. Neusel Decl. ¶ 6. The County has declined to honor ICE detainer requests since the policy’s implementation in November 2011. Id.
The County’s policies and practices are critical to protecting and enhancing public safety. As the County’s District Attorney, Sheriff, and Undersheriff all attest, based on their judgment and experience, enforcement of federal immigration law by the County has a toxic effect on the County’s ability to fight crime and makes the entire community less safe. Rosen Decl. ¶¶ 6–12; L. Smith Decl. ¶¶ 4–9; Neusel Decl. ¶¶ 4–8. Immigrants are no more likely to commit crimes than U.S. citizens, see Rosen Decl. ¶ 7,7 and County law enforcement officials rely on members
7 See also, e.g., Walter A. Ewing, Ph.D. et al., The Criminalization of Immigration in the United States, American Immigration Council, July 2015 at 1, https://www.americanimmigrationcouncil .org/sites/default/files/research/the_criminalization_of_immigration_in_the_united_states.pdf; Kristen F. Butcher & Anne Morrison Piehl, Why are Immigrants’ Incarceration Rates So Low? Evidence on Selective Immigration, Deterrence, and Deportation, National Bureau of Economic Research Working Paper 13229, July 2007, http://www.nber.org/papers/w13229.pdf.
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of the local community—including those who lack lawful immigration status—to assist with criminal investigations and prosecutions. Id. ¶¶ 8–11; L. Smith Decl. ¶¶ 7–8; Neusel Decl. ¶ 8. When residents perceive local law enforcement officers as ICE agents in disguise, they are less willing to report crimes or offer testimony. Rosen Decl. ¶¶ 8–11; L. Smith Decl. ¶ 9; Neusel Decl. ¶ 8. This compromises the County’s ability to promote public safety—one of its core functions.
The County cannot enforce federal immigration law in accordance with the Executive Order. First, forcing the County to honor ICE civil detainer requests would impose significant, non-reimbursable costs that would strain the County’s already severely impacted jail system. Neusel Decl. ¶¶ 9–10; Márquez Decl. ¶ 28. Second, honoring civil detainer requests would force the County to violate the constitutional rights of its residents and expose the County to substantial liability. Márquez Decl. ¶¶ 21, 28.8 Third, even if the County were to change its own policies, it must still comply with state law that constrains or prohibits its participation in federal immigration enforcement activities. For example, California’s Transparency and Responsibility Using State Tools (TRUST) Act, Cal. Gov’t Code § 7282.5, prohibits local law enforcement agencies from honoring ICE detainer requests for individuals without specific prior criminal convictions or charges as to which a judge has made a finding of probable cause. Perhaps with the TRUST Act in mind, President Trump identified the entire State of California as an “out of control” sanctuary jurisdiction, threatening to “defund” it completely. Harris Decl., Ex. B (O’Reilly Interview) at 4. Finally, it is a core County function to determine and implement policies and practices that enhance and protect public health, welfare and safety. The County has determined that its current policies, rather than those demanded by the President, serve those objectives. See generally Rosen, L. Smith, and Neusel Decls.
8 See, e.g., Morales v. Chadbourne, 793 F.3d 208, 215–16 (1st Cir. 2015); Orellana v. Nobles Cnty., 2017 WL 72397, at *9 (D. Minn. Jan. 6, 2017); Mendia v. Garcia, 2016 WL 2654327, at *6–7 (N.D. Cal. May 10, 2016); Miranda-Olivares v. Clackamas Cnty., 2014 WL 1414305, at *11–12 (D. Or. Apr. 11, 2014).
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C. The County relies on federal funding to provide essential services to 1.9 million residents.
In fiscal year 2015-2016, the County received approximately $1.7 billion in federal and
federally dependent funds, representing roughly 35% of the County’s revenue during that fiscal year.9 J. Smith Decl. ¶ 6; Márquez Decl. ¶ 8. The County uses the vast majority of this federal
funding to provide essential safety-net programs and social services to its residents. Márquez
Decl. ¶¶ 5–8. Without these federal funds, the County would be forced to make extraordinary
cuts to critical services—or even eliminate key County services and functions altogether. Id. ¶¶
4, 16-18; J. Smith Decl. ¶¶ 6–11. The withdrawal, or any substantial reduction, of federal funding
“would decimate the County budget and cause immediate and devastating injury to the 1.9
million residents who rely on the essential services that the County provides.” J. Smith Decl. ¶ 6.
The Executive Order poses an immediate and concrete threat to the County and its
residents. In support of this motion, the County has submitted declarations from the County
Executive, Chief Operating Officer, Director of Emergency Management, Public Health Officer,
Director of the Social Services Agency, and CEO of Santa Clara Valley Medical Center detailing
the Executive Order’s devastating impact on the County and its residents. See generally J. Smith,
Márquez, Reed, Cody, Menicocci, and Lorenz Decls. These declarations demonstrate that the
Executive Order’s threat to strip the County of federal funding would decimate the County’s ability to provide basic services to its residents.10
For example, Valley Medical Center, Santa Clara County’s only public safety-net
healthcare provider for indigent and underserved patients, relies on approximately $1 billion in
federal funds—comprising roughly 70% of its annual expenses. Lorenz Decl. ¶¶ 3, 7. If Valley
9 The County received roughly $1 billion in federal funds not commingled with other funding sources. Márquez Decl. ¶ 8. It received an additional approximately $680 million in revenues which included a significant federal funding component and was dependent upon the receipt of federal funds through a matching requirement or other mechanism. Id. These two funding streams are referred to herein, collectively, as the County’s “federal funding” or “federal funds.” 10 As discussed above, the phrase “Federal grants” in Section 9(a) of the Executive Order applies to all federal funds, whatever their source. But even if that phrase were limited to federal funds that are not provided through entitlement programs, the County still received more than $338 million in non-entitlement federal grant awards in fiscal year 2014-2015. Márquez Decl. ¶ 20.
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1 Medical Center were to lose this funding, it could no longer provide services to thousands of

2 poor, elderly and vulnerable people that rely on it for their basic healthcare needs, leaving them

3 with no viable healthcare options. Id. ¶ 8. The complete loss of federal funding, and resulting

4 service cuts, would force the Valley Medical Center to lay off thousands of employees, and

5 potentially close the County’s only public safety-net hospital. Id.; see also Márquez Decl. ¶ 16.

6

Similarly, the County’s Social Services Agency receives more than $300 million in

7 federal funding annually, compared to approximately $775 million in its total expenditures.

8 Menicocci Decl. ¶ 5. The Social Services Agency uses this money to provide services to the

9 County’s most vulnerable residents, including child welfare and protection, aid to needy families,

10 support for disabled children, adults, and the elderly, and various other public benefits programs.

11 Id. ¶¶ 7–16. Eliminating federal funding would force the Social Services Agency to drastically

12 reduce its services and cut staff, severely harming the County’s most vulnerable communities and

13 threatening more than 23,000 jobs that fully or partially depend on federal funding received by

14 the Social Services Agency. Id. ¶¶ 17–26; see also Márquez Decl. ¶ 17.

15

The County’s Public Health Department receives more than $38 million in federal funding

16 annually—nearly 40% of its expenditures—for public health services provided to residents. Cody

17 Decl. ¶¶ 5–12. Eliminating this funding would compromise the County’s ability to staff its

18 facilities and respond to public health emergencies. Id. ¶¶ 13–15; see also Márquez Decl. ¶ 18.

19

The County Office of Emergency Services (“OES”) relies on millions of dollars in federal

20 grant funds to help the County prepare for and respond to disasters of all types, from earthquakes

21 to terrorism. Reed Decl. ¶¶ 3–9. This federal funding represents more than two-thirds of OES’s

22 total funding, and it “could not perform its current functions without it.” Id. ¶¶ 8, 10–20.

23

It is a near certainty that the County’s approximately $1.7 billion in federal funding

24 touches each of its 1.9 million residents. Without this federal funding, the County would be

25 forced to roll back the programs and services that comprise the very fabric of the community, and

26 protect the health, welfare, and safety of its residents. See J. Smith Decl. ¶¶ 5–7.

27

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1

D. The Executive Order forces the County to make immediate budget decisions.

2

The Executive Order has thrown the County’s current budgetary and planning processes

3 into disarray. Márquez Decl. ¶ 19. Each year, the County Executive develops and recommends a

4 budget for approval by the Board of Supervisors. Id. ¶ 13. The ability to rely on federal funding

5 commitments plays a critical role in the County’s budgeting process. Id. ¶ 14. For the current

6 fiscal year, the County adopted a balanced budget based on the expectation that it will receive the

7 federal funds to which it is entitled under existing agreements with federal and state agencies. Id.

8 The County largely receives these federal funds on a reimbursement or fee-for-service basis,

9 which means the County first spends its own money before being repaid in whole or part with

10 federal funds. Id. ¶ 9. The County is currently spending millions of dollars on services for which

11 it ultimately will seek to be reimbursed from federal funds. Id. ¶ 15.

12

As a direct result of the Executive Order, the County suddenly faces the reality that

13 roughly $1.7 billion in anticipated annual revenues could disappear at the President’s whim. J.

14 Smith Decl. ¶¶ 6–11; Márquez Decl. ¶¶ 4, 11, 14–15. Because the Executive Order includes no

15 notice provision, these funds could vanish without the County receiving notice of its ineligibility.

16 The County has no means by which it could absorb the resulting shortfall. J. Smith Decl. ¶ 11;

17 Márquez Decl. ¶ 11.

18 III. LEGAL STANDARD

19

To secure a preliminary injunction, the plaintiff must establish that (1) it “is likely to

20 succeed on the merits,” (2) it “is likely to suffer irreparable harm in the absence of preliminary

21 relief,” (3) “the balance of equities tips in [its] favor,” and (4) “an injunction is in the public

22 interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Courts evaluate these

23 factors on a “sliding scale,” such that “serious questions going to the merits and a balance of

24 hardships that tips sharply towards the plaintiff can support issuance of a preliminary injunction,

25 so long as the plaintiff also shows that there is a likelihood of irreparable injury and that the

26 injunction is in the public interest.” Arc of Cal. v. Douglas, 757 F.3d 975, 983 (9th Cir. 2014)

27 (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131, 1135 (9th Cir. 2011)).

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1 IV. ARGUMENT

2

A. The County is likely to succeed on the merits of its claims.

3

1. The County is likely to prevail on its separation of powers claim

because the Executive Order usurps and distorts Congress’s spending

4

power without any constitutional or statutory authorization.

5

Because neither the Constitution nor an act of Congress grants the President the coercive

6 spending powers he now claims, the Executive Order violates the separation of powers inherent in

7 the Constitution. See Compl. ¶¶ 118–34.

8

a. The Executive Order attempts to exercise spending power that

9

even Congress lacks.

10

The President has attempted, through the Executive Order, both to take Congress’s

11 spending power for himself, and to extend that power far beyond its constitutional limits. Article

12 I of the Constitution vests the federal spending power exclusively in Congress. See U.S. Const.

13 art. I, § 8, cl. 1. Nothing in the Constitution’s text, or in more than two centuries of judicial

14 decisions interpreting that text, confers on the executive branch any power either to dictate federal

15 spending or to place conditions or limits on such spending. The Executive Order contravenes the

16 constitutional provisions that establish the separation of powers between the political branches,

17 including the President’s obligation to “take Care that the Laws be faithfully executed,” id. art. II

18 § 3, cl. 5, and the limitation that Congressional enactments “be presented to the President of the

19 United States,” who may then sign or veto them, but may not revise or amend them, id. art. I § 7

20 cls. 2–3; Clinton v. New York, 524 U.S. 417, 440 (1998).

21

Not only has the President attempted to seize power that the Constitution grants to

22 Congress alone, he also purports to wield that power in a manner not available even to Congress.

23 No branch of the federal government has the power to use spending in a manner that is “so

24 coercive as to pass the point at which pressure turns into compulsion.” South Dakota v. Dole, 483

25 U.S. 203, 211 (1987) (internal quotations omitted). But that is the Executive Order’s goal. The

26 Supreme Court has articulated five limitations on the congressional spending power, and this

27 Executive Order violates them all.

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1

First, any federal spending must be made “in pursuit of ‘the general welfare.’” Id. at 207

2 (quoting U.S. Const. art. I, § 8). Courts typically defer to Congress’s policy judgment on this

3 question. Id. Here, however, there is no congressional judgment to which the Court may defer—

4 the President has usurped Congress’s authority. For its part, as discussed below, Congress has

5 repeatedly declined to provide the executive branch the “weapon” it now seeks to unleash.

6

Second, if Congress wishes to place certain conditions on federal funds, “it must do so

7 unambiguously,” so that states and local governments may “exercise their choice knowingly,

8 cognizant of the consequences of their participation.” Id. at 203 (internal quotation marks

9 omitted). Accordingly, Congress may not surprise a state or local government by approving

10 spending, then later imposing a condition on those funds. See Nat’l Fed. of Indep. Bus. v.

11 Sebelius (“NFIB”), 132 S. Ct. 2566, 2602–04 (2012). “The legitimacy of Congress’s exercise of

12 the spending power thus rests on whether the state voluntarily and knowingly accepts the terms of

13 the contract” at the time Congress offers the money. Id. at 2602.

14

The Defunding Provision fails this test, imposing a new, retroactive condition on all

15 “Federal funds,” “Federal grants,” and “all Federal grant money that currently is received by any

16 sanctuary jurisdiction.” EO §§ 2(c), 9(a), 9(c). It is also ambiguous regarding what the County

17 must do to avoid defunding. There is conflicting judicial guidance on how to “comply with 8

18 U.S.C. § 1373.” Compare, e.g., Bologna v. City & Cty. of San Francisco, 192 Cal. App. 4th 429,

19 438–39 (2011) with Steinle v. City & Cty. of San Francisco, 2017 WL 67064, at *11 (N.D. Cal.

20 Jan. 6, 2017) (disagreeing “with the Bologna court’s characterization of the scope of § 1373(a)”).

21 Further, it is unclear whether Section 1373 requires a jurisdiction to honor ICE detainer requests,

22 although the Executive Order links the two. See EO § 9(b). And it is anyone’s guess what

23 conduct the executive branch might deem “hinder[ing] the enforcement of Federal law”—a vast

24 category that includes statutes, regulations, and international treaties.

25

Third, “Congress may condition grants under the spending power only in ways reasonably

26 related to the purpose of the federal program” at issue. Dole, 483 U.S. at 213. This nexus

27 requirement means that Congress may not burden the payment of funds to a state or local

28 government for one purpose with a condition that serves a different federal interest. The

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Executive Order ignores this limitation, withholding all federal funds, whether or not they relate to immigration enforcement. EO § 9(a) & (c). Indeed, the Order renders the County ineligible for funding related to Medicare and Medicaid, transportation, child welfare services, immunization and vaccine programs, emergency preparedness, and a myriad of other programs and services that have absolutely nothing to do with immigration. See J. Smith Decl. ¶ 5; Márquez Decl. ¶¶ 16–18; Lorenz Decl. ¶ 8; Cody Decl. ¶ 13–15; Reed Decl. ¶¶ 8, 10–20. Congress has no constitutional authority to enact such a sweeping condition on all federal spending—and certainly the President has no power to do so by diktat.
The Defunding Provision not only fails the Dole nexus test—it does the opposite of what Dole requires. It denies sanctuary jurisdictions all federal funds with the exception of funding “deemed necessary for law enforcement purposes,” which the Attorney General or Secretary may discretionarily allow to be remitted. EO § 9(a). These are the sorts of funds to which Congress might have been able to impose immigration enforcement conditions consistent with Dole. Instead, the Executive Order threatens all funding unrelated to law enforcement, while paradoxically providing a mechanism by which potentially relevant funding may escape the ban.
Fourth, Congress may not condition federal spending on a local jurisdiction taking actions that violate the Constitution. Dole, 483 U.S. at 208. Here, the order makes clear that any jurisdiction that fails to honor ICE civil detainer requests will find itself ineligible for federal funding. See EO § 9(b). But federal courts in this District and across the country have held that detaining individuals who would otherwise be released from custody, at ICE’s request, violates the Fourth Amendment. See, e.g., Morales, 793 F.3d at 215–16; Orellana, 2017 WL 72397, at *9; Mendia, 2016 WL 2654327, at *6–7; Miranda-Olivares, 2014 WL 1414305, at *11–12.
Fifth, Congress may not offer “financial inducement . . . so coercive as to pass the point at which pressure turns to compulsion.” Dole, 483 U.S. at 211 (internal quotation marks omitted). As the Supreme Court most recently held in NFIB when striking down the Affordable Care Act’s Medicaid expansion provision, where legislation becomes coercive, it “runs contrary to our system of federalism” because Congress may not use the power of the purse to “coerce[] a State to adopt a federal regulatory system as its own.” 132 S. Ct. at 2602. The Constitution therefore
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forbids Congress from imposing spending conditions so draconian that they amount to “a gun to the head,” leaving the state or local government no realistic choice but to comply. Id. at 2604.
The Executive Order easily fails this test. If the Affordable Care Act’s threat of denying Medicaid funds was an unconstitutional “gun to the head,” id., then the Executive Order is a nuclear weapon. The Medicaid expenditures at issue in NFIB amounted to 20% of the average state’s budget, “with federal funds covering 50 to 83 percent of those costs.” Id. Here, the Executive Order threatens not only the County’s Medicaid funding, but also every other federal dollar the County receives.
Just as the President said, the Executive Order is crafted to deprive the County and similar entities of their ability “to properly operate.” Harris Decl., Ex. B (O’Reilly Interview) at 4. But the President’s threat is “contrary to our system of federalism.” NFIB, 132 S. Ct. at 2602. The Constitution simply does not give the federal government the authority to coerce a state or local government “to adopt a federal regulatory scheme as its own.” Id.
b. The Executive Order is an invalid exercise of executive power under Youngstown.
It is well-settled that the President’s power, “if any,” to issue executive orders “must stem either from an act of Congress or from the Constitution itself.” Youngstown, 343 U.S. at 585. The Constitution in no way grants the President the spending power he now claims. Although “a President sometimes has policy reasons . . . for wanting to spend less than the full amount appropriated by Congress for a particular project or program,” “even the President does not have unilateral authority to refuse to spend the funds.” In re Aiken Cty., 725 F.3d 255, 261 n.1 (D.C. Cir. 2013). While serving as Assistant Attorney General, the late-Chief Justice Rehnquist put it this way: “With respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such a broad power is supported by neither reason nor precedent.”11 The future Chief Justice had it right—the President lacks the power he has granted himself with a pen stroke.
11 Memo. from William H. Rehnquist, Assistant Att’y Gen., Office of Legal Counsel, to Edward L. Morgan, Dep. Counsel to the President (Dec. 1, 1969), reprinted in Executive Impoundment of
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The Executive Order evinces little attempt to ground the vast new authority it seizes for
the executive branch in any specific constitutional or statutory authority. In issuing this sweeping
order, President Trump points only to “the Immigration and Nationality Act (INA) (8 U.S.C.
1101 et seq.),” as well as “Article II, Section 3 of the United States Constitution and section 3331
of title 5, United States Code.” EO §§ 1, 2. But none of those provisions grants the President the
powers he now claims. The INA says nothing about withholding federal funds from “sanctuary
jurisdictions” or taking enforcement actions against them. Indeed, the phrase “sanctuary
jurisdiction” is found nowhere in the Act. Article II, Section 3 of the Constitution is the “Take
Care” clause, which by its terms requires the President to follow and execute the laws Congress
enacted, not to seize legislative power for himself. That clause has never been interpreted to
allow a power grab of the type the President now attempts. And 5 U.S.C. § 3331 is the oath of
office every federal official—except the President—takes when appointed to a federal office. It
provides no independent authority for the President’s order.
Not only does the Executive Order lack any statutory basis, it also enacts a policy that
Congress has already expressly considered and rejected. “When the President takes measures
incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for
then he can rely only upon his own constitutional powers minus any constitutional powers of
Congress over the matter.” Youngstown, 343 U.S. at 637 (Jackson, J., concurring) (adopted in
Dames & Moore v. Regan, 453 U.S. 654, 669 (1981)). The President’s power is at its lowest ebb
here. On multiple occasions, both houses of Congress have expressly considered and rejected
tying state and local governments’ compliance with 8 U.S.C. § 1373 to their eligibility for particular federal funding streams.12 The fact that none of these introduced bills became law
Appropriated Funds: Hearings Before the Subcomm. on Separation of Powers of the S. Comm. on the Judiciary, 92d Cong. 279, 282 (1971). 12 See, e.g., Ending Sanctuary Cities Act of 2016, H.R. 6252, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016); Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. (2015); Sanctuary City All Funding Elimination Act of 2015, H.R. 3073, 114th Cong. (2015); Mobilizing Against Sanctuary Cities Act, H.R. 3002, 114th Cong. (2015); Stop Sanctuary Cities Act, S. 1814, 114th Cong. (2015); Improving Cooperation with States and Local Governments and Preventing the Catch and Release of Criminal Aliens Act of 2015, S.
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indicates that Congress has considered the matter and rejected the President’s defunding scheme
as bad policy. Cf. Youngstown, 343 U.S. at 637–38; see also Pangilinan v. I.N.S., 809 F.2d 1449,
1455 n.2 (9th Cir. 1987) (where legislation “died in committee,” Congress “considered the matter
and refused to provide a remedy”) (Kozinski, J., dissenting from order denying en banc review).
Moreover, by granting the executive branch absolute authority to impound federal funds,
the Executive Order contravenes the Impoundment Control Act of 1974. 2 U.S.C. § 683. That
statute requires the President to propose the rescission of specific, congressionally allocated
funds, allowing Congress to decide whether to approve that rescission. Id. The Executive Order,
by contrast, unilaterally impounds federal funds wholesale.
In sum, the Executive Order claims for the executive branch powers that the Constitution
grants to other branches by design. That design was no accident. These powers, consolidated,
represent the threat to liberty James Madison warned of in the Federalist Papers. See The
Federalist No. 47 (James Madison). Quoting Montesquieu, Madison warned: “When the
legislative and executive powers are united in the same person or body . . . there can be no liberty,
because apprehensions may arise lest THE SAME monarch or senate should ENACT tyrannical
laws to EXECUTE them in a tyrannical manner.” Id. The Executive Order epitomizes the
danger the Founders designed the Constitution to thwart. The County is therefore likely to
succeed on the merits of its separation of powers claim.
2. The County is likely to prevail on its claim that the Executive Order violates the Tenth Amendment.
Because the County is likely to prevail on its separation of powers claim, the Court need
not consider its other claims to grant the requested preliminary injunction. See Ariz. Dream Act
1812, 114th Cong. (2015); Protecting American Citizens Together Act, S. 1764, 114th Cong. (2015); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. (2015); A Bill to Prohibit Appropriated Funds from Being Used in Contravention of Section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, S. 80, 114th Cong. (2015). Most strikingly, then-Senator Jeff Sessions introduced one such bill in 2015. See Michael Davis, Jr. and Danny Oliver in Honor of State and Local Law Enforcement Act, S. 1640, 114th Cong. (2015). Although Mr. Sessions’s bill died in the Senate Judiciary Committee, the Executive Order now grants him—as U.S. Attorney General—the same power (plus more) that he failed to win through the legislative process as a Senator. See Compl. ¶¶ 96–106.
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1 Coal. v. Brewer, 757 F.3d 1053, 1063 (9th Cir. 2014). Even so, the County is equally likely to

2 succeed on the merits of its remaining claims.

3

The County is likely to prevail on its Tenth Amendment claim. The Supreme Court has

4 “made clear that the Federal Government may not compel the States to implement, by legislative

5 or executive action, federal regulatory programs.” Printz v. United States, 521 U.S. 898, 925

6 (1997) (emphasis added); see also New York v. United States, 505 U.S. 144, 175–76, 188 (1992)

7 (federal government may not “compel the states to enact or administer a federal regulatory

8 program”). Yet that is exactly what the Executive Order is designed to accomplish.

9

Under the Supreme Court’s Tenth Amendment jurisprudence, the federal government may

10 neither direct a state or locality to enact certain legislation, nor require it to implement and

11 enforce federal law. In Printz, for example, the Supreme Court held that the federal government

12 violates the Tenth Amendment’s prohibition against commandeering local governments even

13 when the federal government requires the states only to provide “limited, non-policymaking help

14 in enforcing” federal law. 521 U.S. at 926–27.

15

The Executive Order makes the unconstitutional provision struck down in Printz appear

16 modest by comparison. There, Congress had required local law enforcement officers to perform

17 background checks on firearm purchasers using existing federal and state databases. Id. at 933–

18 34. Here, the Executive Order conscripts state and local law enforcement officials, under penalty

19 of the most severe federal reprisal possible, to participate in federal immigration enforcement

20 activities by actively sharing information with ICE and jailing immigrants who would otherwise

21 be eligible for release. EO § 9(a)–(b). To make matters worse, the Executive Order directs the

22 Attorney General to “take appropriate enforcement action”—whatever that might be—“against

23 any entity,” including a local government such as the County, that “has in effect a statute, policy,

24 or practice that prevents or hinders the enforcement of Federal law.” Id. § 9(a).

25

These conditions violate the Tenth Amendment. They put a gun to the head of state and

26 local governments, forcing them to make the unconstitutional choice of doing whatever the

27 federal government tells them to or forfeiting the federal funds they depend on to provide

28 essential services and responsibly budget, all the while fearing unspecified federal “enforcement

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actions” brought in the Attorney General’s unfettered discretion. As the Court held in NFIB, even Congress could not constitutionally “force the States to implement a federal program” through a coercive use of the spending power. 132 S. Ct. at 2602. The President certainly cannot do so via executive order. Accordingly, the County is likely to succeed on its Tenth Amendment claim.
3. The County is likely to prevail on its claim that the Executive Order is void for vagueness.
The County is likely to prevail on its claim that the Executive Order is unconstitutionally vague under the Fifth Amendment’s Due Process Clause. See Compl. ¶¶ 135–42. A federal law is unconstitutionally vague if it (1) “fails to provide a person of ordinary intelligence fair notice of what is prohibited,” or (2) “is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008). The constitutional vagueness standard applies with full force to executive orders. See United States v. Soussi, 316 F.3d 1095, 1101 (10th Cir. 2002). The Executive Order fails both of these tests.
First, the Executive Order fails to provide the County with fair notice of what conduct is required or prohibited. See supra at 12–13. It is far from clear what full compliance with the Trump Administration’s immigration enforcement agenda entails, let alone what the County must do (or stop doing) to persuade the Attorney General that it has no “practice that prevents or hinders the enforcement of Federal law.” EO § 9(a). Indeed, the order is “so vague and standardless” that even one of the Defendants charged with implementing it—Secretary of Homeland Security John Kelly—is at a loss to explain it. See Giaccio v. Penn., 382 U.S. 399, 402–403 (1966). When asked during a recent press event to define a “sanctuary city,” he responded, “I don’t have a clue.” Harris Decl. ¶ 5 & Ex. D (Dep’t of Homeland Sec., Pool Notes from Secretary Kelly’s Trip to San Diego, Feb. 10, 2017) at 3 (emphasis added).
Second, the Executive Order lacks any clear standards or criteria, vesting the Attorney General and Secretary with unfettered discretion to determine which jurisdictions fall within the Executive Order’s ambit, whether they have “willfully refuse[d] to comply” with Section 1373, and whether “appropriate enforcement action” is required. Id. § 9(a). Where, as here, “vagueness
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permeates the text” of a law, it violates the Fifth Amendment. City of Chicago v. Morales, 527 U.S. 41, 56 (1999). The County is likely to succeed on the merits of this claim.
4. The County is likely to prevail on its claim that the Executive Order deprives the County of procedural due process.
Finally, the County is likely to succeed on its claim that the Executive Order fails to provide it with the procedural due process the Fifth Amendment demands. The County must establish two elements: (1) a protectable liberty or property interest; and (2) a denial of adequate process. See Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005).
First, to have a protectable property interest, a person “must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972).13 A legitimate claim of entitlement may be derived from contracts with public entities. See Doran v. Houle, 721 F.2d 1182, 1184–85 (9th Cir. 1983).
The County has a legitimate claim of entitlement to federal funds that Congress has already appropriated and directed to local entities such as the County. The Supreme Court has “repeatedly characterized” congressional appropriations to state and local jurisdictions as “in the nature of a contract.” NFIB, 132 S. Ct. at 2602 (internal quotation marks omitted) (emphasis in original). Once Congress appropriates federal money and the County has “voluntarily and knowingly accept[ed] the terms of the contract,” Congress (much less the President) lacks the power to retroactively impose eligibility conditions on those funds, clawing the money back if the County fails to meet the newly imposed conditions. Id.; see also Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 n.13 (1981) (“The legitimacy of Congress’ power to legislate under the spending power thus rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract’”). Indeed, the Supreme Court has repeatedly recognized that state and local governments have a constitutionally protected interest in being free from coercive violations of the congressional spending power. See NFIB, 132 S. Ct. at 2602; Dole, 483 U.S. at 211. The
13 The Ninth Circuit has held that counties are “persons” for the purpose of asserting due process claims related to payment of federal funds. County of Santa Cruz v. Sebelius, 399 Fed. App’x 174, 176 (9th Cir. 2010).
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Executive Order runs headlong into this constitutional prohibition. The County has a “legitimate claim of entitlement” to funds that Congress committed and
the County accepted. Indeed, the County developed its budget based on “the expectation that the County would receive the federal funds to which it is entitled under its agreements with a number of federal and state agencies.” Márquez Decl. ¶¶ 12–14. In doing so, the County accepted the terms of a congressional contract and began performing under it. The livelihoods of thousands and the welfare of hundreds of thousands more depend on the money’s continued availability. Accordingly, the County has a protectable property interest in federal appropriations previously authorized by Congress, and the Executive Order directly threatens that interest.
Second, the Defunding and Enforcement Provisions provide no process at all. Instead, they set up a star chamber, where the Attorney General and Secretary caucus privately to determine whether a state or local government is a “sanctuary jurisdiction” or “hinders the enforcement of Federal law.” EO § 9(a). And after making either such finding, those officials “shall” find the jurisdiction ineligible for federal funds, and “shall” take enforcement action. Id.
A targeted state or local government receives no notice, no opportunity to be heard before its fate is decided, and no right to appeal any adverse finding. The Executive Order fails even to require that a jurisdiction deemed guilty of either offense be given notice when the finding is made. Instead, the jurisdiction might learn of the decision only when the expected funds never arrive, when the federal government attempts to claw back previously appropriated funds retroactively, or when the enforcement action is levied. The targeted state or local government has no administrative or judicial recourse at any stage of this process.
By purporting to strip the County of federal funding without notice, the opportunity to be heard, administrative or judicial review, or appellate rights, the Executive Order violates the Fifth Amendment. The County is likely to succeed on the merits of this claim.
B. The Executive Order causes imminent and irreparable harm to the County. The Executive Order is intended to carry the force of law. Legal Aid Soc. of Alameda Cty. v. Brennan, 608 F.2d 1319, 1329 n.14 (9th Cir. 1979). As such, it has concrete and immediate effects on the County’s budget and, fundamentally, its ability to operate. The County is suffering
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1 at least four types of immediate and irreparable harm directly tied to the Executive Order—each

2 of which is independently sufficient to support the requested preliminary injunction.

3

First, as a matter of law, “the deprivation of constitutional rights ‘unquestionably

4 constitutes irreparable injury.’” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012)

5 (internal quotation marks omitted); see also Rodriguez v. Robbins, 715 F.3d 1127, 1144–45 (9th

6 Cir. 2013) (same). As explained above, the Executive Order shreds the County’s constitutional

7 rights by contravening the separation of powers inherent in the Constitution, conscripting County

8 officials to carry out a federal regulatory program, and imposing crippling financial penalties

9 without any semblance of due process.

10

The County need not wait for a funding ineligibility determination or an enforcement

11 action before obtaining an injunction. Injunctive relief is appropriate once a party has shown a

12 “credible threat of prosecution” under an unconstitutional law. Valle del Sol Inc. v. Whiting, 732

13 F.3d 1006, 1029 (9th Cir. 2013). Given the County’s policies regarding ICE detainers and federal

14 immigration enforcement, there is no doubt that the County has a “credible threat” of being

15 targeted under the Executive Order.

16

Second, forcing the County to change its policies to comply with an unconstitutional order

17 invades its independent policymaking role and constitutes irreparable harm. Where, as here, an

18 executive directive is “designed to force Plaintiffs to amend their policies to comply or place their

19 federal funding in jeopardy,” preliminary injunctive relief is appropriate. Texas v. United States,

20 No. 7:16-CV-00054-O, 2016 WL 4426495, at *5 (N.D. Tex. Aug. 21, 2016).

21

An injunction is especially necessary here in light of the fact that compliance with the

22 Executive Order is impossible. The order is so vague that the County has no idea what it must do

23 to avoid being deemed ineligible for federal funds and other unspecified enforcement actions by

24 Defendants. Moreover, if the County were to change its policies and begin holding inmates

25 beyond when they would otherwise be held on criminal charges, the County would violate the

26 Fourth Amendment rights of those inmates and potentially subject itself to civil liability. See

27 Morales, 793 F.3d at 215–16; Miranda-Olivares, 2014 WL 1414305, at *11–12. And it is far

28 from clear that the County could simultaneously comply with the Executive Order and

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California’s TRUST Act. See Cal. Gov’t Code § 7282.5 (limiting state and local governments’ compliance with ICE civil detainer requests). Finally, because much of the County’s federal funds flow through the State of California, see Márquez Decl. ¶ 8, County compliance would do little good if the President follows through on his promise to rein in “out of control” California by withdrawing federal funds from the entire state. Harris Decl., Ex. B (O’Reilly Interview) at 4.
Third, the County is currently spending hundreds of millions of dollars each month on services for which it is entitled to, but now may be denied, federal reimbursement. As County Executive Jeff Smith explained, unless the Executive Order is enjoined, the County will be forced to choose between two devastating alternatives: either “continue to provide services to its residents without any assurance that it will be reimbursed by the federal government for those services,” or “discontinue essential and mandatory services to its residents.” J. Smith Decl. ¶ 9. And complying with the Executive Order is not a viable option, as discussed above. See id. ¶ 12; Márquez Decl. ¶¶ 21, 28. Because the County’s federally funded programs operate continuously and largely on a reimbursement basis, the County must decide (and is deciding) now whether to continue incurring costs that the Executive Order imperils, or instead discontinue critical health, safety, and welfare services, shelve plans, and lay off scores of County employees and contractors. J. Smith Decl. ¶¶ 8–10; Márquez Decl. ¶¶ 14–15, 19; see also Lorenz Decl. ¶ 8; Cody Decl. ¶ 13–15; Reed Decl. ¶¶ 8, 10–20. Adopting a wait-and-see approach is not feasible; every day that the County expends funds on the expectation of federal reimbursement, the County risks a retroactive ineligibility determination and clawback under the Executive Order.
Fourth, the Executive Order has created a cloud of financial uncertainty so overwhelming that it irreparably harms the County’s ability to budget, govern, and ultimately provide services to the residents it serves. See J. Smith Decl. ¶¶ 6–11; Márquez Decl. ¶¶ 4, 11–21. Based on its entitlement to receive previously allocated federal funds, the County has made (and is making) budgeting, programming, and hiring decisions. Márquez Decl. ¶¶ 12–14, 17. The Executive Order fundamentally destabilizes the foundation of those decisions. Indeed, because the Executive Order provides no mechanism by which the federal government must notify the County that it has been rendered ineligible for federal funds, Defendants may already have made such a
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determination unbeknownst to the County.
These injuries are neither speculative nor hypothetical—the County is suffering them
now. As County Executive Jeff Smith stated in his sworn declaration, without preliminary
injunctive relief, “the County will be in an untenable financial situation, and decisions that must
be made while awaiting a final decision could cause the County to go into a financial crisis.” J. Smith Decl. ¶ 8. The County cannot operate under this cloud of fiscal uncertainty.14
C. The balance of hardships and the public interest both favor the County.
The Court “must balance the competing claims of injury and must consider the effect on
each party of the granting or withholding of the requested relief,” while paying “particular regard
for the public consequences” of entering the injunction. Winter, 555 U.S. at 24. Because both
parties are government entities, this balancing merges with the consideration of the public
interest. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v.
Holder, 556 U.S. 418, 435 (2009)). The County therefore addresses these two factors together.
The balance of hardships and the public interest tilt sharply in the County’s favor. As a
general matter, these factors favor “prevent[ing] the violation of a party’s constitutional rights.”
Melendres, 695 F.3d at 1002; see also Ariz. Dream Act Coal., 757 F.3d at 1069. In addition, the
harm to the County if the Executive Order is not enjoined far outweighs any harm an injunction
may cause Defendants. If the Court enters the requested injunction, which is narrowly tailored to
affect only those parts of the Executive Order causing irreparable harm to the County, Defendants
will still be able to enforce federal immigration laws in a constitutional manner. Further, because
the Executive Order will likely “be found unconstitutional, it is therefore questionable whether
14 Because the County has shown irreparable harm, it has established Article III standing as a matter of law. See, e.g., Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1286–87 (9th Cir. 2013) (“The same facts by which Shell has shown (1) a likelihood of success on the merits . . . , and (2) that the resulting harm would be irreparable, necessarily establish that Shell has standing to seek injunctive relief.”); Coal. for Econ. Equity v. Wilson, No. C 96 4024 TEH, 1996 WL 691962, at *2 n.4 (N.D. Cal. Nov. 27, 1996) (“Because the Court finds that plaintiffs have demonstrated immediate irreparable injury sufficient to support a TRO, plaintiffs have plainly met the lower threshold for standing.”). There can also be no question that the County’s claims are ripe. See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341 (2014) (“[W]here threatened action by government is concerned,” a plaintiff need not “expose himself to liability before bringing suit to challenge the basis for the threat.”).
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the [Administration] has any ‘valid’ interest in enforcing” it. Planned Parenthood Ass’n of Cincinnati, Inc. v. Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987).
The requested injunction would also serve the public interest. “[T]he public is certainly interested in the prevention of enforcement of ord[ers] which may be unconstitutional.” Id. Moreover, according to the President, the Executive Order’s very purpose is to allow him and his subordinates to deny disfavored jurisdictions, such as the County, the ability to “properly operate” as local governments. See Harris Decl., Ex. B (O’Reilly Interview) at 4. There is no valid federal interest in forcing state and local governments to act as federal immigration enforcers against their will. Under our Constitution’s federalist structure, the County cannot be coerced to enforce federal policy. Absent an injunction, the Executive Order will subjugate the general public’s health, welfare and safety to the President’s whims. The public interest in curbing this abuse of power is paramount. V. CONCLUSION
For the foregoing reasons, the Court should grant the preliminary injunctive relief requested. Because the Executive Order applies to state and local governments across the country—and because partial geographic implementation would lead to inconsistent enforcement—the injunction should apply nationwide. See Washington v. Trump, No. 17-35105, 2017 WL 526497, at *9 (9th Cir. Feb. 9, 2017) (declining to “limit the geographic scope” of a nationwide TRO enjoining application of President Trump’s executive order banning entry of nationals from seven countries); Texas v. United States, 809 F.3d 134, 187–88 (5th Cir. 2015) (affirming nationwide injunction of federal immigration directive to ensure uniformity and provide full relief), aff’d by an equally divided Court, 136 S. Ct. 2271, 2272 (2016) (per curiam).
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Dated: February 23, 2017 Dated: February 23, 2017

Respectfully submitted,
OFFICE OF THE COUNTY COUNSEL, COUNTY OF SANTA CLARA
By: /s/ James R. Williams JAMES R. WILLIAMS, County Counsel GRETA S. HANSEN DANIELLE L. GOLDSTEIN KAVITA NARAYAN JAVIER SERRANO JULIA B. SPIEGEL ADRIANA L. BENEDICT
Attorneys For Plaintiff COUNTY OF SANTA CLARA
KEKER & VAN NEST LLP
By: /s/ John W. Keker JOHN W. KEKER ROBERT A. VAN NEST DANIEL PURCELL CODY S. HARRIS NICHOLAS S. GOLDBERG EDWARD BAYLEY
Attorneys For Plaintiff COUNTY OF SANTA CLARA

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1 OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA
2 JAMES R. WILLIAMS - # 271253 County Counsel
3 james.williams@cco.sccgov.org GRETA S. HANSEN - # 251471
4 DANIELLE L. GOLDSTEIN - # 257486 KAVITA NARAYAN - # 264191
5 JAVIER SERRANO - # 252266 JULIA B. SPIEGEL - # 292469
6 ADRIANA L. BENEDICT - # 306936 70 West Hedding Street
7 East Wing, Ninth Floor San Jose, CA 95110-1770
8 Telephone: 408 299-5900 Facsimile: 408 292-7240
9

KEKER & VAN NEST LLP JOHN W. KEKER - # 49092 jkeker@kvn.com ROBERT A. VAN NEST - # 84065 rvannest@kvn.com DANIEL PURCELL - # 191424 dpurcell@kvn.com CODY S. HARRIS - # 255302 charris@kvn.com NICHOLAS S. GOLDBERG - # 273614 ngoldberg@kvn.com EDWARD A. BAYLEY - #267532 ebayley@kvn.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188

10 ATTORNEYS FOR PLAINTIFF COUNTY OF SANTA CLARA

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14

COUNTY OF SANTA CLARA, 15

Case No. 17-cv-00574-WHO

Plaintiff, 16

[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR

v. 17

PRELIMINARY INJUNCTION

DONALD J. TRUMP, President of the 18 United States of America, JOHN F. KELLY,

Date: Time:

April 5, 2017 2:00 p.m.

in his official capacity as Secretary of the 19 United States Department of Homeland

Dept.: Judge:

Courtroom 2 Hon. William Orrick

Security, JEFFERSON B. SESSIONS, in his 20 official capacity as Attorney General of the

Date Filed: February 3, 2017

United States, JOHN MICHAEL “MICK” 21 MULVANEY, in his official capacity as

Trial Date: Not yet set

Director of the Office of Management and 22 Budget, and DOES 1-50,

23

Defendants.

24

25

26

27

28

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1

On February 23, 2017, Plaintiff County of Santa Clara (the “County”) filed a Motion for

2 Preliminary Injunction, and a hearing on the motion was held on April 5, 2017, at 2:00 p.m.

3 Having considered the papers submitted, the arguments of counsel, and the pleadings on file, the

4 Court hereby enters the following findings of fact and conclusions of law.

5

FINDINGS OF FACT

6

1. The County took the following steps to provide sufficient notice to Defendants:

7

i) Delivered a copy of the underlying Complaint for Declaratory and Injunctive

8

Relief, the motion, declarations, and exhibits, to the United States Attorney for

9

the Northern District of California.

10

ii) Sent a copy of the same by certified mail to the President of the United States

11

in Washington, D.C.;

12

iii) Sent a copy of the same by certified mail to the Attorney General of the United

13

States in Washington, D.C.;

14

iv) Sent a copy of the same by certified mail to the Secretary of the United States

15

Department of Homeland Security in Washington, D.C.; and

16

v) Sent a copy of the same by certified mail to the Director of the United States

17

Office of Management and Budget in Washington, D.C.

18

2. On January 25, 2017, President Donald J. Trump issued Executive Order 13768,

19 entitled “Enhancing Public Safety in the Interior of the United States.” Exec. Order 13768, 82

20 Fed. Reg. 8799 (Jan. 25, 2017) (“EO”).

21

3. Section 1 of the Executive Order sets forth the Order’s purpose, declaring that

22 “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to

23 shield aliens from removal from the United States” and “have caused immeasurable harm to the

24 American people and to the very fabric of our Republic.” Id. § 1.

25

4. Section 9 of the Executive Order concerns these “Sanctuary Jurisdictions” and

26 states that “the Attorney General and the Secretary [of Homeland Security], in their discretion and

27 to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply

28 with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as

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1 deemed necessary for law enforcement purposes by the Attorney General or the Secretary” while

2 further granting the Secretary of Homeland Security “the authority to designate, in his discretion

3 and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.” Id. § 9(a) (the

4 “Defunding Provision”).

5

5. The Defunding Provision is intended to apply to all federal funds. Section 2 of the

6 Executive Order sets forth the “policy of the executive branch,” and describes that policy as,

7 among other things, “[e]nsur[ing] that jurisdictions that fail to comply with applicable Federal

8 law do not receive Federal funds, except as mandated by law.” Id. § 2(c); see also id. § 9(c)

9 (ordering the Director of the Office of Management and Budget to provide “information on all

10 Federal grant money that currently is received by any sanctuary jurisdiction”).

11

6. Section 1373 bars any local government from prohibiting “any government entity

12 or official from sending to, or receiving from, the Immigration and Naturalization Service

13 information regarding the citizenship or immigration status . . . of any individual.” 8 U.S.C. §

14 1373(a). It further forbids any person or agency from restricting any government entity from

15 sending, maintaining, or exchanging such information with federal immigration officials. Id. §

16 1373(b).

17

7. Within the meaning of the Executive Order, the phrase “sanctuary jurisdictions”

18 applies—at a minimum—to state and local governments who “willfully refuse to comply with 8

19 U.S.C. § 1373,” EO § 9(a), or decline to honor Immigration and Customs Enforcement (“ICE”)

20 civil detainer requests. Id. § 9(b) (identifying “sanctuary jurisdictions,” as those “that ignored or

21 otherwise failed to honor any detainers with respect to such aliens”).

22

8. Section 9(a) also contains an enforcement provision, which orders the Attorney

23 General to “take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or

24 which has in effect a statute, policy, or practice that prevents or hinders the enforcement of

25 Federal law.” EO § 9(a) (the “Enforcement Provision”).

26

9. The Executive Order does not define what it means to “prevent[] or hinder[]”

27 federal law enforcement, leaving that determination to the Attorney General. See id.

28

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1

10. The Executive Order also does not specify which federal laws are at issue in the

2 Enforcement Provision.

3

11. The President has stated that it is his intention to deny all taxpayer dollars to

4 jurisdictions he believes are hindering his immigration enforcement agenda, thereby “ending”

5 such jurisdictions altogether. See Compl. ¶ 93 (listing statements); see also, e.g., Fox Sports, Bill

6 O’Reilly Interviews President Donald J. Trump Before Super Bowl LI, YouTube (Feb. 5, 2017)

7 https://www.youtube.com/watch?v=74DAI2hr9Kk (5:15–5:20) (the President stating that Section

8 9 of the Executive Order is intended to be used as a “weapon” to deprive jurisdictions of “the

9 money they need to properly operate as a city or state”); The White House, Press Briefing by

10 Press Secretary Sean Spicer, 2/8/2017, #10 (Feb. 8, 2017), https://www.whitehouse.gov/the-

11 press-office/2017/02/08/press-briefing-press-secretary-sean-spicer-282017-10 (the President’s

12 press secretary telling reporters that the President intended to ensure that “counties and other

13 institutions that remain sanctuary cities don’t get federal government funding in compliance with

14 the executive order”).

15

12. The County’s policies and practices are at odds with the directive in the Executive

16 Order that conditions federal funding, at a minimum, on “compl[iance] with 8 U.S.C. § 1373” and

17 “honor[ing]” ICE civil detainer requests. See EO § 9(a), (b).

18

13. In 2010, the Board of Supervisors adopted a Resolution barring all County

19 employees from transmitting to ICE information collected by the County in the course of

20 providing critical social services, as well as initiating an inquiry or enforcement action based

21 solely on an individual’s actual or suspected immigration status, national origin, race/ethnicity, or

22 English-speaking ability. Márquez Decl. ¶ 27 & Ex. G; Neusel Decl. ¶ 7; L. Smith Decl. ¶ 6.

23 The Resolution further prohibits the use of County funds or resources to pursue an individual

24 solely because of an actual or suspected violation of immigration law. Id.

25

14. The County has also developed separate policies and practices regarding ICE civil

26 detainer requests. Pursuant to its current policy, the County honors ICE civil detainer requests

27 only for individuals with serious or violent felony convictions, as defined by California law, and

28 only if ICE agrees to reimburse the full costs to the County of honoring the requests. L. Smith

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1 Decl. ¶ 5; Neusel Decl. ¶ 6; Márquez Decl. ¶ 26 & Ex. E. ICE has refused to reimburse costs

2 associated with honoring detainers. Neusel Decl. ¶ 6. The County has declined to honor ICE

3 detainer requests since the policy’s implementation in November 2011. Id.

4

15. Due to the above policies and practices, the County faces a credible threat of being

5 designated a “sanctuary jurisdiction” by the Attorney General and the Secretary of Homeland

6 Security, and thereby being deemed ineligible to receive any federal funding pursuant to Section

7 9 of the Executive Order.

8

16. In fiscal year 2015–2016, the County received approximately $1.7 billion in

9 federal and federally dependent funds, representing roughly 35% of the County’s revenue during

10 that fiscal year. J. Smith Decl. ¶ 6; Márquez Decl. ¶ 8.

11

17. The County uses the vast majority of this federal funding to provide essential

12 safety-net programs and social services to its residents. Márquez Decl. ¶¶ 5–8.

13

18. Without these federal funds, the County would be forced to make extraordinary

14 cuts to critical services—or even eliminate key County services and functions altogether. Id. ¶¶

15 4, 16–18; J. Smith Decl. ¶¶ 6–11; see also, e.g., Márquez Decl. ¶¶ 16–18; Lorenz Decl. ¶ 8;

16 Menicocci Decl. ¶¶ 17–26; Cody Decl. ¶¶ 13–15; Reed Decl. ¶¶ 8, 10–20. The withdrawal, or

17 any substantial reduction, of federal funding “would decimate the County budget and cause

18 immediate and devastating injury to the 1.9 million residents who rely on the essential services

19 that the County provides.” J. Smith Decl. ¶ 6.

20

19. The ability to rely on federal funding commitments plays a critical role in the

21 County’s budgeting process. Márquez Decl. ¶ 14. For the current fiscal year, the County adopted

22 a balanced budget based on the expectation that it will receive the federal funds to which it is

23 entitled under existing agreements with federal and state agencies. Id. The County is currently

24 spending millions of dollars on services for which it ultimately will seek to be reimbursed from

25 federal funds. Id. ¶ 15. As a direct result of the Executive Order, the County suddenly faces the

26 reality that roughly $1.7 billion in anticipated annual revenues could be withheld or clawed back

27 under the Executive Order. J. Smith Decl. ¶¶ 6–11; Márquez Decl. ¶¶ 4, 11, 14–15. The County

28

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1 has no means by which it could absorb the resulting shortfall. J. Smith Decl. ¶ 11; Márquez Decl.

2 ¶ 11.

3

20. The County faces an immediate and irreparable injury as a result of the signing

4 and implementation of the Executive Order.

5

21. These harms are ongoing and significant.

6

22. A preliminary injunction is in the public interest. The public has no interest in the

7 enforcement of an executive order that is likely to be found unconstitutional. Furthermore, the

8 public interest in allowing state and local governments to continue to function significantly

9 outweighs any harm the federal government may suffer from maintaining the pre-Executive

10 Order status quo.

11

23. A preliminary injunction, as provided below, is necessary until a determination of

12 the merits of the County’s claims can be held.

13

CONCLUSIONS OF LAW

14

24. The Court has jurisdiction over Defendants and the subject matter of this action.

15

25. Defendants have been provided sufficient notice as required by Federal Rule of

16 Civil Procedure 65(a)(1).

17

26. The Court deems no security bond is required under Federal Rule of Civil

18 Procedure 65(c).

19

27. To secure a preliminary injunction, the plaintiff must establish that (1) it “is likely

20 to succeed on the merits,” (2) it “is likely to suffer irreparable harm in the absence of preliminary

21 relief,” (3) “the balance of equities tips in [its] favor,” and (4) “an injunction is in the public

22 interest.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).

23

28. Based on the Findings of Fact set forth above, there is a strong likelihood that the

24 County will succeed on the merits of its claims that Section 9 of the Executive Order violates the

25 separation of powers set forth in the U.S. Constitution, the Tenth Amendment’s prohibition on

26 commandeering local officials to act as arms of the federal government, and the Fifth

27 Amendment’s Due Process Clause.

28

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1

29. Despite caveats in the Executive Order suggesting that at least some of its terms

2 will be applied to the extent “consistent with law”—see, e.g., EO §§ 9(a), 18(b)—the Executive

3 Order cannot be applied “consistent with law,” because it confers on the executive branch power

4 it cannot constitutionally possess.

5

30. Because the Executive Order violates the County’s constitutional rights, the

6 County has suffered irreparable injury as a matter of law. Melendres v. Arpaio, 695 F.3d 990,

7 1002 (9th Cir. 2012) (internal quotation marks omitted); see also Rodriguez v. Robbins, 715 F.3d

8 1127, 1144–45 (9th Cir. 2013) (same).

9

31. The County need not wait for a funding ineligibility determination or an

10 enforcement action before obtaining an injunction. Injunctive relief is appropriate because the

11 County has shown a “credible threat of prosecution” under the Executive Order. See Valle del Sol

12 Inc. v. Whiting, 732 F.3d 1006, 1029 (9th Cir. 2013).

13

32. In addition, where, as here, an executive directive is “designed to force Plaintiffs

14 to amend their policies to comply or place their federal funding in jeopardy,” preliminary

15 injunctive relief is appropriate. Texas v. United States, No. 7:16-CV-00054-O, 2016 WL

16 4426495, at *5 (N.D. Tex. Aug. 21, 2016).

17

33. Absent a preliminary injunction, the County and its 1.9 million residents will

18 continue to suffer immediate, ongoing, and irreparable harm resulting from the Executive Order.

19

34. The balance of equities and the public interest tip sharply in the County’s favor

20 and support granting preliminary injunctive relief. This preliminary injunction will maintain the

21 status quo while the parties litigate the important constitutional issues presented in the County’s

22 lawsuit.

23

35. The preliminary injunction, as provided below, should apply nationwide, because

24 partial geographic implementation would lead to inconsistent enforcement. See Washington v.

25 Trump, No. 17-35105, 2017 WL 526497, at *9 (9th Cir. Feb. 9, 2017) (declining to “limit the

26 geographic scope” of a nationwide TRO enjoining application of President Trump’s executive

27 order banning entry of nationals from seven countries); Texas v. United States, 809 F.3d 134,

28 187–88 (5th Cir. 2015) (affirming nationwide injunction of federal immigration directive to

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1 ensure uniformity and provide full relief), aff’d by an equally divided Court, 136 S. Ct. 2271,

2 2272 (2016) (per curiam).

3

4

PRELIMINARY INJUNCTION

5

Now, therefore, it is hereby ORDERED that:

6

1. Defendants and all their respective officers, agents, servants, employees and

7 attorneys, and persons in active concert or participation with them who receive actual notice of

8 this order are hereby fully enjoined from the following:

9

i) Enforcing Section 9 of the Executive Order;

10

ii) Taking any action in furtherance of any withholding or conditioning of

11 federal funds pursuant to the Executive Order; and

12

iii) Taking any action pursuant to the Executive Order to declare any

13 jurisdiction ineligible for federal funds or deprive any jurisdiction of funds already appropriated

14 or allocated by Congress.

15

2. This injunction is granted nationwide.

16

17

18

IT IS SO ORDERED.

19 Dated:
20
21

HON. WILLIAM H. ORRICK

22

23

24

25

26

27

28

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1 OFFICE OF THE COUNTY COUNSEL

KEKER & VAN NEST LLP

COUNTY OF SANTA CLARA

JOHN W. KEKER - # 49092

2 JAMES R. WILLIAMS - # 271253

jkeker@kvn.com

County Counsel

ROBERT A. VAN NEST - # 84065

3 james.williams@cco.sccgov.org

rvannest@kvn.com

GRETA S. HANSEN - # 251471

DANIEL PURCELL - # 191424

4 DANIELLE L. GOLDSTEIN - # 257486

dpurcell@kvn.com

KAVITA NARAYAN - # 264191

CODY S. HARRIS - # 255302

5 JAVIER SERRANO - # 252266

charris@kvn.com

JULIA B. SPIEGEL - # 292469

NICHOLAS S. GOLDBERG - # 273614

6 ADRIANA L. BENEDICT - # 306936

ngoldberg@kvn.com

70 West Hedding Street

633 Battery Street

7 East Wing, Ninth Floor

San Francisco, CA 94111-1809

San Jose, CA 95110-1770

Telephone: 415 391 5400

8 Telephone: 408 299-5900

Facsimile: 415 397 7188

Facsimile: 408 292-7240

9

Attorneys For Plaintiff COUNTY OF SANTA CLARA

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

15

Plaintiff,

PROOF OF SERVICE

16

v.

17 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY,
18 in his official capacity as Secretary of the United States Department of Homeland
19 Security, JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the
20 United States, JOHN MICHAEL "MICK" MULVANEY, in his official capacity as
21 Director of the Office of Management and Budget, and DOES 1-50,
22
Defendant. 23

Date: Time: Dept.: Judge:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William Orrick

Date Filed: February 3, 2017

Trial Date: Not yet set

24

25

26

27

28

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Case 5:17-cv-00574-WHO Document 26-2 Filed 02/23/17 Page 2 of 4

1

PROOF OF SERVICE

2 I am employed in the City and County of San Francisco, State of California in the office of a

3

member of the bar of this court at whose direction the following service was made. I am over the age of eighteen years and not a party to the within action. My business address is Keker & Van

4 Nest LLP, 633 Battery Street, San Francisco, CA 94111-1809.

5 On February 23, 2017, I served the following document(s):

6

COUNTY OF SANTA CLARA’S MOTION FOR PRELIMINARY

INJUNCTION 7

8

DECLARATION OF SARA H. CODY M.D., DIRECTOR OF SANTA CLARA COUNTY PUBLIC HEALTH DEPARTMENT

9

DECLARATION OF PAUL E. LORENZ, CHIEF EXECUTIVE OFFICER

10

OF SANTA CLARA VALLEY MEDICAL CENTER

11

DECLARATION OF SANTA CLARA COUNTY CHIEF OPERATING

OFFICER MIGUEL MARQUEZ 12

DECLARATION OF ROBERT MENICOCCI, DIRECTOR OF SANTA

13

CLARA COUNTY SOCIAL SERVICES AGENCY

14

DECLARATION OF CARL NEUSEL, UNDERSHERIFF OF SANTA

15

CLARA COUNTY

16

DECLARATION OF DANA REED, DIRECTOR OF EMERGENCY

MANAGEMENT FOR THE COUNTY OF SANTA CLARA

17

DECLARATION OF SANTA CLARA COUNTY DISTRICT ATTORNEY

18

JEFFREY F. ROSEN

19

DECLARATION OF SANTA CLARA COUNTY EXECUTIVE JEFFREY

20

V. SMITH

21

DECLARATION OF LAURIE SMITH, SHERIFF OF SANTA CLARA

COUNTY

22

DECLARATION OF CODY S. HARRIS IN SUPPORT OF COUNTY OF

23

SANTA CLARA’S MOTION FOR PRELIMINARY INJUNCTION

24

[PROPOSED] ORDER GRANTING PLAINTIFF’S MOTION FOR

25

PRELIMINARY INJUNCTION

26

27

28
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1
PROOF OF SERVICE Case No. 17-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 26-2 Filed 02/23/17 Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1145778

 by UNITED STATES MAIL CERTIFIED MAIL, RETURN RECEIPT REQUESTED: by placing Copy in a sealed envelope addressed as shown below. I am readily familiar with the practice of Keker & Van Nest LLP for collection and processing of correspondence for mailing. According to that practice, items are deposited with the United States Postal Service at San Francisco, California on that same day with postage thereon fully prepaid. I am aware that, on motion of the party served, service is presumed invalid if the postal cancellation date or the postage meter date is more than one day after the date of deposit for mailing stated in this affidavit.

 by COURIER, by placing Copy in a sealed envelope addressed as shown below, and dispatching a messenger from Nationwide Legal LLC, whose address is 859 Harrison Street, Suite A, San Francisco, CA 94107, with instructions to hand-carry the above and make delivery to the following during normal business hours, by leaving the package with the person whose name is shown or the person authorized to accept courier deliveries on behalf of the addressee.

 by E-MAIL VIA PDF FILE, by transmitting on this date via e-mail a true and correct copy scanned into an electronic file in Adobe “pdf” format. The transmission was reported as complete and without error.

 by regular UNITED STATES MAIL by placing Copy in a sealed envelope addressed as shown below. I am readily familiar with the practice of Keker & Van Nest LLP for collection and processing of correspondence for mailing. According to that practice, items are deposited with the United States Postal Service at San Francisco, California on that same day with postage thereon fully prepaid. I am aware that, on motion of the party served, service is presumed invalid if the postal cancellation date or the postage meter date is more than one day after the date of deposit for mailing stated in this affidavit.

Donald J. Trump President of the United States of America The White House 1600 Pennsylvania Avenue NW Washington, DC 20500

VIA CERTIFIED MAIL

John F. Kelly Secretary of Homeland Security of the United States U.S. Department of Homeland Security 245 Murray Lane SW Washington, DC 20528

VIA CERTIFIED MAIL

Jefferson B. Sessions Attorney General of the United States U.S. Department of Justice 950 Pennsylvania Avenue, NW Washington, DC 20530

VIA CERTIFIED MAIL

2
PROOF OF SERVICE Case No. 17-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 26-2 Filed 02/23/17 Page 4 of 4

1 John Michael “Mick” Mulvaney

Director 2 The Office of Management and Budget

3

725 17th Street, NW Washington, DC 20503

4 Brian Stretch
5 United States Attorney for the Northern

6

District of California 450 Golden Gate Avenue

7 San Francisco, CA 94102

VIA CERTIFIED MAIL VIA COURIER

8 W. Scott Simpson

Department of Justice 9 Civil Division, Room 7210

10

Federal Programs Branch P.O. Box 883

11 Washington, DC 20044 Scott.simpson@usdoj.gov

12

VIA EMAIL AND U.S. MAIL

13 Executed on February 23, 2017, at San Francisco, California.

14 I declare under penalty of perjury under the laws of the State of California that the above is true 15 and correct.

16

17

Sandy Giminez

18

19

20

21

22

23

24

25

26

27

28
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 Case 5:17-cv-00574-LHK Document 27 Filed 02/23/17 Page 1 of 8

1 OFFICE OF THE COUNTY COUNSEL

KEKER & VAN NEST LLP

COUNTY OF SANTA CLARA

JOHN W. KEKER - # 49092

2 JAMES R. WILLIAMS - # 271253

jkeker@kvn.com

County Counsel

ROBERT A. VAN NEST - # 84065

3 james.williams@cco.sccgov.org

rvannest@kvn.com

GRETA S. HANSEN - # 251471

DANIEL PURCELL - # 191424

4 DANIELLE L. GOLDSTEIN - # 257486

dpurcell@kvn.com

KAVITA NARAYAN - # 264191

CODY S. HARRIS - # 255302

5 JAVIER SERRANO - # 252266

charris@kvn.com

JULIA B. SPIEGEL - # 292469

NICHOLAS S. GOLDBERG - # 273614

6 ADRIANA L. BENEDICT - # 306936

ngoldberg@kvn.com

70 West Hedding Street

633 Battery Street

7 East Wing, Ninth Floor

San Francisco, CA 94111-1809

San Jose, CA 95110-1770

Telephone: 415 391 5400

8 Telephone: 408 299-5900

Facsimile: 415 397 7188

Facsimile: 408 292-7240

9

Attorneys For Plaintiff COUNTY OF SANTA CLARA

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

15

Plaintiff,

16

v.

17 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY,
18 in his official capacity as Secretary of the United States Department of Homeland
19 Security, JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the
20 United States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as
21 Director of the Office of Management and Budget, and DOES 1-50,
22
Defendants. 23

DECLARATION OF SARA H. CODY M.D., DIRECTOR OF SANTA CLARA COUNTY PUBLIC HEALTH DEPARTMENT

Date: Time: Dept.: Judge:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

Date Filed: February 3, 2017

Trial Date: Not yet set

24

25

26

27

28

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Case 5:17-cv-00574-LHK Document 27 Filed 02/23/17 Page 2 of 8

1

I, SARA H. CODY, M.D., declare as follows:

2

l.

I am a resident of the State of California. I have personal knowledge of the facts

aJ set forth in this declaration. If called as a witness, I could and would testify competently to the

4 matters set forth herein.

5

2.

I am the Director of the County of Santa Clara's ("County") Public Health

6 Department, as well as the Health Offrcer for the County and each of the 15 cities located within

7 the County. I have held the Health Officer position from 2013 to the present, and I have held the

8 Public Health Department Director position from 2015 to the present. In these roles, I provide

9 leadership on public health issues for the entire County and oversee approximately 450 Public

10 Health Department employees who provide a wide array of services to safeguard and promote the

11 health of the community.

I2

3.

Prior to becoming the Health Offrcer for the County and each of its cities, I was

13 employed for 15 years as a Deputy Health Officer/Communicable Disease Controller at the

t4 County's Public Health Department, where I oversaw surveillance and investigation of individual

l5 cases of communicable diseases, investigated disease outbreaks, participated in planning for

I6 public health emergencies, and responded to Severe Acute Respiratory Syndrome (also known as
17 "SARS"), influenzaA virus subtype HlNl (also known as ooswine flu" or HlNl), and other

l8 public health emergencies.

l9

4.

The mission of the Public Health Department is to promote and protect the health

20 of the County's entire population. None of the County's 15 cities have a health department. All

2l 15 cities, and all the County's residents, rely on the Public Health Department to perform

22 essential public health functions.

23

5.

In the County's most recently completed fiscal year, from July 1, 2015 through

24 June 30, 2016,the Public Health Department's expenditures amounted to approximately $97

25 million. Revenues from federal funds in the same fiscal year amounted to $38.6 million. Most of

26 these federal funds pass through the State of California to the County.

27

28

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DECLARATION OF SARA H. CODY, M.D. Case No. l7-cv-00574-WHO

Case 5:17-cv-00574-LHK Document 27 Filed 02/23/17 Page 3 of 8

I

6.

The work of the Public Health Department is focused on three main areas: (1)

2 infectious disease and emergency response, (2) mafemal, child, and family health, and (3) healthy

J communities.

4

7.

First, the Public Health Department is responsible for safeguarding the public

5 health by preventing and controlling the spread of infectious diseases and planning for and

6 responding to public health emergencies. Programs in this branch of the Public Health

7 Department receive reports on 85 different diseases and conditions, track overall trends in
I infectious diseases, investigate individual cases of individuals who contract such diseases,

9 provide long term case management for certain categories of patients (e.g. active tuberculosis

t0 cases), investigate how patients came to contract diseases, provide immunizations and preventive
ll therapy, identify, investigate and control outbreaks, conduct HIV and other STD testing and

t2 education for vulnerable communities, and plan for and respond to public health emergencies.

t3

8.

This branch of the Public Health Department also operates two pharmacies

l4 (including one that provides free, donated medicine to individuals who cannot afford the retail

l5 cost of such drugs) and a public health laboratory (a local and regional resource which local

t6 health providers, clinics, hospitals, and even law enforcement rely on to test and identify

t7 infectious diseases, toxins, biohazards, and other substances that could pose a serious risk to

18 public health).

t9

9.

Examples of Public Health Department programs supported by federal funding in

20 Fiscal Year 2015-2016 in the areas of infectious disease and emergency response include the

2t following:

22

a. Under the federal government's Ryan White HIV/AIDS Program, the County received

23

$4.0 million in Ryan White Part A and Part B funds to provide core medical services

24

(including pharmaceutical assistance, early intervention services, home health care,

25

hospice services, mental health services, oral health care, and medical case management)

26

and support services (including medical transportation, linguistic services, referrals for

27

health care and other support services) to low-income individuals living with HIV/AIDS

28

in the County. As of 2015, there werc2,734 persons living with HIV in the County,44

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1

percent of whom were at or below 500yo of the Federal Poverty Level and dependent on

2

Ryan White services. The Ryan White HIV/AIDS Program is a payer of last resort, which

J

means that program funds can only be used when Medi-Cal (California's health insurance

4

program for low-income individuals) and all other third-party sources of payment have

5

been exhausted.

6

b. In addition to Ryan White funding, the County received approximately $2 million in

7

Fiscal Year 2015-2016 for drugs provided to uninsured and underinsured HIV/AIDS

8

patients enrolled in the AIDS Drug Assistance Program. These are patients who were at

9

or below 500% of the Federal Poverty Level and did not qualify for no-cost Medi-Cal.

10

The majority of this $2 million consists of federal funds, with state funds comprising the

11

remainder.

T2

c. Through the National Hospital Preparedness Program and Public Health Emergency

13

Preparedness Cooperative Agreement Programs, the Public Health Department has

t4

received federal funding to prepare for emergencies, such as natural disasters, mass

15

casualties, biological and chemical threats, radiation emergencies and terrorist attacks. In

T6

Fiscal Year 2015-2016,the Public Health Department received $2.6 million in federal

I7

funds for preparedness.

18

10. Second, in the area of maternal, child, and family health, the Public Health

t9 Department provides services for the County's most vulnerable children and families. The

20 following are some of the Public Health Department's federally-funded programs in this area:

2l

a. The California Children's Services (CCS) program provides diagnostic and treatment

22

services, medical case management, and physical and occupational therapy services to

23

children under 2I years of age with CCS-eligible medical conditions, such as cystic

24

fibrosis, hemophilia, cerebral palsy, muscular dystrophy, spina bifida, heart disease,

25

cancer, and traumatic injuries. The CCS program serves well over 5,000 children each

26

year, and in Fiscal Year 2015-2016, it received $4.9 million in federal funds, not including

27

payments from Medi-Cal.

28

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DECLARATION OF SARA H. CODY, M.D. Case No. 17-cv-00574-WHO

Case 5:17-cv-00574-LHK Document 27 Filed 02/23/17 Page 5 of 8

I

b. The Special Supplemental Nutrition Program for Women, Infants and Children (WIC)

2

program safeguards the health of low-income pregnant, postpartum, and breastfeeding

Ja

women, infants, and children up to age 5 who are at nutritional risk by providing

4

nutritious foods to supplement diets, information on healthy eating including

5

breastfeeding promotion and support, and referrals to health care. The program has a

6

caseload of nearly 16,000 individuals each month, and it received $4.1 million in federal

7

funds in Fiscal Year 2015-2016.

8

c. The Child Health and Disability Prevention (CHDP) Program, which received $1.6

9

million in federal funds in Fiscal Year 2015-2016, ensures that low-income children and

10

youth receive routine health assessments and treatment services. Within the CHDP

11

Program, public health nurses also provide case management for foster care youth to

T2

ensure that their medical, dental, mental health, and developmental needs are met.

l3

d. The Targeted Case Management program, which received $1.3 million in federal funds in

t4

Fiscal Year 2015-2016, ensures that Medi-Cal beneficiaries in specific target populations

15

gain access to needed medical, social, educational, and other services.

t6

e. The Childhood Lead Poisoning Prevention Program, which received approximately

t7

$88,000 in federal funds in Fiscal Year 2015-2016, provides nursing and environmental

18

case management and follow-up for lead-poisoned children, promotes screening for lead

t9

poisoning, and provides community education regarding lead poisoning prevention.

20

I l.

Third, to create and maintain healtþ communities, the Department conducts

2l localized health assessments and planning throughout the County, and works with community

22 partners and County leadership to promote systemwide and environmental changes to reduce the

23 incidence of chronic diseases and injuries in the County. Federal support for this area of the

24 County's work includes a grant from the Centers for Disease Control and Prevention's

25 Partnerships to Improve Community Health, which grant supports the County's efforts to treat

26 chronic diseases and prevent injuries. Among other things, this grant promotes healthy food and

27 beverage consumption, active transportation (e.g., installation of public water stations, use of city

28 bicycle and pedestrian trails, assessments of bicycle and pedestrian safety, and support of safe

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DECLARATION OF SARA H. CODY, M.D Case No. l7-cv-00574-WHO

Case 5:17-cv-00574-LHK Document 27 Filed 02/23/17 Page 6 of 8

1 routes for children walking and biking to school), tobacco-free environments to reduce youth 2 access and exposure to tobacco products, and reduced exposure to secondhand smoke in multiJ unit housing. In Fiscal Year 2015-2016, federal revenues from this grant alone amounted to 82.2 4 million. In Fiscal Year 2015-2016,the chronic disease and injury prevention unit also received 5 $1.6 million in federal funds to provide nutrition education and obesity prevention activities and 6 interventions for low-income Californians for primary prevention of nutrition-related chronic

7 disease.

I

12. In addition to the programs described above, the Public Health Department

9 received $6.1 million in Medi-Cal payments andS2.4 million in Medicare payments in Fiscal

10 Year 2015-2016 for health care goods and services provided to patients with Medi-Cal or

11 Medicare coverage. The payments from Medicare, which is the federal health insurance program

t2 for elderly and disabled individuals, consist entirely of federal funds. Medi-Cal is financed by the

13 State and federal governments, and the Medi-Cal payments therefore contain a mixture of Søte

t4 and federal funds. Although the apportionment of the funding is not readily known to the

l5 County, the Medi-Cal payments are dependent on receipt of federal funding from Medicaid, the

t6 federal health insurance program for low-income individuals.

I7

13. The elimination of federal funding to the County would be devastating for the

18 residents of Santa Clara County. It would likely result in a drastic reduction of services and staff

t9 positions in the programs providing direct services to clients, as well as other programs integral to

20 protecting and promoting public health. Vulnerable communities would be most severely

2I impacted by a loss of federal funding to the Public Health Department. The Public Health

22 Department's direct services primarily benefit low-income persons, children, people of color, and

23 people living with chronic diseases, such as HIV/AIDS. Many, if not most, of these individuals

24 simply would not get the care and resources that they need without federally-funded services

25 from the Public Health Department. For example, without federal funding for WIC, thousands

26 more women would not have the appropriate nutrition to ensure healthy pregnancies, healtþ

27 birth outcomes, and healthy children, and thousands more children would suffer from poor

28 nutrition. This would impact not only their immediate health but also their developmental

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DECLARATIONOF SARAH. CODY, M.D. Case No. l7-cv-00574-WHO

Case 5:17-cv-00574-LHK Document 27 Filed 02/23/17 Page 7 of 8

1 readiness for kindergarten and chances for future health and success in life. As another example,

2 loss of funding for CCS would result in reduced therapy and other necessary services for

J thousands of medically fragile and disabled children with expensive and complicated medical

4 conditions. And as yet another example, loss of funding for clients with HIV/AIDS would mean

5 that hundreds of low-income, chronically ill individuals in our community would not receive the

6 health care, drugs, and other essential services they need to survive and enjoy a reasonable quality

7 of life. Patients with HIV infection who are not adequately treated are also at greater risk of

I spreading HIV to others.

9

14. The impact of any loss in federal funding would not be limited to services

10 traditionally funded by federal dollars. Without federal funding, the Public Health Department

11 would face difficult decisions about how to reallocate its remaining, scarce funds among its

t2 programs, which communities to prioritize, and which diseases and health conditions to treat at

13 the expense of others. Rather than being in a position to create and implement strategies to

T4 proactively promote health and prevent disease, the Public Health Department would almost

15 certainly be forced to narrow its focus to ensuring reactive services designed to prevent public

t6 health crises (e.g., communicable disease control), services that the Public Health Department and

t7 Health Officer are mandated by law to provide (e.g., birth and death registration), and a modicum

l8 of services for the neediest populations. A withdrawal of federal funding would compromise the

t9 Public Health Department's ability and resources to respond to public health emergencies and

20 outbreaks, to implement strategies to prevent chronic diseases caused by obesity and tobacco use,

2l to provide equal opportunity to vulnerable children for a healthy start and optimal health, and to

22 foster healthy families and healthy communities.

23

5. 1

Ultimately, a sustained loss of federal funding to the County would result in a far

24 sicker and less healtþ community for generations to come. The collateral costs would be many:

25 greater health care costs for individuals, their families, their employers, and for the County itself,

26 which is mandated by law to provide health care to the medically indigent. In addition to

27 imposing costs on all County residents and institutions, which costs those residents and

28 institutions may not be able to bear, I am familiar with a wide body of studies and literature

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DECLARATION OF SARA H. CODY, M.D. Case No. l7-cv-00574-WHO

Case 5:17-cv-00574-LHK Document 27 Filed 02/23/17 Page 8 of 8

I showing that an increase in incidents of sickness and illness can result in financial instability for

2 families, a less productive workforce, and poorer educational and economic outcomes for

J children.

4

I declare under penalty of perjury under the laws of the State of Califomia that the

5 foregoing is true and correct and that this declaration was executed on

6

LZ

2017 in San Jose, California.

7

I

H. CODY, M.D

9

10

11
t2 l3 t4 l5 l6 l7

18
t9
20
2t
22

23 24

25 26 27 28

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DECLARATION OF SARA H. CODY, M.D Case No. l7-cv-00574-rWHO

 
 Case 5:17-cv-00574-WHO Document 28 Filed 02/23/17 Page 1 of 4

1 OFFICE OF THE COUNTY COUNSEL

KEKER & VAN NEST LLP

COUNTY OF SANTA CLARA

JOHN W. KEKER - # 49092

2 JAMES R. WILLIAMS - # 271253

jkeker@kvn.com

County Counsel

ROBERT A. VAN NEST - # 84065

3 james.williams@cco.sccgov.org

rvannest@kvn.com

GRETA S. HANSEN - # 251471

DANIEL PURCELL - # 191424

4 DANIELLE L. GOLDSTEIN - # 257486

dpurcell@kvn.com

KAVITA NARAYAN - # 264191

CODY S. HARRIS - # 255302

5 JAVIER SERRANO - # 252266

charris@kvn.com

JULIA B. SPIEGEL - # 292469

NICHOLAS S. GOLDBERG - # 273614

6 ADRIANA L. BENEDICT - # 306936

ngoldberg@kvn.com

70 West Hedding Street

633 Battery Street

7 East Wing, Ninth Floor

San Francisco, CA 94111-1809

San Jose, CA 95110-1770

Telephone: 415 391 5400

8 Telephone: 408 299-5900

Facsimile: 415 397 7188

Facsimile: 408 292-7240

9

Attorneys For Plaintiff COUNTY OF SANTA CLARA

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

15

Plaintiff,

16

v.

17 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY,
18 in his official capacity as Secretary of the United States Department of Homeland
19 Security, JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the
20 United States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as
21 Director of the Office of Management and Budget, and DOES 1-50,
22
Defendants. 23

DECLARATION OF PAUL E. LORENZ, CHIEF EXECUTIVE OFFICER OF SANTA CLARA VALLEY MEDICAL CENTER

Date: Time: Dept.: Judge:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

Date Filed: February 3, 2017

Trial Date: Not yet set

24

25

26

27

28

1146968

DECLARATION OF PAUL E. LORENZ Case No. 17-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 28 Filed 02/23/17 Page 2 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1146968

I, PAUL E. LORENZ, declare as follows:
1. I am a resident of the State of California. I have personal knowledge of the facts set forth in this declaration. If called as a witness, I could and would testify competently to the matters set forth herein.
2. I am the Chief Executive Officer of Santa Clara Valley Medical Center (“SCVMC”), which is owned and operated by the County of Santa Clara (“the County”). I have held this position since November, 2012. Prior to my current role at SCVMC, I served as the Chief Deputy Director of the Ventura County Health Care Agency for the County of Ventura. I have served in public health care for over 25 years.
3. SCVMC was founded in 1876 and is a fully integrated and comprehensive public health care delivery system. It provides critical healthcare to residents of the County regardless of their ability to pay. It is the only public safety net healthcare provider in Santa Clara County, and the second largest such provider in the State of California. Generally, safety net providers like SCVMC have a primary mission to care for the indigent population and individuals who are uninsured or underinsured, or on Medicaid, which is the federal healthcare insurance program for low income individuals. Because of this primary mission, safety net providers are by their nature extremely dependent on Medicaid and other federal funding.
4. SCVMC operates a 574-bed tertiary care hospital, eleven ambulatory care clinics, and four medical and dental units, along with specialized centers that provide trauma, burn, rehabilitation, renal, and ambulatory care. It has over 6,000 employees, including 350 physicians who train 170 residents and fellows per year as a graduate medical education provider and teaching institution. SCVMC is a Level 1 Adult Trauma Center and Level 2 Pediatric Trauma Center. Its burn and rehabilitation centers have been nationally recognized, and its ambulatory specialty center, renal care center, and acute inpatient psychiatric unit are state of the art. SCVMC provides a full range of health services, including emergency and urgent care, ambulatory care, behavioral health, comprehensive adult and pediatric specialty services, the
1 DECLARATION OF PAUL E. LORENZ
Case No. 17-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 28 Filed 02/23/17 Page 3 of 4

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1146968

highest-level neonatal intensive pediatric care unit, women’s health, comprehensive hematology/oncology services, and other critical health care services for all residents of Santa Clara County, regardless of their ability to pay.
5. SCVMC provides the vast majority of the healthcare services in the County that are available to poor and underserved patients. In fiscal year 2016, there were nearly 800,000 outpatient visits to SCVMC’s primary care, express care, specialty clinics, and emergency department, and nearly 125,000 days of inpatient stays in the hospital. Patients who are uninsured, reliant on California’s Medicaid program (Medi-Cal), or on Medicare, which is the federal insurance program for elderly and disabled individuals were responsible for approximately 90% of outpatient visits and approximately 87% of inpatient days.
6. For fiscal year 2016, approximately 70% of patient visits to SCVMC were reimbursed through the Medicaid program, and approximately 14% were reimbursed through the Medicare program. In all, approximately 84% of SCVMC’s patients during the most recent fiscal year were dependent on receiving federal funding in order to obtain their healthcare.
7. SCVMC receives approximately $1 billion dollars in direct federal funding or funding that is contingent upon federal revenue streams, primarily from the Medicaid and Medicare programs.1 This funding covers approximately 70% of SCVMC’s expenses. Specifically, SCVMC receives federal funding for several programs, including: (1) Medicare; (2) Medicaid; (3) Medicaid waiver programs (demonstration projects designed to improve and expand overall coverage and improve health outcomes for low income individuals); (4) homeless healthcare grants (which fund access to quality primary health care services for the homeless and other vulnerable populations); and (5) disproportionate share payments and supplemental reimbursements to qualifying hospitals that serve a large number of Medicaid patients.
8. If SCVMC were to lose all its federal funding, it would create a massive and untenable public health crisis in the County. SCVMC would not be able to continue providing
1 A portion of the approximately $1 billion received by SCVMC consists of federal and state sources pooled together for certain Medi-Cal programs for which the breakdown is not readily available. However, the state funding contributed for these programs is dependent on the receipt of accompanying federal funds, and the programs would likely not exist but for the federal funding.
2 DECLARATION OF PAUL E. LORENZ
Case No. 17-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 28 Filed 02/23/17 Page 4 of 4

1 the broad range of services it currently provides to the thousands of poor, elderly and vulnerable 2 populations that rely on SCVMC as the safety net provider for their health care. It would be Ja impossible for SCVMC to continue providing the same range, amount, or quality of services that 4 it currently provides should it lose close to 70Yo of its revenue. If it were stripped of federal 5 funding, it would no longer be able to serve as a Medicaid or Medicare provider, a result that 6 would have catastrophic consequences for County residents. Given the dearth of Medicaid 7 providers in the Count¡ the thousands of patients receiving support from these programs8 including infants and children, the elderly, and those with chronic disease-would be left without 9 viable healthcare options, leaving them with little choice but to flood overcrowded emergency

10 rooms of other nearby hospitals whenever they needed care. Moreover, the loss of federal 1l funding for SCVMC would not only mean fewer and worse healthcare services for the County,
l2 but would also result in a substantially less healthy community, force layoffs of potentially

13 thousands of SCVMC employees, and impose greater health care costs on all County residents T4 and anyone else using SCVMC facilities. At worst, the unforeseeable consequences of the
l5 removal of all federal funding could potentially force the closure of the only public safety net

T6 hospital in the County.

l7

I declare under penalty of perjury under the laws of the State of California that the

18 foregoing is true and correct to the best of my knowledge and belief and that this declaration was

t9 executed on

20t7

California.

20

2t

P

22

23

24

25

26

27

28

1146968

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DECLARATION OF PAUL E. LORENZ Case No. l7-cv-00574-WHO

 
 Case 5:17-cv-00574-WHO Document 29 Filed 02/23/17 Page 1 of 9

1 OFFICE OF THE COUNTY COUNSEL

KEKER & VAN NEST LLP

COUNTY OF SANTA CLARA

JOHN W. KEKER - # 49092

2 JAMES R. WILLIAMS - # 271253

jkeker@kvn.com

County Counsel

ROBERT A. VAN NEST - # 84065

3 james.williams@cco.sccgov.org

rvannest@kvn.com

GRETA S. HANSEN - # 251471

DANIEL PURCELL - # 191424

4 DANIELLE L. GOLDSTEIN - # 257486

dpurcell@kvn.com

KAVITA NARAYAN - # 264191

CODY S. HARRIS - # 255302

5 JAVIER SERRANO - # 252266

charris@kvn.com

JULIA B. SPIEGEL - # 292469

NICHOLAS S. GOLDBERG - # 273614

6 ADRIANA L. BENEDICT - # 306936

ngoldberg@kvn.com

70 West Hedding Street

633 Battery Street

7 East Wing, Ninth Floor

San Francisco, CA 94111-1809

San Jose, CA 95110-1770

Telephone: 415 391 5400

8 Telephone: 408 299-5900

Facsimile: 415 397 7188

Facsimile: 408 292-7240

9

Attorneys For Plaintiff COUNTY OF SANTA CLARA

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 COUNTY OF SANTA CLARA,

Case No. 5:17-cv-00574-WHO

15

Plaintiff,

16

v.

DECLARATION OF SANTA CLARA COUNTY CHIEF OPERATING OFFICER MIGUEL MÁRQUEZ

17 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY,
18 in his official capacity as Secretary of the United States Department of Homeland
19 Security, DANA J. BOENTE, in his official capacity as Acting Attorney General of the
20 United States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as
21 Director of the Office of Management and Budget, and DOES 1-50,
22 Defendants.
23

Date: Time: Dept.: Judge:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

Date Filed: February 3, 2017

Trial Date: Not yet set

24

25

26

27

28

1146013

DECLARATION OF SANTA CLARA COUNTY DISTRICT ATTORNEY MIGUEL MÁRQUEZ Case No. 5:17-cv-00574

Case 5:17-cv-00574-WHO Document 29 Filed 02/23/17 Page 2 of 9

1

I, Miguel Mëtrquez, hereby declare as follows:

2

1. I am the Chief Operating Officer for the County of Santa Clara (the "County"). I

Ja make this declaration in support of the County's motion for preliminary injunction based on my

4 personal knowledge. If called upon to do so, I could and would testify competently to the

5 contents of this declaration.

6

2. I have been the Chief Operating Officer for the County since Augu st2016. In this

7 capacity,I supervise and oversee the County's operations, including among many other things,

8 the development and implementation of County departments' budgets. From 2012-2016, I served

9 as an Associate Justice on Califomia's Sixth District Court of Appeal. Before my appointment to

10 the Court of Appeal, from 2009-2012,I served as County Counsel and the Acting County

11 Counsel of the County. In this capacity,I advised the County Board of Supervisors and

I2 executives on a broad range of legal issues, including issues involving finance, local govemance,

13 and local policy issues, including cooperation with Immigration and Customs Enforcement.

I4 Before my employment at the County, I represented several other public entities in connection

15 with matters involving governance and finance, among other things.

16

3. In all, I have been in high-level roles at the County and other public entities for

I] nearly twenty years. I am extremely familiar with the County's policies, structure, operations,

18 and budgeting processes, and have been involved in the preparation of dozens of public entity

I9 budgets. I am currently integrally involved in the County's budget process.

20

4. I am familiar with Executive Order I3768 of January 25,2017 , entitled

21 "Enhancing Public Safety in the Interior of the United States" (the "Order"). That Order 22 threatens to withhold federal funds from "sanctuary jurisdictions." The potential loss of federal ZJ funding if the County is deemed to be a sanctuary jurisdiction has placed the County's budget

24 process and its plans for providing services in an untenable position. This is due to the

25 trêmendous uncertainty relating to the amount of resources that may or may not be available to

26 provide critical services-now and in the future-to County residents.

21

5. The County provides basic safety-net services to the most vulnerable residents in

28 our community. It also serves the public more generally in areas such as emergency planning and

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DECLARATION OF SANTA CLARA COUNTY CHIEF OPERATING OFFICER MIGUEL MARQUEZ Case No. 5:17-cv-00574

Case 5:17-cv-00574-WHO Document 29 Filed 02/23/17 Page 3 of 9

1 public health services.

2

6. The County was established in 1850 as one of the first counties in Califomia.

Ja Today, approximately 1.9 million people reside in the County, and rely on it to provide essential

4 services, such as law enforcement, health care, care for the County's youth and elderly, and other

5 social services. Many of the County's programs serve the County's neediest residents, including

6 abused and neglected children, indigent and uninsured individuals requiring health care,
1 individuals who are mentally ill or substance dependent, and those who are physically or mentally

8 disabled.

9

7.

The County oversees most public health and public safety functions in Santa Clara

10 County, including emergency planning and services, disease control and prevention, and criminal

11 justice administration. The County also operates roads, airports, parks, libraries, election

12 systems, and many other critical functions

13

8. The County's budgeted expenditures for the2015-2016 fiscal year were

T4 approximately $5.6 billion. The County's actual revenues for the same fiscal year, however, were

15 approximately $4.8 billion.l Federal funds not commingled with other funding sources

16 comprised approximately $1 billion (21%) of this revenue. An additional approximately $680

17 million (14%)was comprised of revenues that included a significant federal funding component.

18 This additional amount was dependent upon the receipt of federal funds through a matching

I9 requirement or other mechanism. Much of this additional funding was passed through the State

20 of California.

21

9. The County receives federal funding through several types of arangements, but

22 the most common affangements are fee-for-service and reimbursement-based. In these

23 arangements, the County first spends funds or provides a service using County resources, then is

24 reimbursed fully or pafüally with federal funds. Many of these affangements are pass-through

25 arrangements, in which the payment is made by another governmental agency (in many cases, the

26 t Th" Corrnty's actual revenue received is a more useful measure than budgeted expenditures. A

27

budget reflects anticipated revenues and expenditures for an upcoming fiscal year, which may or may not materialize. By contrast, actual revenues have been received and verified through an

28 independent audit.

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DECLARATION OF SANTA CLARA COUNTY CHIEF OPERATING OFFICER MIGUEL MARQUEZ Case No. 5:11-cv-00514

Case 5:17-cv-00574-WHO Document 29 Filed 02/23/17 Page 4 of 9

1 State of California) from federal funds that are earned by the County. Much of the federal

2 funding received by the County's Health and Hospital system, for example, was eamed in fee-for-

J service payments. These funds were paid by the State of Califomia's Medicaid program to

4 reimburse the County for the services it previously provided to eligible residents. For each type

5 of funding, the County faces the possibility that, even after reimbursements or other payments are

6 received, those federal funds may later be clawed back through retroactive ineligibility

7 determinations.

8

10. Only a small portion of the federal revenue the County receives is related to law

9 enforcement. Most of the revenues received from the federal government are used to provide

10 health care and social services to County residents.

11

11. As a result of the Order, the County faces the immediate possibility that a

12 minimum of roughly $1.7 billion of its anticipated annual revenues will be abruptly-and perhaps

13 retroactively-clawed back or withheld. While the County has some contingency reserves, they

I4 are not remotely adequate to cover such a funding shortfall. As a result, and because the County

15 is continuing to operate federally funded programs on a daily basis, the County needs to know

t6 whether to (1) continue incurring hundreds of millions of dollars in costs that may never be

t7 reimbursed by the federal govemment, (2) discontinue basic safety-net services delivered to its

18 most vulnerable residents, or (3) in an attempt to avoid either of these outcomes, be effectively

t9 conscripted into using local law enforcement and other resources to assist the federal government

20 in its immigration enforcement efforts.

2T

12. In developing the County's annual budget, the County Executive is required to

22 present a balanced recommended budget for approval by the County's Board of Supervisors.

23 Development of the recommended budget involves careful analysis and weighing a multitude of

24 factors, including anticipated revenues, specific service needs for diverse subsets of County

25 residents, salary and benefit costs for the County's approximately 19,000 employees, and an array

26 of local priorities. The County's adopted budget represents the outcome of this weighing of 2l resources and priorities, and represents the County's determination of what services can and

28 should be provided, given the limited resources at the County's disposal. The services the County

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DECLARATION OF SANTA CLARA COUNTY CHIEF OPERATING OFFICER MIGUEL MARQUEZ Case No. 5:17-cv-00574

Case 5:17-cv-00574-WHO Document 29 Filed 02/23/17 Page 5 of 9

1 provides and the resources it has available are inextricably linked.

2

13. In November of each year, the County Executive's Office of Budget and Analysis

J (OBA) begins to forecast its estimate of the subsequent fiscal year's anticipated revenues. Then,

4 before March 1 of the ensuing year, each County department must provide a budget submittal to

5 OBA in which the department requests a level of funding necessary to provide services during the

6 upcoming fiscal year. During March and April, OBA balances anticipated revenues with
l proposed departmental budgets to prepare the County Executive's recommended balanced budget

8 for consideration by the Board of Supervisors during May and June. By June 30, the Board of

9 Supervisors approves a balanced budget for the next fiscal year, as set forth in the County Budget

10 Act, Cal. Gov't Code $ 2906a@).

11

14. This process has already been completed for the current fiscal year. The County's

12 current operations and services are being provided pursuant to the balanced budget that was

13 adopted last year using this process. As with any other budget, that budget reflects the County's

I4 judgment of how best to fulfill its obligations and priorities with limited resources. Central to this

15 judgment was the expectation that the County would receive the federal funds to which it is

t6 entitled under its agreements with a number of federal and state agencies. Disrupting this
tl expectation would throw the County's budget-and therefore its operations-into complete

18 disarray.

19

15. The County is currently spending hundreds of millions of dollars on services for

20 which it is otherwise entitled to receive federal reimbursement. If the Order is fully implemented,

2I those funds will be withheld. The County is actively considering how to manage this risk. The

22 County Executive, for example, recently discussed with the County's Board of Supervisors, in a

23 public meeting, the enormous financial risks faced by the County, including the Hobson's choice

24 described above due to the uncertainty regarding current and ongoing federal funding.

25

16. As the County Executive pointed out, a majority of budget cuts would impact the

26 County's Health and Hospital system. The Santa Clara Valley Medical Center (VMC), which is
2l the only safety-net healthcare provider in Santa Clara County, relies heavily on federal funds and

28 federally dependent funds. In the 2015-2016 fiscal year, VMC received federal revenues and

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DECLARATION OF SANTA CLARA COUNTY CHIEF OPERATING OFFICER MIGUEL MARQUEZ Case No. 5:11-cv-00514

Case 5:17-cv-00574-WHO Document 29 Filed 02/23/17 Page 6 of 9

I federally dependent revenues of approximately $1 billion. For the same fiscal year, VMC's total

2 expenditures were approximately $ 1.4 billion. The County cannot absorb a $ 1 billion annual J funding gap at VMC. Thus, if federal funds were withheld, the County would be unable to

4 provide thousands of the County's indigent residents with the healthcare services they are

5 otherwise entitled to receive absent extremely deep cuts in other areas.

6

17. Similarly, the County's Social Services Agency (SSA), which provides services

7 that include child protective services, child welfare, and support to elderly and disabled children

8 and adults, receives more than $300 million a year in federal revenues. For comparison, SSA's

9 expenditures for the same fiscal year were approximately $777 million. Thus, if federal funding

10 were withheld, the County would need to decide which of SSA's critical functions it could

11 continue to fund and at what level, and which functions could no longer be funded.

l2

18. As another example, the County's Public Health Department, which provides

13 disease control and pandemic response services throughout the County-and functions as the

14 public health agency for each of the cities within Santa Clara County-had, in fiscal year 2015-

15 2016, federal revenues of approximately $39 million. Its expenditures for the same fiscal year

T6 were approximately $97 million. The County would have to significantly reduce or cut these

T7 critical services in the absence of federal funding.

18

19. The Order forces a current, daily choice about these departments' ongoing

T9 operations. But it also fundamentally disrupts the County's budgeting process for the upcoming

20 fiscal year. The County Executive is in the process of developing a proposed budget for fiscal

2I year 2017 -2018 for submission to the Board of Supervisors. Without certainty in the near term,

22 the County Executive will be forced to make one of the three choices outlined in paragraph 11 of

23 this declaration with respect to his recommended budget to the Board of Supervisors-cementing

24 one of three untenable choices in the budget for the upcoming fiscal year.

25

20. Even if the Order is not fully implemented, and is used to target only those funds

26 that would qualify as "grants" under a narrow definition that does not include entitlement
2l programs, a significant porlion of the County's resources are at risk. For example, the County

28 conducts a "Single Audit" cornpiling major federal awards that are subject to annual audit

1146013

5
DECLARATION OF SANTA CLARA COI.INTY CHIEF OPERATING OFFICER MIGUEL MARQUEZ Case No. 5:17-cv-00574

Case 5:17-cv-00574-WHO Document 29 Filed 02/23/17 Page 7 of 9

1 requirements. While this document significantly understates the magnitude of County federal

2 awards because it only includes those that are subject to an annual financial audit requirement, it

J nonetheless reflects that the County received more than $338 million in federal grant awards in

4 fiscal year 2014-2015. A true and correct copy of the Federal Compliance Section of the

5 County's Single Audit Report for the Fiscal Year Ended June 30, 2015 is attached hereto as

6 Exhibit A.

7

21. Compliance with the full scope of the federal government's immigration-related

8 laws, requests, and priorities could also result in significant liability and cost exposure to the

9 County. This could include exposure to liability for Fourth Amendment and other constitutional

10 violations (as several federal courts have held), as well as significant fiscal and administrative

11 costs. The federal government has made clear to the County that it does not provide indemnity

t2 for such liability or costs. And, of course, the County has an independent duty not to violate the

13 constitutional rights of its residents, whether or not at the behest of another governmental entity.

t4

22. In 2010, the County had significant correspondence with the Department of

15 Homeland Security (DHS) relating to DHS's Immigration and Customs Enforcement's (ICE)

t6 Secure Communities program. While serving as County Counsel, I was the primary author of

t7 most of the correspondence sent on behalf of the County.

18

23. ln20I0, the County was considering the implications of the Secure Communities

t9 program. This program called for local law enforcement agencies to share information with ICE

20 regarding the detention and release of individuals held in local jails. It also called for the

2T County to comply with ICE detainer requests.2 During this time, the County became aware that

22 compliance with detainer requests could expose the County to significant potential costs and

23 liabilities.

24

24. I addressed these issues in my August 16,2010letter to DHS, attached hereto as

25 Exhibit B. In particular, I inquired whether "ICE fwill] reimburse localities for the cost of

26

27

'Thi, program was replaced by the Priority Enforcement Program (PEP) on Novemb er 2014.
The Order orders termination of PEP in favor of reinstatement of the Secure Communities

28 program. Order, $ 10.

1146013

6
DECLARATION OF SANTA CLARA COUNTY CHIEF OPERATING OFFICER MIGUEL MARQUEZ Case No. 5:17-cv-00574

Case 5:17-cv-00574-WHO Document 29 Filed 02/23/17 Page 8 of 9

1 detaining individuals ... beyond their scheduled release times fand whether] ICE [will] indemnify 2 localities for any liability incurred because of that detentionf.]" (Exhibit B at p. 3.) In its

J response, a true and correct copy of which is attached hereto as Exhibit C, DHS unequivocally

4 indicated that, pursuant to its Regulations, ICE would not be responsible for incarceration costs

5 except at its option and pursuant to a written agreement. (Exhibit C atp.3.) It also indicated that

" 6 it would "not indemnify localities for any liability incurred. (1d..)

7

25. In light of my correspondence with DHS, the County Board of Supervisors

8 instructed me, in my capacity as County Counsel, to take all necessary action to allow the County

9 to opt out of participation in the Secure Communities program. I informed ICE of the County's

10 intention to do so in correspondence dated October 13, 201A, a true and correct copy of which is

11 attached hereto as Exhibit D.

I2

26. To "limit County resources spent on the enforcement of civil immigration law,"

13 the County Board of Supervisors, on October 18,2071, adopted Board Policy 3.54 on Civil

I4 Detainer Requests, a true and correct copy of which is attached hereto as Exhibit E. Board Policy

15 3.54 permits compliance with ICE civil detainer requests only under certain limited circumstances

t6 involving serious or violent felonies, and only if ICE agrees to reimburse the County for the full

t7 costs associated with compliance. I sent a copy of Board Policy 3.54 to ICE. A true and correct

18 copy of the October 21, 2011 letter to ICE is attached hereto as Exhibit F.

I9

. 27 The County Board of Supervisors also adopted a Resolution affirming the

20 separation between County services and the enforcement of federal civil immigration law. The

2l Resolution prohibits County employees, including law enforcement officers, from initiating an

22 inquiry or enforcement action based solely on an individual's actual or suspected immigration

23 status, national origin, racelethnicity, or English-speaking ability. It also prohibits the use of

24 County funds or resources to investigate, question, apprehend, or arrest an individual solely

25 because of an actual or suspected violation of immigration law, or to transmit to ICE, for

26 purposes of federal immigration enforcement, information collected by the County in the course

27 of providing social services. A true and correct copy of that Resolution is attached hereto as

28 Exhibit G.

1 146013

l
DECLARATION OF SANTA CLARA COUNTY CHIEF OPERATING OFFICER MIGUEL MARQUEZ Case No. 5:17-cv-00574

Case 5:17-cv-00574-WHO Document 29 Filed 02/23/17 Page 9 of 9

1

28. Rescission of the County's policies on immigration enforcement efforts and

2 priorities, could expose the County to significant liability. For example, compliance with detainer

J requests could expose the County and its officers to liability based on violations of County

4 residents' constitutional rights, and would require the reallocation of resources to accommodate a

5 large number of additional jail inmates who would otherwise not be incarcerated.

6

29. In view of the aforementioned policies, the County has declined certain grants that

7 require, as a condition of receipt, a certification of compliance with 8 U.S.C. $ 1373. For

8 example, the County declined to accept funding from the 2016 Justice Assistance Grant program.
9 A true and correct copy of a November 1, 2016 letter informing the Chief of Police for the City of 10 San José of the County's clecision is attached hereto as Exhibit H. The County also declined to

11 accept State Criminal Alien Assistance Program funds for 2016, for the same reason.

T2

13

I declare under penalty of perjury under the laws of the United States of America that the

t4 foregoing is true and correct and that this Declaration was executed on Februar y 2l ,2011, in

15 Santa Clara County, California. r6
t7

Å-j ",(- MrcLtBr/í4ÁnQupz

18

t9

20

2T

22

23

24

25

26

27

28

1t46013

B

DECLARATION

OF

SANTA

CLARA 'CCOaLseINNToY.

CHIEF OPERATING 5:17-cv-00574

OFFICER MIGUEL

MARQUEZ

Case 5:17-cv-00574-WHO Document 29-1 Filed 02/23/17 Page 1 of 25
EXHIBIT A

Case 5:17-cv-00574-WHO Document 29-1 Filed 02/23/17 Page 2 of 25
Certified Public Accountants
Independent Auditor’s Report on Internal Control Over Financial Reporting and on Compliance and Other Matters Based on an Audit of Financial Statements Performed in Accordance With Government Auditing Standards

Sacramento Walnut Creek San Francisco
Oakland Los Angeles Century City Newport Beach
San Diego

The Board of Supervisors County of Santa Clara San José, California

We have audited, in accordance with the auditing standards generally accepted in the United States of America and the standards applicable to financial audits contained in Government Auditing Standards issued by the Comptroller General of the United States, the financial statements of the governmental activities, the business-type activities, the aggregate discretely presented component units, each major fund, and the aggregate remaining fund information of the County of Santa Clara, California (County), as of and for the year ended June 30, 2015, and the related notes to the financial statements, which collectively comprise the County’s basic financial statements, and have issued our report thereon dated December 31, 2015, except for our report on the schedule of expenditures of federal awards, as to which the date is March 30, 2016.

Our report includes a reference to other auditors who audited the financial statements of the FIRST 5 Santa Clara County; the Santa Clara County Health Authority; the County Sanitation District 2 – 3 of Santa Clara County; the Santa Clara County Vector Control District; and the Santa Clara County Central Fire Protection District, the South Santa Clara County Fire District, and the Los Altos Hills County Fire District (collectively, “Fire Districts”), as described in our report on the County’s basic financial statements. This report does not include the results of the other auditors’ testing of internal control over financial reporting or compliance and other matters that are reported on separately by those auditors. The financial statements of the Santa Clara County Tobacco Securitization Corporation and the South Santa Clara County Fire District were not audited in accordance with Government Auditing Standards.

Internal Control Over Financial Reporting
In planning and performing our audit of the financial statements, we considered the County’s internal control over financial reporting (internal control) to determine the audit procedures that are appropriate in the circumstances for the purpose of expressing our opinions on the financial statements, but not for the purpose of expressing an opinion on the effectiveness of the County’s internal control. Accordingly, we do not express an opinion on the effectiveness of the County’s internal control.

A deficiency in internal control exists when the design or operation of a control does not allow management or employees, in the normal course of performing their assigned functions, to prevent, or detect and correct, misstatements on a timely basis. A material weakness is a deficiency, or a combination of deficiencies, in internal control such that there is a reasonable possibility that a material misstatement of the entity’s financial statements will not be prevented, or detected and corrected on a timely basis. A significant deficiency is a deficiency, or a combination of deficiencies, in internal control that is less severe than a material weakness, yet important enough to merit attention by those charged with governance.

Macias Gini & O’Connell LLP 2121 N. California Blvd., Suite 750 Walnut Creek, CA 94596

125

www.mgocpa.com

Case 5:17-cv-00574-WHO Document 29-1 Filed 02/23/17 Page 3 of 25
Our consideration of internal control was for the limited purpose described in the first paragraph of this section and was not designed to identify all deficiencies in internal control that might be material weaknesses or significant deficiencies. Given these limitations, during our audit we did not identify any deficiencies in internal control that we consider to be material weakness. However, material weaknesses may exist that have not been identified. Compliance and Other Matters As part of obtaining reasonable assurance about whether the County’s financial statements are free of material misstatement, we performed tests of its compliance with certain provisions of laws, regulations, contracts, and grant agreements, noncompliance with which could have a direct and material effect on the determination of financial statement amounts. However, providing an opinion on compliance with those provisions was not an objective of our audit, and accordingly, we do not express such an opinion. The results of our tests disclosed no instances of noncompliance or other matters that are required to be reported under Government Auditing Standards. Purpose of this Report The purpose of this report is solely to describe the scope of our testing of internal control and compliance and the results of that testing, and not to provide an opinion on the effectiveness of the entity’s internal control or on compliance. This report is an integral part of an audit performed in accordance with Government Auditing Standards in considering the entity’s internal control and compliance. Accordingly, this communication is not suitable for any other purpose.
Walnut Creek, California December 31, 2015
126

Case 5:17-cv-00574-WHO Document 29-1 Filed 02/23/17 Page 4 of 25
Certified Public Accountants
Independent Auditor’s Report on Compliance for Each Major Federal Program and Report on Internal Control Over Compliance
The Board of Supervisors County of Santa Clara San José, California

Sacramento Walnut Creek San Francisco
Oakland Los Angeles Century City Newport Beach
San Diego

Report on Compliance for Each Major Federal Program
We have audited the County of Santa Clara’s, California (County) compliance with the types of compliance requirements described in the OMB Compliance Supplement that could have a direct and material effect on each of the County’s major federal programs for the year ended June 30, 2015. The County’s major federal programs are identified in the summary of auditor’s results section of the accompanying schedule of findings and questioned costs.

The County’s basic financial statements include the operations of the Housing Authority of the County of Santa Clara (Housing Authority), which expended $227,584,824 in federal awards, which is not included in the schedule of expenditures of federal awards, during the year ended June 30, 2015. Our audit, described below, did not include the operations of the Housing Authority because we were engaged to perform an audit in accordance with OMB Circular A-133, Audits of States, Local Governments, and Non-Profit Organizations (OMB Circular A-133), and report on the results separately to the Housing Authority.

Management’s Responsibility
Management is responsible for compliance with the requirements of laws, regulations, contracts, and grants applicable to its federal programs.

Auditor’s Responsibility
Our responsibility is to express an opinion on compliance for each of the County’s major federal programs based on our audit of the types of compliance requirements referred to above. We conducted our audit of compliance in accordance with auditing standards generally accepted in the United States of America; the standards applicable to financial audits contained in Government Auditing Standards, issued by the Comptroller General of the United States; and OMB Circular A-133. Those standards and OMB Circular A-133 require that we plan and perform the audit to obtain reasonable assurance about whether noncompliance with the types of compliance requirements referred to above that could have a direct and material effect on a major federal program occurred. An audit includes examining, on a test basis, evidence about the County’s compliance with those requirements and performing such other procedures as we considered necessary in the circumstances.

We believe that our audit provides a reasonable basis for our opinion on compliance for each major federal program. However, our audit does not provide a legal determination of the County’s compliance.

Macias Gini & O’Connell LLP 2121 N. California Blvd., Suite 750 Walnut Creek, CA 94596

127

www.mgocpa.com

Case 5:17-cv-00574-WHO Document 29-1 Filed 02/23/17 Page 5 of 25
Basis for Qualified Opinion on the Temporary Assistance for Needy Families Program (CFDA No. 93.558) As described in the accompanying schedule of findings and questioned costs, the County did not comply with requirements regarding the Temporary Assistance for Needy Families Program (CFDA No. 93.558) as described in finding number 2015-001 for Special Tests & Provisions – Child Support NonCooperation. Compliance with such requirements is necessary, in our opinion, for the County to comply with the requirements applicable to that program.
Qualified Opinion on the Temporary Assistance for Needy Families Program (CFDA No. 93.558) In our opinion, except for the noncompliance described in the Basis for Qualified Opinion paragraph, the County complied, in all material respects, with the types of compliance requirements referred to above that could have a direct and material effect on the Temporary Assistance for Needy Families Program (CFDA No. 93.558) for the year ended June 30, 2015.
Unmodified Opinion on Each of the Other Major Federal Programs In our opinion, the County complied, in all material respects, with the types of compliance requirements referred to above that could have a direct and material effect on each of its other major federal programs identified in the summary of auditor’s results section of the accompanying schedule of findings and questioned costs for the year ended June 30, 2015.
Other Matters The results of our auditing procedures disclosed other instances of noncompliance, which are required to be reported in accordance with the OMB Circular A-133 and which are described in the accompanying schedule of findings and questioned costs as items 2015-002 and 2015-003. Our opinion on each major federal program is not modified with respect to these matters.
The County’s response to the noncompliance finding identified in our audit is described in the accompanying corrective action plan. The County’s response was not subjected to the auditing procedures applied in the audit of compliance and, accordingly, we express no opinion on the response.
Report on Internal Control Over Compliance Management of the County is responsible for establishing and maintaining effective internal control over compliance with the types of compliance requirements referred to above. In planning and performing our audit of compliance, we considered the County’s internal control over compliance with the types of requirements that could have a direct and material effect on each major federal program to determine the auditing procedures that are appropriate in the circumstances for the purpose of expressing an opinion on compliance for each major federal program and to test and report on internal control over compliance in accordance with OMB Circular A-133, but not for the purpose of expressing an opinion on the effectiveness of internal control over compliance. Accordingly, we do not express an opinion on the effectiveness of the County’s internal control over compliance.
Our consideration of internal control over compliance was for the limited purpose described in the preceding paragraph and was not designed to identify all deficiencies in internal control over compliance that might be material weaknesses or significant deficiencies and therefore, material weaknesses or significant deficiencies may exist that were not identified. However, as discussed below, we identified certain deficiencies in internal control over compliance that we consider to be material weaknesses and significant deficiencies.
128

Case 5:17-cv-00574-WHO Document 29-1 Filed 02/23/17 Page 6 of 25
A deficiency in internal control over compliance exists when the design or operation of a control over compliance does not allow management or employees, in the normal course of performing their assigned functions, to prevent, or detect and correct, noncompliance with a type of compliance requirement of a federal program on a timely basis. A material weakness in internal control over compliance is a deficiency, or combination of deficiencies, in internal control over compliance, such that there is a reasonable possibility that material noncompliance with a type of compliance requirement of a federal program will not be prevented, or detected and corrected, on a timely basis. We consider the deficiency in internal control over compliance described in the accompanying schedule of findings and questioned costs as item 2015-001 to be a material weakness. A significant deficiency in internal control over compliance is a deficiency, or a combination of deficiencies, in internal control over compliance with a type of compliance requirement of a federal program that is less severe than a material weakness in internal control over compliance, yet important enough to merit attention by those charged with governance. We consider the deficiencies in internal control over compliance described in the accompanying schedule of findings and questioned costs as items 2015-002 and 2015-003 to be significant deficiencies. The County’s response to the internal control over compliance findings identified in our audit are described in the accompanying corrective action plan. The County’s response was not subjected to the auditing procedures applied in the audit of compliance and, accordingly, we express no opinion on the response. The purpose of this report on internal control over compliance is solely to describe the scope of our testing of internal control over compliance and the results of that testing based on the requirements of OMB Circular A-133. Accordingly, this report is not suitable for any other purpose.
Walnut Creek, California March 30, 2016
129

Case 5:17-cv-00574-WHO Document 29-1 Filed 02/23/17 Page 7 of 25
This Page is Intentionally Left Blank. 130

Case 5:17-cv-00574-WHO Document 29-1 Filed 02/23/17 Page 8 of 25

COUNTY OF SANTA CLARA Schedule of Expenditures of Federal Awards
For the Fiscal Year Ended June 30, 2015

Federal Grantor/Pass-Through Entity/Grant Name U.S. Department of Agriculture
Passed Through State Department of Social Services State Administrative Matching Grants for the Supplemental Nutrition Assistance Program
Passed Through State Department of Public Health Special Supplemental Nutrition Program for Women, Infants, and Children Special Supplemental Nutrition Program for Women, Infants, and Children Subtotal Special Supplemental Nutrition Program for Women, Infants, and Children
State Administrative Matching Grants for the Supplemental Nutrition Assistance Program State Administrative Matching Grants for the Supplemental Nutrition Assistance Program State Administrative Matching Grants for the Supplemental Nutrition Assistance Program
Subtotal State Administrative Matching Grants for the Supplemental Nutrition Assistance Program
Subtotal Passed Through State Department of Public Health
Passed Through State Department of Education Child Nutrition Cluster: School Breakfast Program National School Lunch Program
Subtotal of Child Nutrition Cluster
Total U.S. Department of Agriculture

Federal CFDA No.
10.561
10.557 10.557
10.561 10.561 10.561

Pass-Through Entity Number
None
11-10454 14-10242
None 13-20507 13-20507

10.553 10.555

43-10439-6066435-01 43-10439-6066435-01

Expenditures

$ 30,616,628

$ 908,825 3,580,692
426,407 546,040 1,230,458

4,489,517

2,202,905 6,692,422

102,398 155,518

257,916 37,566,966

U.S. Department of Housing and Urban Development Direct Programs
Community Development Block Grants/Entitlement Grants Supportive Housing Program Home Investment Partnerships Program Total U.S. Department of Housing and Urban Development

14.218

--

14.235

--

14.239

--

2,179,076 961,111 902,241
4,042,428

U.S. Department of Interior

Direct Programs

Central Valley Project Improvement Act, Title XXXIV

15.512

--

Central Valley Project Improvement (CVPI) Anadromous Fish Restoration Program (AFRP)

15.648

--

Subtotal Direct Programs

Total U.S. Department of Interior

235,593 179,564 415,157
415,157

U.S. Department of Justice
Direct Programs State Criminal Alien Assistance Program Public Safety Partnership and Community Policing Grants Edward Byrne Memorial Justice Assistance Grant Program DNA Backlog Reduction Program
Subtotal Direct Programs

16.606

--

16.710

--

16.738

--

16.741

--

537,974 36,876 13,950 211,655
800,455

Passed Through Board of State and Community Correction Juvenile Accountability Block Grants Edward Byrne Memorial Justice Assistance Grant Program Edward Byrne Memorial Justice Assistance Grant Program
Subtotal Edward Byrne Memorial Justice Assistance Grant Program
Subtotal Passed Through Board of State and Community Correction Passed Through City of San José
Missing Children's Assistance Edward Byrne Memorial Justice Assistance Grant Program Edward Byrne Memorial Justice Assistance Grant Program
Subtotal Edward Byrne Memorial Justice Assistance Grant Program
Subtotal Passed Through City of San José

16.523 16.738 16.738

CSA #176-11 BSCC 630-13 BSCC 673-13

16.543 16.738 16.738

None 2011-DJ-BX-2315 2013-DJ-BX-0642

82,408 4,964
12,392 29,686

67,087
87,372 154,459
5,950
42,078 48,028

See accompanying notes to the Schedule of Expenditures of Federal Awards. 131

Case 5:17-cv-00574-WHO Document 29-1 Filed 02/23/17 Page 9 of 25

COUNTY OF SANTA CLARA Schedule of Expenditures of Federal Awards (Continued)
For the Fiscal Year Ended June 30, 2015

Federal Grantor/Pass-Through Entity/Grant Name U.S. Department of Justice (Continued)
Passed Through City of Sunnyvale Equitable Sharing Program
Passed Through California Governor's Office of Emergency Services Crime Victim Assistance Crime Victim Assistance Crime Victim Assistance
Subtotal Crime Victim Assistance
Paul Coverdell Forensic Sciences Improvement Grant Program
Subtotal Passed Through California Governor's Office of Emergency Services
Total U.S. Department of Justice

Federal CFDA No.
16.922
16.575 16.575 16.575
16.742

Pass-Through Entity Number
CA0431600
UV13040430 UV14050430 VW14330430
CQ14100430

Expenditures

$

17,549

$ 36,480 86,163 409,128

531,771 11,317
543,088 1,563,579

U.S. Department of Transportation
Passed Through California Department of Transportation Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction Highway Planning and Construction
Subtotal Highway Planning and Construction
Passed Through State Office of Traffic Safety
Minimum Penalties for Repeat Offenders for Driving While Intoxicated Minimum Penalties for Repeat Offenders for Driving While Intoxicated Minimum Penalties for Repeat Offenders for Driving While Intoxicated Minimum Penalties for Repeat Offenders for Driving While Intoxicated
Subtotal Minimum Penalties for Repeat Offenders for Driving While Intoxicated
Total U.S. Department of Transportation

20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205 20.205

BHLO 5937 (146) BHLO 5937 (147) BHLO 5937 (150) BHLO 5937 (174) BHLO 5937 (186) BHLO 5937 (193) BHLO 5937 (194) BHLO 5937 (195) BHLS 5937 (187) BPMP 5937 (155) BPMP 5937 (156) BPMP 5937 (158) BPMP 5937 (159) BPMP 5937 (160) BPMP 5937 (161) BRLO 5937 (106) BRLO 5937 (107) BRLO-5937 (109) BRLO 5937 (168) BRLO 5937 (176) BRLO 5937 (180) BRLO 5937 (182) BRLS 5937 (123) BRLS 5937 (124) BRLS 5937 (169) CML 5937 (191) CML 5937 (196) DEMO8L 5937 (137) HPLUL 5937 (163) HRRRL 5937 (188) HRRRL 5937 (189) HRRRL 5937 (190) HSIP 5937 (199) SR2SL 5937 (185)

20.608 20.608 20.608 20.608

AL1419 AL1553 AL1547 PS1409

25,620 19,209 17,288 663,598 30,216 12,904 9,362 12,928 5,763
1,431 22,113
1,431 1,361 2,341 1,361 77,571 66,660 65,085 9,428 170,175 6,940 66,423 87,176 215,453 4,251 124,455 469,019 4,360,407 1,184,576 6,415 11,258 33,385 1,877 56,256
59,590 115,599 115,264 15,279

7,843,736
305,732 8,149,468

See accompanying notes to the Schedule of Expenditures of Federal Awards. 132

Case 5:17-cv-00574-WHO Document 29-1 Filed 02/23/17 Page 10 of 25

COUNTY OF SANTA CLARA Schedule of Expenditures of Federal Awards (Continued)
For the Fiscal Year Ended June 30, 2015

Federal Grantor/Pass-Through Entity/Grant Name U.S. Department of Treasury
Passed Through City of Sunnyvale Treasury Forfeiture Fund Program
Total U.S. Department of Treasury

Federal CFDA No.
21.000

Pass-Through Entity Number
CA0431600

Expenditures

$

75,045

75,045

U.S. Department of Health and Human Services

Direct Programs

Projects for Assistance in Transition from Homelessness (PATH)

93.150

--

Consolidated Health Centers (Community Health Centers, Migrant Health Centers, Health

Care for the Homeless, and Public Housing Primary Care)

93.224

--

Partnerships to Improve Community Health (PICH)

93.331

Adoption Opportunities

93.652

--

HIV Emergency Relief Project Grants

93.914

--

Grants to Provide Outpatient Early Intervention Services with Respect to HIV Disease

93.918

--

Block Grants for Community Mental Health Services

93.958

--

Subtotal Direct Programs

253,131
2,034,390 316,872 25,975
2,514,444 811,907 708,471
6,665,190

Passed Through California Department of Public Health
Public Health Emergency Preparedness Project Grants and Cooperative Agreements for Tuberculosis Control Programs Childhood Lead Poisoning Prevention Projects_State and Local Childhood
Lead Poisoning Prevention and Surveillance of Blood Lead Levels in Children Immunization Cooperative Agreements Refugee and Entrant Assistance _Discretionary Grants Refugee and Entrant Assistance _Discretionary Grants
Subtotal Refugee and Entrant Assistance_Discretionary Grants National Bioterrorism Hospital Preparedness Program HIV Care Formula Grants HIV Prevention Activities_Health Department Based Prevention and Public Health Fund (PPHF) Public Health Traineeships Prevention and Public Health Fund (PPHF) Public Health Traineeships Prevention and Public Health Fund (PPHF) Public Health Traineeships
Subtotal Prevention and Public Health Fund (PPHF) Public Health Traineeships
Maternal and Child Health Services Block Grant to the States Maternal and Child Health Services Block Grant to the States Maternal and Child Health Services Block Grant to the States
Subtotal Maternal and Child Health Services Block Grant to the States
Subtotal Passed Through State Department of Public Health
Passed Through Sourcewise Aging Cluster: Special Programs for the Aging_Title III, Part C_Nutrition Services Nutrition Services Incentive Program
Subtotal Aging Cluster
Passed Through California Department of Education Child Care Mandatory and Matching Funds of the Child Care and Development Fund
Passed Through California Department of Health Care Services Substance Abuse and Mental Health Services_Projects of Regional and National Significance Children's Health Insurance Program Medical Assistance Program: Medical Assistance Program Medical Assistance Program Medical Assistance Program Medical Assistance Program
Subtotal Medical Assistance Program
Block Grants for Prevention and Treatment of Substance Abuse
Subtotal Passed Through California Department of Health Care Services

93.069 93.116
93.197 93.268 93.576 93.576
93.889 93.917 93.940 93.964 93.964 93.964
93.994 93.994 93.994

None None
CLPPP 13-20346 13-43-90840-00 14-43-90840-00
-13-20074 13-20253-01A 201443 MCH 201443 AFLP 201443 BIH
201143 MCH 201143 AFLP 201143 BIH

$ 98,132 264,423
159,479 129,109
85,279
1,485,477 73,384
338,864

1,837,944 580,884 65,230
1,002,714
362,555 534,949 716,044 429,857
373,867
1,897,725 7,801,769

93.045 93.053
93.596

AP-1415-15 AP-1415-15
CAPP-4062

1,745,897 979,488

2,725,385 1,636,987

93.243 93.767
93.778 93.778 93.778 93.778
93.959

None None
Foster Care & HCPCFC CHDP
CCS Admin CCS PPC
None

761,275 640,876 3,920,894
42,052

546,256 717,237
5,365,097 10,872,242 17,500,832

See accompanying notes to the Schedule of Expenditures of Federal Awards. 133

Case 5:17-cv-00574-WHO Document 29-1 Filed 02/23/17 Page 11 of 25

COUNTY OF SANTA CLARA Schedule of Expenditures of Federal Awards (Continued)
For the Fiscal Year Ended June 30, 2015

Federal Grantor/Pass-Through Entity/Grant Name U.S. Department of Health and Human Services (Continued)
Passed Through California Department of Child Support Services Child Support Enforcement
Passed Through Foundation for California Community College Health Care Innovation Awards (HCIA)
Passed Through California Department of Social Services Guardianship Assistance State Planning and Establishment Grants for the Affordable Care Act (ACA)'s Exchanges Promoting Safe and Stable Families Temporary Assistance for Needy Families Refugee and Entrant Assistance_State Administered Programs Refugee and Entrant Assistance_State Administered Programs Refugee and Entrant Assistance_State Administered Programs
Subtotal Refugee and Entrant Assistance_State Administered Programs
Refugee and Entrant Assistance_Discretionary Grants Refugee and Entrant Assistance_Discretionary Grants Refugee and Entrant Assistance_Discretionary Grants Refugee and Entrant Assistance_Discretionary Grants
Subtotal Refugee and Entrant Assistance_Discretionary Grants Refugee and Entrant Assistance_Targeted Assistance Grants Refugee and Entrant Assistance_Targeted Assistance Grants
Subtotal Refugee and Entrant Assistance_Targeted Assistance Grants Community-Based Child Abuse Prevention Grants Stephanie Tubbs Jones Child Welfare Services Program Child Welfare Research Training or Demonstration Foster Care_Title IV-E Adoption Assistance Social Services Block Grant Chafee Foster Care Independence Program Children's Health Insurance Program Medical Assistance Program
Subtotal Passed Through State Department of Social Services
Total U.S. Department of Health and Human Services

Federal CFDA No.
93.563
93.610
93.090 93.525 93.556 93.558 93.566 93.566 93.566
93.576 93.576 93.576 93.576
93.584 93.584
93.590 93.645 93.648 93.658 93.659 93.667 93.674 93.767 93.778

Pass-Through Entity Number
IV-356
TC-007-14
None None None None None RESS 1307 RESS 1407
TART1306 TARL1307 TART 1406 TARL 1407
TAFO1306 TAFO1407
None None None None None None None None None

Expenditures

$ 22,761,471

132,370

$ 340,144 136,689 96,906
1,885 4,512 7,222 11,539
144,712 114,887

581,839 847,629 1,072,162 74,351,036
573,739
25,158
259,599 20,561 1,368,062 525,739 41,026,925 13,923,831 9,236,592 427,669
6,719 77,667,285 221,914,545 281,138,549

U.S. Department of Homeland Security
Passed Through California Governor's Office of Emergency Services Emergency Management Performance Grants Emergency Management Performance Grants Subtotal Emergency Management Performance Grants Homeland Security Grant Program Homeland Security Grant Program Homeland Security Grant Program Subtotal Homeland Security Grant Program Subtotal Passed Through California Governor's Office of Emergency Services
Passed Through City and County of San Francisco Homeland Security Grant Program Homeland Security Grant Program Subtotal Passed Through City and County of San Francisco
Total U.S. Department of Homeland Security
Total Expenditures of Federal Awards

97.042 97.042
97.067 97.067 97.067

2013-0047-0085-00000 2014-0070-0085-00000
2012-SS-00123-085-00000 2013-0010-085-00000 2014-00093-085-00000

97.067 97.067

2013-00110 2014-00093

218,306 512,298
210,160 1,689,412
935,874

730,604
2,835,446 3,566,050

2,239,787 72,548

2,312,335 5,878,385 $ 338,829,577

See accompanying notes to the Schedule of Expenditures of Federal Awards. 134

Case 5:17-cv-00574-WHO Document 29-1 Filed 02/23/17 Page 12 of 25
COUNTY OF SANTA CLARA Notes to the Schedule of Expenditures of Federal Awards
For the Fiscal Year Ended June 30, 2015

Note 1 – General

The accompanying Schedule of Expenditures of Federal Awards (SEFA) includes the federal grant activities of the County of Santa Clara, California (County) under programs of the federal government, for the fiscal year ended June 30, 2015, except for the Housing Authority of the County of Santa Clara (Housing Authority) (see Note 4). The County’s reporting entity is defined in Note 1 to the County’s basic financial statements. The information in the SEFA is presented in accordance with the requirements of the Office of Management and Budget (OMB) Circular A-133, Audits of States, Local Governments, and Non-Profit Organizations (OMB Circular A-133). Because the SEFA presents only a selected portion of the operations of the County, it is not intended to and does not present the financial position, changes in net position and cash flows of the County.

Note 2 – Basis of Accounting

The accompanying SEFA is presented using the modified accrual basis of accounting for grants accounted for in the governmental fund types and the accrual basis of accounting for grants accounted for in the proprietary fund types, as described in Note 1 to the County’s basic financial statements.

Note 3 – Relationship to the Financial Statements

Expenditures of federal awards are reported in the County’s basic financial statements as expenditures in the General Fund and nonmajor special revenue funds, and as expenses for noncapital expenditures and as additions to capital assets for capital related expenditures in the enterprise funds. Federal award expenditures agree or can be reconciled with the amounts reported in the County’s basic financial statements.

Note 4 – Housing Authority (Discretely Presented Component Unit) Federal Expenditures

The Housing Authority federal expenditures are excluded from the SEFA because the Housing Authority’s federal expenditures are separately audited by other auditors. Expenditures for the programs of the Housing Authority listed below are taken from the separately issued single audit report. The programs of the Housing Authority are as follows:

Federal Grantor/ Pass-through Grantor/
Program Title U.S. Department of Housing and Urban Development
Direct Programs Continuum of Care
Lower Income Housing Assistance Program Section 8 Moderate Rehabilitation
Housing Voucher Cluster: Section 8 Housing Choice Vouchers Mainstream Vouchers Family Unification Program (FUP) Total Housing Voucher Cluster

CFDA Number
14.267
14.856
14.871 14.879 14.880

Grant/ Contract Number

Expenditures

n/a

$ 3,025,571

n/a

1,112,373

n/a

6,417,203

n/a

597,251

n/a

1,427,190

8,441,644

Family Self Sufficiency Moving To Work Demonstration Program
Total Direct Programs Pass-through from City of Sunnyvale, CA
Home Investment Partnership Program

14.896 14.881

n/a

201,125

n/a

214,762,263

227,542,976

14.239 1011-828750

32,000

Pass-through from County of Santa Clara, CA Continuum of Care Total Pass-Through Programs Total Expenditures of Federal Awards

14.267

n/a

9,848

41,848

$227,584,824

135

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COUNTY OF SANTA CLARA Notes to the Schedule of Expenditures of Federal Awards (Continued)
For the Fiscal Year Ended June 30, 2015

Note 5 – Amounts Provided to Subrecipients

Of the federal expenditures presented in the SEFA, the County provided federal awards to subrecipients as follows:

Amount

Provided to

Program Title

CFDA Number Subrecipients

State Administrative Matching Grants for the Supplemental Nutrition Assistance Program

10.561

$ 485,110

Special Supplemental Nutrition Program for Women, Infants, and Children

10.557

64,522

Community Development Block Grants/Entitlement Grants

14.218

1,786,572

Supportive Housing Program

14.235

949,804

Home Investment Partnerships Program

14.239

856,756

Crime Victim Assistance

16.575

531,771

Edward Byrne Memorial Justice Assistance Grant Program

16.738

87,372

Special Programs for the Aging_Title III, Part C_Nutrition Services

93.045

1,745,897

Nutrition Services Incentive Program

93.053

979,488

Project Grants and Cooperative Agreements for Tuberculosis Control Programs

93.116

12,250

Projects for Assistance in Transition from Homelessness (PATH)

93.150

239,665

Substance Abuse and Mental Health Services_Projects of Regional and National Significance

93.243

324,727

Partnerships to Improve Community Health

93.331

29,425

Refugee and Entrant Assistance_State Administered Programs

93.566

116,637

Refugee and Entrant Assistance_Discretionary Grants

93.576

25,158

Refugee and Entrant Assistance_Targeted Assistance Grants

93.584

127,309

Community-Based Child Abuse Prevention Program

93.590

20,561

Chafee Foster Care Independence Program

93.674

329,936

National Bioterrorism Hospital Preparedness Program

93.889

276,025

HIV Emergency Relief Project Grants

93.914

1,162,631

HIV Care Formula Grants

93.917

613,749

HIV Prevention Activities_Health Department Based

93.940

123,556

Block Grants for Community Mental Health Services

93.958

35,910

Block Grants for Prevention and Treatment of Substance Abuse

93.959

3,740,607

Prevention and Public Health Fund (PPHF) Public Health Traineeships

93.964

129,109

Maternal and Child Health Services Block Grant to the States

93.994

58,473

Emergency Management Performance Grants

97.042

259,352

Homeland Security Grant Program

97.067

375,994

136

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COUNTY OF SANTA CLARA Notes to the Schedule of Expenditures of Federal Awards (Continued)
For the Fiscal Year Ended June 30, 2015

Note 6 – California Department of Aging (CDA) Grants

The terms and conditions of agency contracts with CDA require agencies to display State-funded expenditures discretely along with the related federal expenditures. The following schedule is presented to comply with these requirements.

Federal Grantor/ Pass-through Grantor/
Program Title U.S. Department of Health and Human Services
Pass through the Sourcewise
Special Programs for the Aging_Title III, Part C Nutrition Services Nutrition Services Incentive Program

CFDA Number

Grant/ Contract Number

Expenditures

State

Federal

93.045 AP-1415-15 $ 308,689 $ 1,745,897

93.053 AP-1415-15

-

979,488

Note 7 – Program and Cluster Program Totals

The following table summarizes clusters funded by various sources or grants whose totals are not shown on the SEFA. The following table summarizes these programs:

Program Title State Administrative Matching Grants for the Supplemental Nutrition Assistance Program
Passed Through California Department of Social Services Passed Through California Department of Public Health
Total State Administrative Matching Grants for the Supplemental Nutrition Assistance Program
Edward Byrne Memorial Justice Assistance Grant Program Direct Passed Through Board of State and Community Correction Passed Through City of San José Total Edward Byrne Memorial Justice Assistance Grant Program
Refugee and Entrant Assistance_Discretionary Grants Passed Through California Department of Public Health Passed Through California Department of Social Services Total Refugee and Entrant Assistance_Discretionary Grants
Children's Health Insurance Program Passed Through California Department of Health Care Services Passed Through California Department of Social Services Total Children's Health Insurance Program
Medical Assistance Program Passed Through California Department of Health Care Services Passed Through California Department of Social Services Total Medical Assistance Program
Homeland Security Grant Program Passed Through the California Emergency Management Agency Passed Through City and County of San Francisco Total Homeland Security Grant Program

CFDA Number Expenditures

10.561 $ 30,616,628

10.561

2,202,905

$ 32,819,533

16.738 $ 16.738 16.738
$

13,950 87,372 42,078 143,400

93.576 $ 93.576
$

362,555 25,158 387,713

93.767 $ 93.767
$

717,237 6,719
723,956

93.778 93.778

$ 5,365,097 77,667,285
$ 83,032,382

97.067 97.067

$ 2,835,446 2,312,335
$ 5,147,781

137

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COUNTY OF SANTA CLARA Notes to the Schedule of Expenditures of Federal Awards (Continued)
For the Fiscal Year Ended June 30, 2015

Note 8 - Schedules of the California Emergency Management Agency (Cal EMA) and California Victim Compensation and Government Claims Board

California Emergency Management Agency grant expenditures: The following represents Federal grant expenditures for Department of Justice grants passed through the California Govnernor's Office of Emergency Services for the fiscal year ended June 30, 2015:

Program Title and Expenditure Category

Grant Award Number/Period

Award Amount

Actual Non-match

Actual Match

Actual Total

CFDA No. of Actual Non-match Amount

Underserved Victims Advocacy & Outreach Program Personnel Expenses Operating Expenses Total
Underserved Victims Advocacy & Outreach Program Personnel Services Operating Expenses Total
Victim Witness Assistance - Cal EMA Operating Expenses Total

UV13040430 10/1/13-9/30/14
UV14050430 10/1/14-9/30/15
VW14330430 7/1/14-6/30/15

$

- $ 7,812 $ 7,812

36,480

-

36,480

$ 125,000 $ 36,480 $ 7,812 $ 44,292

16.575

$

-

$ 23,438 $ 23,438

86,163

-

86,163

$ 125,000 $ 86,163 $ 23,438 $ 109,601

16.575

$ 409,128 $

-

$ 409,128

$ 823,576 $ 409,128 $

-

$ 409,128 16.575

Paul Coverdell Forensic Sciences Improvement Grant Program Operating Expenses Total

CQ14100430 10/1/14-12/31/15

$ 11,317 $

-

$ 11,317

$ 31,211 $ 11,317 $

-

$ 11,317 16.742

Emergency Management Performance Grants Personnel Expenses Operating Expenses Equipment Total

2013-0047-0085-00000

7/1/13-8/31/14

$ 15,880 $

-

$ 15,880

150,051

-

150,051

52,375

-

52,375

$ 499,977 $ 218,306 $

-

$ 218,306 97.042

Emergency Management Performance Grants Personnel Expenses Operating Expenses Equipment Total
Homeland Security Grant Program Operating Expenses Equipment Total

2014-0070-085-00000

7/1/14-6/30/15

$ 26,252 $

-

$ 26,252

312,590

-

312,590

173,456

-

173,456

$ 514,636 $ 512,298 $

-

$ 512,298 97.042

2012-SS-00123-085-00000

10/12/12-8/15/14

30,815

-

30,815

179,345

-

179,345

$ 1,414,699 $ 210,160 $

-

$ 210,160 97.067

Homeland Security Grant Program Personnel Services Operating Expenses Equipment Total

2013-0010-085-00000

9/1/13-5/31/15

$ 401,531 $

-

$ 401,531

325,462

-

325,462

962,419

-

962,419

$ 1,760,533 $ 1,689,412 $

-

$ 1,689,412 97.067

Homeland Security Grant Program Personnel Services Operating Expenses Equipment Total

2014-00093-085-00000 9/1/14-5/31/16

$ 179,285 $

-

$ 179,285

244,760

-

244,760

511,829

-

511,829

$ 1,964,055 $ 935,874 $

-

$ 935,874 97.067

138

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COUNTY OF SANTA CLARA Notes to the Schedule of Expenditures of Federal Awards (Continued)
For the Fiscal Year Ended June 30, 2015

Note 8 - Schedules of the California Emergency Management Agency (Cal EMA) and California Victim Compensation and Government Claims Board (Continued)

California Victim Compensation and Government Claims Board grant expenditures: The following represents the California Victim Compensation and Government Claims Board non-Federal grant expenditures for the fiscal year ended June 30, 2015. This information is included in the County's single audit report at the request of the California Victim Compensation and Government Claims Board.

Program Title and Expenditure Category Victim Witness Assistance - BOC
Personnel Services Operating Expenses
Total
Victim Witness Restitution for Crime Victims Personnel Services Total

Grant Award Number/Period
VCGC2060 7/1/12-6/30/15
VCGC3083 7/1/13-6/30/16

Award Amount
$ 3,212,326
$ 879,435

Actual Non-match
$ 789,927 143,309
$ 933,236
$ 275,565 $ 275,565

Actual Match

$

-

-

$

-

$

-

$

-

Actual Total
$ 789,927 143,309
$ 933,236
$ 275,565 $ 275,565

139

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COUNTY OF SANTA CLARA Schedule of Findings and Questioned Costs
For the Fiscal Year Ended June 30, 2015

Section I – Summary of Auditor’s Results
Financial Statements: Type of auditor’s report issued: Internal control over financial reporting: Material weakness(es) identified? Significant deficiency(cies) identified? Noncompliance material to financial statements noted?

Unmodified
No None Reported No

Federal Awards:

Internal control over major programs:

x Material weakness(es) identified?

Yes

x Significant deficiency(ies) identified?

Yes

Type of auditor’s report issued on compliance for major programs: Unmodified for all major programs, except for CFDA No. 93.558, which was qualified.

Any audit findings disclosed that are required

to be reported in accordance with Section

510(a) of OMB Circular A-133?

Yes

Identification of major programs:

CFDA No. 10.557

Special Supplemental Nutrition Program for Women, Infants, and Children

CFDA No. 93.558

Temporary Assistance for Needy Families

CFDA No. 93.667

Social Services Block Grant

CFDA No. 93.778

Medical Assistance Program

CFDA No. 93.959

Block Grants for Prevention and Treatment of Substance Abuse

CFDA No. 97.067

Homeland Security Grant Program

Dollar threshold used to distinguish between Type A and Type B programs:

$3,000,000

Auditee qualified as low-risk auditee?

No

Section II – Financial Statement Findings None Reported.

140

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COUNTY OF SANTA CLARA Schedule of Findings and Questioned Costs (Continued)
For the Fiscal Year Ended June 30, 2015

Section III – Federal Award Findings and Questioned Costs

Finding 2015-001

Special Tests & Provisions – Child Support Non-Cooperation

Awarding Agency: Passed Through: Program Name: CFDA Number: Award Number: Award Year: Classification of Finding:

United States Department of Health and Human Services State of California Department of Social Services Temporary Assistance for Needy Families 93.558 Not Available July 1, 2014 through June 30, 2015 Material Weakness in Internal Control over Compliance Material Noncompliance

Criteria A grantee is responsible for documenting special tests and provisions determinations. Under the Temporary Assistance for Needy Families (TANF) special tests and provisions requirements, the Notice of Action forms are used to ensure compliance with the special tests and provisions – child support noncooperation and as such these forms should be properly maintained. Under TANF guidelines, participants who are sanctioned should perform the following:

If the IV-D agency determines that an individual is not cooperating, and the individual does not qualify for a good cause or other exception established by the State agency responsible for making good cause determinations…the IV-A agency must then take appropriate action by: deducting from the assistance that would otherwise be provided to the family of the individual an amount equal to not less than 25 percent of the amount of such assistance; or denying the family any assistance under the program (45 CFR section 264.30).

Condition/Context During our testing of nine participant files out of a population of 31 individuals who did not cooperate with the State in establishing paternity, or in establishing, modifying or enforcing a support order with respect to a child of the individual for the fiscal year, we noted that Notice of Action forms for five participant files were not maintained in the client records. As such the reduction in benefit payment was not communicated to the participant at least 10 days prior to the sanction.

Questioned Costs Not applicable. The missing Notice of Action forms did not resulted in an overpayment of federal funds.

Cause and/or Effect Inadequate documentation may result in incorrect benefit reductions, thus improper benefit amounts may be issued.

Recommendation We recommend that the County continue to evaluate the effectiveness of its current internal control policies over proper record keeping of all required correspondence, including Notice of Action forms, to benefit recipients. In addition, we recommend the County continue to strengthen its internal control procedures over the benefit sanction process to ensure that sanctions are properly and timely communicated to beneficiaries and only imposed when valid.

141

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COUNTY OF SANTA CLARA Schedule of Findings and Questioned Costs (Continued)
For the Fiscal Year Ended June 30, 2015

Section III – Federal Award Findings and Questioned Costs (Continued)

Finding 2015-002

Special Tests & Provisions – Penalty for Refusal to Work

Awarding Agency: Passed Through: Program Name: CFDA Number: Award Number: Award Year: Classification of Finding:

United States Department of Health and Human Services State of California Department of Social Services Temporary Assistance for Needy Families 93.558 Not Available July 1, 2014 through June 30, 2015 Significant Deficiency in Internal Control over Compliance Incident of Noncompliance

Criteria A grantee is responsible for documenting special tests and provisions determinations. Under the Temporary Assistance for Needy Families (TANF) special tests and provisions requirements, the Notice of Action forms are used to ensure compliance with the special tests and provisions – penalty for refusal to work and as such these forms should be properly maintained. Under TANF guidelines, participants who are sanctioned should perform the following:

If the State agency determines that an individual refuses to work, subject to any good cause or other exemptions established by the State, the State agency must reduce or terminate the assistance payable to the family. The HHS may penalize the State by an amount not less than one percent and not more than five percent of the SFAG for violation of this provision (42 USC 609 (a)(14); 45 CFR sections 261.14, 261.16, and 261.54).

Condition/Context During our testing of 40 participant files out of a population of 1,095 individuals who are not exempt under State rules or do not meet State good cause criteria, we noted that the County did not properly reduce the participants’ benefits on a timely basis. Per review of the case history, the sanction should be effective starting July 1, 2014, but the actual reduction started in October 1, 2014.

Questioned Costs $384. The participants’ benefits were required to be reduced by $128 per month from July 2014 through September 2014.

Cause and/or Effect The family had an existing sanction related to other requirements placed for another individual at that time. This created some confusion about setting up another sanction under the same family ID in the CalWIN system. Therefore, this sanction was not correctly established. The monthly benefit was overpaid from July 2014 through September 2014.

Recommendation We recommend that the County provide training to the users of the system on a regular basis and make all resources available to the staff to ensure all users of the system understand how to use all system functions related their areas of responsibility. The County should also consider designating a number of users as “super users”, who thoroughly understands the CalWIN system and will become the “go-to” people for any questions from other users.

142

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COUNTY OF SANTA CLARA Schedule of Findings and Questioned Costs (Continued)
For the Fiscal Year Ended June 30, 2015

Section III – Federal Award Findings and Questioned Costs (Continued)

Finding 2015-003

Cash Management

Awarding Agency: Passed Through: Program Name: CFDA Number: Award Number: Award Year: Classification of Finding:

United States Department of Homeland Security California Emergency Management Agency Homeland Security Grant Program 97.067 2012-SS-0123 October 1, 2012 through August 31, 2014 Significant Deficiency in Internal Control over Compliance Incident of Noncompliance

Criteria The U.S. Office of Management and Budget Circular A-133, Audits of States, Local Governments and Non-Profit Organizations (OMB Circular A-133) states that when entities are funded on a reimbursement basis, program costs must be paid for by entity funds before reimbursement is requested from the federal government. The fiscal year 2012 Homeland Security Grant Program (SHSGP) is a reimbursement basis program.

Condition/Context During our review of the reimbursement claims submitted to the grantor, we noted that one of the reimbursement claims included a transaction in which the payment to the vendor has not been made at the time the reimbursement claim was submitted. The payment was made to its vendor on February 12, 2015, after the reimbursement claim was submitted in August 20, 2014.

Questioned Costs Not applicable. The payment was made for an allowable activity of the program. Therefore, the federal expenditure is not considered a questioned cost.

Cause and/or Effect The invoice was received in June 2014, however, the payment to the vendor was not made until February 2015. The noncompliance was caused by an oversight between the disbursement process and the preparation of reimbursement claims by the County’s Office of Emergency Services.

Recommendation We recommend the County evaluate the reporting preparation process to increase communication between the County’s finance department and the County’s Office of Emergency Services that handles the grants activities.

143

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COUNTY OF SANTA CLARA Status of Prior Year’s Findings and Questioned Costs
For the Fiscal Year Ended June 30, 2015

Reference Number:

Financial Statement Finding 2014-001 – Significant Deficiency Internal Controls Over the Financial Reporting Process

Audit Finding:

As part of our audit, we assessed whether the County’s internal controls have been effective over financial reporting. During our audit, we identified the following significant adjustments to the County’s financial statements, which resulted in a significant deficiency in its internal controls:

x Reclassification of the Santa Clara Valley Health & Hospital System Enterprise Fund’s (SCVHHSEF) cash and investments in the amount of $181.4 million from a restricted asset to an unrestricted asset.
x Reversal of SCVHHSEF’s payable to other County funds and the corresponding unrestricted cash and investments in the amount of $66.9 million.
x Reclassification of SCVHHSEF’s unearned cash received from the State in the amount of $57.3 million from and offset to an asset to a due to other governmental agencies liability.

Recommendation:

The Department should continue to evaluate the experience of professionals assigned to key roles in the preparation of the annual financial reports and ensure that there is a robust supervision and review process.

Status

Corrective action plan has been implemented.

Reference Number:

Federal Award Finding 2014-002 – Allowable Costs/Cost Principles

Program Identification:

U.S. Department of Health and Human Services Passed Through State of California Department of Health Services CFDA No. 93.778 – Medical Assistance Program

Audit Finding:

During our testing of 40 payroll disbursements for the County’s Medical Assistance Program during the period of July 1, 2013 to June 30, 2014, we identified 2 disbursements where the underlying timesheet of the employee did not contain an approval signature by the employee’s supervisor validating review and approval of the hours charged to the program.

Recommendation:

We recommend that the County strengthen internal controls over the payroll process to ensure that all employee timesheets have undergone supervisory review and approval prior to payroll distribution.

Status:

Corrective action plan has been implemented.

144

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COUNTY OF SANTA CLARA Status of Prior Year’s Findings and Questioned Costs (Continued)
For the Fiscal Year Ended June 30, 2015

Reference Number:

Federal Award Finding 2014-003 – Reporting

Program Identification:

U.S. Department of Health and Human Services Passed Through State of California Department of Alcohol and Drugs CFDA No. 93.959 – Block Grants for Prevention and Treatment of Substance Abuse

Audit Finding:

During our testing of 2 quarterly reports out of a population of the 4 QFFMRs submitted for the fiscal year ended June 30, 2014, we noted that the QFFMRs were prepared and submitted by a Senior Health Care Financial Analyst in the General Accounting and Reimbursement Department without secondary review of accuracy.

Recommendation:

We recommend the County evaluate the reporting process and redistribute responsibilities as appropriate.

Status:

Corrective action plan has been implemented.

Reference Number:

Federal Award Finding 2014-004 – Special Tests & Provisions – Child Support Non-Cooperation

Program Identification:

U.S. Department of Health and Human Services Passed Through State of California Department of Social Services CFDA No. 93.558 – Temporary Assistance for Needy Families

Audit Finding:

During our testing of 9 files out of a population of 44 individuals who did not cooperate with the State in establishing paternity, or in establishing, modifying or enforcing a support order with respect to a child of the individual for the fiscal year, we noted that 6 participant files did not have a Notice of Action form maintained with the client records. As such the reduced benefit payment was not communicated to the participant at least 10 days prior to the sanction.

Recommendation:

We recommend that the County continue to evaluate the effectiveness of its current internal control policies over proper record keeping of all correspondence, including Notice of Action forms, to benefit recipients. In addition, we recomment the County continue to strengthen its internal control procedures over the benefit sanction process to ensure that sanctions are properly and timely communicated to beneficiaries and only imposed when valid.

Status:

Not corrected. See current year finding 2015-001.

145

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This Page is Intentionally Left Blank. 146

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COUNTY OF SANTA CLARA Corrective Action Plan
For the Fiscal Year Ended June 30, 2015
The following findings were reported to the County’s Schedule of Findings and Questioned Costs for the Year Ended June 30, 2015. The County’s Corrective Action Plan for these findings is as follows:
Comment #2015-001 – (Material Weakness in Internal Control over Compliance and Material Noncompliance) – Special Tests and Provisions – Child Support Non-Cooperation (CFDA# 93.558)
The Social Service Agency agrees that all five of the participant files noted did not have copies of the Notice of Action to decrease benefits for Child Support Non-Cooperation. We have taken the following corrective actions:
1) Effective 2/1/16, individual caseloads were created and assigned to continuing eligibility workers in an effort to facilitate seamless communication between various departments and agencies. Eligibility Workers are now responsible for the maintenance, ongoing eligibility determinations, and penalty applications of a specific assigned caseload.
2) Supplements were issued on these cases as there is no verification on file to indicate a legal and timely 10-day Notice of Action (NOA) was sent to the clients. a) On the active cases, a NOA has been sent informing them of the penalty being applied in the future month. b) On the closed cases, the penalty has been recorded and will be implemented if and when the client reapplies for CalWORKs.
3) Expansion of child-support non-cooperation listing. a) Existing report on child support penalty and sanctions has been expanded to include cases where child support penalty/sanction was imposed and if NOA was issued. b) This report is a reoccurring cumulative monthly report which is assigned to workers by caseload.
4) Updated business process to include a case rejection process when the prior worker fails to issue a NOA after imposing a child support penalty/sanction. a) Cases that have been reassigned to a new worker will be returned to the previous worker, within a designated timeframe, if it is discovered that the previous worker failed to issue a NOA to the client regarding the implementation of a child support sanction/penalty.
The following actions are pending implementation for the respective timeframes identified:
1) Service Request to modify CalWIN data system. a) Systems vendor has confirmed functionality error regarding NOAs not generating on cases when there is an existing unrelated sanction. b) The CalWIN Project anticipates a resolution for this known error by April 2016.
2) Mandatory in-class training will be conducted for all CalWORKs Eligibility Workers by late July 2016. The training will encompass the following aspects: a) Difference between a child support penalty and child support sanction. b) Timeframe in which actions must be taken, c) Process to notify a client, d) How to enter information correctly into CalWIN,
Review of the process to ensure that the correct NOA is being mailed, and the Communication process between DCSS and EWs.
147

Case 5:17-cv-00574-WHO Document 29-1 Filed 02/23/17 Page 25 of 25
COUNTY OF SANTA CLARA Corrective Action Plan (Continued) For the Fiscal Year Ended June 30, 2015
Comment #2015-002 – (Significant Deficiency in Internal Control over Compliance and Noncompliance) – Special Tests and Provisions – Penalty for Refusal to Work (CFDA# 93.558)
The Social Service Agency agrees that, for the one case referenced, an overpayment was not calculated for the period July, August and September 2014 as a result of Welfare-to-Work (WTW) sanction not implemented timely. The agency will take the following corrective actions:
1) An overpayment of $128 per month will be calculated for the period of July 1, 2014 through September 30, 2014 and an overpayment claim of $384 will be established. A Notice of Action will be mailed to the client to inform her of the claim/overpayment. The overpayment will be recorded and forwarded to collections for recovery.
2) As part of the communication between the EC/EC Supervisor and EW/EW Supervisor, the CWES Supervisor notifies the EW and EWS by sending an email on the day the sanction is authorized. Additional instructions will be provided to staff by June 15, 2016 reminding them to confirm that sanctions are implemented in a timely manner and that overpayments must be calculated, and claims established when the sanction is not imposed timely.
Instructions will include a process for EW/EC experiencing automated systems issues, such as addressing prior sanctions resulting in duplicate sanctions that prevent implementing a current sanction, to immediately contact specialized support staff, including CalWIN Help Desk, to address the issues timely and accurately.
Comment #2015-003 – (Significant Deficiency in Internal Control over Compliance and Noncompliance) – Cash Management (CFDA# 97.067)
The County’s Office of Emergency Services (OES) recognizes and agrees with this finding. The cash management error was due in part to OES being understaffed, i.e. there was no permanent accounting staff, or trained grant staff, at the time of the FY 2012 SHSGP grant closeout.
Since 2014, current staff has been trained in the preparation of grant reimbursement requests. We implemented this training immediately upon hiring. We have also implemented new reimbursement/cash request procedures wherein all grant invoices are cross-checked against an SAP financial report of grant expenditures. This procedure prohibits the inclusion of vendor/sub-recipient invoices that have not yet been paid by our office during the reimbursement request process. It also ensures that all grant expenditures have been included in our reimbursement requests.
The Grant Manager has also implemented the practice of meeting quarterly with accounting staff to review grant expenditures. This practice is to ensure that sub-recipient invoices are submitted well before the grant performance period end date, and to avoid having to expend funding in a last minute fashion, where the potential for delayed reimbursement of vendors/sub-recipients is increased.
In addition to the measures above, OES will implement the following additional corrective action: Effective immediately, a secondary review for accuracy and completeness of all reimbursement requests will be performed before final submission to the State. 
148

Case 5:17-cv-00574-WHO Document 29-2 Filed 02/23/17 Page 1 of 5
EXHIBIT B

Case 5:17-cv-00574-WHO Document 29-2 Filed 02/23/17 Page 2 of 5

OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA

70 West Hedding Street, 9tl1 Floor San Jose, California 95110-1770
(408) 299-5900 / (408) 292-7240 (FAX)

sP

VA

NLTX C^P

August 16,2010

Miguel M6rquez
COUNTY COUNSEL
Winifred Botha Orry P. Korb Lori E. Pegg
ASSISTANT COUNTY COUNSEL

VIA FEDEX OVERNIGHT DELIVERY
David Venturella, Executive Director Office of Secure Communities U.S. Department of Homeland Security 500 12th Street SW Washington, D.C. 20024

Deai* Mr. Venturella:
I am writing to request clarification regarding the "Secure Communities" program. The Santa Clara County Board of Supervisors has asked me to provide them with an explanation of the way Secure Communities operates at the local level and the extent of the County's obligation to comply. I have found that much of the available information concerning this program is confusing and contradictory. I therefore request written clarification on the following questions.
1. Is there a mechanism by which localities may "opt out?"
The Secure Communities Standard Operating Procedures appear to describe Secure Communities as a program that is voluntary for counties. The cover page, for example, states that the Standard Operating Procedures are "[d]istributed for adoption by participating county and local law enforcement agencies^]"1 Yet nothing in the Standard Operating Procedures explains how counties elect to become "participating countpes]," what the mechanism for "adoption" is, or whether they can opt out instead if they so choose.
Additionally, in the cover letter accompanying the 2009 Memorandum of Agreement between Immigration and Customs Enforcement ("ICE") and the California Department of Justice, you stated that "[d]eployment at the county and local level requires a signed Statement of Intent (SOI) by participating agencies that oversee booking locations to ensure those agencies understand and adhere to the principles set forth in the MOA and a set of Standard Operating
1 Immigration and Customs Enforcement, Secure Communities (SC) Standard Operating Procedures (SOP) (2009),
available at hUp:/Av\vvv.ice.gov/doclib/foia/secure communities/securecommunitiesops93009.pdf (hereinafter "Standard Operating Procedures").

Case 5:17-cv-00574-WHO Document 29-2 Filed 02/23/17 Page 3 of 5
Letter to D. Venturella Re: Secure Communities August 16, 2010 Page 2 of 4
Procedures."2 I have been unable to find any further information about these Statements of Intent. No department in Santa Clara County has signed or been asked to sign one; nor, to my knowledge, has any other California municipality.
Recent statements your office has made to the press suggest that you do not view county participation as voluntary, and that once ICE has signed an MOA with the relevant state department of justice, a county's only recourse if it wishes not to participate in the program is to seek an exemption from the state. Is that correct? Do you view the State of California as having the ability, under the 2009 MOA your office signed with the California Department of Justice, to exempt certain counties from the program? Have you allowed other localities or law enforcement agencies, either inside or outside California, to opt out or modify their participation in the program?
I understand that ICE is offering counties one limited form of "opt out": Counties may request not to receive "match messages" showing when an individual's fingerprints have been matched with those in ICE's IDENT database. My understanding is that these messages do not require or authorize counties to take any action with respect to the arrested individual. Assuming my understanding is correct, what is the purpose of receiving or not receiving these messages?
2. Once Secure Communities is deployed in a locality, is the locality required to comply with detainers, and will you provide reimbursement and indemnification?
The Standard Operating Procedures state that "[w]hen ICE determines an alien has been charged or convicted of a Level 1 offense that could result in removal, or when an alien who is already subject to removal is charged with a Level 1 offense, ICE will file an Immigration Detainer (Form 1-247) at the time of booking with the local LEA that has custody of the alien."3 ICE has not made clear, however, whether localities are required or merely requested to comply with such detainers. The Standard Operating Procedures use a mixture of mandatory and voluntary language.4 And the language of ICE's Form 1-247 states that "[fjederal regulations (8 C.F.R. § 287.7) require you to detain the alien for a period not to exceed 48 hours (excluding Saturdays, Sundays and Federal holidays)" if ICE so requests.5 Is it ICE's position that localities are legally required to hold individuals pursuant to Form 1-247, or are detainers merely requests with which a county could legally decline to comply?
2 Letter from David Venturella, U.S. Department of Homeland Security, to Linda Denly, Bureau of Criminal Identification and Information, CaHfornia Department of Justice (Jan. 23, 2009), available at http://w\v\v.ice.gov/docl?b/foia/secure communities-moa/r califoinia 4-10-09.pdf.
3 Standard Operating Procedures at 5. 4 Id. at 6 ^RequestedLocdA.LEA Cooperative Actions... ICE requests that the LEAs: 2.2.1 Abide by Immigration Detainer conditions: The local LEA will abide by the conditions stated in the Immigration Detainer, Form 1-247") (emphases added).
5 Id. at 11 (Form 1-247, "Immigration Detainer—Notice of Action," attached as Appendix C) (emphasis added).

Case 5:17-cv-00574-WHO Document 29-2 Filed 02/23/17 Page 4 of 5
Letter to D. Venturella Re: Secure Communities August 16, 2010 Page 3 of 4
It is also unclear who bears the costs related to detaining individuals at ICE's request. The federal regulation regarding detainers states that "[n]o detainer ... shall incur any fiscal obligation on the part of the Department [of Homeland Security], until actual assumption of custody by the Department, except as provided in paragraph (d) of this section."6 I see nothing in paragraph (d) clarifying what financial reimbursement the Department provides to local agencies, although the paragraph itself deals with the kind of temporary detention at issue in the Secure Communities program.7 As you know, local governments are faced with increasing financial difficulties, and holding individuals pursuant to immigration detainers incurs costs and creates the risk of liability. Will ICE reimburse localities for the cost of detaining individuals pursuant to Form 1-247 beyond their scheduled release times? Additionally, will ICE indemnify localities for any liability incurred because of that detention?
3. Once Secure Communities is deployed in a locality, is the locality required to comply with other "local LEA cooperative actions"?
As with detainers, the Standard Operating Procedures use a mixture of mandatory and voluntary language to describe other forms of local LEA cooperation.8 Is it ICE's position that localities where Secure Communities is deployed are legally required to a) inform ICE if a subject is to be transferred or released thirty days in advance of any release or transfer; b) allow ICE agents and officers access to detainees to conduct interviews and serve documents; and/or c) assist ICE in acquiring information about detainees? If so, what is the legal basis for such requirements?
//
//
//
//
//
6 8 C.F.R. § 287.7(e).
7 Id § 287.7(d) (providing for "[t]emporaiy detention at Department request").
8 Standard Operating Procedures at 6 ("Requested Local LEA Cooperative Actions ... ICE requests that the LEAs: ... 2.2.3 Inform ICE if subject is transferred or released: The local LEA will notify ICE when an alien's release or transfer to another location is imminent.... 2.2.4 Allow access to detainees: The local LEA will allow ICE Agents and Officers access to detainees .... 2.2.5 Assist ICE in acquiring information about detainees: The local LEA will locate and identify the booking and/or detention information on any alien against whom ICE has lodged a detainer.") . (emphases added).

Case 5:17-cv-00574-WHO Document 29-2 Filed 02/23/17 Page 5 of 5
Letter to D. Venturella Re: Secure Communities August 16, 2010 Page 4 of 4
Your clarification on the above questions would be appreciated. Please do not hesitate to contact me at the address above. I look forward to hearing from you.
Veiy truly yours,
MIGUEL MARQUEZ County Counsel
c: Marc Rapp, Deputy Director of Secure Communities, U.S. Department of Homeland Security (via email) Hon. Zoe Lofgren, Chair, U.S. House of Representatives Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law (via email) Honorable Board of Supervisors, County of Santa Clara Jeffrey V. Smith, County Executive, County of Santa Clara Laurie Smith, Sheriff, County of Santa Clara Edward Flores, Chief of Correction, County of Santa Clara
293262

Case 5:17-cv-00574-WHO Document 29-3 Filed 02/23/17 Page 1 of 5
EXHIBIT C

Case 5:17-cv-00574-WHO Document 29-3 Filed 0S2e/c2ur3e/C1o7mmuPniatiegse 2 of 5
U.S. Department of Homeland Security 500 12th Street, SW Washington, D.C. 20536
U.S. Immigration
aEnn<^fo^rcuesmtoem nst
Mr. Miguel Mdrquez County Counsel County of Santa Clara 70 West Bedding Street, Ninth Floor San Jose, CA 95110-1770
Dear Mr. Marquez:
Thank you for your August 16, 2010, letter regarding U.S. Immigration and Customs Enforcement's (ICE) Secure Communities initiative. I appreciate the opportunity to discuss ICE's immigration enforcement policies with you and to respond to your questions.
As an overview, Secure Communities is ICE's comprehensive strategy to improve and modernize the identification and removal of criminal aliens from the United States. As part of the strategy, ICE uses a federal biometric information sharing capability to more quickly and accurately identify aliens when they are booked into local law enforcement custody. ICE uses a risk-based approach that prioritizes immigration enforcement actions against criminal aliens based on the severity of their crimes, focusing first on criminal aliens convicted of serious crimes like murder, rape, drug trafficking, national security crimes, and other "aggravated felonies," as defined in § 101(a)(43) of the Immigration and Nationality Act (INA). Under this strategy, ICE maintains the authority to enforce immigration law. The activation of biometric informationsharing capability in new jurisdictions enables ICE to identify criminal aliens before they are released from law enforcement custody into our communities, which strengthens public safety. ICE works with state identification bureaus to develop deployment plans for activating the biometric information sharing capability in their jurisdictions. Your specific questions about Secure Communities are answered below.
1. Is there a mechanism by which localities can opt out?
As part of the Secure Communities activation process, ICE conducts outreach to local jurisdictions, which includes providing information about the biometric information sharing capability, explaining the benefits of this capability, explaining when the jurisdiction is scheduled for activation, and addressing any concerns the jurisdiction may have. If a jurisdiction does not wish to activate on the scheduled date in the Secure Communities deployment plan, it must formally notify its state identification bureau and ICE in writing by email, letter, or facsimile. Upon receipt of that information, ICE will request a meeting with federal partners, the jurisdiction, and the state to discuss any issues and come to a resolution, which may include adjusting the jurisdiction's activation date or removing the jurisdiction from the deployment plan.
www.ice.gov

Mr. MiCguaesleM5a:r1q7u-eczv-00574-WHO Document 29-3 Filed 02/23/17 Page 3 of 5 Page 2
a) Can you provide information on the Statement of Intent referenced in the cover letter accompanying the 2009 MOA?
ICE does not require local jurisdictions to sign Statements of Intent or any other document to participate in Secure Communities. The reference to the Statement of Intent in the cover letter to the MOA was an oversight. The MOA signed by the state of California makes no mention of a Statement of Intent, and ICE has advised the California Department of Justice that it will not be utilizing Statements of Intent.
b) Do you view the State of California as having the ability to exempt certain counties from the program under the 2009 MOA signed by ICE and the California Department of Justice?
ICE recognizes the California Department of Justice as the agency having the responsibility for the management and administration of the state's criminal data repositories, which includes development of and adherence to policies and procedures that govern their use and how information is shared with other state and federal agencies. Therefore, ICE defers to the California State Attorney General on how state, county, and local law enforcement agencies within the state of California will share biometric data under the MOA.
c) Have you allowed other localities of law enforcement agencies, either inside or outside California, to opt out or modify their participation in the program?
The Washington, D.C. Metropolitan Police Department is the only jurisdiction to date that has terminated its signed Memorandum of Agreement. As referenced by your letter, activated jurisdictions do not have to receive the "match responses" and Secure Communities, in coordination with the state identification bureaus and the FBI's Criminal Justice Information Services (CJIS) Division, has accommodated jurisdictions that requested not to receive that information.
d) What is the purpose of receiving the "match messages"? Do they require or authorize counties to take action with respect to arrested individuals?
The purpose of local law enforcement receiving a 'match message' is to provide any additional identity information about the subject, including aliases, from the DHS biometric database storing over 100 million records that may not have been available based only on a criminal history check. Additional identity information may further a law enforcement officer's open investigations and lead to improved officer safety. Receiving a 'match message' does not authorize or require any action by local law enforcement.

Mr. MiCguaesleM5a:r1q7u-eczv-00574-WHO Document 29-3 Filed 02/23/17 Page 4 of 5 Page 3
2. Once Secure Communities is deployed in a locality, is the locality required to comply with detainers, and will you provide reimbursement and identification?
a) Is it ICE's position that localities are required to hold individuals pursuant to Form 1-247 or are detainers merely requests with which a county could legally decline to comply?
ICE views an immigration detainer as a request that a law enforcement agency maintain custody of an alien who may otherwise be released for up to 48 hours (excluding Saturdays, Sundays, and holidays). This provides ICE time to assume custody of the alien.
b) Who bears the costs related to detaining individuals at ICE's request?
Pursuant to 8 C.F.R. § 287.7(e), ICE is not responsible for incarceration costs of any individual against whom a detainer is lodged until "actual assumption of custody." The exception provided in section 287.7(e) stating that ICE shall not incur "fiscal obligation.. .except as provided in paragraph (d) of this section" only serves to authorize payment but does not require it. To the extent a payment is considered, it should only be made pursuant to a written agreement because, under INA § 103(a)(l1), ICE pays detention costs when aliens are in its custody pursuant to "an agreement with a State or political subdivision of a State."
c) Will ICE reimburse localities for the cost of detaining individuals pursuant to Form 1-247 beyond their scheduled release times? Will ICE indemnify localities for any liability incurred because of that detention?
ICE does not reimburse localities for detaining any individual until ICE has assumed actual custody of the individual. Further, ICE will not indemnify localities for any liability incurred because the Anti-Deficiency Act prohibits such indemnity agreements by federal agencies.
3. Is it ICE's position that localities where Secure Communities is deployed are legally required to:
i. Inform ICE if a subject is to be transferred or released thirty days in advance of any release or transfer? If so, what is the legal basis for such a requirement?
The notification to ICE of inmate transfer or release within thirty days is pursuant to ICE's request for that information. It is not a statutory requirement.

Mr. MiCguaesleM5a:r1q7u-eczv-00574-WHO Document 29-3 Filed 02/23/17 Page 5 of 5 Page 4
ii. Allow ICE agents and officers access to detainees to conduct interviews and serve documents? If so, what is the legal basis for such a requirement?
INA § 238, 8 U.S.C. 1228, provides for the availability of special removal proceedings at federal, state, and local correctional facilities for aliens convicted of certain criminal offenses. Such programs require ICE officers to conduct inmate interviews to determine alienage and any possibilities for relief or protection from removal. The statute does not require state or local jurisdictions to participate in such programs.
iii. Assist ICE in acquiring information about detainees? If so, what is the legal basis for such a requirement?
Assisting ICE in acquiring detainee information is not a legal requirement.
Thank you again for your letter. If you have any additional questions, please feel free to contact me at (202) 732-3900.
Sincerely yours,
David Venturejfla Assistant Director

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EXHIBIT D

Case 5:17-cv-00574-WHO Document 29-4 Filed 02/23/17 Page 2 of 3

OFFICE OF THE COUNTY EXECUTIVE COUNTY OF SANTA CLARA
70 West Hedding Street, 111'1 Floor San Jose, California 95110-1770 (408) 299-5105 (408) 293-5649 (FAX)

J^OUAKS.
E8M
VJ
X1850CViK

OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA
70 West Hedding Street, 9th Floor San Jose, California 95110-1770 (408) 299-5900 (408) 292-7240 (FAX)

Jeffrey V. Smith COUNTY EXECUTIVE

Miguel Marquez COUNTY COUNSEL

October 13,2010

VIA U.S. MAIL
David Venturella, Executive Director Office of Secure Communities U.S. Department of Homeland Security 500 12th Street SW Washington, DC 20024
Dear Mr. Venturella:
Thank you for responding to our inquiry on behalf of the County of Santa Clara ("the County") regarding the Secure Communities program. On September 28, 2010, by a unanimous vote, the County's Board of Supervisors directed us to take all necessary actions to allow the County to opt out of participation in the Secure Communities program.
Pursuant to the instructions in your letter, we are sending this letter to your office and to the California Department of Justice to provide you with formal notice that the County does not wish to participate in the Secure Communities program. The County respectfully requests that Immigration and Customs Enforcement, along with the California Department of Justice, de­ activate the sharing of biometric information called for under the Secure Communities program ("IDENT/IAFIS Interoperability") with respect to Santa Clara County.
Because the County was activated as a Secure Communities jurisdiction on May 4,2010, without being provided an opportunity to discuss our concerns about the program or to have them addressed, we ask that such de-activation take place immediately.

Case 5:17-cv-00574-WHO Document 29-4 Filed 02/23/17 Page 3 of 3 Letter to David Venturella, Executive Director, Office of Secure Communities Re: Secure Communities October 13, 2010 Page 2 of 2 •

If, as set forth in your letter, you would like to set up a meeting between federal partners, the State, and the County to discuss deployment of Secure Communities in the County, please contact the Office of the County Counsel at 408-299-5902 to schedule such a meeting. We look forward to hearing from you.

Very truly yours,

Very truly yours,

JEF:

V. SMITH

County Executive

MIGUEL MARQUEZ
County Counsel

c: Edmund G. Brown, Jr. Attorney General, State of California Department of Justice 13001 Street Sacramento, CA 95814
Linda Denly Bureau of Criminal Identification and Information Division of California Justice Information Services Department of Justice 4949 Broadway, Room G-116 Sacramento, CA 95820
Honorable Zoe Lofgren, Chair, U.S. House of Representatives Subcommittee on Immigration, Citizenship, Refugees, Border Security, and International Law (via email)
Honorable Board of Supervisors, County of Santa Clara
325631

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EXHIBIT E

Case 5:17-cv-00574-WHO Document 29-5 Filed 02/23/17 Page 2 of 3

SANTA CLARA COUNTY BOARD OF SUPERVISORS POLICY MANUAL
ADMINISTRATION AND GENERAL GOVERNMENT

Revised 4-26-16

a Certified Residential Specialist (CRS) designation from the Council of Residential Specialists, a Graduate Realtor Institute (GRI) designation from the National Association of Realtors, or a similar designation;
(C) Real property appraisers with the designation of Member Appraisal Institute (MAI) or a similar designation evidencing experience with complex income property valuation;
(D) Personal property appraisers with an Accredited Senior Appraiser (ASA) designation from the American Society of Appraisers or a similar designation;
(E) Attorneys with experience with complex income and business property valuation; or
(F) Individuals having experience which is comparable to that set forth in subsections (A) through (E) above.
In addition, Board members may, but shall not be obligated to, ensure that each separate AAB panel has at least one real property appraiser with the designation of MAI from the Appraisal Institute, or similar designation evidencing experience with complex income property valuation, as well as one experienced Assessment Appeals Board member.

3.53.2 Appointment of Value Hearing Officers
It is the policy of the Board of Supervisors that when considering prospective value hearing officers, Board members may, but shall not be obligated to, give preference to candidates possessing the following background:
(A) Residential real property appraisers with an SRA designation from the Appraisal Institute;
(B) Residential real property appraisers licensed at the Certified Residential or Certified General level by the State of California Office of Real Estate Appraisers; or
(C) Individuals having experience which is comparable to that set forth in subsections (A) and (B) above.
In addition, Board members may, but shall not be obligated to, give preference to candidates with prior experience as either a hearing officer or arbitrator.

3.54 CIVIL IMMIGRATION DETAINER REQUESTS (Adopted 10-18-11)
It is the policy of Santa Clara County (County) to honor civil detainer requests from the United States Immigration and Customs Enforcement (ICE) by holding adult inmates for an additional 24-hour period after they would otherwise be released in accordance with the following policy, so long as there is a prior written agreement with the federal govern-

3 - 121

Case 5:17-cv-00574-WHO Document 29-5 Filed 02/23/17 Page 3 of 3

SANTA CLARA COUNTY BOARD OF SUPERVISORS POLICY MANUAL
ADMINISTRATION AND GENERAL GOVERNMENT

Revised 4-26-16

ment by which all costs incurred by the County in complying with the ICE detainer shall be reimbursed:
(A) Upon written request by an Immigration Customs and Enforcement (ICE) agent to detain a County inmate for suspected violations of federal civil immigration law, the County will exercise its discretion to honor the request if one or more of the following apply:
(1) The individual is convicted of a serious or violent felony offense for which he or she is currently in custody.
(a) For purposes of the policy, a serious felony is any felony listed in subdivision (c) of Section 1192.7 of the Penal Code and a violent felony is any felony listed in subdivision (c) of Section 667.5 of the Penal Code.
(2) The individual has been convicted of a serious or violent felony within 10 years of the request, or was released after having served a sentence for a serious or violent felony within 5 years of the request, whichever is later.
(a) If the individual has been convicted of a homicide crime, an immigration detainer request will be honored regardless of when the conviction occurred.
(b) This subsection also applies if the Santa Clara County Department of Corrections has been informed by a law enforcement agency, either directly or through a criminal justice database, that the individual has been convicted of a serious or violent offense which, if committed in this state, would have been punishable as a serious or violent felony.
(B) In the case of individuals younger than 18 years of age, the County shall not apply a detainer hold.
(C) Except as otherwise required by this policy or unless ICE agents have a criminal warrant, or County officials have a legitimate law enforcement purpose that is not related to the enforcement of immigration laws, ICE agents shall not be given access to individuals or be allowed to use County facilities for investigative interviews or other purposes, and County personnel shall not expend County time or resources responding to ICE inquiries or communicating with ICE regarding individuals' incarceration status or release dates.

3.55 DEFENDING PROFESSIONALLY LICENSED EMPLOYEES IN ADMINISTRATIVE PROCEEDINGS (Adopted 10-25-11)
The County values its employees and desires to support them when they perform their duties within the scope of their employment in a good-faith manner and to the best of their

3 - 122

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EXHIBIT F

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EXHIBIT G

Case 5:17-cv-00574-WHO Document 29-7 Filed 02/23/17 Page 2 of 4

RESOLUTION NO.^QfO - 3i
RESOLUTION OF THE BOARD OF SUPERVISORS OF THE COUNTY OF SANTA CLARA
ADVANCING PUBLIC SAFETY AND AFFIRMING THE SEPARATION BETWEEN COUNTY SERVICES AND THE ENFORCEMENT OF FEDERAL CIVIL IMMIGRATION LAW
WHEREAS, the County of Santa Clara is home to a diverse and vibrant community of people representing many races, ethnicities, and nationalities, including immigrants from all over the world; and
WHEREAS, approximately one-third of all County residents are foreign bom, and approximately two-thirds live in families with at least one foreign-bom member; and
WHEREAS, the Board of Supervisors recognizes that fostering a relationship of trust, respect, and open communication between County employees and County residents is essential to County departments' core mission of ensuring public safety and serving the needs of the entire community; and
WHEREAS, the Board of Supervisors wishes to encourage all residents of Santa Clara County to report crimes to County law enforcement officials and to use County services without fear of being arrested by or reported to U.S. Immigration and Customs Enforcement ("ICE"); and
WHEREAS, the Board of Supervisors believes that laws like Arizona's SB 1070 erode the relationship of trust between immigrant communities and local governments, subject individuals to racial profiling, discourage crime victims and witnesses from coming forward and cooperating with local law enforcement officials, and make people afraid to seek the services and medical assistance they and their children need, thereby undermining the health, safety, and well-being of citizens and non-citizens alike; and
WHEREAS, the enforcement of federal civil immigration law is the responsibility of the federal government and not of the County; and
WHEREAS, consistent with the U.S. Constitution's prohibition on the federal commandeering of local resources, the Board of Supervisors has long opposed measures that would deputize local officials and divert County resources to fulfill the federal government's role of enforcing civil immigration law; and
WHEREAS, the Board of Supervisors has consistently sought to protect the rights of all County residents to be free from discrimination, abuse, violence, and exploitation, as reflected by its enduring commitment to protecting victims of hate crimes, domestic violence, elder abuse, human trafficking, and immigration practitioner fraud in Santa Clara County; and

Adopted

Resolution advancing public safety and affirming

the separation between County operations and the

enforcement of federal civil immigration law

Page 1 of 3

<06/02/10
JUN 2 2 2010

Case 5:17-cv-00574-WHO Document 29-7 Filed 02/23/17 Page 3 of 4

Adopted

WHEREAS, in this time of economic difficulties, the Board of Supervisors remains committed to maximizing public safety, public health, and vital services on which the entire community depends, and recognizes that the best way to achieve these priorities is to foster an environment of inclusiveness and trust between the government and all County residents;

NOW, THEREFORE, BE IT RESOLVED that, as to all County departments and agencies subject to the Board of Supervisors' jurisdiction:

1. No County department, agency, officer, or employee shall initiate any inquiry or enforcement action based solely on a person's actual or suspected immigration status, national origin, race, ethnicity, and/or inability to speak English.

2. No County department, agency, officer, or employee shall use any County funds, resources, or personnel to investigate, question, apprehend, or arrest an individual solely for an actual or suspected civil violation of federal immigration law.

3. No County department, agency, officer, or employee shall condition the provision of County services or benefits on the citizenship or immigration status of the individual except where such conditions are lawfully imposed by federal or state law or local public assistance eligibility criteria.

4. No County department, agency, officer, or employee who collects information for the purpose of determining eligibility for services or benefits, or for seeking reimbursement from federal, state, or third-party payors, shall use any County funds or resources to provide that information to ICE for purposes of assisting in the enforcement of federal civil immigration law.

5. The County calls on ICE agents performing official business in the County to identify themselves as federal immigration officers, to make clear that they are not officers, agents, or employees of the County, and to comply with legal mandates to refrain from racial profiling and to respect the due process rights of County residents, including but not limited to providing all required warnings concerning an individual's right to remain silent, the right not to sign documents he or she does not understand, and the right to speak with a lawyer.

BE IT FURTHER RESOLVED that:

6. Nothing in this resolution shall be construed to prohibit any County officer or employee from participating in task force activities with federal criminal law enforcement authorities.

7. Nothing in this resolution shall be construed to prohibit any County law enforcement officer from investigating violations of criminal law.

8. The County Counsel shall work with County departments and agencies to implement this resolution.

Resolution advancing public safety and affirming

the separation between County operations and the

enforcement of federal civil immigration law

Page 2 of 3

rev 06/02/10

Case 5:17-cv-00574-WHO Document 29-7 Filed 02/23/17 Page 4 of 4

9. The Clerk of the Board shall make copies of this resolution available to the public in English, Spanish, Vietnamese, Chinese, and Tagalog.

PASSED AND ADOPTED by the Board of Supervisors, County of Santa Clara, State of California QJUH ^ the following vote:

AYES:

04GE, KNISS, SHiRiiKAwA,

NOES:

ABSENT: Mm#

ABSTAIN: Moaa

Ken Yeager, President Board of Supervisors
Signed and certified that a copy of this document has been delivered by electronic or other means to the President, Board of Supervisors. ATTEST:

Maria Marinos Clerk of the Board of Supervisors
APPROVED AS TO FORM AND LEGALITY:

Miguem&r quez Office of the County Counsel

Adopted

Resolution advancing public safety and affirming

the separation between County operations and the

enfoicement of federal civil immigration law

Page 3 of 3

rev 06/02/10

Case 5:17-cv-00574-WHO Document 29-8 Filed 02/23/17 Page 1 of 2
EXHIBIT H

Case 5:17-cv-00574-WHO Document 29-8 Filed 02/23/17 Page 2 of 2
County of Santa Clara
Office of the County Executive
counq/ Government center, East wing 70 west Hedding slreef, I lth Floor san Josc, california 951 lo @o8l2s9,-5to2 jeff .smith@ceo.sccgov.org
Jeffrey V. Smith, M.D., J.D.
Counry Executive
November 1,20'J,6
Edgardo Garcia, Chief of Police City of San Jose Police Department 201,W. Mission Street San Jose, CA 95110
RE: Justice Assistance Grant (IAG) Program fot 2016
Dear Mr. Garcia:
This letter responds to your inquiry about whether the County of Santa Clara intends to accept funding from the 2016 Justice Assistance Grant (IAG) Program. We wish to inform you that the County is presently choosing to decline to accept201,6IAG funding.
This letter should not be construed as reflective of the position of the County with respect to any other grant, past grants, or future grants, and is limited solely to the 201,6|y'rc Program.
If you have any questions or concerns, please contact Esther Peralez-Dieckmann at (408) 2e9-s1.42.
Sincerely,
M.D., J.D. County Executive
c: Miguel llldârquez, Chief Operating Officer James R. Williams, County Counsel |ohn P. Mills, Deputy County Executive Esther Peralez-Dieckmann, Office of Women's Poliry

 
 Case 5:17-cv-00574-WHO Document 30 Filed 02/23/17 Page 1 of 7

1 OFFICE OF THE COUNTY COUNSEL

KEKER & VAN NEST LLP

COUNTY OF SANTA CLARA

JOHN W. KEKER - # 49092

2 JAMES R. WILLIAMS - # 271253

jkeker@kvn.com

County Counsel

ROBERT A. VAN NEST - # 84065

3 james.williams@cco.sccgov.org

rvannest@kvn.com

GRETA S. HANSEN - # 251471

DANIEL PURCELL - # 191424

4 DANIELLE L. GOLDSTEIN - # 257486

dpurcell@kvn.com

KAVITA NARAYAN - # 264191

CODY S. HARRIS - # 255302

5 JAVIER SERRANO - # 252266

charris@kvn.com

JULIA B. SPIEGEL - # 292469

NICHOLAS S. GOLDBERG - # 273614

6 ADRIANA L. BENEDICT - # 306936

ngoldberg@kvn.com

70 West Hedding Street

633 Battery Street

7 East Wing, Ninth Floor

San Francisco, CA 94111-1809

San Jose, CA 95110-1770

Telephone: 415 391 5400

8 Telephone: 408 299-5900

Facsimile: 415 397 7188

Facsimile: 408 292-7240

9

Attorneys For Plaintiff COUNTY OF SANTA CLARA

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

15

Plaintiff,

16

v.

17 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY,
18 in his official capacity as Secretary of the United States Department of Homeland
19 Security, JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the
20 United States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as
21 Director of the Office of Management and Budget, and DOES 1-50,
22
Defendants. 23

DECLARATION OF ROBERT MENICOCCI, DIRECTOR OF SANTA CLARA COUNTY SOCIAL SERVICES AGENCY

Date: Time: Dept.: Judge:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

Date Filed: February 3, 2017

Trial Date: Not yet set

24

25

26

27

28

1146964

DECLARATION OF ROBERT MENICOCCI Case No. 17-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 30 Filed 02/23/17 Page 2 of 7

Case 5:17-cv-00574-WHO Document 30 Filed 02/23/17 Page 3 of 7

Case 5:17-cv-00574-WHO Document 30 Filed 02/23/17 Page 4 of 7

Case 5:17-cv-00574-WHO Document 30 Filed 02/23/17 Page 5 of 7

Case 5:17-cv-00574-WHO Document 30 Filed 02/23/17 Page 6 of 7

Case 5:17-cv-00574-WHO Document 30 Filed 02/23/17 Page 7 of 7

 
 Case 5:17-cv-00574-WHO Document 31 Filed 02/23/17 Page 1 of 4

1 OFFICE OF THE COUNTY COUNSEL

KEKER & VAN NEST LLP

COUNTY OF SANTA CLARA

JOHN W. KEKER - # 49092

2 JAMES R. WILLIAMS - # 271253

jkeker@kvn.com

County Counsel

ROBERT A. VAN NEST - # 84065

3 james.williams@cco.sccgov.org

rvannest@kvn.com

GRETA S. HANSEN - # 251471

DANIEL PURCELL - # 191424

4 DANIELLE L. GOLDSTEIN - # 257486

dpurcell@kvn.com

KAVITA NARAYAN - # 264191

CODY S. HARRIS - # 255302

5 JAVIER SERRANO - # 252266

charris@kvn.com

JULIA B. SPIEGEL - # 292469

NICHOLAS S. GOLDBERG - # 273614

6 ADRIANA L. BENEDICT - # 306936

ngoldberg@kvn.com

70 West Hedding Street

633 Battery Street

7 East Wing, Ninth Floor

San Francisco, CA 94111-1809

San Jose, CA 95110-1770

Telephone: 415 391 5400

8 Telephone: 408 299-5900

Facsimile: 415 397 7188

Facsimile: 408 292-7240

9

Attorneys For Plaintiff COUNTY OF SANTA CLARA

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

15

Plaintiff,

16

v.

DECLARATION OF CARL NEUSEL, UNDERSHERIFF OF SANTA CLARA COUNTY

17 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY,
18 in his official capacity as Secretary of the United States Department of Homeland
19 Security, JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the
20 United States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as
21 Director of the Office of Management and Budget, and DOES 1-50,
22
Defendants. 23

Date: Time: Dept.: Judge:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

Date Filed: February 3, 2017

Trial Date: Not yet set

24

25

26

27

28

1146967

DECLARATION OF CARL NEUSEL Case No. 17-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 31 Filed 02/23/17 Page 2 of 4

Case 5:17-cv-00574-WHO Document 31 Filed 02/23/17 Page 3 of 4

Case 5:17-cv-00574-WHO Document 31 Filed 02/23/17 Page 4 of 4

 
 Case 5:17-cv-00574-WHO Document 32 Filed 02/23/17 Page 1 of 5

1 OFFICE OF THE COUNTY COUNSEL

KEKER & VAN NEST LLP

COUNTY OF SANTA CLARA

JOHN W. KEKER - # 49092

2 JAMES R. WILLIAMS - # 271253

jkeker@kvn.com

County Counsel

ROBERT A. VAN NEST - # 84065

3 james.williams@cco.sccgov.org

rvannest@kvn.com

GRETA S. HANSEN - # 251471

DANIEL PURCELL - # 191424

4 DANIELLE L. GOLDSTEIN - # 257486

dpurcell@kvn.com

KAVITA NARAYAN - # 264191

CODY S. HARRIS - # 255302

5 JAVIER SERRANO - # 252266

charris@kvn.com

JULIA B. SPIEGEL - # 292469

NICHOLAS S. GOLDBERG - # 273614

6 ADRIANA L. BENEDICT - # 306936

ngoldberg@kvn.com

70 West Hedding Street

633 Battery Street

7 East Wing, Ninth Floor

San Francisco, CA 94111-1809

San Jose, CA 95110-1770

Telephone: 415 391 5400

8 Telephone: 408 299-5900

Facsimile: 415 397 7188

Facsimile: 408 292-7240

9

Attorneys For Plaintiff COUNTY OF SANTA CLARA

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

15

Plaintiff,

16

v.

17 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY,
18 in his official capacity as Secretary of the United States Department of Homeland
19 Security, JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the
20 United States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as
21 Director of the Office of Management and Budget, and DOES 1-50,
22
Defendants. 23

DECLARATION OF DANA REED, DIRECTOR OF EMERGENCY MANAGEMENT FOR THE COUNTY OF SANTA CLARA

Date: Time: Dept.: Judge:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

Date Filed: February 3, 2017

Trial Date: Not yet set

24

25

26

27

28

1146969

DECLARATION OF DANA REED, DIRECTOR OF EMERGENCY MANAGEMENT FOR THE COUNTY OF SANTA CLARA Case No. 17-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 32 Filed 02/23/17 Page 2 of 5

I

I, DANA REED, hereby declare:

2

1. I have personal knowledge of all the matters stated herein and could and would

J testifu truthfully thereto if called to do so.

4

2. I am the Director of Emergency Management for the County of Santa Clara

5 (County), where I oversee the Office of Emergency Services (OES) as well as the Offrce of

6 Emergency Management for the Santa Clara County Fire Department. I have held these positions

7 for three years. Previously, I was a Deputy Fire Chief with the City of San José, California, and
I also served as an Emergency Services Specialist with the NASA Ames Fire Department at the

9 Moffett Field Federal Airfield. Overall, I have worked in incident management and emergency

l0 management for nearly 35 years, including managing Emergency Operations Centers and serving

11 as an Incident Commander in the field during emergency incidents. I also currently chair the

t2 Emergency Managers Committee of the Santa Clara County Operational Area Signatories and

l3 serve on the Approval Authorities for the Bay Area Urban Area Security Initiative (UASI) and

l4 the State Homeland Security Grant Program (SHSGP), two emergency management grant

15 funding programs.

16

3. Under California's emergency management framework, OES is the lead

I7 emergency management agency for the entire Santa Clara County Operational Area (Op Area),

18 which encompasses the geographical region of Santa Clara County and all the local
19 jurisdictions-including cities, towns, and special districts-within it. In its lead Op Area role, 20 OES's core function is to promote, facilitate, and support the efforts of the County and of all of

2l the cities, towns, and local districts within the County to prepare for, respond to, and recover from

22 disasters, emergencies and complex incidents of all types, including both natural disasters, such

23 as earthquakes, and manmade incidents and events, such as terrorist attacks. OES is also

24 responsible for direct emergency management in the unincorporated areas of the County. This

25 includes determining resource priorities and coordinating the response during a proclaimed

26 emergency, including mutual aid or other resources from the State and federal governments.

27

4. Among its many responsibilities, OES provides emergency management training;

28
1146969

engages in region-widehazard planning; activates, staffs, and operates the Santa Clara County
I
DECLARATION OF DANA REED, DIRECTOR OF EMERGENCY MANAGEMENT FOR THE COLTNTY OF SANTA CLARA Case No. I 7-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 32 Filed 02/23/17 Page 3 of 5

1
2 Ja 4 5 6 7 8 9 10
11
t2
13
t4
15
l6 t7
18
t9
20
2l
22 23 24 25 26 27 28
1t46969

Emergency Operations Center, which serves the County and the entire Op Area during

emergency incidents; and coordinates public and private efforts to recover following incidents.
5. OES receives a signihcant amount of federal grant funding from the Department

of Homeland Security's Federal Emergency Management Agency (FEMA) that is administered

by the State of California Governor's Office of Emergency Services (Cal OES).
6. OES receives federal grants from four different grant programs: SHSGP, the

Emergency Management Performance Grant (EMPG) program, UASI, and the Pre-Disaster

Mitigation (PDM) program. All four grant programs are critical to keeping our community safe.
7. All funds under these grant programs are given on a reimbursement basis - in
other words, although an overall sub-grant amount is determined by FEMA and Cal OES in

advance for each fiscal year, the County actually receives the funds only after it submits

documentation showing it has completed qualifying projects. In the meantime, the projects are

funded by the County and by the cities, towns, and special districts that are carrying them out.
8. This federal grant funding represented about two-thirds of OES's total budget for
fiscal year 2016. OES could not perform its current functions without it. The County currently

has more than $3 million in outstanding federal grant funding that has been expended, but not yet

reimbursed, for fiscal year 2016.
9. SHSGP provides funding to ensure that local communities have the capability to

prevent, protect against, mitigate, respond to, and recover from acts of terrorism.

10. Loss of federal SHSGP funding would significantly impact the County's ability to:

i)

identify and address local vulnerabilities to specific hazards;

ii) fund community-wide exercises to test responses to catastrophic events;

iiÐ train first responders; and

irr) create plans to ensure access and functional needs for residents with

mobility or other issues.
11. Losing SHSGP funding would also mean the County would not be reimbursed for

salary and benefit costs of two existing positions at OES and three other positions that serve the

entire Op Area, as well as purchases of critical equipment forhazard response.
2
DECLARATION OF DANA REED, DIRECTOR OF EMERGENCY MANAGEMENT FOR THE COUNTY OF SANTA CLARA Case No. l7-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 32 Filed 02/23/17 Page 4 of 5

1

12. Losing federal SHSGP finding would also affect OES's ability to continue offering

2 several planned terrorism response courses, and would impact the sharing of criminal and

J terrorism-related intelligence with law enforcement agencies.

4

13. EMPG funding supports state and local government activities to prevent, prepare

5 for, mitigate against, respond to, and recover from emergencies and disasters of all types - such
6 as earthquake, fire, and flood hazards; transportation system hazards; and intentional and/or

7 terrorism-related threats.

8

14. OES currently uses EMPG funding to support a strong network of public and

9 private agencies that work together to ensure community-wide emergency preparedness,

10 including by:

l1

i)

distributing emergency planning materials to schools, community groups,

t2 and faith-based organizations;

l3

ii) stocking emergency supply points for the community;

t4

iii) obtaining specialized earthquake response training; and

15

irr) providing supplies and support to volunteer Community Emergency

t6 Response Teams, who are often the first line in assisting with disaster response before

T7 professional first responders are available.

18

15. Because EMPG funding is crucial to OES's efforts to train local govemment

t9 employees throughout the County in how best to respond to disasters, loss of that funding would

20 significantly jeopardize community preparedness and resiliency throughout the County. Without

2t EMPG funding, the County could not engage in collaborative and coordinated community-wide

22 response efforts.

23

16. In addition, if it were to lose EMPG funds, the County would not be reimbursed

24 for the salary and benefit costs of one existing OES staff position. This staff position is a liaison

25 to the Santa Clara County Emergency Operational Area Council, which is a regional body

26 consisting of elected and appointed officials from jurisdictions throughout the Op Area that exists

27 to ensure unity of purpose in emergency planning and preparedness efforts; make

28
1146969

J
DECLARATION OF DANA REED, DIRECTOR OF EMERGENCY MANAGEMENT FOR THE COUNTY OF SANTA CLARA Case No. l7-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 32 Filed 02/23/17 Page 5 of 5

I recoÍtmendations regarding disaster response policies and procedures; and foster an effective

2 flow of disaster information throughout the Op Area.

J

17. UASI funding, which is sub-awarded to the County by the City and County of San

4 Francisco as part of the Bay Area UASI network, supports the County and other local agencies in

5 building region-wide capacity to prevent, protect against, mitigate, respond to, and recover from

6 terrorist attacks and other catastrophes.

7

18. UASI funding addresses multiple homeland security needs, including

I cybersecurity, communications interoperability, emergency medical needs and public health

9 preparedness, public information and warning needs, and infrastructure protection.

10

19. Without UASI funding, the County would lose funds needed to cover expenditures

11 it has already made to replace a current, obsolete radio system with a modern communications t2 infrastructure that will be used on a daily basis by law enforcement agencies, ltre departments,

13 and emergency medical technicians throughout the County, and that is also needed to allow

t4 communication among emergency responders during critical incidents.

l5

20. Finally, the PDM program supports local government agencies in creating pre-

t6 disaster hazardmitigation programs to reduce public exposure to risk. With PDM funds, the

t7 County is creating a Local Hazard Mitigation Plan that lays out region-wide disaster mitigation

18 priorities, including for water, power, wastewater, communications, and transportation systems.

t9 This process ensures that state and local hazard mitigation planning is coordinated to the greatest

20 extent possible and that local strategies are in place to reduce vulnerabilities.

2t

I declare under penalty of perjury under the laws of the United States of America that the

22 foregoing is true and correct and that this Declaration was executed on February ø1,2017 in

23 Santa Clara County, California.

24

Ø\

25

DANA REED

26

27

28
1146969

4
DECLARATION OF DANA REED, DIRECTOR OF EMERGENCY MANAGEMENT FOR THE COUNTY OF SANTA CLARA Case No. l7-cv-00574-WHO

 
 Case 5:17-cv-00574-WHO Document 33 Filed 02/23/17 Page 1 of 3

1 OFFICE OF THE COUNTY COUNSEL

KEKER & VAN NEST LLP

COUNTY OF SANTA CLARA

JOHN W. KEKER - # 49092

2 JAMES R. WILLIAMS - # 271253

jkeker@kvn.com

County Counsel

ROBERT A. VAN NEST - # 84065

3 james.williams@cco.sccgov.org

rvannest@kvn.com

GRETA S. HANSEN - # 251471

DANIEL PURCELL - # 191424

4 DANIELLE L. GOLDSTEIN - # 257486

dpurcell@kvn.com

KAVITA NARAYAN - # 264191

CODY S. HARRIS - # 255302

5 JAVIER SERRANO - # 252266

charris@kvn.com

JULIA B. SPIEGEL - # 292469

NICHOLAS S. GOLDBERG - # 273614

6 ADRIANA L. BENEDICT - # 306936

ngoldberg@kvn.com

70 West Hedding Street

633 Battery Street

7 East Wing, Ninth Floor

San Francisco, CA 94111-1809

San Jose, CA 95110-1770

Telephone: 415 391 5400

8 Telephone: 408 299-5900

Facsimile: 415 397 7188

Facsimile: 408 292-7240

9

Attorneys For Plaintiff COUNTY OF SANTA CLARA

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 COUNTY OF SANTA CLARA,

Case No. 5:17-cv-00574-WHO

15

Plaintiff,

16

v.

DECLARATION OF SANTA CLARA COUNTY DISTRICT ATTORNEY JEFFREY F. ROSEN

17 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY,
18 in his official capacity as Secretary of the United States Department of Homeland
19 Security, DANA J. BOENTE, in his official capacity as Acting Attorney General of the
20 United States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as
21 Director of the Office of Management and Budget, and DOES 1-50,
22 Defendants.
23

Date: Time: Dept.: Judge:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

Date Filed: February 3, 2017

Trial Date: Not yet set

24

25

26

27

28

1146013

DECLARATION OF SANTA CLARA COUNTY DISTRICT ATTORNEY JEFFREY F. ROSEN Case No. 5:17-cv-00574

Case 5:17-cv-00574-WHO Document 33 Filed 02/23/17 Page 2 of 3

I

I, JEFFREY F. ROSEN, hereby declare as follows:

2

l.

I am the elected District Attomey of Santa Clara County. I make this declaration

3 based on personal knowledge.

4

2. The District Attorney's Office seryes a population of about 1.9 million. The

5 District Attorney's Office has more than 550 employees, including 190 deputy district attorneys,

6 and prosecutes approximately 40,000 cases each year.

7

3. As District Attorney I oversee the prosecution of all state crimes within Santa

8 Clara County. I have worked as a prosecutor for 22 years.

9

4. The mission of the District Attorney's Office is to investigate and prosecute cases

l0 in pursuit ofjustice. This pursuit is improved when people do not fear that their participation in a

ll criminal prosecution will give rise to deportation or other adverse immigration consequences.

t2

5. The District Attorney's Office does not ask about or formally track information on

l3 immigration status in the investigation or prosecution of state crimes.

t4

6. Crimes happen in all communities. The whole communitybenefits when everyone

15 in the community feels safe to report crimes, act as witnesses, and participate in trials.

t6

7. In my experience, immigrants do not live in isolated, crime-ridden neighborhoods,

l7 nor do statistics indicate that they more likely to commit crimes than United States citizens.

l8

8. Fear of deportation has ripple effects on entire communities and families. This is

t9 because families and communities are often made up of monbers with various immigration

20 statuses, and families and communities may fear reporting crimes or serving as witnesses due to

2t fear that an undocumented member may be deported.

22

9. As one example, fear of deportation often arises in the context of domestic

23 violence cases, where abusers may use deportation as a threat to keep victims from reporting

24 abuse to law enforcement, or where victims may not want to report abuse out of fear that the

25 abuser (who is a co-parent and/or wage-earner) will be deported.

26

10. Undocumented individuals can report and help with the prosecution of crimes

27 committed by those with lawful status.

28

I 146013

DECLARATION OF SANTA CLARA COTINTY DISTRICT ATTORNEY JEFFREY F. ROSEN Case No. 5:17-cv-00574

Case 5:17-cv-00574-WHO Document 33 Filed 02/23/17 Page 3 of 3

1

1. 1

We cannot know the exact number of crimes that are not reported to authorities

2 because undocumented individuals or their family or community mønbers fear deportation, but

J we know anecdotally that this occurs. Moreover, we experience instances where our criminal

4 prosecutions fall apart due to lack of witness cooperation either because others who witnessed the

5 crime are hesitant to come forward, or because initial witnesses are afraid to come to Court.

6

12. Fear of deportation by victims, witnesses, and families and friends of

7 undocumented victims and witnesses has a toxic effect on our ability to detect and prosecute

8 crime, thereby making the entire community less safe.

9

l0

I declare under penalty of perjury that the foregoing is true and correct and that this

11 Declaration was executed on February /f,2017 in Santa ClaraCountS Califomia.

t2

0'/¿* * Á-,*

13

JEFFREY É. nOSnN

l4

15
t6

17
l8 l9
20
2l
22

23 24

25 26 27

28

l 146013

2
DECLARATION OF SANTA CLARA COUNTY DISTRICT ATTORNEY JEFFREY F. ROSEN Case No. 5:17-cv-00574

 
 Case 5:17-cv-00574-WHO Document 34 Filed 02/23/17 Page 1 of 5

1 OFFICE OF THE COUNTY COUNSEL

KEKER & VAN NEST LLP

COUNTY OF SANTA CLARA

JOHN W. KEKER - # 49092

2 JAMES R. WILLIAMS - # 271253

jkeker@kvn.com

County Counsel

ROBERT A. VAN NEST - # 84065

3 james.williams@cco.sccgov.org

rvannest@kvn.com

GRETA S. HANSEN - # 251471

DANIEL PURCELL - # 191424

4 DANIELLE L. GOLDSTEIN - # 257486

dpurcell@kvn.com

KAVITA NARAYAN - # 264191

CODY S. HARRIS - # 255302

5 JAVIER SERRANO - # 252266

charris@kvn.com

JULIA B. SPIEGEL - # 292469

NICHOLAS S. GOLDBERG - # 273614

6 ADRIANA L. BENEDICT - # 306936

ngoldberg@kvn.com

70 West Hedding Street

633 Battery Street

7 East Wing, Ninth Floor

San Francisco, CA 94111-1809

San Jose, CA 95110-1770

Telephone: 415 391 5400

8 Telephone: 408 299-5900

Facsimile: 415 397 7188

Facsimile: 408 292-7240

9

Attorneys for Plaintiff COUNTY OF SANTA CLARA

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

15

Plaintiff,

16

v.

DECLARATION OF SANTA CLARA COUNTY EXECUTIVE JEFFREY V. SMITH

17 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY,
18 in his official capacity as Secretary of the United States Department of Homeland
19 Security, DANA J. BOENTE, in his official capacity as Acting Attorney General of the
20 United States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as
21 Director of the Office of Management and Budget, and DOES 1-50,
22 Defendants.
23

Date: Time: Dept.: Judge:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

Date Filed: February 3, 2017

Trial Date: Not yet set

24

25

26

27

28

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DECLARATION OF SANTA CLARA COUNTY EXECUTIVE JEFFREY V. SMITH Case No. 5:17-cv-00574

Case 5:17-cv-00574-WHO Document 34 Filed 02/23/17 Page 2 of 5

1

I, JEFFREY V. SMITH, M.D., J.D., hereby declare as follows:

2

1. I am the County Executive of the County of Santa Clara(the "County"). I have

aJ personal knowledge of all facts stated in this declaration, and if called to testifu, I could and

4 would testifr competently thereto.

5

2. The County Executive is the chief administrative officer of the County, and is

6 responsible for the proper administration the County's operations. Pursuant to the County's

7 Charter, the County Executive is responsible for supervising and directing the preparation of the 8 annual recommended budget, which is submitted to the Board of Supervisors for final approval.

9 The annual budget is the major annual policy document for the County. The budget determines

10 priorities for the County and allocates projected resources and funding in order to implement

11 those priorities. Once the budget is approved by the Board of Supervisors, it is the responsibility

t2 of the County Executive to assure that those policies are implemented with the allocated

t3 resources.

I4

3.

In my role as County Executive, I perform these functions. I have been the County

15 Executive since September 2009 and have completed, and overseen implementation of, seven

T6 budgets for the County.

t7

4. I am familiar with Executive Order I3768 of January 25,2017, entitled

l8 "Enhancing Public Safety in the Interior of the United States" (the "Order"). The Order threatens

I9 to withdraw federal funding from the County.

20

5. The County provides many community services that hold together the fabric of

2l society in the region. For example, the County provides:

22

o Hospital and outpatient medical and psychiatric services for both the vulnerable

23

members of our community and all those in need (including a Level 1 trauma

24

center, the only inpatient rehabilitation unit in the region, a unique burn unit for

25

the region, and a critical neonatal intensive care unit);

26

o Child protective services;

27

o Foster care services;

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o Adult protective services;

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DECLARATION OF SANTA CLARA COUNTY EXECUTIVE JEFFREY V. SMITH Case No. 5:17-cv-00574

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1

o Food for the elderly;

2

o In home supportive services that provide the ability for individuals with disabilities

J

to stay home;

4

o Ongoing mental health services;

5

o Ongoing substance abuse services;

6

o General social assistance for individuals in poverty, including the program

7

previously known as "food stamps";

8

o Criminal justice services including custody, patrol, probation, public defense,

9

prosecution, and community services;

10

. Regional emergency response services and communication;

11

o Public health services, including disease control and pandemic response; and,

t2

o General govemment services such as property assessment, tax collection, clerk-

13

recorder, finance and investment for regional governmental agencies.

I4

6. In order to provide these services, the County receives resources from local taxes,

15 the State of California, andthe federal government. Although the County's budgeted

t6 expenditures for the current fiscal year are approximately $6 billion, for the fiscal year that ended

I7 on June 30,20l6,total County audited actual revenues were approximately $4.8 billion. Of this

18 amount, approximately $1.7 billion was either direct federal funding or funding that is contingent

T9 on the receipt of federal funds. Thus, withdrawal of all federal funding from the County would

20 eliminate approximately 35o/o of the County's annual revenues. Such an action would decimate

2t the County budget and cause immediate and devastating injury to the 1.9 million residents who

22 rely on the essential services that the County provides.

23

7. Most of the services that are provided by the County with federal funding are

24 "entitlement" programs that are mandated by either the federal or state government, and many of

25 the services are interrelated with other state and federal programs either because beneficiaries

26 receive services from multiple programs, or because one service facilitates or enables the County

27 to provide another service. Thus, the loss of so much revenue would have a severe cascading

28 effect upon services; the County would be unable to provide both "entitlement" services and other

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DECLARATION OF SANTA CLARA COUNTY EXECUTIVE JEFFREY V. SMITH Case No. 5:17-cv-00574

Case 5:17-cv-00574-WHO Document 34 Filed 02/23/17 Page 4 of 5

1 critical community services. Both federal programs and other programs would be lost or

2 paralyzed.

J

8.

Worse yet, without preliminary relief and clarification regarding the legality and

4 effect of the Order, the County will likely have to wait years before a final decision is issued in

5 this case. In the interim, the County will be in an untenable financial situation, and decisions that

6 must be made while awaiting a final decision could cause the County to go into a financial crisis.

7

9. Without early resolution, I believe the County will be forced to take one of two

8 very risky courses: The County could continue to provide services to its residents without any

9 assurance that it will be reimbursed by the federal government for those services, or it can

10 discontinue essential and mandatory services to its residents. Either course would result in

11 devastating consequences for the County and substantial, irreparable harm to its residents.

I2

10. Indeed, any action by the County to reduce programs supported by federal funds to

13 a level sustainable in the absence of federal funding would be so dramatic that it would quickly

I4 put the community in a crisis. Such a dramatic reduction of services provided by the County

15 would also require a significant reduction of County staff and contracted community based

t6 organizations currently providing those services, and thousands of individuals could lose their

t7 jobs.

18

1 l.

The potential impact of the cumulative loss of federal revenue is of such

t9 magnitude that the County would not be able to absorb it even if the County took drastic actions

20 such as closing the health and hospital system, eliminating mandated social service programs,

2l closing the County jails, curtailing sheriff patrol services to dangerous levels, eliminating

22 emergency response services, decimating public health, mental health, and substance abuse

23 services, and reducing all general government services to below minimums. The ongoing loss of

24 all federal revenue could cause the County to go into bankruptcy.

25

12. Attempting to comply with the Order is not viable for several reasons. First, it is

26 uncertain what actions the County must take to comply. Second, it would abrogate and

27 undermine the County's policy objectives as determined by our local policymakers. And I

28 understand that the County risks violating the constitutional rights of its residents if it honors

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DECLARATION OF SANTA CLARA COUNTY EXECUTIVE JEFFREY V. SMITH Case No. 5:17-cv-00574

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1 federal immigration civil detainers, to say nothing of the significant County resources that would

2 have to be devoted to such an effort.

J

I declare under penalty of perjury under the laws of the United States of America that the

4 foregoing is true and correct and that this Declaration was executed on February Z\2017 in

5 Santa Clara County, California.

6

7

8

9

10

11
l2

13
t4 l5

T6
I7 l8

T9

20
2l

22

23

24

25

26

27

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1146637

4
DECLARATION OF SANTA CLARA COLTNTY EXECUTIVE JEFFREY V. SMITH Case No. 5:17-cv-00574

 
 Case 5:17-cv-00574-WHO Document 35 Filed 02/23/17 Page 1 of 4

1 OFFICE OF THE COUNTY COUNSEL

KEKER & VAN NEST LLP

COUNTY OF SANTA CLARA

JOHN W. KEKER - # 49092

2 JAMES R. WILLIAMS - # 271253

jkeker@kvn.com

County Counsel

ROBERT A. VAN NEST - # 84065

3 james.williams@cco.sccgov.org

rvannest@kvn.com

GRETA S. HANSEN - # 251471

DANIEL PURCELL - # 191424

4 DANIELLE L. GOLDSTEIN - # 257486

dpurcell@kvn.com

KAVITA NARAYAN - # 264191

CODY S. HARRIS - # 255302

5 JAVIER SERRANO - # 252266

charris@kvn.com

JULIA B. SPIEGEL - # 292469

NICHOLAS S. GOLDBERG - # 273614

6 ADRIANA L. BENEDICT - # 306936

ngoldberg@kvn.com

70 West Hedding Street

633 Battery Street

7 East Wing, Ninth Floor

San Francisco, CA 94111-1809

San Jose, CA 95110-1770

Telephone: 415 391 5400

8 Telephone: 408 299-5900

Facsimile: 415 397 7188

Facsimile: 408 292-7240

9

Attorneys For Plaintiff COUNTY OF SANTA CLARA

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

15

Plaintiff,

16

v.

17 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY,
18 in his official capacity as Secretary of the United States Department of Homeland
19 Security, JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the
20 United States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as
21 Director of the Office of Management and Budget, and DOES 1-50,
22
Defendants. 23

DECLARATION OF LAURIE SMITH, SHERIFF OF SANTA CLARA COUNTY

Date: Time: Dept.: Judge:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

Date Filed: February 3, 2017

Trial Date: Not yet set

24

25

26

27

28

1146966

DECLARATION OF LAURIE SMITH Case No. 17-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 35 Filed 02/23/17 Page 2 of 4

1

I, LAURIE SMITH, hereby declare:

2

1. I am a resident of the State of California. I have personal knowledge of the facts

J set forth in this declaration. If called as a witness, I could and would testify competently to the

4 matters set forth herein.

5

2. I am the elected Sheriff of Santa Clara County (the "County"). I have worked in

6 the Sheriff s Offrce for over 43 years, and have served as Sheriff since 1998.

7

3. The Sheriff s Office serves the entire Santa Clara County area, enforcing criminal

8 laws in the unincorporated area of the County, which spans approximately 600 square miles;

9 serving as the municipal police department in three cities within the County; and offering
l0 contractual law enforcement services to Stanford University, the Santa CIara County Superior

11 Court, the Santa Clara Valley Transportation Authority, and other local agencies. The Sherifls t2 Office has more than 1,700 employees, including 1,300 sworn peace officers. It investigates

13 thousands of suspected crimes each year and operates specialized units and teams, including the t4 Search and Rescue Team, the Hostage Negotiation Team, the Narcotics Task Force, and the

15 Bomb Squad.

I6

4. The core function of the Sheriffls Office is to maintain peace in the County,

t7 prevent and respond to unlawful disturbances, make arrests as needed, protect victims, and

18 investigate criminal offenses. Community trust is the foundation of my office's public safety I9 work. If my office were forced to comply with all ICE civil detainers or other requests to

20 participate in immigration enforcement, the result would be a serious erosion of that trust.

2l

5. In 2010, I participated in a County Task Force that reviewed the County's history

22 of complying with ICE detainers and the impact of that compliance on public safety. After this

23 review, and at the Task Force's recommendation, the County Board of Supervisors (the "Board")

24 adopted a Civil Detainer Policy stating that the County would only honor ICE detainer requests

25 for individuals with serious or violent felony convictions, if ICE agreed to reimburse the County

26 for the costs of detention. This remains the County's policy today, and ICE has never agreed to

27 reimburse the County.

28

1146966

DECLARATION OF LAUzuE SMITH Case No. l7-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 35 Filed 02/23/17 Page 3 of 4

1

6. The Board also adopted a resolution in 2010 that set out County policy restricting

2 County employees from questioning, investigating, or arresting members of the public solely

J because of their immigration status or an actual or suspected violation of immigration law. Based

4 on my experience and my opinion about the law-enforcement needs and priorities of the

5 community I serve, I agreed with this resolution, which aligned with my office's longstanding

6 practices, and which assist my office in investigating suspected criminal offenses.

7

7. My office relies on County residents - without regard to immigration status - on a

8 daily basis to report crimes and disturbances, serve as witnesses, and assist in investigations. For

9 example, community members reached out to witnesses important to our investigation of a high-

10 profile murder of a teenage girl who disappeared on her way to school in2012, Farmworkers in

1l the neighborhood where she lived actively provided information to the Sheriffls Office in this

t2 important case. Had they feared that my offrce would question their immigration status, or the

13 status of their loved ones, it is very unlikely they would have come forward.

t4

8. The Sheriff s Offrce Notario Fraud Unit ("NFU") is another good example of the

15 critical role that trust and relationships with the community play in fulfilling our public safety

r6 mandate. The Sherifls Offrce formed the NFU to address the problem of "notarios," who

t7 represent themselves as legal professionals to vulnerable clients needing immigration legal

18 services, but who have no legal qualifications and often take clients' money without providing

T9 any services of value. The Sheriff s Office has worked diligently to build relationships and trust

20 with immigrant communities in the County to help conduct successful notario investigations. In

2t many cases, the NFU has relied on complaints from victims who we believe would not have been

22 as forthcoming if they feared investigation of their immigration status. These victims have

ZJ provided critical information about alleged abuses, allowing the NFU to obtain search warrants.

24 In one case, a victim contacted the NFU to report a suspected notario for fraudulent services. V/e

25 obtained a search warrant, seized approximately 1,000 client files, and, due to our public outreach

26 on the case, received over 40 phone calls from immigrant victims willing to serve as witnesses.

27 The District Attorney's Office then filed four felony charges and one misdemeanor charge against

28

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DECLARATION OF LAURIE SMITH Case No. I 7-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 35 Filed 02/23/17 Page 4 of 4

if 1 the suspect. The Sheriff s Office would not receive this kind of assistance from the community

2 it were viewed as an extension of ICE.

J

9. Bluning the lines between local law enforcement and ICE would have a

4 particularly grave impact on some of our community's most vulnerable victims. Many victims of

5 human trafficking, sex trafficking, domestic violence, and sexual assaults - as well as witnesses

6 to these crimes - would be unlikely to seek help from law enforcement if they were afraid that

7 law enforcement officers would question them about their or their loved ones' immigration status.

I
9

{;/ /7 I declare under penalty of perjury under the laws of the State of Califomia that the
foregoing is true and correct and that this declaration was executed on

10 2017 in San Jose, Califomia.

11

12

t3

SMITH

t4

15
t6

I7

18

t9

20
2t

22

23

24

25

26

27

28

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DECLARATION OF LAURIE SMITH Case No. I 7-cv-00574-WHO

 
 Case 5:17-cv-00574-WHO Document 36 Filed 02/23/17 Page 1 of 3

1 OFFICE OF THE COUNTY COUNSEL

KEKER & VAN NEST LLP

COUNTY OF SANTA CLARA

JOHN W. KEKER - # 49092

2 JAMES R. WILLIAMS - # 271253

jkeker@kvn.com

County Counsel

ROBERT A. VAN NEST - # 84065

3 james.williams@cco.sccgov.org

rvannest@kvn.com

GRETA S. HANSEN - # 251471

DANIEL PURCELL - # 191424

4 DANIELLE L. GOLDSTEIN - # 257486

dpurcell@kvn.com

KAVITA NARAYAN - # 264191

CODY S. HARRIS - # 255302

5 JAVIER SERRANO - # 252266

charris@kvn.com

JULIA B. SPIEGEL - # 292469

NICHOLAS S. GOLDBERG - # 273614

6 ADRIANA L. BENEDICT - # 306936

ngoldberg@kvn.com

70 West Hedding Street

633 Battery Street

7 East Wing, Ninth Floor

San Francisco, CA 94111-1809

San Jose, CA 95110-1770

Telephone: 415 391 5400

8 Telephone: 408 299-5900

Facsimile: 415 397 7188

Facsimile: 408 292-7240

9

Attorneys For Plaintiff COUNTY OF SANTA CLARA

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

15

Plaintiff,

16

v.

17 DONALD J. TRUMP, President of the United States of America, JOHN F. KELLY,
18 in his official capacity as Secretary of the United States Department of Homeland
19 Security, JEFFERSON B. SESSIONS, in his official capacity as Attorney General of the
20 United States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as
21 Director of the Office of Management and Budget, and DOES 1-50,
22
Defendants. 23

DECLARATION OF CODY S. HARRIS IN SUPPORT OF COUNTY OF SANTA CLARA’S MOTION FOR PRELIMINARY INJUNCTION

Date: Time: Dept.: Judge:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William Orrick

Date Filed: February 3, 2017

Trial Date: Not yet set

24

25

26

27

28

1148387

DECLARATION OF CODY S. HARRIS ISO MOTION FOR PRELIMINARY INJUNCTION Case No. 17-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 36 Filed 02/23/17 Page 2 of 3

1

I, Cody S. Harris, declare and state as follows:

2

1. I am an attorney licensed to practice law in the State of California and a partner of

3 the law firm of Keker, Van Nest & Peters LLP, counsel for Plaintiff County of Santa Clara (the

4 “County”) in the above-captioned matter. I submit this Declaration in support of the County’s

5 Motion for Preliminary Injunction. I have personal knowledge of the facts stated herein and, if

6 called as a witness, I could testify to them competently under oath.

7

2. Attached hereto as Exhibit A is a true and correct copy of Executive Order 13768,

8 entitled “Enhancing Public Safety in the Interior of the United States,” issued by President

9 Donald J. Trump on January 25, 2017.

10

3. On February 5, 2017, shortly before the Super Bowl, President Trump appeared on

11 national television in an interview with Fox News personality Bill O’Reilly (the “O’Reilly

12 Interview”). Video of the O’Reilly Interview is available on YouTube at: Fox Sports, Bill

13 O’Reilly Interviews President Donald J. Trump Before Super Bowl LI, YouTube (Feb. 5, 2017), 14 https://www.youtube.com/watch?v=74DAI2hr9Kk (5:09–5:45).1 A transcript of that interview is

15 also available at Fed. News Serv. Tr., President Trump is Interviewed on Fox, 2017 WLNR

16 3753383, at 4 (Feb. 5, 2017), a true and correct copy of which is attached hereto as Exhibit B.

17

4. Attached hereto as Exhibit C is a true and correct copy of a transcript of a press

18 briefing by White House Press Secretary Sean Spicer, dated February 8, 2017, and available on

19 the White House website at: https://www.whitehouse.gov/the-press-office/2017/02/08/press-

20 briefing-press-secretary-sean-spicer-282017-10.

21 / / /

22 / / /

23 / / /

24 / / /

25 26 27 28
1148387

1 Fox News has edited the transcript and video clips appearing on its website to remove the President’s comments regarding sanctuary jurisdictions. See Fox News, Exclusive Interview with President Trump, Part 2, at 0:45, http://video.foxnews.com/v/ 5313200376001/?playlistid =930909812001#sp=show-clips. Fortunately, a full version of the video was available through the Russia Today website, and the undersigned can provide a downloaded copy to the Court if requested. See RT, Trump Ready to Use Defunding ‘Weapon’ Against Immigrant Cities & States (VIDEO), https://www.rt.com/usa/376407-trump-sanctuary-defunding-weapon/.
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DECLARATION OF CODY S. HARRIS ISO MOTION FOR PRELIMINARY INJUNCTION Case No. 17-cv-00574-WHO

Case 5:17-cv-00574-WHO Document 36 Filed 02/23/17 Page 3 of 3

1

5. Attached hereto as Exhibit D is a true and correct copy of United States

2 Department of Homeland Security Pool Notes from Secretary of Homeland Security John Kelly’s

3 Trip to San Diego, dated February 10, 2017, and available on the Department of Homeland

4 Security website at: https://www.dhs.gov/news/2017/02/10/pool-notes-secretary-

5 kelly%E2%80%99s-trip-san-diego.

6

7

I declare under penalty of perjury that the foregoing is true and correct. Executed on

8 February 23, 2017 at San Francisco, California.

9

10

11

CODY S. HARRIS

12

13

14

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17

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Case 5:17-cv-00574-WHO Document 36-1 Filed 02/23/17 Page 1 of 6
EXHIBIT A

Case 5:17-cv-00574-WHO Document 36-1 Filed 02/23/17 Page 2 of 6

Federal Register /Vol. 82, No. 18 / Monday, January 30, 2017 /Presidential Documents
Presidential Documents

8799

Executive Order 13768 of January 25, 2017
Enhancing Public Safety in the Interior of the United States
By the authority vested in me as President by the Constitution and the laws of the United States of America, including the Immigration and Nationality Act (INA) (8 U.S.C. 1101 et seq.), and in order to ensure the public safety of the American people in communities across the United States as well as to ensure that our Nation's immigration laws are faithfully executed, I hereby declare the policy of the executive branch to be, and order, as follows:
Section 1. Purpose. Interior enforcement of our Nation's immigration laws is critically important to the national security and public safety of the United States. Many aliens who illegally enter the United States and those who overstay or otherwise violate the terms of their visas present a significant threat to national security and public safety. This is particularly so for aliens who engage in criminal conduct in the United States.
Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States. These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.
Tens of thousands of removable aliens have been released into communities across the country, solely because their home countries refuse to accept their repatriation. Many of these aliens are criminals who have served time in our Federal, State, and local jails. The presence of such individuals in the United States, and the practices of foreign nations that refuse the repatriation of their nationals, are contrary to the national interest.
Although Federal immigration law provides a framework for Federal-State partnerships in enforcing our immigration laws to ensure the removal of aliens who have no right to be in the United States, the Federal Government has failed to discharge this basic sovereign responsibility. We cannot faithfully execute the immigration laws of the United States if we exempt classes or categories of removable aliens from potential enforcement. The purpose of this order is to direct executive departments and agencies (agencies) to employ all lawful means to enforce the immigration laws of the United States.
Sec. 2. Policy. It is the policy of the executive branch to:
(a) Ensure the faithful execution of the immigration laws of the United States, including the INA, against all removable aliens, consistent with Article II, Section 3 of the United States Constitution and section 3331 of title 5, United States Code;
(b) Make use of all available systems and resources to ensure the efficient and faithful execution of the immigration laws of the United States;
(c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;
(d) Ensure that aliens ordered removed from the United States are promptly removed; and
(e) Support victims, and the families of victims, of crimes committed by removable aliens.
Sec. 3. Definitions. The terms of this order, where applicable, shall have the meaning provided by section 1101 of title 8, United States Code.

Case 5:17-cv-00574-WHO Document 36-1 Filed 02/23/17 Page 3 of 6

8800

Federal Register /Vol. 82, No. 18 / Monday, January 30, 2017 /Presidential Documents
Sec. 4. Enforcement of the Immigration Laws in the Interior of the United States. In furtherance of the policy described in section 2 of this order, I hereby direct agencies to employ all lawful means to ensure the faithful execution of the immigration laws of the United States against all removable aliens.
Sec. 5. Enforcement Priorities. In executing faithfully the immigration laws of the United States, the Secretary of Homeland Security (Secretary) shall prioritize for removal those aliens described by the Congress in sections 212(a)(2), (a)(3), and (a)(6)(C), 235, and 237(a)(2) and (4) of the INA (8 U.S.C. 1182(a)(2), (a)(3), and (a)(6)(C), 1225, and 1227(a)(2) and (4)), as well as removable aliens who:
(a) Have been convicted of any criminal offense;
(b) Have been charged with any criminal offense, where such charge has not been resolved;
(c) Have committed acts that constitute a chargeable criminal offense;
(d) Have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency;
(e) Have abused any program related to receipt of public benefits;
(f) Are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or
(g) In the judgment of an immigration officer, otherwise pose a risk to public safety or national security.
Sec. 6, Civil Fines and Penalties. As soon as practicable, and by no later than one year after the date of this order, the Secretary shall issue guidance and promulgate regulations, where required by law, to ensure the assessment and collection of all fines and penalties that the Secretary is authorized under the law to assess and collect from aliens unlawfully present in the United States and from those who facilitate their presence in the United States.
Sec. 7. Additional Enforcement and Removal Officers. The Secretary, through the Director of U.S. Immigration and Customs Enforcement, shall, to the extent permitted by law and subject to the availability of appropriations, take all appropriate action to hire 10,000 additional immigration officers, who shall complete relevant training and be authorized to perform the law enforcement functions described in section 287 of the INA (8 U.S.C.
1357).
Sec. 8. Federal-State Agreements. It is the policy of the executive branch to empower State and local law enforcement agencies across the country to perform the functions of an immigration officer in the interior of the United States to the maximum extent permitted by law.
(a) In furtherance of this policy, the Secretary shall immediately take appropriate action to engage with the Governors of the States, as well as local officials, for the purpose of preparing to enter into agreements under section 287(g) of the INA (8 U.S.C. 1357(g)).
(b) To the extent permitted by law and with the consent of State or local officials, as appropriate, the Secretary shall take appropriate action, through agreements under section 287(g) of the INA, or otherwise, to authorize State and local law enforcement officials, as the Secretary determines are qualified and appropriate, to perform the functions of immigration officers in relation to the investigation, apprehension, or detention of aliens in the United States under the direction and the supervision of the Secretary. Such authorization shall be in addition to, rather than in place of, Federal performance of these duties.
(c) To the extent permitted by law, the Secretary may structure each agreement under section 287(g) of the INA in a manner that provides the most effective model for enforcing Federal immigration laws for that jurisdiction.

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Federal Register / Vol. 82, No. 18 /Monday, January 30, 2017 /Presidential Documents

8801

Sec. 9. Sanctuaiy Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.
(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.
(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.
Sec. 10. Review of Previous Immigration Actions and Policies. (a) The Secretary shall immediately take all appropriate action to terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the Secretary on November 20, 2014, and to reinstitute the immigration program known as "Secure Communities" referenced in that memorandum.
(b) The Secretary shall review agency regulations, policies, and procedures for consistency with this order and, if required, publish for notice and comment proposed regulations rescinding or revising any regulations inconsistent with this order and shall consider whether to withdraw or modify any inconsistent policies and procedures, as appropriate and consistent with the law.
(c) To protect our communities and better facilitate the identification, detention, and removal of criminal aliens within constitutional and statutory parameters, the Secretary shall consolidate and revise any applicable forms to more effectively communicate with recipient law enforcement agencies.
Sec. 11. Department of Justice Prosecutions of Immigration Violators. The Attorney General and the Secretary shall work together to develop and implement a program that ensures that adequate resources are devoted to the prosecution of criminal immigration offenses in the United States, and to develop cooperative strategies to reduce violent crime and the reach of transnational criminal organizations into the United States.
Sec. 12. Recalcitrant Countries. The Secretary of Homeland Security and the Secretary of State shall cooperate to effectively implement the sanctions provided by section 243(d) of the INA (8 U.S.C. 1253(d)), as appropriate. The Secretary of State shall, to the maximum extent permitted by law, ensure that diplomatic efforts and negotiations with foreign states include as a condition precedent the acceptance by those foreign states of their nationals who are subject to removal from the United States.
Sec. 13. Office for Victims of Crimes Committed by Removable Aliens. The Secretary shall direct the Director of U S Immigration and Customs Enforcement to take all appropriate and lawful action to establish within U.S. Immigration and Customs Enforcement an office to provide proactive, timely, adequate, and professional services to victims of crimes committed by removable aliens and the family members of such victims. This office shall provide quarterly reports studying the effects of the victimization by criminal aliens present in the United States.

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Federal Register /Vol. 82, No. 18 /Monday, January 30, 2017 /Presidential Documents
Sec. 14. Privacy Act. Agencies shall, to the extent consistent with applicable law, ensure that their privacy policies exclude persons who are not United States citizens or lawful permanent residents from the protections of the Privacy Act regarding personally identifiable information.
Sec. 15. Reporting. Except as otherwise provided in this order, the Secretary and the Attorney General shall each submit to the President a report on the progress of the directives contained in this order within 90 days of the date of this order and again within 180 days of the date of this order.
Sec. 16. Transparency. To promote the transparency and situational awareness of criminal aliens in the United States, the Secretary and the Attorney General are hereby directed to collect relevant data and provide quarterly reports on the following:
(a) the immigration status of all aliens incarcerated under the supervision of the Federal Bureau of Prisons;
(b) the immigration status of all aliens incarcerated as Federal pretrial detainees under the supervision of the United States Marshals Service; and
(c) the immigration status of all convicted aliens incarcerated in State prisons and local detention centers throughout the United States.
Sec. 17. Personnel Actions. The Office of Personnel Management shall take appropriate and lawful action to facilitate hiring personnel to implement this order.
Sec. 18. General Provisions. (a) Nothing in this order shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This order shall be implemented consistent with applicable law and subject to the availability of appropriations.

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8803

(c) This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

[FR Doc. 2017-02102 Filed 1-27-17; 11:15 am] Billing code 3295—F7—P

THE WHITE HOUSE, January 25, 2017.

Case 5:17-cv-00574-WHO Document 36-2 Filed 02/23/17 Page 1 of 8
EXHIBIT B

President DonCaaldsTeru5m:1p7is-cInvt-e0rv0ie5w7e4d-WonHFoOx, 2D01o7cWuLmNeRn3t753363-823 Filed 02/23/17 Page 2 of 8

2/5/17 Fed. News Serv. Transcripts (Pg. Unavail. Online) 2017 WLNR 3753383
Federal News Service Transcripts Copyright (c) 2017 Federal News Service
February 5, 2017 President Donald Trump is Interviewed on Fox Subject: Politics Time: 16:00:00 Date: 2017-02-05
BILL O'REILLY, FOX NEWS HOST: So another big week for the Trump administration. Judge Gorsuch, that rollout went very smoothly I think.
DONALD TRUMP, PRESIDENT OF THE UNITED STATES: Yes it did.
O'REILLY: All right. But the refugee deal, not so much.
TRUMP: I think it was very smooth. You had 109 people out of hundreds of thousands of travelers and all we did was vet those people very, very carefully.
O'REILLY: You wouldn't do anything differently if you had to do it over again?
(CROSSTALK)
TRUMP: Look…
O'REILLY: I mean, some of your people didn't really know what the order was?
TRUMP: Well, that's not what General Kelly said. General Kelly, who's now Secretary Kelly, he said he totally knew, he was aware of it, and it was very smooth.
O'REILLY: All right.
TRUMP: It was 109 people.
O'REILLY: Let's talk about Iran. Your assessment; do you think we're on a collision course, we being the United States, with that country?
TRUMP: I think it was the worst deal I've ever seen negotiated. I think it was a deal that should of never been negotiated.
O'REILLY: The nuke deal you're talking about?

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President DonCaaldsTeru5m:1p7is-cInvt-e0rv0ie5w7e4d-WonHFoOx, 2D01o7cWuLmNeRn3t753363-823 Filed 02/23/17 Page 3 of 8
TRUMP: Absolutely. The deal that was made by the Obama administration. I think it's a shame that we've had a deal like that and that we had to sign a deal like that. And there was no reason to do it. And, if you're going to do it, have a good deal.
We gave them $1.7 billion in cash, which is unheard of. And we put the money up and we have really nothing to show for it.
O'REILLY: Possible you tear it up?
TRUMP: We'll see what happens.
(CROSSTALK)
O'REILLY: So it's possible.
TRUMP: I mean, we're going to see what happens. I can say this, they have total disregard for our country. They are the number one terrorist state. They're sending money all over the place -- and weapons. And can't do that.
O'REILLY: Sanctions, that's how you're going to start with them?
TRUMP: Just started .
O'REILLY: But you're moving a carrier right?
TRUMP: I never talk about military moves. I always criticized President Obama where they'd have an announcement that they're going into Mosul or they're going to some place and they give the name, the date, the time, I don't believe in that.
O'REILLY: So you're not real bullish on Iran at this point?
TRUMP: No, I'm not bullish. I think they have total disrespect for our country. I understand, that deal -- I would of lived with it if they said, OK, we're all together now.
But it was just the opposite. It's like they're emboldened where they follow our planes, they circle our ships with their little boats, and they lost respect because they can't believe anybody could be so stupid as to make a deal like that.
O'REILLY: You talked to Putin last week, you had a busy week last week.
TRUMP: A pretty busy week, yes, busy week-and-a-half.
O'REILLY: Do you respect Putin?
TRUMP: I do respect him but…
O'REILLY: Do you? Why?
TRUMP: Well, I respect a lot of people but that doesn't mean I'm going to get along with them. He's a leader of his country. I say it's better to get along with Russia than not. And if Russia helps us in the fight against ISIS, which is a major fight, and Islamic terrorism all over the world…

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President DonCaaldsTeru5m:1p7is-cInvt-e0rv0ie5w7e4d-WonHFoOx, 2D01o7cWuLmNeRn3t753363-823 Filed 02/23/17 Page 4 of 8
O'REILLY: Right.
TRUMP: Major fight, that's a good thing. Will I get along with him? I have no idea.
O'REILLY: But he's a killer though. Putin's a killer.
TRUMP: There are a lot of killers. We've got a lot of killers. What, you think our country's so innocent? You think our country's so innocent?
O'REILLY: I don't know of any government leaders that are killers.
TRUMP: Well, take a look at what we've done too. We've made a lot of mistakes. I've been against the war in Iraq from the beginning.
O'REILLY: Yes. Mistakes are different than…
TRUMP: A lot of mistakes, OK, but a lot of people were killed. So a lot of killers around, believe me.
O'REILLY: All right. Let's talk about Mexico. There was a report you talked to President Nieto and you told him -this was the report, I want to know if it's true or not, that if his army couldn't handle the drug cartels that U.S. Army soldiers would, did you say that?
TRUMP: We have to do something about the cartels. I did talk to him about it. I want to help him with it. I think he's a very good man. We have a very good relationship, as you probably know. He seemed very willing to get help from us because he has got a problem.
O'REILLY: Got a problem.
TRUMP: And it's a real problem for us. Don't forget those cartels are operating in our country and they're poisoning the youth of our country.
O'REILLY: At this point do you consider Mexico a corrupt country? Because this stuff has been going on for decades.
TRUMP: I love the people. I really like this administration. I think he's a good man. We get along very well. But they have problems controlling aspects of their country, there's no question about it.
And I would say the drugs and the drug cartels, number one.
O'REILLY: Have you figured out what kind of a tariff you're going to levy on Mexico to pay for the wall?
TRUMP: Well, right now it's very unfavorable. Right now we're losing our jobs to Mexico. You look at the plants, you look at these massive plants.
And I have to tell you I've turned it around, already I've turned it around, you see that. Ford has been phenomenal. They canceled the plan. They're building tremendous...
O'REILLY: Yes, you intimidated them. They're afraid of you.

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President DonCaaldsTeru5m:1p7is-cInvt-e0rv0ie5w7e4d-WonHFoOx, 2D01o7cWuLmNeRn3t753363-823 Filed 02/23/17 Page 5 of 8
TRUMP: No, General Motors has got Mary Barra...
O'REILLY: Oh come on, they're afraid of you. You know these companies.
TRUMP: I don't know if they're afraid -- no, no, they want to do what's right.
O'REILLY: They want to do what's right?
TRUMP: They're going to bring jobs back...
O'REILLY: Why didn't they do what was right in the past? They're afraid of you.
TRUMP: Because the wrong people spoke to them. But they're going to do what's right and they're bringing jobs back to Michigan and Ohio...
O'REILLY: All right.
TRUMP: ... and Pennsylvania and all the places that have lost the jobs. So that's already happening. I think you're going to see a tremendous job growth in this country.
O'REILLY: Let's turn domestic policy. I just spent the week in California. As you know, they are now voting on whether they should become a sanctuary state.
So California and the USA are on a collision course. How do you see it?
TRUMP: Well, I think it's ridiculous. Sanctuary cities, as you know, I'm very much opposed to sanctuary cities. They breed crime. There's a lot of problems. If we have to we'll defund, we give tremendous amounts of money to California...
O'REILLY: So you're going to defund...
TRUMP: California in many ways is out of control, as you know. Obviously the voters agree, otherwise they wouldn't have voted for me.
O'REILLY: So defunding is your weapon of choice...
TRUMP: Well, it's a weapon, I don't want to defund the state or a city.
O'REILLY: But you're willing to do it.
TRUMP: I don't want to defund anybody. I want to give them the money they need to properly operate as a city or a state. If they're going to have sanctuary cities, we may have to do that. Certainly that would be a weapon.
O'REILLY: Is there any validity to the criticism of you that you say things you can't back up factually, and as the president, if you say, for example, that there are 3 million illegal aliens who voted, and then you don't have the data to back it up, some people are going to say, that's irresponsible for a president to say that, is there any validity to it?
TRUMP: Well, many people have come out and said I am right, you know that. O'REILLY: I know, but you have got to have data to back that up.

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President DonCaaldsTeru5m:1p7is-cInvt-e0rv0ie5w7e4d-WonHFoOx, 2D01o7cWuLmNeRn3t753363-823 Filed 02/23/17 Page 6 of 8
TRUMP: Let me just tell you -- let me just tell you, and it doesn't have to do with the vote, although the end result. It has to due with the registration. And when you look at the registration and you see dead people that have voted, when you see people that are registered in two states, that have voted in two states, when you see other things, when you see illegals, people that are not citizens and they are on the registration roles.
Look, Bill, we can be babies, but you take a look at the registration, you have illegals, you have dead people, you have this, it's really a bad situation, it's really bad. And... O'REILLY: So you think you're going to be proven correct in that statement?
TRUMP: Well, I think I already have, a lot of people have come out and said that I am correct.
O'REILLY: Yes, but the data has to show that 3 million illegals voted.
TRUMP: Look, forget that, forget all of that, just take a look at the registration and we're going to do it. And I'm going to set up a commission to be headed by Vice President Mike Pence, and we're going to look at it very, very carefully.
O'REILLY: Well, that's good. Let's get to the bottom of it.
2017, can Americans expect a tax cut?
TRUMP: I think so, yes. And I think that before the end of the year I would like to say yes.
O'REILLY: OK, can Americans in 2017 expect a new health care plan rolled out by the Trump administration this year?
TRUMP: Yes, in the process and maybe it'll take till sometime into next year but we're certainly going to be in the process. Very complicated, Obamacare is a disaster. You have to remember, Obamacare doesn't work.
So we are putting in a wonderful plan. It's -- statutorily it takes a while to get. We're going to be putting it in fairly soon. I think that, yes, I would like to say by the end of the year, at least the rudiments, but we should have something within the year and the following year.
O'REILLY: All right. Last question, you get four hours of sleep or some crazy thing like that. When your head hits the pillow, do you ever say to yourself, I can't believe I'm here, I cannot believe that I am the president of the United States when I wasn't a politician, I didn't start out this way, that wasn't my life goal, does that ever come into your mind? TRUMP: Well, I must tell you, the other day I walked into the main entrance of the White House and I said to myself, this is sort of amazing, or you walk into Air Force One. It's like a surreal experience in a certain way, but you have to get over it, because there's so much work to be done, whether it's jobs or other nations that truly hate us, you have to get over it.
O'REILLY: Football, how do you see this game?
TRUMP: Well, I like Bob Kraft, I like Coach Belichick, and Tom Brady's my friend.
O'REILLY: They're all taking gas because of that, you know they're...
TRUMP: I know they're taking a lot of heat.
(CROSSTALK)
O'REILLY: Right.

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President DonCaaldsTeru5m:1p7is-cInvt-e0rv0ie5w7e4d-WonHFoOx, 2D01o7cWuLmNeRn3t753363-823 Filed 02/23/17 Page 7 of 8

TRUMP: But you know what, they're also getting a lot popularity out of it. I think they're going to do very well. Tom's a winner. He's going to win. O'REILLY: So you're rooting for the Patriots. TRUMP: The coach is a great coach. I think the other team is fantastic though. No, I think it's a fantastic team, turned out to be a good quarterback. But, you know, there's less pressure on the Patriots because they've been there. You know, once you've won, once you've done it, and they've done it, once you've done it there's a lot less pressure. So we'll see what happens. But, you know, you have to stick up for your friends, right? O'REILLY: Sure, now FOX Sports is demanding I ask you to make a prediction. TRUMP: Well, I hate to make predictions. O'REILLY: But you have to. TRUMP: I hate to do it. But I'll say... (CROSSTALK) O'REILLY: ... leave and let you do it. TRUMP: I'll say I don't even know what are the odds; I guess it's pretty even, right, two great teams. O'REILLY: Yes, but you've got to. TRUMP: Pretty even. So I'll say the Patriots will win. O'REILLY: By how many points? TRUMP: By 8 points. O'REILLY: All right. So that's a good presidential prediction and we'll see. (CROSSTALK) TRUMP: ... doing those things, but that's OK. O'REILLY: You don't need data on that? TRUMP: I need no data. O'REILLY: OK. Mr. President, thanks very much for taking the time. TRUMP: Thank you so much. END

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President DonCaaldsTeru5m:1p7is-cInvt-e0rv0ie5w7e4d-WonHFoOx, 2D01o7cWuLmNeRn3t753363-823 Filed 02/23/17 Page 8 of 8

(C) COPYRIGHT 2017, CQ TRANSCRIPTIONS, CQ ROLL CALL INC., 77 K STREET NE; WASHINGTON, DC - 20002-4681, USA. ALL RIGHTS RESERVED. ALL MATERIALS HEREIN ARE PROTECTED BY UNITED STATES COPYRIGHT LAW AND MAY NOT BE REPRODUCED, DISTRIBUTED, TRANSMITTED, DISPLAYED,PUBLISHED OR BROADCAST WITHOUT PRIOR WRITTEN PERMISSION OF CQ ROLL CALL. YOU MAY NOT ALTER OR REMOVE ANY TRADEMARK, COPYRIGHT OR OTHER NOTICE FROM COPIES OF THE CONTENT. FOR INFORMATION ON SUBSCRIBING TO FNS, PLEASE CALL 202-650-6599 OR EMAIL SALES@CQROLLCALL.COM. THIS IS A RUSH TRANSCRIPT. -------------------------

---- Index References ----
Company: CQ ROLL CALL INC; FORD MOTOR CO; GENERAL MOTORS CO
News Subject: (Emerging Market Countries (1EM65); Government (1GO80); Legislation (1LE97); U.S. Legislation (1US12))
Industry: (Celebrities (1CE65); Entertainment (1EN08); Healthcare (1HE06); Healthcare Regulatory (1HE04); TV (1TV19); TV Programming (1TV26); U.S. National Healthcare Reform (1US09))
Region: (Americas (1AM92); Asia (1AS61); California (1CA98); District of Columbia (1DI60); Gulf States (1GU47); Latin America (1LA15); Mexico (1ME48); Middle East (1MI23); North America (1NO39); U.S. Mid-Atlantic Region (1MI18); U.S. West Region (1WE46); USA (1US73))
Language: EN
Other Indexing: (Putin) (DONALD TRUMP; Gorsuch; Barack Obama; Vladimir Putin; Mike Pence; Bob Kraft; Nieto; Mary T. Barra; Mary Barra; Kelly; Tom Brady; Belichick)
Keywords: Newsmakers
Word Count: 2271

End of Document

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EXHIBIT C

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the WHITE HOUSE



From the Press Oꊞice
Speeches & Remarks Press Briefings Statements & Releases Presidential Actions Legislation Nominations & Appointments Disclosures

The White House Oꊞice of the Press Secretary
For Immediate Release

February 08, 2017

Press Brie灇ng by Press Secretary Sean Spicer, 2/8/2017, #10

James S. Brady Press Briefing Room

1:48 P.M. EST

MR. SPICER: Good a皑ernoon, everyone. Just a few minutes ago, as many of you had seen, we had another example of the real-world results that the Trump administration is getting in its pro-jobs agenda. Intel CEO Brian Krzanich announced that his company is opening a high-tech manufacturing facility in Arizona that will create roughly 10,000 jobs between the factory itself and its supply chain, which is the latest wave in economic optimism that's sweeping the country following the President's victory.

In his inaugural address, the President laid out an ambitious vision to create 25 million jobs over the next decade. From the beginning of his campaign, bringing jobs back to our

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struggling community has been one of the parts of the President's message that most

resonated with the American people. Having hired tens of thousands of people himself, the

President is keenly aware of what prevents businesses from being successful and creating

jobs in the current economy.

President Obama, by contrast, visited the same factory site where this factory will be built during his last reelection visit in 2012, touting the government incentives that were supposed to bring back jobs that had been lost to Asia. President Trump knows that for business, the real government incentive is the government restraining itself. For too many years, Washington has smothered industry in this country and under burdensome regulation. This administration will set out to free businesses from constraints of government bureaucracy and regulation.

Under the President's "Buy American, Hire American" agenda, the government is going to get out of the way of businesses to allow them to thrive. Just last week, the President signed what we've been calling the "one in, two out" executive order requiring that every new federal regulation that's adopted, two be eliminated. This new rule will provide muchneeded relief for businesses who have been regulated and saddled with an absolutely staggering amount of additional red tape, as much as $1.9 trillion per year by some estimates.

In 2014, the National Association of Manufacturers calculated that companies in every industry paid an average of $9,991 per employee to comply with federal regulations. And it's only gotten worse since that study was conducted. By relieving even a small portion of this burden, we will allow businesses to grow and hire more people. Projects that have been stalled or scuttled are being revived in anticipation of the President's pro-growth policies. Last quarter, confidence among CEOs of U.S.-based companies jumped by 4.2 percent points in the YPO Global Pulse Survey, one of the single-largest quarter gains in history. This is only the beginning of the President's agenda.

Moving on to recap the President's a皑ernoon and evening yesterday, as you saw, we oꊞicially announced the 24 people who will be serving in the President's -- in his Cabinet, on the White House website yesterday. The President looks forward to having all these distinguished qualified men and women in place as heads of departments and agencies so that our government can start fully working for the American people and enacting the agenda that he brought forward during the last campaign.

The President spoke with two foreign leaders yesterday. During his call with President Rajoy of Spain, the two leaders discussed our shared priorities, including eꊞorts to eliminate ISIS. The President additionally reiterated the United States' commitment to the North Atlantic Treaty Organization, and emphasized the importance of NATO allies and sharing the burden of defense spending. President Trump also spoke with President Erdogan of Turkey, during

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which he conveyed U.S. support to Turkey as a strategic partner and NATO ally, and

welcomed Turkey's contributions to the fight against ISIS.

Last night, the President had an incredibly meaningful visit with current oꊞicers who enrolled in the Green Beret's Qualifications Course. These young men and women will be at the tip of the spear serving our country in some of the world's most dangerous places as intelligence oꊞicers. The President told these brave young soldiers how proud he was of their commitment, to risk everything to keep us safe, and how humbled he was to serve as their Commander-in-Chief, and that they could always count on him to have their back.

Also, yesterday, the Department of Justice presented its arguments before the 9th Circuit Court in the case concerning the temporary restraining order on the President's national security executive order. Again, as I did yesterday, I want to emphasize that the issue before the 9th Circuit right now is extremely narrow. The question is simply whether or not the President's executive order, which we maintain is fully lawful under the Constitution and U.S. code, should remain in eꊞect while the courts actually consider it on its merits. We expect the court to issue a decision on this matter soon, and we will have a statement once that's done.

Today, the President spoke before the Major Cities police chiefs and the Major County Sheriꊞs Winter Conference. In his remarks, the President reiterated his commitment to a great national partnership between his administration and law enforcement. While there are many things that the federal government can do to improve safety in our communities, it truly rests with the police oꊞicers, sheriꊞs and deputies who risk their lives every day on our streets. And their mission is critical to the future of this country. These brave men and women have a true friend in the White House. And as the President said many times, we must protect those who protect us. He will continue to do that throughout his administration.

Later this a皑ernoon, the President will participate in a standing legislative strategy meeting of his team here. The team has been working around the clock to engage lawmakers and get the President's agenda moving through Congress.

Yesterday, the Vice President attended the Republican Policy lunch where he discussed how the administration will work with the Senate to deliver results for the American people.

Of course, the Vice President also cast a historic vote for Secretary of Education Betsy DeVos on the floor of the Senate, and then later swore her in in his oꊞice across the street.

The larger intergovernmental aꊞairs team is maintaining direct communications to state,

local and tribal leaders so that we know what issues are aꊞecting local communities. So far,

they've contacted all GOP state speakers of the house, state senate presidents, and

attorneys general, and all but eight GOP state Senate majority leaders.

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Our legislative team is also obviously engaged in Judge Gorsuch's nomination. He had

another full day of meetings in the Senate with both Republicans and Democrats. He met

this morning with Senators Flake and Heitkamp. And this a皑ernoon he'll meet with

Senators Cotton, Blumenthal, McCaskill and Heller. We're also pleased to see another

Democrat, Senator Jeanne Shaheen of New Hampshire, come out and say that the

eminently qualified Judge Gorsuch deserves an up or down vote. That brings up now to

nine total Democrats who have come out and expressed a willingness to treat Judge

Gorsuch fairly. We hope more Democrats will continue to join their colleagues in fulfilling

their constitutional duty to oꊞer advice and consent on the President's nominee.

Also, on the Hill, we expect Attorney General-designate Sessions to receive a full vote on the floor of the Senate tonight. As unfortunately has become commonplace in the Senate, Democrats once again spent hours last night in a counterproductive discussion about one of President's clearly qualified nominees, not to mention one of their peers. Senator Sessions has a long and distinguished legal career, serving as both the U.S. attorney of the southern district of Alabama, and also as Alabama's attorney general.

The President looks forward to Senator Sessions's return to the Department of Justice where he will continue his service to our nation as our chief law enforcement oꊞicer. We also anticipate votes later this week on Secretary-designate Price and Mnuchin.

Finally, before I open it up for questions, the White House has spoken with the governor of Louisiana about the severe where in the Gulf Coast. We've also made contact with the mayors of the aꊞected areas. FEMA is monitoring the situation around the clock and is in the process of deploying teams to support response and recovery activities. At this time, there have been no additional requests for federal assistance, and we'll update you should that change.

With that, let me go to the first question from Courtis Fuller from WLWT NBC in Cincinnati, Ohio.

Q Good a皑ernoon. Cincinnati, among other cities, has recently voted to become a sanctuary city. City leaders here are vowing not to enforce federal immigration laws without a specific request. They also say they want to be open and welcoming to refugees. My question today: How will President Trump respond? Will Cincinnati face economic or other sanctions, including, for example, funding of the Brent Spence Bridge, which he said he would fund when he was on the campaign trail?

MR. SPICER: Thanks, Courtis. As I've noted before, at the end of the day, this order is about two things: one, keeping our cities safe, and two, respecting the hard-earned taxpayers who send their money to the federal government. And the President is going to do everything he can within the scope of the executive order to make sure that cities who don’t comply with it

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-- counties and other institutions that remain sanctuary cities don’t get federal government

funding in compliance with the executive order. I think more areas like Miami-Dade, down

in Florida, understand the importance of this order, and we hope cities like Cincinnati and

other communities around the country follow their lead and comply with that.

With that, Anita Kumar.

Q I have two questions. The first one is, can you tell us who is paying or how this is happening with Prime Minister Abe’s visit to Mar-a-Lago? Who will be paying for that? I asked the White House yesterday. They referred me to State. State referred me to the Japanese government who didn’t respond. It seems as if the Prime Minister was paying and the money was going to Treasury, as previously discussed before.

MR. SPICER: You mean when he travels here or to Florida?

Q Mar-a-Lago.

MR. SPICER: Okay.

Q Then it seems the White House would know that.

MR. SPICER: Yeah, and let me get back to you on that. We’ll follow up with you on the exact financing. I’m not sure how that flows, but I’d be glad to find out.

Q Okay. Second question was, during the hearing yesterday that you talked about -- 9th Circuit -- there was some discussion about whether there needed to be a tweak to the executive order to make it clear that legal permanent residents would not be included in that, and there was some back and forth on that. Will there be a tweak?

Q I think there was further guidance that I spoke about that went out, I think it’s been a week ago -- correct me if I’m wrong -- and talked about, we wanted to make it very, very clear that legal permanent residents were not included in that.

But again, remember, we’re not talking about the merits of the order. Right now, this discussion that happened last night and that the court will be ruling on is specific to the temporary restraining order and whether or not it should be maintained until there’s a further discussion on the merits.

So again, I don’t want to get into the legal nuances, but right now the guidance is very clear that was issued several days ago, if not a week ago, that this is not about legal permanent residents. So I just -- that they are excluded from this, and I don’t know why there would be that discussion. That clarification has been made.

Jeꊞ.

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Q Sean, you said you’re not talking about the merits of the order. Was the President this

morning talking about the merits of the order when he called it “disgraceful,” the hearing

that he heard last night?

MR. SPICER: He wasn’t arguing before the 9th Circuit, Jeꊞ. Last night was a motion before the 9th Circuit on the temporary restraining order. I think the President was very clear that U.S. code and the Constitution clearly give the President all the authority that is needed to make sure that he can regulate who comes into this country and prevent any acts of -- you know, anyone who is not coming to this country in a peaceful manner.

The code, 8 U.S. Code 1152* [1182], is very, very clear on this. And so I think the President was pointing out the same issue that we had in Boston, which is, once we had a chance to argue it on the merits, we won on it. And so I think that’s what he’s -- he clearly did not argue in front of the 9th Circuit last night. So --

Q But he called it “disgraceful.” By calling it “disgraceful,” is that the type of language that should be used between branches of government?

MR. SPICER: I think that the President, when you look at the U.S. code and how clear it’s written and the authority and power it gives the President to do what is necessary to keep this country safe and regulate who comes into this country, I think it’s a very, very clear reading, and the President was very -- I think he further went on and said, it doesn’t matter what level of education you’re at, I don’t think you could misread this.

So I think --

Q But isn’t that insulting an appointee to the federal bench?

MR. SPICER: I think he was very clear, Jeꊞ. So thank you.

Daniel Halper.

Q I was curious about the tweet that President Trump -- about his daughter’s brand, and then it was retweeted by the POTUS account. What’s the standard that the President is doing in regards to his family businesses or that businesses --

MR. SPICER: Well, I think this was less about his family business and an attack on his daughter. He ran for President. He won. He’s leading this country. And I think for people to take out their concern about his actions or his executive order on members of his family, he has every right to stand up for his family and applaud their business activities, their success.

So, look, when it comes to his family, I think he’s been very clear how proud he is of what they do and what they’ve accomplished, and for someone to take out their concern with his

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policies on a family member of his is just -- is not acceptable, and the President has every

right as a father to stand up for them.

I'm going to go to Norma Garcia from KXTX.

Q Thank you. In Texas there is a big push to penalize sanctuary cities. In this state and other states around the country, there is a growing concern among undocumented immigrants whose lives are deeply rooted in the United States and have no criminal records. My question is, is this administration ready to tackle comprehensive immigration reform? If so, can you give us a timeline for it? If not, what is the plan to deal with undocumented immigrants who live in this country long term?

MR. SPICER: Thanks, Norma. I think this has come up several times. I don't think that anybody doubts the President's concern or priority that is placed on immigration. He has talked about it -- when you talk about a comprehensive approach, he has talked about building a wall, he's talked about making sure we go a皑er criminals in this country, he's talked about walking through the process and addressing DACA and DAPA in time. I think this is a big problem. There is no question that both on the security side and on reforming the current immigration system that is so clearly broken, that he is walking through this already, both in terms of executive action and then will continue to work through Congress.

So to your question about the timeline, I think he's already enacting several pieces of it and he's going to work with Congress to get further down that.

Eamon Javers.

Q Sean --

MR. SPICER: Hallie.

Q Two here. Playing oꊞ of questions from Daniel here, on the business activities that you describe the President taking oꊞense to, Nordstrom has come out and says this was not a political decision, it was a business decision. Ivanka Trump, as you know, has said she has divorced herself, separated herself from the business. So how is she being treated unfairly if she's not part of --

MR. SPICER: Well, I think there's clearly a targeting of her brand, and it's her name still out there. So she's not directly running the company, it's still her name on it and there's clearly eꊞorts to undermine that name based on her father's positions on particular policies that he's taken. This is a direct attack on his policies and her name. And so there is clearly an attempt for him to stand up for her because she is being maligned because they have a problem with his policies.

John Roberts.

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Q Sean, just a second -- actually, to clarify that, the timing of that tweet? It looked like it

was right a皑er his PDB -- during? Can you just --

MR. SPICER: I've heard the conjecture. He was free when that happened. Thank you for asking.

Q Second question was on the lawsuit --

MR. SPICER: No, that's two.

Q Oh, I'm sorry, that was a clarification of the one. (Laughter.)

Q Good, Hallie.

Q The President tweeted today that if he does not prevail in the court, talking about the lawsuit issue, that we will never be safe, we will never have the safety and security we're entitled to. What does that mean? Does that mean that this is the only tool in his toolbox and if this EO gets batted down by the courts, we're toast?

MR. SPICER: No. But I think that when you -- and I mean, again, let's -- 8 U.S. Code 1182 says whenever the President finds that the entry of an alien or any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation such periods as he shall deem necessary suspend the entry of aliens or any class of aliens or immigrants or non-immigrants, or impose on the entry of aliens restrictions he may deem necessary and appropriate.

I guess at some point, if you don't look at that statute and say that the President has the power that Congress and the President have deemed necessary to keep this country safe, you've got to wonder how far you're going to allow that to get eroded.

So the point is, is that at some area, you've got to wonder if the President isn't able to execute on the power that's been vested into him and is codified in U.S. code, at some point you have to wonder what else is at question. We have a President that acted 100 percent lawfully to keep people out of this country from seven countries that we did not have the proper information to ensure they were coming into this country with the appropriate means and motives. If at some point the President doesn't have the power, as given to him in law, to protect this country, I think that really questions what a slippery slope we're on.

John.

Q Sean, two questions.

MR. SPICER: Of course. (Laughter.)

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Q The President said this morning that he paid very close attention to the arguments

before the 9th last night.

MR. SPICER: Yes.

Q But was he happy with the presentation that the DOJ attorney, August Flentje, made? There was some concern by supporters of this extreme vetting program that he wasn’t strong enough. He seemed to be searching for answers, particularly on the point of standing.

MR. SPICER: I think there was a lot of back and forth during that entire argument. He made some solid points, and I think that he did what he had to represent the President’s case and to represent the administration’s case on the TRO.

I think the President has really focused on the merits of this case, and looking forward to getting it back either to the 9th Circuit or to the lower court, or however it has to move. He feels very confident on the merits, and that's where I think his focus has been.

So I don't -- I’m not concerned. I think the President’s main concern has been on the merits of this case and making sure that an executive order that was lawfully executed and went through the entire process -- remember we've got to go back and remember that the DOJ’s Oꊞice of Legal Compliance vetted this order, deemed it was legal. So we've followed the entire process to make sure that this was done correctly, constitutionally, legally, and every otherwise.

And so to now -- now our focus is making sure, whether or not we have to wait a day or two or whatever for the TRO, we look forward to the opportunity to discuss this on the merits.

Jen Jacobs.

Q Whoa, whoa, whoa -- sorry. Hold on. Just as a point of clarification -- I’ve got a question --

MR. SPICER: Now you're going with Halle's --

Q So he is -- he was happy with his presentation --

MR. SPICER: I think he is looking forward to the merits of this discussion. That's where -and I think he was pleased with some of the points that got made. But his focus is on the merits of the order and making sure that ultimately we're able to do what we can to get this order back in place and protect the American people.

Jen.

Q The Muslim Brotherhood --

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Q Question two.

MR. SPICER: Look at what Hallie started. (Laughter.)

Q We have reported that Russia has sent its biggest shipment of missiles ever to Syria. Just wondering what the White House’s reaction is.

MR. SPICER: I think I'll have to -- we don't have any comment on this at this time.

Jen.

Q The Muslim Brotherhood. Is it accurate that the administration is weighing -- labeling the Muslim Brotherhood a terrorist organization? And will you do the same for Iran’s Islamic Revolutionary Guard?

MR. SPICER: I think there is no one that can question the President’s commitment to fully attacking and addressing the threat that we face by radical Islamic terrorism. He has been -made very clear during the campaign that the first step is understanding, knowing, and proclaiming who the enemy is. And he’s going to do whatever it takes.

That being said, I’m not going to get ahead of any announcements that we may or may not have coming in the near future. But make no mistake, the President understands the threat that our nation faces, and he’s going to do everything he can to attack it, root it out, and destroy it.

Cecilia.

Q Thank you. The President also said today that in the last two weeks he’s learned a lot, and that terrorism is far greater -- and that terrorism is a far greater threat than people understand. That sounds like he is telling the American public that they have something to fear. Is there a specific threat that he is talking about? And should the American public -based on that statement right there -- be fearful?

MR. SPICER: No. But I think the American people should understand that the President is committed to doing this. We face a very, very real threat in ISIS and radical Islamic terrorism, and that we've got to do everything he can, and that the reason that he is taking the steps that he is, is because we must remain ever vigilant. We can't let our guard down. We have to be ahead of the curve. And that the President is going to take the steps necessary to protect this country and its people. And that the idea that we should sit back and not fully appreciate the constant threat that we're in, it’s week a皑er week, month a皑er month that we're hearing of another instance -- a lone wolf, et cetera, et cetera -- that is going throughout this country -- excuse me, throughout the world. My apologies.

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And so I think what the President is doing is trying to make sure that the American people

understand that he’s doing everything he can to protect them and to keep our institutions

and our people safe. And so this is not something that we can rest on our laurels, that we

can't understand. He was just down at CENTCOM and SOCOM Monday morning getting a full

briefing of the threat that we face from around the world and their motives.

And I think that that's something that he weighs very heavily on his mind when he meets with these people, gets these briefings, meets with the Green Beret soldiers, that he recognizes that there are so many people out there putting their life on the line to protect this country and to make sure that we understand the threats, and that it’s his job and his obligation to do everything within his power to take that information and do what he can to protect the country.

And so just to put a pin in it, I just want to be clear. While we may not face an imminent threat today, we don't know when that next threat comes. Is it next week? Is it next month? Is it next year? But the President wants to get ahead of the curve and make sure that we're not talking about what we should have done, but taking every step necessary to make sure that it doesn't happen. Steve.

Q But is the threat today greater than it was yesterday or last week? Because that's what he’s saying.

MR. SPICER: I understand what he’s saying. What I’m telling you is, is that we shouldn’t ever be behind the curve on the threats this country faces. We should make sure -- we don't know when the next one is coming. We don't know when the next lone wolf is coming. We don't know when the next attack is. We've got amazing intelligence that's trying to root out and make sure that it doesn't happen again. But what we can't do is wait for the next attack to come and say, I wish we had done the following. And the steps that he's taken are proactively making this country and our people safer.

Steve.

Q Sean, what was the White House response to the Republican proposal for a carbon tax floated today? And separately, could you just set up tomorrow's meeting with the airline CEOs a little bit? What do you hope to get out of it? What do you hope to discuss?

MR. SPICER: So I'm not going to comment on pending legislation. We'll wait to see where that comes. That's just not going to be a habit of ours to comment on every bill that gets introduced or marked up in committee until we have a statement of administration policy.

And with respect to the meeting tomorrow, I'll have a further readout on that later tomorrow. But I will say, in general, as you know, he's met with Intel just now. He met with

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oil executives -- I mean, executives from the car manufacturers, manufacturing companies,

technological companies, unions. So these continued meetings that you'll see in the next

months and years are going to be an attempt to make sure that he's sitting down with

business leaders from around the country to figure out how he can use his oꊞice and this

administration to further their ability to create jobs and grow the economy.

So this is going to be more of a pattern. You're going to continue to see him meeting with people who want to share that agenda to grow, create jobs, manufacture here, li皑 wages up here, bring benefits to good-paying jobs, et cetera.

Q Should we take any significance from the fact that you did have this meeting about the carbon tax?

MR. SPICER: No. I just -- look, we're not at a policy -- we have nothing to announce on that.

If I can go now to our next seat -- sorry -- we've got Josh Smith from WJHL in Southwest Virginia.

Q First oꊞ, thanks so much for taking questions from journalists covering local news. We appreciate it. WJHL is in Northeast Tennessee and Southwest Virginia -- that is coal country. And I have two questions relating to coal. Then-candidate Trump came to Abingdon, Virginia last year and he made a bold promise -- if it helped to rescue the mining industry, that he would help to bring coal jobs and he would push back against environmental regulations.

If the executive order last week was a first step, what specifically is the President willing to do, planning to do to make good on that promise to help the coal industry, to encourage coal production and use, and to deal with what some call its demonized image?

And as a follow-up -- and I've got to ask two questions because when am I ever going to get to do this again? What assurances can the President give those who hear him talking about him pushing back against environmental regulations and bringing back coal? What assurances can he give those who are very worried about the impact on the environment?

MR. SPICER: Well, I think that there's this -- well, I think when you hear him talk about coal specifically, it's under the guise of clean coal. And I think the technology that we're able to utilize these days make it one of the cleanest uses of technology that we have. And the President's point is that as we bring back this industry, we can do it in a way that is environmentally friendly and it becomes a great and greater energy source for us.

Just the other day, the Department of Energy noted that we expect I think it's about a 3 percent increase in coal production in this country, which is a noticeable reverse of where

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it's been in the past. You mentioned the executive order and the talks that the President has

had over the past year or so about his desire to bring back coal.

Largely, that has to do with regulation that the EPA has put on existing coal plants that have ensured that they couldn't operate in an eꊞective way to stay open. I think the President is working with industry to roll back a lot of that and do it in a way that's environmentalfriendly. And I think that you can do that utilizing the technology you have and harness the power of clean coal, Josh. Thanks.

Kristen.

Q Sean, Yemen has withdrawn permission for the United States to run special operations in ground missions against suspected terrorists in the wake of the recent raid there that claimed so many civilian lives. Does that not undercut the administration's ability to fight terrorism in that region? And do you stand by your assessment that it's a success?

MR. SPICER: Well, I'll take the last one first. It's absolutely a success. And I think anyone who would suggest it's not a success does disservice to the life of Chief Ryan Owens. He fought knowing what was at stake in that mission. And anybody who would suggest otherwise doesn't fully appreciate how successful that mission was, what the information that they were able to retrieve was, and how that will help prevent future terrorist attacks.

Q But even Senator John McCain --

MR. SPICER: I understand that. I think my statement is very clear on that, Kristen. I think anybody who undermines the success of that raid owes an apology and [does] a disservice to the life of Chief Owens.

Q Are you saying that Senator John McCain owes him an apology?

MR. SPICER: Hold on, Kristen, can I answer the question? I'm answering the question. Please let me finish. The raid -- the action that was taken in Yemen was a huge success. American lives will be saved because of it. Future attacks will be prevented. The life of Chief Ryan Owens was done in service to this country and we owe him and his family a great debt for the information that we received during that raid. I think any suggestion otherwise is a disservice to his courageous life and the actions that he took. Full stop. I'm sorry, what was the first part?

Q Is that your message to Senator John McCain? He's called it a failure.

MR. SPICER: That's my message to anybody who says that. Anybody. I just -- I don't know how much clearer I can be, Kristen.

Hunter Walker.
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Q Yes, thank you, Sean. This morning, President Trump asked local law enforcement

oꊞicials to help assist with deportations. If he doesn't get the cooperation he's hoping for,

does he plan to have DHS and CBP proactively begin deportations of undocumented

criminals in the border zone?

MR. SPICER: Well, I think that when you talk about immigration and what he's doing -whether it's the wall or enforcing existing regulations or visa reform -- I don't think anybody questions the President's commitment to border security and immigration reform. In fact, it's usually quite the opposite. So when it comes to the steps that he's going to take, I think I've addressed this multiple times what his priorities are going to be, but you've seen Secretary Kelly talk about construction of the wall, his implementation of the executive order to keep people out. There is going to be a considerable amount of action on this front -- on immigration and border security. It started day one and it's going to continue through the last possible day until the President feels that this border is 100 percent secure and we've got the immigration system completely under control.

Q Is defunding his only tool to get cooperation from the sanctuary cities?

MR. SPICER: Look, I'm not going to get ahead of it. I think when you saw the support and some of the side conversations that the sheriꊞs and police oꊞicers had, and the conversations that we've had beyond that, the sheriꊞs the other day, the support that they've issued on behalf of his executive actions and his agenda as a whole -- these are the folks on the front lines in many cases, Hunter, that are on the border, that see what some of this does and how it aꊞects families and businesses, not to mention the cost that it is to both our country, in terms of what we have to do to support the immigration at our southern border in particular, but also the cost that it has on our economy and on jobs.

So you’re going to continue to see a flurry of activity, over and over and over again, to make sure that this President continues to show the importance that he puts on both border security and immigration reform.

Q Thank you, Sean. Yesterday, on CNN, Kellyanne Conway announced that Prime Minister Trudeau is going to be here next week. Can you confirm which day? Have discussions on reviewing the Canadian part of NAFTA started? And can you confirm that Sarah Palin is being considered as ambassador to Ottawa?

MR. SPICER: So I will have further updates on the Prime Minister’s schedule either later today or tomorrow. I’m not in a position where I can finalize that. But we will have --

Q And all the other (inaudible) --

MR. SPICER: Guys, slow your roll. (Laughter.) So we will -- with respect to the ambassador, we have no additional ambassador nominations or announcements to make on that front.

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I’m sure, at some point, we will have soon.

With respect to the agenda, as the President spoke with Prime Minister Trudeau a few weeks ago, they talked about trade and security and commerce, and I think all of that is going to be discussed at the time when the President and him further meet or discuss this.

Q And I wanted to follow up on that if you don’t mind. Just on NATO, Canada, of course, is one of the 28 member countries. The President has been calling out countries that pay their fair share of dues. What are his options if countries don’t listen to him? And what does this really mean?

MR. SPICER: Well, I think -- look, every country is obligated to pay two percent of their GDP, and the President has made it very clear that, for too long, many countries have been getting a free ride. When he has talked to these countries, and as I’ve just read out, both Erdogan and Rajoy -- he has addressed this not just with them, but to so many of the other NATO countries. And, by and large, every single one of them agrees with that. They understand the importance of NATO, and the President is very clear that in order for NATO to be successful, these folks have to pay their fair share.

Carol Lee.

Q I want to follow on Kristen, and then I just have a question on Turkey. Does the White House have a reaction to reports that Yemen has revoked permission for the U.S. to do ground missions there?

MR. SPICER: Yemen, more than most countries, fully appreciates the fight that we have with ISIS, and I think we’re going to continue to work with them to strengthen our diplomatic relationships and understand our fight against terrorism. And so at this point, I’ll leave it at as that we understand that we share that commitment with them, and we’re going to continue to work with them to combat ISIS and to make sure that we do that. I’m not in a position to go any further at this time.

Q President Erdogan said today that the U.S. agreed to work with Turkey to take Raqqa. Can you clarify what the President said to him in that phone call?

MR. SPICER: I can’t. I think the readout was as specific as we want to get with his conversation.

Q What's his characterization of the conversation?

MR. SPICER: I think the readout that we put out on Turkey was as far as we want to go with that. Thank you.

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Hold on, I’m going to go to our last one, Adriana Cohen, a radio host and columnist for the

Boston Herald.

Q Great to be with you, Sean. Last night, Boston Mayor Walsh went on a television show to talk about sanctuary cities. What does the President make of his vow to house illegal immigrants in Boston City Hall to shield them from the Trump administration?

MR. SPICER: I think the President’s executive order is pretty clear when it comes to these kind of actions. Again, I referenced it earlier in the briefing, but it’s twofold. One is, there’s a concern about the safety of the American people and how we let people come into this country, and second, with respect to the American taxpayer. And if we’re going to be sending federal tax dollars to folks to Washington, I think they need to be used appropriately. And the President is going to do everything in his power to respect the money that taxpayers send to Washington and is spent facilitating legal activities and on American citizens.

Blake.

Q Thanks, Sean. Earlier today, the President said that the wall is in the process of being designed. Given his previous background, is he or does he plan on being actively involved with the designing and the implementation of that wall? And separately, last night, Elizabeth Warren -- any reaction from the White House on whether you believe what Mitch McConnell did was the correct thing? Critics say she was silenced on the Senate floor.

MR. SPICER: On the wall, I mean, the President is a builder. He understands and I think he’s going to make sure that as this project moves forward, that he’s going to stay in close touch with Secretary Kelly to make sure that it fits his specs. But he takes enormous attention to detail, and he wants to make sure it gets done right. So I would expect that a project of this magnitude and one that is this high on his priority list will get the necessary attention from the President.

Q And Senator Warren?

MR. SPICER: I’m sorry?

Q Senator Warren last night?

MR. SPICER: Yeah, look, I would refer you back to Senate rules. I mean, this is not something that we tend to discuss here. I’ll leave it to Senator McConnell and the Senate to discuss Senate rules.

Q I just wanted to follow up again on Yemen. Just not sure exactly what you’re trying to say here. I seems like the report was that the Yemeni government has asked the U.S. to stop

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doing any ground operations with regard to AQAP. Is that the request that you got from the

Yemeni government?

MR. SPICER: We'll have further information on that going forward. I think we are in touch with Yemeni oꊞicials. We’re working this through diplomatic channels. But they understand the fight and the commitment that we both share when it comes to rooting out ISIS. And I’ll have more information on that going forward.

Q So can I ask on the President’s tweet, Hallie had mentioned on part of it. The other part of it this morning was that there’s been a big increase in traꊞic to the U.S. from certain areas. Can you say what certain areas he’s referring to, and what data is he leaning on?

MR. SPICER: I’ll get back to you on that. I’ve got to pull the data field on that.

Margaret.

Q Sean, two questions. Turkey -- did the President dispatch the CIA director to Turkey as Turkish reports are saying right now?

MR. SPICER: I just saw the CIA director, so if it happened, it hasn’t happened in the last hour.

Q Okay. The rest of that question was about -- this is part one -- about Gülen, whether there was discussion of extraditing Fetullah Gülen who Turkey views as a terrorist.

MR. SPICER: I have nothing further than the readout at this time.

Q The second question, though, was about your statement -- "We don’t know when the next lone wolf is coming." I believe, based on numbers, that the vast majority of lone-wolf attacks have been carried out by people who are either American, American-born, or naturalized American citizens. So what specifically are you referring to there? And what is he doing about those who are radicalized in front of their own computer screens?

MR. SPICER: Well, I guess my question, Margaret -- I mean, I think there’s at least -- just for example, within the seven countries that we’ve talked about, there’s at least 20-some odd people that, over the last few years, have come into this country and been convicted of or charged with acts of terrorism. So the --

Q But the people who are lone wolves and radicalized here.

MR. SPICER: I understand that. But what I’m getting at is, you don’t know, I don’t know when is the next act, who’s going to commit it, how are they going to commit it. The point is, is that you don’t look at odds and say, hey, let’s play the odds on American lives. You do exactly what you can to present any attack from occurring. And so I think you can go

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through any system and say, when was the last time that somebody committed a shoe

bomb, and so let's not take shoes oꊞ. The TSA --

Q That's not what I'm asking.

MR. SPICER: No, I get what you're asking. You're asking, when is the next terrorist attack, and we don’t know.

Q No, what is being done about people who are radicalized in the basement, in front of the computer screen, who are not aꊞected by this ban.

MR. SPICER: Right. And I think the President has asked both for a plan to defeat ISIS from stuꊞ that is coming in from this, and he's taking steps but he's also looking at working with the FBI and domestic intelligence agencies to gather the best information we can to prevent acts on our soil from people, wherever they may be.

Q So something more is being done on that front that we haven’t heard about?

MR. SPICER: He has tasked the FBI. It is a whole-of-government approach to what's going on. We're not looking at this myopically and just saying, these are the seven countries. The whole point of that first executive ban* [order], and I know that's not entirely what you're asking, was to start with countries that didn’t have the appropriate vetting measures to ensure that they could come into this country.

As we move forward through this 90-day period, we're reviewing other countries, other options. Those are the external threats coming into this country. At the same time, the President has looked at options within the domestic intelligence gathering to figure out whether it's cyber or other ways that we can determine other ways to prevent or get ahead of additional threats that we might face in this country. But it's not an either/or proposition. It's a whole-of-government approach to what's going on.

Q A bipartisan group of senators are introducing legislation -- and I know you don’t like to talk about legislation -- that would allow the Senate to sign oꊞ on a reduction in sanctions against Russia. Would the President support such a check by Congress on sanctions?

MR. SPICER: Well, there's two sets of sanctions, Tamara, that we got to deal with, right? One is the ones with respect to Crimea. And I think that Ambassador Haley has addressed that very forcefully at the U.N., that until Russia leaves Crimea, that those sanctions are a non-starter. With respect to the other ones, I don’t want to get ahead of the legislation, if that's what that specifically is dealing with. But again, we're not going to get into pending legislation.

With respect to the sanctions that specifically deal with Ukraine and Crimea, I think that

Ambassador Haley has spoken very, very clearly about that.

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Q Sean, thanks. The President said this morning in his address to the law enforcement

oꊞicials, that he'll have a zero-tolerance policy for attacks against law enforcement oꊞicers.

As a specific policy proposal, what does that mean exactly? More death penalty cases on

the federal level? What does he mean?

MR. SPICER: I think that what the President said not just yesterday with his meeting with the sheriꊞs, but then today, is that he wants them to understand that he is a true friend -they have a true friend in the White House, somebody who understands the dangers that they face every day by putting their lives on the line to protect the American people, whether it's pulling someone up for a traꊞic stop and not knowing what's in the car, or going up to a house to serve a warrant and not knowing who's behind that door. These men and women, every day, day in and day out, are willing to put their lives on the line and make huge sacrifices.

So he wants them to know that they have a true friend here in the White House that's going to have their back. How that manifests itself going forward, I think the President will have further details as that moves forward. But for right now, I think his number-one message to them was: You've got a friend, he's got your back, let's do what we can to get these cities.

I think the other thing that was important is that, you know, he mentioned Chicago. Their crime rate -- their murder rate is up 45, 50 percent. And in so many of these cities it's up. It's unacceptable. And I think the President is disgusted that so many American lives are taken, injured, whatever -- that we can't walk down the streets of our own cities in safety. And I think he wants to make sure that they understand his commitment not just to preventing acts of terrorism from coming into this country, but also that whether it's gang violence or whatever, that people feel safe and that law enforcement is empowered to do what it can to keep our community safe, to work with communities, to establish policies that both respect our citizens but do so in a way that makes them feel safe and allows them to drive and walk down the streets of our city.

Charlie.

Q Journalist Matt Drudge tweeted today that the Republican Party should be sued for fraud, basically upset about the lack of any legislation to repeal Obamacare or any tax cut legislation. So what's your message to him and anyone else who's worried about sort of the big push in the beginning and who might be concerned that that momentum is stalling?

MR. SPICER: I think it's hardly stalling. I think it's a mammoth thing to repeal and replace. I think there's no question the President's commitment to doing this. You've heard Speaker Ryan talk about how we should be able to have this wrapped up by the end of the year. It's a big bill. It got jammed through, and it was very sweeping. We're talking about one-fi皑h of

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our economy. We can either do it quickly, as the Democrats did, and end up with a

monstrosity where premiums go up, access is limited, or we can do it right.

And I think the President, while he wants to get this done as soon as possible and understand what's at stake, he wants to do it right. He understands how important health care is to American families and individuals. And so his goal is to get it done right and have an outcome that achieves the goals that it sets out to do. That's it -- plain and simple.

April.

Q Sean, I have a series of questions.

MR. SPICER: Look what you started, Hallie Jackson. (Laughter.)

Q Don't blame it on Hallie, okay? Going back to the issue of policing, what happens when there is a situation -- you're talking about good policing -- but what happens when there are situations that we've seen over the last few years that have been highlighted with this accountability piece with cameras? What happens when there is bad policing? What does this President --

MR. SPICER: Then we have to deal with it. I don't -- I think the President wants to do what he can. But again, I think you're right, we've got to have good policing. But that's -- he wants to stand with them, talk about how we can do proper training, what kind of funding they need to do their job better. In so many cases, the policy are asking for the resources because they've become fearful of making routine stops by preventing it.

So I think it’s working with the police, integrating those kind of back and forth and having a dialogue in communities to make sure that we're doing it, as you put it, in a way that instills confidence in our citizens and our communities. But we can do this right. And we can make sure --

Q So it’s not an either/or, though?

MR. SPICER: No, absolutely no.

Q Okay.

MR. SPICER: No, no, no. We've got to do this -- look, police oꊞicers from around this country on a daily basis put their lives out there, and I think that they want to keep communities safe. Like teachers, they enter this not -- no cop signs up, or sheriꊞ, because of the money. Like teachers, they do it because they care about the community. They care about making this country better, their community better. But I think, in return, they should be provided the resources and the policies they need to do their job well and to do so that ensures that

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we have this back-and-forth dialogue with the American people that continues to earn the

respect that they deserve for the sacrifice they're making.

Q All right, the next question.

MR. SPICER: How many have we got? Just so I --

Q Maybe three -- maybe three more. (Laughter.) It’s Black History Month. Let me go. (Laughter.)

MR. SPICER: You can play that once. (Laughter.)

Q I got a couple more days.

MR. SPICER: Okay. (Laughter.)

Q All right, so listen, on the issue of last evening with Elizabeth Warren. Coretta Scott King -- I want to get your reaction to these words that they're not allowed: “Mr. Sessions has used the awesome power of his oꊞice to chill the free exercise of the vote by black citizens in the district he now seeks to serve as a federal judge.” And she’s basically saying that Sessions has indiꊞerence towards criminal violations of civil rights laws. What do you say to that?

MR. SPICER: Well, obviously, we have a lot of respect for her and the sacrifices that she made, and the sacrifices that, frankly, she endured in her life. But I would respectfully disagree with her assessment of Senator Session then and now.

His records on civil voting rights I think is outstanding. And like Arlen Specter, the late Arlen Specter, I can only hope that if she was still with us today, that a皑er getting to know him and to see his record and his commitment to voting civil rights, that she would share the same view that Senator Specter did where he said, “Although I voted against him, getting to know the man that is now, I regret that vote.” And I would hope that if she was still with us today that she would share that sentiment.

Because Senator Sessions’s records both as U.S. attorney for Alabama, as attorney general, and as senator has been one that has stood up for voting rights. He prosecuted the Klan. He stood up for Coretta Scott King getting -- for getting the gold medal. He has been a tireless advocate of voting and civil rights throughout his career. And I would just hope that if she was still with us today, that she would share the sentiments of former Senator Specter.

Q Okay, and last two. On diversity here, the administration’s diversity issues, you've been slammed on that recently. I understand that there’s been a meeting. Vice President Pence has been talking to J.C. Watts, Michael Steele and others -- if you can elaborate on that. And

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also there’s a lot of groundswell about this HBCU executive order. What’s going on with

that?

MR. SPICER: So the HBCU presidents will be in town later this month as part of a national celebration. We’ll have further updates on both the meetings that we may have with them, the activities surrounding that, in terms of the administration. And then I think we’ll have further updates on it, as I mentioned with all executive orders. We have nothing to update on that.

But obviously, the President has a strong commitment to them and understands over the last eight years they've been woefully neglected. And I think he wants to really show a commitment in funding to HBCUs. And so you’ll see I think not just a push this month, but in his budget and going forward.

Q PLUS loans, Pell grants?

MR. SPICER: I think his budget will address a lot of these issues, April.

Q The diversity piece, the diversity piece.

MR. SPICER: And I think -- look, we're going to continue to reach out to a lot of folks to get their ideas and their input. I think he’s shown that both through the transition and now. But we're going to continue to reach out to people of diꊞerent backgrounds, of diꊞerent color, of diꊞerent gender, of diꊞerent economic -- socioeconomic, of diꊞerent industry, of diꊞerent parties. The President I think continues to show a desire to reach out and talk to people who I think share an agenda of moving the country forward and doesn't really care about their background, their voting history, any of those other ideological traits. If they share a commitment to moving this country forward and li皑ing people up, that's his end of -

Q Sean --

Q You mentioned the "one in, two out" order in your opening. There was a lawsuit filed in federal court this morning challenging that lawsuit. Is the White House aware of that?

MR. SPICER: Yes.

Q And what’s your response to it?

MR. SPICER: Well, I think the lawsuit presumes a lot of outcomes that are widely inaccurate. I think that it presumes that certain things would be part of the "one out."

The bottom line is, is that overregulation has stemmed economic growth and job creation. Reviewing those to make sure that they are meeting their intent and not stifling job

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creation at the expense of whatever they were intended to do is something that should be

smart and welcome by everybody.

The idea that we're willy-nilly just allowing regulations to occur, but the lawsuit specifically, is wildly inaccurate. It makes a ton of assumptions that call for speculation on what may or may not happen in the future. And that's highly -- it's just subjective at best and doesn't have any basis in fact.

Thank you, guys. Look forward to seeing you tomorrow.

Q More hands up here, Sean.

MR. SPICER: I know, I'll see them tomorrow.

END 2:38 P.M. EST

 

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EXHIBIT D

Pool Notes From Secretary Kelly’s Trip To San Diego | Homeland Security

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Official website of the Department of Homeland Security

Contact Us Quick Links Site Map A-Z Index

Pool Notes From Secretary Kelly’s Trip To San Diego
Release Date: February 10, 2017
For Immediate Release Office of the Press Secretary Contact: 202-282-8010
WASHINGTON – Today, Secretary of the Department of Homeland Security (DHS) John Kelly visited San Diego, where he met with DHS employees and state and local law enforcement officials. Below are pool notes compiled by Elliot Spagat of the Associated Press.
Pool photos from Denis Poroy of the Associated Press are available at https://www.flickr.com/photos/dhsgov/
(/redirect?url=https%3A%2F%2Fwww.flickr.com%2Fphotos% 2Fdhsgov%2F)
Pool footage is also available from KFMB San Diego.
B-roll from other portions of his trip is available by emailing mediainquiry@dhs.gov (mailto:mediainquiry@dhs.gov) .
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Pool Notes from Elliot Spagat, Associated Press:
US Homeland Security John Kelly’s meeting with federal, state and local law enforcement officials was scheduled to begin at 4 p.m. PST in a conference room at San Diego’s San Ysidro port of entry, the nation’s busiest border crossing. It came near the end of Kelly’s two-day tour of the nation’s border with Arizona and California.
Kelly arrived at 4:10 p.m., shook hands, and was introduced by Pete Flores, US Customs and Border Protection’s San Diego fild office director.
Kelly: “Politics aside (Trump is) our president now and we have to help make America succeed. So I would just offer that he’s got an agenda, more or less the same agenda he talked about during his campaign. Unlike a lot of candidates for public office, he’s actually doing what he said he was going to do, or trying to do what he’s said he’s going to do.”
I was in McAllen, Texas, last week, yesterday in Arizona, and today here. I met with DHS employees and also with local law enforcement officials “trying to get my hands around and better understand the border communities.”
“(I) learned a lot about the border, learned a lot about what this physical barrier should like. Trump talked about a wall, a physical barrier of some type.
I got an “earful” from law enforcement officials about where they would most like to have a wall.
“I’ll take that on board, we’ll bring it back to Washington, put in the blender and come up with a solution.”
Feedback from DHS employees on the border is that we need a wall but, knowing that it can’t be built in an

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afternoon or maybe even a year, I could really use 31 miles here right now, and, if you have capacity, another 64 miles there. “That’s why I’m here to find out those kind of things.”
Big Bend, Texas. “I’ve never been there but it’s more like a Grand Canyon kind of setting and maybe a different kind of barrier would be appropriate there. The terrain is so rugged.”
San Diego Police Chief Shelley Zimmerman: Asks for a definition of a sanctuary city
Kelly: “I don’t have a clue .... It’s inconceivable to me that people who are sworn to protect their communities would not want someone, anyone to remove criminals from their communities and send them somewhere else. I’m stunned when people say, well, we’re not going to cooperate with you even in the event of convicted criminals.
I understand that every community is different. You are all under different pressures.’
It would be hard for me to justify giving grant money to cooperate with removal operations and you were not able to help us with that.
“I promise you we’ll work with you and will make no Draconian moves until I fully understand what a given locale might be doing or not doing.”
Zimmerman: We have “something special in San Diego” in terms of cooperation among law enforcement agencies.
San Diego County Sheriff Bill Gore: Echoes Zimmerman comments on collaboration among law enforcement

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agencies in San Diego “but as far my patrol deputies and police officers out working in the community, we don’t want to be perceived as immigration. Kelly says, “Right,” and Gore says, “I think we’re all pretty much on the same sheet of music.”
Gore then addresses cooperation with ICE in San Diego County jails. I’ve ICE employees in our jails for probably 15-20 years. We can no longer hold people under ICE detainers under the law. Best outcome is for ICE to take custody of people in our facilities but recognize that they can’t be everywhere in California. What could help us is if we can get some type of warrant or court order to hold them.
“That would be a big step in the right direction. And what the state of California is going to come up with down the road, it makes me shudder. I’m really concerned about that because I don’t want to see politics get in the way of good public safety.”
Kelly: “If we can do what we’re asking, for sure. I don’t know if it’s doable relative to case law and all the rest of it.”
The meeting continued but the pool was asked to leave at 4:25 p.m.
Confirmed attendees (* indicates I saw them in the room; others may have been there but I didn’t confirm):
• US Homeland Security Secretary John Kelly* and aides*; • US Border Patrol Chief Ronald Vitiello*; • Mark Ghilarducci,* California Governor’s Office of Emergency Services director and homeland security adviser to Gov. Jerry Brown;

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Case 5:17-cv-00574-WHO Document 36-4 Filed 02/23/17 Page 6 of 7

• Mark Pazin,* California Governor’s Office of Emergency Services law enforcement division chief;
• Joe Farrow, California Highway Patrol commissioner;
• Jim Abele, California Highway Patrol’s border division chief;
• David Baldwin, California National Guard adjutant general;
• Bill Gore,* San Diego County sheriff;
• Ray Loera,* Imperial County sheriff;
• Shelley Zimmerman,* San Diego police chief;
• Roxanna Kennedy,* Chula Vista (Calif.) police chief;
• Walter Vasquez, La Mesa (Calif.) police chief;
• Manuel Rodriguez, National City (Calif.) police chief;
• Craig Carter,* Escondido (Calif.) police chief;
• Joe Froomin, Coronado (Calif.) police chief;
• Frank McCoy, Oceanside (Calif.) police chief;
• Aniello Gallucci, Carlsbad (Calif.) police chief;
• Jeffrey Davis, El Cajon (Calif.) police chief;
• Pete Flores,* US Customs and Border Protection San Diego office field director;
• Richard Barlow,* US Border Patrol San Diego sector chief;
• John Priddy, US Customs and Border Protection’s Air and Marine Operations director for San Diego;
• David Shaw,* special agent in charge of US Homeland Security Investigations in San Diego;

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Case 5:17-cv-00574-WHO Document 36-4 Filed 02/23/17 Page 7 of 7

• Gregory Archambeault,* US Immigration and Customs Enforcement’s San Diego enforcement and removal operations field office director; • Capt. Joseph Buzzella,* US Coast Guard San Diego sector commander.
Topics: Law Enforcement Partnerships (/topics/law-enforcement-
partnerships)
Keywords: law enforcement (/keywords/law-enforcement-0) , Port of Entry
(/keywords/port-entry)
Last Published Date: February 10, 2017

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 Case 3:17-cv-00574-WHO Document 43 Filed 03/01/17 Page 1 of 15

1 JULIA HARUMI MASS, SBN 189649 WILLIAM S. FREEMAN, SBN 82002
2 ANGÉLICA SALCEDA, SBN 296152 AMERICAN CIVIL LIBERTIES UNION
3 FOUNDATION OF NORTHERN CALIFORNIA, INC.
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
6 Email: jmass@aclunc.org
Email: wfreeman@aclunc.org 7 Email: asalceda@aclunc.org
8

CATHERINE MORENO, SBN 264517 LAUREN GALLO WHITE, SBN 309075 RALITZA DINEVA, SBN 305974 AVA MILLER, SBN 312012 WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION 650 Page Mill Road Palo Alto, California 94306 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Email: cmoreno@wsgr.com Email: lwhite@wsgr.com Email: rdineva@wsgr.com Email: armiller@wsgr.com

9 Attorneys for Plaintiff-Intervenor Young Women’s Christian Association
10 Of Silicon Valley

11 [SEE NEXT PAGE FOR ADDITIONAL COUNSEL]

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

SAN JOSE DIVISION

15 16 COUNTY OF SANTA CLARA,

17

Plaintiff,

18

v.

19 DONALD J. TRUMP, President of the United

20 States of America, JOHN F. KELLY, in his official capacity as Secretary of the United States

21 Department of Homeland Security, JEFFERSON

B. SESSIONS, in his official capacity as 22 Attorney General of the United States, JOHN

23

MICHAEL “MICK” MULVANEY, in his official capacity as Director of the Office of

24 Management and Budget, and DOES 1-50,

CASE NO.: 17-cv-00574

NOTICE OF MOTION AND MOTION FOR PERMISSIVE INTERVENTION OF YOUNG WOMEN’S CHRISTIAN ASSOCIATION OF SILICON VALLEY; MEMORANDUM OF POINTS AND AUTHORITIES

Date: Time: Dept.: Before:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

25

Defendants.

26

27

28

YWCA SILICON VALLEY’S MOTION AND MEMORANDUM ISO MOTION FOR PERMISSIVE INTERVENTION CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43 Filed 03/01/17 Page 2 of 15
1 PETER J. ELIASBERG, SBN 189110 JENNIFER PASQUARELLA, SBN 263241
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA
3 1313 West 8th Street Los Angeles, CA 90017
4 Telephone: (213) 977-5211 Facsimile: (213) 977-5297
5 Email: peliasberg@aclu-sc.org Email: jpasquarella@aclu-sc.org
6 DAVID LOY, SBN 229235
7 ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES
8 P.O. Box 87131 San Diego, CA 92138-7131
9 Telephone: (619) 232-2121 Facsimile: (619) 232-0036
10 Email: davidloy@aclusandiego.org
11 OMAR C. JADWAT* ANDRE I. SEGURA, SBN 247681
12 SPENCER AMDUR* AMERICAN CIVIL LIBERTIES UNION
13 FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT
14 125 Broad Street, 18th Floor New York, NY 10004
15 Telephone: (212) 549-2600 Facsimile: (212) 549-2654
16 Email: ojadwat@aclu.org Email: asegura@aclu.org
17 Email: samdur@aclu.org
18 CODY H. WOFSY, SBN 294179 AMERICAN CIVIL LIBERTIES UNION
19 FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT
20 39 Drumm Street San Francisco, CA 94111
21 Telephone: (415) 343-0770 Facsimile: (212) 395-0950
22 Email: cwofsy@aclu.org
23 *Pro Hac Vice Forthcoming
24
25
26
27
28
YWCA SILICON VALLEY’S MOTION AND MEMORANDUM ISO MOTION FOR PERMISSIVE INTERVENTION CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43 Filed 03/01/17 Page 3 of 15

1

TABLE OF CONTENTS

2

Page

3 NOTICE OF MOTION AND MOTION ................................................................................................1

4 MEMORANDUM OF POINTS AND AUTHORITIES ........................................................................1

5 I. INTRODUCTION ......................................................................................................................1

6 II. STATEMENT OF FACTS .........................................................................................................3

7 III. LEGAL STANDARD.................................................................................................................5

8 IV. THE COURT SHOULD PERMIT YWCA SILICON VALLEY TO INTERVENE IN

THIS LITIGATION, PURSUANT TO FED. R. CIV. P. 24(b)(1)(B). ......................................6 9

A. YWCA Silicon Valley Satisfies All of the Requirements for Permissive

10

Intervention. ....................................................................................................................6

11

1. YWCA Silicon Valley has an Independent Ground for Jurisdiction. .................6

12

2. The Motion to Intervene is Timely. ....................................................................7

13
14
15 V.
16

3. YWCA Silicon Valley’s Claims Share Common Questions of Law and Fact with the Main Action...................................................................................8
B. The Court Should Exercise its Discretion to Grant Permissive Intervention. ................9
CONCLUSION .........................................................................................................................11

17

18

19

20

21

22

23

24

25

26

27

28
i YWCA SILICON VALLEY’S MOTION AND MEMORANDUM ISO MOTION FOR PERMISSIVE INTERVENTION
CASE NO. 17-CV-00574

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1

TABLE OF AUTHORITIES

2

Page(s)

3

CASES

4 ACLU of N. Cal. v. Burwell, No. 16-cv-03539-LB, 2017 U.S. Dist. LEXIS 17389

(N.D. Cal. Feb. 7, 2017)................................................................................................5, 6, 7, 10

5

Beckman Indus. v. Int’l Ins. Co., 966 F.2d 470 (9th Cir. 1992)..............................................................5

6

Blum v. Merrill Lynch Pierce Fenner & Smith, Inc., 712 F.3d 1349 (9th Cir. 2013).............................5

7

Californians for Safe & Competitive Dump Truck Transp. v. Mendonca,

8

152 F.3d 1184 (9th Cir. 1998).....................................................................................................9

9 Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893 (9th Cir. 2011) ........................7, 9

10 Ctr. for Biological Diversity v. United States DOI, No. 15-cv-00658-JCS,

2015 U.S. Dist. LEXIS 82201 (N.D. Cal. June 24, 2015) ..........................................................5

11

Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836 (9th Cir. 2011) ...................................6

12

In re Grupo Unidos Por El Canal S.A., No. 14-mc-80277-JST (DMR),

13

2015 U.S. Dist. LEXIS 52358 (N.D. Cal. Apr. 21, 2015) ..................................................5, 8, 9

14 Nikon Corp. v. ASM Lithography B.V., 222 F.R.D. 647 (N.D. Cal. 2004) .........................................7, 9

15 Nw. Forest Res. Council v. Glickman, 82 F.3d 825 (9th Cir. 1996) .......................................................7

16 Peruta v. Cty. of San Diego, 824 F.3d 919 (9th Cir. 2016) (en banc) ....................................................7

17 Pest Comm. v. Miller, 648 F. Supp. 2d 1202 (D. Nev. 2009) .................................................................7

18 PG&E v. Lynch, 216 F. Supp. 2d 1016 (N.D. Cal. 2002).......................................................................9

19 Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810 (9th Cir. 2001) ................................................5

20 United States v. City of Los Angeles, 288 F.3d 391 (9th Cir. 2002) .......................................................8

21

STATUTES

22 Civ. L.R. 7-2(a) .......................................................................................................................................7

23

RULES

24 Executive Order 13768 ................................................................................................................. passim

25 Fed. R. Civ. P. 24 .......................................................................................................................... passim

26

27

28

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1

NOTICE OF MOTION AND MOTION

2

PLEASE TAKE NOTICE that on April 5, 2017, at 2:00 p.m., or as soon thereafter as counsel

3 may be heard, in Courtroom 2 of the United States Courthouse located at 455 Golden Gate Avenue,

4 San Francisco, California 94102, Plaintiff-Intervenor Young Women’s Christian Association of Silicon

5 Valley (“Plaintiff-Intervenor” or the “YWCA Silicon Valley”) will, and hereby does, move pursuant to

6 Federal Rule of Civil Procedure 24(b) for an order permitting it to intervene as a plaintiff in this action

7 and to join in Plaintiff Santa Clara County’s (“Plaintiff” or “Santa Clara”) Motion for Preliminary

8 Injunction (ECF No. 26). Plaintiff-Intervenor so moves on the ground that it is entitled to permissive

9 intervention pursuant to Federal Rule of Civil Procedure 24(b)(1)(B). This motion is supported by the

10 accompanying Memorandum of Points and Authorities, all concurrently filed pleadings and papers (the

11 Complaint in Intervention, the Joinder of Plaintiff-Intervenor YWCA Silicon Valley in County of Santa

12 Clara’s Motion for a Preliminary Injunction, and the Declaration of Anne Marie Pate in Support of

13 YWCA Silicon Valley’s Joinder), any oral argument this Court may allow, and any other matter of

14 which this Court takes notice.

15

MEMORANDUM OF POINTS AND AUTHORITIES

16 I. INTRODUCTION

17

Executive Order 13768, “Enhancing Public Safety in the Interior of the United States” (the

18 “Executive Order”), issued by Defendant President Donald J. Trump on January 25, 2017, constitutes a

19 broad and profoundly unconstitutional assertion of presidential power. With the Executive Order, the

20 President claims for himself and his executive officers the plenary power to strip all federal funding

21 from any state, county, or city they deem a “sanctuary jurisdiction.” But control over spending belongs

22 to Congress, not the executive, and even Congress cannot condition receipt of federal funding on state

23 or local enforcement of a federal regulatory scheme as contemplated by the Executive Order.

24

This lawsuit (the “Main Action”), brought by Santa Clara County, seeks a declaration that key

25 provisions of the Executive Order are unconstitutional and an injunction against enforcement of those

26

27

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1 provisions.1 In particular, the complaint in the Main Action alleges several reasons why Santa Clara

2 credibly believes that it will be deemed a “sanctuary jurisdiction” by the federal government and will

3 be adversely affected by the threatened withholding of billions of dollars per year in federal funding.

4

Plaintiff-Intervenor YWCA Silicon Valley shares many of these concerns. As a nonprofit

5 corporation, YWCA Silicon Valley depends on federal funding to deliver critically important services

6 to many of the most vulnerable women in Santa Clara County. Through a 24-hour support line,

7 affordable child care centers, and emergency shelter, among other programs and facilities, YWCA

8 Silicon Valley is deeply engaged in improving the well-being of the local community. Victims of

9 domestic violence, sexual assault, and human trafficking depend on the services provided by YWCA

10 Silicon Valley to escape life-threatening conditions and to achieve independence and safety.

11

Like Santa Clara, therefore, YWCA Silicon Valley is directly and immediately damaged by the

12 Executive Order. Because YWCA Silicon Valley receives federal funds through Santa Clara County,

13 municipalities within Santa Clara County, and/or the State of California, (1) it is threatened with the

14 denial of previously promised federal funds; (2) it is threatened with the loss of future federal funds;

15 and (3) its ability to plan and budget for the urgent needs of its clients has been thrown into disarray.

16

In addition to these common interests, YWCA Silicon Valley also claims distinct injuries from

17 Santa Clara, specifically: (4) its clients will be deprived of services and resources that depend on

18 federal funding endangered by the Executive Order; (5) unlike Santa Clara, which may possess the

19 ability to work with the federal government to eliminate or modify any order cutting off federal

20 funding, YWCA Silicon Valley is completely at the mercy of outside actors to receive its federal

21 funding; and (6) depending on the federal government’s interpretation of “sanctuary jurisdiction,”

22 YWCA Silicon Valley could stand to lose additional streams of federal money beyond those received

23 through Santa Clara, namely the grants it receives through the State of California and municipalities

24 such as the city of San Jose.

25

1 The Main Action has been related to City and County of San Francisco v. Trump, Case No. 5:17-

26 cv-00574, in which the City and County of San Francisco (“San Francisco”) asserts similar but not identical claims. For purposes of this motion, Plaintiff-Intervenor seeks to intervene only in the Santa

27 Clara action.

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1

For these reasons, YWCA Silicon Valley’s intervention will add important dimensions to the

2 Main Action, without unduly complicating or multiplying the issues presented by Santa Clara.

3 Accordingly, YWCA Silicon Valley’s Complaint in Intervention “shares with the main action a

4 common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). YWCA Silicon Valley should therefore

5 be permitted to intervene in this action and to join in Santa Clara’s preliminary injunction motion.

6 II. STATEMENT OF FACTS

7

Plaintiff-Intervenor YWCA Silicon Valley is a nonprofit corporation located in San Jose,

8 California. ¶ 18.2 Its mission is to eliminate racism and empower women, and it accomplishes this

9 mission through a variety of programs that assist women, including women who have been victims of

10 sexual assault, domestic violence, and human trafficking. Id. For the fiscal year ending June 30, 2017,

11 it has an annual budgeted income of approximately $ 7.07 million, of which at least $2.656 million, or

12 37.5%, consists of federal funds. ¶ 30. These funds are received through multiple distinct channels.

13 Some are received directly from the federal government, but the majority are received as flow-through

14 funding through grants that are originally received by either the State of California, the County of Santa

15 Clara, the City of San Jose, or other cities within Santa Clara County, and then re-granted by these

16 jurisdictions, or administered by them. Id. In many instances, these funds are received in the form of

17 reimbursements for funds that YWCA Silicon Valley has spent in compliance with the terms of a grant.

18 ¶ 31.

19

YWCA Silicon Valley is immediately and severely threatened by the potential disruption of

20 federal funding that is the subject of Santa Clara’s Complaint, namely, the threat that if the County of

21 Santa Clara or other jurisdictions are determined by the Executive Branch to be “sanctuary

22 jurisdictions” and are barred from receiving federal funding, then YWCA Silicon Valley stands to be

23 deprived of a significant portion of its operating budget. ¶ 31. Under the threat of such loss, YWCA

24 Silicon Valley cannot fulfill its mission because it cannot create plans for future service delivery and

25 cannot hire or retain the personnel necessary to deliver such services. ¶ 32. Because of this threat,

26 2 Unless otherwise noted, all “¶” citations refer to Plaintiff-Intervenor’s Complaint in Intervention, 27 filed concurrently herewith.

28 3
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1 YWCA Silicon Valley plans to institute a hiring freeze for potentially affected programming in the

2 upcoming fiscal year. Id.

3

At the same time, YWCA Silicon Valley’s claims implicate practical concerns that Santa Clara

4 alone cannot fully present to the Court. First, unlike Santa Clara, YWCA Silicon Valley has to be

5 concerned about federal funds that flow from multiple separate jurisdictions: California, Santa Clara,

6 and municipalities such as the city of San Jose. If any one of these flows is cut off because a

7 jurisdiction is designated a “sanctuary jurisdiction,” the effect on YWCA Silicon Valley will be severe.

8 ¶¶ 30-40. Second, unlike Santa Clara, the funding threat to YWCA Silicon Valley has nothing

9 whatsoever to do with YWCA Silicon Valley’s own policies. In effect, YWCA Silicon Valley is

10 threatened, effectively as “collateral damage,” with a cutoff of funding resulting from one

11 governmental jurisdiction coercing and threatening another. ¶ 38. Third, YWCA Silicon Valley has no

12 ability to control or affect the circumstances or determinations that will result in a cutoff of federal

13 funding. It cannot effectively interact with the Executive Branch officials whose stated disagreement is

14 with policies promulgated by state or local governments.

15

Defendants in the Complaint in Intervention are the same parties named in Santa Clara’s

16 Complaint: namely, President Donald J. Trump and officers in the Executive Branch of the federal

17 government responsible for implementing the provisions of the Executive Order. Compare ¶¶ 19-22

18 with Santa Clara Complaint ¶¶ 20-24.

19

The legal claims asserted by YWCA Silicon Valley are encompassed by the same causes of

20 action asserted by Santa Clara in the Main Action. Count I of the Complaint in Intervention asserts a

21 claim for breach of the separation-of-powers provisions of Articles I and II of the Constitution.

22 Compare Santa Clara Complaint, Count 1. Count II asserts a claim for violation of the spending power

23 vested in Congress under Article I of the Constitution. Compare Santa Clara Complaint, Count 4.

24 Count III asserts a claim for violation of the Due Process Clause of the Fifth Amendment. Compare

25 Santa Clara Complaint, Count 3.

26

27

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1 III. LEGAL STANDARD

2

Under Federal Rule of Civil Procedure 24(b)(1)(B), the Court may permit intervention by any

3 party who “has a claim or defense that shares with the Main Action a common question of law or fact.”

4 Courts in the Ninth Circuit require three threshold elements in order to grant a motion for permissive

5 intervention: (1) an independent ground for jurisdiction; (2) a timely motion; and (3) a common

6 question of law and fact between the movant’s claim or defense and the Main Action. See, e.g., Blum v.

7 Merrill Lynch Pierce Fenner & Smith, Inc., 712 F.3d 1349, 1353 (9th Cir. 2013) (citing Beckman 8 Indus. v. Int’l Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992)).3

9

Once these threshold requirements are satisfied, the Court may grant permissive intervention in

10 its discretion. Id. “In exercising its discretion, the court must consider whether the intervention will

11 unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P. 24(b)(3);

12 accord Blum, 712 F.3d at 1354. See also, e.g., ACLU of N. Cal. v. Burwell, No. 16-cv-03539-LB, 2017

13 U.S. Dist. LEXIS 17389, at *7-8 (N.D. Cal. Feb. 7, 2017) (granting permissive intervention because

14 the intervening party’s “participation [would have] contribute[d] to the development of the factual and

15 legal landscape” of the case and would not have prejudiced the existing parties’ rights); Ctr. for

16 Biological Diversity v. United States DOI, No. 15-cv-00658-JCS, 2015 U.S. Dist. LEXIS 82201, at

17 *13-14 (N.D. Cal. June 24, 2015) (granting permissive intervention after finding that none of the

18 existing parties’ rights would have been prejudiced, as evidenced by neither party objecting to the

19 motion to intervene); In re Grupo Unidos Por El Canal S.A., No. 14-mc-80277-JST (DMR), 2015 U.S.

20 Dist. LEXIS 52358, at *15-17 (N.D. Cal. Apr. 21, 2015) (existing parties would not be prejudiced by

21 permissive intervention because the intervenor would not bring any new claims into the dispute and

22 additional motion practice is “alone insufficient to show undue delay”).

23

24
25 3 In addition, a motion to intervene “must state the grounds for intervention,” and must “be accompanied by a pleading that sets out the claim or defense for which intervention is sought.” Fed. R.
26 Civ. P. 24(c). The court is required to accept as true the non-conclusory allegations made in support of the intervention motion. Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810, 819-20 (9th Cir.
27 2001).

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1 IV. THE COURT SHOULD PERMIT YWCA SILICON VALLEY TO INTERVENE IN THIS LITIGATION, PURSUANT TO FED. R. CIV. P. 24(b)(1)(B).
2

3 YWCA Silicon Valley seeks to intervene in the infancy of this litigation because its financial

4 stability and continued operation are threatened by enforcement of the Executive Order. YWCA

5 Silicon Valley stands to lose a significant portion of its operating budget, which will deprive its

6 clients—some of the most vulnerable members of the local population—of public services critical to

7 curtailing domestic violence, human trafficking, sexual assault, and homelessness. YWCA Silicon

8 Valley asserts legal claims already presented in the Main Action, and seeks the same relief—namely, a

9 declaration that the Executive Order is unconstitutional and an injunction against its enforcement. For

10 these reasons, intervention presents no jurisdictional concerns and poses no risk of delaying the Main

11 Action or prejudicing the original parties to the case. In addition, YWCA Silicon Valley brings its own

12 unique perspective to this case as a private entity and nongovernmental end-recipient of public funds

13 that is deeply enmeshed in the local community. For all these reasons, the Court should exercise its

14 discretion to permit YWCA Silicon Valley to intervene and participate as a plaintiff in this case.

15

A. YWCA Silicon Valley Satisfies All of the Requirements for Permissive Intervention.

16

1. YWCA Silicon Valley has an Independent Ground for Jurisdiction.

17

With respect to the “independent ground for jurisdiction” requirement, there are no

18 jurisdictional concerns where, as here, an intervenor in a federal question case brings no new claims.

19 Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 844 (9th Cir. 2011); accord Burwell,

20 2017 U.S. Dist. LEXIS 17389, at *7-8. In its Complaint in Intervention, YWCA Silicon Valley raises

21 a subset of the federal causes of action asserted by Santa Clara in the Main Action—namely, claims

22 under the separation-of-powers and spending powers provisions of the Constitution and a claim that the

23 Executive Order violates procedural due process rights under the Fifth Amendment. YWCA Silicon

24 Valley does not assert any additional or non-federal claims. Accordingly, the Court may properly

25 exercise jurisdiction over the claims asserted in the Complaint in Intervention.

26

27

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1

2. The Motion to Intervene is Timely.

2

The Ninth Circuit has identified three factors relevant to determining whether a motion is

3 timely: “(1) the stage of the proceeding at which an applicant seeks to intervene; (2) the prejudice to

4 other parties; and (3) the reason for and length of any delay.” Peruta v. Cty. of San Diego, 824 F.3d

5 919, 940 (9th Cir. 2016) (en banc) (citation omitted). Moving to intervene “at an early stage of the

6 proceedings,” and when “intervention would not cause disruption or delay in the proceedings,” “are

7 traditional features of a timely motion.” Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d

8 893, 897 (9th Cir. 2011) (citing Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 836 (9th Cir.

9 1996)); see also Nikon Corp. v. ASM Lithography B.V., 222 F.R.D. 647, 649 (N.D. Cal. 2004) (motion

10 timely when filed in “a period well before the court has addressed any of the parties’ many anticipated

11 dispositive motions” and where “the real substance of this litigation has not been engaged”).

12

Just weeks into the Main Action, this motion is timely. The Executive Order was issued on

13 January 25, 2017 (¶ 5), Santa Clara filed the complaint in the Main Action on February 3, 2017 (ECF

14 No. 1), and Santa Clara filed its Motion for Preliminary Injunction on February 23, 2017 (ECF No. 26).

15 Santa Clara’s Motion for Preliminary Injunction is currently set for hearing on April 5, 2017 (id.); this

16 motion and Plaintiff-Intervenor’s Joinder in Motion for Preliminary Injunction are being filed and

17 served so as to give all parties the 35 days’ notice required by Civ. L.R. 7-2(a). Accordingly,

18 intervention would not delay any proceedings or the determination of any issues of law or fact in the

19 case and it will not prejudice any party. See, e.g., Burwell, 2017 U.S. Dist. LEXIS 17389, at *7 (“The

20 motion is timely because it was filed [six months after the original plaintiff filed its complaint,] less

21 than a month after the court’s order on the government’s motion to dismiss and before the government

22 answered the complaint.”); Pest Comm. v. Miller, 648 F. Supp. 2d 1202, 1212 (D. Nev. 2009) (“[T]he

23 Motion to Intervene is timely because it was filed during an early stage of the proceedings and because

24 the Proposed Intervenors concurrently filed their Opposition and Countermotion to avoid any delay or

25 prejudice to the other parties.”), aff’d, 626 F.3d 1097 (9th Cir. 2010).

26

27

28 7
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1

3. YWCA Silicon Valley’s Claims Share Common Questions of Law and Fact

with the Main Action. 2

3

“In order to qualify for permissive intervention, a potential intervenor need only show that it

4 has a claim or defense that shares with the main action a common question of law or fact.” Grupo

5 Unidos por el Canal, 2015 U.S. Dist. LEXIS 52358, at *15 (internal quotation marks omitted) (citing

6 United States v. City of Los Angeles, 288 F.3d 391, 404 (9th Cir. 2002)) (granting permissive

7 intervention where intervenor’s claims seeking to quash subpoena “indisputably” shared common

8 questions of law and fact with the underlying subpoena application).

9

The questions of law and fact in the complaint filed by Santa Clara in the Main Action and the

10 Complaint in Intervention largely overlap. As explained above, YWCA Silicon Valley asserts a subset

11 of Santa Clara’s claims: both complaints attack the Executive Order on the grounds that (1) it

12 impermissibly appropriates to the Executive Branch powers that the Constitution reserves solely to

13 Congress; and (2) it deprives the complaining parties of procedural due process. The Complaint in

14 Intervention does not advance a single claim that is not addressed in the complaint in the Main Action.

15

The factual issues raised by the two complaints, while not identical, also substantially overlap.

16 The Executive Order threatens YWCA Silicon Valley, like Santa Clara, with an unwarranted

17 deprivation of federal funds constituting a substantial portion of their operating budget. Compare Santa

18 Clara Complaint ¶¶ 25-45, with Complaint in Intervention, ¶¶ 30. Likewise, both complaints allege that

19 this threat makes it impossible to budget, to hire, and to deliver needed services that have already been

20 approved under federal grants. Compare Santa Clara Complaint ¶¶ 46-49, with Complaint in

21 Intervention ¶¶ 31-32, 40. The claims asserted by Santa Clara and YWCA Silicon Valley share the

22 same source: the Executive Order. In addition, because YWCA Silicon Valley receives some of its

23 federal funding through the state and localities that have policies limiting participation in immigration

24 enforcement, Santa Clara and YWCA Silicon Valley likewise share the same mechanism of injury—

25 the likely designation of Santa Clara or other government entities that provide funding to YWCA as

26 “sanctuary jurisdictions,” and the resulting denial of federal funds. Finally, both Santa Clara and

27 YWCA Silicon Valley seek the same relief: a declaration on the unconstitutionality of the Executive

28 8
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1 Order and an injunction against its implementation and enforcement. The existence of such extensive

2 common factual and legal issues between the two complaints is more than sufficient to satisfy this

3 requirement. See, e.g., Nikon, 222 F.R.D. at 651 (common questions of law and fact exist where

4 applicant “seeks precisely the same relief that [defendant] does”).

5

B. The Court Should Exercise its Discretion to Grant Permissive Intervention.

6

Where these threshold factors are satisfied, the Court has discretion to grant permissive

7 intervention unless intervention would unduly delay or prejudice the adjudication of the original

8 parties’ rights. Fed. R. Civ. P. 24(b)(3). Intervention by YWCA Silicon Valley does not present any

9 risk of delaying the proceedings or prejudicing either party. Moreover, intervention by YWCA Silicon

10 Valley will contribute distinct perspectives to Santa Clara’s claims, which in turn will assist the Court

11 in its final resolution of this case. All three of these factors favor permissive intervention by YWCA

12 Silicon Valley.

13

First, there is no reasonable possibility of prejudicial delay in this case. Because the motion to

14 intervene and YWCA Silicon Valley’s Joinder in Santa Clara’s Motion for Preliminary Injunction are

15 set for hearing on the same day as Santa Clara’s Motion for Preliminary Injunction, this motion does

16 not result in any delay and there are no previously decided issues to “re-litigate.” See, e.g., Grupo

17 Unidos por el Canal, 2015 U.S. Dist. LEXIS 52358, at *15-16 (no prejudice where intervenor would

18 not have brought any new claims into the dispute); Citizens for Balanced Use, 647 F.3d at 897 (no

19 prejudice from grant of intervention sought “less than three months after the complaint was filed and

20 less than two weeks after the [defendant] filed its answer to the complaint”).

21

Second, intervention is particularly appropriate where the original party may be “unable or

22 unwilling to pursue vigorously all available arguments in support of the [intervenor’s] interest.”

23 Citizens for Balanced Use, 647 F.3d at 898-900 (reversing denial of intervention where, despite sharing

24 an ultimate objective, the original defendant might not adequately represent the applicant’s interests).

25 This factor is satisfied where, as here, YWCA Silicon Valley and Santa Clara “do not have coextensive

26 interests and serve different, if overlapping, constituencies.” PG&E v. Lynch, 216 F. Supp. 2d 1016,

27 1025 (N.D. Cal. 2002); see also Californians for Safe & Competitive Dump Truck Transp. v.

28 9
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1 Mendonca, 152 F.3d 1184, 1190 (9th Cir. 1998) (affirming intervention by a labor union seeking to

2 defend application of wage law where original defendant may not have adequately represented the

3 union’s interests); Berg, 268 F.3d at 823 (“Just as the City could not successfully negotiate the Plans

4 without some private sector participation from Applicants, so too the City in this case cannot be

5 expected successfully to safeguard Applicants’ legally protectable interests.”).

6

While the Complaint in Intervention shares with the Main Action several of the same legal

7 causes of action and many of the same factual underpinnings (in addition to seeking the same relief), as

8 explained above, YWCA Silicon Valley is differently situated from the County of Santa Clara in

9 several material ways. First, it is exposed to damage from threats to three separate streams of federal

10 funding, namely “flow through” grants of federal dollars by the State of California and the City of San

11 Jose in addition to funds provided by Santa Clara. Even if Santa Clara’s claims were somehow

12 resolved, the threat to YWCA Silicon Valley would remain. Second, YWCA Silicon Valley is

13 effectively “collateral damage,” harmed by one government’s attempt to threaten and coerce another

14 government, completely unrelated to any policy or pronouncement that YWCA Silicon Valley has

15 made. Third, unlike Santa Clara and the other governmental jurisdictions, YWCA Silicon Valley has

16 no ability to take action or enter into discussions with the federal government in order to modify or

17 avoid an impending “sanctuary” designation. Under these circumstances, YWCA Silicon Valley’s

18 participation in the Main Action is vital. Intervention should be permitted to enable YWCA Silicon

19 Valley to protect its distinct interests in challenging the Executive Order.

20

Third, intervention is appropriate where the proposed intervenor “would likely offer important

21 elements to the proceedings that the existing parties would likely neglect.” Berg, 268 F.3d at 822; see

22 also Burwell, 2017 U.S. Dist. LEXIS 17389, at *7-8 (granting motion of United States Conference of

23 Catholic Bishop’s motion to intervene in Establishment Clause challenge where intervention “will

24 contribute to the development of the factual and legal landscape”). Given its close ties to some of the

25 most vulnerable members of Silicon Valley community, YWCA Silicon Valley stands in a position to

26 offer important perspectives for the Court’s consideration. This is particularly so with respect to the

27 pending motion for preliminary injunctive relief. YWCA Silicon Valley and its clients face different

28 10
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1 risks of irreparable harm and hardship than those Santa Clara has established if the Executive Order is

2 enforced. YWCA Silicon Valley also offers additional compelling equitable considerations directly

3 relevant to the public’s interest in issuance of injunctive relief.

4

Ulitmately, under the Executive Order, YWCA Silicon Valley is threatened with the loss of

5 federal funding for critical services, including assistance for victims of rape and domestic violence, for

6 no other reason than that the President disagrees with unrelated policy pronoucements of other

7 governmental jurisdictions. YWCA Silicon Valley has an independent right to assert that the Executive

8 Order is unconstitutional, and its disctinctive voice will assist the Court and the parties in framing the

9 issues at stake in this litigation.

10 V. CONCLUSION

11

Because it meets all of the requirements of Federal Rule of Civil Procedure 24(b)(1)(B), and

12 because its participation will materially assist the resolution of issues in this case, Plaintiff-Intervenor

13 YWCA Silicon Valley respectfully requests that the Court grant its motion for permissive intervention.

14
15 DATED: March 1 , 2017
16
17

Respectfully submitted,
AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.

18 19 20 21 22 DATED: March 1, 2017 23

By: s/ William S. Freeman WILLIAM S. FREEMAN
Attorneys for Plaintiff-Intervenor Young Women’s Christian Association Of Silicon Valley
WILSON SONSINI GOODRICH & ROSATI, PROFESSIONAL CORPORATION

24

25

By: s/ Catherine Moreno

CATHERINE MORENO

26

Attorneys for Plaintiff-Intervenor

27

Young Women’s Christian Association

Of Silicon Valley

28 11

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Case 3:17-cv-00574-WHO Document 43-1 Filed 03/01/17 Page 1 of 2

1

2

3

4

5

6

7

8

9

10

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

SAN JOSE DIVISION 13

14

15 COUNTY OF SANTA CLARA,

16

Plaintiff,

17

v.

18 DONALD J. TRUMP, President of the United
19 States of America, JOHN F. KELLY, in his official capacity as Secretary of the United
20 States Department of Homeland Security, JEFFERSON B. SESSIONS, in his official capacity
21 as Attorney General of the United States, JOHN 22 MICHAEL “MICK” MULVANEY, in his offi-
cial capacity as Director of the Office of Man23 agement and Budget, and DOES 1-50,

CASE NO.: 17-cv-00574

[PROPOSED] ORDER GRANTING MOTION FOR PERMISSIVE INTERVENTION OF YOUNG WOMEN’S CHRISTIAN ASSOCIATION OF SILICON VALLEY

Date: Time: Dept.: Before:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

24

Defendants.

25

26

27

28
[PROPOSED] ORDER GRANTING YWCA SILICON VALLEY’S MOTION TO INTERVENE
610314280.1

CASE NO. 17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 43-1 Filed 03/01/17 Page 2 of 2

1

[PROPOSED] ORDER

2

IT IS HEREBY ORDERED that the Motion of the Young Women’s Christian

3 Association of Silicon Valley (YWCA Silicon Valley) to intervene as a plaintiff in this action

4 and to join in Plaintiff Santa Clara County’s Motion for Preliminary Injunction (ECF No. 26) is

5 GRANTED. After consideration of the briefs and arguments of counsel and all other matters

6 presented, the Court concludes that Movant has met the standards for permissive intervention

7 under Federal Rule of Civil Procedure Rule 24(b)(1)(B).

8

9

10

IT IS SO ORDERED.

11

12

DATED _________________, 2017

13

__________________________________

14

Hon. William H. Orrick

15

UNITED STATES DISTRICT JUDGE

16

17

18

19

20

21

22

23

24

25

26

27

28

[PROPOSED] ORDER GRANTING YWCA SILICON

1

VALLEY’S MOTION TO INTERVENE

610314280.1

CASE NO. 17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 43-2 Filed 03/01/17 Page 1 of 15

1 JULIA HARUMI MASS, SBN 189649 WILLIAM S. FREEMAN, SBN 82002
2 ANGÉLICA SALCEDA, SBN 296152 AMERICAN CIVIL LIBERTIES UNION
3 FOUNDATION OF NORTHERN CALIFORNIA, INC.
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
6 Email: jmass@aclunc.org
Email: wfreeman@aclunc.org 7 Email: asalceda@aclunc.org
8

CATHERINE MORENO, SBN 264517 LAUREN GALLO WHITE, SBN 309075 RALITZA DINEVA, SBN 305974 AVA MILLER, SBN 312012 WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION 650 Page Mill Road Palo Alto, California 94306 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Email: cmoreno@wsgr.com Email: lwhite@wsgr.com Email: rdineva@wsgr.com Email: armiller@wsgr.com

9 Attorneys for Plaintiff-Intervenor Young Women’s Christian Association
10 Of Silicon Valley

11 [SEE NEXT PAGE FOR ADDITIONAL COUNSEL]

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

SAN JOSE DIVISION

15 16 COUNTY OF SANTA CLARA,

17

Plaintiffs,

18

v.

19 DONALD J. TRUMP, President of the United

20 States of America, JOHN F. KELLY, in his official capacity as Secretary of the United States

21 Department of Homeland Security, JEFFERSON

B. SESSIONS, in his official capacity as 22 Attorney General of the United States, JOHN

23

MICHAEL “MICK” MULVANEY, in his official capacity as Director of the Office of

24 Management and Budget, and DOES 1-50,

CASE NO.: 17-cv-00574
COMPLAINT IN INTERVENTION OF PLAINTIFF YOUNG WOMEN’S CHRISTIAN ASSOCIATION OF SILICON VALLEY

25

Defendants.

26

27

28

COMPLAINT IN INTERVENTION CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43-2 Filed 03/01/17 Page 2 of 15
1 PETER J. ELIASBERG, SBN 189110 JENNIFER PASQUARELLA, SBN 263241
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA
3 1313 West 8th Street Los Angeles, CA 90017
4 Telephone: (213) 977-5211 Facsimile: (213) 977-5297
5 Email: peliasberg@aclu-sc.org Email: jpasquarella@aclu-sc.org
6 DAVID LOY, SBN 229235
7 ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES
8 P.O. Box 87131 San Diego, CA 92138-7131
9 Telephone: (619) 232-2121 Facsimile: (619) 232-0036
10 Email: davidloy@aclusandiego.org
11 OMAR C. JADWAT* ANDRE I. SEGURA, SBN 247681
12 SPENCER AMDUR* AMERICAN CIVIL LIBERTIES UNION
13 FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT
14 125 Broad Street, 18th Floor New York, NY 10004
15 Telephone: (212) 549-2600 Facsimile: (212) 549-2654
16 Email: ojadwat@aclu.org Email: asegura@aclu.org
17 Email: samdur@aclu.org
18 CODY H. WOFSY, SBN 294179 AMERICAN CIVIL LIBERTIES UNION
19 FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT
20 39 Drumm Street San Francisco, CA 94111
21 Telephone: (415) 343-0770 Facsimile: (212) 395-0950
22 Email: cwofsy@aclu.org
23 *Pro Hac Vice Forthcoming
24
25
26
27
28
COMPLAINT IN INTERVENTION CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43-2 Filed 03/01/17 Page 3 of 15

1

Pursuant to Federal Rule of Civil Procedure 24(b), Plaintiff-Intervenor Young Women’s

2 Christian Association of Silicon Valley (“YWCA Silicon Valley”), for its Complaint in Intervention,

3 alleges as follows:

4

1.

YWCA Silicon Valley is a nonprofit organization committed to providing a broad array

5 of critically needed services to women in Santa Clara County, including many of the poorest and most

6 vulnerable women in the County. Among its services, YWCA Silicon Valley offers vital support for

7 victims of domestic violence, sexual assault and human trafficking, and provides advocates for victims

8 of sexual assault as they interact with the criminal justice system.

9

2.

The provision of these services by YWCA Silicon Valley has received broad bipartisan

10 support for many years. Yet YWCA Silicon Valley is now faced with severe threats to its

11 fundamental core services, and its ability to continue to carry out its mission, as the result of an

12 unconstitutional Executive Order promulgated by the President of the United States. YWCA Silicon

13 Valley brings this action to preserve its ability to continue to serve the women of Santa Clara County.

14

3.

As set forth in its Complaint in this action (“Complaint”), Plaintiff Santa Clara County

15 (“Santa Clara”) has adopted carefully tailored policies and practices regarding interactions with U.S.

16 Immigration and Customs Enforcement (“ICE”) and the separation between County services and the

17 enforcement of federal civil immigration law. Those policies draw clear lines between local criminal

18 law enforcement, as well as other County services, and the enforcement of federal civil immigration

19 law. These policies are designed to promote greater trust between immigrant communities and local

20 authorities, greater willingness of vulnerable members of immigrant communities to report crimes to

21 the police and seek out other city and county services, and a resulting improvement in the safety and

22 well-being of the community.

23

4.

But Santa Clara, like other jurisdictions that have adopted similar policies, is now under

24 assault. The President, in violation of the most fundamental structural protections of the Constitution,

25 is attempting to frighten and coerce Santa Clara and other jurisdictions into unwanted participation in

26 federal immigration enforcement.

27

28 1
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Case 3:17-cv-00574-WHO Document 43-2 Filed 03/01/17 Page 4 of 15

1

5.

On January 25, 2017, President Trump issued Executive Order 13768, entitled

2 “Enhancing Public Safety in the Interior of the United States” (the “Executive Order”). In Section 9 of

3 the Executive Order, President Trump claimed for the Executive Branch unfettered power to declare

4 certain cities, counties, and states to be “sanctuary jurisdictions” and to cut off all federal funding for

5 those jurisdictions.

6

6.

The Executive Order represents an unconstitutional assertion of unilateral presidential

7 power. In our constitutional democracy, the President does not have the unilateral power to deny

8 federal funds to those jurisdictions who do not accede to his preferred methods of immigration

9 enforcement. Yet the President has claimed for himself and his subordinates alone the power to deny

10 state, county and municipal governments throughout the country—not to mention the inhabitants of

11 those jurisdictions—the benefit of billions of dollars in federal dollars previously appropriated by

12 Congress, for the improper and unconstitutional purpose of coercing those jurisdictions into becoming

13 enforcement agents of the President’s preferred immigration policies. This threat to terminate all

14 federal funding exerts intolerable pressure on those jurisdictions to bow to the wishes of the Executive

15 Branch and become involuntary partners in federal immigration enforcement.

16

7.

The damage caused by the Executive Order is not limited to the governmental

17 jurisdictions that are threatened with a cutoff of federal funds. Like many other nonprofit social

18 service agencies, YWCA Silicon Valley receives a substantial portion of its operating budget in the

19 form of federal funds, much of which come in the form of “flow through” funds originally granted to

20 states, counties, and cities, and then re-granted or administered by those jurisdictions. Other federal

21 funds come to YWCA Silicon Valley under direct contracts with federal agencies as a result of grants

22 awarded by the agency based on recommendations from one of these jurisdictions. A cutoff of federal

23 funds to any of these jurisdictions would devastate YWCA Silicon Valley’s ability to provide services

24 to its clients.

25

8.

Plaintiff-Intervenor YWCA Silicon Valley here asserts claims that share common

26 questions of law and fact with the claims set forth in the Complaint filed by Santa Clara in the main

27 action herein. Like Santa Clara, Plaintiff-Intervenor submits that an injunction declaring that this

28 2
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Case 3:17-cv-00574-WHO Document 43-2 Filed 03/01/17 Page 5 of 15

1 attempted exercise of power is unconstitutional is the appropriate means of addressing this

2 unwarranted action. Plaintiff-Intervenor fully supports Santa Clara’s claims, and joins in Santa Clara’s

3 request for preliminary and permanent injunctive relief.

4

9.

Plaintiff-Intervenor, however, also has interests that are distinct from those presented by

5 Santa Clara. It is to protect these interests, and because it believes that presentation of these interests

6 will assist the Court and the parties without creating undue burdens in the management of this

7 litigation, that Plaintiff-Intervenor seeks permissive intervention in this case.

8

JURISDICTION AND VENUE

9

10. This Court has federal question jurisdiction under 28 U.S.C. § 1331 because this action

10 arises under the Constitution and laws of the United States. Sovereign immunity against the claims

11 pleaded in this action has been waived pursuant to 5 U.S.C. § 702.

12

11. Venue is proper in this District under 28 U.S.C. § 1391(e) because Defendants are

13 officers and employees of the United States or any agency thereof acting in their official capacities,

14 Plaintiff-Intervenor has its principal place of business in this District, and a substantial part of the

15 events or omissions giving rise to this action are occurring in this District.

16

12. The Court is authorized to award the requested declaratory and injunctive relief pursuant

17 to 28 U.S.C. §§ 2201-2202 and Federal Rule of Civil Procedure 65.

18

13. Plaintiff-Intervenor satisfies the requirements for permissive intervention set forth in

19 Federal Rule of Civil Procedure 24(b)(1)(B) because it has claims that share common questions of law

20 or fact with the main action.

21

14. This Complaint in Intervention will not enlarge the jurisdiction of this Court, since

22 Plaintiff-Intervenor is bringing no new claims in addition to the federal question claims that are

23 already presented in the main action.

24

15. This Complaint in Intervention was timely filed. Plaintiff-Intervenor has proceeded

25 diligently in asserting its interests by means of this Complaint in Intervention. The case is in a

26 preliminary stage; no discovery has taken place and no substantive determinations have yet been made

27 in the main action.

28 3
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1

16. Permitting Plaintiff-Intervenor to intervene in this action will not unduly prejudice or

2 burden any existing party. Plaintiff-Intervenor does not seek to delay consideration of the motion for

3 preliminary injunction filed by Santa Clara on February 24, 2017, and currently set for hearing on

4 April 5, 2017. Plaintiff-Intervenor seeks to participate in proceedings on that motion by joinder to

5 present its distinct facts, without presentation of repetitive or significantly distinct legal arguments.

6

INTRADISTRICT ASSIGNMENT

7

17. Pursuant to Civil L.R. 3-2(c), this case would normally be appropriately assigned to the

8 San Jose Division of this Court, because the action arises in Santa Clara County. However, by reason

9 of this Court’s Related Case Order Court dated February 10, 2017 in Case No. 3:17-cv-00485, City

10 and County of San Francisco v. Donald J. Trump, et al. (the “San Francisco Case”), this case has been

11 related to the San Francisco Case, which is currently pending in the San Francisco Division of this

12 Court.

13

THE PARTIES

14

18. Plaintiff-Intervenor YWCA Silicon Valley is a nonprofit corporation organized under

15 the California Non-profit Public Benefit Corporation Law, having its principal place of business in San

16 Jose, California. Founded in 1905, it seeks to eliminate racism and empower women through a variety

17 of programs, including assistance for women who have been victims of sexual assault, domestic

18 violence, and human trafficking. Its services include rapid rehousing, training and counseling. In the

19 current fiscal year (ending June 30, 2017), it expects to provide services to at least 18,000 women,

20 children, and teens throughout Santa Clara County. As set forth more fully below, federal funding,

21 much of which is received as flow-through funding through the State of California, Santa Clara

22 County, and/or various cities within Santa Clara County, is critical to its ability to provide these

23 services.

24

19. Defendant Donald J. Trump is the President of the United States. He is sued in his

25 official capacity.

26

20. Defendant John F. Kelly is the Secretary of the U.S. Department of Homeland Security.

27 He is sued in his official capacity.

28 4
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1

21. Defendant Jefferson Sessions is the Attorney General of the United States. He is sued in

2 his official capacity.

3

22. Defendant John Michael “Mick” Mulvaney is the Director of the Office of Management

4 and Budget. He is sued in his official capacity.

5

23. The true names and capacities of Defendants identified as Does 1-50 are unknown to

6 Plaintiff-Intervenor. Plaintiff-Intervenor will amend this Complaint in Intervention to insert the true

7 names and capacities of those fictitiously named defendants when they are ascertained.

8

FACTUAL ALLEGATIONS

9 The Executive Order and Certain of its Constitutional Defects

10

24. As set forth in more detail in the Complaint filed by Santa Clara in the main action, the

11 Executive Order contains numerous provisions that violate the Constitution or are otherwise unlawful

12 for a variety of reasons. This Complaint in Intervention focuses solely on the manner in which certain

13 of those provisions threaten direct harm to Plaintiff-Intervenor YWCA Silicon Valley.

14

25. Section 9 of the Executive Order purports to empower subordinate executive officers to

15 declare any city, county, or state a “sanctuary jurisdiction,” and to “ensure” that such jurisdictions are

16 “not eligible to receive Federal grants.” That section states that “[t]he Secretary [of Homeland

17 Security] has the authority to designate, in his discretion and to the extent consistent with law, a

18 jurisdiction as a sanctuary jurisdiction.” Whereas one sentence in Section 9 states that “jurisdictions

19 that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive

20 federal grants,” another sentence provides, “The Attorney General shall take appropriate enforcement 21 action against any entity that violates 8 U.S.C. 1373….” 1

22

26. The Executive Order does not establish or contemplate any notice to a party affected by

23 a denial or termination of funding pursuant to its provisions, and does not establish or contemplate that

24 such a party will be given any opportunity to be heard, much less a meaningful opportunity.

25 1 8 U.S.C. § 1373 is a statute that provides, inter alia, that state or local government entities or
26 officials, as well as any “person or agency,” may not “prohibit, or in any way restrict” the sending to,
or receiving from, the federal government “information regarding the citizenship or immigration 27 status, lawful or unlawful, of any individual.”

28 5
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1

27. Section 9 of the Executive Order is also constitutionally infirm because in it the

2 President purports to exercise and delegate spending powers that are reserved exclusively to Congress

3 under Article I, § 8 of the Constitution. Article II of the Constitution, which describes the powers of

4 the President, does not vest the President with spending power. Although Section 9 vaguely purports

5 to limit the exercise of this power by directing the Attorney General and the Secretary of Homeland

6 Security to exercise it “to the extent consistent with law,” this supposed limitation is meaningless,

7 since the President’s defunding of sanctuary cities is not “consistent with law.”

8

28. Moreover, the Executive Order would be unconstitutional even if enacted by Congress.

9 Congress could not, by legislation, withhold all federal funding to a state or local government in an

10 attempt to coerce or commandeer such a government to enact, pursue, or obey federal policies. The

11 Executive Order unlawfully attempts to coerce or commandeer state and local jurisdictions to become

12 de facto agents for the enforcement of the President’s view of federal immigration policy by

13 threatening the withholding or withdrawal of all federal funds from any jurisdiction that, in the sole

14 opinion of the President or his subordinates, does not sufficiently comply with federal immigration

15 authorities. The Executive Order likewise violates other limitations on the spending power, including

16 requirements of clear notice and germaneness, which would render this action invalid even if enacted

17 by Congress.

18 Impact of the Executive Order on YWCA Silicon Valley

19

29. In pursuit of its mission to eliminate racism and empower women, YWCA Silicon

20 Valley administers a broad array of programs and services that directly impact the lives of its clients,

21 primarily women, including the most vulnerable and impoverished women in Santa Clara County.

22 The work of YWCA Silicon Valley supports many community members, both men and women, in

23 ways that are independent of the immigration enforcement issues that are the focus of the Executive

24 Order. Its many programs include:

25

 A 24-hour support line, counseling, emergency shelter, and legal services provided to victims

26

of sexual assault, domestic violence, and human trafficking, including serving as the

27

designated rape crisis center for approximately 90% of the residents of Santa Clara County;

28 6
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1

 Providing advocates to victims of sexual assault during law enforcement interviews, medical

2

exams, and trial proceedings, pursuant to rights granted under California Penal Code

3

§ 679.04;

4

 The Early Intervention Prostitution Program, which works with the Santa Clara County

5

District Attorney’s office to offer a diversion program for first-time offenders of soliciting a

6

sex act;

7

 The YWCA Healing Center Counseling Services, which strives to improve the emotional,

8

mental, and behavioral wellness of the community through short and long term counseling

9

and support services to clients of all ages including individuals, couples, families and groups;

10

 TechGYRLS®, an after-school empowerment program that provides girls ages 8-18 with

11

opportunities to increase their skills and confidence in the use of technology and engineering;

12

and

13

 Child care centers and after-school programming at schools and affordable housing sites,

14

that provide free or affordable quality child care to children ranging in age from 6 weeks to

15

12 years.

16

30. For the 2016-2017 fiscal year, which ends on June 30, 2017, YWCA Silicon Valley has

17 a budgeted income of approximately $7.07 million, not including in-kind contributions. Of this

18 amount, at least $2.656 million, or 37.5%, consists of federal funds. These funds are received by

19 YWCA Silicon Valley through a variety of distinct channels. While some of these funds constitute

20 direct grants to the organization, most of the funds are received in the form of “flow through” grants

21 that are originally received by either the State of California, the County of Santa Clara, the City of San

22 Jose, or other cities within Santa Clara County, and then re-granted to YWCA Silicon Valley by these

23 jurisdictions, or administered by them.

24

31. The Executive Order threatens the financial stability of YWCA Silicon Valley, and its

25 ability to continue to deliver critical services to its clients, in ways that are similar to the injuries

26 alleged by Santa Clara at ¶¶ 46-49 and ¶¶ 107-117 of its Complaint. Like Santa Clara, YWCA Silicon

27 Valley must create an annual budget and hire staff, pay expenses, and disburse funds pursuant to that

28 7
COMPLAINT IN INTERVENTION CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43-2 Filed 03/01/17 Page 10 of 15

1 budget. In many instances, YWCA Silicon Valley receives federal funds in the form of

2 reimbursements for funds that it has already spent in reliance on commitments to pay those

3 reimbursements. The Executive Order creates a clear danger that substantial federal funds already

4 committed to YWCA Silicon Valley would be cut off by reason of an Executive Branch designation of

5 Santa Clara or other jurisdictions as a “sanctuary jurisdiction.”

6

32. That threat also makes it impossible for YWCA Silicon Valley to plan rationally for the

7 provision of services on which so many of its clients, primarily vulnerable women throughout Santa

8 Clara County, rely. YWCA Silicon Valley is currently in the process of preparing its budget for the

9 2017-2018 fiscal year. Without assurance that federal funding will not be terminated for improper

10 reasons, YWCA Silicon Valley cannot create plans for its future service delivery, and cannot hire or

11 retain the personnel necessary to deliver such services. Because of the looming threat of losing federal

12 funds due to the Executive Order, YWCA Silicon Valley plans to institute a hiring freeze for

13 potentially affected programming in the upcoming fiscal year.

14

33. The threat to YWCA Silicon Valley is not limited to the possibility that Santa Clara

15 might be designated a “sanctuary jurisdiction.” YWCA Silicon Valley also receives substantial

16 portions of its budget in federal funds that are “flow through” grants from the State of California.

17

34. President Trump has already directly threatened to “defund” California because he

18 disagrees with the state on immigration policy. In response to a direct question about California,

19 President Trump, in a Fox News television interview aired just prior to the Super Bowl on February 5,

20 2017, said, “Well, I think it’s ridiculous, sanctuary cities, as you know. I’m very much opposed to

21 sanctuary cities. They breed crime, there’s a lot of problems. If we have to, we’ll defund. We give

22 tremendous amounts of money to California. California in many ways is out of control.”

23

35. In light of this and similar statements by the President and the promulgation of the

24 Executive Order, YWCA Silicon Valley has reason to fear that the Executive Branch of the federal

25 government will unilaterally declare California to be a “sanctuary jurisdiction,” declare a halt to all

26 federal funding to California, and thereby stop the flow of federal funds through California to YWCA

27 Silicon Valley.

28 8
COMPLAINT IN INTERVENTION CASE NO. 17-CV-00574

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1

36. YWCA Silicon Valley also receives substantial federal funds from the City of San Jose.

2 Media reports indicate that “San Jose has long called itself a ‘sanctuary city’ for immigrant residents –

3 and city leaders reaffirmed that stance weeks after Trump won the election.” YWCA Silicon Valley

4 reasonably fears that San Jose could be designated as a “sanctuary city,” which would cut off federal

5 funds to San Jose, and therefore result in the elimination of those funds that flow through San Jose to

6 YWCA Silicon Valley.

7

37. Thus YWCA Silicon Valley must contend with the possible cutoff of not one but

8 multiple sources of federal funding, each dependent on different sets of circumstances in the different

9 jurisdictions, and different determinations made by the Executive Branch of the federal government.

10

38. In addition, the nature of YWCA Silicon Valley’s injury is different from Santa Clara’s

11 because YWCA Silicon Valley is faced with deprivation of federal funds not because of anything it

12 has allegedly done or failed to do, but because of the Executive Branch’s attempt to punish or coerce

13 governmental jurisdictions. As a result, human service agencies such as YWCA Silicon Valley are

14 nothing more than “collateral damage” in the President’s quest to unconstitutionally reorder the

15 relationships between federal, state, and local governments. Unlike those other governmental

16 jurisdictions, however, the YWCA is without any prospect of an ability to take steps that would induce

17 the federal government to restore its funding in the event it is cut off.

18

39. Finally, if the federal government were to agree not to deny federal funds to Santa Clara

19 under Section 9 of the Executive Order, or to restore funds that had previously been denied, a

20 defunding risk would still exist with respect to California and/or municipal jurisdictions. YWCA

21 Silicon Valley would therefore continue to suffer injury in fact due to the actual or threatened cutoff of

22 funding through those other jurisdictions.

23

40. If it is deprived of up to 37.5% of its operating funds by reason of a funding cutoff by

24 the federal government to Santa Clara, San Jose and/or the State of California, YWCA Silicon Valley

25 and its clients are likely to be damaged in the following ways, among others:

26

 As many as 1,000 sexual assault victims per year will lose access to the advocates who

27

accompany them to law enforcement interviews, medical examinations and court

28 9
COMPLAINT IN INTERVENTION CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43-2 Filed 03/01/17 Page 12 of 15

1

appearances;

2

 The County of Santa Clara will lose a vital crisis hotline for victims of sexual assault,

3

domestic violence, and human trafficking;

4

 Victims of sexual assault, domestic violence and human trafficking will lose access to the

5

only domestic violence shelter facility in northern Santa Clara County specifically designated

6

to serve their needs, as well as access to rapid rehousing opportunities and a Family Violence

7

Center advocate embedded within the San Jose Police Department to provide emergency

8

services;

9

 Women, children, and teens will lose the benefit of community education programming; and

10

 Vulnerable women, individuals and families will not have access to critical counseling

11

services.

12

41. YWCA Silicon Valley has therefore suffered an injury in fact by reason of the loss of

13 funds promised under federal law.

14

42. YWCA Silicon Valley has also suffered further injury by reason of the threatened

15 retroactive confiscation of previously approved funds.

16

43. These injuries are fairly traceable to the Executive Order, in that, but for the Executive

17 Order, YWCA Silicon Valley would be able to receive federal funds previously promised, and to make

18 budgeting and programming decisions without the threat that federal funding will disappear.

19

44. This Court can redress YWCA Silicon Valley’s injuries by declaring Section 9 of the

20 Executive Order unconstitutional and enjoining its implementation and enforcement.

21

45. The issues in this case are ripe for judicial decision. The Executive Order is final and

22 further factual development is unnecessary to resolve the legal issues presented by this challenge.

23

46. Postponing judicial review would impose a significant hardship on YWCA Silicon

24 Valley. Requiring YWCA Silicon Valley to proceed without a judicial determination of whether the

25 Executive Order is valid would impose a palpable and considerable hardship by forcing YWCA

26 Silicon Valley to decide now whether to continue to provide vital services without knowing whether it

27 will continue to receive promised funding.

28 10
COMPLAINT IN INTERVENTION CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43-2 Filed 03/01/17 Page 13 of 15

CLAIMS FOR RELIEF 1

COUNT 1

2

Violation of the Separation of Powers, U.S. Constitution, Articles I and II

3

47. YWCA Silicon Valley incorporates and re-alleges each and every allegation contained

4 above as though fully set forth herein.

5

48. Article I, § 8 of the Constitution vests the federal government’s spending power

6 exclusively in Congress. Article II of the Constitution, which describes the powers of the President,

7 does not vest the President with spending power. The President lacks authority to issue the Executive

8 Order.

9

49. Accordingly, Defendant Trump’s attempt, through Section 9 of the Executive Order, to

10 withdraw, suspend, or prohibit the future payment of funds authorized or appropriated by Congress is

11 unconstitutional. 12

COUNT II Violation of the Spending Power, U.S. Constitution, Article I

13

50. YWCA Silicon Valley incorporates and re-alleges each and every allegation contained

14 above as though fully set forth herein.

15

51. Defendant Trump’s attempted usurpation of the Congressional spending power is made

16 even more outrageous by the fact that President Trump is attempting to exercise spending power that

17 even Congress does not have, thereby seeking to fundamentally reorder the relationships between the

18 state and federal governments under the Constitution.

19

52. It is well settled that even the Congress could not, by legislation, exercise the spending

20 power in the manner that Defendant Trump purports to exercise such power through the Executive

21 Order, that is, to use the spending or withholding of federal funds in an attempt to coerce or

22 commandeer state and local governments to enact, pursue, or obey policies that the federal

23 government may favor. The Executive Order likewise violates other limitations on the spending

24 power, including requirements of clear notice and germaneness, which would render this action invalid

25 even if enacted by Congress. For this additional reason, Section 9 of the Executive Order is

26 unconstitutional.

27

28 11
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Case 3:17-cv-00574-WHO Document 43-2 Filed 03/01/17 Page 14 of 15

COUNT III

1

Violation of Procedural Due Process, U.S. Constitution, Amendment 5

2

53. YWCA Silicon Valley incorporates and re-alleges each and every allegation contained

3 above as though fully set forth herein.

4

54. Under the Fifth Amendment to the Constitution, the federal government may not

5 deprive any person of money or property without due process of law.

6

55. YWCA Silicon Valley is damaged by this violation because it is threatened with the loss

7 of substantial funding due to decisions made without due process of law.

8

PRAYER FOR RELIEF

9 WHEREFORE, Plaintiff-Intervenor YWCA Silicon Valley respectfully requests that this Court enter

10 judgment in its favor against all Defendants, and grant the following relief:

11

1.

A declaration that Section 9 of the Executive Order is unconstitutional and invalid on its

12 face;

13

2.

A declaration that Section 9 of the Executive Order is unconstitutional and invalid as

14 applied to Plaintiff-Intervenor;

15

3.

A preliminary and permanent injunction enjoining Defendants from enforcing Section 9

16 of the Executive Order or taking any other action in furtherance of any withholding or conditioning of

17 federal funds based on the Executive Order;

18

4.

An award to Plaintiff-Intervenor of reasonable costs and attorney’s fees; and

19

5.

Such other and further relief that this Court may deem just and proper.

20

21

22

23

24

25

26

27

28 12
COMPLAINT IN INTERVENTION CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43-2 Filed 03/01/17 Page 15 of 15

1 DATED: March 1 , 2017 2 3 4 5 6 7 8 9 DATED: March 1, 2017 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.
By: s/ William S. Freeman WILLIAM S. FREEMAN
Attorneys for Plaintiff-Intervenor Young Women’s Christian Association Of Silicon Valley
WILSON SONSINI GOODRICH & ROSATI, PROFESSIONAL CORPORATION
By: s/ Catherine Moreno CATHERINE MORENO
Attorneys for Plaintiff-Intervenor Young Women’s Christian Association Of Silicon Valley
13 COMPLAINT IN INTERVENTION
CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43-3 Filed 03/01/17 Page 1 of 9

1 JULIA HARUMI MASS, SBN 189649 WILLIAM S. FREEMAN, SBN 82002
2 ANGÉLICA SALCEDA, SBN 296152 AMERICAN CIVIL LIBERTIES UNION
3 FOUNDATION OF NORTHERN CALIFORNIA, INC.
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
6 Email: jmass@aclunc.org
Email: wfreeman@aclunc.org 7 Email: asalceda@aclunc.org
8

CATHERINE MORENO, SBN 264517 LAUREN GALLO WHITE, SBN 309075 RALITZA DINEVA, SBN 305974 AVA MILLER, SBN 312012 WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION 650 Page Mill Road Palo Alto, California 94306 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Email: cmoreno@wsgr.com Email: lwhite@wsgr.com Email: rdineva@wsgr.com Email: armiller@wsgr.com

9 Attorneys for Plaintiff-Intervenor Young Women’s Christian Association
10 Of Silicon Valley

11 [SEE NEXT PAGE FOR ADDITIONAL COUNSEL]

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

SAN JOSE DIVISION

15 16 COUNTY OF SANTA CLARA,

17

Plaintiff,

18

v.

19 DONALD J. TRUMP, President of the United

20 States of America, JOHN F. KELLY, in his official capacity as Secretary of the United States

21 Department of Homeland Security, JEFFERSON

B. SESSIONS, in his official capacity as 22 Attorney General of the United States, JOHN

23

MICHAEL “MICK” MULVANEY, in his official capacity as Director of the Office of

24 Management and Budget, and DOES 1-50,

CASE NO.: 17-cv-00574

JOINDER OF PLAINTIFF-INTERVENOR YOUNG WOMEN’S CHRISTIAN ASSOCIATION OF SILICON VALLEY IN COUNTY OF SANTA CLARA’S MOTION FOR A PRELIMINARY INJUNCTION

Date: Time: Dept.: Before:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

25

Defendants.

26

27

28
YWCA’S MOTION JOINING SANTA CLARA COUNTY’S MOTION FOR A PRELIMINARY INJUNCTION CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43-3 Filed 03/01/17 Page 2 of 9
1 PETER J. ELIASBERG, SBN 189110 JENNIFER PASQUARELLA, SBN 263241
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA
3 1313 West 8th Street Los Angeles, CA 90017
4 Telephone: (213) 977-5211 Facsimile: (213) 977-5297
5 Email: peliasberg@aclu-sc.org Email: jpasquarella@aclu-sc.org
6 DAVID LOY, SBN 229235
7 ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES
8 P.O. Box 87131 San Diego, CA 92138-7131
9 Telephone: (619) 232-2121 Facsimile: (619) 232-0036
10 Email: davidloy@aclusandiego.org
11 OMAR C. JADWAT* ANDRE I. SEGURA, SBN 247681
12 SPENCER AMDUR* AMERICAN CIVIL LIBERTIES UNION
13 FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT
14 125 Broad Street, 18th Floor New York, NY 10004
15 Telephone: (212) 549-2600 Facsimile: (212) 549-2654
16 Email: ojadwat@aclu.org Email: asegura@aclu.org
17 Email: samdur@aclu.org
18 CODY H. WOFSY, SBN 294179 AMERICAN CIVIL LIBERTIES UNION
19 FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT
20 39 Drumm Street San Francisco, CA 94111
21 Telephone: (415) 343-0770 Facsimile: (212) 395-0950
22 Email: cwofsy@aclu.org
23 *Pro Hac Vice Forthcoming
24
25
26
27
28 YWCA SILICON VALLEY’S JOINDER IN SANTA CLARA COUNTY’S MOTION FOR A PRELIMINARY INJUNCTION CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43-3 Filed 03/01/17 Page 3 of 9

1

Pursuant to Federal Rule of Civil Procedure 65, Plaintiff-Intervenor Young Women’s Christian

2 Association of Silicon Valley (“Plaintiff-Intervenor” or “YWCA Silicon Valley”) hereby joins Plaintiff

3 County of Santa Clara’s (“Plaintiff” or “Santa Clara”) (collectively, “Plaintiffs”) motion for a

4 preliminary injunction preventing the enforcement of Section 9 of Executive Order 13768, entitled

5 “Enhancing Public Safety in the Interior of the United States” (the “Executive Order”). By this joinder

6 and through the accompanying Declaration of Ann Marie Pate (“Pate Declaration” or “Pate Decl.”),

7 YWCA Silicon Valley presents facts and argument pertaining to its critical interests in the granting of

8 the requested injunction.

9

This joinder is based upon the accompanying Memorandum of Points and Authorities, the

10 pleadings and papers contemporaneously filed in support of YWCA Silicon Valley’s Motion for

11 Permissive Intervention, the pleadings and papers filed in support of Santa Clara’s Motion for

12 Preliminary Injunction, the Pate Declaration, any oral argument this Court may allow, and any other

13 matter of which this Court takes notice.

14

MEMORANDUM OF POINTS AND AUTHORITIES

15 I. INTRODUCTION

16

YWCA Silicon Valley joins in Santa Clara’s motion for preliminary injunction to prevent the

17 enforcement of Section 9 of Executive Order 13768, “Enhancing Public Safety in the Interior of the

18 United States” (the “Executive Order”), issued by Defendant President Donald J. Trump on January 25,

19 2017. The Executive Order purports to authorize the President and his executive agents with

20 unprecedented, unlimited, and unconstitutional power to deprive “sanctuary jurisdictions” of all federal

21 funding. For the reasons detailed in Santa Clara’s motion, Santa Clara and YWCA Silicon Valley are

22 likely to succeed on the merits of their claims that the Executive Order violates separation of power

23 principles, exceeds the limitations of the spending power, and violates the Fifth Amendment.

24

In addition, YWCA Silicon Valley and the vulnerable population it serves will suffer immediate

25 and irreparable harm absent an injunction against the enforcement of this unlawful presidential

26 overreach. The Executive Order threatens YWCA Silicon Valley’s financial stability and its ability to

27 continue to deliver critical services to its clients. Not only that, the Executive Order creates a clear

28

1

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1 danger that substantial federal funds already committed to YWCA Silicon Valley will be cut off by

2 reason of an executive branch designation of Santa Clara County or other jurisdictions as a “sanctuary

3 jurisdiction.” This looming threat makes it impossible for YWCA Silicon Valley to plan rationally for

4 the provision of services relied on by thousands of vulnerable people throughout Santa Clara County.

5 Given the nature and severity of this likely injury—constitutional violations coupled with the

6 deprivation of social services essential to the health and safety of its clients—the balance of hardships

7 and the public interest favor a preliminary injunction.

8 II. BACKGROUND

9

A. YWCA Silicon Valley Provides Critically Important Programs and Social Services.

10

Plaintiff-Intervenor YWCA Silicon Valley is a nonprofit corporation located in San Jose,

11 California. Founded in 1905, it seeks to eliminate racism and empower women through a variety of

12 programs, including assistance for women who have been victims of sexual assault, domestic violence

13 and human trafficking. Pate Decl. ¶ 3; Complaint in Intervention ¶ 18. YWCA Silicon Valley

14 provides critical services, education, and other resources to approximately 18,000 people in Santa Clara

15 County. Pate Decl. ¶¶ 3-4. For example, YWCA Silicon Valley facilitates a 24-hour hotline serving

16 victims of sexual assault, domestic violence, and human trafficking (id. ¶ 13); and it operates rapid

17 rehousing services, a shelter facility, and counseling services that are specifically designated to serve

18 the needs of such individuals (id.). If these services have to be eliminated or curtailed, the victims they

19 serve will face greater exposure to ongoing violence and greater risk of homelessness. Id.

20

B. YWCA Silicon Valley Depends on Federal Funds Threatened by the Executive

Order. 21

22

Federal funds represent approximately 37.5% percent, or $2.656 million, of YWCA Silicon

23 Valley’s annual budget. Id. ¶ 6. Those funds are received via multiple channels, including directly

24 from the federal government, and flowing through the State of California, the County of Santa Clara,

25 the City of San Jose, and other municipalities and townships in Santa Clara County. Id. Among other

26 programs, YWCA Silicon Valley’s federal grants enable it to provide support line advocates for

27 victims of domestic violence, advocates as part of a sexual assault response team, and counseling and

28

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1 support for sexual assault and domestic violence victims. Id. ¶ 7. Typically, these funds are received

2 in the form of reimbursements for funds that YWCA Silicon Valley has spent in compliance with the

3 terms of a grant. Id. ¶ 7. In addition, YWCA supports rapid rehousing for its clients using federal funds

4 that are received directly from federal agencies at the recommendation of Santa Clara County. Id. ¶ 8.

5

C. The Executive Order Prevents YWCA Silicon Valley from Making Budgeting and

Programming Decisions. 6

7

The threatened loss of federal funding triggered by the Executive Order has already thrown

8 YWCA Silicon Valley’s operations into turmoil. See id. ¶¶ 10-13. Among other complications, it

9 cannot plan for the programs and services that it intended to provide in the future and it cannot hire

10 personnel or incur obligations with third parties. Id. ¶¶ 11-12. The uncertainty resulting from the

11 promulgation of the Executive Order has already seriously impacted the planning of YWCA Silicon

12 Valley’s FY 2018 budget, which must be completed by the end of April 2017 and presented to the

13 organization’s Board of Directors on May 22, 2017. Id. ¶ 11. Without the ability to count on the

14 receipt of vital federal funds, YWCA Silicon Valley is planning to institute a hiring freeze on

15 potentially affected programs. Id.

16

ARGUMENT

17

As set forth in Santa Clara’s Motion for Preliminary Injunction (see ECF No. 26), Plaintiffs

18 satisfy all four factors required for entry of such preliminary relief: (1) they are “likely to succeed on

19 the merits,” (2) they are “likely to suffer irreparable harm in the absence of preliminary relief,” (3) “the

20 balance of equities tips in [their] favor,” and (4) “the injunction is in the public interest.” Winter v.

21 Natural Res. Def. Council, 555 U.S. 7, 20 (2008).

22

With respect to the first factor, YWCA Silicon Valley fully adopts and incorporates by

23 reference the arguments set forth in Santa Clara’s motion about the likelihood that Plaintiffs will

24 prevail on the merits of their claims. In particular, YWCA Silicon Valley agrees that the Executive

25 Order flagrantly disregards multiple, bedrock constitutional principles: it “shatters the constitutional

26 boundary between executive and legislative authority” and it “fails to provide the procedural due

27 process guaranteed by the Fifth Amendment.” ECF No. 26 at 2, 12-21.

28

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1

YWCA Silicon Valley also joins Santa Clara’s arguments regarding the remaining Winter

2 factors. See id. at 21-25. In addition to these arguments, YWCA Silicon Valley faces unique hardships

3 as a direct provider of essential public services and as a non-governmental entity that receives federal

4 funding through multiple channels separate from Santa Clara County. In light of its separate interests,

5 YWCA Silicon Valley faces a distinct risk of irreparable harm if the Executive Order is enforced.

6 YWCA Silicon Valley also contributes a unique perspective to how the balance of hardships and the

7 public interest favor injunctive relief. These important considerations support the entry of an

8 injunction in this case.

9

A. YWCA Silicon Valley Will Suffer Imminent, Irreparable Harm Absent An

Injunction. 10

11

“[T]he deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’”

12 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting Eldrod v. Burns, 427 U.S. 347, 373

13 (1976)); accord Washington v. Trump, No. 17-35105, 2017 U.S. App. LEXIS 2369, at *33 (9th Cir.

14 Feb. 9, 2017); see also Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (“[S]uits for declaratory

15 and injunctive relief against the threatened invasion of a constitutional right do not ordinarily require

16 proof of any injury other than the threatened constitutional deprivation itself.”).

17

In addition, the deprivation of services necessary to protecting individual health, safety, and

18 independence support a showing of likely irreparable harm, particularly where the losses will affect

19 vulnerable people. See, e.g., Bowen v. City of N.Y., 476 U.S. 467, 483-84 (1986) (discussing

20 irreparable injury from loss of benefits and resulting trauma); Beno v. Shalala, 30 F.3d 1057, 1063 n.10

21 (9th Cir. 1994) (“Numerous cases have held that reductions in [Aid to Families with Dependent

22 Children (AFDC)] benefits, even reductions of a relatively small magnitude, impose irreparable harm

23 on recipient families.” (collecting authorities)); Beltran v. Meyers, 677 F.2d 1317, 1322 (9th Cir. 1982)

24 (affirming finding of irreparable injury where enforcement of law “may deny [plaintiffs] needed

25 medical care”); Hernandez v. Cnty. of Monterey, 110 F. Supp. 3d 929, 956-57 (N.D. Cal. 2015)

26 (irreparable harm likely to result from exclusion from medications, exercise, religious services,

27 Narcotics and Alcoholics Anonymous meetings, and communication services); Tamara v. El Camino

28

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1 Hosp., 964 F. Supp. 2d 1077, 1087 (N.D. Cal. 2013) (deprivation of a service animal amounts to

2 irreparable harm where it will deprive plaintiff “of her independence,” and “result in less future

3 independence”); V.L. v. Wagner, 669 F. Supp. 2d 1106, 1109 (N.D. Cal. 2009) (“the human suffering

4 that will be caused by the change in the law justifies the Court’s preliminary injunction against the

5 implementation of this change”); Gresham v. Windrush Parners, Ltd., 730 F.2d 1417, 1424 (11th Cir.

6 1984) (irreparable injury likely to result from the “loss of safe, sanitary, decent and integrated housing”

7 and the “loss of being unable to escape the never-ending and seemingly unbreakable cycle of poverty”

8 (citation omitted)).

9

Here, in addition to the harms outlined by Santa Clara, enforcement of the Executive Order

10 threatens YWCA Silicon Valley and its clients not only with the multiple constitutional violations

11 alleged in Santa Clara’s complaint and the Complaint in Intervention, but also with devastating tangible

12 injuries. If enforced, the Executive Order is certain to cause irreparable harm to YWCA Silicon Valley

13 and it clients. In the likely event that any one or all of YWCA Silicon Valley’s home jurisdictions—

14 including the state of California, the County of Santa Clara, the City of San Jose and other cities within

15 Santa Clara County—are determined by the Executive Branch to be “sanctuary jurisdictions” and are

16 barred from receiving federal funding, then YWCA Silicon Valley stands to lose up to 37.5% of its

17 operating budget. Pate Decl. ¶ 13. The threat of such loss, over which YWCA Silicon Valley has no

18 control, renders YWCA Silicon Valley incapable of fulfilling its mission as it cannot hire personnel,

19 expend funds, or budget for future operations. Id. ¶ 11-14.

20

Among numerous other services and resources, the loss of this funding will prevent YWCA

21 Silicon Valley from providing a 24-hour hotline for victims of sexual assault, domestic violence, and

22 human trafficking; advocates to victims of sexual assault during law enforcement interviews, medical

23 exams, and trial proceedings; and a shelter facility in Santa Clara County specifically designated to

24 serve the needs of victims of sexual assault, domestic violence, and human trafficking, as well as rapid

25 rehousing services dedicated to such victims. Id. ¶ 13. Particularly when coupled with numerous

26 constitutional violations, the risk of these harms amply supports a finding of irreparable injury. See,

27 e.g., Melendres, 695 F.3d at 1002; Beno, 30 F.3d at 1063 n.10; see also Washington v. Trump, No.

28

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1 C17-0141JLR, 2017 U.S. Dist. LEXIS 16012, at *7 (W.D. Wash. Feb. 3, 2017) (finding “immediate

2 and irreparable injury” and “harms [that] are significant and ongoing” where Executive Order likely

3 will be found to violate the Constitution and will interfere with individuals’ “employment, education,

4 business, family relations, and freedom to travel”).

5

B. The Balance of Harms Tilts Sharply in the Moving Parties’ Favor, and the

Preliminary Injunction is in the Public’s Interest. 6

7

“When the government is a party, [the equities and public interest] factors merge.” Drakes Bay

8 Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014) (citing Nken v. Holder, 556 U.S. 418, 435

9 (2009)). And whatever the Government’s cited interest, “enforcement of an unconstitutional law is

10 always contrary to the public interest.” Gordon, 721 F.3d at 653; see also Melendres, 695 F.3d at 1002

11 (the balance of hardships and public interest both favor “prevent[ing] the violation of a party’s

12 constitutional rights”). The Government “is in no way harmed by issuance of a preliminary injunction

13 which prevents the state from enforcing restrictions likely to be found unconstitutional. If anything, the

14 system is improved by such an injunction.” Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th

15 Cir. 2002) (citation omitted); see also Planned Parenthood Ass’n of Cincinnati, Inc. v. Cincinnati, 822

16 F.2d 1390, 1400 (6th Cir. 1987). This reasoning is especially compelling where, as here, the most

17 vulnerable members of society may be “wrongfully deprived of essential benefits for any period of

18 time.” Lopez v. Heckler, 713 F.2d 1432, 1437 (9th Cir. 1983).

19

Depriving YWCA Silicon Valley of federal funding would seriously hinder, or altogether

20 eliminate, its ability to provide critical services to thousands of vulnerable individuals. For example,

21 YWCA Silicon Valley depends heavily on federal funds to operate emergency housing, shelter,

22 advocacy, and counseling services to victims of domestic violence, sexual assault, and human

23 trafficking. See Pate Decl. ¶¶ 7, 13. Ceasing provision of such vital and needed services would put

24 vulnerable people at further risk tilting the balance of equities and the public interest in favor of a

25 preliminary injunction. Wagner, 669 F. Supp. 2d at 1122 (the public interest weighs heavily in favor of

26 granting preliminary relief and stating that “[i]t would be tragic, not only from the standpoint of the

27 individuals involved but also from the standpoint of society, were poor, elderly, disabled people to be

28

6

YWCA SILICON VALLEY’S JOINDER IN SANTA CLARA COUNTY’S

MOTION FOR A PRELIMINARY INJUNCTION

CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43-3 Filed 03/01/17 Page 9 of 9

1 wrongfully deprived of essential benefits for any period of time.” (quoting Lopez, 713 F.2d at 1437));

2 see also Beltran, 677 F.2d at 1322 (“Where the meaning of the Medicaid legislation or its

3 implementing regulations is unclear, the resulting uncertainty is a consequence of a failure of the

4 governmental process to operate efficiently. The financial consequences of this inefficiency under the

5 circumstances of this case ought not to be visited upon individuals such as the plaintiffs-appellees.”)

6 III. CONCLUSION

7

YWCA Silicon Valley, its clients, and the public will suffer profound and irreparable harm if

8 the Executive Order is not enjoined. YWCA Silicon Valley therefore joins in Santa Clara County ’s

9 motion for preliminary injunctive relief.

10

11

Respectfully submitted,

12 DATED: March 1 , 2017 13

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA, INC.

14

15 By: s/ William S. Freeman

16

WILLIAM S. FREEMAN

17

Attorneys for Plaintiff-Intervenor

Young Women’s Christian Association

18

Of Silicon Valley

19

20 DATED: March 1, 2017 21

WILSON SONSINI GOODRICH & ROSATI, PROFESSIONAL CORPORATION

22

23

By: s/ Catherine Moreno

24

CATHERINE MORENO

25

Attorneys for Plaintiff-Intervenor

Young Women’s Christian Association

26

Of Silicon Valley

27

28

7

YWCA SILICON VALLEY’S JOINDER IN SANTA CLARA COUNTY’S

MOTION FOR A PRELIMINARY INJUNCTION

CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43-4 Filed 03/01/17 Page 1 of 6

1 JULIA HARUMI MASS, SBN 189649 WILLIAM S. FREEMAN, SBN 82002
2 ANGÉLICA SALCEDA, SBN 296152 AMERICAN CIVIL LIBERTIES UNION
3 FOUNDATION OF NORTHERN CALIFORNIA, INC.
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
6 Email: jmass@aclunc.org
Email: wfreeman@aclunc.org 7 Email: asalceda@aclunc.org
8

CATHERINE MORENO, SBN 264517 LAUREN GALLO WHITE, SBN 309075 RALITZA DINEVA, SBN 305974 AVA MILLER, SBN 312012 WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION 650 Page Mill Road Palo Alto, California 94306 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Email: cmoreno@wsgr.com Email: lwhite@wsgr.com Email: rdineva@wsgr.com Email: armiller@wsgr.com

9 Attorneys for Plaintiff-Intervenor Young Women’s Christian Association
10 Of Silicon Valley

11 [SEE NEXT PAGE FOR ADDITIONAL COUNSEL]

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

SAN JOSE DIVISION

15 16 COUNTY OF SANTA CLARA,

17

Plaintiffs,

18

v.

19 DONALD J. TRUMP, President of the United

20 States of America, JOHN F. KELLY, in his official capacity as Secretary of the United States

21 Department of Homeland Security, JEFFERSON

B. SESSIONS, in his official capacity as 22 Attorney General of the United States, JOHN

23

MICHAEL “MICK” MULVANEY, in his official capacity as Director of the Office of

24 Management and Budget, and DOES 1-50,

CASE NO.: 17-cv-00574
DECLARATION OF ANN MARIE PATE IN SUPPORT OF PLAINTIFFINTERVENOR YOUNG WOMEN’S CHRISTIAN ASSOCIATION OF SILICON VALLEY’S JOINDER IN SANTA CLARA’S MOTION FOR A PRELIMINARY INJUNCTION

25

Defendants.

26

27

28

PATE DECLARATION ISO YWCA’S JOINDER IN SANTA CLARA COUNTY’S MOTION FOR A PRELIMINARY INJUNCTION

Case 3:17-cv-00574-WHO Document 43-4 Filed 03/01/17 Page 2 of 6
1 PETER J. ELIASBERG, SBN 189110 JENNIFER PASQUARELLA, SBN 263241
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA
3 1313 West 8th Street Los Angeles, CA 90017
4 Telephone: (213) 977-5211 Facsimile: (213) 977-5297
5 Email: peliasberg@aclu-sc.org Email: jpasquarella@aclu-sc.org
6 DAVID LOY, SBN 229235
7 ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES
8 P.O. Box 87131 San Diego, CA 92138-7131
9 Telephone: (619) 232-2121 Facsimile: (619) 232-0036
10 Email: davidloy@aclusandiego.org
11 OMAR C. JADWAT* ANDRE I. SEGURA, SBN 247681
12 SPENCER AMDUR* AMERICAN CIVIL LIBERTIES UNION
13 FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT
14 125 Broad Street, 18th Floor New York, NY 10004
15 Telephone: (212) 549-2600 Facsimile: (212) 549-2654
16 Email: ojadwat@aclu.org Email: asegura@aclu.org
17 Email: samdur@aclu.org
18 CODY H. WOFSY, SBN 294179 AMERICAN CIVIL LIBERTIES UNION
19 FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT
20 39 Drumm Street San Francisco, CA 94111
21 Telephone: (415) 343-0770 Facsimile: (212) 395-0950
22 Email: cwofsy@aclu.org
23 *Pro Hac Vice Forthcoming
24
25
26
27
28
PATE DECLARATION ISO YWCA’S JOINDER IN SANTA CLARA COUNTY’S MOTION FOR A PRELIMINARY INJUNCTION

Case 3:17-cv-00574-WHO Document 43-4 Filed 03/01/17 Page 3 of 6

1 I, Ann Marie Pate, hereby declare as follows:

2

1. I make this declaration from my personal knowledge and, if called to testify to these

3 facts, could and would do so competently.

4

2. I am currently employed as the Chief Operating Officer and Chief Financial Officer of

5 Young Women’s Christian Association of Silicon Valley (“YWCA Silicon Valley”). I have been so

6 employed since January 7, 2014. I have a Bachelor of Science degree in Business Administration

7 from Washington University in St. Louis; Master of Business Administration degree from Pepperdine

8 University; and a Juris Doctor degree from Concord Law School. I have served in non-profit finance

9 and operations management for more than thirteen years.

10

3. YWCA Silicon Valley is a nonprofit corporation headquartered in San Jose, California.

11 Its mission is to eliminate racism, empower women, and promote peace, justice, freedom and dignity

12 for all. It pursues this mission by administering a broad variety of programs, many of which are

13 specifically designed to address the needs of the most vulnerable women in our county—victims of

14 sexual assault, domestic violence, and human trafficking.

15

4. YWCA Silicon Valley administers its programs through its paid staff of approximately

16 77 full-time and part-time employees, and approximately 34 stipended interns and trainees. YWCA

17 Silicon Valley offers programming on a continuum: education, crisis support and counseling. YWCA

18 Silicon Valley serves up to 18,000 domestic violence, sexual assault and human trafficking clients and

19 community members annually through three client service offices and multiple county-based service

20 locations, including schools, housing projects and a domestic violence emergency shelter. YWCA

21 Silicon Valley also services up to 550 students through its education and empowerment programs

22 including TechGyrls® and childcare centers and after-school locations, and by providing educational

23 opportunities to underserved populations.

24

5. For the fiscal year July 1, 2016 through June 30, 2017 (“FY 2017”), YWCA Silicon

25 Valley has budgeted revenue of approximately $7.07 million, excluding in-kind contributions. This

26 amount is comprised of funds from a variety of sources, including government grants, foundation and

27 corporate grants, individual donations and program service fees.

28 1
PATE DECLARATION ISO YWCA’S JOINDER IN SANTA CLARA COUNTY’S MOTION FOR A PRELIMINARY INJUNCTION

Case 3:17-cv-00574-WHO Document 43-4 Filed 03/01/17 Page 4 of 6

1

6. In FY 2017, at least $2.656 million of budgeted revenue, or about 37.5%, consists of

2 federal funds. These funds include approximately $890,107.00 in funds that are federal grants direct

3 to YWCA Silicon Valley; approximately $1,426,184.00 that are “flow-through” from federal funds to

4 the State of California; approximately $243,287.00 that are “flow-through” from federal funds to the

5 City of San Jose; approximately $61,797.00 that are “flow-through” from federal funds to other

6 municipalities and townships in Santa Clara County; and approximately $35,041.00 that are “flow-

7 through” from federal funds to other educational organizations. YWCA Silicon Valley also receives

8 $265,561.00 in funds from County of Santa Clara and I believe a portion of those funds are “flow-

9 through” from federal funds.

10

7. YWCA Silicon Valley’s government grants are executed through contracts with the

11 governmental agency. Once YWCA Silicon Valley expends funds in accordance with the term and

12 conditions of the service contract, YWCA Silicon Valley invoices the government agency for

13 reimbursement. Examples of government funded efforts include: advocates on the support line for

14 victims of domestic violence; advocates on the sexual assault response team; and counseling and

15 support for sexual assault and domestic violence victims.

16

8. YWCA Silicon Valley also receives two federal grants which are decided through a

17 county-wide prioritization to support rapid re-housing. The County of Santa Clara recommends to a

18 federal agency that YWCA Silicon Valley receive the federal grants and the federal agency then

19 directly contracts with YWCA Silicon Valley. These county-recommended federal funds have been

20 awarded to YWCA Silicon Valley for the past two years.

21

9. I am aware that President Trump issued an executive order entitled, “Enhancing Public

22 Safety in the Interior of the United States” (the “Executive Order”), and that Section 9 of the

23 Executive Order contains language that appears to threaten that any jurisdiction that the executive

24 branch designates as a “sanctuary jurisdiction” will “not [be] eligible to receive Federal grants….” I

25 am also aware that the State of California, the County of Santa Clara, and the City of San Jose have all

26 either announced, or enacted, or are considering, laws, policies, regulations or statements expressing

27 support for broad protection of undocumented persons. Even the threat that any of these jurisdictions

28 could be so designated causes real and immediate harm to YWCA Silicon Valley. This immediate 2
PATE DECLARATION ISO YWCA’S JOINDER IN SANTA CLARA COUNTY’S MOTION FOR A PRELIMINARY INJUNCTION

Case 3:17-cv-00574-WHO Document 43-4 Filed 03/01/17 Page 5 of 6

1 harm will manifest itself by reducing YWCA Silicon Valley’s ability to deliver on its mission to the

2 victims and community members in our county.

3

10. In order to effectively administer its programs, YWCA Silicon Valley must be able to

4 count on contracted funding sources and receiving payments from those sources.

5

11. YWCA Silicon Valley is currently in the process of planning its budget for FY 2018,

6 which will run from July 1, 2017 through June 30, 2018. In order to plan for the services it intends to

7 provide during that fiscal year, YWCA Silicon Valley must be able to make decisions about planning,

8 staffing and resource allocations. By the end of April 2017, YWCA Silicon Valley must make budget

9 recommendations. YWCA Silicon Valley will have to complete a proposed draft budget by the end of

10 April 2017, in time to finalize and present to its Board of Directors on May 22, 2017 for adoption.

11 Because of the looming threat of losing federal funds under the Executive Order, YWCA Silicon

12 Valley plans to institute a hiring freeze on potentially affected programming in FY 2018.

13

12. The uncertainty created by the threat of federal funding being cut off to California, Santa

14 Clara, San Jose, or other municipalities is damaging to YWCA Silicon Valley because it prevents us

15 from planning appropriately and efficiently, and therefore reduces the scope of the services YWCA

16 Silicon Valley can provide. YWCA Silicon Valley cannot maintain or hire personnel or incur

17 obligations without knowing what funds it will recieve necessary to fulfill those obligations.

18

13. In addition, if federal funding is cut off to California, Santa Clara, San Jose or other

19 municipalities, the effect on YWCA Silicon Valley and its clients will be catastrophic. Faced with the

20 loss of as much as 37.5% of its operating funds, YWCA Silicon Valley will have to severely curtail or

21 eliminate critical services because it could not generate funds sufficient to cover such an enourmous

22 hole in its budget. We would likely have to eliminate or curtail programs including but not limited to:

23

• A 24-hour hotline in Santa Clara County serving victims of sexual assault, domestic violence

24

and human trafficking;

25

• The provision of advocates to victims of sexual assault during law enforcement interviews,

26

medical exams, and trial proceedings;

27

• A shelter facility in Santa Clara County specifically designated to serve the needs of victims

28

of domestic violence;

3

PATE DECLARATION ISO YWCA’S JOINDER IN SANTA CLARA COUNTY’S MOTION FOR A PRELIMINARY INJUNCTION

Case 3:17-cv-00574-WHO Document 43-4 Filed 03/01/17 Page 6 of 6

1

• Rapid rehousing services dedicated to victims of sexual assault, domestic violence and

2

human trafficking;

3

• A funded Family Violence Center advocate embedded within the San Jose Police Department

4

to provided emergency services for domestic violence victims;

5

• Federally funded court advocates through the San Jose Police Department to provide legal

6

advocacy to victims of domestic violence;

7

• Community Education and Outreach programming to raise awareness of gender-based

8

violence issues and services available; and

9

• Counseling services, including crisis counseling, support groups and therapy for those

10

victims of sexual assault, domestic violence and human trafficking.

11

14. YWCA Silicon Valley has no control over whether any of the jurisdictions through

12 which it receives federal funds will be designated a “sanctuary jurisdiction.” In order for us to be able

13 to plan appropriately and responsibly so that we can continue to provide critically needed services,

14 YWCA Silicon Valley respectfully requests the Court enter an order restraining members of the

15 executive branch from exercising any authority to either designate a governmental jurisdiction as a

16 “sanctuary jurisdiction” or denying federal funds to any jurisdiction on the basis of such a designation.

17

18 I declare under penalty of perjury that the foregoing is true and correct and that this Declaration was

19 executed on February 28, 2017 in Santa Clara County, California.

20

21

______________________________

Ann Marie Pate

22

23

24

25

26

27

28 4
PATE DECLARATION ISO YWCA’S JOINDER IN SANTA CLARA COUNTY’S MOTION FOR A PRELIMINARY INJUNCTION

Case 3:17-cv-00574-WHO Document 43-5 Filed 03/01/17 Page 1 of 4

1 JULIA HARUMI MASS, SBN 189649 WILLIAM S. FREEMAN, SBN 82002
2 ANGÉLICA SALCEDA, SBN 296152 AMERICAN CIVIL LIBERTIES UNION
3 FOUNDATION OF NORTHERN CALIFORNIA, INC.
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
6 Email: jmass@aclunc.org
Email: wfreeman@aclunc.org 7 Email: asalceda@aclunc.org
8

CATHERINE MORENO, SBN 264517 LAUREN GALLO WHITE, SBN 309075 RALITZA DINEVA, SBN 305974 AVA MILLER, SBN 312012 WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION 650 Page Mill Road Palo Alto, California 94306 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Email: cmoreno@wsgr.com Email: lwhite@wsgr.com Email: rdineva@wsgr.com Email: armiller@wsgr.com

9 Attorneys for Plaintiff-Intervenor Young Women’s Christian Association
10 Of Silicon Valley

11 [SEE NEXT PAGE FOR ADDITIONAL COUNSEL]

12

UNITED STATES DISTRICT COURT

13

NORTHERN DISTRICT OF CALIFORNIA

14

SAN JOSE DIVISION

15 16 COUNTY OF SANTA CLARA,

17

Plaintiff,

18

v.

19 DONALD J. TRUMP, President of the United

20 States of America, JOHN F. KELLY, in his official capacity as Secretary of the United States

21 Department of Homeland Security, JEFFERSON

B. SESSIONS, in his official capacity as 22 Attorney General of the United States, JOHN

23

MICHAEL “MICK” MULVANEY, in his official capacity as Director of the Office of

24 Management and Budget, and DOES 1-50,

CASE NO.: 17-cv-00574

CERTIFICATE OF SERVICE

Date: Time: Dept.: Before:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

25

Defendants.

26

27

28

CERTIFICATE OF SERVICE CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43-5 Filed 03/01/17 Page 2 of 4
1 PETER J. ELIASBERG, SBN 189110 JENNIFER PASQUARELLA, SBN 263241
2 AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA
3 1313 West 8th Street Los Angeles, CA 90017
4 Telephone: (213) 977-5211 Facsimile: (213) 977-5297
5 Email: peliasberg@aclu-sc.org Email: jpasquarella@aclu-sc.org
6 DAVID LOY, SBN 229235
7 ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES
8 P.O. Box 87131 San Diego, CA 92138-7131
9 Telephone: (619) 232-2121 Facsimile: (619) 232-0036
10 Email: davidloy@aclusandiego.org
11 OMAR C. JADWAT* ANDRE I. SEGURA, SBN 247681
12 SPENCER AMDUR* AMERICAN CIVIL LIBERTIES UNION
13 FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT
14 125 Broad Street, 18th Floor New York, NY 10004
15 Telephone: (212) 549-2600 Facsimile: (212) 549-2654
16 Email: ojadwat@aclu.org Email: asegura@aclu.org
17 Email: samdur@aclu.org
18 CODY H. WOFSY, SBN 294179 AMERICAN CIVIL LIBERTIES UNION
19 FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT
20 39 Drumm Street San Francisco, CA 94111
21 Telephone: (415) 343-0770 Facsimile: (212) 395-0950
22 Email: cwofsy@aclu.org
23 *Pro Hac Vice Forthcoming
24
25
26
27
28
CERTIFICATE OF SERVICE CASE NO. 17-CV-00574

Case 3:17-cv-00574-WHO Document 43-5 Filed 03/01/17 Page 3 of 4

Case 3:17-cv-00574-WHO Document 43-5 Filed 03/01/17 Page 4 of 4

 
 Case 3:17-cv-00574-WHO Document 46 Filed 03/09/17 Page 1 of 27

1 CHAD A. READLER

Acting Assistant Attorney General
2 BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883
Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS (See signature page for parties represented.)

11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15
COUNTY OF SANTA CLARA,

16

Plaintiff,

17

v.

18 DONALD J. TRUMP, et al.,

No. 3:17-cv-00574-WHO
DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

19
Defendants.
20

21

22

23

24

25

26

27

28

Opposition Prelim. Inj. No. 3:17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 46 Filed 03/09/17 Page 2 of 27

1

TABLE OF CONTENTS

2 3 INTRODUCTION .......................................................................................................................... 1

4 ISSUES PRESENTED.................................................................................................................... 3

5

6 BACKGROUND ............................................................................................................................ 3

7

I. Broad Executive Discretion in Enforcement of Immigration Law ......................... 3

8

II. Executive Order 13,768 .......................................................................................... 5

9

III. The County’s Claims for Emergency Relief ........................................................... 7

10 ARGUMENT .................................................................................................................................. 8

11

I. Plaintiff Cannot Show Irreparable Harm ................................................................ 9

12

A. The Supreme Court Requires a Likelihood of Immediate

13

Concrete Irreparable Harm Before an Injunction May Issue ...................... 9

14

B. The County Cannot Demonstrate a Likelihood of Immediate, Concrete Irreparable Harm Given the

15

Absence of Any Action under Section 9................................................... 10

16

II. The County Cannot Establish a Likelihood of Success on the Merits

17

Because Its Claims are Non-Justiciable ................................................................ 15

18

III. The Public Interest and the Balance of Harms Militate

19

Against the Injunction Sought............................................................................... 18

20

IV. No Injunction Should Issue Against the President................................................ 19

21

22

V. Any Preliminary Injunction Herein Should Be Limited to the Plaintiff .......................................................................................... 19

23

24 CONCLUSION ............................................................................................................................. 20 25

26

27

28

i

Opposition Prelim. Inj.

No. 3:17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 46 Filed 03/09/17 Page 3 of 27

1

TABLE OF AUTHORITIES

2 CONSTITUTION 3 U.S. Const. art. II, § 3 ...................................................................................................................... 3 4 U.S. Const. art. III, § 2, cl. 1 .......................................................................................................... 15 5

6 CASES

7 Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .................................................................... 3, 16, 17

8 Ali v. United States, 932 F. Supp. 1206 (N.D. Cal. 1996) ............................................................. 13

9 Am. Trucking Ass’ns v. City of Los Angeles, 577 F. Supp. 2d 1110 (C.D. Cal. 2008) .................. 14

10 Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009) .................................. 8

11 Arc of Cal. v. Douglas, 757 F.3d 975 (9th Cir. 2014).................................................................... 10

12 Arcsoft, Inc. v. Cyberlink Corp., 153 F. Supp. 3d 1057 (N.D. Cal. 2015) ................................. 2, 10

13 Arizona Dream Act Coal. v. Brewer, ___ F.3d ___, No. 15-15307,
2017 WL 461503 (9th Cir. Feb. 2, 2017) .............................................................................. 4, 11
14
Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492 (2012) ..................................................... 3
15
Bigelow v. Virginia, 421 U.S. 809 (1975)................................................................................ 16, 17
16
Boardman v. Pac. Seafood Grp., 822 F.3d 1011 (9th Cir. 2016) .................................................. 10
17
Campbell v. Feld Entm’t Inc., No. 12-CV-4233-LHK,
18 2013 WL 4510629 (N.D. Cal. Aug. 22, 2013) ............................................................................ 8

19 Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668 (9th Cir. 1988).................................. 2, 10

20 Coal. for a Healthy Cal. v. FCC, 87 F.3d 383 (9th Cir. 1996) ...................................................... 18

21 Connecticut v. Massachusetts, 282 U.S. 660 (1931) ..................................................................... 12

22 Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993) ............................................................................ 19

23 Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905 (D.C. Cir. 1985)........................................... 16, 17

24 Elrod v. Burns, 427 U.S. 347 (1976).............................................................................................. 15

25 Envtl. Def. Fund v. Marsh, 651 F.2d 983 (5th Cir. 1981).............................................................. 19

26 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) .................................................................... 16

27 Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198 (D. Haw. 1998) ..................................... 16

28

ii

Opposition Prelim. Inj.

No. 3:17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 46 Filed 03/09/17 Page 4 of 27

1 Kitazato v. Black Diamond Hosp. Invs., LLC, 655 F. Supp. 2d 1139 (D. Haw. 2009).................. 13

2 Lopez v. Brewer, 680 F.3d 1068 (9th Cir. 2012).............................................................................. 8

3 Los Angeles Mem’l Coliseum Comm’n v. NFL, 634 F.2d 1197 (9th Cir. 1980)...................... 10, 13

4 Mazurek v. Armstrong, 520 U.S. 968 (1997) ................................................................................... 8

5 Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ....................................................................... 14

6 Miller ex rel. NLRB v. California Pac. Med. Ctr., 991 F.2d 536 (9th Cir. 1993)............................ 9

7 Mississippi v. Johnson, 71 U.S. 475 (1866) ................................................................................... 19

8 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) ....................................................... 19

9 N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104 (9th Cir. 2010) ........................................................ 18

10 N.Y. State Rest. Ass’n v. N.Y. City Bd. of Health, 545 F. Supp. 2d 363 (S.D.N.Y. 2008) ............. 14

11 Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016)........................... 16

12 Native Ecosystems Council v. Krueger, 40 F. Supp. 3d 1344 (D. Mont. 2014) ............................ 10

13 Newdow v. Bush, 391 F. Supp. 2d 95 (D.D.C. 2005)..................................................................... 19

14 Nken v. Holder, 556 U.S. 418 (2009)............................................................................................. 18

15 Ore. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc.,
288 F.3d 414, 416 (9th Cir. 2002) ............................................................................................. 15
16
Painsolvers, Inc. v. State Farm Mut. Auto. Ins. Co.,
17 685 F. Supp. 2d 1123 (D. Haw. 2010) ................................................................................... 2, 10

18 Pollara v. Radiant Logistics Inc., No. CV 12-0344 GAF (SPX),
2012 WL 12887095 (C.D. Cal. Sept. 13, 2012) ........................................................................ 15
19
Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004)............................................................... 19
20
Prof’l Towing & Recovery Operators of Ill. v. Box, No. 08 C 4096,
21 2008 WL 5211192 (N.D. Ill. Dec. 11, 2008)............................................................................. 14

22 RasterOps v. Radius, Inc., 861 F. Supp. 1479 (N.D. Cal. 1994) ................................................... 10

23 Rodriguez v. Robbins, 715 F.3d 1127 (9th Cir. 2013) ................................................................... 14

24 Rubin ex rel. N.L.R.B. v. Vista Del Sol Health Servs., Inc.,

80 F. Supp. 3d 1058 (C.D. Cal. 2015) ....................................................................................... 18
25

Sampson v. Murray, 415 U.S. 61 (1974) ....................................................................................... 13
26

Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105 (9th Cir. 2012)............................................ 19
27

Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624 (9th Cir. 1989) .................................... 16, 17

28

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1
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998).................................................... 16, 17
2
Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996)............................................................................ 19
3
Texas v. United States, 523 U.S. 296 (1998) ........................................................................... 16, 17
4
Timbisha Shoshone Tribe v. Salazar, 697 F. Supp. 2d 1181 (E.D. Cal. 2010) .............................. 15
5
U.S. Bank, N.A. v. SFR Invs. Pool 1, LLC, 124 F. Supp. 3d 1063 (D. Nev. 2015) .......................... 8
6
U.S. W. Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112 (9th Cir. 1999).............................. 16, 17
7
United States v. AMC Entm’t, Inc., 549 F.3d 760 (9th Cir. 2008) ................................................. 20
8
Whitmore v. Arkansas, 495 U.S. 149 (1990) ....................................................................... 3, 16, 17
9
Winter v. California Med. Review, Inc., 900 F.2d 1322 (9th Cir. 1989).................................. 17, 18
10
Winter v. Natural Res. Def. Council, 530 F. Supp. 2d 1110 (C.D. Cal. 2008) ................................ 9
11
Winter v. Natural Res. Def. Council, 518 F.3d 658 (9th Cir. 2008) ................................................ 9
12
Winter v. Natural Res. Def. Council, 555 U.S. 7 (2008)......................................................... passim
13

14 STATUTES

15 8 U.S.C. § 1373 ....................................................................................................................... passim

16 8 U.S.C. § 1101(a)(15)(S) ................................................................................................................ 4

17 8 U.S.C. § 1182(d)(5)(A) ................................................................................................................. 4

18 8 U.S.C. § 1227(a)(1)(E)(iii)............................................................................................................ 4

19 8 U.S.C. § 1229b .............................................................................................................................. 4

20 8 U.S.C. § 1357(g)(1)....................................................................................................................... 5

21 8 U.S.C. § 1357(g)(10)(B) ............................................................................................................... 5

22
REGULATIONS
23 24 28 C.F.R. pt. 18 ........................................................................................................................ 11, 20 25 44 C.F.R. § 206.440 ................................................................................................................. 11, 20

26 EXECUTIVE ORDERS

27 Exec. Order No. 12,807, 57 Fed. Reg. 23,133 (1992) ..................................................................... 4

28

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1 Exec. Order No. 13,608, 77 Fed. Reg. 26,409 (2012) ..................................................................... 4

2 Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (2016) ..................................................................... 4

3 Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. passim

4 Exec. Order No. 13,768, § 1, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ............................................... 1, 6

5 Exec. Order No. 13,768, § 2(a), 82 Fed. Reg. 8,799 (Jan. 30, 2017)............................................... 6

6 Exec. Order No. 13,768, § 4, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................... 6

7 Exec. Order No. 13,768, § 5, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................... 6

8 Exec. Order No. 13,768, § 6, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ....................................... 6, 11, 12

9 Exec. Order No. 13,768, § 7, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................... 6

10 Exec. Order No. 13,768, § 8, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ............................................. 6, 12

11 Exec. Order No. 13,768, § 9, 82 Fed. Reg. 8,799 (Jan. 30, 2017) .......................................... passim

12 Exec. Order No. 13,768, § 10(b), 82 Fed. Reg. 8,799 (Jan. 30, 2017) ............................................ 6

13 Exec. Order No. 13,768, § 11, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ..................................... 6, 11, 12

14 Exec. Order No. 13,768, § 12, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. 6

15 Exec. Order No. 13,768, § 13, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. 6

16 Exec. Order No. 13,768, § 14, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. 6

17 Exec. Order No. 13,768, § 15, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ....................................... 1, 7, 12

18 Exec. Order No. 13,768, § 17, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. 6

19 Exec. Order No. 13,768, § 18(b), 82 Fed. Reg. 8,799 (Jan. 30, 2017) ............................................ 6

20
OTHER AUTHORITIES
21
Mem. from Jeh Charles Johnson, Sec’y of Homeland Sec., to Thomas S.
22 Winkowski, Acting Dir., U.S. Immigration & Customs Enforcement, et al.,
Policies for the Apprehension, Detention and Removal of Undocumented
23 Immigrants (Nov. 20, 2014), https:// www.dhs.gov/ sites/ default/ files/
publications/ 14_1120_ memo_prosecutorial_discretion.pdf .......................................................... 4
24
Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason,
25 Assistant Att’y Gen., Office of Justice Programs, Department of Justice
Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant
26 Recipients (May 31, 2016), https:// oig.justice.gov/ reports/ 2016/ 1607.pdf.................................. 5

27 Ltr. from Samuel R. Ramer, Acting Ass’t Att’y Gen., Office of Legis.

Affairs to Sens. Elizabeth Warren and Edward J. Markey (Mar. 7, 2017) ................................ 2, 12

28

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1

INTRODUCTION

2

On January 25, 2017, the President signed Executive Order 13,768 for the declared

3 purpose of “direct[ing] executive departments and agencies . . . to employ all lawful means to

4 enforce the immigration laws of the United States.” See Exec. Order No. 13,768, § 1, 82 Fed.

5 Reg. 8,799 (Jan. 30, 2017). As explained in the Order, aliens who enter the United States

6 illegally and those who overstay or otherwise violate the terms of their admission and engage in

7 criminal conduct present a particularly “significant threat to national security and public safety.”

8 Id. Those threats are heightened when jurisdictions choose to violate federal immigration law to

9 shield illegal aliens – many of whom have been incarcerated by federal, state, or local authorities

10 – from federal immigration authorities. See id.

11

To address this threat, the Executive Order states that the Executive Branch’s policy is to

12 ensure that States and their political subdivisions comply with existing federal immigration laws.

13 For example, Section 9 of the Order establishes a policy of ensuring that state and local

14 jurisdictions comply with 8 U.S.C. § 1373, which provides that no government entity or official

15 may prohibit or restrict, among other things, the sending or receiving of information regarding the

16 citizenship or immigration status of any individual to federal immigration authorities. Id. § 9, 82

17 Fed. Reg. at 8,801. The Order is a presidential directive, directed to the Attorney General, the

18 Secretary of Homeland Security, and other federal officials. It does not purport to alter the

19 existing requirements of Section 1373 (or any other federal law), impose new burdens on state or

20 local jurisdictions, or expand the legal authority of the Secretary or the Attorney General. Rather,

21 it simply announces the policy of the Executive Branch and directs the Secretary and Attorney

22 General, in their discretion and consistent with their existing legal authority, to ensure that

23 jurisdictions that willfully refuse to comply with Section 1373 not be eligible to receive federal

24 grants, except as deemed necessary for law enforcement purposes. Id. The Order also instructs

25 the Secretary and the Attorney General to take appropriate actions, and directs them to report to

26 the President on their progress in implementing this and other directives in the Order, first within

27 90 days and then again within 180 days. Id. § 15, 82 Fed. Reg. at 8,802. Executive Order 13,768

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1 is not self-executing, however, and the Secretary and Attorney General have not yet taken the

2 several steps necessary to implement the directives of Section 9.1

3

Yet, before such steps or other action have been taken under the Executive Order, the

4 County of Santa Clara has moved for immediate, emergency injunctive relief to prevent defen-

5 dants from taking hypothetical future actions against it pursuant to Section 9 of the Order. The

6 County’s lawsuit is premature. The County does not claim the loss of any federal funds or, for

7 that matter, that any action has been taken against it under the Order; the County does not even

8 allege that such action has been threatened. Indeed, the Secretary has not designated (or even

9 indicated an intent to designate) Santa Clara County as a “sanctuary jurisdiction” in accordance

10 with the process contemplated in Section 9.

11

For these reasons, the County cannot show the likelihood of “immediate” irreparable

12 harm, an “essential element” of the standard required to obtain emergency injunctive relief. See

13 Caribbean Marine Servs. Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988); Arcsoft, Inc. v.

14 Cyberlink Corp., 153 F. Supp. 3d 1057, 1071 (N.D. Cal. 2015); see also Painsolvers, Inc. v. State

15 Farm Mut. Auto. Ins. Co., 685 F. Supp. 2d 1123, 1139 (D. Haw. 2010). Rather than meet this

16 standard, the County instead bases its motion on nothing more than speculation concerning the

17 Order’s scope and how the Secretary and Attorney General might interpret and implement it,

18 along with speculation that the County will be a subject of enforcement and might lose federal

19 funds. Such speculative assertions fall far short of demonstrating immediate irreparable harm,

20 which by itself requires that plaintiff’s requested emergency relief be denied.

21

In addition, the County also fails to establish a substantial likelihood of success on the

22 merits of its claims, which are subject to dismissal under the justiciability doctrines of ripeness

23 and standing. Article III of the Constitution requires that a plaintiff have standing and that its

24 claims be ripe for judicial consideration. Because a series of steps remain to implement Section

25
1 In this regard, the Department of Justice sent a letter to members of Congress, on March

26 7, 2017, stating that the Department was “in the process of identifying, in its discretion, what

actions, if any, can lawfully be taken in order to encourage state and local jurisdictions to comply
27 with federal law.” See Ltr. from Samuel R. Ramer, Acting Ass’t Att’y Gen., Office of Legis.

28

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1 9, each of which has had no tangible effect on the plaintiff, the County cannot show the

2 “concrete,” “palpable” injury needed for standing, see Whitmore v. Arkansas, 495 U.S. 149, 155

3 (1990), and the Executive Order has not been “formalized and its effects felt in a concrete way”

4 as needed for ripeness. See Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967).

5

Notably, the Executive Order does not alter or expand the existing law that governs when

6 the Federal Government may revoke a federal grant where the grantee violates legal

7 requirements. Instead, the President – pursuant to his express constitutional authority to ensure

8 that federal agencies “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3 –

9 has directed agency heads to utilize their existing legal authorities “to the extent consistent with

10 law,” see Exec. Order No. 13,768, § 9, in connection with local violations of Section 1373. In

11 other words, the Executive Order does nothing more than direct enforcement of preexisting duties

12 under federal law. The County’s conjecture to the contrary does not satisfy its burden of

13 justifying the extraordinary relief it seeks, and the Court should accordingly deny plaintiff’s

14 motion for preliminary injunction.

15

ISSUES PRESENTED

16

1. Whether the plaintiff has established that it will suffer immediate, concrete irreparable

17 harm in absence of a preliminary injunction.

18

2. Whether the plaintiff has established that it can satisfy the requirements of

19 justiciability, including standing and ripeness.

20

3. Whether the public interest and the balance of equities militate against the preliminary

21 injunction sought.

22

4. Whether the plaintiff can seek a nationwide preliminary injunction or only an

23 injunction limited to the plaintiff itself.

24

BACKGROUND

25 I.

Broad Executive Discretion in Enforcement of Immigration Law

26

“The Government of the United States has broad, undoubted power over the subject of

27 immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492,

28

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1 2497 (2012). Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq.,

2 Congress has granted the Executive Branch significant authority to control the entry, movement,

3 and other conduct of foreign nationals in the United States.

4

Under the INA, the Department of Homeland Security (“DHS”), the Department of

5 Justice, and other agencies of the Executive Branch administer and enforce the immigration laws.

6 Likewise, the INA permits the Executive Branch to exercise considerable executive discretion to

7 direct enforcement pursuant to federal policy objectives. See Arizona Dream Act Coal. v.

8 Brewer, ___ F.3d ___, No. 15-15307, 2017 WL 461503, at *9-10 (9th Cir. Feb. 2, 2017) (“By

9 necessity, the federal statutory and regulatory scheme, as well as federal case law, vest the

10 Executive with very broad discretion to determine enforcement priorities.”). Several Presidents

11 have exercised this discretion by Executive Order. And they have done so in differing ways,

12 reflecting their individual judgments as to how best to take care that the laws of the United States

13 be faithfully executed. See, e.g., Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (2016)

14 (“Suspending Entry Into the United States of Persons Contributing to the Situation in Libya”);

15 Exec. Order No. 13,608, 77 Fed. Reg. 26,409 (2012) (“Suspending Entry Into the United States of

16 Foreign Sanctions Evaders With Respect to Iran and Syria”); Exec. Order No. 12,807, 57 Fed.

17 Reg. 23,133 (1992) (interdiction of undocumented aliens on oceangoing vessels). Following the

18 President’s lead, the Secretary of Homeland Security has also consistently exercised similar

19 executive discretion in the enforcement of federal immigration law. See, e.g., Mem. from Jeh

20 Charles Johnson, Sec’y of Homeland Sec., to Thomas S. Winkowski, Acting Dir., U.S.

21 Immigration & Customs Enforcement, et al., Policies for the Apprehension, Detention and

22 Removal of Undocumented Immigrants (Nov. 20, 2014), https:// www.dhs.gov/ sites/ default/

23 files/ publications/ 14_1120_memo_prosecutorial_discretion.pdf (rescinded Feb. 20, 2017).

24

The INA contains a number of provisions regarding the involvement of state and local

25 authorities in the enforcement of immigration law. For example, Section 287(g) of the INA

26 authorizes the Secretary to enter into written agreements with a state or local government under

27 which officers of such government may “perform a function of an immigration officer in relation

28

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1 to the investigation, apprehension, or detention of aliens in the United States.” 8 U.S.C.

2 § 1357(g)(1). Likewise, the INA provides for cooperation with DHS in the “identification,

3 apprehension, detention, or removal of aliens not lawfully present in the United States[,]” even

4 without a formal cooperation agreement. Id. § 1357(g)(10)(B). Another provision, 8 U.S.C.

5 § 1373, ensures the sharing of immigration information between federal and state actors:

6

Notwithstanding any other provision of Federal, State, or local law, a Federal,

7

State, or local government entity or official may not prohibit, or in any way

restrict, any government entity or official from sending to, or receiving from,

8

[federal immigration authorities] information regarding the citizenship or

immigration status, lawful or unlawful, of any individual.
9
Id. § 1373(a). Section 1373 also proscribes prohibiting or restricting any government entity from

10
“maintaining” information regarding the immigration status of any individual. Id. § 1373(b).

11
Well before the issuance of Executive Order 13,768, the compliance of state and local

12
governments with Section 1373 has been of interest to federal agencies because such govern-

13
ments are recipients of federal grants. For example, the Inspector General of the Department of

14
Justice issued a memorandum on May 31, 2016, as plaintiff notes (Doc. 1 at 16 n.4, 19 n.6),

15
describing a concern that several state and local governments receiving federal grants were not

16
complying with 8 U.S.C. § 1373. See Mem. from Michael E. Horowitz, Inspector Gen., to Karol

17
V. Mason, Assistant Att’y Gen., Office of Justice Programs, Department of Justice Referral of

18
Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016),

19
https:// oig.justice.gov/ reports/ 2016/ 1607.pdf. After reviewing a sample of local ordinances

20
regarding communication with federal immigration officials, the Inspector General observed that

21
some applications of the ordinances appeared to be inconsistent with Section 1373. Id. at 4-8.

22
Nevertheless, the report noted, “[N]o one at DHS or [Immigration and Customs Enforcement] has

23
made a formal legal determination whether certain state and local laws or policies violate Section

24
1373, and we are unaware of any Department of Justice decision in that regard.” Id. at 8 n.12.

25
II. Executive Order 13,768

26
The President signed Executive Order 13,768, Enhancing Public Safety in the Interior of

27
the United States, on January 25, 2017. 82 Fed. Reg. 8,799 (Jan. 30, 2017). The Order seeks to

28

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1 “[e]nsure the faithful execution of the immigration laws,” including the INA. See id. § 2(a), 82

2 Fed. Reg. at 8,799. It sets forth several policies and priorities regarding enforcement of federal

3 immigration law within the United States. The Order likewise instructs federal officials,

4 including the Secretary of Homeland Security, the Attorney General, and the Director of the

5 Office of Management and Budget (“OMB”), to use “all lawful means” to enforce those laws.

6 See id. §§ 1, 4, 82 Fed. Reg. at 8,799-800.

7

As permitted by the INA, Executive Order 13,768 establishes priorities regarding aliens

8 who are subject to removal from the United States under the immigration laws. Id. § 5, 82 Fed.

9 Reg. at 8,800. Several provisions of the Order instruct officials to take actions directing future

10 conduct, including instructions to promulgate certain regulations within one year, to take “all

11 appropriate action” to hire additional immigration officers, to seek agreements with state and

12 local officials under Section 287(g) of the INA (referred to above), to develop a program to

13 ensure adequate prosecution of criminal immigration offenses, and to establish an office to

14 provide certain services to victims of crimes committed by removable aliens. Id. §§ 6, 7, 8, 11,

15 13, 82 Fed. Reg. at 8,799-802. Throughout, the Order specifies that federal officials are to take

16 these actions as “permitted by law” or as “consistent with law.” Id. §§ 7, 8, 9(a), 10(b), 12, 14,

17 17, 18(b), 82 Fed. Reg. at 8,799-802.

18

Section 9 of the Executive Order establishes “the policy of the executive branch to ensure,

19 to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with

20 8 U.S.C. 1373.” Section 9(a) directs to federal agencies to achieve that policy:

21

In furtherance of this policy, the Attorney General and the Secretary [of Homeland

22

Security], in their discretion and to the extent consistent with law, shall ensure that

jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary juris-

23

dictions) are not eligible to receive Federal grants, except as deemed necessary for

law enforcement purposes by the Attorney General or the Secretary. The Secre-

24

tary has the authority to designate, in his discretion and to the extent consistent

25

with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373,

26

or which has in effect a statute, policy, or practice that prevents or hinders the

enforcement of Federal law.

27

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1 Id. § 9(a), 82 Fed. Reg. at 8,801. Section 9 further directs the Secretary to publicize, each week,

2 “a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or

3 otherwise failed to honor any detainers with respect to such aliens.” Id. § 9(b), 82 Fed. Reg. at

4 8,801. It also instructs the Director of OMB to “obtain and provide relevant and responsive

5 information on all Federal grant money that currently is received by any sanctuary jurisdiction.”

6 Id. § 9(c), 82 Fed. Reg. at 8,801.

7

Finally, the Executive Order directs the Secretary of Homeland Security and the Attorney

8 General to report on their progress in implementing the Order, first “within 90 days of the date of

9 [the] order and again within 180 days of the date of [the] order.” Id. § 15, 82 Fed. Reg. at 8,802.

10 III. The County’s Claims for Emergency Relief

11

The County seeks a preliminary injunction against the implementation of Section 9 of the

12 Executive Order (Doc. 26). The County acknowledges that the Order does not define “sanctuary

13 jurisdiction” (Doc. 1 ¶ 139). And the County does not claim to have been designated as a

14 “sanctuary jurisdiction” in accordance with the process contemplated in Section 9. The plaintiff

15 nevertheless alleges that it has adopted “policies and practices” that “conflict with the President’s

16 stated policies” (id. at 12).

17

Similarly, while acknowledging that the Order does not define “Federal grants” (id.

18 ¶ 139), the County nonetheless speculates that the term “must” be interpreted as applying to “all

19 federal funds, whatever their source” (Doc. 26 at 4 n.4). Thus, even though Section 9(a) refers

20 only to “Federal grants” and to the Secretary of Homeland Security and Attorney General, the

21 County alleges that implementation of this provision would deprive the County of all of its

22 federal funding – grants, reimbursements, and fee-for-service funds (Doc. 1 ¶ 48) – in areas

23 including social services, health care, and emergency services, such as Medicaid reimbursements

24 for a local hospital (Doc. 26 at 10). The County does not allege, however, that its federal funding

25 has been withheld or revoked, or that any federal agency has threatened such action.

26

27

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1

ARGUMENT

2

A preliminary injunction is “an extraordinary and drastic remedy” that should not be

3 granted “unless the movant, by a clear showing, carries the burden of persuasion.’” Lopez v.

4 Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972

5 (1997) (per curiam)). The Supreme Court has clarified the requirements for a preliminary

6 injunction in Winter v. Natural Resources Defense Council, 555 U.S. 7 (2008). Under Winter,

7 “[a] plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the

8 merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

9 balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20

10 (emphasis added). Critically, this is “a four-part conjunctive test, not . . . a four-factor balancing

11 test”; thus, Winter “reject[ed] the sliding-scale test as to the irreparable-injury prong” previously

12 used by some courts. U.S. Bank, N.A. v. SFR Invs. Pool 1, LLC, 124 F. Supp. 3d 1063, 1070 (D.

13 Nev. 2015); see Am. Trucking Ass’ns v. City of Los Angeles, 559 F.3d 1046, 1052 (9th Cir. 2009)

14 (“To the extent that our cases have suggested a lesser standard, they are no longer controlling, or

15 even viable.”) (footnote omitted). Further, “[t]he party seeking the injunction bears the burden of

16 proving these elements.” Campbell v. Feld Entm’t Inc., No. 12-CV-4233-LHK, 2013 WL

17 4510629, at *4 (N.D. Cal. Aug. 22, 2013).

18

Plaintiff’s motion fails for at least four reasons. First, the Executive Order does not

19 change existing law, but merely instructs the Attorney General and the Secretary of Homeland

20 Security to “employ all lawful means to ensure the faithful execution of the immigration laws of

21 the United States,” including 8 U.S.C. § 1373. See Exec. Order No. 13,768, §§ 4, 9, 82 Fed. Reg.

22 at 8,800, 8,801. Second, the County cannot show the imminent irreparable harm necessary for

23 emergency relief because the Secretary and the Attorney General must take a series of steps

24 before Section 9 of Executive Order 13,768 could have any tangible effect on the County. Third,

25 the purported injury that plaintiff alleges is both monetary and remediable, meaning that there is

26 an adequate remedy at law. Finally, and relatedly, plaintiff lacks a “likelihood of success” given

27 the justiciability flaws in its complaint. Among them, the County has failed to establish that (1) it

28

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1 has suffered “concrete” injury, as it must under the standing doctrine; (2) it has suffered the kind

2 of substantial harm that the Supreme Court has identified as necessary to overcome ripeness

3 concerns in cases asserting pre-enforcement challenges to agency action; and (3) its claims satisfy

4 the “fitness” element of the ripeness inquiry because unimplemented directives contained in an

5 Executive Order are not fit for judicial review under binding precedent. Thus, because plaintiff’s

6 claims are subject to dismissal on several grounds, it necessarily cannot show a “likelihood of

7 success” on the merits of those claims. For these reasons, the motion for preliminary injunction

8 must be denied.

9 I. 10
11

Plaintiff Cannot Show Irreparable Harm
A. The Supreme Court Requires a Likelihood of Immediate, Concrete Irreparable Harm Before an Injunction May Issue

12

As reflected in Winter, which focused on irreparable harm, see 555 U.S. at 22, satisfying

13 the requirement of immediate and irreparable harm is “crucial” to securing a preliminary

14 injunction. Miller ex rel. NLRB v. California Pac. Med. Ctr., 991 F.2d 536, 543 (9th Cir. 1993).

15 The district court in Winter had granted a preliminary injunction, relying on a “‘sliding scale’

16 whereby the required degree of harm increases as the likelihood of success decreases,” and vice

17 versa. Winter v. Natural Res. Def. Council, 530 F. Supp. 2d 1110, 1113 n.4 (C.D. Cal. 2008).

18 Preliminary relief was appropriate, the court held, because plaintiffs had demonstrated “a strong

19 likelihood of prevailing on the merits . . . and there [was] a possibility of irreparable harm.” Id. at

20 1118. The Ninth Circuit affirmed on the same basis. Winter v. Natural Res. Def. Council, 518

21 F.3d 658, 697 (9th Cir. 2008).

22

The Supreme Court reversed. In doing so, the Court noted that its “frequently reiterated

23 standard requires plaintiffs seeking preliminary relief to demonstrate that irreparable injury is

24 likely in the absence of an injunction.” 555 U.S. at 22. “Issuing a preliminary injunction based

25 only on a possibility of irreparable harm,” the Supreme Court said, “is inconsistent with our

26 characterization of injunctive relief as an extraordinary remedy that may only be awarded upon a

27 clear showing that the plaintiff is entitled to such relief.” Id. Thus, a party seeking a preliminary

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1 injunction must establish both that “he is likely to succeed on the merits [and] that he is likely to

2 suffer irreparable harm in the absence of preliminary relief” – as well as “that the balance of

3 equities tips in his favor, and that an injunction is in the public interest.” Id. at 20 (emphasis

4 added); see Arc of Cal. v. Douglas, 757 F.3d 975, 990 (9th Cir. 2014) (plaintiff “must demon-

5 strate that irreparable injury is likely . . . not merely . . . possible”).

6

Further, “[t]he threat of irreparable harm must . . . be ‘immediate.’” Arcsoft, Inc. v.

7 Cyberlink Corp., 153 F. Supp. 3d 1057, 1071 (N.D. Cal. 2015) (quoting Caribbean Marine Servs.

8 Co. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988)). “A plaintiff must do more than merely allege

9 imminent harm sufficient to establish standing; a plaintiff must demonstrate immediate threatened

10 injury as a prerequisite to preliminary injunctive relief.” Boardman v. Pac. Seafood Grp., 822

11 F.3d 1011, 1022 (9th Cir. 2016). That injury, moreover, must be “real and concrete” rather than

12 merely “abstract.” See Los Angeles Mem’l Coliseum Comm’n v. NFL, 634 F.2d 1197, 1201 (9th

13 Cir. 1980); Native Ecosystems Council v. Krueger, 40 F. Supp. 3d 1344, 1349 (D. Mont. 2014).

14

Finally, where the plaintiff “has failed to establish a likelihood of irreparable harm,” a

15 court need not even consider the other requirements. Painsolvers, Inc. v. State Farm Mut. Auto.

16 Ins. Co., 685 F. Supp. 2d 1123, 1139 (D. Haw. 2010); see RasterOps v. Radius, Inc., 861 F. Supp.

17 1479, 1498 (N.D. Cal. 1994).

18

B. The County Cannot Demonstrate a Likelihood of

19

Immediate, Concrete Irreparable Harm Given the

Absence of Any Action under Section 9

20

Measured against this legal backdrop, the County has not established the threat of

21 “immediate” and “concrete” irreparable harm necessary to secure a preliminary injunction. The

22 Executive Order subjects the County not to new law, but only to the bounds of existing law.

23 Section 9 directs the Secretary and Attorney General to use their existing legal authority to ensure

24 that jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373” will not be eligible to

25 receive Federal grants “to the extent consistent with law.” By its terms, that provision

26 incorporates the body of law that governs federal grants and defines when they can be declined

27 for failing to satisfy a condition – here, compliance with Section 1373. By specifying that the

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1 authority under Section 9 be exercised “to the extent consistent with law,” the President has

2 directed the Secretary and the Attorney General to follow the governing legal limitations, such as

3 the procedural requirements for making or revoking the federal grants. See, e.g., 28 C.F.R. pt. 18

4 (Office of Justice Programs Hearing and Appeal Procedures); 44 C.F.R. § 206.440 (appeals in

5 Hazard Mitigation Grant Program). There is no indication that the Order will be implemented

6 inconsistent with those limitations or with any other applicable laws.

7

Furthermore, Executive Order 13,768 is not self-executing. Rather, it sets forth policies

8 and priorities, and directs certain federal agencies to take additional discretionary actions going

9 forward to enforce federal immigration laws more fully. Many of the Order’s provisions thus

10 merely direct federal agencies to begin internal preparations to fully enforce federal law. For

11 example, the Order directs the Secretary of Homeland Security to promulgate certain regulations

12 within a year, and it directs the Secretary and the Attorney General to develop a program to

13 ensure adequate prosecution of criminal immigration offenses. See Exec. Order No. 13,768, §§ 6,

14 11, 82 Fed. Reg. at 8,800, 8,801. In several other respects, the Order is a presidential directive to

15 the Secretary and Attorney General guiding their future exercise of discretion in the enforcement

16 of immigration law. See Arizona Dream Act Coal., ___ F.3d at ___, 2017 WL 461503, at *10

17 (“By necessity, the federal statutory and regulatory scheme, as well as federal case law, vest the

18 Executive with very broad discretion to determine enforcement priorities.”).

19

Thus, Section 9 of the Order directs the Secretary to designate a state or local government

20 as a “sanctuary jurisdiction.” Section 9 likewise directs the Secretary and the Attorney General to

21 ensure that such jurisdictions are ineligible to receive federal grants, “except as deemed necessary

22 for law enforcement purposes.” By expressly directing that such future discretionary agency

23 actions be exercised “consistent with law,” see Exec. Order No. 13,768, § 9, the Order

24 incorporates, among other things, the law regarding grant conditions and procedures.

25

As a result, a series of future actions must occur before Section 9 could have any effect on

26 a receipt of federal grant funds: Among other things, (1) the Attorney General and the Secretary

27 of Homeland Security must determine exactly what constitutes “willful refusal to comply with 8

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1 U.S.C. § 1373”; (2) the Secretary must identify any state or local governments that constitute

2 “sanctuary jurisdictions” and make formal designations to that effect; (3) the Secretary and the

3 Attorney General must decide which federal funding sources are “necessary for law enforcement

4 purposes”; (4) the Secretary and the Attorney General must then determine how to “ensure” that

5 sanctuary jurisdictions are ineligible to receive the relevant grant funds; and (5) the Secretary and

6 the Attorney General must determine how to implement those actions “consistent with law.” The

7 Order thus explicitly contemplates that some time will be required for implementation.2

8

The County does not allege that the Federal Government has taken any of these actions.

9 Nor does the County claim that it has been designated as a “sanctuary jurisdiction” or that it has

10 been denied any federal funds. The County likewise does not allege that it has been notified that

11 any funds will be denied. None of those actions has occurred, and those events may never occur.

12 The County’s conjecture about the “possibility” of future harm alone does not justify preliminary

13 injunctive relief. See Winter, 555 U.S. at 22; see also Connecticut v. Massachusetts, 282 U.S.

14 660, 674 (1931) (An injunction “will not be granted against something merely feared as liable to

15 occur at some indefinite time in the future.”).

16

The County’s arguments regarding current irreparable harm are unconvincing. First,

17 plaintiff asserts that it provides certain services whose costs the federal government later

18 reimburses and that it must choose, therefore, either to provide the services without an assurance

19 of reimbursement or to discontinue the services (Doc. 26 at 23). But far from irreparable harm,

20 this is instead a risk that grant recipients always face: If the terms of the grant require compliance

21

22

2 See, e.g., Exec. Order No. 13,768, § 6 (requiring Secretary to promulgate regulations “to

ensure the assessment and collection of all fines and penalties that the Secretary is authorized
23 under the law to assess and collect from aliens unlawfully present in the United States and from

24

those who facilitate their presence in the United States”); § 8 (requiring Secretary to enter into agreements with state and local officials under Section 287(g) of INA); § 11 (requiring Secretary

25 and Attorney General “to develop and implement a program that ensures that adequate resources

are devoted to the prosecution of criminal immigration offenses”); § 15 (requiring Secretary and

26 Attorney General to “report on the progress of the directives contained in this order within 90

days . . . and again within 180 days.”); see also Ltr. from Samuel R. Ramer, Acting Ass’t Att’y
27 Gen., Office of Legis. Affairs to Sens. Elizabeth Warren and Edward J. Markey (Mar. 7, 2017)

28 (Attachment 1 hereto).

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1 with certain federal laws, such as Section 1373, and those terms are not followed, then the

2 recipient is in violation of the grant conditions, and there is a risk that the Federal Government

3 may enforce those terms to the detriment of the grantee and its financial planning. If the grant

4 language does not require compliance with Section 1373, the Executive Order does not purport to

5 give the Secretary or Attorney General the unilateral authority to alter those terms. This is

6 underscored by the fact that Executive Order 13,768 does not change the law, but only instructs

7 the Attorney General and the Secretary of Homeland Security to enforce existing law. Moreover,

8 the County’s claimed harm is economic in nature, and “[i]t is well established that mere economic

9 injury does not constitute irreparable harm.” Kitazato v. Black Diamond Hosp. Invs., LLC, 655

10 F. Supp. 2d 1139, 1147 (D. Haw. 2009); see Sampson v. Murray, 415 U.S. 61, 89 (1974) (“Mere

11 injuries, however substantial, in terms of money, time and energy necessarily expended in the

12 absence of a[n] [injunction], are not enough. The possibility that adequate compensatory or other

13 corrective relief will be available at a later date, in the ordinary course of litigation, weighs

14 heavily against a claim of irreparable harm.”); Ali v. United States, 932 F. Supp. 1206, 1210

15 (N.D. Cal. 1996) (“Economic injury alone does not support a finding of irreparable harm.”). The

16 reason, of course, is that there is an adequate remedy at law for the loss of monies.

17

Second, the County asserts that the Executive Order “has created a cloud of financial

18 uncertainty” over its budgetary decision-making (Doc. 26 at 23-24). Budgetary “uncertainty,”

19 however, is not the “real and concrete injury” sufficient to justify a preliminary injunction. See

20 Los Angeles Mem’l Coliseum Comm’n, 634 F.2d at 1201. Moreover, governmental budgeting

21 always suffers from some amount of uncertainty, in relation to both costs (which are based on

22 services provided) and income (which is based in part on tax revenues). In other words, the

23 plaintiff cannot accurately claim that an otherwise certain endeavor is now less certain. Legal

24 restrictions, moreover, always create some risk, whether the likelihood of enforcement is low or

25 high.

26

Furthermore, even if any hypothetical “uncertainty” regarding the County’s future receipt

27 of federal funds constituted irreparable harm (which it does not), an injunction setting aside the

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1 Order would not remedy any such harm. As noted already, the Order does not alter or expand

2 existing law governing the Federal Government’s discretion to revoke or deny a grant where the

3 grantee violates legal requirements. Thus, any uncertainty the plaintiff might hypothetically face

4 would exist regardless of whether the Court were to enjoin the Order itself. Additionally, the

5 terms and conditions of an existing grant are governed by the grant documents, and any “claw

6 back [of] previously appropriated funds retroactively” (Doc. 26 at 21) could occur only pursuant

7 to those terms and conditions.

8

Third, the County asserts that “as a matter of law, the deprivation of constitutional rights

9 unquestionably constitutes irreparable injury” (Doc. 26 at 22, internal quotation marks omitted).

10 The County does not, however, allege a “deprivation” of its “constitutional rights.” Instead, the

11 County points to a claimed violation of the constitutional structures that govern relationships

12 among the branches of the Federal Government and between the federal and state governments,

13 which is insufficient to establish irreparable injury. “[W]hile a violation of constitutional rights

14 can constitute per se irreparable harm . . . per se irreparable harm is caused only by violations of

15 ‘personal’ constitutional rights . . . to be distinguished from provisions of the Constitution that

16 serve ‘structural’ purposes, like the Supremacy Clause.” N.Y. State Rest. Ass’n v. N.Y. City Bd. of

17 Health, 545 F. Supp. 2d 363, 367 (S.D.N.Y. 2008) (internal quotation marks omitted), rev’d on

18 other grounds, 556 F.3d 114 (2d Cir. 2009); accord Prof’l Towing & Recovery Operators of Ill.

19 v. Box, No. 08 C 4096, 2008 WL 5211192, at *13 (N.D. Ill. Dec. 11, 2008) (“[T]he Court

20 concludes that Plaintiffs are not entitled to a presumption of irreparable harm because the

21 constitutional rights at stake here are not ‘personal’ in nature.”); see Am. Trucking Ass’ns v. City

22 of Los Angeles, 577 F. Supp. 2d 1110, 1127 (C.D. Cal. 2008) (noting that “[i]n the case of

23 Supremacy Clause violations,” the presumption of irreparable harm “is not necessarily

24 warranted”), rev’d on other grounds, 559 F.3d 1046 (9th Cir. 2009). Not surprisingly, therefore,

25 the cases on which plaintiff relies address alleged violations of individual constitutional rights,

26 none of which are involved here (Doc. 26 at 22). See Rodriguez v. Robbins, 715 F.3d 1127,

27 1131-32, 1144-45 (9th Cir. 2013) (alleging that detention pending removal from United States,

28

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1 without judicial bond hearing, violated individual due process rights); Melendres v. Arpaio, 695

2 F.3d 990, 994-95, 1002 (9th Cir. 2012) (alleging that local law enforcement officers had engaged

3 in racial profiling in violation of plaintiffs’ individual Fourth and Fourteenth Amendment rights);

4 see also Elrod v. Burns, 427 U.S. 347, 373 (1976) (holding that “[t]he loss of First Amendment

5 freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury”)

6 (emphasis added).

7

In sum, the plaintiff has not demonstrated, and cannot “demonstrate[,] that irreparable

8 injury is likely in the absence of an injunction.” Winter, 555 U.S. at 22.

9 II. 10

The County Cannot Establish a Likelihood of Success on the Merits Because Its Claims Are Non-Justiciable

11

A party seeking a preliminary injunction must also “establish that [it] is likely to succeed

12 on the merits.” Winter, 555 U.S. at 20 (emphasis added). The County cannot establish such a

13 likelihood in this case because its claims are non-justiciable under principles of ripeness and

14 standing. See Pollara v. Radiant Logistics Inc., No. CV 12-0344 GAF (SPX), 2012 WL

15 12887095, at *5 (C.D. Cal. Sept. 13, 2012) (noting that “standing to bring a claim . . . is a

16 necessary predicate to demonstrate a likelihood of success on the merits”); Timbisha Shoshone

17 Tribe v. Salazar, 697 F. Supp. 2d 1181, 1188 (E.D. Cal. 2010) (“Because [Defendant] raises

18 serious questions as to the Court’s subject matter jurisdiction over Plaintiffs’ claim, Plaintiffs fail

19 to establish the likelihood of success on the merits of their claims.”). For the same reasons that

20 plaintiff cannot establish the “irreparable injury” needed for a preliminary injunction, it also

21 cannot show a likelihood of success on the merits because its claims are subject to dismissal.

22 Winter, 555 U.S. at 20.

23

Under Article III of the Constitution, the jurisdiction of the federal courts extends only to

24 “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. Matters outside this rubric are “non-

25 justiciable.” Ore. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288

26 F.3d 414, 416 (9th Cir. 2002). Two principles of justiciability are involved here: standing and

27 ripeness. “While standing is concerned with who is a proper party to litigate a particular matter,

28

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1 the doctrines of mootness and ripeness determine when that litigation may occur.” Haw. Cty.

2 Green Party v. Clinton, 14 F. Supp. 2d 1198, 1201 (D. Haw. 1998). Where a plaintiff lacks

3 standing or its claims are unripe, the court lacks jurisdiction. See Nat’l Inst. of Family & Life

4 Advocates v. Harris, 839 F.3d 823, 832 (9th Cir. 2016).

5

To satisfy the “irreducible constitutional minimum” of standing, a plaintiff must

6 demonstrate an “injury in fact,” a “fairly traceable” causal connection between the injury and

7 defendant’s conduct, and redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

8 102-03 (1998). The injury needed for constitutional standing must be “concrete,” “objective,”

9 and “palpable,” not merely “abstract” or “subjective.” See Whitmore v. Arkansas, 495 U.S. 149,

10 155 (1990); Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975). “[S]tanding ‘is perhaps the most

11 important of [the jurisdictional] doctrines.’” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 231

12 (1990).

13

Constitutional justiciability also requires that a dispute be ripe for judicial consideration –

14 that is, that the challenged action “has been formalized and its effects felt in a concrete way by the

15 challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). In other words, “[a]

16 claim is not ripe for adjudication if it rests upon contingent future events that may not occur as

17 anticipated, or indeed may not occur at all.” Texas v. United States, 523 U.S. 296, 300 (1998)

18 (internal quotation marks omitted).

19

In assessing ripeness in the context of a “pre-enforcement challenge” to a statutory or

20 administrative enactment, the courts consider “both the fitness of the issues for judicial decision

21 and the hardship to the parties of withholding court consideration.” Abbott Labs., 387 U.S. at

22 149. “A claim is fit for decision if the issues raised are primarily legal, do not require further

23 factual development, and the challenged action is final.” Standard Alaska Prod. Co. v. Schaible,

24 874 F.2d 624, 627 (9th Cir. 1989). In other words, a court considers whether the court and the

25 parties would “benefit from deferring review until the agency’s policies have crystallized and the

26 question arises in some more concrete and final form.” Eagle-Picher Indus., Inc. v. EPA, 759

27 F.2d 905, 915 (D.C. Cir. 1985) (internal quotation marks omitted); see U.S. W. Commc’ns v. MFS

28

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1 Intelenet, Inc., 193 F.3d 1112, 1119 (9th Cir. 1999) (finding that claim was not fit for decision

2 where administrative proceedings had not concluded and court would “benefit” from outcome of

3 those proceedings). Finally, “[t]o meet the hardship requirement, a litigant must show that

4 withholding review would result in direct and immediate hardship and would entail more than

5 possible financial loss.” Winter v. California Med. Review, Inc., 900 F.2d 1322, 1325 (9th Cir.

6 1989) (internal quotation marks omitted).

7

Applying these standards here, the plaintiff cannot show the “injury in fact” needed for

8 constitutional standing, Steel Co., 523 U.S. at 102-03, and its claims are not ripe for judicial

9 review, Abbott Labs., 387 U.S. at 148-49. Given the many steps that must be taken before any

10 federal funds might be withheld under Section 9 of the Executive Order, the County has not

11 suffered any “concrete,” “objective,” and “palpable” injury. See Whitmore, 495 U.S. at 155;

12 Bigelow, 421 U.S. at 816-17. Although plaintiff alleges that the Order has created a “cloud of

13 financial uncertainty” (Doc. 26 at 23), any such “cloud” would be “abstract” and “subjective”

14 rather than “concrete.” See Whitmore, 495 U.S. at 155; Bigelow, 421 U.S. at 816-17.

15

Further, plaintiff’s claims are not ripe because Section 9 of the Order “has [not] been

16 formalized and its effects felt in a concrete way.” Abbott Labs., 387 U.S. at 148-49.

17 Implementation of Section 9 “rests upon [several] contingent future events” – including

18 clarification of some of its terms – and those terms may ultimately be defined such as to exclude

19 the County or its grants or otherwise to greatly diminish the Order’s “anticipated” impact. See

20 Texas, 523 U.S. at 300. Because Section 9 has not yet been implemented and the Secretary of

21 Homeland Security and Attorney General must take several actions before that can occur, this

22 Court would greatly “benefit from deferring review” until the parameters of its implementation

23 “have crystallized and the question arises in some more concrete and final form” that is “fit” for

24 judicial decision. Eagle-Picher Indus., Inc., 759 F.2d at 915; see U.S. W. Commc’ns, 193 F.3d at

25 1119; see also Abbott Labs., 387 U.S. at 149.

26

Finally, the uncertainties surrounding the implementation of Section 9 and the need for

27 “factual development” greatly outweigh any “hardship” to the County from awaiting those

28

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1 developments. Standard Alaska Prod. Co., 874 F.2d at 627. As noted already, several steps must

2 be taken before Section 9 can be implemented, including a determination as to the federal grants

3 covered, how to limit those grants “consistent with law,” and what constitutes a “sanctuary

4 jurisdiction.” Those determinations will have a bearing on whether Section 9 is eventually

5 applied to the plaintiff or some federal grants that currently benefit the plaintiff. Thus, any

6 “hardship” to the County is far from “immediate,” and its protestation of budgetary “uncertainty”

7 does not constitute actual “financial loss” – which, even where it occurs, does not qualify as

8 “hardship” under this analysis. See Winter, 900 F.2d at 1325.

9 III. 10

The Public Interest and the Balance of Equities Militate Against the Injunction Sought

11

Lastly, a party seeking a preliminary injunction must “establish . . . that the balance of

12 equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20.

13 Where the Federal Government is the defendant, these factors “merge” into one. Nken v. Holder,

14 556 U.S. 418, 435 (2009). The most pertinent and concretely expressed public interest in relation

15 to this case is contained in 8 U.S.C. § 1373, which expresses the public interest in supporting the

16 enforcement of federal immigration law. Section 9 of the Order is meant simply to “ensure”

17 compliance with that statute. See Exec. Order No. 13,768, § 9(a), 82 Fed. Reg. at 8,801.

18 Therefore, the public interest lies in allowing the Executive Branch to pursue the necessary steps

19 to implement this Order. See N.D. v. Haw. Dep’t of Educ., 600 F.3d 1104, 1113 (9th Cir. 2010)

20 (noting that “it is obvious that compliance with the law is in the public interest”); Rubin ex rel.

21 NLRB v. Vista del Sol Health Servs., Inc., 80 F. Supp. 3d 1058, 1108 (C.D. Cal. 2015) (stating

22 that “the public interest favors ensuring compliance with federal law”). Additionally, the public

23 interest prohibits judicial “advisory opinions,” which the County’s motion would require this

24 Court to render in relation to an Executive Order that has not yet been implemented. See Coal.

25 for a Healthy Cal. v. FCC, 87 F.3d 383, 386 (9th Cir. 1996).

26

27

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1 IV. No Injunction Should Issue Against the President

2

Even if an injunction were otherwise appropriate, it should not be issued against the

3 President of the United States, whom the County has chosen to name as a defendant. A request to

4 enjoin the President “draws the Court into serious separation-of-powers issues. . . . [T]he

5 Supreme Court has sent a clear message that an injunction should not be issued against the

6 President for official acts.” Newdow v. Bush, 391 F. Supp. 2d 95, 105, 106 (D.D.C. 2005); see

7 Mississippi v. Johnson, 71 U.S. 475, 500 (1866); Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir.

8 1996) (noting that the Supreme Court has issued a “stern admonition” that injunctive relief

9 against the President personally is an “extraordinary measure not lightly to be undertaken”).

10 V. 11

Any Preliminary Injunction Herein Should Be Limited to the Plaintiff

12

Even if the Court were to conclude that plaintiff has satisfied the requirements for a

13 preliminary injunction, the Court should not enter the “nationwide” injunction that the County

14 seeks (Doc. 26 at i). “[A]n injunction must be narrowly tailored to affect only those persons over

15 which [the court] has power, and to remedy only the specific harms shown by the plaintiffs, rather

16 than to enjoin all possible breaches of the law.” Price v. City of Stockton, 390 F.3d 1105, 1117

17 (9th Cir. 2004) (internal quotation marks omitted). Thus, courts routinely deny requests for

18 nationwide injunctive relief. See Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993) (staying

19 nationwide injunction insofar as it “grants relief to persons other than” named plaintiff); Skydive

20 Arizona, Inc. v. Quattrocchi, 673 F.3d 1105, 1116 (9th Cir. 2012) (affirming district court’s

21 refusal to grant nationwide relief).

22

Here, the preliminary injunction is sought by the County of Santa Clara, which has no

23 legitimate interest in the Executive Order’s effect on any other jurisdiction. Thus, the Court

24 should not enter an injunction that is broader than necessary to prevent any irreparable harm to

25 the plaintiff (although, as discussed above, there is none). Any injunction should not extend to

26 any other state or local governments. See, e.g., Monsanto Co. v. Geertson Seed Farms, 561 U.S.

27 139, 163 (2010) (narrowing injunction in part because the plaintiffs “do not represent a class, so

28

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1 they could not seek to enjoin such an order on the ground that it might cause harm to other

2 parties”); see also Envtl. Def. Fund v. Marsh, 651 F.2d 983, 1006 (5th Cir. 1981) (court must take

3 into account “the larger interests of society that might be adversely affected by an overly broad

4 injunction”). A nationwide injunction would not only be overbroad; it also would effectively

5 enable one district judge to prevent the government from defending the constitutionality of the

6 Executive Order in any other court, and interfere with the development of the law in other

7 circuits. See United States v. AMC Entm’t, Inc., 549 F.3d 760, 773 (9th Cir. 2008).

8

Furthermore, a nationwide injunction would be especially inappropriate here because

9 Section 9 of the Order would impact different jurisdictions differently, once steps are taken to

10 implement it “consistent with law.” The way in which the Order might eventually apply to any

11 individual jurisdiction will depend on that jurisdiction’s policies and practices and the specific

12 federal grant terms and procedures that are at issue with respect to the grants received or applied

13 for by the jurisdiction. No nationwide, universal injunction could possibly account for that

14 diversity.

15

CONCLUSION

16

Accordingly, plaintiff’s motion for preliminary injunction should be denied.

17 Dated: March 9, 2017

18
Respectfully submitted,
19

CHAD A. READLER

20

Acting Assistant Attorney General

21
BRIAN STRETCH

22

United States Attorney

23

JOHN R. TYLER

24

Assistant Director

25

/s/ W. Scott Simpson

26

W. SCOTT SIMPSON (Va. Bar #27487)

Senior Trial Counsel

27

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Opposition Prelim. Inj. No. 3:17-cv-00574-WHO

Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; MICK MULVANEY, Director of the Office of Management and Budget
21

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County of Santa Clara v. Donald J. Trump, et al., No. 3:17-cv-00574-WHO (N.D. Cal.)
Defendants’ Opposition to Plaintiff’s Motion for Preliminary Injunction
Attachment 1 Letter from Samuel R. Ramer, Acting Assistant Attorney
General, Office of Legislative Affairs to Senators Elizabeth Warren and Edward J. Markey (Mar. 7, 2017)

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1 OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA
2 JAMES R. WILLIAMS - # 271253 County Counsel
3 james.williams@cco.sccgov.org GRETA S. HANSEN - # 251471
4 DANIELLE L. GOLDSTEIN - # 257486 KAVITA NARAYAN - # 264191
5 JAVIER SERRANO - # 252266 JULIE WILENSKY - # 271765
6 JULIA B. SPIEGEL - # 292469 ADRIANA L. BENEDICT - # 306936
7 70 West Hedding Street East Wing, Ninth Floor
8 San Jose, CA 95110-1770 Telephone: 408 299-5900
9 Facsimile: 408 292-7240

KEKER, VAN NEST & PETERS LLP JOHN W. KEKER - # 49092 jkeker@keker.com ROBERT A. VAN NEST - # 84065 rvannest@keker.com DANIEL PURCELL - # 191424 dpurcell@keker.com CODY S. HARRIS - # 255302 charris@keker.com NICHOLAS S. GOLDBERG - # 273614 ngoldberg@keker.com EDWARD A. BAYLEY - # 267532 ebayley@keker.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188

10 Attorneys for Plaintiff COUNTY OF SANTA CLARA

11 UNITED STATES DISTRICT COURT

12 NORTHERN DISTRICT OF CALIFORNIA

13 SAN FRANCISCO DIVISION

14

COUNTY OF SANTA CLARA, 15

Case No. 17-cv-00574-WHO

Plaintiff, 16

PLAINTIFF COUNTY OF SANTA CLARA’S REPLY BRIEF IN SUPPORT

v. 17

OF MOTION FOR PRELIMINARY INJUNCTION

DONALD J. TRUMP, President of the 18 United States of America, JOHN F. KELLY,

Date:

April 5, 2017

in his official capacity as Secretary of the 19 United States Department of Homeland

Time: Dept.:

2:00 pm Courtroom 2

Security, JEFFERSON B. SESSIONS, in his 20 official capacity as Attorney General of the

Judge:

Hon. William Orrick

United States, JOHN MICHAEL “MICK” 21 MULVANEY, in his official capacity as

Date Filed: February 3, 2017

Director of the Office of Management and 22 Budget, and DOES 1-50,

Trial Date: Not yet set

23

Defendants.

24

25

26

27

28

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1 2 3 I. 4 II. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21
III. 22 23 24 25 26 27 28
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TABLE OF CONTENTS Page
INTRODUCTION ...............................................................................................................1 ARGUMENT .......................................................................................................................2 A. The Administration mischaracterizes the relevant provisions of the
Executive Order, which was intended to, and does, change existing law. ..............2 B. The Administration concedes the merits of the County’s constitutional
claims. ......................................................................................................................4 C. The County has established irreparable harm. .........................................................5
1. The Executive Order coerces local governments to change their policies under threat of defunding, establishing irreparable harm...............6
2. The County’s undisputed constitutional injury constitutes irreparable harm as a matter of law..............................................................7
3. The vast and undisputed harm to the County’s core services, finances, and budgeting processes further justifies injunctive relief. ..........7
4. There is no reason to wait to enter an injunction until the Administration has taken acts that violate the Constitution.........................9
D. The balance of harms and public interest overwhelmingly favor the County. ...................................................................................................................11
E. The County’s claims are justiciable. ......................................................................11 1. The County is suffering real and immediate injury-in-fact. ......................12 2. The County’s claims are prudentially ripe.................................................13
F. The President should be enjoined. .........................................................................14 G. The Court should enter a nationwide preliminary injunction. ...............................15 CONCLUSION ..................................................................................................................15
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TABLE OF AUTHORITIES
Page(s)
Cases
Abbott Labs. v. Gardner, 387 U.S. 136 (1967)..................................................................................................................14
American Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046 (9th Cir. 2009) ....................................................................................................7
Angeles v. U.S. Airways, Inc., 2013 WL 622032 (N.D. Cal. Feb. 19, 2013) ..............................................................................4
Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053 (9th Cir. 2014) ..................................................................................................11
Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987) ..................................................................................................15
Califano v. Yamasaki, 442 U.S. 682 (1979)..................................................................................................................15
California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088 (9th Cir. 2003) ..................................................................................................13
Cedar-Riverside People’s Ctr. v. Minnesota Dep’t of Human Servs., 2009 WL 1955440 (D. Minn. July 6, 2009) ...........................................................................8, 9
Chamber of Commerce v. Reich, 57 F.3d 1099 (D.C. Cir. 1995) ............................................................................................13, 14
Citicorp Servs., Inc. v. Gillespie, 712 F. Supp. 749 (N.D. Cal. 1989) .............................................................................................7
Clinton v. City of New York, 524 U.S. 417 (1998)..................................................................................................................12
Coalition for Econ. Equity v. Wilson, 1996 WL 691962 (N.D. Cal. Nov. 27, 1996) ...........................................................................12
Decker v. O’Donnell, 661 F.2d 598 (7th Cir. 1980) ....................................................................................................15
Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)....................................................................................................................8
Franklin v. Massachusetts, 505 U.S. 788 (1992)..................................................................................................................14
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Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) ..................................................................................................11
Hawai’i v. Trump, 2017 WL 1011673 (D. Haw. Mar. 15, 2017)........................................................................6, 14
In re Online DVD Rental Antitrust Litig., 2011 WL 5883772 (N.D. Cal. Nov. 23, 2011) ...........................................................................4
Int’l Refugee Assistance Project v. Trump, No. TDC-17-0361 D. Md. (Mar. 15, 2017) ..........................................................................6, 14
Kansas Health Care Ass’n, Inc. v. Kansas Dep’t of Soc. & Rehab. Servs., 31 F.3d 1536 (10th Cir. 1994) ....................................................................................................9
Lacroix v. Junior, 2017 WL 837477 (Fla. Cir. Ct. Mar. 1, 2017) ..........................................................................15
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)..................................................................................................................13
MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007)..................................................................................................................12
Melendres v. Arpaio, 695 F.3d 990 (9th Cir. 2012) ................................................................................................7, 11
Morales v. Chadbourne, 793 F.3d 208 (1st Cir. 2015).....................................................................................................10
Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992)....................................................................................................................7
N.D. v. Hawaii Dep’t of Educ., 600 F.3d 1104 (9th Cir. 2010) ..................................................................................................11
National Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012)................................................................................................................5
Nelson v. NASA, 530 F.3d 865 (9th Cir. 2008) ......................................................................................................7
Nixon v. Sirica, 487 F.2d 700 (D.C. Cir. 1973) ..................................................................................................14
Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956 (9th Cir. 2015) ....................................................................................................12
Packard Elevator v. ICC, 782 F.2d 112 (8th Cir. 1986) ......................................................................................................8
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1 Printz v. United States, 521 U.S. 898 (1997)....................................................................................................................5
2

3

Rubin ex rel. NLRB v. Vista del Sol Health Servs., Inc., 80 F. Supp. 3d 1058 (C.D. Cal. 2015) ......................................................................................11

4 Schalk v. Teledyne, Inc.,

5

751 F. Supp. 1261 (W.D. Mich. 1990) .......................................................................................8

6 Shell Offshore, Inc. v. Greenpeace, Inc.,

709 F.3d 1281 (9th Cir. 2013) ..................................................................................................12 7

South Dakota v. Dole,

8

483 U.S. 203 (1987)................................................................................................................3, 5

9 Sunbelt Rentals, Inc. v. Victor,

10

2014 WL 492364 (N.D. Cal. Feb. 5, 2014) ................................................................................4

11 Susan B. Anthony List v. Driehaus

134 S. Ct. 2334 (2014)........................................................................................................12, 13 12

Swan v. Clinton,

13

100 F.3d 973 (D.C. Cir. 1996) ..................................................................................................14

14 Texas v. United States,

15

201 F. Supp. 3d 810 (N.D. Tex. 2016) ...........................................................................6, 12, 15

16 Texas v. United States,

86 F. Supp. 3d 591 (S.D. Tex. 2015) ....................................................................................6, 11

17

Thomas v. Union Carbide Agric. Prod. Co.,

18

473 U.S. 568 (1985)..................................................................................................................13

19 Utley v. Varian Assocs.,

20

811 F.2d 1279 (9th Cir. 1987) ....................................................................................................6

21 Virginia v. Am. Booksellers Ass’n, 484 U.S. 383 (1988)..................................................................................................................13

22

Washington v. Trump,

23

2017 WL 462040 (W.D. Wash. Feb. 3, 2017)..........................................................................14

24 Washington v. Trump,

25

847 F.3d 1151 (9th Cir. 2017) ........................................................................................6, 14, 15

26 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)..............................................................................................................5, 14
27

28
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Federal Statutes 8 U.S.C. § 1373.................................................................................................................................3 2 U.S.C. § 683.................................................................................................................................10 Federal Regulations Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017)..........................................................passim Constitutional Provisions U.S. CONST. art. I, § 8, cl. 1 ..............................................................................................................9 Other Authorities Patricia Mazzei, Miami-Dade Mayor Orders Jails to Comply with Trump
Crackdown on ‘Sanctuary’ Counties, Miami Herald, Jan. 26, 2017 ........................................15
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I. INTRODUCTION In its opening brief, the County of Santa Clara explained that, under controlling Supreme
Court precedent, Executive Order 13,768 (the “Executive Order” or “EO”) violates fundamental separation of powers principles, the Fifth Amendment’s bar against vagueness and its guarantee of procedural due process, and the Tenth Amendment’s prohibition against federal commandeering of state and local officials. See ECF 26 (“Mot.”) at 12–20. The Administration’s opposition brief, ECF No. 46 (“opposition” or “Opp.”), fails to address these arguments, conceding that the County is likely to prevail on the merits of its constitutional claims.
Rather than meeting the County’s arguments head-on, the Administration mischaracterizes the Executive Order, ignoring both its plain language and the President’s repeated and clear statements revealing its purpose and scope. Although the Administration styles its opposition as challenging “irreparable harm,” “standing,” or “ripeness,” its only real arguments are that the Executive Order has yet to be implemented and will be applied “consistent with law.” These arguments do not withstand scrutiny. The Executive Order cannot be implemented constitutionally because the President lacks the statutory or constitutional authority to defund and punish state and local governments as set forth in the Order. Further, the Administration ignores the Executive Order’s immediate and ongoing coercive effects on local jurisdictions, which alone constitute irreparable harm justifying injunctive relief. And there is no question that under the Supreme Court precedent the Administration ignores, the County has standing and its claims are ripe.
The most notable feature of the Administration’s opposition is that it significantly narrows the disputed issues before the Court by failing to contest much of what the County said in its motion. The opposition leaves the following critical points unaddressed:
The merits of the County’s constitutional claims. Despite using only 20 of its allotted 25 pages, the Administration fails to muster a substantive defense of the Executive Order’s constitutionality.
The Executive Order’s plain language. The Administration focuses on sections of the Order that the County is not challenging, while distorting Section 9, the sole provision that the
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1 County has moved to enjoin. In particular, the Administration never addresses Section 9’s

2 Enforcement Provision, which directs the Attorney General to take undefined “enforcement

3 actions” against jurisdictions he deems have shown insufficient obeisance to federal priorities.

4

The President’s statements. It is undisputed that the President has repeatedly made clear

5 that the Executive Order is intended to strip “sanctuary jurisdictions” of all federal funding. Yet

6 the Administration artfully avoids committing to a concrete interpretation of the Order, positing a

7 narrow reading of its threat to federal funds, at least for purposes of this motion. That argument

8 wholly ignores the President’s clearly expressed intent.

9

Binding precedent. The Administration spends several pages reciting general, undisputed

10 legal principles regarding the standards for injunctive relief, standing, and ripeness, while

11 ignoring the controlling cases the County relies on in support of its motion.

12

The Executive Order’s coercive effect. Being forced to change a local policy or practice

13 under a threat of defunding constitutes immediate and irreparable harm justifying injunctive

14 relief. The Administration offers no response to this argument or the cases establishing it.

15

The detailed factual record. The County presented nine sworn declarations, explaining in

16 detail the concrete and irreparable harm the County is suffering to its policymaking, financial,

17 budgetary, and constitutional interests. The Administration fails to address this evidence, with

18 proof of its own or otherwise. Instead, it discusses the issue of harm only at the highest possible

19 level of abstraction, and wrongly concludes that no harm exists because the Administration has

20 not yet defunded the County.

21

For all these reasons, and as explained below in further detail, the Court should grant this

22 motion and enter the requested nationwide preliminary injunction.

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II. ARGUMENT
A. The Administration mischaracterizes the relevant provisions of the Executive Order, which was intended to, and does, change existing law.
Throughout its brief, the Administration mischaracterizes the text, reach, and impact of an
Order it declines to defend on the merits, essentially arguing that the Executive Order can and
should be read to have no substantive effect at all. The Administration claims that the Order
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“does not alter or expand the existing law that governs when the Federal Government may revoke a federal grant,” and “does not change existing law.” Opp. at 3, 8. It further appears to argue that the Executive Order targets only federal grants that specifically require recipients to comply with 8 U.S.C. § 1373. Id. at 13 (“If the grant language does not require compliance with Section 1373, the Executive Order does not purport to give the Secretary or Attorney General the unilateral power to alter those terms.”). Those arguments ring hollow in light of the Executive’s Order’s plain text and clearly expressed purpose.
First, accepting the Administration’s position would require the Court to ignore the plain language of the Executive Order, which compels not only compliance with section 1373, but also Immigration and Customs Enforcement (“ICE”) detainer requests and “Federal law” in general. EO § 9(a), (b). Indeed, the Administration never once mentions, and in no way defends, Section 9(a)’s standardless Enforcement Provision granting the Attorney General carte blanche to “take appropriate enforcement action against any entity . . . which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” EO § 9(a). That provision unquestionably changes the law.
So too does Section 9(a)’s Defunding Provision, which states that any jurisdiction that “willfully refuse[s] to comply” with section 1373 becomes “not eligible to receive Federal grants.” Id. Nothing in the Order suggests that only federal appropriations that currently require compliance with section 1373 would be withheld. Indeed, it is telling that the Administration neither identifies a single grant that imposes that condition, nor addresses the numerous bills to do so that Congress considered and rejected. See Mot. at 16 n.12 (listing bills). Further undermining the Administration’s narrow interpretation, the Order specifically exempts grants for lawenforcement purposes, the only category of grants that Congress could conceivably link to compliance with section 1373 in a constitutional manner.1 See South Dakota v. Dole, 483 U.S. 203, 213 (1987) (conditions on federal appropriations must be linked to purpose of funds). On its
1 Indeed, as the County explained in its opening brief, Mot. at 6 & n.5, in two cases where the Department of Justice issued guidance linking federal grant programs with compliance with section 1373, the County declined those grant funds. Márquez Decl. ¶ 29 & Ex. H.
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face, the Order withdraws eligibility for all other federal grants. And notably, while the opposition acknowledges the County’s argument that the Order targets “Medicaid reimbursements” and other entitlement programs, see Opp. at 7, it declines to state clearly that the Order will leave those critical funds untouched.
Second, the opposition ignores the many statements by the President and his top aides confirming that the Executive Order effectuates a wholesale change in federal law, stripping “sanctuary cities” of all federal funding. Mot. at 3–5. The Order itself confirms that stated purpose. See EO § 2(c) (describing the Order’s purpose as ensuring that targeted jurisdictions “do not receive federal funds”). Neither the County nor the Court can rely on the opposition’s narrower interpretation when the Order and its signatory contradict it.
Third, if the Order does no more than direct executive branch officials to enforce existing law, the Administration could have identified what “existing law” allows it to withhold federal funding from “sanctuary jurisdictions” in accordance with the Order. It did not, and cannot. Rather, by ordering executive branch officials to impose new eligibility criteria for federal funds, the Executive Order changes the law (and violates the Constitution), because that power belongs solely to Congress. The Administration’s assurances that it will implement the Order “consistent with law” are vacuous, because its defunding mechanism is unconstitutional in its very operation.
All this confirms that the Executive Order’s and the Administration’s references to existing law are fig leaves designed to provide the Administration with sufficient plausible deniability to oppose this motion, while leaving unchanged the Executive Order’s plain meaning, as repeatedly touted by the President who issued it.
B. The Administration concedes the merits of the County’s constitutional claims. The most striking thing about the Administration’s opposition is that it declines to defend the Executive Order’s constitutionality, or to rebut the County’s arguments that it is likely to succeed on the substantive merits of its claims. This omission concedes the merits. See, e.g., Sunbelt Rentals, Inc. v. Victor, 2014 WL 492364, at *9 n.7 (N.D. Cal. Feb. 5, 2014); Angeles v. U.S. Airways, Inc., 2013 WL 622032, at *4 (N.D. Cal. Feb. 19, 2013) (“The failure to respond amounts to a concession.”); In re Online DVD Rental Antitrust Litig., 2011 WL 5883772, at *12
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(N.D. Cal. Nov. 23, 2011) (absent unusual circumstances, failure to respond on the merits is “viewed as grounds for waiver or concession of the argument”). The Administration fails to mention, much less distinguish, controlling precedents such as Dole, 483 U.S. 203 (1987) (limiting Congress’s spending power), National Federation of Independent Businesses v. Sebelius, 132 S. Ct. 2566 (2012) (forbidding coercive use of the spending power to impose a federal regulatory regime), and Printz v. United States, 521 U.S. 898 (1997) (barring the federal government from commandeering state and local officials to enact a federal program). Nor does the Administration defend the Executive Order against the County’s vagueness, procedural due process, and coercion challenges, which are wholly unconnected to the Order’s implementation. And the Administration nowhere disputes that the President acted in derogation of Congress’s will and without independent constitutional authority in issuing the Executive Order. Even Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952)—the seminal case on presidential power and executive orders—goes uncited in the opposition.
The Administration’s concession of the merits has fatal consequences for its irreparable harm and ripeness arguments. Why must the County wait for the government to take “the several steps necessary to implement” a facially unconstitutional order? Opp. at 2. Likewise, with respect to the balance of harms and public interest, there can be no harm in blocking an unconstitutional presidential directive, and no public interest in implementing or enforcing one.
C. The County has established irreparable harm. Unable to muster any argument that the Executive Order is constitutional, the opposition cites generic case law on injunctive relief while ignoring the County’s comprehensive factual showing that it is already suffering irreparable harm. The County submitted detailed declarations from its top administrative officials identifying the specific harms the Executive Order has already caused. The Administration never addresses this evidence, arguing only that the County could not possibly have suffered any harm, because the federal government has yet to declare the County a sanctuary jurisdiction and defund it accordingly. The Administration is wrong.
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1. The Executive Order coerces local governments to change their policies under threat of defunding, establishing irreparable harm.
The Administration never addresses, and thus concedes, the County’s argument that it is
suffering irreparable harm now, because the Executive Order invades the County’s local
policymaking role by coercing it to change its policies. Directly on point are the recent Texas v.
United States cases, where district courts and the Fifth Circuit found irreparable harm from
separate executive actions “designed to force Plaintiffs to amend their policies to comply or place
their federal funding in jeopardy,” deeming preliminary injunctive relief necessary and
appropriate to block that outcome. Texas v. United States, 201 F. Supp. 3d 810, 820 (N.D. Tex.
2016) (finding irreparable harm where a DOJ letter regarding access to bathrooms for transgender
students conflicted with local policies); see also Texas v. United States, 86 F. Supp. 3d 591, 673–
74 (S.D. Tex. 2015) (finding irreparable harm where federal immigration directive would force
states to grant benefits), aff’d, 787 F.3d 733, 749 (5th Cir. 2015). The Administration ignores
these cases and their reasoning entirely.
The Executive Order itself makes clear that it is intended to coerce state and local
governments to comply with President Trump’s immigration enforcement agenda. See EO §§
2(a), 2(c), 9. In addition, the President has repeatedly pledged, both on the campaign trail and
after taking office, to compel localities to support his immigration enforcement agenda by
denying all federal funding to jurisdictions that he believes are hindering that agenda, describing
defunding as a “weapon” to starve jurisdictions of “the money they need to properly operate as a city or state,” thereby “ending” such jurisdictions entirely.2 See Compl. ¶ 93; Harris Decl. ¶ 3 &
Ex. B at 4. In his “Contract with the American Voter,” then-candidate Trump promised flatly to
“cancel all federal funding to sanctuary cities.” https://www.donaldjtrump.com /contract/ (last
accessed March 13, 2017). The Executive Order is structured in exactly this way, giving the 2 Because the Court is interpreting an executive order, the President’s intent in issuing the Order matters. See Utley v. Varian Assocs., 811 F.2d 1279, 1285 (9th Cir. 1987); see also Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017) (considering statements the President made about “his intent to implement a ‘Muslim ban’” when analyzing an executive order’s constitutionality under the Establishment and Equal Protection clauses); Hawai’i v. Trump, 2017 WL 1011673, at *13–15 (D. Haw. Mar. 15, 2017) (same); Int’l Refugee Assistance Project v. Trump, No. TDC-170361, slip op. at 8–10 (D. Md. Mar. 15, 2017) (Dkt. No. 149) (same).
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Administration maximum coercive power by failing even to define what constitutes a “sanctuary jurisdiction.” Such coercion—“change your policies or else”—constitutes irreparable harm.
2. The County’s undisputed constitutional injury constitutes irreparable harm as a matter of law.
The Executive Order’s violations of the County’s constitutional rights “unquestionably constitute[] irreparable injury.” See Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012). The Administration argues that irreparable harm exists only as to claims involving “individual” constitutional rights, as opposed to rights derived from constitutional structures, such as the separation of powers. Opp. at 14. Here, the County has asserted “individual” constitutional claims under the Fifth Amendment’s Due Process Clause and the Tenth Amendment, in addition to separation-of-powers principles. Regardless, the Ninth Circuit does not recognize the Administration’s purported distinction between individual and structural constitutional rights, instead consistently holding that irreparable harm exists whenever a plaintiff pleads both a constitutional violation and monetary harm. See American Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1058–59 (9th Cir. 2009) (citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 381 (1992), and Nelson v. NASA, 530 F.3d 865, 882 (9th Cir. 2008), rev’d on other grounds, 562 U.S. 134 (2011)). American Trucking involved a challenge to a local port regulation under the dormant Commerce Clause, a wholly structural claim, and yet the court readily found irreparable harm where plaintiffs faced a choice between giving in to an unconstitutional practice or else suffering monetary harm.3 559 F.3d at 1058–59; see also Citicorp Servs., Inc. v. Gillespie, 712 F. Supp. 749, 753–54 (N.D. Cal. 1989) (presuming irreparable harm from an alleged violation of the Commerce Clause alone).
3. The vast and undisputed harm to the County’s core services, finances, and budgeting processes further justifies injunctive relief.
Sidestepping the County’s evidence, the Administration claims that there is no threat of irreparable harm from the Executive Order’s facial constitutional violations because the federal
3 The Administration cites the district court’s opinion in American Trucking for the contrary proposition, claiming it was reversed “on other grounds.” Opp. at 14. In fact, as noted above, the Ninth Circuit reversed precisely on this ground. 559 F.3d at 1058–59.
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1 government has not yet stripped the County of funding. That is not the law, and no case cited by

2 the Administration holds that loss of funds is a prerequisite to showing irreparable harm.

3

In its opening brief, the County set forth two ways in which the Executive Order is

4 presently causing irreparable harm to its ability to deliver vital health and social services to its 1.9

5 million residents, many of whom have nowhere else to turn. First, the County is currently

6 spending hundreds of millions of dollars for which it is entitled to federal reimbursement each

7 month, so it must choose, right now, whether to continue providing essential services to its

8 residents given the Executive Order’s plan to withhold that funding. See J. Smith Decl. ¶¶ 8–10;

9 Márquez Decl. ¶¶ 14–15, 19; Lorenz Decl. ¶ 8; Cody Decl. ¶ 13–15; Reed Decl. ¶¶ 8, 10–20.

10 Every day, the effect of an ineligibility determination under the Executive Order grows more

11 catastrophic. Second, the County cannot effectively budget and plan for future activities given

12 the financial uncertainty created by the Executive Order. See J. Smith Decl. ¶¶ 6–11; Márquez

13 Decl. ¶¶ 4, 11–21. This “financial planning burden” constitutes irreparable harm. Schalk v.

14 Teledyne, Inc., 751 F. Supp. 1261, 1268 (W.D. Mich. 1990).

15

The Administration’s glib response fails to address these arguments and the evidence

16 supporting them. Ignoring the magnitude of the impact to the County, its essential services, its

17 neediest residents if reimbursement is denied, and the cloud of financial uncertainty under which

18 the County labors, the Administration shrugs and says that monetary harm is usually not

19 irreparable and that budgeting always entails some uncertainty. See Opp. at 13. These answers

20 are inadequate and fail to rebut the County’s evidence. The issue here is not merely the loss of

21 money but the shuttering of life-sustaining services the County provides with that money.

22

In any case, a monetary loss that is significant enough to threaten the future viability of an

23 enterprise has long been deemed sufficiently “irreparable” to merit an injunction. See Doran v.

24 Salem Inn, Inc., 422 U.S. 922, 932 (1975). Where a plaintiff will “experience a substantial loss of

25 revenue, may face bankruptcy and there is no guarantee that defendants will follow through on

26 their promises to make future timely payments,” irreparable harm exists. Cedar-Riverside

27 People’s Ctr. v. Minnesota Dep’t of Human Servs., 2009 WL 1955440, *2 (D. Minn. July 6,

28
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2009) (citing Doran, 422 U.S. at 932); Packard Elevator v. ICC, 782 F.2d 112, 115 (8th Cir.
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1986) (monetary loss posing a danger to the viability of a business is irreparable harm). Moreover, the reason monetary harm is typically not seen as irreparable is because a plaintiff can sue for damages later. But here the defendant would be the federal government, meaning the County may face a claim of sovereign immunity. See Kansas Health Care Ass’n, Inc. v. Kansas Dep’t of Soc. & Rehab. Servs., 31 F.3d 1536, 1543 (10th Cir. 1994); Cedar-Riverside, 2009 WL 1955440, at *2. And even if the County could recover damages, by the time that claim is decided the County would have been forced to fire employees and discontinue services—or else change its local policies to succumb to an unconstitutional Order. No after-the-fact monetary award could make the County or its residents whole from harm caused by the closing of a local cancertreatment ward or shuttering of a neighborhood child-care program. Nor could it repair the constitutional injuries inflicted on the County and its residents if the County is commandeered into participating in the Administration’s immigration enforcement regime.
4. There is no reason to wait to enter an injunction until the Administration has taken acts that violate the Constitution.
The Administration also disputes irreparable harm because, it contends, “a series of future actions must occur before Section 9 [of the Executive Order] could have any effect on” the County. Opp. at 11–12. As just demonstrated, this is false; the County is suffering irreparable harm to its ability to make local policy, provide ongoing critical social and medical services, and plan for future contingencies. In any event, the “future actions” the Administration describes are themselves unconstitutional and among the very things the County is moving to enjoin.
For instance, the Administration argues that the County must wait to sue until after the Attorney General and Secretary of Homeland Security have taken actions to ensure that the County is ineligible to receive federal funds. Opp. at 12. But the executive branch has no unilateral power to declare the County ineligible for federal money. Only Congress has the power to direct federal spending, see U.S. Const. art. I, § 8, cl. 1, and even congressional spending power must be exercised subject to well-settled limitations. See Mot. at 12–15. Because the Administration nowhere asserts that the President, Attorney General, or Secretary have the constitutional authority to declare the County ineligible for federal funds, it makes no
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1 sense to force the County to wait to seek an injunction until these officers take acts that 2 admittedly exceed their power.4 The Administration likewise argues that the Secretary has not

3 yet named the County a “sanctuary jurisdiction,” but under the Executive Order, that

4 determination’s only purpose is to facilitate the unconstitutional mandate of declaring such

5 jurisdictions ineligible for funding. See EO § 9(a). The Executive Order provides no notice to

6 jurisdictions in the crosshairs of such a determination, no opportunity to be heard to contest an

7 adverse decision, and no substantive standards to govern and impose reasonable limits on the

8 Attorney General’s unilateral decision. Because these “future actions” themselves involve 9 unconstitutional conduct, they are no obstacle to preliminary injunctive relief.5

10

Further, the Administration has no answer to the County’s argument that there is no way

11 for it lawfully to comply with the Executive Order—another reason why irreparable harm exists

12 here. Neither the County nor any other jurisdiction knows what the Executive Order requires of it

13 in order to avoid “hinder[ing] the enforcement of Federal law” in the Attorney General’s

14 estimation. EO § 9(a). The Administration likewise fails to address whether jurisdictions must

15 honor ICE detainer requests (which the Order references in Section 9(b)), even though doing so

16 would violate the Fourth Amendment and subject the County to civil liability. See, e.g., Morales

17 v. Chadbourne, 793 F.3d 208, 215–16 (1st Cir. 2015); see also Mot. at 8 n.8. Nor does the

18 Administration contest that even if the County complied with federal requests, it would

19 nonetheless remain in danger of losing federal funds passed through the State of California, which

20 the President has also threatened to defund. Harris Decl. ¶ 3, Ex. B (O’Reilly Interview) at 4.

21 22 23 24 25 26 27 28
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4 Although Congress may delegate to the executive branch some ability to withhold federal funding, it has enacted a statute governing this process, which the Executive Order ignores. Under the Impoundment Control Act of 1974, 2 U.S.C. §§ 683 et seq., the President must identify specific allocated funds that he proposes to withhold, and Congress must approve that withholding. The Executive Order unconstitutionally creates a separate process outside of the Impoundment Control Act, and independent from any congressional (or other) oversight.
5 In fact, the “series of future actions” the opposition identifies are nonsensical. Taken at face value, the Administration is proposing first that the Secretary and Attorney General decide which jurisdictions are to be ineligible for federal funds, “ensure” their ineligibility, and only then “determine how to implement [defunding] ‘consistent with law.’” Opp. at 12. In other words, the order of operations the Administration proposes puts the cart before the horse, taking funding away from “sanctuary jurisdictions” (an act already forbidden to the executive branch) before analyzing whether such defunding is lawful or not.
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D. The balance of harms and public interest overwhelmingly favor the County. Because the Administration effectively concedes the substance of the County’s
constitutional claims, the balance of hardships and public interest necessarily favor the requested
injunction. See Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 1069 (9th Cir. 2014);
Melendres, 695 F.3d at 1002. No harm can result from an order enjoining the government from
violating the Constitution, nor can the enforcement of an unconstitutional order serve any
legitimate public interest. See Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013).
The Administration’s cursory discussion of the balance of harms completely ignores the
uncontroverted declarations submitted by the County establishing the harm the County has
suffered and continues to suffer. On the other side of the ledger, the Administration cannot
identify any harm that either the government or the public might suffer if the Court issues the
requested injunction, let alone back up such a claim with evidence. Instead, the Administration
relies on the generalized public interest in “supporting the enforcement of federal immigration
law.” Opp. at 18. This argument assumes that the Executive Order is constitutional, and thus can
embody a legitimate public interest, even though the Administration fails to advance any
substantive defense against the County’s constitutional claims. The argument is also unavailing,
because the County seeks to enjoin the Administration only from coercing compliance with federal immigration laws through an unconstitutional Executive Order.6 If the Court grants the
requested injunction, the government would remain free to enforce federal immigration laws
through all lawful means. See Texas, 86 F. Supp. 3d at 674 (enjoining executive immigration
directive would “merely preserve the status quo that has always existed”).
E. The County’s claims are justiciable. Repeating the same themes it offered unconvincingly in its discussion of irreparable harm,
the Administration argues that the County has suffered no injury-in-fact (and thus lacks standing),
6 The Administration relies on N.D. v. Hawaii Dep’t of Educ., 600 F.3d 1104, 1113 (9th Cir. 2010), but that case supports the County. There, the court disparaged the asserted government interest of ensuring compliance with the law as “obvious,” while observing that courts are expected to “look[] to many more factors affecting the public interest” before deciding a request for an injunction. Id.; see also Rubin ex rel. NLRB v. Vista del Sol Health Servs., Inc., 80 F. Supp. 3d 1058, 1108 (C.D. Cal. 2015) (citing N.D. for the same proposition).
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1 and that its claims are not yet ripe. See Opp. at 15–18. Again, the Administration is wrong.

2

1. The County is suffering real and immediate injury-in-fact.

3

As an initial matter, because the County is suffering irreparable harm, see Part II.C, supra,

4 it has necessarily established Article III standing as a matter of law. See Shell Offshore, Inc. v.

5 Greenpeace, Inc., 709 F.3d 1281, 1286–87 (9th Cir. 2013); Coalition for Econ. Equity v. Wilson,

6 1996 WL 691962, at *2 n.4 (N.D. Cal. Nov. 27, 1996). In any event, directly applicable

7 precedent confirms that the Executive Order is causing the County concrete, particularized, and

8 immediate injury.

9

As the Fifth Circuit held in Texas v. United States, “being pressured to change state law

10 constitutes an injury” sufficient to confer standing. 787 F.3d at 749; see also Texas, 201 F. Supp.

11 3d at 820–21. That analysis applies here. The Executive Order’s express purpose is to coerce the

12 County to comply with unconstitutional directives regarding federal immigration enforcement, or

13 else forfeit approximately $1.7 billion in federal funds. See EO § 2(a), (c).

14

Neither must the County wait for defunding to sue. In Susan B. Anthony List v. Driehaus,

15 which the County cited and the Administration ignores, the Supreme Court reaffirmed that when

16 a plaintiff is threatened under a law, “enforcement action is not a prerequisite to challenging the

17 law.” 134 S. Ct. 2334, 2342 (2014). Rather, “where threatened action by government is

18 concerned,” a plaintiff need not “expose himself to liability before bringing suit to challenge the

19 basis for the threat.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128–29 (2007). All the

20 County must show is “a credible threat of prosecution” under the Executive Order. Susan B.

21 Anthony List, 134 S. Ct. at 2342. Indeed, the “substantial contingent liability” created by the

22 Executive Order confers standing by itself, because it “immediately and directly affects the

23 borrowing power, financial strength, and fiscal planning” of the affected entity. See Clinton v.

24 City of New York, 524 U.S. 417, 430–31 (1998). The Ninth Circuit has likewise held that the

25 potential “loss of funds promised under federal law” is a quintessential injury that “satisfies

26 Article III’s standing requirement,” even where the government has not yet defunded. See

27 Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 965 (9th Cir. 2015) (en banc).

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Given the language of the Executive Order, the County’s policies regarding ICE detainers
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1 and federal immigration assistance, and the myriad statements of coercive intent by the President,

2 there can be no doubt that the County has a “credible threat” of being targeted for defunding

3 under the Order. See Mot. at 5–8. The Administration has “not suggested that the newly enacted

4 [Order] will not be enforced, and [the County has] no reason to assume otherwise.” Virginia v.

5 Am. Booksellers Ass’n, 484 U.S. 383, 393 (1988). This establishes injury-in-fact for purposes of

6 both Article III standing and constitutional ripeness. See California Pro-Life Council, Inc. v.

7 Getman, 328 F.3d 1088, 1094 n.2 (9th Cir. 2003) (stating the rule that “the constitutional 8 component of ripeness is synonymous with the injury-in-fact prong of the standing inquiry”).7

9

2. The County’s claims are prudentially ripe.

10

Next, the Administration argues that the prudential (as opposed to constitutional) ripeness

11 factors of “fitness of the issues for judicial decision” and “hardship to the parties of withholding

12 court consideration” weigh against an injunction. See Opp. at 16–18. But the Administration

13 again fails to address Susan B. Anthony List, where the Supreme Court questioned the “continuing

14 vitality of the prudential ripeness doctrine” in light of courts’ “virtually unflagging” obligation to

15 “decide cases within [their] jurisdiction.” 134 S. Ct. at 2347.

16

In any event, the County satisfies these two prudential ripeness factors. First, the issues in

17 this case are fit for judicial decision. The Executive Order is final, the Administration has refused

18 to disclaim its intent to enforce the Executive Order against the County or any other jurisdiction,

19 and the County’s challenge primarily presents legal issues that “will not be clarified by further

20 factual development.” Id. (quotations omitted). Second, requiring the County to “proceed

21 without knowing whether the [Executive Order] is valid would impose a palpable and

22 considerable hardship” on the County. Thomas v. Union Carbide Agric. Prod. Co., 473 U.S. 568,

23 581 (1985); see also Chamber of Commerce v. Reich, 57 F.3d 1099, 1100-01 (D.C. Cir. 1995)

24 (dispute is ripe where executive order “confront[ed] employers with the difficult choice between

25 surrendering their right to hire permanent replacements and risking the loss of current and future

26 government contracts”). Delaying adjudication would force the County to choose between

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7 Challenging only injury-in-fact, the Administration concedes that the County has established causation and redressability. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560–62 (1992).
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1 buckling to unconstitutional immigration directives, slashing essential programs and services, or

2 continuing to spend millions of dollars that the Order places at risk. None of these options is

3 viable; the County requires relief now. See J. Smith Decl. ¶¶ 6–11; Márquez Decl. ¶¶ 4, 11–21.

4

Although the Administration rests its case primarily on Abbott Labs. v. Gardner, 387 U.S.

5 136 (1967), that opinion supports the County. There, the Supreme Court held that a pre-

6 enforcement challenge to an FDA labeling requirement was ripe, because the requirement forced

7 the plaintiffs into a position where they either “must comply” with it, or else “follow their present

8 course and risk prosecution.” Id. at 151–54. Likewise here. The “mere existence” of the

9 Executive Order forces the County to choose “between taking immediate action to [its] detriment

10 and risking substantial future penalties for non-compliance.” Reich, 57 F.3d at 1100–01.

11

F. The President should be enjoined.

12

The Administration argues that no injunction may issue against President Trump directly.

13 Opp. at 19. Not so. The recent TRO blocking President Trump’s first travel ban order issued

14 against the President directly, see Washington v. Trump, 2017 WL 462040 (W.D. Wash. Feb. 3,

15 2017), and the Ninth Circuit left that order undisturbed. See Trump, 847 F.3d 1151, 1156 (9th

16 Cir. 2017). District courts in Hawai’i and Maryland recently did the same with respect to the

17 President’s second travel ban order. See Hawai’i, 2017 WL 1101673, at *1 n.2, *17; Int’l

18 Refugee Assistance Project, No. TDC-17-0361 (D. Md. Mar. 15, 2017) (Dkt. No. 150). These

19 orders are in keeping with the Supreme Court’s guidance that district courts should “evaluate[ ]

20 whether injunctive relief against the President [i]s available” on a case-by-case basis. Franklin v. 21 Massachusetts, 505 U.S. 788, 803 (1992).8 Indeed, Youngstown supports the County’s request.

22 As the D.C. Circuit has pointed out, that opinion “made it clear that the Court understood its

23 affirmance effectively to restrain the President,” and the result would have been the same “if

24 President Truman rather than Secretary Sawyer had been the named party.” Nixon v. Sirica, 487

25 F.2d 700, 709 (D.C. Cir. 1973). The Court may, and should, enjoin the President.

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8 Injunctive relief against the President may be particularly appropriate when the duty at issue is “ministerial and not discretionary.” See Swan v. Clinton, 100 F.3d 973, 977 (D.C. Cir. 1996). The role of the President in spending money duly authorized by Congress is a ministerial one.
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G. The Court should enter a nationwide preliminary injunction. Finally, the Administration asks the Court to limit any injunction to the County. Opp. at 19–20. But an unconstitutional Executive Order that applies to every state and local government cannot be enforced anywhere in the nation. The Supreme Court has long explained that “the scope of injunctive relief is dictated” not by geography, but rather “by the extent of the violation established.” Califano v. Yamasaki, 442 U.S. 682, 702 (1979); see also Decker v. O’Donnell, 661 F.2d 598, 618 (7th Cir. 1980) (nationwide injunction is appropriate against a facially unconstitutional federal law). The Ninth Circuit has held that, in cases concerning a federal law’s interpretation, nationwide “relief may be appropriate even in an individual action.” Bresgal v. Brock, 843 F.2d 1163, 1171 (9th Cir. 1987) (holding that, given the nationwide scope of the claim at issue, “the district court could hardly” have issued an injunction “on anything other than a nationwide basis”); see also Trump, 847 F.3d at 1166–67 (declining to “limit the geographic scope” of injunction against travel ban given the need for uniform nationwide guidance); Texas, 809 F.3d 134, aff’d by an equally divided Court, 136 S. Ct. 2271 (2016) (affirming nationwide injunction of presidential immigration directive). Here, the Executive Order applies to every state and local jurisdiction in the nation, even those that may try to comply with it. A city could honor ICE detainers without question, only to find that the county or state on which it relies for pass-through federal funding has been declared ineligible under section 9(a). Caving to the President’s coercion also carries its own legal risks. After Miami’s mayor announced that his city would begin honoring ICE detainer requests, see Patricia Mazzei, Miami-Dade Mayor Orders Jails to Comply with Trump Crackdown on ‘Sanctuary’ Counties, Miami Herald, Jan. 26, 2017, a Florida state court held that incarcerating individuals solely on ICE’s request violates the Tenth Amendment, ordering the detainee released. See Lacroix v. Junior, 2017 WL 837477, at *5 (Fla. Cir. Ct. Mar. 1, 2017). Miami’s whipsaw experience vividly illustrates the dilemma local governments across the nation face, and why a nationwide injunction is necessary.
III. CONCLUSION For the foregoing reasons, the Court should enter the requested preliminary injunction.
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Dated: March 16, 2017 Dated: March 16, 2017

Respectfully submitted,
OFFICE OF THE COUNTY COUNSEL, COUNTY OF SANTA CLARA By: /s/ James R. Williams JAMES R. WILLIAMS, County Counsel
Attorneys for Plaintiff COUNTY OF SANTA CLARA
KEKER, VAN NEST & PETERS LLP
By: /s/ John W. Keker JOHN W. KEKER
Attorneys for Plaintiff COUNTY OF SANTA CLARA

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1

FILER’S ATTESTATION

2

I, John W. Keker, am the ECF user whose identification and password are being used to

3 file this document. Pursuant to Rule 5-1(i)(3), I hereby attest that the other above named

4 signatories concur in this filing.

5

6

/s/ John W. Keker JOHN W. KEKER

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 Case 3:17-cv-00574-WHO Document 62 Filed 03/22/17 Page 1 of 18

1 JULIA HARUMI MASS, SBN 189649 WILLIAM S. FREEMAN, SBN 82002
2 ANGÉLICA SALCEDA, SBN 296152 AMERICAN CIVIL LIBERTIES UNION
3 FOUNDATION OF NORTHERN CALIFORNIA, INC.
4 39 Drumm Street San Francisco, CA 94111
5 Telephone: (415) 621-2493 Facsimile: (415) 255-8437
6 Email: jmass@aclunc.org
Email: wfreeman@aclunc.org 7 Email: asalceda@aclunc.org
8

CATHERINE MORENO, SBN 264517 LAUREN GALLO WHITE, SBN 309075 RALITZA DINEVA, SBN 305974 AVA MILLER, SBN 312012 WILSON SONSINI GOODRICH & ROSATI PROFESSIONAL CORPORATION 650 Page Mill Road Palo Alto, California 94306 Telephone: (650) 493-9300 Facsimile: (650) 565-5100 Email: cmoreno@wsgr.com Email: lwhite@wsgr.com Email: rdineva@wsgr.com Email: armiller@wsgr.com

9 Attorneys for Plaintiff-Intervenor Young Women’s Christian Association
10 Of Silicon Valley

11 [SEE NEXT PAGE FOR ADDITIONAL COUNSEL]

12

13

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA 14
SAN FRANCISCO DIVISION

15

16 COUNTY OF SANTA CLARA,

17

Plaintiff,

18 v.
19
DONALD J. TRUMP, President of the United 20 States of America, JOHN F. KELLY, in his
official capacity as Secretary of the United States 21
Department of Homeland Security, JEFFERSON
22 B. SESSIONS, in his official capacity as Attorney General of the United States, JOHN
23 MICHAEL “MICK” MULVANEY, in his
official capacity as Director of the Office of 24 Management and Budget, and DOES 1-50,

25 Defendants.
26

CASE NO.: 17-cv-00574 WHO

PLAINTIFF-INTERVENOR YOUNG WOMEN’S CHRISTIAN ASSOCIATION OF SILICON VALLEY’S REPLY IN SUPPORT OF MOTION FOR PERMISSIVE INTERVENTION

Date: Time: Dept.: Before:

April 5, 2017 2:00 p.m. Courtroom 2 Hon. William H. Orrick

27

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YWCA SILICON VALLEY’S REPLY ISO MOTION FOR PERMISSIVE INTERVENTION CASE NO. 17-CV-00574 WHO

Case 3:17-cv-00574-WHO Document 62 Filed 03/22/17 Page 2 of 18
1 PETER J. ELIASBERG, SBN 189110 SYLVIA TORRES-GUILLEN, SBN 164835
2 JENNIFER PASQUARELLA, SBN 263241 AMERICAN CIVIL LIBERTIES UNION
3 FOUNDATION OF SOUTHERN CALIFORNIA 1313 West 8th Street
4 Los Angeles, CA 90017 Telephone: (213) 977-5211
5 Facsimile: (213) 977-5297 Email: peliasberg@aclu-sc.org
6 Email: storres-guillen@aclusocal.org Email: jpasquarella@aclu-sc.org
7 DAVID LOY, SBN 229235
8 ACLU FOUNDATION OF SAN DIEGO AND IMPERIAL COUNTIES
9 P.O. Box 87131 San Diego, CA 92138-7131
10 Telephone: (619) 232-2121 Facsimile: (619) 232-0036
11 Email: davidloy@aclusandiego.org
12 OMAR C. JADWAT* ANDRE I. SEGURA, SBN 247681
13 SPENCER E. AMDUR* AMERICAN CIVIL LIBERTIES UNION
14 FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT
15 125 Broad Street, 18th Floor New York, NY 10004
16 Telephone: (212) 549-2600 Facsimile: (212) 549-2654
17 Email: ojadwat@aclu.org Email: asegura@aclu.org
18 Email: samdur@aclu.org
19 CODY H. WOFSY, SBN 294179 AMERICAN CIVIL LIBERTIES UNION
20 FOUNDATION, IMMIGRANTS’ RIGHTS PROJECT
21 39 Drumm Street San Francisco, CA 94111
22 Telephone: (415) 343-0770 Facsimile: (212) 395-0950
23 Email: cwofsy@aclu.org
24 *Admitted Pro Hac Vice
25
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1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION ........................................................................................................................ 1

4 II. ARGUMENT................................................................................................................................ 2

5

A. YWCA Silicon Valley Has Met the Mandatory Criteria for Permissive

Intervention. ...................................................................................................................... 2

6

B. The Discretionary Factors Under Rule 24(b) Weigh Heavily in Favor of

7

Intervention. ...................................................................................................................... 2

8

1. YWCA Silicon Valley Need Not Establish Standing to Intervene.......................2

9

2. YWCA Silicon Valley Has a Compelling Interest That Favors Permissive

Intervention. .......................................................................................................... 4

10

3. YWCA Silicon Valley’s and Santa Clara’s Legal Positions Are Aligned............7

11

4. YWCA Silicon Valley’s Interests Are Not Adequately Represented by

12

Santa Clara. ........................................................................................................... 8

13

5. YWCA Silicon Valley Will “Significantly Contribute” to the Factual

Development and the Just Adjudication of the Legal Issues Presented..............10

14

C. The Government Will Not Be Prejudiced by YWCA Silicon Valley’s

15

Intervention. .................................................................................................................... 10

16 III. CONCLUSION........................................................................................................................... 11

17

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1

TABLE OF AUTHORITIES

2

Page(s)

3

CASES

4 Angeles v. U.S. Airways, Inc., No. C 12-05860 CRB, 2013 WL 622032

(N.D. Cal. Feb. 19, 2013)..............................................................................................................2

5

Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289 (1979)......................................................4

6

Bresgal v. Brock, 843 F.2d 1163 (9th Cir. 1987)....................................................................................5

7

Californians for Safe & Competitive Dump Truck Transp. v. Mendonca, 152 F.3d 1184

8

(9th Cir. 1998)...............................................................................................................................8

9 Ctr. for Biological Diversity v. United States DOJ, No. 15-cv-00658-JCS, 2015 U.S.

Dist. LEXIS 82201 (N.D. Cal. June 24, 2015) .............................................................................4

10

Dave Drilling Envtl. Eng’g, Inc. v. Gamblin, No. 14-cv-02851-WHO, 2015 WL

11

4051968 (N.D. Cal. July 2, 2015).................................................................................................2

12 Doe v. Harris, No. C12-5713 TEH, 2013 WL 140053 (N.D. Cal. Jan. 10, 2013) .................................3

13 Donnelly v. Glickman, 159 F.3d 405 (9th Cir. 1998) .............................................................................2

14 Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836 (9th Cir. 2011) ...............................2, 3

15 In re Grupo Unidos por el Canal S.A., No. 14-mc-80277-JST, 2015 U.S. Dist. LEXIS

52358 (N.D. Cal. Apr. 21, 2015) ................................................................................................10

16

Industrial Technology Research Institute v. LG Electronics, Inc., No. 3:13-CV-2016-

17

GPC-WVG, 2015 WL 474227 (S.D. Cal. Feb. 5, 2015) ..............................................................3

18 Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956 (9th Cir. 2015) (en banc),

cert. denied, 136 S. Ct. 1509 (2016) .............................................................................................4

19

Perry v. Schwarzenegger, 630 F.3d 898 (9th Cir. 2011) ...............................................................passim

20

Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004) .......................................................................5

21

Smuck v. Hobson, 408 F.2d 175 (D.C. Cir. 1969) ..................................................................................3

22

Spangler v. Pasadena City Board of Education, 552 F.2d 1326 (9th Cir. 1977) ...................................3

23

Su v. Siemens Indus., Inc., No. 12-cv-03743-JST, 2013 U.S. Dist. LEXIS 96505

24

(N.D. Cal. July 10, 2013)............................................................................................................10

25 Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334 (2014) ...................................................................4

26 Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d 810 (9th Cir. 2001)................................................8

27 Trbovich v. United Mine Workers, 404 U.S. 528 (1972) ....................................................................8, 9

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1 Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017)............................................................................5

2 Yniguez v. State of Ariz., 939 F.2d 727 (9th Cir. 1991) ..........................................................................3

3 Zepeda v. INS, 753 F.2d 719 (9th Cir. 1983) ..........................................................................................5

4

STATUTES & RULES

5 California Trust Act, Gov’t Code §§ 7282-7282.5 .................................................................................6

6 Civil L.R. 7-2(a)....................................................................................................................................10

7 Fed. R. Civ. P. 24 ............................................................................................................................1, 2, 8

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

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1 I. INTRODUCTION

2

This Court should permit the Young Women’s Christian Association of Silicon Valley

3 (“YWCA Silicon Valley”) to intervene as a Plaintiff in this case. Plaintiff Santa Clara County (“Santa

4 Clara”) does not oppose intervention, and Defendants’ Opposition (ECF No. 50, “Opp.”)—far from

5 persuading that intervention should be denied—demonstrates how intervention will promote the full

6 presentation of relevant issues without burdening the Court or the parties.

7

Defendants concede that YWCA Silicon Valley meets each of the three necessary elements for

8 permissive intervention: its motion is timely, it does not assert any new claims, and it shares common

9 questions of law and fact with the main action. See id. at 3-4; Fed. R. Civ. P. 24(b). Most of

10 Defendants’ argument is devoted to challenging YWCA Silicon Valley’s standing, even though

11 Defendants concede that Article III standing is not required for permissive intervention, and it is well

12 settled that standing should not be considered at this time. Defendants’ remaining arguments are

13 replete with contradictions; for example, Defendants argue that YWCA Silicon Valley’s interests will

14 be sufficiently protected by Santa Clara, while insisting that any injunction Santa Clara obtains must

15 exclude YWCA Silicon Valley. Defendants argue that YWCA Silicon Valley’s exposure to harm from

16 a cutoff of funds to the State of California or other jurisdictions would impermissibly broaden the

17 issues to be addressed in this case, while ignoring that Santa Clara already contends that it, too, is

18 threatened by a cutoff of federal funds to California.

19

YWCA Silicon Valley has interests in this case that are different from those of Santa Clara or

20 any single governmental jurisdiction, since President Trump’s unconstitutional Executive Order

21 simultaneously threatens multiple sources of its funding which pass through a variety of state and local

22 governments. YWCA Silicon Valley has already demonstrated that it is willing and able to undertake

23 the responsibilities of a party to this litigation, and that it will contribute to the factual and legal

24 development in this action without delaying the case or prejudicing the parties.

25

26

27

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1 II. ARGUMENT

2

A. YWCA Silicon Valley Has Met the Mandatory Criteria for Permissive Intervention.

3

Defendants do not dispute that YWCA Silicon Valley has met the three mandatory criteria for

4 permissive intervention: it “shares a common question of law or fact with the main action”; its motion

5 is timely; and the Court has “an independent basis for jurisdiction.” See Opp. at 3-4 (citing Donnelly v. 6 Glickman, 159 F.3d 405, 412 (9th Cir. 1998)).1 By failing to contest YWCA Silicon Valley’s

7 argument that it satisfies all three criteria (see ECF No. 43 at 6-9), Defendants concede that the criteria

8 have been met. See, e.g., Angeles v. U.S. Airways, Inc., No. C 12-05860 CRB, 2013 WL 622032, at *4

9 (N.D. Cal. Feb. 19, 2013), and cases cited therein (failure to respond to an argument on the merits

10 amounts to a concession). Under Federal Rule of Civil Procedure 24(b)(1)(B), the Court therefore may

11 grant intervention.

12

B. The Discretionary Factors Under Rule 24(b) Weigh Heavily in Favor of Intervention.

13

Defendants contend that the factors discussed in Perry v. Schwarzenegger, 630 F.3d 898 (9th

14 Cir. 2011), weigh against permissive intervention in this case. These factors include: (1) the nature and

15 extent of the intervenor’s interests; (2) its “standing to raise relevant issues”; (3) the legal position

16 advanced by the intervenor and its relation to the merits of the case; (4) whether the intervenor’s

17 interests are adequately represented by other parties; and (5) whether the intervenor will contribute to

18 the development of factual issues and the just adjudication of legal issues. Id. at 905. Defendants’

19 arguments concerning these factors fail, however, and the Court should permit intervention.

20

1. YWCA Silicon Valley Need Not Establish Standing to Intervene.

21

Defendants devote most of their brief to the second Perry factor, arguing that YWCA Silicon

22 Valley does not have Article III standing. Standing is only relevant to permissive intervention in a

23 small subset of cases, however, and this case is not one of them.

24 1 As YWCA Silicon Valley previously explained, the jurisdiction requirement is satisfied where the 25 proposed intervenor in a federal question case asserts no additional claims. See YWCA Motion to
Intervene, ECF No. 43, at 6 (citing Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 844 26 (9th Cir. 2011)); see also Dave Drilling Envtl. Eng’g, Inc. v. Gamblin, No. 14-cv-02851-WHO, 2015
WL 4051968, at *5 (N.D. Cal. July 2, 2015) (Orrick, J.) (“[T]he Ninth Circuit has clarified that the 27 ‘independent jurisdictional grounds requirement does not apply to proposed intervenors in federal-
question cases where the proposed intervenor is not raising new claims’”) (citation omitted).
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1

Defendants concede, as they must, that “in general, an applicant for intervention need not

2 establish Article III standing to intervene.” Opp. at 4 n.2 (emphasis added) (citing Perry, 630 F.3d at 3 906).2 Indeed, Ninth Circuit case law is clear that a proposed intervenor is not required to establish

4 Article III standing in a federal question case where, as here, the party on whose side intervention is

5 sought remains in the suit, and the proposed intervenor does not seek to raise any additional claims.

6 Doe v. Harris, No. C12-5713 TEH, 2013 WL 140053, at *2 (N.D. Cal. Jan. 10, 2013) (citing Freedom

7 from Religion Found., 644 F.3d at 843 (vacating and remanding district court order denying permissive

8 intervention based on jurisdictional concerns)).

9

Where the proposed intervenor does not seek to raise any new claims, standing is a relevant

10 factor only in the unusual case where a party seeks to intervene on appeal after the losing party below

11 decides not to appeal. This was the case in Perry. Certain public officials moved to intervene after the

12 State of California declined to appeal the district court’s decision that Proposition 8 (prohibiting same-

13 sex marriage) was unconstitutional. The Ninth Circuit explained:

14

In general, an applicant for intervention need not establish Article III

15

standing to intervene. Because the specific interest Movants claimed in

the litigation [pursuing an appeal where the losing party below did not]

16

would require them to have standing, however, the court did not abuse its

discretion by considering their standing to appeal the merits.

17

18 Perry, 630 F.3d at 906; see also Yniguez v. State of Ariz., 939 F.2d 727, 731 (9th Cir. 1991).3

19 Defendants have cited no Ninth Circuit cases similar to this one—i.e., a case in which a party seeks

20 permissive intervention to litigate at the trial court level alongside another party that has standing—in

21 2 Defendants argue that while an intervenor does not need to establish Article III standing to intervene, it still must have standing to assert a cause of action, citing Industrial Technology Research
22 Institute v. LG Electronics, Inc., No. 3:13-CV-2016-GPC-WVG, 2015 WL 474227, at *3 n.1 (S.D. Cal. Feb. 5, 2015). Opp. at 4 n.2. In that case, however, the court followed the Ninth Circuit rule by
23 granting LG Display Co., Ltd.’s motion to intervene without considering its standing. The court did address standing later, when it ruled on a motion to dismiss the complaint in intervention. Id. at *3, 11
24 (denying motion to dismiss, reasoning that plaintiff-intervenor has standing to assert causes of action).
25 3 The court in Perry took its list of factors directly from an earlier Ninth Circuit opinion, Spangler v. Pasadena City Board of Education, 552 F.2d 1326, 1329 (9th Cir. 1977). The Spangler court based the
26 “standing to raise relevant legal issues” factor on Smuck v. Hobson, 408 F.2d 175, 177-78 (D.C. Cir. 1969). See Spangler, 552 F.2d at 1329 n.3. Like Perry, Smuck also involved a situation in which
27 parties sought to intervene for the purpose of pursuing an appeal after the losing party below declined to appeal.
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1 which a court has even discussed the intervenor’s standing as a factor in the decision to permit

2 intervention; YWCA Silicon Valley is aware of no such cases. Accordingly, under the circumstances 3 of this case, YWCA Silicon Valley’s standing should not be considered at this stage.4

4

2. YWCA Silicon Valley Has a Compelling Interest That Favors Permissive

Intervention. 5

6

Defendants question “the nature and extent of [YWCA Silicon Valley’s] interest in this action”

7 (Opp. at 6:6-7), but misconstrue the standard for evaluating a proposed intervenor’s interest.

8 Intervention is appropriate where an intervenor can demonstrate a “substantial” interest in the outcome

9 of the case, even where the intervenor has not provided figures to precisely quantify that interest. See

10 Ctr. for Biological Diversity v. United States DOJ, No. 15-cv-00658-JCS, 2015 U.S. Dist. LEXIS

11 82201, at *13-14 (N.D. Cal. June 24, 2015) (granting permissive intervention where proposed

12 intervenor’s description of “typical” expenses to register pesticides established that it had a “substantial

13 interest” in the outcome of case challenging use of pesticides). As explained in detail in the declaration

14 of YWCA Silicon Valley’s Chief Financial Officer and Chief Operating Officer, Ann Marie Pate (ECF

15 No. 43-4), and as repeated below, the organization’s interest in the outcome of this action is

16 unquestionably substantial.

17

Defendants’ initial argument concerning this factor is circular. Defendants appear to contend

18 that YWCA Silicon Valley does not have a substantial interest because “the only plaintiff in this case is

19 the County of Santa Clara, and any injunction herein should be limited to the plaintiff.” Opp. at 6:7-8.

20 In other words, Defendants maintain that YWCA Silicon Valley should not be permitted to become a

21 plaintiff, because only existing plaintiffs are entitled to relief, and YWCA Silicon Valley is not an

22 4 Even if the Court were inclined to examine the standing issue now, YWCA Silicon Valley has 23 standing. First, the threatened loss of federal funding is a concrete and non-speculative injury. See
Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2341-42 (2014) (where a plaintiff alleges injury 24 stemming from the threatened enforcement of a law, an actual “enforcement action is not a prerequisite
to challenging the law”); see also Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 965 25 (9th Cir. 2015) (en banc) (the potential “loss of funds promised under federal law . . . satisfies Article
III’s standing requirement”), cert. denied, 136 S. Ct. 1509 (2016). This is particularly so where, as 26 here, Defendants have “not disavowed any intention” of enforcing the Executive Order. Babbitt v.
United Farm Workers Nat’l Union, 442 U.S. 289, 302 (1979). Second, YWCA Silicon Valley is 27 presently injured by its inability to rationally budget for the expenditure of its limited resources. See
Complaint in Intervention, ECF No. 43-2, ¶¶ 31-32; Pate Declaration, ECF No. 43-4, ¶¶ 10-13.
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1 existing plaintiff. To state this argument is to refute it.5 If the Court grants intervention, YWCA would 2 become a plaintiff and thus have a “substantial interest” even under Defendants’ theory.6

3

Defendants next contend that YWCA Silicon Valley has an insufficient interest in this action

4 because “it is unclear whether [YWCA Silicon Valley] receives any federal funding through Santa

5 Clara County.” Opp. at 6:15-16 (emphasis in original). This argument is predicated on the narrow

6 view that this action is only about an isolated threat to the budget of Santa Clara. Not so: Santa

7 Clara’s complaint announces in its opening paragraphs that this is a case of nationwide importance,

8 because it involves an unconstitutional attempt by the President to “direct [ ] reprisals against state,

9 local, and municipal governments that he deems to be so-called ‘sanctuary jurisdictions’” by means of

10 a unilateral decree that, among other things, declares all such governments “ineligible to receive any

11 federal funds.” ECF No. 1, ¶¶ 1-2, 8-10. Santa Clara seeks relief that is nationwide in scope, including

12 a declaration that Section 9 of the Executive Order is unconstitutional and a preliminary and permanent

13 injunction preventing Defendants from “taking any other action in furtherance of any withholding or

14 conditioning of federal funds based on the Executive Order.” Id., Prayer for Relief, ¶¶ 1-3 (emphasis

15 added).

16

YWCA Silicon Valley’s Complaint in Intervention demonstrates that it has a vital interest in

17 whether the Executive Order is constitutional: 37.5% of its operating budget is derived from federal

18 funds that flow through a number of jurisdictions, all of which are threatened with designation as

19 “sanctuary jurisdictions.” ECF No. 43-2, ¶¶ 24-28, 30-37. YWCA Silicon Valley has specifically

20 5 If this argument could be taken seriously, it would actually support intervention. Accepting
21 Defendants’ argument, YWCA Silicon Valley should be permitted to intervene because, under the third Perry factor, Santa Clara will obviously be unable to adequately represent YWCA Silicon Valley’s
22 distinct interests if Santa Clara obtains an injunction to protect only its own interests.
23 6 This argument also misstates the scope of the relief that is permissible in this action. While the first case cited by Defendants, Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir. 2004), held that
24 ordinarily, injunctions should “not . . . determine the rights of persons not before the court,” in doing so it relied on Zepeda v. INS, 753 F.2d 719, 727 (9th Cir. 1983), and specifically cited the following
25 passage from Zepeda: “An injunction benefitting nonparties is permissible if such breadth is necessary to give prevailing parties the relief to which they are entitled.” Id. at 1117 (citing Zepeda, 753 F.2d at
26 728 n.1). See also Bresgal v. Brock, 843 F.2d 1163, 1171 (9th Cir. 1987) (affirming nationwide injunction where “the district court could hardly require enforcement . . . on anything other than a
27 nationwide basis”). Accord, e.g., Washington v. Trump, 847 F.3d 1151, 1166-67 (9th Cir. 2017) and other cases cited by Santa Clara. See ECF No. 52, at 15.
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1 alleged that it is threatened by the threat that California will be declared a “sanctuary jurisdiction,”

2 since a substantial portion of its federal dollars flow through California, and President Trump has 3 threatened to defund California because, in his words, the State is “out of control.” Id. ¶¶ 33-34.7 In

4 her declaration, Ms. Pate states that over $1.4 million of YWCA Silicon Valley’s $7.07 million budget

5 (about 20%) comes in the form of “flow-through” federal dollars from California. ECF No. 43-4, ¶ 6.

6 YWCA Silicon Valley also receives funding from the City of San Jose, a self-described “sanctuary

7 city,” and from other municipalities. Id. YWCA Silicon Valley has an interest, not shared by Santa

8 Clara County, in ensuring that federal funding to those municipalities is not withheld under the

9 Executive Order.

10

Defendants’ argument also ignores the fact that Santa Clara has similarly highlighted the

11 potential cutoff of “flow-through” federal dollars that it receives from California. In its complaint,

12 Santa Clara alleges that much of the $1 billion it receives annually in federal funds “is passed through

13 the State of California.” ECF No. 1, ¶ 27. In its reply brief in support of its motion for preliminary

14 injunction, Santa Clara explains: “[E]ven if the County complied with federal requests, it would

15 nonetheless remain in danger of losing federal funds passed through the State of California, which the

16 President has also threatened to defund.” ECF No. 52, at 10:17-20; see also id. at 15:17-19. YWCA

17 Silicon Valley and Santa Clara share an interest in eliminating the threat posed by the Executive Order

18 to the funds that they each receive through California.

19

Defendants’ final argument regarding YWCA Silicon Valley’s interest in the case is that

20 because Section 9 of the Executive Order “does not expressly encompass funds provided to

21 subgrantees,” the funds that YWCA Silicon Valley receives from the federal government “may not be

22 covered.” Opp. at 7:6-9 (emphasis added). But the Executive Order harms YWCA Silicon Valley by

23 its threat of de-funding, which makes proper budgeting and planning impossible. ECF No. 43-2, ¶ 32.

24

25
26 7 Under the California Trust Act, Government Code Sections 7282-7282.5, California restricts the circumstances under which state or local law enforcement officials may cooperate with a federal
27 “immigration detainer” after an individual has become eligible for release from custody.

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1 That harm is hardly removed by Defendants’ statement that defunding may not occur—carefully

2 worded as it is to avoid offering any actual assurances.

3

Moreover, Defendants’ parsing is difficult to square with the actual language of Section 9 of the

4 Executive Order, which declares that Defendants “shall ensure that [designated sanctuary jurisdictions]

5 are not eligible to receive Federal grants, except as deemed necessary for law enforcement . . . .” Exec.

6 Order No. 13,768, § 9 (emphasis added). YWCA Silicon Valley has alleged that most of its federal

7 funds are “received in the form of ‘flow-through’ grants that are originally received by [governmental

8 jurisdictions] and then re-granted to YWCA Silicon Valley by these jurisdictions, or administered by

9 them.” ECF No. 43-2, ¶ 30. If funding to those jurisdictions were to be cut off, they would by

10 definition have no federal dollars available to “re-grant” or “administer” for the benefit of YWCA

11 Silicon Valley. Tellingly, Defendants do not even attempt to provide any assurance on this point. Nor

12 have they stated that they interpret Section 9 to cover anything less than all the federal funds that

13 YWCA Silicon Valley receives.

14

In other words, YWCA Silicon Valley’s interest is closely linked to the issues presented in this

15 case, both legally (because it has an interest in ensuring that its funds are not stripped by an

16 unconstitutional Executive Order) and factually (because it is materially threatened by the President’s

17 explicit threats to California’s, Santa Clara’s, and other municipalities’ funding). Thus, even if YWCA

18 Silicon Valley received zero federal dollars through Santa Clara, it still has an interest in this case that

19 strongly favors intervention.

20

3. YWCA Silicon Valley’s and Santa Clara’s Legal Positions Are Aligned.

21

Defendants’ only argument regarding YWCA Silicon Valley’s legal position and its relation to

22 the merits of the case is that because YWCA Silicon Valley has several funding streams through which

23 it receives federal dollars, its intervention would involve the Court in “examining those other

24 jurisdictions’ particular policies and practices.” Opp. at 7:15-20. This argument fails. First of all, as

25 explained above, supra p.6, Santa Clara has also invoked the threat of funding cutoffs related to

26 another jurisdiction, namely California. ECF No. 1, ¶ 27; ECF No. 52, at 10:17-20. Thus Defendants’

27 premise is simply untrue.

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1

At a more fundamental level, however, Defendant’s argument is based on a misperception of

2 the issues presented by Santa Clara and YWCA Silicon Valley. What is at stake here is not any

3 jurisdiction’s “particular policies and practices,” but rather the overarching questions concerning

4 whether the President can, by decree, punish and coerce cities, counties, and states that pursue policies

5 he disfavors by denying them funding that Congress has appropriated. To the extent that YWCA

6 Silicon Valley invokes the threat to its federal funding through one or more additional jurisdictions

7 other than Santa Clara County, this does not alter the focus of this litigation and does not justify a

8 denial of permissive intervention. If anything, a broader understanding of the funding sources

9 threatened by the Order will aid the Court in assessing the Executive Order’s legality.

10

4. YWCA Silicon Valley’s Interests Are Not Adequately Represented by Santa

11

Clara.

12

Defendants argue that YWCA Silicon Valley’s interests are “adequately represented” by Santa

13 Clara because Santa Clara “filed a complaint of 40 pages and four causes of action” and “is represented

14 by a large law firm in addition to its County Counsel.” Opp. at 7-8. This argument misconstrues the

15 nature of the adequacy inquiry.

16

YWCA Silicon Valley does not question the outstanding representation of Santa Clara’s

17 interests in this case by its County Counsel and outside counsel. Adequacy of representation is not,

18 however, a question of “effective assistance of counsel.” Rather, it requires a comparison of the

19 interests of the intervenor with those of the existing party to examine whether the existing party will

20 necessarily advance those interests. See Californians for Safe & Competitive Dump Truck Transp. v.

21 Mendonca, 152 F.3d 1184, 1190 (9th Cir. 1998) (affirming intervention as of right because the interests

22 of intervening defendant labor union’s members were “potentially more narrow and parochial than”

23 than the interests of the public agency defendants); Sw. Ctr. for Biological Diversity v. Berg, 268 F.3d

24 810, 822 (9th Cir. 2001) (reversing denial of intervention as of right where original defendant city

25 would not adequately represent the applicant’s divergent interests). In Berg, the Court observed that

26 “the burden of showing inadequacy is ‘minimal,’ and the applicant need only show that representation

27 of its interests by existing parties ‘may be’ inadequate.” Berg, 268 F.3d at 823 (citing Trbovich v.

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1 United Mine Workers, 404 U.S. 528, 538 n.10 (1972)). In Trbovich, the Supreme Court found

2 “sufficient doubt about the adequacy of representation to warrant intervention” where the intervenor

3 had a “narrower interest” than the existing party, such that the parties’ interests “may not always dictate

4 precisely the same approach to the conduct of the litigation.” Trbovich, 404 U.S. at 538-59.

5

While YWCA Silicon Valley’s interests are largely aligned with Santa Clara’s, they are distinct

6 in four important respects, each of which may dictate a different “approach to the conduct of the

7 litigation.” Id. First, Santa Clara is a governmental jurisdiction that may have a greater range of

8 options in seeking to preserve its federal funding, including by direct negotiations with the federal

9 government. YWCA Silicon Valley lacks those additional means to influence whether its federal funds

10 will continue to flow, which puts it in a different position with respect to the abuses of power

11 manifested by the Executive Order. YWCA Silicon Valley and its clients are “collateral damage” in

12 one governmental entity’s attempt to coerce and threaten another.

13

Second, YWCA Silicon Valley is in a position to bring the perspectives and experiences of

14 impacted community members to the Court, showing the individual impacts of both the targeted local

15 policies and threatened federal funding cuts on the people who are among the ultimate intended

16 beneficiaries of each.

17

Third, YWCA Silicon Valley has Due Process concerns that are distinct from those of any

18 governmental jurisdiction. While Santa Clara rightly complains that it is threatened with a loss of

19 funds due to a potentially arbitrary designation that it is a “sanctuary jurisdiction” (ECF No. 1, ¶ 147),

20 YWCA Silicon Valley is threatened with a loss of funds based on no process at all, resulting from a

21 designation that has nothing at all to do with its own actions; as to which it has no input; and as to

22 which it has no recourse of any kind. ECF No. 43-2, ¶ 38.

23

Fourth, YWCA Silicon Valley must contend with a possible loss of funds flowing through

24 multiple jurisdictions, any of which could be designated a “sanctuary jurisdiction.” This factor will not

25 require the Court to examine the policies or practices of such jurisdictions, but it does highlight the fact

26 that the Executive Order represents a multi-pronged threat to a social service agency that depends on a

27 variety of funding streams.

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1

5. YWCA Silicon Valley Will “Significantly Contribute” to the Factual

Development and the Just Adjudication of the Legal Issues Presented. 2

3

Defendants do not even attempt to contest that YWCA Silicon Valley “will significantly

4 contribute to the full development of the underlying factual issues in the suit and to the just and

5 equitable adjudication of the legal questions presented”—effectively conceding that this factor weighs

6 in favor of intervention. By its proposed Complaint in Intervention, its joinder in Santa Clara’s motion

7 for preliminary injunction, and the declaration of its Chief Financial Officer and Chief Operating

8 Officer, YWCA Silicon Valley has already demonstrated that it is willing and able to assume the

9 responsibilities for factual and legal development that come with being a party to the litigation.

10

C. The Government Will Not Be Prejudiced by YWCA Silicon Valley’s Intervention.

11

Defendants argue that intervention should be denied because it would require Defendants “to

12 address issues not presented in the existing dispute with the County, and the time and effort needed to

13 argue and resolve those issues would ‘unduly delay the main action.’” Opp. at 7:10-12. This

14 conclusory argument does not show any actual prejudice or delay.

15

As an initial matter, additional motion practice is “alone insufficient to show undue delay.” In

16 re Grupo Unidos por el Canal S.A., No. 14-mc-80277-JST (DMR), 2015 U.S. Dist. LEXIS 52358, at

17 *16-17 (N.D. Cal. Apr. 21, 2015) (citing Su v. Siemens Indus., Inc., No. 12-cv-03743-JST, 2013 U.S.

18 Dist. LEXIS 96505, at *3 (N.D. Cal. July 10, 2013)). But even if delay owing to additional motion

19 practice were to be considered, Defendants’ position is unsupported.

20

YWCA Silicon Valley’s motion to intervene has been presented in a manner that eliminates any

21 possible delay and minimizes any burden to the parties or the Court. YWCA Silicon Valley filed its

22 motion to intervene on March 1, 2017, so that it could be heard in conjunction with Santa Clara’s

23 motion for preliminary injunction on the normal 35-day schedule set forth in Civil Local Rule 7-2(a).

24 Rather than bring a separate motion for injunctive relief, it filed a seven-page memorandum joining in

25 Santa Clara’s motion.

26

Defendants profess concern about “delaying resolution” of Santa Clara’s motion for preliminary

27 injunction in order for Defendants to have 14 days to oppose YWCA Silicon Valley’s joinder after the

28 10
YWCA SILICON VALLEY’S REPLY ISO MOTION FOR PERMISSIVE INTERVENTION CASE NO. 17-CV-00574 WHO

Case 3:17-cv-00574-WHO Document 62 Filed 03/22/17 Page 16 of 18

1 intervention motion is granted. Opp. at 7:20-23. Defendants’ solicitude for Santa Clara’s interest in a

2 speedy resolution is curious, as Santa Clara itself has not raised this issue. Defendants’ concern is also

3 insubstantial: Defendants have had ample time to oppose the separate points raised in YWCA Silicon

4 Valley’s joinder, just as they have opposed the intervention motion. Here, YWCA Silicon Valley has

5 conformed to the existing timetable of the Court and the parties.

6

Defendants’ claim of prejudice also reveals the self-contradictory nature of its arguments

7 against intervention. By claiming that they need to address “issues not presented in the existing dispute

8 with the County” (Opp. at 7:10-11), Defendants concede that not all of YWCA Silicon Valley’s

9 interests are being fully represented by Santa Clara.

10

Finally, Defendants assert that permitting YWCA Silicon Valley to intervene would open the

11 proverbial floodgates to allow intervention by “every other organization that receives federal funding

12 through the County of Santa Clara.” Opp. at 8:17-20. This argument proves far too much; if accepted,

13 it would justify a de facto ban on permissive intervention. It also ignores the fact that, while many

14 entities are expected to submit amicus briefs in this litigation, YWCA Silicon Valley is the only one

15 that has sought to undertake the burdens as well as the benefits of participating in the litigation as a

16 party. Lastly, it underestimates this Court’s ability to manage its own docket by limiting the number of

17 intervenors, should it so choose.

18 III. CONCLUSION

19

As a nonprofit social service agency serving some of the most vulnerable populations of Santa

20 Clara County, YWCA Silicon Valley has interests that are aligned with, but in some respects distinct

21 from, those of Santa Clara. Like Santa Clara, it is gravely threatened by the unconstitutional Executive

22 Order at the heart of this litigation. The Government concedes that YWCA Silicon Valley meets all of

23 the required criteria for permissive intervention, and YWCA Silicon Valley has demonstrated that the

24 discretionary considerations enumerated in Perry overwhelmingly favor intervention. For these

25 reasons, the Court should permit YWCA Silicon Valley to intervene.

26

27

28 11
YWCA SILICON VALLEY’S REPLY ISO MOTION FOR PERMISSIVE INTERVENTION CASE NO. 17-CV-00574 WHO

Case 3:17-cv-00574-WHO Document 62 Filed 03/22/17 Page 17 of 18

1

Respectfully submitted,

2 DATED: March 22, 2017 3 4

AMERICAN CIVIL LIBERTIES UNION
FOUNDATION OF NORTHERN CALIFORNIA, INC.

5

By: s/ William S. Freeman

WILLIAM S. FREEMAN 6

7 DATED: March 22, 2017 8

WILSON SONSINI GOODRICH & ROSATI, PROFESSIONAL CORPORATION

9

By: s/ Catherine Moreno

10

CATHERINE MORENO

11

Attorneys for Plaintiff-Intervenor

12

Young Women’s Christian Association Of Silicon Valley

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YWCA SILICON VALLEY’S REPLY ISO MOTION FOR PERMISSIVE INTERVENTION CASE NO. 17-CV-00574 WHO

Case 3:17-cv-00574-WHO Document 62 Filed 03/22/17 Page 18 of 18

1

ATTESTATION PURSUANT TO CIVIL LOCAL RULE 5-1

2

I, William S. Freeman, am the ECF User whose identification and password are being used to

3 file this document. In compliance with Civil Local Rule 5-1, I hereby attest that Catherine E. Moreno

4 has concurred in this filing.

5

6 DATED: March 22, 2017 7 8 9 10 11 12

AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF NORTHERN CALIFORNIA, INC.
By: s/ William S. Freeman WILLIAM S. FREEMAN
Attorneys for Plaintiff-Intervenor Young Women’s Christian Association Of Silicon Valley

13

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YWCA SILICON VALLEY’S REPLY ISO MOTION FOR PERMISSIVE INTERVENTION CASE NO. 17-CV-00574 WHO

 
 Case 3:17-cv-00574-WHO Document 75 Filed 03/22/17 Page 1 of 5

1 AMY BISSON HOLLOWAY, State Bar. No. 163731 General Counsel
2 EDMUNDO R. AGUILAR, State Bar No. 136142 Assistant General Counsel
3 TODD M. SMITH, State Bar No. 170798 Assistant General Counsel
4 California Department of Education 1430 N Street, Suite 5319
5 Sacramento, California 95814 Telephone: 916-319-0860
6 Facsimile: 916-319-0155 achristensen@cde.ca.gov
7 Attorneys for Applicant State Superintendent of Public Instruction, Tom Torlakson

8 (Applicant is a Governmental Agency and Exempt from the Provision of FRCP 7.1)

9

UNITED STATES DISTRICT COURT

10

NORTHERN DISTRICT OF CALIFORNIA

11

12 County of Santa Clara,

13

Plaintiff,

14

v.

15 Donald J. Trump, et al.,

16

Defendant.

17

) Case No. 3:17:cv-00574-WHO ) ) BRIEF OF AMICUS CURIAE STATE ) SUPERINTENDENT OF PUBLIC ) INSTRUCTION TOM TORLAKSON ) ) ) ) )

18

INTRODUCTION AND STATEMENT OF INTEREST OF AMICUS CURIAE

19

State Superintendent of Public Instruction, Tom Torlakson (the “SSPI”) respectfully submits

20 this amicus curiae brief in support of Plaintiff Santa Clara County’s Motion for a Preliminary

21 Injunction seeking to enjoin nationwide enforcement of Section 9 of the January 25, 2017 Executive

22 Order 13768 entitled “Enhancing Public Safety in the Interior of the United States” (the “Executive

23 Order”). The SSPI is designated with broad authority to superintend the schools of California.

24 Education Code § 33112. In this capacity the SSPI has a strong interest in the education, safety, and

25 welfare of the more than 7 million public school students, and the administration of the more than 9000

26 schools in the state.

27

Prior to and in response to the Executive Order, many public school districts adopted policies to

28 assure families and students that schools are safe places for all people, that bullying, particularly on the

Case No. 3:17:cv-00574-WHO

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1 basis of ethnic, racial or country of origin is not permitted, and that the public schools are required by

2 law to serve all students regardless of immigration status. The Executive Order seeks to coerce state

3 and local jurisdictions, including schools, school districts, and county offices of education, into taking

4 an active role in enforcing the federal immigration laws. In addition, the Executive Order undermines

5 and damages the ability of California’s public schools to protect, foster and educate children. Further

6 the Executive Order contains no clear definition of “sanctuary jurisdiction” yet broadly threatens any

7 “State or political subdivision of a State,” including by a grant of standardless discretion to the

8 Secretary of Homeland Security to declare an entity a “sanctuary jurisdiction” and the withholding of

9 federal funding.

10

The SSPI also urges the court to consider the amicus brief filed on behalf of public school

11 districts and educators, which identifies and addresses harms experienced at the local level, and the

12 amicus brief of the California State Attorney General, which further articulates the harm to the state as

13 a whole, which in turn causes harms to schools, school districts and county offices of education and the

14 families and children they serve.

15

ARGUMENT

16

I. The Executive Order Undermines the Security of Public School Students.

17

The Executive Order, and in particular Section 9 of that order, threatens and undermines the

18 stability of school children enrolled in California’s public schools. Over 7 million children are served

19 by over 9,000 schools in California’s public schools. Those schools are dependent on federal funds

20 which to support a variety of services, from instructional support programs for at-risk students, to the

21 provision of nutrition to low-income students. California receives more than $8 billion in federal funds

22 for k-12 education, which is then largely redirected to public schools, districts and county office of

23 education to serve all public school students.

24 http://www.cde.ca.gov/be/ag/ag/yr16/documents/sep16item02.doc The Executive Order threatens to

25 withhold funds from any school or school district which has identified itself as a safe haven for all

26 students, including immigrants or undocumented students.

27

Education has been deemed a fundamental right under the California Constitution. Cal. Const.,

28 art. IX, §1. See also, Butt v. State of California, 4 Cal 4th 668, 679 (1992). The U.S. Supreme Court

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1 acknowledged that education is so fundamental that all children, regardless of immigration status are

2 “entitled to equal access to public education.” Plyler v. Doe, 457 U.S. 202, 219-30 (1982). By

3 threatening to withhold funds from those jurisdictions which serve undocumented students and seek to

4 assure students and families that schools are a safe environment for students to attend and to learn, the

5 Executive Order threatens the very access to education guaranteed to students by Plyler.

6

The Executive Order places additional conditions upon the receipt on federal funds, beyond

7 those that have been authorized by Congress.

8

II. The Executive Order Seeks to Compel Schools, School Districts and County Offices of

Education to Participate in Immigration Enforcement.

9

10

It is an essential tenet of the 10th Amendment that states and local governments cannot be

11 commandeered to act as an arm of the federal government. Meaning, the U.S. government cannot

12 direct state and local jurisdictions to enforce federal law. Printz v. United States, 521 U.S. 898, 931

13 n.17 (1997); New York v. U.S., 505 U.S. 144, 160 (1992). Though the Executive Order pays lip service

14 to the Federal-State partnership in the area of immigration, it in fact ignores a fundamental aspect of the

15 federal statutes which rely on voluntary agreements with state and local officials for enforcement of

16 federal immigration laws. 8 U.S.C. 1357(g). In the case of jurisdictions which the Attorney General or

17 Secretary may deem “sanctuary jurisdictions” based upon unknown criteria, the Executive Order seeks

18 to compel local jurisdictions to abandon policies they adopted for the purpose of ensuring the public

19 safety of students and families, and access to education. The U.S. government imposes a coercive

20 choice on districts by directing them to do what is asked for or risk losing all federal funds. The

21 coercive nature of the Executive Order is specifically highlighted in section 9(a) which states that “the

22 Attorney General shall take appropriate action against any entity that violates 8 U.S.C. 1373, or which

23 has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal Law.”

24 Executive Order, at 8801. (emphasis added.)

25

III.The Executive Order lacks a clear definition of sanctuary jurisdiction or how any policy,

statute or practice can hinder enforcement of Federal law.

26

27

The Executive Order is so ambiguous as to the meaning of a “sanctuary jurisdictions” as to

28 make it impossible for a state or local jurisdiction to even determine what actions might subject it to the

Case No. 3:17:cv-00574-WHO

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SSPI’s Amicus Curiae Brief in Support of

Plaintiff’s Motion for Preliminary Injunction

Case 3:17-cv-00574-WHO Document 75 Filed 03/22/17 Page 4 of 5

1 risk of losing federal funding. It permits the Attorney General and the Secretary of Homeland Security

2 to withhold federal funds from any district deemed to be a “sanctuary jurisdiction” or he declares is

3 preventing or hindering the enforcement of federal law. However, the Executive Order lacks any clear

4 definition of “sanctuary jurisdiction” or any standards or criteria to put any district on fair notice as to

5 what conduct is required or prohibited. Thus, the Attorney General and Secretary of Homeland Security

6 have unfettered discretion to determine which jurisdictions fall within the Order’s ambit, whether they

7 have “willfully refuse[d] to comply” with Section 1373, and whether “appropriate enforcement action”

8 is required. Id., section 9(a). As such, the Executive Order is unconstitutionally vague. A federal law

9 is unconstitutionally vague if it (1) “fails to provide a person of ordinary intelligence fair notice of what

10 is prohibited,” or (2) “is so standardless that it authorizes or encourages seriously discriminatory

11 enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008). The Executive Order fails both

12 tests.

13

IV. Preliminary injunction should issue to avoid irreparable harm to the students and public

school system in California.

14

15

As articulated above, California receives in excess of $8 billion/year from the federal

16 government to support and implement federal education programs. The Executive Order places

17 schools, schools districts and county offices of education, who have merely identified themselves as

18 safe havens for undocumented students, in the precarious position of losing large amounts of federal

19 funds without warning, notice or clear guidance about what is meant by the order, while they also seek

20 to comply with the constitutional requirements set forth in Plyer v. Doe. The Unites States government

21 has the burden to demonstrate that the “balance of equities tips in its favor and that a preliminary

22 injunction is in the public interest.” Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374.

23 Supp.2d 980, 1007 (2010). The status quo is that local jurisdictions do not have an obligation to

24 enforce federal immigration rules. Further, the U.S. government has a long standing policy in place

25 which identifies schools as sensitive locations wherein undocumented aliens will not be “swept” up by

26 Immigration and Customs Enforcement (ICE). https://www.ice.gov/doclib/ero-outreach/pdf/10029.2-

27 policy.pdf. Department of Homeland Security has confirmed that this policy regarding sensitive

28 locations is still in place. https://www.ice.gov/ero/enforcement/sensitive-loc. Thus, the balance of

Case No. 3:17:cv-00574-WHO

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Plaintiff’s Motion for Preliminary Injunction

Case 3:17-cv-00574-WHO Document 75 Filed 03/22/17 Page 5 of 5

1 equities in this instance supports enjoining the Executive Order until the court addresses the substance

2 of the Writ.

3

CONCLUSION

4

For the foregoing reasons, the SSPI respectfully requests that this court grant the plaintiff’s

5 preliminary injunction.

6

7

8 Dated:

Respectfully submitted,

9

AMY BISSON HOLLOWAY

10

General Counsel

EDMUNDO R. AGUILAR

11

Assistant General Counsel

TODD M. SMITH

12

Assistant General Counsel

13

14

By:

AMY BISSON HOLLOWAY

15

General Counsel

Attorneys for State Superintendent of Public

16

Instruction

17

18

19

20

21

22

23

24

25

26

27

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Case No. 3:17:cv-00574-WHO

5

SSPI’s Amicus Curiae Brief in Support of

Plaintiff’s Motion for Preliminary Injunction

 
 Case 3:17-cv-00574-WHO Document 79 Filed 03/23/17 Page 1 of 5

1 CHAD A. READLER

Acting Assistant Attorney General 2 BRIAN STRETCH

3 United States Attorney JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487) 5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883 Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS (See signature page for parties represented.)

11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15 COUNTY OF SANTA CLARA,

16

Plaintiff,

17

v.

18 DONALD J. TRUMP, et al.,
19 Defendants.
20

No. 3:17-cv-00574-WHO
DEFENDANTS’ ADMINISTRATIVE MOTION TO COMBINE ORAL ARGUMENTS ON PRELIMINARY INJUNCTION MOTIONS

21 INTRODUCTION
22 The preliminary injunction motions in this case and in the related case of City and County
23 of San Francisco v. Trump, et al., Case No. 5:17-cv-00485-WHO (N.D. Cal.), are currently set
24 for argument on different dates – April 5 and April 12, respectively. Defendants move to hold
25 both arguments on April 12, 2017, for the convenience of the Court and the parties.
26

27

28

Admin. Motion: Combine Arguments No. 3:17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 79 Filed 03/23/17 Page 2 of 5

1

BACKGROUND

2

Section 9 of Executive Order 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017), instructs the

3 Attorney General and the Secretary of Homeland Security to “ensure that jurisdictions that

4 willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive

5 Federal grants, except as deemed necessary for law enforcement purposes by the Attorney

6 General or the Secretary.” It also instructs the Attorney General to “take appropriate enforcement

7 action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or

8 practice that prevents or hinders the enforcement of Federal law.” Id. § 9(a), 82 Fed. Reg. at

9 8,801.

10

The plaintiff in this action alleges that Executive Order 13,768 is unconstitutional under

11 the Tenth Amendment, the Spending Clause, and the Separation of Powers. The plaintiff in San

12 Francisco v. Trump also alleges that the Order is unconstitutional under the Tenth Amendment,

13 the Spending Clause, and the Separation of Powers. In addition to these common claims, the

14 plaintiff in this action pleads claims under the Due Process Clause, and the plaintiff in San

15 Francisco v. Trump pleads a claim that 8 U.S.C. 1373 itself violates the Tenth Amendment.

16

This action was initially filed in the San Jose Division of the Court. The plaintiff filed an

17 administrative motion as a non-party in the San Francisco case, suggesting that the Court should

18 consider whether the two cases are related under Civil Local Rule 3-12 (Case No. 5:17-cv-00485-

19 WHO, Doc. 11). Plaintiff’s motion said, “Given the overlap in parties, factual and legal issues

20 involved, and the relief sought in both Actions, it is possible that conducting the actions in two

21 courts simultaneously may lead to unnecessary duplication of effort and the potential for

22 conflicting results” (id. at 2). In response to plaintiff’s motion, the Court entered a Related Case

23 Order finding that this action is related to San Francisco v. Trump (Doc. 37), and this action was

24 thereafter transferred to the San Francisco Division.

25

On February 23, 2017, the plaintiff herein filed a motion for preliminary injunction,

26 seeking a nationwide injunction against the enforcement of Section 9 of the Executive Order and

27 against the withholding of any federal funds under the Order (Doc. 26 at i). Plaintiff noticed its

28 motion for argument on April 5, 2017. On March 8, 2017, the plaintiff in San Francisco v.

Admin. Motion: Combine Arguments

2

No. 5:17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 79 Filed 03/23/17 Page 3 of 5

1 Trump filed a motion for preliminary injunction, seeking a nationwide injunction against the

2 enforcement of Section 9 and against enforcement of 8 U.S.C. § 1373 (Case No. 5:17-cv-00485-

3 WHO, Doc. 21). San Francisco noticed its motion for argument on April 12, 2017. Defendants

4 filed their opposition to the preliminary injunction motion in this action on March 9, 2017 (Doc.

5 46), and in San Francisco v. Trump on March 22, 2017 (Case No. 5:17-cv-00485-WHO, Doc.

6 35).

7

ARGUMENT

8

The plaintiffs in this action and San Francisco v. Trump seek preliminary injunctions

9 against enforcement of Section 9 of Executive Order 13,768, and the defendants make nearly

10 identical arguments in opposition to these motions. In both actions, defendants assert that

11 plaintiffs cannot show immediate irreparable harm, that the plaintiffs lack standing, and that their

12 claims are unripe, because several issues must be resolved and several steps must be taken before

13 Section 9 can be implemented. Thus, the two cases present essentially identical questions

14 regarding irreparable harm, the justiciability of the plaintiffs’ claims, and the public interest and

15 balance of equities. Hearing these motions separately would require the defendants to make, and

16 the Court to hear, essentially the same arguments twice. Moreover, the outcome of the two

17 motions will almost certainly be the same.

18

Further, as noted already, this action and San Francisco v. Trump allege the same claims

19 at their core: that the Executive Order violates the Tenth Amendment, the Spending Clause, and

20 the Separation of Powers. The unique claims included in each case will make very little differ-

21 ence in the outcome of the pending motions, especially given that the arguments will focus on the

22 irreparable harm, standing, and ripeness issues raised by the defendants. In any event, the unique

23 claims in each case can readily be addressed, as appropriate, during the arguments on April 12,

24 and do not justify having two separate arguments on two different dates.

25

In summary, for the very same reasons given by the plaintiff in support of its related-case

26 motion – “[g]iven the overlap in parties, [the] factual and legal issues involved, and the relief

27 sought in both Actions” – holding separate arguments on the preliminary injunction motions in

28 these two cases would undoubtedly “lead to unnecessary duplication of effort.” It makes eminent

Admin. Motion: Combine Arguments

3

No. 5:17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 79 Filed 03/23/17 Page 4 of 5

1 sense for the Court to combine the arguments in these two cases in order to avoid the undue

2 burden and expense that such duplication of effort would entail.

3

CONCLUSION

4

For the foregoing reasons, defendants respectfully request that the Court grant their

5 request that the preliminary injunction motions in this action and in San Francisco v. Trump be

6 heard together on April 12, 2017.1

7 Dated: March 23, 2017

8

Respectfully submitted,

9

CHAD A. READLER

10

Acting Assistant Attorney General

11

BRIAN STRETCH

United States Attorney 12

13

JOHN R. TYLER Assistant Director

14 /s/ W. Scott Simpson
15

W. SCOTT SIMPSON (Va. Bar #27487)

16

Senior Trial Counsel

17 Attorneys, Department of Justice

18

Civil Division, Room 7210

Federal Programs Branch

19

Post Office Box 883

Washington, D.C. 20044

20

Telephone: (202) 514-3495

21

Facsimile: (202) 616-8470

E-mail: scott.simpson@usdoj.gov

22

23

24

25

26

1 Defendants’ counsel has consulted regarding this motion with counsel for the plaintiff,

who stated that plaintiff opposes the relief sought herein. See Declaration of W. Scott Simpson 27 (Attachment 1 hereto). Given that combining the two arguments would affect the plaintiff in San

28

Francisco v. Trump, defendants’ counsel has also consulted with counsel for San Francisco, who stated that the City would not object to combining the arguments.

Admin. Motion: Combine Arguments

4

No. 5:17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 79 Filed 03/23/17 Page 5 of 5

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Admin. Motion: Combine Arguments No. 5:17-cv-00574-WHO

COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; MICK MULVANEY, Director of the Office of Management and Budget
5

Case 3:17-cv-00574-WHO Document 79-1 Filed 03/23/17 Page 1 of 2

1 CHAD A. READLER

Acting Assistant Attorney General 2 BRIAN STRETCH

3 United States Attorney JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487) 5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883 Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the

11 United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B.

12 SESSIONS, III, Attorney General of

the United States; MICK MULVANEY, 13 Director of the Office of Management and

14 Budget

15 IN THE UNITED STATES DISTRICT COURT

16
FOR THE NORTHERN DISTRICT OF CALIFORNIA 17

18

SAN FRANCISCO DIVISION

19 COUNTY OF SANTA CLARA,

20

Plaintiff,

v.

21

22 DONALD J. TRUMP, et al.,

23

Defendants.

24

No. 3:17-cv-00574-WHO
DECLARATION OF W. SCOTT SIMPSON IN SUPPORT OF ADMINISTRATIVE MOTION TO COMBINE ORAL ARGUMENTS ON PRELIMINARY INJUNCTION MOTIONS

25

1. I am a Senior Trial Counsel in the Civil Division of the U.S. Department of Justice in

26 Washington, D.C. I am primarily responsible for representing the defendants in the above-

27 captioned case. This declaration is based on personal knowledge obtained by me in the

28 performance of my official duties.

Declaration of W. Scott Simpson No. 3:17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 79-1 Filed 03/23/17 Page 2 of 2

1

2. This declaration is submitted pursuant to Civil Local Rule 7-11(a), to explain why a

2 stipulation could not be obtained to provide the relief requested in Defendants’ Administrative

3 Motion to Combine Oral Arguments on Preliminary Injunction Motions.

4

3. On March 20, 2017, I sent an email to several attorneys for the plaintiff, observing that

5 the defendants believed it would “make sense” to combine the arguments on the preliminary

6 injunction motion in this case and the related case, and asking whether the plaintiff would be

7 willing to enter into a stipulation or joint motion to move the argument in this case to April 12,

8 2017. On March 20, I received an email from plaintiff’s counsel, Mr. Cody S. Harris, stating that

9 the plaintiff opposed postponing the oral argument in this case until April 12.

10

4. On March 23, 2017, I sent another email to Mr. Harris and other attorneys for the

11 plaintiff, stating that the defendants intended to file a motion to combine the oral argument in this

12 case and the related case, and asking whether the motion should say that the plaintiff would

13 oppose it. Mr. Harris responded on March 23, saying that the County would oppose the motion.

14

15

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the foregoing is true

16 and correct.

17 Dated the 23rd day of March, 2017. 18 19 20 21 22

/s/ W. Scott Simpson _____________________________ W. SCOTT SIMPSON Senior Trial Counsel Federal Programs Branch, Civil Division U.S. Department of Justice

23

24

25

26

27

28

Declaration of W. Scott Simpson

2

No. 5:17-cv-00574-WHO

 
 Case 3:17-cv-00574-WHO Document 81 Filed 03/24/17 Page 1 of 6

1 OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA
2 JAMES R. WILLIAMS - # 271253 County Counsel
3 james.williams@cco.sccgov.org GRETA S. HANSEN - # 251471
4 DANIELLE L. GOLDSTEIN - # 257486 KAVITA NARAYAN - # 264191
5 JAVIER SERRANO - # 252266 JULIE WILENSKY - # 271765
6 JULIA B. SPIEGEL - # 292469 ADRIANA L. BENEDICT - # 306936
7 70 West Hedding Street East Wing, Ninth Floor
8 San Jose, CA 95110-1770 Telephone: 408 299-5900
9 Facsimile: 408 292-7240

KEKER, VAN NEST & PETERS LLP JOHN W. KEKER - # 49092 jkeker@keker.com ROBERT A. VAN NEST - # 84065 rvannest@keker.com DANIEL PURCELL - # 191424 dpurcell@keker.com CODY S. HARRIS - # 255302 charris@keker.com NICHOLAS S. GOLDBERG - # 273614 ngoldberg@keker.com EDWARD A. BAYLEY - # 267532 ebayley@keker.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188

10 Attorneys for Plaintiff COUNTY OF SANTA CLARA

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

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COUNTY OF SANTA CLARA, 15

Case No. 17-cv-00574-WHO

Plaintiff, 16

PLAINTIFF’S OPPOSITION TO DEFENDANTS’ ADMINISTRATIVE

v. 17

MOTION TO COMBINE ORAL ARGUMENTS ON PRELIMINARY

DONALD J. TRUMP, President of the 18 United States of America, JOHN F. KELLY,

INJUNCTION MOTIONS

in his official capacity as Secretary of the 19 United States Department of Homeland

Judge: Hon. William Orrick

Security, JEFFERSON B. SESSIONS, in his 20 official capacity as Attorney General of the

Date Filed: February 3, 2017

United States, JOHN MICHAEL “MICK” 21 MULVANEY, in his official capacity as

Trial Date: Not yet set

Director of the Office of Management and 22 Budget, and DOES 1-50,

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Defendants.

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PLAINTIFF’S OPPOSITION TO DEFENDANTS’ ADMINISTRATIVE MOTION Case No. 17-cv-00574-WHO

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1 I. INTRODUCTION

2

Plaintiff County of Santa Clara (“the County”) opposes defendants’ request to postpone

3 the April 5, 2017 oral argument in this case to coincide with the oral argument in San Francisco

4 v. Trump, 17-cv-00485-WHO (“SF Action”), set for April 12, 2017. Defendants’ belated motion

5 provides no persuasive reason to combine the two hearings, and in fact every relevant

6 consideration weighs in favor of keeping them separate. The Court should deny defendants’

7 motion.

8 II. LEGAL STANDARD

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Although not styled expressly as such, defendants’ motion is a request for a continuance.

10 Whether to grant a continuance is left to the trial court’s discretion. See Danjaq LLC v. Sony

11 Corp., 263 F.3d 942, 961 (9th Cir. 2001). Courts consider four factors when determining whether

12 to grant a continuance: (1) the diligence with which the requesting party acted in seeking the

13 continuance; (2) whether the continuance would serve a useful purpose; (3) whether the

14 continuance would inconvenience the court or the opposing party; and (4) the amount of

15 prejudice, if any, the requesting party would suffer if the continuance is denied. See Armant v.

16 Marquez, 772 F.2d 552, 556–57 (9th Cir. 1985); see also United States v. Flynt, 756 F.2d 1352,

17 1359 (9th Cir. 1985). “These factors are considered together, and the weight accorded any one

18 factor depends on the circumstances of each case.” Martinez v. Scribner, 2009 WL 2423100, at

19 *12 (C.D. Cal. Aug. 4, 2009).

20 III. ARGUMENT

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Defendants’ request for a continuance fails to satisfy any of the four factors above.

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First, defendants failed to exercise diligence in seeking to continue the hearing on the

23 County’s motion. The County filed its motion for a preliminary injunction on February 23, 2017,

24 noticing it for hearing on April 5. See ECF No. 26. The next day, this Court issued an order

25 setting a March 22 deadline for amicus briefs supporting or opposing the motion. See ECF No.

26 40. After amending its complaint, San Francisco filed its own motion for a preliminary injunction

27 on March 8, 2017, setting a separate hearing date of April 12. See SF Action, ECF No. 21.

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All of the arguments defendants make in their Administration Motion were available to

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1 them the day San Francisco filed its motion for a preliminary injunction. Yet defendants waited

2 12 days, until Monday, March 20, before asking the County to agree to combine the hearings.

3 Decl. of Scott Simpson ¶ 3, ECF No. 79-1. When they did, the County promptly informed them

4 that the County would oppose any such motion. Id. Defendants then waited three more days

5 before filing their request on March 23. In short, Defendants had no legitimate reason to wait two

6 weeks—with the hearing just two weeks away—to seek the relief they now request. There is

7 nothing diligent about this conduct.

8

Second, combining the two hearings would advance no useful purpose, and instead would

9 take an already substantively meaty case and double it. Defendants argue that the two cases are

10 related under Local Rule 3-12. True enough. But Local Rule 3-12’s liberal standard for relation

11 has no bearing on whether key motion hearings in related cases should proceed in tandem.

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Moreover, the County’s case diverges from San Francisco’s in important respects. The

13 County’s suit and preliminary injunction motion focus exclusively on the unconstitutionality of

14 Executive Order 13768. Although San Francisco’s lawsuit and preliminary injunction overlap

15 with respect to two causes of action, San Francisco’s motion presents an entirely separate

16 argument: “the constitutionality of 8 U.S.C. § 1373(a), an immigration statute referenced in the

17 Executive Order, as well as San Francisco’s compliance with that statute.” SF Action, ECF No.

18 11 at 1. That is why, in its Administrative Motion to Consider Whether Cases Should be Related,

19 the County explained that the two jurisdictions’ challenges were made “on different bases.” Id.

20

The two motions seek different relief as well. San Francisco’s motion seeks a nationwide

21 injunction of 8 U.S.C. § 1373. See SF Action, ECF 21-1 at 1. The County neither challenges the

22 constitutionality of section 1373, nor seeks to enjoin its application. Whether section 1373

23 violates the Tenth Amendment, either facially or as applied to San Francisco, and whether San

24 Francisco complies with section 1373 are complex legal issues that deserve their own hearing.

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Defendants argue that the Court would need to hear “the same arguments twice” unless

26 the hearings are combined. Defs.’ Admin. Mot. at 3. But if the Court grants the County’s motion

27 on April 5 or shortly thereafter, it need not consider that portion of San Francisco’s motion the

28 following week. Likewise, defendants are wrong that “the outcome of the two motions will

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almost certainly be the same.” Id. Resolving the County’s motion will resolve some, but not all, of the issues presented in San Francisco’s motion—namely, it would resolve the causes of action focusing on the Executive Order’s violation of the Separation of Powers and the Tenth Amendment.1 But even if the Court denies the County’s motion, it could still find section 1373 unconstitutional and grant San Francisco’s motion. It would best serve the interest of judicial economy to use the April 5 hearing to resolve the County’s claims that the Executive Order violates the Constitution, and then devote the April 12 hearing to questions regarding section 1373’s constitutionality or San Francisco’s compliance with that statute.
Third, the continuance would inconvenience the Court and the County for the reasons just stated. Combining two substantively distinct motions into one hearing on an already busy law and motion day would be unwieldy, inconvenient, and could deprive the Court and the parties of the time they need to argue and consider the important issues presented in the motions. This is particularly true given the Court’s April 12 calendar, which already includes eight pending motions, in addition to San Francisco’s preliminary injunction motion.
Fourth, defendants identify no meaningful prejudice that the Administration would suffer without a continuance, and instead seeks to postpone the hearing for its convenience alone. In the absence of a showing of prejudice, the Court need not grant a continuance. See Gallego v. McDaniel, 124 F.3d 1065, 1072 (9th Cir. 1997).
Unlike the Administration, the County will suffer prejudice if the Court postpones the hearing. As set forth in its preliminary injunction briefing, the County is suffering concrete and ongoing harm from the Executive Order. The Order violates its constitutional rights, and unconstitutionally coerces it—along with every other state and local government across the country—to change its local policies to fall in line with President Trump’s immigration agenda on pain of crippling sanctions. Since the County filed its reply brief on March 16, and consistent with President Trump’s repeated statements, the Administration has moved forward in implementing the Executive Order. On March 20, 2017, the Department of Homeland Security
1 The County has also advanced claims under the Fifth Amendment’s due process clause, which do not appear in San Francisco’s complaint or in its motion seeking a preliminary injunction.
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issued its first “Declined Detainer Outcome Report,” as called for in Section 9(b) of the Executive Order. See U.S. Immigration & Customs Enforcement, Weekly Declined Detainer Outcome Report, https://www.ice.gov/doclib/ddor/ddor2017_01-28to02-03.pdf. The County of Santa Clara is identified in that report. Id. at 4. Moreover, with each passing day, the County continues to spend money on essential services for which it is entitled to federal reimbursement. A one week delay may not mean much to the Trump Administration, but to a local government attempting to make budget decisions, remain solvent, and provide services to 1.9 million residents, it means very much indeed: the County incurs millions of dollars in expenses each day for which it is entitled to federal reimbursements threatened under the Executive Order.
The uncontroverted evidence submitted by the County in support of its motion makes this clear. During March and April, the County balances anticipated revenues with proposed budgets in order to develop the legally-required balanced budget that is then considered by the Board of Supervisors during May and June. See ECF No. 29, Marquez Decl. ¶ 13. Any delay in resolving the County’s motion will only exacerbate the fiscal and budgeting uncertainty the County currently faces as a result of the Executive Order. IV. CONCLUSION
Because none of the four factors of the relevant legal test supports postponing the April 5 hearing, the Court should deny defendants’ Administrative Motion and leave the hearing as set.
Respectfully submitted,

Dated: March 24, 2017

OFFICE OF THE COUNTY COUNSEL, COUNTY OF SANTA CLARA
By: /s/ James R. Williams JAMES R. WILLIAMS, County Counsel
Attorneys for Plaintiff COUNTY OF SANTA CLARA

Dated: March 24, 2017

KEKER, VAN NEST & PETERS LLP

By: /s/ John W. Keker JOHN W. KEKER

Attorneys for Plaintiff COUNTY OF SANTA CLARA
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FILER’S ATTESTATION

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I, John W. Keker, am the ECF user whose identification and password are being used to

3 file this document. Pursuant to Rule 5-1(i)(3), I hereby attest that the other above named 4 signatories concur in this filing.

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/s/ John W. Keker JOHN W. KEKER

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 Case 3:17-cv-00574-WHO Document 82 Filed 03/28/17 Page 1 of 4

1 OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA
2 JAMES R. WILLIAMS - # 271253 County Counsel
3 james.williams@cco.sccgov.org GRETA S. HANSEN - # 251471
4 DANIELLE L. GOLDSTEIN - # 257486 KAVITA NARAYAN - # 264191
5 JAVIER SERRANO - # 252266 JULIE WILENSKY - # 271765
6 JULIA B. SPIEGEL - # 292469 ADRIANA L. BENEDICT - # 306936
7 70 West Hedding Street East Wing, Ninth Floor
8 San Jose, CA 95110-1770 Telephone: 408 299-5900
9 Facsimile: 408 292-7240

KEKER, VAN NEST & PETERS LLP JOHN W. KEKER - # 49092 jkeker@keker.com ROBERT A. VAN NEST - # 84065 rvannest@keker.com DANIEL PURCELL - # 191424 dpurcell@keker.com CODY S. HARRIS - # 255302 charris@keker.com NICHOLAS S. GOLDBERG - # 273614 ngoldberg@keker.com EDWARD A. BAYLEY - # 267532 ebayley@keker.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188

10 Attorneys for Plaintiff

COUNTY OF SANTA CLARA

11 UNITED STATES DISTRICT COURT

12 NORTHERN DISTRICT OF CALIFORNIA

13 SAN FRANCISCO DIVISION

14

COUNTY OF SANTA CLARA, 15

Case No. 17-cv-00574-WHO

Plaintiff, 16

REQUEST FOR COURT APPROVAL TO SUPPLEMENT RECORD UNDER LOCAL

v. 17

RULE 7-3(D)

DONALD J. TRUMP, President of the 18 United States of America, JOHN F. KELLY,

Judge:

Hon. William Orrick

in his official capacity as Secretary of the 19 United States Department of Homeland

Date Filed: February 3, 2017

Security, JEFFERSON B. SESSIONS, in his 20 official capacity as Attorney General of the

Trial Date: Not yet set

United States, JOHN MICHAEL “MICK” 21 MULVANEY, in his official capacity as

Director of the Office of Management and 22 Budget, and DOES 1-50,

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Defendants.

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REQUEST FOR COURT APPROVAL TO SUPPLEMENT RECORD UNDER LOCAL RULE 7-3(D) Case No. 17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 82 Filed 03/28/17 Page 2 of 4

1

Pursuant to Civil Local Rule 7-3(d), Plaintiff County of Santa Clara (“the County”)

2 respectfully seeks Court approval to file the attached exhibits in support of its Motion for

3 Preliminary Injunction (ECF No. 26). The four exhibits consist of public statements and

4 documents issued by the Department of Justice and the Department of Homeland Security after

5 the County filed its Reply Brief. Such materials are properly considered under Local Rule 7-3(d).

6 See SanDisk Corp. v. SK Hynix Inc., 84 F. Supp. 3d 1021, 1025 n.1 (N.D. Cal. 2015) (granting

7 leave to file supplemental declaration with previously unavailable evidence relevant to motion).

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Specifically, the County seeks to supplement the record with the following documents:

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1. Transcript of March 27, 2017 White House Press Briefing featuring comments by

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Attorney General Jeff Sessions. Fed. News Serv. Tr., White House Press Secretary Sean Spicer – Briefing, 2017 WLNR 9450770 (Mar. 27, 2017)

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(Attached hereto as Exhibit A);

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2. United States Immigration and Customs Enforcement, Enforcement and Removal Operations, Weekly Declined Detainer Outcome Report for Recorded Declined Detainers Jan. 28–Feb. 3, 2017, https://www.ice.gov/declined-detainer-outcomereport (Attached hereto as Exhibit B);
3. Department of Homeland Security, Fact Sheet: U.S. Immigration and Customs Enforcement Declined Detainer Outcome Report (DDOR), Mar. 20, 2017, https://www.dhs.gov/news/2017/03/20/fact-sheet-us-immigration-and-customersenforcement-declined-detainer-outcome-report (Attached hereto as Exhibit C);
4. Department of Homeland Security, Q&A: U.S. Immigration and Customs Enforcement Declined Detainer Outcome Report (DDOR), Mar. 20, 2017, https://www.dhs.gov/news/2017/03/20/qa-us-immigration-and-customersenforcement-declined-detainer-outcome-report (Attached hereto as Exhibit D).
These materials are relevant to the County’s motion. For example, in Exhibit A,
Defendant Sessions expressly threatens to “claw back any funds awarded to a jurisdiction that
willfully violates [8 U.S.C. §] 1373.” Ex. A at 2. That threat bears on the parties’ arguments
regarding standing and ripeness. See Western Radio Servs. Co. v. Qwest Corp., 530 F.3d 1186,
1205 (9th Cir. 2008) (“[R]ipeness is assessed based on the facts as they exist at the present
moment.”). Similarly, Defendant Sessions’s admonition that “states and cities and counties”
should “rethink” their policies or else risk “losing federal dollars,” Ex. A at 2, bears directly on
the County’s argument that Executive Order 13768 causes irreparable harm by unconstitutionally
coercing state and local governments to alter their local policies regarding community policing
1 MOTION TO SUPPLEMENT RECORD UNDER LOCAL RULE 7-3(D)
Case No. 17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 82 Filed 03/28/17 Page 3 of 4

1 and participation in federal immigration enforcement activities. See ECF No. 26 at 22–23; ECF

2 No. 52 at 6–7. Exhibits B–D are likewise relevant because they reveal how the Administration is

3 implementing Section 9 of the Executive Order.

4

The County could not have submitted these materials before the close of briefing on its

5 motion. The Department of Homeland Security issued its first DDOR and accompanying

6 documents on March 20, 2017, and Defendant Sessions issued his statement on March 27, 2017.

7 Both dates post-date the County’s March 16 deadline for filing its reply brief. Furthermore,

8 granting approval to file the attached exhibits would cause no prejudice to Defendants. The

9 Administration cannot be heard to argue that its own public statements regarding the challenged

10 Executive Order are irrelevant or prejudicial to the pending motion.

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Accordingly, the County respectfully requests Court approval to file the attached exhibits

12 for the Court’s consideration in connection with its motion for a preliminary injunction.1

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Respectfully submitted,

14 Dated: March 28, 2017
15 16 17 18

OFFICE OF THE COUNTY COUNSEL, COUNTY OF SANTA CLARA
By: /s/ James R. Williams JAMES R. WILLIAMS, County Counsel
Attorneys for Plaintiff COUNTY OF SANTA CLARA

19 Dated: March 28, 2017
20 21 22 23

KEKER, VAN NEST & PETERS LLP
By: /s/ John W. Keker JOHN W. KEKER
Attorneys for Plaintiff COUNTY OF SANTA CLARA

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1 These documents are subject to judicial notice pursuant to Federal Rule of Evidence 201(b). See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (court may take judicial notice of information on government websites); Ali v. Trump, No. 17-135-JLR, slip op. at 2 n.1 (W.D. Wash. Mar. 3, 2017) (Dkt. No. 49) (taking judicial notice of White House press briefing and presidential news conference transcripts); Hepting v. AT&T Corp., 439 F. Supp. 2d 974, 987 (N.D. Cal. 2006) (taking judicial notice of Attorney General’s press briefing and President’s public statements).
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FILER’S ATTESTATION

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I, John W. Keker, am the ECF user whose identification and password are being used to

3 file this document. Pursuant to Rule 5-1(i)(3), I hereby attest that the other above named

4 signatories concur in this filing.

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EXHIBIT A

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3/27/17 Fed. News Serv. Transcripts (Pg. Unavail. Online) 2017 WLNR 9450770
Federal News Service Transcripts Copyright (c) 2017 Federal News Service
March 27, 2017
White House Press Secretary Sean Spicer - Briefing
Subject: White House Participants: White House Press Secretary Sean Spicer Location: The White House, Brady Press Briefing Room Time: 13:30:00 Date: 2017-03-27
SPICER: It's Monday, so I brought a special guest.SPICER: First, I'd like to have the attorney general come up to the podium to make an announcement regarding immigration enforcement with respect to sanctuary cities. When the attorney general is done speaking, we'll have time for a couple questions and then -- and then I'll continue with the briefing. So if your question is not germane to sanctuary cities, keep your hand down and we'll get to it after we go through the events of the day.
So with that, Attorney General Sessions, come on up.
SESSIONS: Thank you. Thank you, Sean.
The Department of Justice has a duty to enforce our nation's laws, including our immigration laws. Those laws require us to promptly remove aliens when they are convicted or detained of certain crimes. The vast majority of American people support this common sense requirement. According to one recent poll, 80 percent of Americans believe that cities that make arrests -- that arrest illegal immigrants for a crime should be required to turn them over to immigration authorities.
Unfortunately, some states and cities have adopted policies designed to frustrate this enforcement of immigration laws. This includes refusing to detain known felons under federal detainer request or otherwise failing to comply with these laws. For example, the Department of Homeland Security recently issued a report showing that in a single week, there were more than 200 instances of jurisdictions refusing to honor ICE detainer requests with respect to individuals charged or convicted of a serious crime.
These -- the charges and convictions against these aliens include drug trafficking, hit and run, rape, sex offenses against a child and even murder. Such policies cannot continue. They make our nation less safe by putting dangerous criminals back on the streets. We all remember the tragic case of Kate Steinle, the 32-year-old woman who was shot and killed two years ago in San Francisco as she walked along a pier with her father.
The shooter, Francisco Sanchez, was an illegal immigrant who had already been deported five times and had seven felony convictions. Just 11 weeks before the shooting, San Francisco had released Sanchez from its custody even though Immigrations and Customs Enforcement officers had filed a -- a detainer requesting that he be held in custody until immigration authorities could pick him up for removal.

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Even worse, Sanchez admitted the only reason he came to San Francisco was because it was a sanctuary city. A similar story unfolded just last week when Ever Valles, an illegal immigrant and a Mexican national, was charged with murder and robbery of a man at a light rail station. Valles was released from a Denver jail in late December despite the fact that ICE had lodged a detainer for his removal.
The American people are not happy with these results. They know that when cities and states refuse to help enforce immigration laws, our nation is less safe. Failure to deport aliens who are convicted of criminal offenses puts whole communities at risk, especially immigrant communities in the very sanctuary jurisdictions that seek to protect the perpetrators.
DUIs, assaults, burglaries, drug crimes, gang rapes, crimes against children and murderers; countless Americans would be alive today and countless loved ones would not be grieving today if these policies of sanctuary cities were ended. Not only do these policies endanger lives of every American, just last May, the Department of Justice inspector general found that these policies also violate federal law.
The president has rightly said disregard for law must end. In his executive order, he stated that it is the policy of the executive branch to ensure that states and cities comply with all federal laws including all immigration laws. Today, I'm urging states and local jurisdictions to comply with these federal laws, including 8 USC Section 1373. Moreover, the Department of Justice will require that jurisdictions seeking or applying for Department of Justice grants to certify compliance with 1373 as a condition of receiving those awards.SESSIONS: This policy is entirely consistent with the Department of Justice's Office of Justice Programs guidance that was issued just last summer under the previous administration.
This guidance requires state and local jurisdictions to comply and certify compliance with Section 1373 in order to be eligible for OJP grants. It also made clear that failure to remedy violations could result in withholding grants, termination of grants, and disbarment or ineligibility for future grants.
Department of Justice will also take all lawful steps to claw back any funds awarded to a jurisdiction that willfully violates 1373.
In the current fiscal year, Department of Justice's Office of Justice Programs and Community Oriented Policing Services anticipates awarding more than $4.1 billion in grants.
I strongly urge our nation's states and cities and counties to consider carefully the harm they are doing to their citizens by refusing to enforce our immigration laws and to rethink these policies. Such policies make their cities and states less safe, public safety as well as national security are at stake, and put them at risk of losing federal dollars.
The American people want and deserve a lawful system of immigration that keeps us safe, and one that serves the national interests. This expectation is reasonable, just, and our government has the duty to meet it and we will meet it.
Thank you.
QUESTION: Mr. Sessions, in Montgomery County, taxes -- I'm sorry, Montgomery County right up the road, there was a rape in Maryland in -- at Rockville High School.
Has anyone from the Department of Justice had any conversation with anyone in Montgomery County or Rockville as they describe themselves as sanctuary county and city, and there's also a boatload (ph) of federal government in Montgomery County?

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SESSIONS: Well, you know, Maryland is talking about a state law to make the state a sanctuary state. The governor's opposed to that, I'm glad to hear. That would be such a mistake. I would plead with the people of Maryland to understand that this makes the state of Maryland more at risk for violence and crime. That it's not good policy. And as a former prosecutor for many years in state and federal law on jurisdictions, I just know the historic relationship different federal agencies have with regard to honoring detainers. It's just a fundamental principle of law enforcement that if you have a person arrested and another jurisdiction has a charge, then they file a detainer. And when you finish with the prisoner, you turn them over to the next jurisdiction for their adjudication.
That is what should be done with...
(CROSSTALK)
QUESTION: So may I ask (ph) a question? Mr. Attorney General...
SPICER: Major.
QUESTION: Mr. Attorney, so listening to you carefully, sounds like you're applying the standards and the policy that the Obama administration put forward on compliance with underlying Justice Department rules.
Are you taking any additional steps? And have you asked the president to maybe talk about other federal funds that are not necessarily under your control as a way to punish sanctuary cities or states?
SESSIONS: Well, that's a good question.
What I'm seeing today is that essentially the policies of the Obama administration that were issued last July make clear that you should not be receiving certain federal funds if you're not in compliance with 1373.
We believe that grants in the future could be issued that have additional requirements, as every grant that's being issued in America today usually has requirements that if you qualify for this grant, you have to meet certain requirements. So we'll be looking at that in the future and we'll continue to pursue it.
But fundamentally, we intend to use all the lawful authority we have to make sure that our state and local officials, who are so important to law enforcement, are in sync with the federal government.
(CROSSTALK)
QUESTION: Mr. Attorney General (OFF-MIKE) cities, for example, bigger cities, have said despite the lack of federal funding, they will continue to be sanctuary cities; that they don't care that they're losing money essentially.
What recourse does the Department of Justice have in those cities that look at what you're doing and say, "We don't care; we're going to continue to implement this policy"?SESSIONS: Well, that's very -- you know, disheartening.
But I hope that the American people and their constituents in their own cities will communicate with them. And as we continue a dialogue and a discussion, and as we continue to ensure that monies that go for law enforcement only go to cities who are participating in an effective, collegial, cooperative way with the federal government, that that would also send a message. We have simply got to end this policy.
Thank you, all.

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(CROSSTALK)
SPICER: OK, you guys ready to continue?
QUESTION: Yes.
SPICER: Good. Before I get into the day's schedule, I wanted to read -- I know there's been some interest in the State Department's statement regarding the arrest of hundreds of protesters -- peaceful protesters that occurred in Russia.
The statement that the State Department put out says, quote, "The United States strongly condemns the detention of hundreds of peaceful protesters throughout Russia on Sunday. The detention of peaceful protesters, human rights observers and journalists is an affront to essential democratic values. We are troubled to hear of the arrest of the opposition leader upon arrival at the demonstration, as well as the police raids on the anti-corruption organization he heads. The United States will monitor the situation and we call on the government of Russia to immediately release all peaceful protesters."
The Russian people, like people everywhere, deserve a government that supports an open marketplace -- open marketplace of ideas, transparent and accountable governance, equal treatment under the law and the ability to exercise their rights without fear of retribution."
Now, with respect to events for the day, this morning, after receiving his daily intelligence briefing, the president participated in a roundtable with women small business owners. The president is hosting a group of women's business owners as part of the White House's full calendar of Women's History Month events. At the roundtable this morning, Vice President Pence, SBA Administrator McMahon joined with other senior administration officials to hear from these amazing female entrepreneurs and small business leaders about their first-hand experiences, successes and challenges.
As the president said, quote, "Empowering and promoting women in business is an absolute priority in the Trump administration because I know how crucial women are as job creators, role models and leaders all throughout our communities."
The women in attendance this morning have incredible stories, including many who have started businesses from scratch with very limited resources, and through hard work and determination, turned their dreams into reality. Between them, they provide hundreds of jobs to Americans across the country.
The president is dedicated to continuing to remove the unique barriers that women face in our economy, including access to capital, markets and networks. This administration will continue to advocate for policies that support working family, including a national initiative to promote women business leaders and entrepreneurs that his daughter Ivanka is helping to lead.
In honor of Women's History Month, the White House has been hosting events all throughout March. Just to name a few, the Centers for Medicaid and Medicare System (sic) Administrator Verma held a round table with women in health care, which the president attended. The First Lady held a women's empowerment lunch on International Women's Day. Earlier this month, Second Lady Karen Pence joined women from all five military branches for lunch at Fort Meade, and last week, hosted military women at the vice presidents residence to thank them for their service.
Under President Trump, the American economy is a place for everyone, regardless of their gender, to thrive.

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Following the round table, the president had lunch with the vice president and Secretary of State Tillerson. And at three o'clock, the president will have signed House Joint Resolutions 37, 44, 57 and 58, all of which use the powers of the Congressional Review Act to roll back job killing rules.
Before this administration, only one time in the nation's history had a president ever signed a bill that used the Congressional Review Act to cancel a Federal regulation. In just his first 66 (ph) days as president, he will have signed six resolutions to eliminate unnecessary and burdensome rules.
House Joint Resolution 37 rolls back the so-called blacklisting rule, which manufacturers identified during their meeting with the president as one of the most significant threats to the growing American -- to growing American businesses and to hiring more American workers.
The rule simply made it too easy for trial lawyers to go after American companies and American workers who contract with the federal government. The president saw that workers, taxpayers and businesses were the ones who truly suffered under this rule and he's glad to be signing legislation to eliminate it. House Joint Resolution 45, 57 and 58 cancel federal power grabs that took decision-making away from the states and local governments who know the unique challenges of their own populations. The president firmly believes that Washington's not always the solution to these problems and that these bills return the power to the people by putting more decision-making in the hands of states.SPICER: House Joint Resolution 44 removes a Bureau of Land Management rule, known as Planning 2.0, that would have centralized federal and land management in Washington, diluting the concerns of local citizens who have a right that is protected by law to be involved in this decision-making process.
H.J.Res. 57 and 58 eliminate the Department of Education regulations which limit states' flexibility in how they assess the performance of schools and teacher preparation and programs. Removing these additional layers of bureaucracy will make it easier for parents, teachers and communities and state leaders to address the needs of their students.
The president will continue to work with Congress and the rest of the federal government until every unnecessary regulation that stands in the way of success for American business and American people is taken off the books.
Additionally, the president spoke with German Chancellor Merkel and Indian Prime Minister Modi earlier today to congratulate them on their parties' success in recent elections. We'll have readouts on those calls a little later for you both.
The president also will announce the establishment of the American -- the Office of American Innovation. The Office of American Innovation will apply the president's ahead-of-schedule and under- budget mentality to a wide number of government operations and service (sic), enhancing the quality of life for all Americans.
The office will have a particular focus on technology and data, hearing back from leaders in the industry.
As some of its first priorities, the office will focus on modernizing the technology of ever -- every federal department, identifying transformational infrastructure projects and reimagining the V.A. system so they can better serve our nation's heroes.
The effort will be led by Assistant to the President and Senior Advisor Jared Kushner.
Tomorrow, the president will sign an executive order to strengthen the nation's energy security by reducing unnecessary regulatory obstacles that restrict the responsible use of domestic energy resources. This order will help keep energy and electricity affordable, reliable and clean, in order to boot economic growth and job creation. And finally, before I came out today, Senate Democrats continued their obstruction to the president's nomination of Judge Neil Gorsuch to the Supreme Court, with the Judiciary Committee seeking a one-week postponement on its decision.

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Over the weekend, Senate Minority Leader Chuck Schumer defended his decision to mount a filibuster against the president's unquestionably qualified nominee. If Senator Schumer gets his way, this would be the first successful filibuster against a Supreme Court nominee in American history.
He argued, quote, quite misleadingly that the Senate has, quote, "required a 60-vote threshold" of, quote, "every Supreme Court nominee." That's simply not true. And as I've said before, only three support (sic) justices have faced a filibuster in the last half of the century.
Senator Schumer started (ph) four justices confirmed under Senator -- President Bush and Obama. But in fact, among those four, only one faced an attempted filibuster. That was Justice Samuel Alito. And it was President Obama who, then as a senator, voted to filibuster Justice Alito and later publicly expressed his regret for that.
The fact is, an attempted filibuster of a Supreme Court nominee is rare. And to do so in this context with such an -- an eminently qualified and brilliant judge is nothing short of obstructionism.
That's why Senator Pat Leahy, the former Democratic chairman of the Senate Judiciary (sic), said he is, quote "not inclined to filibuster," end quote, even if he ultimately may not vote to confirm the judge.
The fact that former chair -- the former chairman of the Judiciary Committee won't stand by the minority leader exposes the leader's efforts as nothing but obstructionism that undermines decades of Senate tradition.
Through four days of extensive hearings, Judge Gorsuch demonstrated his -- his judicial philosophy, his sterling academic credentials, and a brilliant legal mind. He deserves a fair up-or- down vote.
And with that, I'd be glad to take a few of your questions.
Jonathan?
QUESTION: Is the president serious about working with Democrats going forward after what happened with health care?
SPICER: Absolutely.
In fact, starting Friday afternoon through late yesterday, he's received a number of calls, as well as other members of the senior staff that had been working on health care, from members of both sides saying that they would like to work together, offer up ideas, and had suggestions about how to come to resolution on this and get to a House vote on this.
(CROSSTALK)
QUESTION: But -- but -- but wouldn't this -- wouldn't this require a...
SPICER: Sorry, John (ph), this isn't a free-for-all. Jonathan's asking a question.
QUESTION: But -- but wouldn't this require a serious course collection -- correction for the White House? I mean, the president branded Chuck Schumer a clown, you know, worked entirely with -- with Republicans on -- on this bill. Wouldn't this -- this require a serious change of course for the president?SPICER: To some degree, sure. And I think the president talked about that.

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I think he's -- he -- we learned a lot through this process. I think we're obviously looking at ways that we can improve not only how we handled health care, but other things -- how we do everything.
And I -- I've mentioned it some of you in the course of things. I think, you know, one of the traits of a successful organization is to always examine how you do things.
But I think that there's been a lot of outreach from members of both sides with ideas and the president's willing to listen to these individuals and if they can come to a resolution on a way forward, obviously we're willing to listen and to move forward. But you know, there are a lot of folks that came forward with these ideas.
And with all due respect, to the beginning of your question, I don't think it's a one-way street some of the comments that have been made. I think some of the Democrats who now say they weren't involved, early on in the process said that there was -- there would be no -- they would have -- they wanted nothing to do with this process. There's no way that they would engage in any discussion of repeal.
So I -- I think it's a two-way street and I think that we have been willing to listen to folks and their ideas and the president's advice is that if we can come up with resolution on a way to move forward, we'll certainly entertain that.
QUESTION: And where's the buck (ph) stop for this failure?
(CROSSTALK)
SPICER: Well, it's not -- just so we're clear. Look, we're -- we're at the beginning of a process. I don't think we've seen the end of health care. As most people have noted, I think the Obama administration from beginning to end (inaudible) about 17 months. Went through a series of fits and starts and it wasn't until Scott Brown was elected, denying them the 60th vote in the Senate, that they finally jammed something through.
And frankly, a lot of the reason that the secretary of Health and Human Services has some of the powers that they do is because they -- they got -- they had to jam it through. But there were several failure when Obamacare went through during the process, and you know, ultimately, they tried to go through a single-payer process and they had to -- they got rebuffed on that by some of their own members.
So you know, look, we're not saying it's the end of health care, but I think that we are looking to look for a way forward and I think that a lot of the members -- and again, on both sides of the aisle have reached out not just to the president, but to members of the team, willing to share some ideas and both that will make -- they think that would make the bill stronger.
But ultimately, the goal is to get to 216 and potentially 218, depending on where we are with special elections. And so, we're -- we're going to look to see where we can get those 218 votes. And there may be other opportunities to work with people across the aisle to get us to 218, but that's the name of the game and we're going to continue to -- to pursue that.
Jim (ph).
QUESTION: Sean, the last Congress to pass significant tax reform took about five years, and that was 30 years ago in 1986. After the failure of (inaudible) American Health Care Act, on an issue where there was broad GOP consensus, what makes the president think he can pass significant tax reform this year?
SPICER: Well, I think it's been 30 years. I think people -- we have a series of -- we have an economy that's evolved, especially in the technology area that has made a lot of things change and I think our tax code is outdated. And frankly,

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on the business side, we're uncompetitive. There's a reason that companies are leaving America to go to other places because -- same reason sometimes companies move from state to state.
Our corporate and regulatory system has become unattractive for a lot of companies that want to either manufacture here, grow here or begin here. And -- or want to return jobs here. I think the president recognized that business leaders from around the country -- it's not a partisan issue. I mean, you go out to the tech sector out in Silicon Valley in particular, there's a lot of these companies out there that admittedly weren't with the president during the election or continue not to be and -- and I think recognize that we are not as competitive as we can be when you consider the tax and regulatory climate of other countries around the world.
And we need to be more competitive. Then, I think you look at the individual side of the House and I think especially when you talk to -- to middle income Americans, especially in the context of health premiums, going -- skyrocketing up, they recognize that they need some relief. And so we've got to do what we can to address that.
John Christopher (ph).
QUESTION: Thank you.
Since -- historically, since health care is so -- has beguiled many presidents all the way back to Harry Truman and certainly when Hillary Clinton came to Washington, she went to the Hill and thought that she could get it done. I'm sure there are many lessons you could learn from previous presidents and perhaps previous first ladies. Has the president thought of ever reaching out to Hillary and finding out, you know, how she maneuvered and some of the best practices or some of the pitfalls that she's come into?
SPICER: Well, I -- and I think that you know -- I mean, he's met with Dr. Ezekiel Emanuel and others. It's not been a -- he has reached out to several people throughout this process to gauge both their policy ideas and strategy ideas and I think, you know, the president noted on Friday afternoon that we learned a lot on several fronts about strategically how to handle this as well as some of the members that we thought we could -- we would have with us. And we're reexamining that on a variety of bases.SPICER: Margaret (ph).
QUESTION: Thank you.
We got some guidance from the White House earlier about Chairman Nunes' meeting on the White House grounds (inaudible) and the idea that questions about the meeting should be referred to the committee chairman.
But I wanted to ask a slightly different question, which is, does the White House know now what actually happened?
Do you have issues with the idea that someone, perhaps in the executive branch, shared information on the White House grounds without you knowing about it? Are you investigating this? Do you believe it was a leak? Do you -- or was it in fact someone on the White House or the NSC staff or on loan to either who provided the information, and therefore it's not a leak?
SPICER: So I -- obviously, all of what I know has been available through public comments.
I know that Chairman Nunes has confirmed that he was on White House grounds Tuesday and, frankly, any questions regarding who he met with or why he was here should be referred to him.
I've seen some of the comments that he's made to your outlet in particular about who he met with. And -- and I would -- I would refer you to his comments that he's made.

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I'm not going to get into who he met with or why he met with them. I think that's something that he has been very clear and I'll let him answer it.
This is a -- he is the one who has discussed what he is reviewing and so I will leave it up to him and not try to get in the middle of that.
QUESTION: (inaudible) just to close the circle on it, I'm asking a slightly different question.
SPICER: OK.
QUESTION: At least I'm trying to ask a slightly different question, which is -- does the White House know what happened now beyond public accounts? And are you satisfied that you don't have an inappropriate leak in the executive branch?
SPICER: No, I'm not -- we're not concerned about that.
I know that he is -- again, everything that I know about what he has done is through public reports that he has made on the record to different folks when he's said he has multiple sources, he had met with different folks to gather things as part of his review of the situation. And so, all I know, and what I'm willing to communicate, is what -- what has been made available through on-the-record comments that he has made.
QUESTION: On White House grounds -- you have to be cleared onto the White...
SPICER: No, not necessarily. I don't know that members of Congress need to be cleared.
QUESTION: But don't -- wouldn't the White House want to know?
(CROSSTALK)
SPICER: Again, I think there's a difference.
He's doing a review and it's not something that we're gonna necessarily get in the middle of or get in the way of. Part of it is to let him review and have conversations and look at things if he thinks are relevant.
Halle (ph)?
QUESTION: Clarification on your answer to Margaret.
You said "I don't know that members of Congress have to get cleared in." There is some question about that. Who in the White House signed him in, essentially? Do you...
SPICER: I don't know that you have -- I'll -- I'll be glad to check on that. I'm not sure that that's -- that that's how that works, but I will follow up on that point.
QUESTION: The second question is -- and it's related to this. I understand that you're not going to speak about, sort, of the swirl surrounding this issue with Chairman Nunes, does the White House believe that he can still lead an impartial investigation? Or would the administration support some of these calls now for an independent committee to investigate this?

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SPICER: First of all, I would question what this is. Because as I've mentioned countless times from this podium, there's two issues at hand. There's multiple.
There's -- number one, there's any action with respect to Russia itself. And every single person that's been briefed by Director Comey in particular and the FBI has said there's nothing there.
What he is looking into are two things that we are aware of because of -- of the pleas that we have made.
One is the -- the leaks of classified and other information that are come out. And two is -- is whether or not there has been people that have been unmasked and whether or not their surveillance occurred (ph). I don't know why -- we stand by the original request that was made. And I think Director Comey in open testimony the other day talked about what the FBI's looking into.
So, I think we, you know, have a lot of people looking into this whole situation.
(CROSSTALK)
QUESTION: Will the administration pursue -- will the White House pursue a leak investigation into whoever is giving Chairman Nunes this information (inaudible) the executive branch?
SPICER: I -- at this point, we're letting his -- the review of this situation proceed. And we can address that after he decides to be clear about that.
(CROSSTALK)
QUESTION: Why is this leak OK but other leaks are not?
SPICER: It's not -- I think there's a difference between a leak and -- and someone pursuing a -- a review of the situation that they have determined. That's not -- there's a difference between a leak, someone leaking out to reporters for nefarious -- to take classified information and share it with people who aren't cleared.
Chairman Nunes is cleared. He is the chairman of the Intelligence Committee. Someone who is cleared to share classified information with somebody else cleared is not a leak.
QUESTION: (OFF-MIKE) Just a quick housekeeping note. At the beginning of the briefing, you read out the State Department statement on the protest and arrests in Russia. Does that reflect the White House's views sometimes...
SPICER: That reflects the view of the United States government.
QUESTION: OK. Just wanted to clarify that.
And secondly, back on -- you mentioned that there was -- there were lessons learned off of what went down last week -- the last several weeks here on health care.
Can you go into specifics of what some of those lessons are in terms of -- the president talked a lot about he learned a lot about loyalty, I think is one of the lines he used on Friday. Is he -- does he believe that some members of this party are no longer loyal to him?

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You know, sort of, what are some of the lessons...SPICER: I'm not -- I'm not going to detail -- go through -- I mean obviously this is an internal thing that we discuss.
But I will say that, you know, we look at things like everything from, you know, who we met with and when we met with them to, you know, whether or not we should've -- how -- how the thing -- how everything was rolled out and what organizations were met with, what commitments were met and when.
There's a lot that goes into this, and you look at whether or not that's applicable to another situation, whether that's unique. But obviously, yeah, you do look at some of the individuals that you met with both in terms of timing, in terms of commitment, in terms of substance. And evaluate, you know, just the process itself, but then also, to some degree, the -- the individuals and whether or not that is someone that you, you know...
QUESTION: (OFF-MIKE)
SPICER: There's -- there's several folks. Again, it depends on the aspect of it. There's -- there's a legislative affairs team, there's a public policy team, there's a coms (ph) aspect to this. But we all internally talk about what went well, what didn't and we do that not just with the bad, but the good.
I mean, I think -- I think Jonathan asked it somewhat at the beginning, but I think, you know, in most organizations, whether or not you do something really well or not as well, it's usually incumbent upon you to think what did we do well so that for things that we did really well, we sustain those kind of aspects of something? Because there's always something to improve.
And even when you don't do as well, but there's parts of things that you did that you could've done -- that you did well and you don't wanna throw the baby out with the bath water. So there's an ongoing piece to this.
Major.
QUESTION: (inaudible) on Chairman Nunes and I have a question about Jared in a second. So yes, members of Congress may not need to be cleared in, but to get access to a skip (ph), I do believe that requires some cooperation from the executive branch because there are intelligence places on Capitol Hill that are secure that this meeting could've taken place. So it creates the impression that Chairman Nunes came over here, and with some degree of cooperation with this White House, was able to carry out this meeting and then make the announcement that he did, which is perceived by some, most of the Democrats I'll grant you that, that it was trying to be helpful to this president and this administration.
So it appears there was some degree of cooperation in this process that the White House granted Chairman Nunes, making it not just an investigative action, but a cooperative one.
SPICER: Right, so I would refer you to two things.
Number one, we've asked both of these entities, both the House and the Senate Intelligence Committees, to undertake this review. So it is partially at our request that they're looking into this.
Number two -- number two, based on the public comments that he made to Margaret's organization, he -- he has said, from my understanding on the record, that he is not -- that he did not meet with White House staff. So again, I think you're -- you're trying to make something that he is himself, from what I've read, not actually been the case.
QUESTION: That's not what I asked you. I asked you about cooperation.

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(CROSSTALK)
SPICER: I understand that, I'm not...
(CROSSTALK)
QUESTION: ... has to be carried out with your (inaudible).
SPICER: I will be glad to take a look at that and figure out whether or not that is an accurate statement or not.
QUESTION: OK. Let me ask you about Jared. There is an understanding that's trying to be worked out, as we understand it, between Jared and the Senate Intelligence Committee. Is that testimony? Is that something that the committee has requested? Has he volunteered?
SPICER: Yeah.
QUESTION: Does he believe he has something to explain to that committee and more broadly, the American public about what he did on behalf of the transition with whom we met with and some of the meetings that he took that are raising questions about Russia and folks that he met with that are outside of diplomatic channels but have other aspects to their Russian business deals that may cause concern?
SPICER: Right, so throughout the -- the campaign and the transition, Jared served as the official primary point of contact with foreign governments and officials until we had State Department officials up which we assumed...
(CROSSTALK)
QUESTION: ... request?
SPICER: That's correct. And so given this role, he volunteered to speak with Chairman Burr's committee, but has not received any confirmation regarding a time for a meeting or anything.
QUESTION: Is this gonna be a private meeting or is this gonna be...
SPICER: I don't know. Again, he was at -- he -- he...
QUESTION: What is he (ph) trying to accomplish with that?
SPICER: I think based on the -- the questions that surround this, he volunteered to go in and sit down with them and say hey, I'm glad to talk about the role that I played and the individuals I met with.
But again, remember that given the role that he played, both during the campaign and during the transition, he met with countless individuals. That was part of his job, that was part of his role and he executed it completely as he was supposed to.
QUESTION: OK. So he doesn't believe he owes the American public an explanation...
SPICER: For what, doing his job?
(CROSSTALK)

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SPICER: But you're acting as though there's something nefarious about doing what he was actually tasked to do.
QUESTION: Well, it's not every day that someone in a senior position like Jared's, who volunteers to go talk to the Senate Intelligence Committee...
SPICER: No, no...
QUESTION: ... about an investigation...
SPICER: Because of the...
QUESTION: ... dealing with meddling by a foreign power in an American election.
SPICER: Right and -- and I think based on the -- the media frenzy around this -- and I'm answering it. And I'm just saying to you that based on the media frenzy that existed around this, he volunteered to make sure that they -- he said hey, we've made some contact, I'd be glad to explain them, let me know if you'd like to talk. Plain and simple.QUESTION: Sean?
QUESTION: Sean?
SPICER: Yeah?
QUESTION: So just to be clear, just to kind of follow-up on what everyone's been asking about, Chairman Nunes. So the White House does not -- does the White House have knowledge of the information that Chairman Nunes received when he came to the White House the first time? And is -- and if that's the case -- or if that's not the case, is your position that the White House is not going to look into where he got the information from or who gave him the information until his investigation is complete?
SPICER: I think that -- that -- I'm not aware of where he got it from. I know in his public statements, he's talked about having multiple sources, and so I don't know how he derived the conclusion that he did. And you know, I think that at this point, the goal would be to wait until the review that he is undertaking is completed.
Kaitlyn (ph)?
QUESTION: Why would Nunes need to brief the president on documents he viewed on White House grounds?
SPICER: Because that's a big assumption that you're making that that's the only thing. He, as I said just a second ago, he -- he had multiple sources on multiple topics. We don't know what he briefed him on in its totality. So, to jump to that conclusion is frankly irresponsible.
QUESTION: One more question.
SPICER: Yeah?
QUESTION: When will the White House resume releasing visitor logs?
SPICER: We're reviewing that now.
Alexis (ph)?

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QUESTION: Just to follow up, I had two questions, one of them (inaudible). But last week, you were -- you were advising that the Press Corps that it didn't make sense for Nunes to come to the White House and brief the president on something that he had obtained from the White House, from the administration. So, my question to you is I know what you just said, but is it -- can you say factually, you know, absolutely flatly that it's not possible that Chairman Nunes came to brief the president on something that he obtained from the White House or the administration?
SPICER: I can't say 100 percent that I know anything what he briefed him on. What I can tell you through his public comments is that he has said that he had multiple sources that he came to a conclusion on. So, to the degree to which any of those sources weighed on the ultimate outcome of what he came to a decision on, I don't know, and that's something that frankly, I don't even know that he discussed with the president.
QUESTION: So, it's possible. As far as you know...
(CROSSTALK)
SPICER: Well, anything, I mean -- anything is possible.
QUESTION: OK. Here's my question on taxes.
SPICER: Yeah.
QUESTION: The president had said that in the past that he thought maybe tax reform would blow over into 2018, calendar year 2018. And we know from the president's admiration of the 1986 tax reform that took more than two years. Can you answer two questions about tax reform? Does the president anticipate that it will take that long going into 2018 or beyond? And who is going to write the tax legislation? Who's going to devise the plan that the president wants to put his name on?
SPICER: Well, so on the first one, I know that Secretary Mnuchin has talked about August as a target date. And I think it depends. I mean, as you point out, these are big things. There's a lot of groups that are gonna want a ton of input because of the very nature that it's been 30 years.
But I think part of this is going to be dependent on whether -- how -- the degree to which we can come to consensus on a lot of big issues. But I know that it's -- we have a goal and it'll depend on a lot of these issues, both on the corporate side and on the individual side, how that process evolves.
So, to predict it, I know the secretary would like to have it done. He'll play a huge role in this. Gary Cohn will play a big role in it. I think our legislative affairs team will play a role in it. There's a lot of folks on the team -- Secretary Ross on the Commerce side. There's a lot of individuals -- he has assembled a world-class Cabinet that has a lot of interesting in helping to grow the economy, to attract jobs, create a more favorable tax climate here in the country, then also provide also tax relief for middle Americans -- middle class Americans.
So, you know, we're not -- we're not there yet.
(CROSSTALK)
SPICER: What?
QUESTION: Will it be the president's plan?

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SPICER: I mean, obviously we're driving the train on this, so I don't -- I mean, we're going to work with Congress on this, but I think that the president, as you've heard through multiple times, the president has been very clear. This is a huge priority for him, something that he feels very passionate about and so we'll have more on that later.
John (ph)?
QUESTION: Sean, the documents that Chairman Nunes saw here at the White House complex described by his office as (ph) the executive branch documents. In the early days after the president sent out that tweet, the White House was digging around for anything to corroborate what the president had tweeted out. Why did it take the Intelligence Committee chairman coming here to the White House to view executive branch documents to uncover this information? Why couldn't the White House do it?
SPICER: Well, as I mentioned, I think to Margaret, I'm not going to -- I will stick to what the chairman has said publicly. And my understanding from his public comments are that there are certain systems that he doesn't have access to. That was his explanation and I'm going -- you know, I think you should follow up with him on that one.
QUESTION: Did the White House ever search the same documents that the chairman searched?
SPICER: I don't know what he found, so therefore, it'd be hard to say -- to make an assessment of what he was briefed on and what we know. So, that's a really hard question to answer at this point.QUESTION: Is it possible that these documents were merely surveillance reports that were...
(CROSSTALK)
SPICER: I'm not gonna get into hypotheticals, John (ph). I don't know what he found, and to start to say what's possible, what's not, I don't know.
QUESTION: Well, let me just finish if I could.
Is it possible that these were surveillance reports from security clearances that were collected after people had filled out Standard Form 86?
SPICER: I -- I don't know. I mean, I don't know what he -- I honestly don't know what he's got on his systems and what -- what -- what the intel community has on theirs that he wouldn't have access to. So, I don't know what he would've had access to already.
So, Aymon (ph)?
QUESTION: Thanks, Sean.
On tax cuts, it looks like you guys got a little bit of political cover from the House Freedom Caucus over the weekend to do this without paying for all of it, that is adding to the deficit.
What's the right number from the White House's perspective to add to the deficit in order to do that? So, what's -- how high are you willing to do in terms of deficit addition (ph)?
SPICER: It's a -- it's a really early question to be asking at this point.

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I think the question is, as we construct this both on the -- on the corporate side and then on the individual side, I think part of it is, it's gonna be an equation that isn't just driven by that, but more of what's going to attract jobs, what's gonna help us build -- you know, what's gonna grow the economy.
I think we're -- we're growing around -- you know, potentially growing around 2.6. And the president really would like to see that growth rate up in the high 3s, 4s and 5s. And so, there's -- there's a question about what part of tax reform, especially on the corporate side, will help us spur the economy and grow jobs. And I -- I think that -- that's an ongoing discussion. And I think that's more of the driver of this. And then I think as it evolves, we'll have the score and we'll know more.
QUESTION: Are you comfortable entirely adding to the deficit or do you think...
(CROSSTALK)
SPICER: I -- I -- I think...
QUESTION: ... needs to be offset...
(CROSSTALK)
SPICER: But to -- to -- right.
QUESTION: ... some other spending (ph)...
(CROSSTALK)
SPICER: I -- I don't -- you're asking really early in the process to make that kind of analysis before we have a -- a policy set forth or have any kind of notion of what a score would like.
Olivier?
QUESTION: Thanks, Sean.
There's been a steadily escalation of the American role in the war against the Islamic State. The Marines come ashore in Syria, (inaudible) change the rules of engagement.
Has -- I'm trying to understand the relationship between that change and the president's ISIS strategy review. Has he personally signed off on all the changes in -- in America's posture in the field since January 20? Is that something that's left up to the commanders in the field?
I don't understand the relationship between...
(CROSSTALK)
SPICER: Well, it depends on which, you know, mission you're talking about specifically or...
(CROSSTALK)
QUESTION: So, the Marines left in I think October. They obviously went ashore much more recently than that.

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SPICER: In...
QUESTION: So, did he have to sign off on that?
SPICER: I think it depends on -- I mean, he speaks with General Mattis, his national security team very regularly. I'm not gonna get into some of the -- the details of what comes up in those settings.
But I will say that, as I've noted in the past, I think philosophically, the president has made it very clear that -- that he wants to give the commanders on the ground much more flexibility to execute their mission, especially when it comes to defeating ISIS.
That's a -- a very big change in philosophy. But I think it also depends on the -- the magnitude of the mission, the number of ground troops in particular, or -- or -- and so, this is an ongoing discussion that he has with Secretary Mattis, Chairman Dunford and others.
QUESTION: And the (inaudible) review, are you -- are you waiting -- is the president waiting until the review's complete before you announce, sort of, a new posture, a new strategy?
SPICER: Yeah...
QUESTION: Or is it as conclusions come in, you're adapting day- to-day?
SPICER: I think some of it is an ongoing discussion that he's having with both Chairman Dunford of the joint chiefs and Secretary Mattis of the DOD, that at certain times when they meet, they'll update him on certain things and tell him -- give him an update on where they're headed right now, you know, as the review is ongoing.
There are certain events that are part of -- will be part and parcel of -- of the review in terms of where we're going. And so, we'll update him on that and talk to him about the tweaks.
Gabby (ph)?
QUESTION: Thanks, Sean.
President Trump has sent out two tweets now criticizing members of the House Freedom Caucus for preventing Planned Parenthood from being defunded by opposing the AHCA. Is that something that he would want to see tacked on in the rider to (inaudible) funding bill?
SPICER: Well, I think that he's made very clear what his position is on Planned Parenthood. And -- and obviously, this was an opportunity to defund it. And he -- but -- but I don't want to get ahead of our legislative strategy. We'll look at other opportunities. But this is definitely one that was an -- you know, a way to make that happen.
Steve?
QUESTION: On that legislative strategy and the idea of working with Democrats, there's a school of thought in this town that last week proved that the president is lacking in political capital. So I have two questions.

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One is, what's in it for Democrats to work with the president now? And two, if fully pursued and to get things through the House, you know, Democrats and Republicans work together, wouldn't that tend to undermine the job security of Speaker Ryan if the House Freedom Caucus is frozen out?
SPICER: Well -- so, two things.
Number one, I think the message that sends to the -- you know, the -- as I mentioned to I think it was Jonathan at the beginning, it's a two-way street.SPICER: We heard -- I mean, you see the -- whether it's Judge Gorsuch, which they're, you know, throwing down decades of -- of Senate tradition by saying, "We're just gonna filibuster this guy."
I don't think there's anyone in America that can honestly look at his qualifications and suggest that he's not qualified as a jurist on the Supreme Court.
I mean, there's nothing that anyone has seen or laid a glove on him through these four days that suggests that he's not qualified to serve, and I think that it's a -- so -- and again, with Obamacare, repealing and replacing it, several of the leading Democrats came out from the get-go and said we have no interest in doing that.
So -- I think there's a point at which both parties can look back and figure out whether or not it's worth engaging. I think the president, as I mentioned, is eager to get to 218 on a lot of his -- on a lot of his initiatives, whether it's tax reform, infrastructure, there's a lot of things and I think that he is going to be willing to listen to other voices on the other side to figure out if people want to work with him to get these big things done, to make Washington work, to enhance the lives of the American people, then he's going to work with them.
I think he had a great meeting with the CBC the other day, for example, where he talked about infrastructure. He talked about loans and small business lending, education. There are things that he is willing to engage individuals with or groups or caucuses to get to 2018 and further advance his agenda. So it's not about undermining anybody, it's about moving the agenda forward and getting things done.
QUESTION: It's Speaker Ryan who has bills on the floor, not the president. So what's in it for Speaker Ryan?
SPICER: Getting things done. I think there is still a sense of doing what's in the best interest of this country that exists. So I mean, let's -- let's just make sure that we understand.
I think that his goal -- he came here to get things done and I think, you know, as it was pointed out, there was a level of disappointment that he expressed on Friday. He wants to get things done, if people want to work together and I think what this event on Friday did was frankly draw more people into the process, to saying, OK let's figure out if we can actually come together with some consensus ideas to get to 218, whether or not they come from one side of the aisle or the other to pass this bill and make a better system. He understands and frankly I think a lot of Democrats do, that there's an opportunity here, with health care being sort of a big issue, with Obamacare being such a looming disaster, that we have an opportunity to do some stuff. And if Democrats want to join in, then that's great and we'll do that.
Mike?
QUESTION: The -- excuse me -- you talked a quite a bit up there about the wide latitude that Secretary Price has to dismantle Obamacare from (inaudible). Is that still the case? Will he continue to try to dismantle Obamacare while you're trying to work with moderate Democrats on health care reform?
And also, the health care bill would have repealed almost all of those Obamacare taxes. Do you want to see those repealed as part of the tax reform bill?

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SPICER: I think Secretary Price is up here today. There is a lot of meetings that are already taking place internally with the team. There's a lot of options that are on the table in terms of -- especially when it comes to what we called phase one and phase two, trying to get some of that stuff out the door. And as we look back on -- you know, talking about lessons learned, I think one of them is to try to get some of the phase one, phase two meshed together and pushed out.
How we do that, whether we wait for the revival of legislation before we put up -- remember, I mean, I think -- just so we're clear, and I mentioned earlier in this, Obamacare had a ton of fits and starts during its process. It was left for dead multiple times, but they pressed forward. I don't think that that's necessarily a model to look for in terms of how they jammed it down, but I do think that we have to recognize that we are, you know, 17, 18 days into this process.
I think the president's made very clear, we're not -- it's not over. There are people coming to the table, but he's going to listen to all good ideas across the spectrum to figure out what it takes to get to 218. And we'll see where we go from there.
John (ph)?
QUESTION: (OFF-MIKE)
SPICER: Yeah.
QUESTION: Follow up on -- the health care bill would have repealed those Obamacare taxes?
SPICER: And I think that's part and parcel of that discussion, is how we look at both the taxes and some of the phase one stuff. But we're not ready to announce anything now.
John Decker (ph)? QUESTION: Yeah, as far as Jared Kushner's offer to meet with Chairman Burr and talk with the Senate Intelligence Committee, is there any particular reason why the White house would not be opposed to the idea of Jared Kushner testifying under oath before that committee?
SPICER: Again, this is -- we -- Jared volunteered to meet with the committee. They haven't -- they haven't even confirmed having a meeting yet. So to get ahead of what they've even asked for would be a little silly.
QUESTION: (Inaudible) in the White House's view, a dangerous precedent in having a senior aide to the president going up. Ordinarily we see sometimes the White house invoking executive privilege. Why haven't you done this in this particular case?SPICER: Because I think Jared did a job during the transition and the campaign where he -- he was a conduit and to -- to leaders and that's until we had a State Department, a functioning place for people to go. Remember, we had a delay in some of these things, and that -- that was his role. And he has -- he wants to make sure that he's very clear about the role that he played, who he talked to and that's -- that's it.
Jim?
QUESTION: Sean, is -- is Obamacare repeal dead?
SPICER: I don't think it's dead, in the sense...
QUESTION: Well, it has to be dead if you're gonna have Democrats working with you, so.
SPICER: Why, why? No, no, no, I don't -- I don't know that that's true, because I think it...

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(CROSSTALK) QUESTION: ... Affordable Care Act, why would they -- why would they work with you... SPICER: Because it's dying. QUESTION: You're still trying to repeal it. SPICER: Because I think part of it is is there's a recognition that it is failing. It's dying on its own. It will be dead soon... QUESTION: A lot of Democrats say it's not dying... SPICER: OK, well, then a lot of Democrats need to get... (CROSSTALK) QUESTION: There are repairs that need to be made, they say, but... SPICER: I understand that, but... QUESTION: ... to kill the whole thing might not be the direction they want to go. SPICER: I understand what they want, Brad (ph), but I think there's a difference. I think that we recognize that premiums continue to go sky high, deductibles are going sky high, choices are going down. By Leader Pelosi's own metrics, this is dying. She's the one who crafted the metrics. She said that there was a three-prong system to determining its success. It is an abysmal failure. If they wanna come back to the table and recognize how we can do it in a more responsible way, to achieve the goals that Obamacare set out to do, but do so in a way that's going to do the opposite of what Obamacare actually did, which is to increase choice, drive down costs, we're willing to have that discussion. But right now and I -- and again, remember... (CROSSTALK) QUESTION: ... repeal has to be put to the side. SPICER: Right, but -- but, Jim, one of the things that I mentioned, I just wanna be clear on this, is we have to figure out how we get to 216, 218, depending on where the number is that given day. That doesn't mean we need the entire Democratic Caucus. That means we need some responsible Democrats who want to sit down and have a discussion about how to do that. And I think that there may be enough of them that are willing to do that. But I understand where the -- where the Democratic leadership is. And that -- that's one thing. I mean, they continue to -- to stake out a very, very far left position.

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That's not where all their members are. And I think that we can -- based on the calls that have come in over the last 50, you know, 60 hours, I think that here might be some room to have a conversation with people who want to engage in a constructive conversation on how to move forward.
And that, so -- so let's see how that evolves. I don't know that we're ready to jump into this today. But I think as the calls come forward, the president's view is, "If you all want to get together and start coming to a way that we can come to resolution, we're willing to listen. But right now, we've gotten an agenda to continue to pursue."
(CROSSTALK)
QUESTION: ... do you think?
SPICER: I'm not gonna jump ahead.
But I will say that we believe that there is something that could still be done at some point. And I think the further along we go, where premiums continue to go up, more and more people will be drawn into this discussion, because there's going to be a continued cry from people in terms of the impact that it's having on their pocketbook and on their ability to see people that -- a doctor of their choice or a plan that's not just not (inaudible).
April?
QUESTION: Sean?
(CROSSTALK)
QUESTION: ... quick -- real quick follow-up on Chairman Nunes.
SPICER: Yep.
QUESTION: Do you -- do you reject that there's any kind of perception problem whatsoever in having the chairman over here the day before he comes out publicly and says, "By the way, there's this information that's helpful to the president"?
SPICER: Well, I -- I think the chairman's made very clear through his public comments what his goal was. And I think anyone who wants to -- you can't ask someone to do a review of the situation and then -- and then, sort of, create inferences that because they're reviewing a situation, that there's something, you know, that -- that's not right about that.
He is -- he is reviewing a situation. He did exactly what -- and I think he's been fairly open with the press, as far as what he was doing, who he spoke to and why.
And I think, you know, from our standpoint, that's what -- what we had asked to do, is a review.
April?
QUESTION: Sean, several topics. One...
(LAUGHTER)
SPICER: Shocker.

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QUESTION: Don't be.
You heard the question that I lobbed at the attorney general about the hate crime had happened in New York, the white supremacists that went to New York and targeted a black male. Hate crimes are on the rise. What do -- what do you say, what is this White House saying about this obvious apparent hate crime?
SPICER: I'm not gonna -- I mean, you're -- you -- you yelled at the -- the attorney general a specific case, if I'm not correct.
QUESTION: White Houses in the past have talked about -- and you've talked about issues...
(CROSSTALK)
SPICER: I'm glad to talk about the issue, I just want to be very clear that I'm not gonna reference any specific case before the DOJ right now.
I will say that the president has recognized that we need to bring the country together. He wants to unite this country. He wants to bring people together.
He had a very long conversation with respect to race in itself, which I think is somewhat, if I'm not correct, in your question?
QUESTION: (OFF-MIKE)
SPICER: There, OK, just wanted to be clear. Thank you.
And I think that was one of the topics that he talked about with the CBC, some of the issues with respect to crime and education and some of the solutions that they suggested that could be done during their meeting. And I think those are the kind of things that I think we can start -- we can continue that conversation.QUESTION: (inaudible) Sean, unfortunately, there's been a rise in hate crimes when it comes to different groups, to include anti- Semitic crimes.
SPICER: Yeah, and we...
QUESTION: You've commented from that podium this is (inaudible) this gentleman in his jailhouse gave a statement to a reporter, talking about he wishes the man were younger and weren't -- he was a thug that he killed. So, what do you say to this? This is clear -- it's racism at its ugliest.
SPICER: Yeah, two issues.
Number one, I think hate crimes, anti-Semitic crimes of any nature should be called out in the most reprehensible way. There is no room for that in our country and I think the president noted that in the joint address, that there is one issue that, despite policy, should unite us, and that is calling out hate, that is calling out divisiveness based on the color of one's skin, one's religion, one's gender. The president's been very clear on that and he's called it out before.
He's -- with respect to certain particular situations, he made it very clear at the opening of his joint address. That's what he led with is a call to -- to denounce hate no matter where we come from politically. He's also talked about it -- the night that he took the stage on that Wednesday morning around 2:40 A.M. about how one of the things that he needed to do and wanted to do as president was unite all Americans.

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But I think that there's one other piece to this, April, that I just want to be clear on. While we unequivocally, no question about it, need to call out hate, anti-Semitism where it exists, there is another thing that we have to do. And in your case in particular, while I don't know all of the details and I don't want to reference any specific case -- but I think we saw this the other day with some of the anti-Semitic behavior that was going out with respect to people of the Jewish faith is that we saw these threats coming into Jewish community centers and there was an immediate jump to criticize folks on the right and to denounce us -- denounce people on the right and ask them to condemn them.
And it turns out that, in fact, it wasn't someone on the right and it was -- the -- and the president from the get-go had said I bet you it's not someone -- and he was right. And yet... QUESTION: I'm not calling...
(CROSSTALK)
SPICER: Oh no, I understand that. And that's...
(CROSSTALK)
SPICER: I understand that. And I think in those cases, there's no question, black and white, we need to call out all instances of this.
But that being said, while we're on the topic, I do think that there has been a rush to judgment in a lot of other cases when it comes to in particular some of the anti-Semitic discussion where people have jumped to the conclusion about denouncing people on the right and asking for this. And in that particular case, we saw that the president was right and that this rush to judgment by a lot of folks on the left was wrong and none of them have been held to account on that.
And that is something that equally needs to be called out. When people are charging something of someone that is not true, there has been nothing to go back to (ph) those individuals, nothing on the left who came and asked for everyone on the right to denounce something that they weren't guilty of. And I think that there needs to be an equal go back in time and call out those individuals for -- for rushing to judgment and calling out those individuals.
QUESTION: And my second topic and I'm done. Someone who was in the room -- you like talking about the CDC meeting that happened last week. Someone who was actually in the room at that meeting said that the issue of HBCUs came up. It's a very sensitive subject right now in the black community and here at the White House. The issue of HBCUs came up and it's -- Omarosa said that she would be the one heading the HBCU office at the White House and the president did not make a response confirming or denying.
Will this be the case? Is this the case?
SPICER: I -- we don't have any announcements to make. I -- I assume that you're referring to the executive order and we don't have anything to announce on that subject at this time.
Kristen (ph)?
QUESTION: Sean, thank you. Given that the Freedom Caucus blocked the bill to repeal and replace (ph) Obamacare, does the president still believe he can work with the Freedom Caucus on future pieces of legislation?
SPICER: I think it's gonna depend on what legislation.
QUESTION: But not necessarily?

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SPICER: Well, again, I'm not gonna -- it's not a question of -- we're gonna work with anybody who wants to work with us on -- on achieving the goals that the president set out. I don't think -- we're not putting (ph) anyone and saying we'll never work with you again. It is that balance...
(CROSSTALK)
SPICER: No, I don't think he's written -- no, I -- I think as -- as he mentioned, he learned a lot through this process about loyalty and it's not just a block, it's certain individuals. On -- and again, I'm not gonna get into naming names, but I think the president learned a lot through this process.
And -- and, you know, one of the things that's interesting is when you look back in the -- and I know there's been a lot to make of this. The president also recognizes that when there's not a deal to be made, when to walk away. That's one of the -- one of the traits -- it's not just about making deals, it's knowing when to walk away from deals and knowing when there's a bad deal that's the only solution.
And I think the president understood that where we were -- that while you can get a deal at the time, that sometimes a bad deal is worse than getting a deal. And I think he smartly recognized that what was on the table was not gonna be keeping with the vision that he had, and so he -- he -- he decided that this was not the time and that a deal was not at hand.QUESTION: Let me ask you about this tweet over the weekend. Does he regret tweeting to his followers that they should tune in to Judge Jeanine, only to tune in and then have her call for House Speaker Paul Ryan...
(CROSSTALK)
SPICER: He's a fan of the show. That's it, plain and simple. I mean...
QUESTION: Doesn't he owe Speaker Ryan an apology then?
SPICER: He and Speaker Ryan talked extensively over the weekend. I mean, he's...
QUESTION: (OFF-MIKE)
SPICER: I don't know if they talked today, I think they talked both Saturday and Sunday at length. But -- but again, he is a fan of the show. He tweeted out support of it. That's it, plain and simple.
QUESTION: A lot of people...
(CROSSTALK)
SPICER: I know what a lot of people say, Kristen (ph), I just said it.
QUESTION: Doesn't he owe...
(CROSSTALK)
SPICER: No. He doesn't -- he has spoken -- for what? For supporting a show on Fox? No.
Dave (ph)? Dave (ph)? Dave (ph)?
(CROSSTALK)

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QUESTION: Two questions. One on the president choosing Jared Kushner (inaudible) American innovation to reform government across the government. Obviously, Jared Kushner has 60-some days of experience in Washington, never had a prior government job. Does the president view that, somehow, as an advantage in his pick?
SPICER: In some cases. When you look at the individuals that he's bringing in, again, I think one of the things that Jared -- and again, they may talk more about this later. But one of things that Jared's looking at is some of the procurement, the technology aspects, and if you've ever really dealt with the government and recognize how outdated and un-modernized some of this is, it is not serving the American people, it is not serving the constituents that many departments have.
And I think looking at how we procure different things and procure technology in particular is important. It's important -- I mean, I think that when you look at the V.A. in particular and recognize how it handles certain things -- there are certain things it does really well, by the way. It buys prescription drugs really well, buys them in bulk, gets the job done. But there's certain things that it may not do as well in terms of how it keeps its records and how it serves veterans, how it lends money, et cetera, that we can look at and figure out is there a better way?
Government is not business, right? We recognize that there are certain things that business would never do in terms of what government has to do because we serve all of our people. But there are certain practices that we can put in place that can help us deliver a better product and a better service to the American people in some of these key areas.
And I think that when you look at some of the business acumen that Jared and some of the other individuals who he is bringing into this process can really -- I think it is a great service to this country. There are so many individuals that Jared has talked to that have done so well and been so blessed by our nation, that it wanted to give back in some way, shape or form and are using this opportunity to help our country and serve our country in ways that they -- they believe they can use their expertise to do.
Yeah?
QUESTION: And on health care, this review that you've talked about, what went right, what when wrong, I know you don't want to name names, but would it be fair to say at this point that the president has written off some people?
SPICER: I just -- I think I answered that question. It's not a question of written them off, it's a question of understanding there's sort of an understanding of, you know, how you deal with certain people and how they've dealt with you. But it's not a question of writing them off.
We're going to need to get to -- you know, as time goes on, we'll get to -- I'm just going to keep saying 218, it's easier. I won't screw that one up down the line. But I think that we recognize that as we go down this path of a big bold agenda that the president has, that we're going to need every vote we can and hopefully grow the vote in some cases to well beyond that. But we're not writing off anybody. But we do recognize there are some lessons learned from this process and the president made it very clear on Friday.
Thank you guys very much. I'll see you tomorrow. Enjoy the day. END
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26

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EXHIBIT B

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Case 3:17-cv-00574-WHO Document 82-3 Filed 03/28/17 Page 1 of 4
EXHIBIT C

Case 3:17-cv-00574-WHO Document 82-3 Filed 03/28/17 Page 2 of 4

Official website of the Department of Homeland Security

Contact Us Quick Links Site Map

A­Z Index

Fact Sheet: U.S. Immigration and Customers Enforcement Declined Detainer Outcome Report (DDOR)
Release Date: March 20, 2017
Office of Public Affairs Contact: 202-282-8010
U.S. Immigration and Customs Enforcement (ICE) issues detainers and requests for notification to law enforcement agencies (LEAs) to provide notice of its intent to assume custody of an individual detained in federal, state, or local custody. Detainers are placed on aliens arrested on criminal charges for whom ICE possesses probable cause to believe that they are removable from the United States.
A detainer requests that a LEA notify ICE as early as practicable— ideally at least 48 hours—before a removable alien is released from criminal custody and then briefly maintain custody of the alien for up to 48 hours to allow DHS to assume custody for removal purposes. A request for notification requests that a LEA notify ICE as early as practicable – ideally at least 48 hours – before a removable alien is released from criminal custody.

Case 3:17-cv-00574-WHO Document 82-3 Filed 03/28/17 Page 3 of 4 These requests are intended to allow a reasonable amount of time for ICE to respond and take custody of the alien. When LEAs fail to honor immigration detainers or requests for notification and release serious criminal offenders, it undermines ICE’s ability to protect public safety and carry out its mission. The Declined Detainer Outcome Report (https://www.ice.gov/declined-detainers) (DDOR), which meets the requirement outlined in the president’s Executive Order, Enhancing Public Safety in the Interior of the United States, is a weekly report that lists the LEAs that declined ICE detainers or requests for notification and includes criminal charges associated with those released aliens.
The DDOR may reflect instances in which the LEA may have technically provided notification to ICE in advance of an alien’s release, but where the LEA did not provide sufficient advance notification for ICE to arrange the transfer of custody prior to release due to geographic limitations, response times, or other logistical reasons. In these instances, ICE records the detainer or request for notification as declined by the LEA.
This report only reflects the data related to the release of criminal aliens that is available to ICE. In uncooperative jurisdictions like Cook County, Illinois, and the City of Philadelphia, ICE is barred from interviewing arrestees in local custody. Therefore, in these communities a large number of criminals who have yet to be encountered by ICE are arrested by local authorities and released in these communities without any notification to ICE.
ICE continues to collaborate with all law enforcement agencies to help ensure that aliens who may pose a threat to our communities are not released onto the streets to potentially reoffend and harm individuals living within our communities. However, in some cases, state or local laws, ordinances or policies restrict or prohibit cooperation with ICE. In other cases, jurisdictions choose to willfully decline ICE detainers or requests for notification and release criminals back into the community.
When criminal aliens are released from local or state custody, they have the opportunity to reoffend. There are also many risks and uncertainties involved when apprehending dangerous

Case 3:17-cv-00574-WHO Document 82-3 Filed 03/28/17 Page 4 of 4 criminal aliens at-large in the community. It takes careful planning and extensive resources to mitigate those risks and make a safe apprehension in a community setting. It is much safer for all involved—the community, law enforcement, and even the criminal alien—if ICE officers take custody in the controlled environment of another law enforcement agency.
# # #
Topics: Immigration Enforcement (/topics/immigration-enforcement) Keywords: immigration enforcement (/keywords/immigration-enforcement) , immigration (/keywords/immigration)
Last Published Date: March 20, 2017

Case 3:17-cv-00574-WHO Document 82-4 Filed 03/28/17 Page 1 of 12
EXHIBIT D

Case 3:17-cv-00574-WHO Document 82-4 Filed 03/28/17 Page 2 of 12

Official website of the Department of Homeland Security

Contact Us Quick Links Site Map A­Z Index

Q&A: U.S. Immigration and Customers Enforcement Declined Detainer Outcome Report (DDOR)
Release Date: March 20, 2017
Q: What is a detainer?
A: U.S. Immigration and Customs Enforcement (ICE) issues detainers to federal, state, and local law enforcement agencies to provide notice of its intent to assume custody of a removable alien detained in federal, state, or local custody. A detainer requests that the law enforcement agency notify ICE as early as practicable—ideally at least 48 hours—before a removable alien is released from criminal custody and briefly maintain custody of the alien for up to 48 hours to allow DHS to assume custody for removal purposes.
Q: What is a declined detainer?
A: When law enforcement agencies fail to honor immigration detainers and release a criminal alien onto the streets, they have declined an ICE detainer. This undermines ICE’s ability to protect public safety and carry out its mission. Federal immigration laws

Case 3:17-cv-00574-WHO Document 82-4 Filed 03/28/17 Page 3 of 12 authorize DHS to issue detainers and provide ICE broad authority to detain removable aliens.
Q: How is an individual placed under a detainer?
A: When an individual is booked into custody by a law enforcement agency, his or her biometric data is automatically routed through federal databases to the FBI. The FBI shares this information with ICE. If ICE has probable cause to suspect the individual is a removable alien, ICE sends a detainer to the law enforcement agency.
Q: Why is ICE providing these reports now?
A: The president’s Executive Order 13768, Enhancing Public Safety in the Interior of the United States, and DHS Secretary Kelly’s memorandum on the implementation of the same, instructs the ICE Director to make this report public.
Q: Why do some jurisdictions ignore detainers?
A: In some cases, state or local laws, ordinances, or policies restrict or prohibit cooperation with ICE. In other cases, jurisdictions choose to willfully decline ICE detainers and release criminals back into the community. The results in both cases are the same: aliens released onto the streets to potentially reoffend or harm individuals living within our communities.
Q: Why should the public care if jurisdictions don’t observe ICE detainers?

Case 3:17-cv-00574-WHO Document 82-4 Filed 03/28/17 Page 4 of 12 A: If jurisdictions do not honor ICE detainers, criminals are released into communities, where they can commit more crimes and are subject to at-large arrests which may be disruptive to communities. Three examples of criminal aliens who are subject to removal but were released despite the issuance of an active detainer within the last few months follow; all have been rearrested and are currently in custody:
Milton Berrera-Lopez was released from local custody when a detainer lodged with Philadelphia authorities was not honored. The Guatemalan national has a previous conviction for two counts of indecent exposure involving minors.
Estivan Rafael Marques Velasquez, a self-admitted MS13 gang member, was released from New York City custody with an active ICE detainer in place. The Salvadoran national has a criminal history in the United States which includes reckless endangerment in the second degree, criminal possession of a weapon in the fourth degree, and disorderly conduct.
Ramon Aguirre Ochoa was deported in May 2009. In 2015, he was arrested on domestic aggravated assault charges in Philadelphia. The charges were dismissed, despite ICE filing a detainer to take custody and remove him from the country again. Philadelphia ignored that detainer and released Aguirre Ochoa back into the community. He was arrested again in Philadelphia on July 26, 2016, and charged with involuntary sexual intercourse, unlawful contact with a minor, unlawful restraint, false imprisonment, indecent assault on person less than 13, indecent exposure, and simple assault.
Q: Does ICE still work with jurisdictions that do not observe detainers on other law enforcement actions?

Case 3:17-cv-00574-WHO Document 82-4 Filed 03/28/17 Page 5 of 12 A: Yes. ICE is committed to maintaining and strengthening its relationships with local law enforcement. ICE continues to collaborate with all law enforcement agencies to help ensure that individuals who may pose a threat to our communities are not released onto the streets to potentially reoffend and harm individuals living within our communities.
Q: Where does the list come from?
A: ICE maintains records for each detainer or request for notification that is issued and updates those records when a detainer or request for notification is declined. The list is generated from this data.
Q: Why is the public safer when jurisdictions honor ICE detainers?
A: When criminal aliens are released from local or state custody, they have the opportunity to reoffend. There are also many risks and uncertainties involved when apprehending dangerous criminal aliens at-large in the community. It takes careful planning and extensive resources to mitigate those risks and make a safe apprehension in a community setting. It is much safer for everyone—the community, law enforcement, and even the criminal alien—if ICE officers take custody of the alien in the controlled environment of another law enforcement agency as opposed to visiting a reported alien’s residence, place of work, or other public area.
Q: What is ICE’s overall mission? Why do they want the detainers enforced?

Case 3:17-cv-00574-WHO Document 82-4 Filed 03/28/17 Page 6 of 12 A: ICE is committed to using its unique enforcement authorities and available resources and tools to promote national security, uphold public safety, and preserve the integrity of our immigration system. The use of detainers is an efficient, effective and safe means to carry out ICE’s mission.
Q: Are detainers placed on random criminal aliens?
A: ICE places detainers on individuals whom ICE has probable cause to suspect are removable aliens in state and local law enforcement agency custody on criminal charges.
Q: Are the jurisdictions or agencies on this list considered sanctuary locations?
A: The Declined Detainer Outcome Report (DDOR) is intended to provide the public with information regarding criminal actions committed by aliens and any jurisdiction that ignores or otherwise failed to honor any detainers or requests for information with respect to such aliens. As set forth in Executive Order 13768, Enhancing Public Safety in the Interior of the United States, the Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Department of Homeland Security (DHS) continues to evaluate the appropriate criteria for such designation.
Q: How does the report inform the decision on whether a location is a sanctuary jurisdiction?

Case 3:17-cv-00574-WHO Document 82-4 Filed 03/28/17 Page 7 of 12 A: The president’s Executive Order, Enhancing Public Safety in the Interior of the United States, requires publication of this report. The report lists locations that have ignored or otherwise failed to honor an immigration detainer or request for notification. As set forth in the Executive Order, the Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. DHS continues to evaluate the appropriate criteria for such designation.
Q: My jurisdiction is on the Declined Detainer Outcome Report. Will we lose our federal funding? What federal funding might my jurisdiction lose? For example, if a natural disaster occurs, will we receive federal assistance?
A: The DDOR is intended to provide the public with information regarding criminal actions committed by aliens and any jurisdiction that ignores or otherwise failed to honor any detainers or requests for notification with respect to such aliens. ICE does not administer grants, and inclusion on the DDOR will not automatically result in ineligibility for grants. Section 9(a) of the Executive Order recognizes the authority of the Attorney General and the Secretary of Homeland Security, in their discretion and consistent with law, to ensure that jurisdictions that willfully refuse to comply with 8 USC § 1373 are not eligible to receive federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. DHS is currently working to develop a process, in coordination with the Department of Justice and other interagency partners, to address this requirement of the EO.

Case 3:17-cv-00574-WHO Document 82-4 Filed 03/28/17 Page 8 of 12
Q: Does this report include Requests for Notification (I247N)? If so, why?
A: Yes. The Request for Voluntary Notification (Form I-247N) is one of the tools ICE has used to notify law enforcement agencies of its interest in taking custody of an alien in state or local custody. The declination of Requests for Voluntary Notification also result in the release of criminal aliens, which provides an unnecessary risk to public and officer safety as ICE personnel are forced to arrest such aliens in an at-large setting. Although this report includes information relating to Form I-247N, DHS will be replacing Forms I-247D, I-247N, and I-247X in the near future. Information related to the superseding detainer form and its predecessors will be documented and reported by ICE going forward. Until fully vetted, reviewed, and approved, ICE will utilize the existing detainer and notification forms as an interim measure.
Q: This report notes that it may reflect instances in which a law enforcement agency may have provided notification to ICE in advance of an alien’s release, but where the LEA did not provide “sufficient advance notification” for ICE to arrange the transfer of custody prior to release due to geographic limitations, response times, or other logistical

Case 3:17-cv-00574-WHO Document 82-4 Filed 03/28/17 Page 9 of 12
reasons. What is sufficient advance notification?
A: Lack of sufficient advance notification is based on the judgment of immigration officers, taking into consideration geographic limitations, response times, and other local logistical details. Advance notification is sufficient when ICE is given enough time to mobilize its resources to effectuate a safe transfer into ICE custody. Sufficient advance notice is a commonly understood standard for law enforcement jurisdictions working closely together.
Q: How many of these instances were included in this report for my jurisdictions? Please provide the details of these instances and why ICE thought they did not have sufficient advance notification.
A: Detainers and Requests for Notification are not honored for a variety of reasons, as noted in the Declined Detainer Outcomes Report. ICE documents non-honored Detainers and Requests for Notification once discovered by ICE personnel during their enforcement activities. In instances of insufficient notification to ICE, these are generally cases in which the law enforcement agency did not provide ICE with enough time to mobilize its resources to effectuate a safe custody transfer.
Q: Is DHS changing its legal position that ICE detainers are

Case 3:17-cv-00574-WHO Document 82-4 Filed 03/28/17 Page 10 of 12
voluntary?
A: DHS has not retreated from its position that detainers serve as a legally-authorized request, upon which a law enforcement agency may rely, to continue to maintain custody of the alien for up to 48 hours so that ICE may assume custody for removal purposes.
Q: The February 21 DHS implementing memorandum on the Executive Orders stated that DHS will eliminate the existing forms (I-247D, I-247N, and I247X) and replace them with a new form to more effectively communicate with recipient law enforcement agencies. Why are old forms still being used? When will they be replaced?
A: DHS is in the process of creating a new detainer form to more effectively communicate with recipient law enforcement agencies. Although this report includes information relating to Form I-247N, DHS will be replacing Forms I-247D, I-247N, and I247X in the near future. Information related to the superseding detainer form and its predecessors will be documented and reported by ICE going forward. Until fully vetted, reviewed, and approved, ICE will utilize the existing detainer and notification forms as an interim measure.

Case 3:17-cv-00574-WHO Document 82-4 Filed 03/28/17 Page 11 of 12
Q: Why are jurisdictions listed here when they are prohibited from honoring detainers based on state laws, binding judicial opinions, or consent decrees limiting detainer compliance?
A: Regardless of the reason for which a jurisdiction does not honor ICE detainers or requests for notification, such action by the jurisdiction nonetheless adversely impacts public safety. When a jurisdiction declines to honor an ICE detainer or request for notification, a criminal alien is released into the community, where he or she has the opportunity to commit additional crimes, rather than being safely detained and processed for removal by ICE.
Q: What does “notable criminal activity” mean? Why aren’t all criminal charges and convictions listed in this report?
A: “Notable criminal activity” documents egregious charges and convictions of the alien for whom a detainer was not honored. This report includes criminal charges contained in local, state, and federal indexes and recorded in ICE's database.
Q: I have information that contradicts what is on this report. What is the process for

Case 3:17-cv-00574-WHO Document 82-4 Filed 03/28/17 Page 12 of 12
correcting the information on this report?
A: Concerns from the community can be relayed to a local community relations officer who may be contacted via a local ICE field office, which can be found at: https://www.ice.gov/contact/field-offices
(https://www.ice.gov/contact/field-offices)
Q: Is this report inclusive of all declined detainers?
A: This report is inclusive of declined detainers that were not honored by a law enforcement agency, discovered by ICE personnel during their enforcement activities as not being honored, and documented in ICE systems during the reporting period specified.
Q: Can I get more information about a specific case?
A: Members of the public may submit requests for information to ICE’s Freedom of Information Act (FOIA) Office. Each request will be evaluated under the disclosure provisions of FOIA.
# # #
Topics: Immigration Enforcement (/topics/immigration-enforcement) Keywords: immigration (/keywords/immigration) , immigration enforcement
(/keywords/immigration-enforcement)
Last Published Date: March 20, 2017

 
 Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 1 of 49

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 COUNTY OF SANTA CLARA,

8

Plaintiff,

9

v.

10 DONALD J. TRUMP, et al.,

11

Defendants.

ORDER GRANTING THE COUNTY OF SANTA CLARA'S AND CITY AND COUNTY OF SAN FRANCISCO'S MOTIONS TO ENJOIN SECTION 9(a) OF EXECUTIVE ORDER 13768
Case No. 17-cv-00574-WHO

12 CITY AND COUNTY OF SAN
13 FRANCISCO,

14

Plaintiff,

15

v.

16 DONALD J. TRUMP, et al.,

Case No. 17-cv-00485-WHO

17

Defendants.

18

INTRODUCTION

19

This case involves Executive Order 13768, “Enhancing Public Safety in the Interior of the

20 United States,” which, in addition to outlining a number of immigration enforcement policies,

21 purports to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not

22 receive Federal funds, except as mandated by law” and to establish a procedure whereby

23 “sanctuary jurisdictions” shall be ineligible to receive federal grants. Executive Order 13768, 82

24 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order”). In two related actions, the County of

25 Santa Clara and the City and County of San Francisco have challenged Section 9 of the Executive

26 Order as facially unconstitutional and have brought motions for preliminary injunction seeking to

27 enjoin its enforcement. See County of Santa Clara v. Trump, No. 17-cv-0574-WHO; City and

28 County of San Francisco v. Trump, 17-cv-0485-WHO.

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 2 of 49

United States District Court Northern District of California

1

The Counties challenge the enforcement provision of the Order, Section 9(a), on several

2 grounds: first, it violates the separation of powers doctrine enshrined in the Constitution because it

3 improperly seeks to wield congressional spending powers; second, it is so overbroad and coercive

4 that even if the President had spending powers, the Order would clearly exceed them and violate

5 the Tenth Amendment’s prohibition against commandeering local jurisdictions; third, it is so

6 vague and standardless that it violates the Fifth Amendment’s Due Process Clause and is void for

7 vagueness; and, finally, because it seeks to deprive local jurisdictions of congressionally allocated

8 funds without any notice or opportunity to be heard, it violates the procedural due process 9 requirements of the Fifth Amendment.1

10

The Government does not respond to the Counties’ constitutional challenges but argues

11 that the Counties lack standing because the Executive Order did not change existing law and

12 because the Counties have not been named “sanctuary jurisdictions” pursuant to the Order. It

13 explained for the first time at oral argument that the Order is merely an exercise of the President’s

14 “bully pulpit” to highlight a changed approach to immigration enforcement. Under this

15 interpretation, Section 9(a) applies only to three federal grants in the Departments of Justice and

16 Homeland Security that already have conditions requiring compliance with 8 U.S.C. 1373. This

17 interpretation renders the Order toothless; the Government can already enforce these three grants

18 by the terms of those grants and can enforce 8 U.S.C. 1373 to the extent legally possible under the

19 terms of existing law. Counsel disavowed any right through the Order for the Government to

20 affect any other part of the billions of dollars in federal funds the Counties receive every year.

21

It is heartening that the Government’s lawyers recognize that the Order cannot do more

22 constitutionally than enforce existing law. But Section 9(a), by its plain language, attempts to

23

24 1 San Francisco also brings a facial challenge to 8 U.S.C. § 1373, arguing that the statute is

25

unconstitutional under the Tenth Amendment because “the whole object” of that section is to “direct the functioning” of state governments. It seeks an injunction enjoining enforcement of

26

Section 1373, or alternatively, because it believes it complies with Section 1373, an injunction preventing the Government from taking adverse action against it on the basis that it has failed to

27

comply with that Section. Briefing on this issue was intermingled with the attack on the Executive Order, and did not adequately address the important issues raised. At the Case Management

28

Conference on May 2, 2017, at 1:30 p.m. we will discuss litigation of this portion of the City’s case.

2

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 3 of 49

United States District Court Northern District of California

1 reach all federal grants, not merely the three mentioned at the hearing. The rest of the Order is

2 broader still, addressing all federal funding. And if there was doubt about the scope of the Order,

3 the President and Attorney General have erased it with their public comments. The President has

4 called it “a weapon” to use against jurisdictions that disagree with his preferred policies of

5 immigration enforcement, and his press secretary has reiterated that the President intends to ensure

6 that “counties and other institutions that remain sanctuary cites don’t get federal government

7 funding in compliance with the executive order.” The Attorney General has warned that

8 jurisdictions that do not comply with Section 1373 would suffer “withholding grants, termination

9 of grants, and disbarment or ineligibility for future grants,” and the “claw back” of any funds

10 previously awarded. Section 9(a) is not reasonably susceptible to the new, narrow interpretation

11 offered at the hearing.

12

Although the Government’s new interpretation of the Order is not legally plausible, in

13 effect it appears to put the parties in general agreement regarding the Order’s constitutional

14 limitations. The Constitution vests the spending powers in Congress, not the President, so the

15 Order cannot constitutionally place new conditions on federal funds. Further, the Tenth

16 Amendment requires that conditions on federal funds be unambiguous and timely made; that they

17 bear some relation to the funds at issue; and that the total financial incentive not be coercive.

18 Federal funding that bears no meaningful relationship to immigration enforcement cannot be

19 threatened merely because a jurisdiction chooses an immigration enforcement strategy of which

20 the President disapproves.

21

To succeed in their motions, the Counties must show that they are likely to face immediate

22 irreparable harm absent an injunction, that they are likely to succeed on the merits, and that the

23 balance of harms and public interest weighs in their favor. The Counties have met this burden.

24 They have demonstrated that they have standing to challenge the Order and are currently suffering

25 irreparable harm, not only because the Order has caused and will cause them constitutional

26 injuries by violating the separation of powers doctrine and depriving them of their Tenth and Fifth

27 Amendment rights, but also because the Order has caused budget uncertainty by threatening to

28 deprive the Counties of hundreds of millions of dollars in federal grants that support core services 3

Case 3:17-cv-00574-WHO Document 98 Filed 04/25/17 Page 4 of 49

United States District Court Northern District of California

1 in their jurisdictions. They have established that they are likely to succeed on the merits of their

2 claims and that the balance of harms and public interest decisively weigh in favor of an injunction.

3 The Counties’ motions for preliminary injunction against Section 9(a) of the Executive Order are

4 GRANTED as further described below.

5

That said, this injunction does nothing more than implement the effect of the

6 Government’s flawed interpretation of the Order. It does not affect the ability of the Attorney

7 General or the Secretary to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does

8 it impact the Secretary’s ability to develop regulations or other guidance defining what a sanctuary

9 jurisdiction is or designating a jurisdiction as such. It does prohibit the Government from

10 exercising Section 9(a) in a way that violates the Constitution.

11

BACKGROUND

12 I. 13

THE EXECUTIVE ORDER On January 25, 2017, President Donald J. Trump issued Executive Order 13768,

14 “Enhancing Public Safety in the Interior of the United States.” See Harris Decl. ¶ 2; Ex. A (“EO”)

15 (SC Dkt. No. 36-1). In outlining the Executive Order’s purpose, Section 1 reads, in part,

16 “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to

17 shield aliens from removal from the United States.” EO §1. Section 2 states that the policy of the

18 executive branch is to “[e]nsure that jurisdictions that fail to comply with applicable Federal law

19 do not receive Federal funds, except as mandated by law.” EO §2(c).

20

Section 9, titled “Sanctuary Jurisdictions” lays out this policy in more detail. It reads:

21

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive

branch to ensure, to the fullest extent of the law, that a State, or a

22

political subdivision of a State, shall comply with 8 U.S.C. 1373.

23

(a) In furtherance of this policy, the Attorney General and the

Secretary, in their discretion and to the extent consistent with law,

24

shall ensure that jurisdictions that willfully refuse to comply with 8

U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive

25

Federal grants, except as deemed necessary for law enforcement

purposes by the Attorney General or the Secretary. The Secretary

26

has the authority to designate, in his discretion and to the extent

consistent with law, a jurisdiction as a sanctuary jurisdiction. The

27

Attorney General shall take appropriate enforcement action against

any entity that violates 8 U.S.C. 1373, or which has in effect a

28

statute, policy, or practice that prevents or hinders the enforcement

4

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of Federal law. 1

(b) To better inform the public regarding the public safety threats

2

associated with sanctuary jurisdictions, the Secretary shall utilize the

Declined Detainer Outcome Report or its equivalent and, on a

3

weekly basis, make public a comprehensive list of criminal actions

committed by aliens and any jurisdiction that ignored or otherwise

4

failed to honor any detainers with respect to such aliens.

5

(c) The Director of the Office of Management and Budget is

directed to obtain and provide relevant and responsive information

6

on all Federal grant money that currently is received by any

sanctuary jurisdiction. 7

EO §9.

8

Section 3 of the Order, titled “Definitions,” incorporates the definitions listed in 8 U.S.C. §

9

1101. EO §3. Section 1101 does not define “sanctuary jurisdiction.” The term is not defined

10

anywhere in the Executive Order. Similarly, neither section 1101 nor the Order defines what it

11

means for a jurisdiction to “willfully refuse to comply” with Section 1373 or for a policy to

12

“prevent[] or hinder[] the enforcement of Federal law.” EO §9(a).

13

II. SECTION 1373 14
Section 1373, to which Section 9 refers, prohibits local governments from restricting 15
government officials or entities from communicating immigration status information to ICE. It 16
states in relevant part: 17

(a) In General. Notwithstanding any other provision of Federal,

18

State, or local law, a Federal, State, or local government entity or

official may not prohibit, or in any way restrict, any government

19

entity or official from sending to, or receiving from, the Immigration

and Naturalization Service information regarding the citizenship or

20

immigration status, lawful or unlawful, of any individual.

21

(b) Additional Authority of Government Entities. Notwithstanding

any other provision of Federal, State, or local law, no person or

22

agency may prohibit, or in any way restrict, a Federal, State, or local

government entity from doing any of the following with respect to

23

information regarding the immigration status, lawful or unlawful, of

any individual: 24

(1) Sending such information to, or requesting or receiving

25

such information from, the Immigration and Naturalization

Service. 26

(2) Maintaining such information. 27

(3) Exchanging such information with any other Federal,

28

State, or local government entity.

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1 8 U.S.C. 1373.

2

In July, 2016, the U.S. Department of Justice issued guidance linking two federal grant

3 programs, the State Criminal Alien Assistance Program (“SCAAP”) and Edward Byrne Memorial 4 Justice Assistance Grant (“JAG”) to compliance with Section 1373.2 This guidance states that all

5 applicants for these two grant programs are required to “assure and certify compliance with all

6 applicable federal statutes, including Section 1373, as well as all applicable federal regulations,

7 policies, guidelines, and requirements.” Id. The Department has indicated that the Community

8 Oriented Policing Services Grant (COPS) is also conditioned on compliance with Section 1373.

9 III. CIVIL DETAINER REQUESTS

10

An ICE civil detainer request asks a local law enforcement agency to continue to hold an

11 inmate who is in local jail because of actual or suspected violations of state criminal laws for up to

12 48 hours after his or her scheduled release so that ICE can determine if it wants to take that

13 individual into custody. See 8 C.F.R. § 287.7; Neusel Decl. ¶9; Marquez Decl., Ex. C at 3 (SC

14 Dkt. No. 29-3). ICE civil detainer requests are voluntary and local governments are not required

15 to honor them. See 8 C.F.R. § 287.7(a); Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014)

16 (“[S]ettled constitutional law clearly establishes that [immigration detainers] must be deemed

17 requests” because any other interpretation would render them unconstitutional under the Tenth

18 Amendment). Several courts have held that it is a violation of the Fourth Amendment for local

19 jurisdictions to hold suspected or actual removable aliens subject to civil detainer requests because

20 civil detainer requests are often not supported by an individualized determination of probable

21 cause that a crime has been committed. See Morales v. Chadbourne, 793 F.3d 208, 215-217 (1st

22 Cir. 2015); Miranda-Olivares v. Clackamas Cnty., No. 3:12-cv-02317-ST, 2014 WL 1414305, at

23 *9-11 (D. Or. Apr. 11, 2014). ICE does not reimburse local jurisdictions for the cost of detaining

24 individuals in response to a civil detainer request and does not indemnify local jurisdictions for

25

26

2 See Letter from Peter J. Kadzik, Asst. Att’y Gen. U.S. Dep’t of Justice, to Hon John A. Culberson, Chairman of the Subcomm. On Commerce, Justice, Sci & Related Agencies, (Jul. 7,

27

2016), http://culberson.house.gov/uploadedfiles/2016-7-7_section_1373_doj_letter_to_culberson.pdf. I take judicial notice of Peter Kadzik’s letter as courts may

28

judicially notice information and official documents contained on official government websites. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-999 (9th Cir. 2010).

6

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1 potential liability they could face for related Fourth Amendment violations. See 8 C.F.R. §

2 287.7(e); Marquez Decl. ¶¶ 21-15 & Exs. B-D.

3 IV. THE COUNTIES’ POLICIES

4

A. Santa Clara’s Policies

5

Santa Clara asserts that its local policies and practices with regard to federal immigration

6 enforcement are at odds with the Executive Order’s provisions regarding Section 1373. SC Mot.

7 at 5. (SC Dkt. No. 26). In 2010, the Santa Clara County Board of Supervisors adopted a

8 Resolution prohibiting Santa Clara employees from using County resources to transmit any

9 information to ICE that was collected in the course of providing critical services or benefits.

10 Marquez Decl. ¶27 (SC Dkt. No. 29) & Ex. G (SC Dkt. No. 29-7); Neusel Decl. ¶7 (SC Dkt. No.

11 31); L. Smith Decl. ¶6 (SC Dkt. No. 35). The Resolution also prohibits employees from initiating

12 an inquiry or enforcement action based solely on the individual’s actual or suspected immigration

13 status, national origin, race or ethnicity, or English-speaking ability, or from using County

14 resources to pursue an individual solely because of an actual or suspected violation of immigration

15 law. Id. In October, 2016, after receiving DOJ guidance that JAG and SCAAP funds would be

16 conditioned on compliance with Section 1373, Santa Clara decided not to participate in those

17 programs. Marquez Decl. ¶ 29 & Ex. H (SC Dkt. No. 29-8).

18

Santa Clara also asserts that its policies with regard to ICE civil detainer requests are

19 inconsistent with the Executive Order and the President’s stated immigration enforcement agenda.

20 Prior to late 2011, Santa Clara responded to and honored ICE civil detainer requests, housing an

21 average of 135 additional inmates each day at a daily cost of approximately $159 per inmate.

22 Neusel Decl. ¶4. When the County raised concerns about the costs associated with complying

23 with detainer requests and potential civil liability, ICE confirmed that it would not reimburse the

24 County or indemnify it for the associated costs and liabilities. Marquez Decl. ¶¶ 21-15 & Exs. B-

25 D.

26

Santa Clara subsequently convened a task force and adopted a new policy where the

27 County agreed to honor requests for individuals with serious or violent felony convictions, but

28 only if ICE would reimburse the County for the cost of holding those individuals. Neusel Decl. 7

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1 ¶6; Marquez Decl. ¶26 & Ex. E. ICE has never agreed to reimburse the County for any costs, so

2 since November 2011 the County has declined to honor all ICE detainer requests. Id.

3

B. San Francisco’s Policies

4

San Francisco’s sanctuary city policies are contained in Chapters 12H and 12I of its

5 Administrative Code. Eisenberg Decl. Exs. A-B (SF Dkt. No. 28). The stated purpose of these

6 laws is “to foster respect and trust between law enforcement and residents, to protect limited local

7 resources, to encourage cooperation between residents and City officials, including especially law

8 enforcement and public health officers and employees, and to ensure community security, and due

9 process for all.” S.F. Admin Code § 12I.1.

10

As relevant to Section 1373, Chapter 12H prohibits San Francisco departments, agencies,

11 commissions, officers, and employees from using San Francisco funds or resources to assist in

12 enforcing federal immigration law or gathering or disseminating information regarding an

13 individual’s release status, or other confidential identifying information (which as defined does not

14 include immigration status), unless such assistance is required by federal or state law. S.F. Admin

15 Code § 12H.2. Although Chapter 12H previously prohibited city employees from sharing

16 information regarding individuals’ immigration status, the San Francisco Board of Supervisors

17 removed this restriction in July, 2016, due to concerns that the provision violated Section 1373.

18

With regard to civil detainer requests, Chapter 12I prohibits San Francisco law

19 enforcement from detaining an individual, otherwise eligible for release from custody, solely on

20 the basis of a civil immigration detainer request. S.F. Admin Code § 12I.3. It also prohibits local

21 law enforcement from providing ICE with advanced notice that an individual will be released from

22 custody, unless the individual meets certain criteria. S.F. Admin Code § 12I.3. Chapter 12I.3.(e)

23 provides that a “[l]aw enforcement official shall not arrest or detain an individual, or provide any

24 individual’s personal information to a federal immigration officer, on the basis of an

25 administrative warrant, prior deportation order, or other civil immigration document based solely

26 on alleged violations of the civil provisions of immigration laws.” S.F. Admin Code § 12I.3.(e).

27 San Francisco explains that it adopted these policies due to concerns that holding people in

28 response to civil detainers would violate the Fourth Amendment and require it to dedicate scarce 8

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1 law enforcement personnel and resources to holding these individuals. Hennessy Decl. ¶11 (SF

2 Dkt. No. 24).

3 V. 4 5

THE COUNTIES’ FEDERAL FUNDING A. Santa Clara’s Federal Funding In the 2015-2016 fiscal year, Santa Clara received approximately $1.7 billion in federal

6 and federally dependent funds, making up roughly 35% of the County’s total revenues. J. Smith

7 Decl. ¶6; Marquez Decl. ¶8. This figure includes federal funds provided through entitlement

8 programs.

9

Most of the County’s federal funds are used to provide essential services to its residents.

10 Marquez Decl. ¶¶ 5-8. In support of its motion, the County includes a number of declarations

11 outlining how a loss of any substantial amount of federal funding would force it to make

12 substantial cut backs to safety-net programs and essential services and would require it to lay off

13 thousands of employees. It highlights that the County’s Valley Medical Center, the only public

14 safety-net healthcare provider in the County, relies on $1 billion in federal funds each year, which

15 covers up to 70% of its total annual costs. Lorenz Decl. ¶¶ 3, 7 (SC Dkt. No. 28). A loss of all

16 federal funds would shut down Valley Medical Center and cut off the only healthcare option for

17 thousands of poor, elderly, and vulnerable people in the County. Id. ¶ 8. It further highlights that

18 Santa Clara’s Social Services Agency, which provides various services to vulnerable residents,

19 including child welfare and protection, aid to needy families, and support for disabled children,

20 adults and the elderly, receives roughly 40% of its budget, $300 million, from federal funds.

21 Menicocci Decl. ¶5 (SC Dkt. No. 30). The County’s Public Health Department receives 40% of

22 its budget and $38 million in federal funds. And the County’s Office of Emergency Services,

23 whose job is to prepare for and respond to disasters such as earthquakes and terrorism, receives

24 more than two-thirds of its budget from federal funds. Reed Decl. ¶¶ 3-20 (SC Dkt. No. 32).

25

In the 2014-2015 fiscal year, the County received over $565 million in non-entitlement

26 federal grants. See Marquez Decl. Ex. A at 11-12 (SC Dkt. No. 29-1) (showing $338 million in

27 federal grants subject to OMB auditing requirements and an additional $227 million in federal

28 grants through the Department of Housing and Urban Development). This $565 million 9

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1 represents approximately 11% of the County’s budget.

2

B. San Francisco’s Federal Funding

3

San Francisco’s yearly budget is approximately $9.6 billion; it receives approximately $1.2

4 billion of this from the federal government. Rosenfield Decl. ¶9 (SF Dkt. No. 22). San Francisco

5 uses these federal funds to provide vital services such as medical care, social services, and meals

6 to vulnerable residents, to maintain and upgrade roads and public transportation, and to make

7 needed seismic upgrades. Whitehouse Decl. ¶16 (SF Dkt. No. 23). Losing all, or a substantial

8 amount, of federal funds would have significant effects on core San Francisco programs: federal

9 funds make up 100% of Medicare for San Francisco residents, Rosenfield Decl. ¶ 29; 30% of the

10 budget for San Francisco’s Department of Emergency Management, id. ¶¶25-27; 33% of the

11 budget for San Francisco’s Human Services Agency, id. ¶¶13-18; and 40% of the budget for San

12 Francisco’s Department of Public Health, id. ¶¶19-24.

13

Approximately 20% of these federal funds, or $240 million, are from federal grants. Id.

14 ¶29. San Francisco also receives $800 million each year in federal multi-year grants, primarily for

15 public infrastructure projects. Id. ¶11.

16

San Francisco must adopt a balanced budget for the fiscal year beginning July 1, 2017.

17 Whitehouse Decl. ¶16. Under local law, the Mayor must submit a balanced budget to the Board of

18 Supervisors by June 1 and make fundamental budget decisions by May 15, including whether to

19 create a budget reserve to account for the potential loss of significant funds. Id. ¶5-6, 8. Any

20 money placed in the budget reserve would not be available to be used for other programs or

21 services in the coming fiscal year. Id. ¶9.

22

LEGAL STANDARD

23

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on

24 the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the

25 balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v.

26 Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). This has been interpreted as a four-part

27 conjunctive test, not a four-factor balancing test. However, the Ninth Circuit has held that a

28 plaintiff may also obtain an injunction if he has demonstrated “serious questions going to the 10

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1 merits” that the balance of hardships “tips sharply” in his favor, that he is likely to suffer

2 irreparable harm, and that an injunction is in the public interest. See Alliance for the Wild Rockies

3 v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011).

4

DISCUSSION

5 I. 6

JUSTICIABILITY The Government argues that the Counties’ claims against the Executive Order are not

7 justiciable because the Counties cannot establish an injury-in-fact, which is necessary to establish

8 standing, and because their claims are not ripe for review. These principles of standing and

9 ripeness go to whether this court has jurisdiction to hear the Counties’ claims. I conclude that the

10 Counties have demonstrated Article III standing to challenge the Executive Order and that their

11 claims are ripe for review.

12

A. Standing

13

Article III, section 2 of the Constitution limits the jurisdiction of the federal courts to

14 “Cases” and “Controversies.” Massachusetts v. EPA, 549 U.S. 497, 516 (2007); see U.S. Const.

15 art. III, §, cl. 1. “Standing is an essential and unchanging part of the case-or-controversy

16 requirement.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992). To establish standing a

17 plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either

18 actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a

19 favorable decision will redress that injury.” Massachusetts, 549 U.S. at 517 (citing Lujan, 504

20 U.S. at 560-61).

21

The Counties contend that they have standing to challenge the Executive Order because the

22 Order threatens to defund, or otherwise bring enforcement action against, states and local

23 jurisdictions that are “sanctuary jurisdictions.” Although the Order does not clearly define

24 “sanctuary jurisdictions,” it directs the Attorney General and Secretary to ensure that jurisdictions

25 that “willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to

26 receive Federal grants” and elsewhere equates jurisdictions that refuse to honor detainer requests

27 with the term “sanctuary jurisdictions.” It further directs the Attorney General to bring

28 “enforcement action” against jurisdictions with policies that “hinder[] the enforcement of Federal 11

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1 law.”

2

The Counties represent that they have “sanctuary policies” that are likely to subject them to

3 enforcement or defunding under the Order. They assert that enforcement under the Order would

4 result in injury-in-fact in the form of cuts to federal funds and whatever other penalty the

5 Government seeks to impose through its “enforcement action.” As a result of this threat of major

6 cuts to federal funding, the Order is also causing present injury-in-fact in the form of budget

7 uncertainty. Alternatively, attempting to comply with the Order would also cause injury, as it

8 would require them to change their local policies in ways that conflict with their local judgment on

9 how best to ensure public safety and require them to commit substantial resources to assist in

10 enforcing federal immigration laws.

11

The Government raises two primary arguments against the Counties’ claims of standing.

12 First, it asserts that the Counties cannot demonstrate injury-in-fact traceable to the Executive

13 Order because the Order does not change the law in any way, but merely directs the Attorney

14 General and Secretary to enforce existing law. Second, it argues that the Counties’ claims of

15 injury are not sufficiently “concrete” or “imminent” because the Government has not designated

16 either County as a “sanctuary jurisdiction” and has not withheld any federal funds. I will address

17 these arguments in turn.

18

1. Whether the Executive Order Changes the Law

19

The Government’s primary defense is that the Order does not change the law, but merely

20 directs the Attorney General and Secretary to enforce existing law. In its briefing, the

21 Government emphasized Section 9(a)’s provision that it will be implemented “to the extent

22 consistent with law.” It argued that to the extent the Order directs the Attorney General and

23 Secretary to newly condition federal funds on compliance with Section 1373, it could not lawfully

24 do so and so it does not. It asserted, “If the grant language does not require compliance with

25 Section 1373, the Executive Order does not purport to give the Secretary or Attorney General the

26 unilateral authority to alter those terms.” SC Oppo. at 13. By this interpretation, Section 9 simply

27 directs the Attorney General and Secretary to ensure that grants that are already conditioned on

28 compliance with Section 1373 are not remitted to jurisdictions that fail to meet that requirement. 12

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1 At the hearing, the Government went further and explicitly disclaimed the ability under the

2 Executive Order to add conditions to grants authorized by Congress or to enforce the Order

3 against any but three grant programs, SCAAP, JAG and COPS. Government counsel urged me to

4 adopt this narrow reading of the Order, arguing that well-established rules of construction require

5 courts to adopt narrow readings when broader ones would read in constitutional problems.

6

Where a construction of a statute “would raise serious constitutional problems, the Court

7 will construe the statute to avoid such problems unless such construction is plainly contrary to the

8 intent of Congress.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades 9 Council, 485 U.S. 568, 575 (1988).3 “[A]s between two possible interpretations of a statute, by

10 one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that

11 which will save the Act.” Blodgett v. Holden, 275 U.S. 142, 148 (1927). The primary purpose of

12 the doctrine is to “minimize disagreement between the branches by preserving congressional

13 enactments that might otherwise founder on constitutional objections.” Almendarez-Torres v.

14 U.S., 523 U.S. 224, 238 (1998).

15

“This canon is followed out of respect for Congress, which we assume legislates in the

16 light of constitutional limitations.” Rust v. Sullivan, 500 U.S. 173, 191 (1991). This canon of

17 construction is limited; to adopt an alternate construction the statute must be “readily susceptible”

18 to that construction. United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S.

19 366, 409 (1909). It is not the job of the courts “to insert missing terms into the statute or adopt an

20 interpretation precluded by [its] plain language.” Foti v. City of Menlo Park, 146 F.3d 629, 639

21 (9th Cir. 1998).

22

As a preliminary matter, a narrow construction does not limit a plaintiffs’ standing to

23 challenge a law that is subject to multiple interpretations. See Virginia v. American Booksellers

24 Ass’n, Inc., 484 U.S. 383, 392 (1988) (noting that a plaintiff’s standing may be based on its

25 interpretation of the statute even when a narrower interpretation is offered). Therefore, the

26

27

3 The Supreme Court has declined to apply this canon of construction to agency actions and it is unclear that it would apply to an Executive Order. F.C.C. v. Fox Television Stations, Inc., 556

28

U.S. 502, 516 (2009) (“We know of no precedent for applying [the canon of constitutional avoidance] to limit the scope of an authorized executive action.”).

13

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1 Government’s proposed narrow construction does not destroy justiciability.

2

With regards to the merits of the Government’s construction, the Order is not readily

3 susceptible to the Government’s narrow interpretation. Indeed, “[t]o read [the Order] as the

4 Government desires requires rewriting, not just reinterpretation.” U.S. v. Stevens, 559 U.S. 460,

5 481 (2010).

6

While the Government urges that the Order “does not purport to give the Secretary or

7 Attorney General the unilateral authority” to impose new conditions on federal grants, that is

8 exactly what the Order purports to do. It directs the Attorney General and the Secretary to ensure

9 that “sanctuary jurisdictions” are “not eligible to receive” federal grants. EO §9(a)(emphasis

10 added). Whether a jurisdiction is eligible to receive federal grants is determined by the conditions

11 on those grants and the characteristics, acts, and choices of the jurisdiction. See BLACK’S LAW

12 DICTIONARY 634 (10th ed. 2014) (defining “eligible” as “Fit and proper to be selected or to

13 receive a benefit.”). Section 9(a)’s language directing the Attorney General and Secretary to

14 ensure that jurisdictions that “willfully refuse to comply” with Section 1373 are “not eligible” for

15 federal grants therefore purports to delegate to the Attorney General and the Secretary the

16 authority to place a new condition on federal grants, compliance with Section 1373. And as

17 Government counsel agreed at the hearing, the power to place conditions on funds belongs

18 exclusively to Congress.

19

The Government attempts to read out all of Section 9(a)’s unconstitutional directives to

20 render it an ominous, misleading, and ultimately toothless threat. It urges that Section 9(a) can be

21 saved by reading the defunding provision narrowly and “consistent with law,” so that all it does is

22 direct the Attorney General and Secretary to enforce existing grant conditions. But this

23 interpretation is in conflict with the Order’s express language and is plainly not what the Order

24 says. The defunding provision is entirely inconsistent with law in its stated purpose and directives

25 because it instructs the Attorney General and the Secretary to do something that only Congress has

26 the authority to do–place new conditions on federal funds. If Section 9(a) does not direct the

27 Attorney General and Secretary to place new conditions on federal funds then it only authorizes

28 them to do something they already have the power to do, enforce existing grant requirements. 14

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1 Effectively, the Government argues that Section 9(a) is “valid” and does not raise constitutional

2 issues as long as it does nothing at all. But a construction so narrow that it renders a legal action

3 legally meaningless cannot possibly be reasonable and is clearly inconsistent with the Order’s

4 broad intent.

5

At the hearing, Government counsel argued that the Order applies only to grants issued by

6 the Department of Justice and the Department of Homeland Security because it is directed only at

7 the Attorney General and Secretary of Homeland Security. This reading is similarly implausible.

8 Nothing in Section 9(a) limits the “Federal grants” affected to those only given though the

9 Departments of Justice and Homeland Security. The Department of Justice is responsible for

10 federal law enforcement throughout the country, not just within its own Department. So when the

11 Attorney General is directed to “ensure that jurisdictions that willfully refuse to comply with 8

12 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed

13 necessary for law enforcement purposes by the Attorney General or the Secretary” and to “take

14 appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in

15 effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law,” it is

16 not reasonable to interpret the directive as applying solely to law enforcement grants that the

17 Attorney General and Secretary are specifically given authority to exempt from the Order.

18

Nor is counsel’s narrow interpretation supported by the rest of the Order. Two examples

19 suffice. Section 9(c) instructs the Director of the Office of Management and Budget “to obtain

20 and provide relevant and responsive information on all Federal grant money that currently is

21 received by any sanctuary jurisdiction.” This directive is not limited to grants issued by the

22 Departments of Justice and Homeland Security. And Section 2(c) announces a policy to “ensure

23 that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds,

24 except as mandated by law.” The Order’s structure and language make clear that a “sanctuary

25 jurisdiction,” which the Secretary will eventually define, should change its policies or risk loss of

26 all federal grants, and Section 9(a) provides the means to do so.

27

The purpose of adopting a plausible valid construction over one that would result in

28 constitutional issues is to save an Act that would otherwise fall on constitutional grounds. A 15

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1 construction so narrow that it reads out any legal force does not save the Act and obviates the

2 entire purpose of adopting a narrow reading. At the hearing, Government counsel explained that

3 the Order is an example of the President’s use of the bully pulpit and, even if read narrowly to

4 have no legal effect, serves the purpose of highlighting the President’s focus on immigration

5 enforcement. While the President is entitled to highlight his policy priorities, an Executive Order

6 carries the force of law. Adopting the Government’s proposed reading would transform an Order

7 that purports to create real legal obligations into a mere policy statement and would work to

8 mislead individuals who are not able to conclude, by reading Section 9(a) itself, that it is fully self-

9 cancelling and carries no legal weight.

10

The Supreme Court has acknowledged that applying a narrow construction to an

11 unconstitutionally overbroad statute does not address the confusion and potential deterrent effect

12 caused by the language of the law itself. See, Erznoznik v. City of Jacksonville, 422 U.S. 205, 216

13 (1975) (concluding, in a First Amendment case, that a narrow construction of an overbroad statute

14 was likely inappropriate because the “deterrent effect on legitimate expression is both real and

15 substantial.”). As discussed below, the coercive effects of the Order’s broad language counsel

16 against adopting a narrow construction that deprives it of any legal meaning.

17

The Government’s construction is not reasonable. It requires a complete rewriting of the

18 Order’s language and does not “save” any part of Section 9(a)’s legal effect. There is no doubt

19 that Section 9(a), as written, changes the law.

20

2. Pre-enforcement Standing

21

The Counties argue that they have standing to challenge the Executive Order because they

22 have demonstrated a well-founded belief that the Order will be enforced against them. In turn, the

23 Government argues that the Counties lack standing because the Government has not yet

24 designated the Counties as “sanctuary jurisdictions” or withheld funds.

25

Because the Counties have not yet suffered a loss of funds or other enforcement action

26 under the Executive Order, this case is analogous to the many cases addressing pre-enforcement

27 standing. These cases establish that a plaintiff may demonstrate pre-enforcement standing by

28 showing “an intention to engage in a course of conduct arguably affected with a constitutional 16

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1 interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.”

2 Babbitt v. Farm Workers, 442 U.S. 289, 298 (1979); see Steffel v. Thompson, 415 U.S. 452, 459

3 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to

4 be entitled to challenge a statute that he claims deters the exercise of his constitutional rights”);

5 Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014) (plaintiffs can demonstrate

6 standing by alleging “a credible threat of enforcement”); American Booksellers, 484 U.S. at 392

7 (plaintiffs can establish standing by demonstrating a “well-founded fear that the law will be

8 enforced against them.”).

9

At the hearing, the Government suggested that pre-enforcement review is generally only

10 available when there are criminal penalties or First Amendment issues at stake. While pre-

11 enforcement cases often fall into these categories, pre-enforcement review is not so limited. In a

12 pre-enforcement case, just like any other case, courts are limited by “the primary conception that

13 federal judicial power is to be exercised . . . only at the instance of one who is himself immediately

14 harmed, or immediately threatened with harm, by the challenged action.” Poe v. Ullman, 367 U.S.

15 497, 504 (1961). The Court has repeatedly recognized that “where threatened action by

16 government is concerned, we do not require a plaintiff to expose himself to liability before

17 bringing suit to challenge the basis for the threat – for example, the constitutionality of a law

18 threatened to be enforced.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129 (2007).

19 When a threatened injury has not yet been felt, “the question becomes whether any perceived

20 threat to respondents is sufficiently real and immediate to show an existing controversy” O’Shea v.

21 Littleton, 414 U.S. 488, 496 (1974), or whether it is merely “imaginary or speculative,” Younger v.

22 Harris, 401 U.S. 37, 42 (1971).

23

The pre-enforcement line of cases outlines a framework for answering this question in the

24 context of threatened civil or criminal enforcement action. Just as Article III standing is not

25 reserved for individuals who have suffered criminal penalties or First Amendment restrictions,

26 pre-enforcement review is not reserved for such individuals. See e.g. Terrace v. Thompson, 263

27 U.S. 197, 214 (1923) (noting that a plaintiff has standing to enjoin a law when the government

28 “threatens and is about to commence proceedings, either civil or criminal, to enforce such a law 17

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1 against parties affected”); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386 (1926)

2 (holding that a landowner bringing Fourteenth Amendment claims and facing only civil penalties

3 had pre-enforcement standing).

4

Many of the pre-enforcement cases recognize that First Amendment challenges raise an

5 additional consideration for standing purposes because a statute restricting First Amendment rights

6 may cause harm without any enforcement by “chilling speech.” See American Booksellers, at 393

7 (“[T]he alleged danger of this statute is, in large measure, one of self-censorship; a harm that can

8 be realized even without an actual prosecution.”). While this “chilling” effect is particularly

9 important in the First Amendment context, analogous concerns have been recognized in other

10 situations. For example, that a threat of legal action may coerce individuals to abandon their legal

11 rights is well recognized outside of First Amendment restrictions and was one of the driving

12 factors behind the creation of the Declaratory Judgment Act. See MedImmune, 549 U.S. at 129

13 (“The dilemma posed by that coercion—putting the challenger to the choice between abandoning

14 his rights or risking prosecution—is a dilemma that it was the very purpose of the Declaratory

15 Judgment Act to ameliorate.”). And courts have recognized that, outside the First Amendment

16 context, a law’s threat of enforcement may, on its own, cause present injury. See Village of

17 Euclid, 272 U.S. at 386. In Village of Euclid, the Court considered whether a landowner had pre-

18 enforcement standing to challenge a local zoning ordinance that it alleged had drastically reduced

19 the market value of a particular piece of property by limiting its use and threatening to impose

20 penalties for zoning violations. Id. at 384. Although the landowner had not faced any

21 enforcement under the ordinance, the Court concluded the claims were justiciable because “injury

22 is inflicted by the mere existence and threatened enforcement of the ordinance” as “prospective

23 buyers . . . are deterred from buying any part of this land.” Id. 384-385.

24

In sum, the pre-enforcement cases reveal that an individual facing enforcement action may

25 establish standing by demonstrating a well-founded fear of enforcement and a threatened injury

26 that is “sufficiently real and imminent.” O’Shea, 414 U.S. at 496. One may also establish

27 standing by demonstrating that a well-founded fear of enforcement action is itself causing present

28 injury. See American Booksellers, at 393; Village of Euclid, 272 U.S. at 385. 18

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1

As I discuss below, review of the Counties’ allegations demonstrates that they have a well-

2 founded fear of enforcement under the Executive Order. They have further demonstrated that

3 enforcement under the Order would deprive them of federal grants that they use to provide critical

4 services to their residents and that the “mere existence and threatened enforcement” of the Order is

5 causing them present injury in the form of budget uncertainty. They have demonstrated Article III

6 standing to challenge the Order.

7

a. The Counties’ policies are proscribed by the language of the

Executive Order 8

Where it is not fully clear what conduct is proscribed by a statute, a well-founded fear of

9

enforcement may be based in part on a plaintiff’s reasonable interpretation of what conduct is

10

proscribed. See American Booksellers, 484 U.S. at 392. This is true even if a narrower reading of

11

the statute may be available. Id. at 397.

12

In American Booksellers, the Supreme Court concluded that a group of booksellers had

13

standing to challenge a Virginia law that made it unlawful for any person to “knowingly display

14

for commercial purpose” visual or written material depicting sexual conduct “which is harmful to

15

juveniles.” Id. at 386 (citing Va. Code § 18.2-391(a) (Supp. 1987)). The booksellers challenged

16

the statute on First Amendment grounds and alleged that they had standing because they had

17

identified 16 books that they intended to display and that they believed would be covered by the

18

statute. Id. Even though the statute had not been made effective and the State had not identified

19

specific materials that would be implicated by the statute, the Court concluded that this was

20

sufficient to establish Article III standing because “the law is aimed directly at plaintiffs, who, if

21

their interpretation of the statute is correct, will have to take significant and costly compliance

22

measures or risk criminal prosecution.” Id. at 392. Further, while the government put forward a

23

narrow construction of the law that would have made the burden to booksellers and the public

24

“significantly less than that feared and asserted by plaintiffs,” the Court did not consider this

25

construction in assessing the plaintiffs’ standing. Id. at 397.

26

The Counties’ policies are likely to subject them to enforcement given their reasonable

27

interpretation of what conduct and policies the Order purports to proscribe. Section 9(a) of the

28

19

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1 Executive Order directs the Attorney General and the Secretary to “ensure” that “sanctuary

2 jurisdictions” are “not eligible to receive Federal grants.” EO §9(a). The Counties acknowledge

3 that the Executive Order does not clearly define “sanctuary jurisdictions” but note that the Order’s

4 language indicates that a “sanctuary jurisdiction” is, at a minimum, any jurisdiction that “willfully

5 refuse[s] to comply with 8 U.S.C. 1373.” The Government has not clarified what it means to

6 “willfully refuse to comply” with Section 1373, and indeed argues that the Counties lack standing

7 because the Attorney General and Secretary of Homeland Security have not yet figured that out.

8 SC Oppo. at 11 (“[T]he Attorney General and the Secretary of Homeland Security must determine

9 exactly what constitutes ‘willful refusal to comply with 8 U.S.C. § 1373’”). Despite this, on

10 March 27, 2017, Attorney General Sessions “urg[ed] states and local jurisdictions to comply with

11 these federal laws, including 8 U.S.C. Section 1373” and confirmed that “failure to remedy

12 violations could result in withholding grants, termination of grants, and disbarment or ineligibility 13 for future grants.” See RJN-2, Ex. D (“Sessions Press Conference”) (SF Dkt. No. 61-4).4

14

The Attorney General also stated that this policy was “entirely consistent with the

15 Department of Justice’s Office of Justice Program’s guidance that was issued just last summer

16 under the previous government.” Id. In the process of developing that guidance, the Inspector

17 General of the Department of Justice, Michael Horowitz, prepared a memorandum entitled

18 “Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant 19 Recipients.” See RJN-1, Ex. A (Dkt. No. 29-1).5 The memorandum studies the policies of several

20 jurisdictions and discusses whether they might violate Section 1373. It supports a broad reading

21 of Section 1373 and specifically notes that San Francisco’s policy prohibiting City employees

22 from using “City funds or resources to assist in the enforcement of federal immigration law or to

23

24 4 I take judicial notice of Attorney General Sessions’s press conference statements which “can be

25

accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201 (b)(2).

26 5 I take judicial notice of the Horowitz memorandum as a government memorandum that is not

27

subject to reasonable dispute. Mack v. S. Bay Beer Distribs., Inc., 789 F.2d 1279, 1282 (9th Cir. 1986) (courts may judicially notice records and reports prepared by administrative bodies);

28

Daniels-Hall, 629 F.3d at 998-999 (courts may judicially notice information contained on official government websites).

20

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1 gather or disseminate information regarding the immigration status of individuals . . . unless such

2 assistance is required by federal or State statute” could run afoul of Section 1373 unless San

3 Francisco employees are aware that they are permitted to share immigration status information

4 with ICE. Id. The memo further suggests that policies prohibiting civil detainer requests, even if

5 they do not explicitly restrict sharing of immigration status information, may nevertheless affect

6 ICE’s interactions with local officials regarding immigration status requests and therefore raise

7 Section 1373 concerns. Id.

8

In addition to the potential that, under the Order, compliance with Section 1373 requires

9 compliance with detainer requests, the Order may also directly require states and local

10 governments to honor ICE detainer requests to avoid being designated “sanctuary jurisdictions.”

11 While the defunding provision in Section 9(a) seems to define “sanctuary jurisdictions” as those

12 that run afoul of Section 1373, Section 9(b) equates “sanctuary jurisdictions” with “any

13 jurisdiction that ignored or otherwise failed to honor any detainers with respect to [aliens that have

14 committed criminal actions].” This language raises the reasonable concern that a state or local

15 government may be designated a sanctuary jurisdiction, and subject to defunding, if it fails to

16 honor ICE detainer requests. This interpretation is supported by Section 9(a)’s broad grant of

17 discretion to the Secretary to designate jurisdictions as “sanctuary jurisdictions.” While the Order

18 states that the Secretary’s designation authority must be exercised “consistent with law,” with the

19 exception of the Order there are no laws regarding “sanctuary jurisdiction” designations: Section 9

20 gives the Secretary unlimited discretion.

21

This reading is also supported by Section 9(a)’s directive to the Attorney General to take

22 “appropriate enforcement action” against any jurisdiction that has a policy or practice that

23 “hinders the enforcement of federal law.” While the Order does not outline what policies

24 “hinder[] the enforcement of Federal law,” Attorney General Sessions recently suggested that a

25 local policy that prohibits compliance with detainer requests would constitute a “policy, or

26 practice that prevents or hinders the enforcement of Federal law.” See Sessions Press Conference

27 at 2 (“Unfortunately, some states and cities have adopted policies designed to frustrate this

28 enforcement of immigration laws. This includes refusing to detain known felons on the federal 21

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1 detainer request, or otherwise failing to comply with these laws.”). Given Section 9(b)’s language

2 equating “sanctuary jurisdictions” with jurisdictions that fail to honor detainer requests, the

3 Secretary’s unlimited discretion in designating jurisdictions as “sanctuary jurisdictions,” and the

4 Order’s instruction that the Attorney General shall take “enforcement action” against jurisdictions

5 that hinder the enforcement of federal law, which the Attorney General has indicated includes, at a

6 minimum, failure to honor detainer requests, the Order appears to proscribe states and local

7 jurisdictions from adopting policies that refuse to honor detainer requests.

8

Santa Clara’s policy, prohibiting local officials from using County funds to transmit

9 information collected in the course of providing critical services or benefits, could be considered a

10 restriction on the intergovernmental exchange of information regarding immigration status in

11 violation of Section 1373. Similar to Santa Clara, San Francisco prohibits the use of City funds or

12 resources “to assist in the enforcement of Federal immigration law.” S.F. Admin. Code § 12H.2.

13 Although these policies do not directly prohibit communications with ICE, given the breadth of

14 the Order and the statements of the Attorney General, the Counties have a well-founded fear that

15 the Government may argue that they may sufficiently interfere with those communications in a

16 way that violates Section 1373. Further, the Counties do not honor civil detainer requests. Under

17 a broad reading, these policies may be considered an improper restriction on the intergovernmental

18 exchange of information in violation of Section 1373, falling within Section 9(b)’s language that

19 jurisdictions that fail to honor detainer requests are “sanctuary jurisdictions.”

20

In short, the Counties are likely to be designated “sanctuary jurisdictions” under their

21 reasonable interpretation of the Executive Order.

22

b. The Government has indicated an intent to enforce the Order

generally and against the Counties more specifically 23

In assessing whether enforcement action is likely, courts look to the past conduct of the

24

government, as well as the government’s statements and representations, to determine whether

25

enforcement is likely or simply “chimerical.” See Steffel, 415 U.S. at 459 (petitioner that had

26

twice been warned to stop handbilling, and whose companion had been arrested, had well-founded

27

fear of enforcement); Poe, 367 U.S. at 508 (1961) (“the fear of enforcement of provisions that

28

22

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1 have during so many years gone uniformly and without exception unenforced” was “chimerical”).

2 A plaintiff does not need to have been specifically threatened with enforcement action to show

3 that enforcement action is likely. See Susan B. Anthony List, 134 S. Ct. at 2345 (plaintiffs

4 demonstrated credible threat of enforcement where the law had previously been enforced against

5 them); American Booksellers, 484 U.S. at 393 (plaintiffs had credible threat of enforcement even

6 though newly enacted law had not become effective and no enforcement action had been brought

7 or threatened under it). However, “the threat of enforcement must at least be ‘credible,’ not

8 simply ‘imaginary or speculative.’ ” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134,

9 1140 (9th Cir. 2000) (en banc) (citing Babbitt, 442 U.S. at 298).

10

Although the Government now takes the position that the Order carries no legal force, in

11 its public statements and through its actions it has repeatedly indicated its intent to enforce the

12 Order. The Executive Order was passed on January 27, 2017. Although the defunding provision

13 has not yet been enforced against any jurisdiction, governmental leaders have made numerous

14 statements reaffirming the Government’s intent to enforce the Order and to use the threat of

15 withholding federal funds as a tool to coerce states and local jurisdictions to change their policies.

16 On February 5, 2017, after signing the Executive Order, President Trump confirmed that he was

17 willing and able to use “defunding” as a “weapon” so that sanctuary cities would change their

18 policies. See Harris Decl. Ex. B (Tr. of Feb. 5, 2017 Bill O’Reilly Interview with President

19 Donald J. Trump) at 4 (SC Dkt. No. 36-2) (“I don’t want to defund anybody. I want to give them

20 the money they need to properly operate as a city or a state. If they’re going to have sanctuary 21 cities, we may have to do that. Certainly that would be a weapon.”).6

22

Sean Spicer, the White House press secretary, has confirmed that the Government intends

23 to enforce the order, stating that the President intended to ensure that “counties and other

24 institutions that remain sanctuary cities don’t get federal government funding in compliance with

25

26

27

6 I take judicial notice of President Trump’s interview statements as the veracity of these statements “can be accurately and readily determined from sources whose accuracy cannot

28 reasonably be questioned.” Fed. R. Evid. § 201 (b)(2).

23

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1 the executive order.” Harris Decl. Ex. C at 4-5 (SC Dkt. No. 36-3).7 In the same briefing, Spicer

2 cited favorably the actions of Miami-Dade County Mayor Carlos Giménez who, one day after the

3 Executive Order, instructed his Interim Director of Corrections to “honor all immigration detainer 4 requests” “[i]n light of the Executive Order.” See RJN-1, Ex. C (SF Dkt. No. 29-3).8 Lauding

5 Miami-Dade’s actions, Spicer noted that Miami-Dade “understand[s] the importance of this order”

6 and encouraged other jurisdictions to follow its lead. Harris Decl. Ex. C at 4-5.

7

Attorney General Sessions recently reaffirmed the Government’s intent to enforce the

8 defunding provisions, stating that if jurisdictions do not comply with Section 1373, such violations

9 would result in “withholding grants, termination of grants, and disbarment or ineligibility for

10 future grants,” and that the Government would seek to “claw back any funds awarded to a 11 jurisdiction that willfully violates 1373.” Sessions Press Conference at 2.9 When asked at a

12 subsequent press briefing about this claw back process, Spicer confirmed that the Government’s

13 “priority is clear, is to get cities into – into compliance and to make sure we understand there’s not

14 just a financial impact of this, but also a very clear security aspect of this.” RJN-3, Ex. C at 15 15 (SF Dkt. No. 74-3).10

16

The statements of the President, his press secretary and the Attorney General belie the

17

18 7 I take judicial notice of Spicer’s February 8, 2017 press briefing as courts may judicially notice 19 information contained on official government websites. See Daniels-Hall, 629 F.3d at 998-999.

20

8 I take judicial notice of Mayor Giménez’s memorandum as a government memorandum and record. See Mack, 789 F.2d at 1282.

21 9 In addition to these statements, the Government began to implement Section 9(b) of the

22

Executive Order, which is designed to “better inform the public regarding the public safety threats associated with sanctuary jurisdictions” and requires ICE to publish a weekly “Declined Detainer

23

Outcome Report” containing a public list of all “criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.”

24

See RJN-2, Ex. H. (SF Dkt. No. 61-8). Due to concerns that the weekly reports contained inaccurate information, the Declined Detainer Outcome Report has been “temporarily suspended”

25

but “ICE remains committed to publishing the most accurate information available regarding declined detainers across the country.” Declined Detainer Outcome Report, ICE,

26

https://www.ice.gov/declined-detainer-outcome-report (last visited April 12, 2017). I take judicial notice of the ICE’s Declined Detainer Outcome Reports as courts may judicially notice

27 information contained on official government websites. See Daniels-Hall, 629 F.3d at 998-999.

28

10 I take judicial notice of Spicer’s March 31, 2017 press briefing as courts may judicially notice information contained on official government websites. See Daniels-Hall, 629 F.3d at 998-999.

24

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1 Government’s argument in the briefing that the Order does not change the law. They have

2 repeatedly indicated an intent to defund sanctuary jurisdictions in compliance with the Executive

3 Order. The Counties’ concerns that the Government will enforce the defunding provision are well

4 supported by the Government’s public statements and actions, all of which are consistent with

5 enforcing the Order.

6

Finally, in addition to demonstrating that the Government is likely to enforce the Order,

7 the Counties have demonstrated that the Government is particularly likely to target them and the

8 funds on which they rely. In a February 5, 2017 interview, President Trump specifically

9 threatened to defund California, stating: “I’m very much opposed to sanctuary cities. They breed

10 crime. There’s a lot of problems. If we have to we’ll defund, we give tremendous amounts of

11 money to California . . . California in many ways is out of control.” See Harris Decl. Ex. B. The

12 Counties have established that they both receive large percentages of their federal funding through

13 the State of California, and that they would suffer injury if California was “defunded.” In a recent

14 joint letter to Chief Justice Cantil-Sakauye of the California Supreme Court, Attorney General

15 Sessions and Secretary Kelly again called out the State of California, as well as its cities and

16 counties, for their sanctuary policies: “Some jurisdictions, including the State of California and

17 many of its largest counties and cities, have enacted statutes and ordinances designed to

18 specifically prohibit or hinder ICE from enforcing immigration law by prohibiting communication

19 with ICE, and denying requests by ICE officers and agents to enter prisons and jails to make 20 arrests.” RJN-3, Ex. A (SF Dkt. No. 74-1).11 ICE has identified California, Santa Clara County,

21 and San Francisco as jurisdictions with policies that “Restrict Cooperation with ICE” and has

22 identified Santa Clara County Main Jail and San Francisco County Jail as two of eleven detention

23 centers with the “highest volume of detainers issued” that “do not comply with detainers on a

24 routine basis.” RJN-3, Ex. B (SF Dkt. No. 74-2).

25

The President and the Attorney General have also repeatedly held up San Francisco

26

27 11 I take judicial notice of Attorney General Sessions’s and Secretary Kelly’s letter as an official 28 government document. See Mack, 789 F.2d at 1282.
25

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1 specifically as an example of how sanctuary policies threaten public safety. In his statements to

2 the press on March 27, 2017, Attorney General Sessions referenced the tragic death of Kate

3 Steinle and noted that her killer “admitted the only reason he came to San Francisco was because

4 it was a sanctuary city.” Sessions Press Conference at 1. In an op-ed recently published in the

5 San Francisco Chronicle, the Attorney General wrote that “Kathryn Steinle might be alive today if

6 she had not lived in a ‘sanctuary city’ ” and implored “San Francisco and other cities to re7 evaluate these policies.” RJN-3, Ex. D (SF Dkt. No. 74-4).12 These statements indicate not only

8 the belief that San Francisco is a “sanctuary jurisdiction” but that its policies are particularly

9 dangerous and in need of change. They also reveal a choice by the Government to hold up San

10 Francisco as an exemplar of a sanctuary jurisdiction.

11

The Government argues that despite these public statements, San Francisco and Santa

12 Clara cannot demonstrate a credible threat of enforcement because the Government has not

13 actually threatened to enforce the Executive Order against them. It points to Thomas v. Anchorage

14 Equal Rights Commission, in which the Ninth Circuit, sitting en banc, concluded that plaintiffs

15 lacked standing to challenge an Alaska law prohibiting landlords from discriminating against

16 tenants on the basis of their marital status. Thomas, 220 F.3d at 1137. In finding the case was

17 non-justiciable, the court highlighted that “[n]o action has ever been brought against the landlords

18 to enforce the marital status provision.” Id. at 1140. However, this was not the only fact

19 informing the court’s analysis: it also noted that plaintiffs could not point to concrete facts

20 showing that they had ever violated the law or were planning to violate it, it stressed that the

21 enforcement agency tasked with enforcing the Alaska law had never heard of plaintiffs before the

22 case was filed, and it emphasized that in 25-years on the books the law had been minimally

23 enforced (resulting in only two civil enforcement actions and no criminal prosecutions). Id. None

24 of these facts are present here.

25

The Government’s specific criticisms of San Francisco, Santa Clara, and California

26

27 12 I take judicial notice of Attorney General Sessions’s statements in his op-ed as the veracity of

28

these statements “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201 (b)(2).

26

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1 support a well-founded fear that San Francisco and Santa Clara will face enforcement directly

2 under the Executive Order, or could be subject to defunding indirectly through enforcement 3 against California.13 San Francisco and Santa Clara have shown that their current practices and

4 policies are targeted by the Order. They have demonstrated that, in the less-than-three months

5 since the Order was signed, the Government has repeatedly indicated its intent to enforce it. And

6 they have established that the Government has specifically highlighted Santa Clara and San

7 Francisco as jurisdictions with sanctuary policies. On these facts, Santa Clara and San Francisco

8 have demonstrated that the “threat of enforcement [is] credible, not simply imaginary or

9 speculative.” Id. (internal quotation marks omitted).

10

c. The Counties’ claims implicate a constitutional interest

11

The Counties’ claims implicate a constitutional interest, the rights of states and local

12 governments to determine their own local policies and enforcement priorities pursuant to the

13 Tenth Amendment. See Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez, 458 U.S. 592,

14 601 (1982) (highlighting that states have a sovereign interest in “the exercise of sovereign power

15 over individuals and entities within the relevant jurisdiction—this involves the power to create and

16 enforce a legal code, both civil and criminal”); see also New York v. United States, 505 U.S. 144,

17 157-158 (1992) (“[T]he Tenth Amendment confirms that the power of the Federal Government is

18 subject to limits that may, in a given instance, reserve power to the States.”).

19

The Counties explain that their sanctuary policies “reflect local determinations about the

20 best way to promote public health and safety.” SF Mot. at 19 (SF Dkt. No. 21). In contrast to the

21 Order’s assertion that sanctuary jurisdictions are a “public safety threat[],” the Counties contend

22 that, in their judgment and experience, sanctuary policies make the community safer by fostering

23 trust between residents and local law enforcement. Among other things, this community trust

24 encourages undocumented residents to cooperate with police and report crimes, see Individual

25 Sheriffs and Police Chiefs’ Amicus Brief at 3-10 (SF Dkt. No. 59-1); Southern Poverty Law

26

27 13 Amicus briefs on behalf of numerous California cities and counties, public school districts and

28

the State Superintendent of Instruction echo the reasons given by the Counties to demonstrate standing here.

27

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1 Center Amicus Brief at 5 (SF Dkt. No. 38-2) and to obtain preventative medical care and

2 immunizations, which has major implications for public health and works to reduce emergency

3 medical care costs, see Nonprofit Associations’ Amicus Brief at 11(SF Dkt. No. 68-1); SEIU

4 Amicus Brief at 5-6 (SF Dkt. No. 33-1). It also improves schools’ ability to provide quality

5 education to all children. See State Superintendent of Public Instruction’s Amicus Brief at 1-2 (SF 6 Dkt. No. 64-1); Public Schools’ Amicus Brief at 7 (SF Dkt. No. 58-1).14

7

The Counties have demonstrated that their sanctuary policies reflect their local judgment of

8 what policies and practices are most effective for maintaining public safety and community health.

9 Because they argue that the Executive Order seeks to undermine this judgment by attempting to

10 compel them to change their policies and enforce the Federal government’s immigration laws in

11 violation of the Tenth Amendment, their claims implicate a constitutional interest. See Virginia ex

12 rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011) (“when a federal law interferes with

13 a state’s exercise of its sovereign ‘power to create and enforce a legal code’ [] it inflict[s] on the

14 state the requisite injury-in-fact.”); Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228,

15 233 (6th Cir. 1985) (Ohio had standing to litigate the constitutionality of its own law where

16 “effective enforcement of the Ohio statute” was rendered “uncertain by the formal position of the

17 [U.S. Department of Transportation] that the Ohio statute is preempted” as “threatened injury to a

18 State’s enforcement of its safety laws” constitutes an injury-in-fact).

19

20

14 The Counties have received support from dozens of Amici, who collectively filed 16 briefs in support of each motion for preliminary injunction. See, SEIU Amicus Brief (SF Dkt. No. 33-

21

1)(SF Dkt. No. 59-1); Professors of Constitutional Law Amicus Brief (SF Dkt. No. 36-1) (SC Dkt. No. 68-1); Southern Poverty Law Center, et al. Amicus Brief (SF Dkt. No. 38-1)(SC Dkt. No. 67-

22

1); Technology Companies Amicus Brief (SF Dkt. No. 39-1)(SC Dkt. No. 73-1); California Cities and Counties Amicus Brief (SF Dkt. No. 40)(SC Dkt. No. 74-1); Tahirih Justice Center et al.

23

Amicus Brief (SF Dkt. No. 41-1)(SC Dkt. No. 76-1); International Municipal Lawyers Amicus Brief (SF Dkt. No. 47-1); Public Schools Amicus Brief (SF Dkt. No. 58-1)(SC Dkt. No. 77-1);

24

Individual Sheriffs and Police Chiefs Amicus Brief (SF Dkt. No. 59-1)(SC Dkt. No. 65-1); 34 Cities and Counties Amicus Brief (SF Dkt. No. 62-1)(SC Dkt. No. 61-1); Constitutional Law

25

Scholars Amicus Brief (SF Dkt. No. 63-1)(SC Dkt. No. 69-1); California Superintendent of Public Instruction Amicus Brief (SF Dkt. No. 64-1)(SC Dkt. No. 75); State of California Amicus Brief

26

(SF Dkt. No. 66-1)(SC Dkt. No. 71-1); Anti-Defamation League Amicus Brief (SF Dkt. No. 671)(SC Dkt. No. 72-1); Bay Area Non-Profits (SF Dkt. No. 68-1)(SC Dkt. No. 78-1); SIREN

27

Amicus Brief (SC Dkt. No. 64-1); see also NAACP Joinder re Southern Poverty Law Amicus Brief (SF Dkt. No. 69)(SC Dkt. No. 86); Young Women’s Christian Association Joinder re

28

Motion for Preliminary Injunction (SC Dkt. No. 43-3). I GRANT all of Amici’s administrative motions for leave to file Amicus Briefs.

28

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d. The Counties are threatened with the loss of federal grants and

1

face a present injury in the form of budgetary uncertainty

2

The Counties assert that the Order threatens to penalize them for failing to comply with

3 Section 1373 and for failing to honor detainer requests by withholding all federal funds, or at least

4 all federal grants. Section 9(a) does not threaten all federal funding, but it does include all federal

5 grants, which still make up a significant part of the Counties’ budgets. This threatened injury

6 meets Article III’s standing requirements. A “loss of funds promised under federal law [] satisfies

7 Article III’s standing requirement.” Organized Village of Kake v. U.S. Dep’t of Agric., 795 F.3d

8 956, 965 (9th Cir. 2015).

9

The Counties also explain that the need to mitigate a potential sudden loss of federal funds

10 has thrown their budgeting processes into uproar: they cannot make informed decisions about

11 whether to keep spending federal funds on needed services for which they may not be reimbursed;

12 they are forced to make contingency plans to deal with a potential loss of funds, including placing

13 funds in a budget reserve in lieu of spending that money on needed programs; and the obligation

14 to mitigate potential harm to their residents and drastic cuts to services may ultimately compel

15 them to change their local policies to comply with what they believe to be an unconstitutional

16 Order. The potential loss of all federal grants creates a contingent liability large enough to have

17 real and concrete impacts on the Counties’ ability to budget and plan for the future. As discussed

18 in more detail below, the Counties have demonstrated that they are suffering a present “injury []

19 inflicted by the mere existence and threatened enforcement of the [Order].” Village of Euclid, 272

20 U.S. at 385. In addition to the threatened loss of funds, this may also establish Article III standing.

21

A sudden loss of grant funding would have another effect. The Counties receive large

22 portions of their federal grants through reimbursement structures – the Counties first spend their

23 own money on particular services and then receive reimbursements from the federal government

24 based on the actual services provided. Marquez Decl. ¶ 15. Because these funds are spent on an

25 ongoing basis, at all times the Counties are expecting, and relying on, millions of dollars in federal

26 reimbursements for services already provided. A sudden cut to funding, including a cut to these

27 reimbursements, could place them immediately in significant debt. A sudden and unanticipated

28 cut mid-fiscal year would substantially increase the injury to the Counties by forcing them to make 29

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1 even more drastic cuts to absorb the loss of funds during a truncated period in order to stay on

2 budget. Whitehouse Decl. ¶ 9.

3

San Francisco explains that a mid-year loss of only $120 million in federal funding would:

4 require the City to make significant cuts to critical services and would result in reductions in the

5 numbers of first responders, such as police officers, firefighters, and paramedics; require severe

6 cuts to the City’s MUNI transportation system; threaten the Mayor’s program to end chronic

7 veterans’ homelessness by 2018; and likely require cuts to social services, such as senior meals,

8 safety net services for low-income children, and domestic violence prevention services.

9 Whitehouse Decl. ¶17. Because federal grants support key government services, San Francisco

10 asserts that, without clarity about the funds the Order could withhold or claw back, it will need to

11 allocate millions of dollars to a budget reserve on May 15, 2017 to prepare for the potential loss of

12 significant funds during the 2017 fiscal year. Whitehouse Decl. ¶8, 10, 15. Any funds placed in a

13 reserve fund will not be available to fund other City programs and services for the 2017 fiscal

14 year, which would result in a dollar-for-dollar reduction in services the City is able to provide its

15 residents. Id. 13-14.

16

Santa Clara asserts that the current budgetary uncertainty puts it in an “untenable position.”

17 Marquez Decl. ¶4. It explains that Santa Clara’s budget for the current fiscal year is already in

18 place and was developed based on careful weighing of various factors, including anticipated

19 revenues, specific service needs, salary and benefits for the County’s 19,000 employees, and the

20 County’s fiscal priorities. Id. ¶12. Because Santa Clara operates federally funded programs on a

21 daily basis, and incurs costs in anticipation that it will be reimbursed, its ability to provide these

22 services depends on the County having some confidence that it will continue to receive the federal

23 reimbursements and funds on which it depends. With the Order’s unclear and broad language

24 threatening a significant cut to funding, the County does not know “whether to (1) continue

25 incurring hundreds of millions of dollars in costs that may never be reimbursed by the federal

26 government, (2) discontinue basic safety-net services delivered to its most vulnerable residents, or

27 (3) in an attempt to avoid either of these outcomes, be effectively conscripted into using local law

28 enforcement and other resources to assist the federal government in its immigration enforcement 30

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1 efforts.” Id. at 11.

2

The Government argues that governmental budgeting always suffers from some

3 uncertainty due to fluctuations in cost and tax revenues so any uncertainty caused by the Executive

4 Order does not make “an otherwise certain endeavor [] less certain.” While local budgeting

5 always suffers from some uncertainty, as addressed immediately above, it is the magnitude of the

6 present uncertainty and the fact that the Executive Order places at risk funds on which the

7 Counties could previously rely that is causing them harm. The Government also argues that the

8 Counties’ concerns would not be addressed by enjoining the Executive Order because “the Order

9 does not alter or expand existing law governing the Federal Government’s discretion to revoke or

10 deny a grant where the grantee violates legal requirements.” As discussed supra in Section I.A.1,

11 I reject this unpersuasive interpretation of the Order.

12

Finally, the Government asserts that budgetary uncertainty is too abstract to meet Article

13 III’s standing requirements and cites Los Angeles Memorial Coliseum Commission v. National

14 Football League, 634 F.2d 1197, 1201 (9th Cir. 1980). The facts of that case are not analogous to

15 this one. There, the Coliseum Commission alleged that there was a reasonable likelihood that the

16 Raiders were “seriously interested” in moving to Los Angeles but that they were unlikely to get

17 the necessary votes from the NFL to approve a transfer under the existing rules. The Ninth Circuit

18 concluded that the Commission’s speculative allegations were not sufficient to establish standing

19 to challenge the transfer approval rules. Id. While the Commission alleged it was likely to suffer

20 losses in revenues as a result of the transfer rules, it made no argument that the NFL’s rules caused

21 the type of significant budget uncertainty alleged here.

22

The Counties cite Clinton v. City of New York, 524 U.S. 417, 438 (1998), which is on

23 point. There, the Court considered whether the City of New York was injured when President

24 Clinton cancelled a section of the Balanced Budget Act of 1997 that waived the federal

25 government’s right to recover certain past taxes from New York. Id. at 422. This cancellation

26 meant that the state was again potentially liable for remitting close to $2.6 billion to the

27 Department of Health and Human Services (“HHS”), and would have to wait for a determination

28 from the HHS as to whether it would grant the state’s requests to waive those taxes. Id. The 31

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1 Court rejected the government’s argument that the City’s injuries were too speculative. It

2 concluded that although there was still a potential that New York’s taxes would be waived, the

3 President’s cancellation had deprived New York of the benefits of the law, which were akin to the

4 certainty of a favorable final judgment. Id. at 430-31. It reasoned, “the revival of a substantial

5 contingent liability immediately and directly affects the borrowing power, financial strength, and

6 fiscal planning of the potential obligor” and constitutes an injury-in-fact. Id. at 430-31.

7

While President Clinton’s cancellation in City of New York revived a contingent liability,

8 President Trump’s Executive Order creates a contingent liability, potentially placing hundreds of

9 millions of dollars of the Counties’ federal grants at risk. The Counties have explained the

10 concrete impact this new liability has had in disrupting their ability to budget, make decisions

11 regarding what services to provide, and plan for the future. The potential loss of funds also

12 impacts the Counties potential borrowing power and financial strength – San Francisco notes that

13 it has already received inquiries from credit rating agencies about the Executive Order and its

14 impact on San Francisco’s finances. Rosenfield Decl. ¶31. This budget uncertainty is not

15 abstract. It has caused the Counties real and tangible harms. They have adequately demonstrated

16 that budgetary uncertainty of the type threatened by the Executive Order can constitute an injury-

17 in-fact sufficient for Article III standing.

18

e. The Counties meet the requirements for pre-enforcement

standing 19

In sum, the Counties have established a well-founded fear of enforcement under the

20

Executive Order. They have demonstrated that, under their reasonable interpretation of the Order,

21

their local policies are proscribed by Section 9’s language. They have demonstrated that the

22

Government intends to enforce the Order against them specifically. And they have demonstrated

23

that their claims against the Order implicate a constitutional interest – their Tenth Amendment

24

rights to self-governance. The Counties have shown “an intention to engage in a course of

25

conduct arguably affected with a constitutional interest, but proscribed by a statute, and there

26

exists a credible threat of prosecution thereunder.” Babbitt, 442 U.S. at 298. Further, the

27

Counties have demonstrated that the Order threatens to withhold federal grant money and that the

28

32

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1 threat of the Order is presently causing the Counties injury in the form of significant budget

2 uncertainty. The Counties’ well-founded fear of enforcement of Section 9(a) is sufficient to

3 demonstrate Article III standing.

4

B. Ripeness

5

The Government also argues that the Counties’ claims are not justiciable because they are

6 not “prudentially ripe.” In assessing prudential ripeness, a court considers “both the fitness of the

7 issues for judicial decision and the hardship to the parties of withholding court consideration.”

8 Abbott Labs. v. Gardner, 387 U.S. 136, 149 (9th Cir. 1989). The Supreme Court has called into

9 question “the continuing vitality of the prudential ripeness doctrine” and highlighted that

10 prudential ripeness is distinct from constitutional ripeness. Susan B. Anthony List, 134 S. Ct. at

11 2347 (holding that a claim was justiciable, even though the Court had not yet assessed its

12 prudential ripeness, because “we have already concluded that petitioners have alleged a sufficient

13 Article III injury”). Regardless, the Counties’ claims meet the “fitness” and “hardship” factors of

14 prudential ripeness.

15

“A claim is fit for decision if the issues raised are primarily legal, do not require further

16 factual development, and the challenged action is final.” Standard Alaska Prod. Co. v. Schaible,

17 874 F.2d 624, 627 (9th Cir. 1989). The Government asserts that the Counties’ claims are not yet

18 fit for review because “[i]mplementation of Section 9 ‘rests upon [several] contingent future

19 events’– including clarification of some of its terms – and those terms may ultimately be defined

20 such as to exclude the County or its grants or otherwise to greatly diminish the Order’s

21 ‘anticipated’ impact.” SC Oppo. at 17 (citing Texas v. United States, 523 U.S. 296, 300 (1998)).

22

In Texas v. United States, Texas sought a declaration that a state provision allowing the

23 State Commissioner of Education to appoint a special master to impose sanctions against school

24 districts falling below the state’s accreditation requirements did not violate Section 5 of the Voting

25 Rights Act. 523 U.S. at 299. The Court concluded that this claim was not ripe for review because

26 the relevant statute would only come into play if a school district fell below the state’s standard, if

27 the Commissioner had unsuccessfully attempted to impose a number of other less intrusive

28 measures first, and if the Commissioner then decided a special master was necessary. Id. at 300. 33

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1 Given the various uncertain future events, and that the state could not identify any school district

2 to which the Commissioner was likely to appoint a special master, the Court concluded that the

3 claim was not yet fit for review. Id.

4

The Government argues that, because it must still determine what the terms of the Order

5 mean and how it will enforce it, the Counties’ claims are not fit for review, just like the state’s

6 claim in Texas. This argument is not convincing. The “contingent future events” the Government

7 identifies are always at issue in a pre-enforcement case; before actual enforcement occurs the

8 enforcing agency must determine what the statute means and to whom it applies. Under the

9 Government’s line of reasoning, virtually all pre-enforcement cases would be non-justiciable on

10 prudential ripeness grounds. But the possibility that the Government “may” choose to interpret

11 the Order’s broad language narrowly or “may” choose not to enforce it against the Counties does

12 not justify deferring review. This is especially true here because, as the Counties highlight, the

13 uncertainty concerning how the Government will enforce the Order is currently causing them

14 injury. Given the statements of the President and Attorney General, the Counties have every

15 reason to be concerned about budgeting decisions, are struggling to determine whether to continue

16 to provide, or cut services, and are expending time and resources planning for the contingency of

17 losing federal funds. The Counties challenge the Executive Order as written; a decision to enforce

18 it sparingly cannot impact whether it is unconstitutional on its face. The Counties’ claims do not

19 require further factual development, are legal in nature, and are brought against a final Executive

20 Order. They are fit for review.

21

“To meet the hardship requirement, a litigant must show that withholding review would

22 result in direct and immediate hardship and would entail more than possible financial loss.”

23 Winter v. Cal. Med. Review, Inc., 900 F.2d 1322, 1325 (9th Cir. 1989) (internal quotation marks

24 omitted). The Government argues that the “uncertainties surrounding the implementation of

25 Section 9 and the need for ‘factual development’ greatly outweigh any ‘hardship’ to the Count[ies]

26 from awaiting those developments.” SC Oppo. at 17-18. But the “uncertainties” created by the

27 broad, vague language of the Order, its unconstitutional directives, and the comments of the

28 President and Attorney General about what type of conduct and which jurisdictions it targets are 34

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1 causing the Counties present harm. Without clarity the Counties do not know whether they should

2 start slashing essential programs or continue to spend millions of dollars and risk a financial crisis

3 in the near future. They are forced to choose “between taking immediate action to [their]

4 detriment and risking substantial future penalties for non-compliance.” Chamber of Commerce of

5 U.S. v. Reich, 57 F.3d 1099, 1100-01 (D.C. Cir. 1995). Waiting for the Government to decide

6 how it wants to apply the Order would only cause more hardship and would not resolve the legal

7 question at issue: whether Section 9(a) as written is unconstitutional. The Counties’ claims are

8 prudentially ripe.

9

The Counties have established Article III standing and their claims are justiciable. They

10 have also demonstrated that their claims are prudentially ripe for review.

11 II. LIKELIHOOD OF SUCCESS ON THE MERITS

12

The Counties challenge the Executive Order on several constitutional grounds and bear the

13 burden of demonstrating a likelihood of success on the merits. The Government presents no

14 defense to these constitutional arguments; it focused on standing and ripeness. I conclude that the

15 Counties have demonstrated likely success on the merits in several ways.

16

A. Separation of Powers

17

The Counties argue that the Executive Order is unconstitutional because it seeks to wield

18 powers that belong exclusively to Congress, the spending powers. Article I of the Constitution

19 grants Congress the federal spending powers. See U.S. Const. art. I, § 8, cl. 1. “Incident to this

20 power, Congress may attach conditions on the receipt of federal funds, and has repeatedly

21 employed the power ‘to further broad policy objectives by conditioning receipt of federal moneys

22 upon compliance by the recipient with federal statutory and administrative directives.’ ” South

23 Dakota v. Dole, 483 U.S. 203, 206 (1987) (citing Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)

24 (emphasis added). While the President may veto a Congressional enactment under the

25 Presentment Clause, he must “either ‘approve all the parts of a Bill, or reject it in toto.’ ” City of

26 New York, 524 U.S. at 438 (quoting 33 Writings of George Washington 96 (J. Fitzpatrick ed.,

27 1940)). He cannot “repeal[] or amend[] parts of duly enacted statues” after they become law. Id.

28 at 439. 35

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1

This is true even if Congress has attempted to expressly delegate such power to the

2 President. Id. In City of New York, the Supreme Court concluded that the Line Item Veto Act,

3 which sought to grant the President the power to cancel particular direct spending and tax benefit

4 provisions in bills, was unconstitutional as it ran afoul of the “ ‘finely wrought’ procedures

5 commanded by the Constitution” for enacting laws. Id. at 448 (quoting INS v. Chadha, 462 U.S.

6 919, 951 (1983)). While Congress can delegate some discretion to the President to decide how to

7 spend appropriated funds, any delegation and discretion is cabined by these constitutional

8 boundaries.

9

After a bill becomes law, the President is required to “take Care that the Law be faithfully

10 executed.” See U.S. Const. art. II, § 3, cl. 5. Where Congress has failed to give the President

11 discretion in allocating funds, the President has no constitutional authority to withhold such funds

12 and violates his obligation to faithfully execute the laws duly enacted by Congress if he does so.

13 See City of New York, 524 U.S. at 439; U.S. Const. art. I, § 8, cl. 1. Further, “[w]hen the President

14 takes measures incompatible with the expressed or implied will of Congress, his power is at its

15 lowest ebb . . .” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,

16 concurring). Congress has intentionally limited the ability of the President to withhold or

17 “impound” appropriated funds and has provided that the President may only do so after following

18 particular procedures and after receiving Congress’s express permission. See Impoundment

19 Control Act of 1974, 2 U.S.C. §§ 683 et seq.

20

The Executive Order runs afoul of these basic and fundamental constitutional structures.

21 The Order’s stated purpose is to “ensure that jurisdictions that fail to comply with applicable

22 Federal law do not receive Federal funds, except as mandated by law.” EO §2. To effectuate this

23 purpose, the Order directs that “the Attorney General and the Secretary, in their discretion and to

24 the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8

25 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed

26 necessary for law enforcement purposes by the Attorney General or the Secretary.” EO §9(a).

27 Section 9 purports to give the Attorney General and the Secretary the power to place a new

28 condition on federal funds (compliance with Section 1373) not provided for by Congress. But the 36

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1 President does not have the power to place conditions on federal funds and so cannot delegate this

2 power.

3

Section 9 is particularly problematic as Congress has repeatedly, and frequently, declined

4 to broadly condition federal funds or grants on compliance with Section 1373 or other federal

5 immigration laws as the Executive Order purports to do. See, e.g., Ending Sanctuary Cities Act of

6 2016, H.R. 6252, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong.

7 (2016); Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016); Stop Sanctuary

8 Policies and Protect Americans Act, S. 2146, 114th Cong. (2016). This puts the President’s power

9 “at its lowest ebb.” Youngstown, 343 U.S. at 637. The Order’s attempt to place new conditions on

10 federal funds is an improper attempt to wield Congress’s exclusive spending power and is a

11 violation of the Constitution’s separation of powers principles.

12

B. Spending Clause Violations

13

The Counties also argue that, even if the President had the spending power, the Executive

14 Order would be unconstitutional under the Tenth Amendment as it exceeds those powers. The

15 Counties are likely to succeed on this claim as well.

16

While Congress has significant authority to encourage policy through its spending power,

17 the Supreme Court has articulated a number of limitations to the conditions Congress can place on

18 federal funds. The Executive Order likely violates at least three of these restrictions: (1)

19 conditions must be unambiguous and cannot be imposed after funds have already been accepted;

20 (2) there must be a nexus between the federal funds at issue and the federal program’s purpose;

21 and (3) the financial inducement cannot be coercive.

22

1. Unambiguous Requirement

23

When Congress places conditions on federal funds “it must do so unambiguously” so that

24 states and local jurisdictions contemplating whether to accept such funds can “exercise their

25 choice knowingly, cognizant of the consequences of their participation.” Dole, 483 U.S. at 203

26 (internal quotation marks omitted). Because states must opt-in to a federal program willingly,

27 fully aware of the associated conditions, Congress cannot implement new conditions after-the-fact.

28 See Nat’l Fed. of Indep. Bus. v. Sebelius (“NFIB”), 132 S. Ct. 2566, 2602-04 (2012). “The 37

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1 legitimacy of Congress’s exercise of the spending power thus rests on whether the state

2 voluntarily and knowingly accepts the terms of the contract” at the time Congress offers the

3 money. Id. at 2602.

4

The Executive Order purports to retroactively condition all “federal grants” on compliance

5 with Section 1373. As this condition was not an unambiguous condition that the states and local

6 jurisdictions voluntarily and knowingly accepted at the time Congress appropriated these funds, it

7 cannot be imposed now by the Order. In addition, while the Order’s language refers to all federal

8 grants, the Government’s lawyers say it only applies to three grants issued through the

9 Departments of Justice and Homeland Security. If the funds at stake are not clear, the Counties

10 cannot voluntarily and knowingly choose to accept the conditions on those funds.

11

Finally, as discussed infra in Section II.D., the Order’s vague language does not make

12 clear what conduct it proscribes or give jurisdictions a reasonable opportunity to avoid its

13 penalties. See discussion re vagueness infra Section II.D. The unclear and untimely conditions in

14 the Executive Order fail the “unambiguous” restriction because the Order does not make clear to

15 states and local governments what funds are at issue and what conditions apply to those funds,

16 making it impossible for them to “voluntarily and knowingly accept[] the terms of the contract.”

17 NFIB, 132 S. Ct. at 2602.

18

2. Nexus Requirement

19

The conditions placed on congressional spending must have some nexus with the purpose

20 of the implicated funds. “Congress may condition grants under the spending power only in ways

21 reasonable related to the purpose of the federal program.” Dole, 483 U.S. at 213. This means that

22 funds conditioned on compliance with Section 1373 must have some nexus to immigration

23 enforcement.

24

The Executive Order’s attempt to condition all federal grants on compliance with Section

25 1373 clearly runs afoul of the nexus requirement: there is no nexus between Section 1373 and

26 most categories of federal funding, including without limitation funding related to Medicare,

27 Medicaid, transportation, child welfare services, immunization and vaccination programs, and

28 emergency preparedness. The Executive Order inverts the nexus requirement, directing the 38

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1 Attorney General and Secretary to cut off all federal grants to “sanctuary jurisdictions” but giving

2 them discretion to allow “sanctuary jurisdictions” to receive grants “deemed necessary for law

3 enforcement purposes.” EO § 9(a). As the subset of grants “deemed necessary for law

4 enforcement purposes” likely includes any federal funds related to immigration enforcement, the

5 Executive Order expressly targets for defunding grants with no nexus to immigration enforcement

6 at all. This is the precise opposite of what the nexus test requires.

7

3. Not Coercive Requirement

8

Finally, Congress cannot use the spending power in a way that compels local jurisdictions

9 to adopt certain policies. Congress cannot offer “financial inducement . . . so coercive as to pass

10 the point at which pressure turns to compulsion.” Dole, 483 U.S. at 211 (internal quotation marks

11 omitted). Legislation that “coerces a State to adopt a federal regulatory system as its own” “runs

12 contrary to our system of federalism.” NFIB, 132 S. Ct. at 2602. States must have a “legitimate

13 choice whether to accept the federal conditions in exchange for federal funds.” Id. at 2602-2603.

14

In NFIB, the Supreme Court concluded that the Affordable Care Act’s threat of denying

15 Medicaid funds, which constituted over 10 percent of the State’s overall budget, was

16 unconstitutionally coercive and represented a “gun to the head.” Id. at 2604. The Executive Order

17 threatens to deny sanctuary jurisdictions all federal grants, hundreds of millions of dollars on

18 which the Counties rely. The threat is unconstitutionally coercive.

19

C. Tenth Amendment Violations

20

The Counties argue that Section 9(a) violates the Tenth Amendment because it attempts to

21 conscript states and local jurisdictions into carrying out federal immigration law. The Counties

22 are likely to succeed on this claim as well.

23

“The Federal Government may not compel the States to enact or administer a federal

24 regulatory program.” New York, 505 U.S. at 188. “The Federal Government may neither issue

25 directives requiring the States to address particular problems, nor command the States’ officers, or

26 those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz

27 v. United States, 521 U.S. 898, 935 (1997). “That is true whether Congress directly commands a

28 State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.” 39

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1 NFIB, 132 S. Ct. at 2602.

2

As discussed with regard to the Counties’ standing arguments, the Counties have

3 demonstrated that under their reasonable interpretation, the Order equates “sanctuary

4 jurisdictions” with “any jurisdiction that ignored or otherwise failed to honor any detainers” and

5 therefore places such jurisdictions at risk of losing all federal grants. See EO §9(b). The Counties

6 have shown that losing all of their federal grant funding would have significant effects on their

7 ability to provide services to their residents and that they may have no legitimate choice regarding

8 whether to accept the government’s conditions in exchange for those funds. To the extent the

9 Executive Order seeks to condition all federal grants on honoring civil detainer requests, it is

10 likely unconstitutional under the Tenth Amendment because it seeks to compel the states and local

11 jurisdictions to enforce a federal regulatory program through coercion.

12

Even if the Order does not condition federal grants on honoring detainer requests, it

13 certainly seeks to compel states and local jurisdictions to comply with civil detainers by directing

14 the Attorney General to “take appropriate enforcement action against any entity that violates 8

15 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the

16 enforcement of Federal law.” EO §9(a). Although the Order provides no further clarification on

17 what this “enforcement” might entail or what policies might “hinder[] the enforcement of Federal

18 law,” Attorney General Sessions, who is tasked with implementing this provision, has equated

19 failure to honor civil detainer requests with policies that “frustrate th[e] enforcement of

20 immigration laws.” See Sessions Press Conference at 2. Reading the Order in light of the

21 Attorney General’s public statements, it threatens “enforcement action” against any jurisdiction

22 that refuses to comply with detainer requests or otherwise fails to enforce federal immigration law.

23 While this threat of “enforcement” is left vague and unexplained, “enforcement” by its own

24 definition means to “compel[] compliance.” See BLACK’S LAW DICTIONARY 645 (10th ed. 2014)

25 (defining “enforcement” as “The act or process of compelling compliance with a law, mandate,

26 command, decree, or agreement.”) By seeking to compel states and local jurisdictions to honor

27 civil detainer requests by threatening enforcement action, the Executive Order violates the Tenth

28 Amendment’s provisions against conscription. 40

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1

The Supreme Court has repeatedly held that, “The Federal Government cannot compel the

2 States to enact or administer a federal regulatory program.” New York, 505 U.S. at 188. The

3 Government cannot command them to adopt certain policies, id. at 188, command them to carry

4 out federal programs, Printz, 521 U.S. at 935, or otherwise to “coerce them into adopting a federal

5 regulatory system as their own,” NFIB, 132 S. Ct. at 2602. The Executive Order uses coercive

6 means in an attempt to force states and local jurisdictions to honor civil detainer requests, which

7 are voluntary “requests” precisely because the federal government cannot command states to

8 comply with them under the Tenth Amendment. The Executive Order attempts to use coercive

9 methods to circumvent the Tenth Amendment’s direct prohibition against conscription. While the

10 federal government may incentivize states to adopt federal programs voluntarily, it cannot use

11 means that are so coercive as to compel their compliance. The Executive Order’s threat to pull all

12 federal grants from jurisdictions that refuse to honor detainer requests or to bring “enforcement

13 action” against them violates the Tenth Amendment’s prohibitions against commandeering.

14

D. Fifth Amendment Void for Vagueness

15

The Counties assert that the Executive Order is unconstitutionally vague in violation of the

16 Fifth Amendment’s Due Process Clause. A law is unconstitutionally vague and void under the

17 Fifth Amendment if it fails to make clear what conduct it prohibits and if it fails to lay out clear

18 standards for enforcement. See Gaynard v. City of Rockford, 408 U.S. 104, 108 (1972). To

19 satisfy due process we insist that laws (1) “give the person of ordinary intelligence a reasonable

20 opportunity to know what is prohibited, so that he may act accordingly” and (2) “provide explicit

21 standards for those who apply them.” Id. The Executive Order does not meet either of these

22 requirements.

23

The Executive Order does not make clear what conduct might subject a state or local

24 jurisdiction to defunding or enforcement action, making it impossible for jurisdictions to

25 determine how to modify their conduct, if at all, to avoid the Order’s penalties. The Order clearly

26 directs the Attorney General and Secretary to ensure that jurisdictions that “willfully refuse to

27 comply” with Section 1373, “sanctuary jurisdictions,” are not eligible to receive federal grants.

28 The Government repeatedly emphasizes in its briefing that it does not know what it means to 41

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United States District Court Northern District of California

1 “willfully refuse to comply” with Section 1373. See, SC Oppo. at 11. Past DOJ guidance and

2 various court cases interpreting Section 1373 have not reached consistent conclusions as to what

3 1373 requires. In the face of conflicting guidance, and no clear standard from the Government,

4 jurisdictions do not know how to avoid the Order’s defunding penalty.

5

Further, because the Order does not clearly define “sanctuary jurisdictions” the conduct

6 that will subject a jurisdiction to defunding under the Order is not fully outlined. This is further

7 complicated because the Order gives the Secretary unlimited discretion to make “sanctuary

8 jurisdiction” designations. But, at least as of two months ago, the Secretary himself stated that he

9 “do[esn’t] have a clue” how to define “sanctuary city.” Harris Decl. ex. D (Dep’t of Homeland

10 Sec., Pool Notes from Secretary Kelly’s Trip to San Diego, Feb. 10, 2017) at 3 (SC Dkt. No. 36-

11 4). If the Secretary has unbounded discretion to designate “sanctuary jurisdictions” but has no

12 idea how to define that term, states and local jurisdictions have no hope of deciphering what

13 conduct might result in an unfavorable “sanctuary jurisdiction” designation.

14

In addition, the Order directs the Attorney General to take “appropriate enforcement

15 action” against any jurisdiction that willfully refuses to comply with Section 1373 or otherwise

16 has a policy or practice that “hinders the enforcement of Federal law.” This provision vastly

17 expands the scope of the Order. What does it mean to “hinder” the enforcement of federal law?

18 What federal law is at issue: immigration laws? All federal laws? The Order offers no

19 clarification.

20

The Order also fails to provide clear standards to the Secretary and the Attorney General to

21 prevent “arbitrary and discriminatory enforcement.” Id. As discussed above, the Order gives the

22 Secretary discretion to designate jurisdictions as “sanctuary jurisdictions” to the extent consistent

23 with law. But there are no laws, besides the Order, outlining what a sanctuary jurisdiction is,

24 leaving the Secretary with unfettered discretion and the Order’s vague language to make

25 “sanctuary jurisdiction” designations. Similarly, the Order directs the Attorney General to take

26 “appropriate enforcement action” against any jurisdiction that “hinders the enforcement of Federal

27 law.” This expansive, standardless language creates huge potential for arbitrary and

28 discriminatory enforcement, leaving the Attorney General to figure out what “appropriate 42

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United States District Court Northern District of California

1 enforcement action” might entail and what policies and practices might “hinder[] the enforcement

2 of Federal law.” This language is “so standardless that it authorizes or encourages seriously

3 discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008).

4

The Order gives the Counties no clear guidance on how to comply with its provisions or

5 what penalties will result from non-compliance. Its standardless guidance and enforcement

6 provisions are also likely to result in arbitrary and discriminatory enforcement. It does not “give

7 the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he

8 may act accordingly.” Gaynard, 408 U.S. at 108. The Counties are likely to succeed in their

9 argument that Section 9(a) is void for vagueness under the Fifth Amendment.

10

E. Fifth Amendment Procedural Due Process Violations

11

The Counties assert that the Executive Order fails to provide them with procedural due

12 process in violation of the Fifth Amendment. To sustain a valid procedural due process claim a

13 person must demonstrate that he has a legally protectable property interest and that he has suffered

14 or will suffer a deprivation of that property without adequate process. See Thorton v. City of St.

15 Helens, 425 F.3d 1158, 1164 (9th Cir. 2005).

16

To have a legitimate property interest, a person “must have more than a unilateral

17 expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents v.

18 Roth, 408 U.S. 564, 577 (1972). A state or local government has a legitimate claim of entitlement

19 to congressionally appropriated funds, which are akin to funds owed on a contract. See NFIB, 132

20 S. Ct. at 2602 (“The legitimacy of Congress’ power to legislate under the spending power [] rests

21 on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ”). The

22 Counties have a legitimate property interest in federal funds that Congress has already

23 appropriated and that the Counties have accepted.

24

The Executive Order purports to make the Counties ineligible to receive these funds

25 through a discretionary and undefined process. The Order directs the Attorney General and

26 Secretary to designate various states and local jurisdictions as “sanctuary jurisdictions,” ensure

27 that such jurisdictions are “not eligible” to receive federal grants, and “take enforcement action”

28 against them. EO §9(a). It does not direct the Attorney General or Secretary to provide 43

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United States District Court Northern District of California

1 “sanctuary jurisdictions” with any notice of an unfavorable designation or impending cut to

2 funding. And it does not set up any administrative or judicial procedure for states and local

3 jurisdictions to be heard, to challenge enforcement action, or to appeal any action taken against

4 them under the Order. This complete lack of process violates the Fifth Amendment’s due process

5 requirements. Matthew v. Eldridge, 424 U.S. 319, 349 (1976) (“The essence of due process is the

6 requirement that a person in jeopardy of serious loss be given notice of the case against him and

7 opportunity to meet it.”) (internal alterations and quotations omitted).

8

The Government’s only defense of the Order’s lack of process is to claim that Section 9’s

9 provision that it be implemented “consistent with law” reads in all necessary procedural

10 requirements. Again, the Government’s attempt to resolve all of the Order’s constitutional

11 infirmities with a “consistent with law” bandage is not convincing. There is no dispute that while

12 the Order commands the Secretary to designate certain jurisdictions as ineligible for federal grants

13 and directs the Attorney General to bring an “enforcement action” against them, it provides no

14 process at all for notifying jurisdictions about such a determination and provides them no

15 opportunity to be heard. The Counties are likely to succeed on their claim that the Order fails to

16 provide adequate due process in violation of the Fifth Amendment.

17 III. IRREPARABLE HARM

18

The Counties assert that, absent an injunction enjoining Section 9, they are likely to suffer

19 irreparable harm resulting from their current budget uncertainty. Alternatively, they argue that

20 they are suffering a constitutional injury, as the Order improperly seeks to coerce them into

21 changing their policies in violation of the Tenth Amendment. The Counties have adequately

22 demonstrated that they are likely to suffer irreparable harm under both of these theories.

23

A. Budgetary Uncertainty

24

The Counties allege that they are currently suffering irreparable injury resulting from the

25 substantial uncertainty caused by the Order’s unclear terms and its broad and undefined scope. As

26 discussed above, this uncertainty is causing the Counties present injury sufficient to satisfy Article

27 III’s standing requirements. See discussion supra Section I.A.2.d.

28

This budget uncertainty is also causing the Counties irreparable harm, and it will continue

44

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United States District Court Northern District of California

1 to do so absent an injunction. The Order’s uncertainty interferes with the Counties’ ability to

2 budget, plan for the future, and properly serve their residents. Without clarification regarding the

3 Order’s scope or legality, the Counties will be obligated to take steps to mitigate the risk of losing

4 millions of dollars in federal funding, which will include placing funds in reserve and making cuts

5 to services. These mitigating steps will cause the Counties irreparable harm. See United States v.

6 North Carolina, 192 F. Supp. 3d 620, 629 (M.D.N.C. 2016) (there was irreparable harm where the

7 unavailability of funds was “likely to have an immediate impact on [the state’s] ability to provide

8 critical resources to the public, causing damage that would persist regardless of whether funding

9 [was] subsequently reinstated”).

10

Although Government counsel has represented that the Order will be implemented

11 consistent with law, this assurance is undermined by Section 9(a)’s clearly unconstitutional

12 directives. Further, through public statements, the President and Attorney General have appeared

13 to endorse the broadest reading of the Order. Is the Order merely a rhetorical device, as counsel

14 suggested at the hearing, or a “weapon” to defund the Counties and those who have implemented a

15 different law enforcement strategy than the Government currently believes is desirable? The

16 result of this schizophrenic approach to the Order is that the Counties’ worst fears are not allayed

17 and the Counties reasonably fear enforcement under the Order.

18

The Order’s broad directive and unclear terms, and the President’s and Attorney General’s

19 endorsement of them, has caused substantial confusion and justified fear among states and local

20 jurisdictions that they will lose all federal grant funding at the very least. The threat of the Order

21 and the uncertainty it is causing impermissibly interferes with the Counties’ ability to operate, to

22 provide key services, to plan for the future, and to budget. The Counties have established that,

23 absent an injunction, they are likely to suffer irreparable harm.

24

B. Constitutional Injury

25

The Counties also argue that they are likely to suffer irreparable harm because the

26 Executive Order contravenes the separation of powers, conscripts the Counties to carry out federal

27 immigration enforcement policies, and seeks to coerce the Counties into changing their local

28 policies by imposing overwhelming financial penalties without due process. This “constitutional 45

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United States District Court Northern District of California

1 injury” also constitutes irreparable harm.

2

The Ninth Circuit has repeatedly held that “the deprivation of constitutional rights

3 ‘unquestionably constitutes irreparable injury.’ ” Melendres v. Arpaio, 695 F.3d 990, 1002 (9th

4 Cir. 2012); Rodriguez v. Robbins, 715 F.3d 1127, 1144-45 (9th Cir. 2013). A plaintiff can suffer a

5 constitutional injury by being forced to comply with an unconstitutional law or else face financial

6 injury or enforcement action. See Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d

7 1046, 1058-59 (9th Cir. 2009) (plaintiffs were injured where they were faced with the choice of

8 signing unconstitutional agreements or facing a loss of customer goodwill and significant

9 business). The Supreme Court has similarly indicated that plaintiffs suffer irreparable injury

10 under such circumstances. See Morales v. Trans World Airlines, Inc., 504 U.S. 374, 380-381

11 (1992) (injunctive relief was available where “respondents were faced with a Hobson’s choice:

12 continually violate the Texas law and expose themselves to potentially huge liability; or violate

13 the law once as a test case and suffer the injury of obeying the law during the pendency of the

14 proceedings and any further review”). Where an executive action causes constitutional injuries,

15 injunctive relief is appropriate. See Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017)

16 (refusing to stay a preliminary injunction on Executive Order 13769 and reaffirming that a

17 “deprivation of constitutional rights unquestionably constitutes irreparable injury”).

18

The Counties currently must choose either to attempt to comply with the Executive Order,

19 which they have alleged is unconstitutional under the Constitution’s separation of powers

20 structures and violates their Tenth and Fifth Amendment rights, or to defy the Order and risk

21 losing hundreds of millions of dollars in federal grants. By forcing the Counties to make this

22 unreasonable choice, the Order results in a constitutional injury sufficient to establish standing and

23 irreparable harm.

24

The Government argues that while a “deprivation of constitutional rights unquestionably

25 constitutes irreparable injury,” the Counties have not alleged a “deprivation” of their constitutional

26 rights but have instead alleged a violation of the constitutional structures that govern relationships

27 among the branches of the Federal Government. It asserts that there is a distinction between

28 violations of personal constitutional rights and violations of structural provisions. See N.Y. State 46

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United States District Court Northern District of California

1 Rest. Ass’n v. N.Y. City Bd. of Health, 545 F. Supp. 2d 363, 367 (S.D.N.Y. 2008) (“[W]hile a

2 violation of constitutional rights can constitute per se irreparable harm . . . per se irreparable harm

3 is caused only by violations of ‘personal’ constitutional rights . . . to be distinguished from

4 provisions of the Constitution that serve ‘structural’ purposes, like the Supremacy Clause.”).

5

This argument fails for two reasons. First, this distinction between personal and structural

6 constitutional rights is not recognized in the Ninth Circuit. Although the Government cites to

7 American Trucking Ass’ns v. City of Los Angeles, 577 F. Supp. 2d 1110, 1127 (C.D. Cal. 2008) for

8 the proposition that “in the case of Supremacy Clause violations,” the presumption of irreparable

9 harm “is not necessarily warranted,” that case was reversed by the Ninth Circuit. On appeal the

10 court concluded that, even where the constitutional injury is structural, “the constitutional

11 violation alone, coupled with the damages incurred, can suffice to show irreparable harm.”

12 American Trucking, 559 F.3d at 1058. Second, the Counties have alleged a deprivation of their

13 personal constitutional rights; they have alleged that the Executive Order is unconstitutionally

14 coercive in violation of the Tenth Amendment and fails to provide them with Due Process in

15 violation of the Fifth Amendment. The Government’s challenges to the Counties’ claims of

16 constitutional injury are not supported by the facts of this case or the precedent that is binding on

17 this court.

18

The Counties have adequately demonstrated a constitutional injury sufficient to establish a

19 likelihood of irreparable harm.

20 IV. BALANCE OF HARMS AND PUBLIC INTEREST

21

A party seeking a preliminary injunction must “establish . . . that the balance of equities

22 tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20. When the

23 federal government is a party, these factors merge. Nken v. Holder, 556 U.S. 418, 435 (2009).

24

The Government argues that the balance of harms and the public interest weigh against a

25 preliminary injunction because the “most pertinent and concretely expressed public interest” in

26 this case is contained in Section 1373, and Section 9 simply seeks to ensure compliance with that

27 section. This argument is unconvincing given the Government’s flawed argument that Section 9

28 does not change the law. If Section 9 does not change the law, or if the Government does not 47

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United States District Court Northern District of California

1 intend to enforce Section 9’s unlawful directives, then it provides the Government with no

2 concrete benefit but to highlight the President’s enforcement priorities. The President certainly

3 has the right to use the bully pulpit to encourage his policies. But Section 9(a) is not simply

4 rhetorical. The Counties have a strong interest in avoiding unconstitutional federal enforcement

5 and the significant budget uncertainty that has resulted from the Order’s broad and threatening

6 language. To the extent the Government wishes to use all lawful means to enforce 8 U.S.C. 1373,

7 it does not need Section 9(a) to do so. The confusion caused by Section 9(a)’s facially

8 unconstitutional directives and its coercive effects weigh heavily against leaving it in place. The

9 balance of harms weighs in favor of an injunction.

10 V. 11

NATIONWIDE INJUNCTION The Government argues that, if an injunction is issued, it should be issued only with

12 regards to the plaintiffs and should not apply nationwide. But where a law is unconstitutional on

13 its face, and not simply in its application to certain plaintiffs, a nationwide injunction is

14 appropriate. See Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (“[T]he scope of injunctive

15 relief is dictated by the extent of the violation established, not by the geographical extent of the

16 plaintiff.”); Washington, 847 F.3d at 1166-67 (affirming nationwide injunction against executive

17 travel ban order). The Counties have demonstrated that they are likely to succeed on their claims

18 that the Executive Order purports to wield powers exclusive to Congress, and violates the Tenth

19 and Fifth Amendments. These constitutional violations are not limited to San Francisco or Santa

20 Clara, but apply equally to all states and local jurisdictions. Given the nationwide scope of the

21 Order, and its apparent constitutional flaws, a nationwide injunction is appropriate.

22 VI. INJUNCTION AGAINST THE PRESIDENT

23

The Government also argues that, if an injunction is issued, it should not issue against the

24 President. An injunction against the President personally is an “extraordinary measure not lightly

25 to be undertaken.” Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996); see Newdow v. Bush, 391

26 F. Supp. 2d 95, 106 (D.D.C. 2005) (“[T]he Supreme Court has sent a clear message that an

27 injunction should not be issued against the President for official acts.”). The Counties assert that

28 the court “has discretion to determine whether the constitutional violations in the Executive Order 48

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United States District Court Northern District of California

1 may be remedied by an injunction against the named inferior officers, or whether this is an

2 extraordinary circumstance where injunctive relief against the President himself is warranted.”

3

I conclude that an injunction against the President is not appropriate. The Counties seek to

4 enjoin the Executive Order which directs the Attorney General and the Secretary to carry out the

5 provisions of Section 9. The President has no role in implementing Section 9. It is not clear how

6 an injunction against the President would remedy the constitutional violations the Counties have

7 alleged. On these facts, the extraordinary remedy of enjoining the President himself is not

8 appropriate.

9

CONCLUSION

10

The Counties have demonstrated that they are likely to succeed on the merits of their

11 challenge to Section 9(a) of the Executive Order, that they will suffer irreparable harm absent an

12 injunction, and that the balance of harms and public interest weigh in their favor. The Counties’

13 motions for a nationwide preliminary injunction, enjoining enforcement of Section 9(a), are

14 GRANTED. The defendants (other than the President) are enjoined from enforcing Section 9(a)

15 of the Executive Order against jurisdictions they deem as sanctuary jurisdictions. This injunction

16 does not impact the Government’s ability to use lawful means to enforce existing conditions of

17 federal grants or 8 U.S.C. 1373, nor does it restrict the Secretary from developing regulations or

18 preparing guidance on designating a jurisdiction as a “sanctuary jurisdiction.”

19

IT IS SO ORDERED.

20 Dated: April 25, 2017

21

22

23

William H. Orrick United States District Judge

24

25

26

27

28 49

 
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United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 COUNTY OF SANTA CLARA,

8

Plaintiff,

9

v.

10 DONALD J. TRUMP, et al.,

11

Defendants.

Case No. 17-cv-00574-WHO
ORDER DENYING MOTION TO INTERVENE Re: Dkt. No. 43

12

INTRODUCTION

13

The Young Women’s Christian Association of Silicon Valley (“YWCA”) has moved to

14 intervene in this case as a permissive intervenor. Motion to Intervene (“Mot.”) (Dkt. No. 43).

15 YWCA’s participation as a party is not necessary to fully develop the factual and legal issues in

16 this case, so I decline to grant the motion to intervene.

17

LEGAL STANDARD

18

Under Ninth Circuit precedent, a party must satisfy three threshold elements for a court to

19 grant permissive intervention under Rule 24(b): (1) the moving party must have an independent

20 ground for jurisdiction; (2) it must bring a timely motion; and (3) it must demonstrate that it “has a

21 claim or defense that shares with the main action a common question of law or fact.” Blum v.

22 Merrill Lynch Pierce Fenner & Smith, Inc., 712 F.3d 1349, 1353 (9th Cir. 2013) (citing Fed. R.

23 Civ. P. 24(b)(1)). If these elements are met, the court may grant permissive intervention at its

24 discretion. Id.

25

DISCUSSION

26

YWCA is a non-profit organization, located in San Jose, California, that provides critical

27 services to vulnerable women in Silicon Valley, including victims of domestic violence, sexual

28 assault, and human trafficking. YWCA Complaint ¶ 18 (Dkt. No. 43-2). YWCA has an annual

Case 3:17-cv-00574-WHO Document 109 Filed 05/22/17 Page 2 of 3

United States District Court Northern District of California

1 budget of approximately $7.07 million, 37.5 percent of which it receives through federal funds.

2 Id. ¶ 30. It receives these federal funds through the County of Santa Clara, the City of San Jose,

3 and the State of California. Id. ¶¶ 30-40. It asserts that, as a result of Executive Order 13768, it

4 faces a potential loss of funds should any of those three jurisdictions be deemed a “sanctuary

5 jurisdiction” and ineligible for federal funds. Id.

6

YWCA asserts that it meets the three threshold requirements for permissive intervention

7 and asks this court to exercise its discretion and allow it to intervene in this case. Because I am

8 exercising my discretion to decline to allow YWCA to intervene in this case, I do not address

9 whether it meets the threshold requirements for permissive intervention.

10

YWCA identifies three reasons why it is differently situated from the County of Santa

11 Clara and would therefore contribute to this case as an intervenor: (1) it is exposed to a loss of

12 funds from three separate streams of federal funding such that, even if Santa Clara’s claims were

13 resolved, the threat to YWCA would remain; (2) YWCA is effectively collateral damage as the

14 potential that it might lose funds is unrelated to any policy or practice that YWCA might enact;

15 and (3) unlike a governmental jurisdiction, it has no ability to enter into discussions with the

16 federal government in order to modify or avoid an impending “sanctuary” designation. Mot. at

17 10.

18

I am not persuaded that these issues weigh in favor of granting YWCA’s motion to

19 intervene. Similar to YWCA, the County of Santa Clara not only receives federal funding directly

20 from the federal government but also receives pass-through funds through the State of California.

21 Therefore, just like YWCA, Santa Clara potentially faces a loss of funds even if it is not deemed a

22 sanctuary jurisdiction. Further, just like YWCA, Santa Clara faces the potential of being

23 “collateral damage” in a dispute between the federal government and California. And, like

24 YWCA, Santa Clara is unable to enter into discussions with the federal government in order to

25 modify or avoid California receiving a “sanctuary” designation. To the extent YWCA seeks to

26 represent the interests of an entity that receives pass-through funds from a governmental body,

27 Santa Clara seems well-situated to represent those interests.

28

Because it does not appear that YWCA’s participation as a party would offer substantial

2

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United States District Court Northern District of California

1 assistance in developing the factual or legal issues in this case, YWCA’s motion to intervene as a

2 permissive intervenor is DENIED. In assessing the issues raised in the previously pending motion

3 for a preliminary injunction, I considered the arguments and interests YWCA raised in its briefing

4 along with those raised by the many amici. YWCA is welcome to participate as an amicus in this

5 case if further amicus briefing is appropriate.

6

CONCLUSION

7

For the reasons outlined above YWCA’s motion to intervene is DENIED.

8

IT IS SO ORDERED.

9 Dated: May 22, 2017

10

11

12

William H. Orrick United States District Judge

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 3

 
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United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 COUNTY OF SANTA CLARA,

8

Plaintiff,

9

v.

10 DONALD J. TRUMP, et al.,

11

Defendants.

ORDER GRANTING MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION
Case No. 17-cv-00574-WHO

12 CITY AND COUNTY OF SAN
13 FRANCISCO,

14

Plaintiff,

15

v.

16 DONALD J. TRUMP, et al.,

17

Defendants.

Case No. 17-cv-00485-WHO

18

19

On May 22, 2017 the government moved for leave to file a Motion for Reconsideration or,

20 in the Alternative, Clarification of the Court’s Order of April 25, 2017. Motion for Leave (Mot.)

21 (SF Dkt. No. 102) (SC Dkt. No. 108). The Motion for Leave and Motion for Reconsideration are

22 brought on the basis of a new memorandum released by Attorney General Sessions on May 22,

23 2017, outlining the Department of Justice’s official interpretation of Executive Order 13768. See

24 AG Memo (SF Dkt. No. 102-1) (SC Dkt. No. 108-1). The government has requested an

25 immediate ruling on its Motion for Leave as a result of a procedural complication. Under Ninth

26 Circuit precedent, filing a timely motion for reconsideration would toll the government’s time to

27 appeal the court’s preliminary injunction order of April 25, 2017. Under Federal Rule 59(e) such

28 a motion must be brought within 28 days of the ruling – in this case May 23, 2017. Fed. R. Civ. P.

Case 3:17-cv-00574-WHO Document 112 Filed 05/23/17 Page 2 of 2

United States District Court Northern District of California

1 59(e). However, under Civil Local Rule 7-9 a party wishing to file a motion for reconsideration in

2 this district must obtain leave of court before doing so. Civ. L.R. 7-9(a). It is not clear that filing

3 a motion for leave, rather than a motion for reconsideration, would similarly toll the time for

4 appeal under Ninth Circuit precedent. See Mot. at 2 n.1.

5

The City and County of San Francisco and the County of Santa Clara oppose the Motion

6 for Leave, asserting that the government was not diligent in bringing the motion and has failed to

7 demonstrate a material change in facts or law. They also assert that the government’s request for

8 an immediate ruling is an “emergency of [its] own making” because it delayed in releasing the AG

9 memorandum. The Counties assert that because the motion for leave was only filed yesterday

10 evening they have not had a meaningful opportunity to oppose it and the court has not had a

11 meaningful opportunity to consider it.

12

I am reluctant to reach a substantive decision on the government’s Motion for Leave on

13 such short notice. I agree with the Counties that the government’s timing issue is largely an

14 “emergency of [its] own making.” But I am more reluctant to create a procedural ambiguity

15 regarding the tolling issue the government has identified simply because it failed to provide me

16 with sufficient time to consider the government’s motion. As a result I will GRANT the

17 government’s Motion for Leave to avoid this procedural complication and deem the government’s

18 Motions for Reconsideration, (SF Dkt. No. 102-2) and (SC Dkt. No. 108-2), filed today, May 23,

19 2017. The Counties may file their oppositions to the motions in two weeks in accordance with the

20 Local Rules. I will consider the issues raised in the Counties’ short oppositions regarding

21 diligence and material change of fact when evaluating the merits of the government’s motion for

22 reconsideration.

23

IT IS SO ORDERED.

24 Dated: May 23, 2017

25

26

27

William H. Orrick United States District Judge

28

2

 
 Case 3:17-cv-00574-WHO Document 113 Filed 05/23/17 Page 1 of 37

1 CHAD A. READLER

Acting Assistant Attorney General
2 BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

STEPHEN J. BUCKINGHAM (Md. Bar)
5 Special Counsel

6

W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel

7 Department of Justice, Room 7210
Civil Division, Federal Programs Branch

8 Post Office Box 883

Washington, D.C. 20044
9 Telephone: (202) 514-3495

10

Facsimile: E-mail:

(202) 616-8470 scott.simpson@usdoj.gov

11 COUNSEL FOR DEFENDANTS
DONALD J. TRUMP, President of the

12 United States; JOHN F. KELLY, Secretary of

Homeland Security; JEFFERSON B.
13 SESSIONS, III, Attorney General of

14

the United States; MICK MULVANEY, Director of the Office of Management and

15 Budget

16

IN THE UNITED STATES DISTRICT COURT

17

FOR THE NORTHERN DISTRICT OF CALIFORNIA

18

SAN FRANCISCO DIVISION

19
COUNTY OF SANTA CLARA,

20

Plaintiff,

21

v.

22 DONALD J. TRUMP, et al.,
23
Defendants.
24

25

No. 3:17-cv-00574-WHO
DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, CLARIFICATION OF THE COURT’S ORDER OF APRIL 25, 2017; MEMORANDUM OF POINTS AND AUTHORITIES

26

27

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1

TABLE OF CONTENTS

2
NOTICE OF MOTION ................................................................................................................... 1
3

4 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1

5
INTRODUCTION .......................................................................................................................... 1
6

7 ISSUES PRESENTED.................................................................................................................... 2

8
BACKGROUND ............................................................................................................................ 3
9

10 ARGUMENT .................................................................................................................................. 7

11

I. The AG Memorandum Provides a Basis for the Court

to Reconsider Its Justiciability Determination ........................................................ 8

12

II. The AG Memorandum Provides a Basis for the Court to Reconsider

13

Its Determination that the Plaintiff is Likely to Succeed

on the Merits of Its Claims.................................................................................... 12

14

A. The AG Memorandum Alleviates the Court’s Separation

15

of Powers Concerns .................................................................................. 13

16

B. The AG Memorandum Alleviates the Court’s Spending

Clause Concerns........................................................................................ 14

17

C. The AG Memorandum Alleviates the Court’s Tenth

18

Amendment Concerns ............................................................................... 16

19

D. The AG Memorandum Alleviates the Court’s Vagueness Concerns........ 17

20

E. The AG Memorandum Alleviates the Court’s Due Process

Clause Concerns........................................................................................ 19

21

III. The Injunction Should Not Restrict Defendants’ Independent

22

Authority to Impose Conditions on Grant Programming...................................... 20

23 CONCLUSION ............................................................................................................................. 21

24

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1

TABLE OF AUTHORITIES

2

3 CASES

4

Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002) ............................................................................................................... 4, 9, 14, 18

5 De La Torre v. CashCall, Inc., 56 F. Supp. 3d 1105 (N.D. Cal. 2014) ........................................... 7

6 DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275 (D.C. Cir. 1989).................................................. 6, 13

7 Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) ..................................................................... 15

8 Gaynard v. City of Rockford, 408 U.S. 104 (1972) ....................................................................... 18

9 Morton v. Ruiz, 415 U.S. 199 (1974) ............................................................................................... 6

10 Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ....................................................... 15

11 Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255 (9th Cir. 1993) ................... 7

12 S. Dakota v. Dole, 483 U.S. 203 (1987)................................................................................... 11, 17

13 Thornton v. City of Helens, 425 F.3d 1158 (9th Cir. 2005) ........................................................... 19

14

15 STATUTES

16 8 U.S.C. § 1103(c)(1) ....................................................................................................................... 5

17 8 U.S.C. § 1373 ....................................................................................................................... passim

18 42 U.S.C. § 3712(a) ......................................................................................................................... 7

19 42 U.S.C. § 3712(a)(6) ..................................................................................................................... 6

20 42 U.S.C. § 3752(a)(5)(D) ............................................................................................................... 6

21
REGULATIONS
22
2 C.F.R. § 200.207(a)....................................................................................................................... 7
23
2 C.F.R. § 2800.101 ......................................................................................................................... 7
24
28 C.F.R. § 0.5(c)............................................................................................................................. 5
25

26 EXECUTIVE ORDERS

27 Exec. Order 13,536, 76 Fed. Reg. 3,821 (Jan. 18, 2011) ............................................................... 10

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1 Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. passim

2 Exec. Order No. 13,768, § 9, 82 Fed. Reg. 8,799 (Jan. 30, 2017) .......................................... passim

3 Exec. Order No. 13,768, § 10(a), 82 Fed. Reg. 8,799 (Jan. 30, 2017)............................................. 9

4
OTHER AUTHORITIES
5
2015 COPS Hiring Program Fact Sheet, DOJ Community Oriented Policing Services .............. 13
6
2016 COPS Hiring Program Fact Sheet, DOJ Community Oriented Policing Services .............. 13
7
Ltr. from Peter J. Kadzik, Asst. Att’y Gen. U.S. Dep’t of Justice, to Hon.
8 John A. Culberson, Chairman for the Subcomm. on Commerce, Justice,
Sci. & Related Agencies (Jul. 7, 2016) ............................................................................................ 7
9
Mem. from DHS Sec’y Jeh Johnson to Acting Dir. U.S. Immigration &
10 Customs Enforcement Thomas Winkowski, et al. (Nov. 20, 2014) ............................................... 9

11 Mem. from the Attorney General for All Department Grant-Making
Components (May 22, 2017) .................................................................................................. passim
12
Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from
13 the Office of Legal Counsel, 52 Admin. L. Rev. 1303 (2000) ......................................................... 5

14

15

16

17

18

19

20

21

22

23

24

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1

NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OR, IN THE

2

ALTERNATIVE, FOR CLARIFICATION

3

PLEASE TAKE NOTICE that defendants hereby move for reconsideration or, in the

4 alternative, for clarification of the Court’s Order of April 25, 2017, granting plaintiff’s motion for

5 preliminary injunction (Doc. 98). This motion is based on the following Memorandum of Points

6 and Authorities, the evidence and records on file in this action, and any other written or oral

7 evidence or argument that may be presented at or before the time this motion is heard.

8

MEMORANDUM OF POINTS AND AUTHORITIES

9

INTRODUCTION

10

On May 22, 2017, the Attorney General issued a Memorandum (“AG Memorandum”)

11 concerning the implementation of Executive Order 13,768. See AG Mem. at 1 (Attachment 1

12 hereto); Exec. Order No. 13,768 (“Executive Order”), 82 Fed. Reg. 8,799-8,803 (Jan. 30, 2017).

13 The AG Memorandum sets forth the Attorney General’s conclusive interpretation of the scope of

14 the grant-eligibility provision in Section 9(a) of the Executive Order. The Memorandum provides

15 (1) that the grant-eligibility provision applies “solely to federal grants administered by the

16 Department of Justice or the Department of Homeland Security [“DHS”], and not to other sources

17 of federal funding[,]” (2) that the Department of Justice (“DOJ”) will require jurisdictions

18 applying for certain DOJ-administered grants “to certify their compliance with federal law,

19 including 8 U.S.C. § 1373,” and (3) that only “jurisdiction[s] that fail[] to certify compliance with

20 section 1373 will be ineligible to receive [an] award[].” AG Mem. at 1-2. The AG Memorandum

21 provides the decisive interpretation of the administration, and it reaffirms the representations

22 made by government counsel at oral argument that the grant-eligibility provision applies only to

23 federal grant programs administered by DOJ or DHS that contain terms that expressly obligate a

24 grant applicant or recipient to certify of compliance with 8 U.S.C. § 1373. See Tr. of Oral Arg. at

25 24:4-6, County of Santa Clara v. Trump, No. 3:17-cv-00574 (N.D. Cal. Apr. 14, 2017).

26

The authoritative position set forth in the AG Memorandum squarely contradicts the

27 Court’s determination, which was based in part on non-binding press statements and public

28 speeches, that the grant-eligibility provision “attempts to reach all federal grants[.]” Order of

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1 Apr. 25, 2017 at 2-3 (Doc. 98). That finding, in turn, served as the foundation for the Court’s

2 analysis of the justiciability of plaintiff’s claims and the Court’s conclusions regarding the

3 constitutional infirmity of the Executive Order. However, because the Attorney General has now

4 issued binding guidance that undermines many of the factual bases supporting the Court’s

5 opinion, including the Court’s interpretation of press statements and public speeches, defendants

6 respectfully request that the Court reconsider its holding in light of the recently-issued

7 Memorandum.

8

Should the Court determine that an injunction remains appropriate despite the issuance of

9 the AG Memorandum, defendants respectfully seek clarification regarding the scope of the

10 injunction. The Court’s Order provides that defendants may “use lawful means to enforce

11 existing conditions of federal grants or 8 U.S.C. 1373.” Id. at 49 (emphasis added). Defendants

12 do not interpret the Court’s Order as prohibiting defendants from imposing additional conditions

13 on grant programming for future federal grant awards pursuant to the direction contained in

14 Section 9(a), where defendants are legally authorized to do so under authority that exists

15 independent of the Executive Order. Nevertheless, out of an abundance of caution, in the event

16 the Court determines to maintain the injunction currently in place in this matter, defendants

17 respectfully seek confirmation that DOJ and DHS are not enjoined from imposing conditions on

18 grant programs administered by those agencies where such conditions are permissible under

19 independent legal authority.

20

ISSUES PRESENTED

21

1. Whether the Court should reconsider its entry of injunctive relief in light of recently

22 issued authority concerning the scope of the Executive Order.

23

2. Whether, in the event the Court determines that injunctive relief remains appropriate,

24 the Court should nevertheless clarify the scope of its Order to specify that DOJ and DHS are not

25 enjoined from including conditions on DOJ and DHS-administered grant programs pursuant to

26 legal authority that exists independent of the Executive Order.

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1

BACKGROUND

2

On February 23, 2017, the County of Santa Clara (“County”) moved for a preliminary

3 injunction to prevent the implementation of Section 9(a) of the Executive Order (Doc. 26).

4 Section 9(a) provides, in relevant part, that the Attorney General and the Secretary of Homeland

5 Security (“Secretary”), “in their discretion and to the extent consistent with law, shall ensure that

6 jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 . . . are not eligible to receive

7 Federal grants[.]” Exec. Order 13,768, § 9(a). Despite the fact that the grant-eligibility provision

8 of Section 9(a) is directed solely to the Attorney General and the Secretary, the County had urged

9 an expansive reading of that provision, arguing that it applied to the entirety of the Executive

10 Branch. Specifically, plaintiff contended that the Order “must” be interpreted as applying to “all

11 federal funds, whatever their source” (Doc. 26 at 4 n.4).

12

At oral argument on the motion for preliminary injunction, the government stated that,

13 because the grant-eligibility provision of Section 9(a) directs action only by the Department of

14 Justice or the Department of Homeland Security, that provision only applied to grants adminis-

15 tered by DOJ or DHS. The government further stated that, consistent with governing authority

16 and past practice, DHS or DOJ would only take adverse action against a grant recipient for failure

17 to comply with Section 1373 where the terms of the grant program expressly required such

18 compliance. See Tr. of Oral Arg. at 24:4-6; see also Order of Apr. 25, 2017 at 13 (summarizing

19 the government’s position). The government further stated that only three grant programs, all of

20 which are administered by DOJ, currently identify Section 1373 as an applicable federal law with

21 which grantees are required to comply. See, e.g., Tr. of Oral Arg. at 35:2-9. The government

22 acknowledged, however, that “[g]oing forward . . . DOJ and, potentially, DHS” may choose to

23 include similar conditions in their grant-eligibility terms, where authorized to do so, and that, in

24 all cases, those conditions “will be known to the [grantee]” in advance of the grantee’s decision to

25 participate in the grant program. Id. at 25:14-16.

26

On April 25, 2017, the Court granted plaintiff’s motion and enjoined the defendants (other

27 than the President) “from enforcing Section 9(a) of the Executive Order against jurisdictions they

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1 deem as sanctuary jurisdictions.” Order of Apr. 25, 2017 at 49. The Court made clear, however,

2 that defendants may “use lawful means to enforce existing conditions of federal grants or 8

3 U.S.C. 1373.” Id.1 The Court found injunctive relief appropriate because, like the plaintiff, it

4 interpreted the grant-eligibility provision of Section 9(a) as referring to “all federal grants[.]” Id.

5 at 3 (emphasis added). In reaching that interpretation, the Court relied heavily on public

6 comments by the President, the White House Press Secretary, and the Attorney General to

7 conclude that “Section 9(a) is not reasonably susceptible to the new, narrow interpretation offered

8 at the hearing.” Id. Based on its broad interpretation of Section 9(a), the Court held that the

9 County’s claims were justiciable and that the provisions of Section 9(a) violated a variety of

10 constitutional doctrines. See generally id. at 49.

11

The AG Memorandum sets forth in a formal, conclusive manner the administration’s

12 interpretation of the scope of the grant-eligibility provision of Section 9(a). The Memorandum

13 specifies that the Executive Order does not “purport to expand the existing statutory or constitu-

14 tional authority of the Attorney General and the Secretary of Homeland Security in any respect,”

15 but rather instructs those officials to take certain action, “to the extent consistent with the law.”

16 AG Mem. at 2; see Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 33 (D.C.

17 Cir. 2002) (noting that the President is merely wielding his “supervisory authority over the

18 Executive Branch” where he “directs his subordinates” to take certain action “but only ‘[t]o the

19 extent permitted by law’”). The AG Memorandum further clarifies that the grant-eligibility

20 provision is limited “solely to federal grants administered by [DOJ] or [DHS],” and to grants

21 requiring the applicant to “certify . . . compliance with federal law, including 8 U.S.C. § 1373, as

22 a condition for receiving an award.” AG Mem. at 1, 2. Only “jurisdiction[s] that fail[] to certify

23 compliance with [8 U.S.C. § 1373] will be ineligible to receive [an] award[]” pursuant to the

24

25

1As mentioned, the Court has only enjoined defendants (other than the President) from

“enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary

26 jurisdictions.” Order of Apr. 25, 2017 at 49. It has not limited defendants’ ability to use “lawful

means [of] enforc[ing]” federal law, id., and defendants do not understand the Court’s Order as
27 precluding their ability to utilize legal authority independent of the Executive Order to initiate

28

legal proceedings or advance defendants’ law enforcement priorities. 4

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1 grant-eligibility provision. Id. In other words, the provision applies only in instances in which an

2 applicant or grant recipient has had the choice either to certify compliance with 8 U.S.C. § 1373

3 as an express condition of eligibility to participate in a certain grant program, or to refuse to

4 certify compliance and thereby render itself ineligible to participate in the grant program. The

5 AG Memorandum also makes clear that, with respect to Section 1373 compliance conditions,

6 DOJ and DHS may impose such conditions only pursuant to the exercise of “existing statutory or

7 constitutional authority,” and only where “grantees will receive notice of their obligation to

8 comply with section 1373.” AG Mem. at 2.

9

The interpretation set forth in the AG Memorandum is conclusive here. Section 9(a) of

10 the Executive Order directs only two officials, the Attorney General and the Secretary of

11 Homeland Security, to implement its provisions, and the Attorney General has now clarified that

12 he does not interpret the challenged portion of the Executive Order as applying to grant programs

13 administered by agencies other than DOJ and DHS. Moreover, by longstanding tradition and

14 practice, the Attorney General’s legal opinions are treated as authoritative by the heads of

15 executive agencies. See, e.g., Tenaska Washington Partners II, L.P. v. United States, 34 Fed. Cl.

16 434, 439 (1995); Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from

17 the Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1319-20 (2000). The Attorney General has

18 a statutory duty to advise executive department heads on “questions of law,” 28 U.S.C. § 512, and

19 furnishes formal legal opinions to executive agencies, 28 C.F.R. § 0.5(c). And although the

20 Secretary of Homeland Security principally administers the immigration laws, the Immigration

21 and Nationality Act provides that a “determination and ruling by the Attorney General with

22 respect to all questions of law shall be controlling.” 8 U.S.C. § 1103(c)(1). The AG Memoran-

23 dum thus conclusively establishes that section 9(a) is limited to grant programs administered by

24 DOJ or DHS. Moreover, the AG Memorandum sets forth clear and consistent guidance for the

25 applicable components of DOJ as to the parameters of the grant-eligibility provision.

26

In addition to setting forth the authoritative interpretation of the grant-eligibility provision

27 of section 9(a), the Attorney General also recognized that, “[s]eparate and apart from the

28

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1 Executive Order, statutes may authorize the Department to tailor grants or to impose additional

2 conditions on grantees to advance the Department’s law enforcement priorities.” AG Mem. at 2.

3 Pursuant to those authorities, administrations have historically focused federal resources on

4 addressing concerns of high priority, such as homeland security, violent crime, domestic violence,

5 or immigration. As this Court recognized in its Order, “Congress can delegate some discretion to

6 the President to decide how to spend appropriated funds” so long as any such “delegation and

7 discretion is cabined” by relevant constitutional boundaries. See Order of Apr. 25, 2017 at 36;

8 see Tr. of Oral Arg. at 34:4-8; see also DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275, 280-81 (D.C.

9 Cir. 1989) (upholding conditions on spending imposed by the Executive where the underlying

10 statute unambiguously authorized the Executive to set certain “terms and conditions as he may

11 determine”).

12

Many of the spending statutes governing DOJ or DHS, including those that authorize

13 particular grant programs or that otherwise govern the spending powers of the agency, allow for

14 those agencies to impose certain conditions on certain federal grant programs they administer.

15 See, e.g., 42 U.S.C. § 3712(a)(6) (authorizing certain DOJ officials to place “special conditions”

16 on particular grants); Morton v. Ruiz, 415 U.S. 199, 230 (1974) (finding that, in certain instances,

17 such as where a congressional appropriation is insufficient to carry out its purpose, the agency

18 administering the program is deemed authorized “to create reasonable classifications and

19 eligibility requirements in order to allocate the limited funds available”). For example, the statute

20 authorizing the Edward Byrne Memorial Justice Assistance Grant program (“JAG”), which is

21 administered by DOJ’s Office of Justice Programs (“OJP”), requires grant applicants to certify to

22 the Attorney General that they “comply with all provisions of this part and all other applicable

23 Federal laws.” 42 U.S.C. § 3752(a)(5)(D). That statutory provision allows the Attorney General

24 the discretion to determine whether a particular federal law is “applicable” to the receipt of a JAG

25 award. Additionally, a provision of OJP’s organic statute authorizes the head of OJP to “exercise

26 such other powers and functions as may be vested in [him or her] pursuant to this chapter or by

27 delegation of the Attorney General, including placing special conditions on all grants, and

28

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1 determining priority purposes for formula grants.” Id. § 3712(a) (emphasis added).2 Pursuant to

2 those statutory authorities, since 2016, DOJ has identified Section 1373 as federal law applicable

3 to the JAG program. See generally Order of Apr. 25, 2017 at 6 (citing Ltr. from Peter J. Kadzik,

4 Asst. Att’y Gen. U.S. Dep’t of Justice, to Hon. John A. Culberson, Chairman for the Subcomm.

5 on Commerce, Justice, Sci. & Related Agencies (Jul. 7, 2016)); see also Declaration of Ralph

6 Martin ¶ 17 (Attachment 2 hereto). Thus, consistent with the Court’s Order, the AG

7 Memorandum acknowledges, as defendants’ counsel did at oral argument, that going forward,

8 where legally authorized, defendants “may seek to tailor grants to promote a lawful system of

9 immigration.” AG Mem. at 2.

10

ARGUMENT

11

“A district court has inherent jurisdiction to modify, alter, or revoke a prior order.” De La

12 Torre v. CashCall, Inc., 56 F. Supp. 3d 1105, 1107 (N.D. Cal. 2014). The Ninth Circuit has held

13 that “[r]econsideration is appropriate if the district court (1) is presented with newly discovered

14 evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is

15 an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS,

16 Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Under this Court’s Civil Local Rule 7-9(b), a motion for

17 reconsideration may be proper where, for example, “a material difference in fact or law exists

18 from that which was presented to the Court before entry of the interlocutory order for which

19 reconsideration is sought.” The AG Memorandum constitutes a material difference in controlling

20 authority. As explained in more detail below, that Memorandum eliminates many of the

21 conclusions that served as the foundation for the Court’s decision to grant plaintiff’s motion for

22 preliminary injunction. Accordingly, defendants respectfully request that the Court reconsider its

23 decision in light of the guidance contained in the AG Memorandum.

24

25

26

2 Similarly, DOJ regulations provide for the imposition of “additional specific award

conditions” under certain circumstances, such as where “an applicant or recipient has a history of
27 failure to comply with the general or specific terms and conditions of a Federal award.” See 2

28

C.F.R. § 2800.101 (adopting, inter alia, 2 C.F.R. § 200.207(a)). 7

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1
I.
2

The AG Memorandum Provides a Basis for the Court to Reconsider Its Justiciability Determination

3

The AG Memorandum expressly contradicts many of the conclusions underlying the

4 Court’s decision regarding the justiciability of plaintiff’s claims. Contrary to those conclusions,

5 the Memorandum makes clear that the grant-eligibility provision in Section 9(a) of the Executive

6 Order applies only to grant programs administered by DOJ or DHS and, with respect to DOJ

7 grants, only to those programs where explicit terms condition eligibility on certification of

8 compliance with 8 U.S.C. § 1373. See AG Mem. at 1-2. Because the AG Memorandum’s

9 clarification of the scope of the grant-eligibility provision conflicts with several bases essential to

10 the Court’s justiciability determination, the Court should reconsider that determination in light of

11 the position set forth in the Memorandum, which are binding on the relevant Executive Branch

12 officials.

13

In determining that the County had established the justiciability of its claims, the Court

14 first found that the grant-eligibility provision of Section 9(a) improperly attempted to effectuate a

15 change in the law because that provision “purport[ed] to delegate to the Attorney General and the

16 Secretary the authority to place a new condition on federal grants,” in contravention of the

17 Constitution, and because the Order did not explicitly limit its scope to grants administered by

18 DHS or DOJ. Order of Apr. 25, 2017 at 14-15. The Court reasoned that a contrary reading of the

19 Executive Order – one that simply required the Attorney General and the Secretary to use their

20 existing statutory authority to enforce the President’s policies – rendered the Order “legally

21 meaningless” and was thus “clearly inconsistent with the Order’s broad intent.” Id. at 15.

22

The AG Memorandum contradicts those determinations. As the Memorandum makes

23 clear, for example, the purpose of the Executive Order was to “establish[] immigration enforce-

24 ment as a priority for this Administration,” not to direct the Attorney General or the Secretary to

25 act ultra vires. See AG Mem. at 1. Far from being “legally meaningless,” the Executive Order

26 represents a dramatic departure from the prior administration’s policy of non-enforcement of

27 certain immigration programs. Compare, e.g., Mem. from DHS Sec’y Jeh Johnson to Acting Dir.

28

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1 U.S. Immigration & Customs Enforcement Thomas Winkowski, et al. (Nov. 20, 2014)

2 (explaining that the “Secure Communities” program will be discontinued), available at

3 https://www.dhs.gov/ sites/ default/ files/ publications/14_1120_memo_secure_communities.pdf,

4 with Exec. Order 13,768, § 10(a) (“The Secretary shall immediately take all appropriate action to

5 terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the

6 Secretary on November 20, 2014, and to reinstitute the immigration program known as “Secure

7 Communities.”). The Executive Order thus “ensure[s] that our Nation’s immigration laws are

8 faithfully executed,” see Exec. Order 13,768 at 1, and directs the appropriate executive officials

9 to prioritize, to the fullest extent of the law, means for achieving that priority. Those means may

10 include, for example, more aggressive enforcement of existing grant conditions, or, as the AG

11 Memorandum suggests, tailoring future grant awards in a manner that promotes the

12 administration’s law enforcement priorities. See AG Mem. at 2.

13

What is more, as the AG Memorandum recognizes, the Executive Order itself provides

14 that the Attorney General and the Secretary are only to enforce the Order “to the extent permitted

15 by law.” Exec. Order 13,768, § 9(a). In this respect, the Order is analogous to orders issued by

16 past administrations that set forth specific executive priorities and directed the manner in which

17 federal agencies might implement those priorities, “to the extent permitted by law.” In Building

18 & Construction Trades Department, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002), for

19 example, the President had issued an executive order providing that, “[t]o the extent permitted by

20 law,” no federal agency or entity receiving federal assistance for a construction project could

21 require contractors to enter into a project labor agreement or prohibit them from doing so. Id. at

22 30. Plaintiffs challenged the facial validity of the order. The district court enjoined its

23 enforcement, finding that it was beyond the President’s authority and violated the National Labor

24 Relations Act. Id. at 31. The D.C. Circuit reversed, holding that, in the “faithful execution of the

25 laws,” the President may “provide guidance and supervision to his subordinates” and may instruct

26 his subordinates to follow that guidance only “to the extent permitted by law.” Id. at 32-33.

27 “Thus,” the court observed, “if an executive agency … may lawfully implement the Executive

28

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1 Order, then it must do so; if the agency is prohibited, by statute or other law, from implementing

2 the Executive Order, then the Executive Order itself instructs the agency to follow the law.” Id.

3 at 33; see Exec. Order 13,536, 76 Fed. Reg. 3,821-3,823 (Jan. 18, 2011) (reaffirming as a policy

4 priority certain principles of contemporary regulatory review and directing agencies “to the extent

5 permitted by law” to take steps to promote those principles).

6

Consistent with this framework, the AG Memorandum makes clear that the grant-

7 eligibility provision of Section 9(a) “applie[s] solely to federal grants administered by [DOJ] or

8 [DHS], and not to other sources of federal funding.” See AG Mem. at 1 (emphasis added). It

9 further clarifies that, where DOJ imposes obligations on a grant program, such as the requirement

10 that an applicant certify compliance with 8 U.S.C. § 1373, those obligations have been or will be

11 imposed where legally authorized and only where grantees are given “notice of their

12 obligation[s].” Id. at 2. Thus, the AG Memorandum provides a basis for the Court to reconsider

13 its conclusion that the grant-eligibility provision of the Executive Order extends beyond DOJ and

14 DHS grants, and that the provision purports to delegate new authority from the President to

15 agency heads regarding the imposition of conditions on federal grants.

16

In its justiciability analysis, the Court also determined that the grant-eligibility provision

17 of the Executive Order attempted to render state and local jurisdictions that declined to comply

18 with federal civil detainer requests ineligible to receive federal grants. Order of Apr. 25, 2017 at

19 23-27. The Court reached this determination by relying on public comments made by the

20 President, the White House Press Secretary, and the Attorney General. Id. That determination

21 served as the primary basis for the Court’s conclusion that the County, which had adopted a

22 policy of noncompliance with federal civil detainer requests, showed a likelihood of enforcement

23 under the grant-eligibility provision of Section 9(a). Id.

24

Unlike public comments, however, the AG Memorandum constitutes formal and binding

25 guidance. The Memorandum clarifies that the grant-eligibility provision applies only to grant

26 programs administered by DOJ or DHS that have grant terms explicitly requiring certification of

27 compliance with Section 1373 as a condition on the receipt of funding. See, e.g., AG Mem. at 1-

28

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1 2. Contrary to this Court’s findings, the AG Memorandum concludes that “jurisdiction[s] that

2 fail[] to certify compliance with section 1373 will be ineligible to receive [an] award[].” AG

3 Mem. at 2. The Memorandum does not mention detainer requests. Rather, it confirms that

4 defendants may impose conditions on grant programming only under “existing statutory or

5 constitutional authority” and only where “grantees . . . receive notice of their obligation to

6 comply” with specific eligibility conditions. AG Mem. at 2. Because one of the primary bases

7 for this Court’s ruling – namely, non-binding press statements – has been supplanted, the Court

8 should reconsider its holding.

9

The Court also relied on its conclusion regarding forced compliance with federal civil

10 detainer requests in holding that the County could show justiciable harm. Specifically, the Court

11 held that the purported requirement to comply with detainer requests compromised plaintiff’s

12 Tenth Amendment rights by effectively forcing the County “to enforce the Federal government’s

13 immigration laws[.]” Order of Apr. 25, 2017 at 28. The Court should reconsider that position for

14 two reasons. First, conditioning the receipt of federal funds on whether a State takes a particular

15 action does not alone raise Tenth Amendment concerns, so long as the “State could . . . adopt the

16 simple expedient of not yielding to what she urges is federal coercion.” See S. Dakota v. Dole,

17 483 U.S. 203, 210 (1987) (internal quotation marks omitted). But in any event, as explained

18 above, the AG Memorandum clarifies that the grant-eligibility provision does not create a

19 retroactive grant condition requiring compliance with federal civil detainer requests. AG Mem. at

20 2. Accordingly, the Court should reconsider its holding that the grant-eligibility provision forces

21 local jurisdictions “to enforce the Federal government’s immigration laws” in a manner that

22 violates the Tenth Amendment. Order of Apr. 25, 2017 at 23-28.

23

In addressing the justiciability of plaintiff’s claims, the Court also held – based on its

24 broad interpretation of the grant-eligibility provision – that the County had established justiciable

25 harm because the provision purportedly jeopardized all federal grant funding received by the

26 County, not just grants administered by DOJ and DHS. Order of Apr. 25, 2017 at 29-32. Based

27 on the presumption that the grant-eligibility provision encompassed all federal grant programs,

28

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1 including those funded through reimbursement structures, the Court concluded that the County

2 faced budgetary uncertainty and potentially grave financial harm. Id. at 30.

3

Again, the AG Memorandum contradicts the Court’s interpretation of the scope of the

4 grant-eligibility provision, and consequently undermines plaintiff’s ability to establish justiciable

5 harm. As noted, the AG Memorandum confirms the limited scope of the grant-eligibility

6 provision: that provision applies only to grants administered by DHS or DOJ, and, with respect

7 to DOJ grants, only where the recipient fails to comply with an express obligation to certify

8 compliance with 8 U.S.C. § 1373. See AG Mem. at 1-2. Only with respect to three grant

9 programs, all of which are administered by DOJ, have defendants identified Section 1373 as an

10 applicable federal law with which grantees are required to comply. See, e.g., Tr. of Oral Arg. at

11 35:2-9. At no point has Santa Clara County averred that this limited construction of the grant-

12 eligibility provision would cause the severe, concrete financial harm contemplated in the Court’s

13 Order. Moreover, the AG Memorandum mitigates the County’s claims of budgetary uncertainty

14 by clarifying the specific grant programs currently subject to the provision, and by confirming

15 that grant applicants or recipients will have prior notice of any conditions that might be placed in

16 the future on DOJ or DHS-administered grant programs. AG Mem. at 1-2.

17

Because the AG Memorandum’s clarification of the scope of the grant-eligibility

18 provision of Section 9(a) supplants many of the fundamental bases underlying the Court’s

19 determinations regarding justiciability, defendants respectfully request that the Court reconsider

20 those determinations in light of the conclusive position articulated in the Memorandum.

21 II. The AG Memorandum Provides a Basis for the Court to

22

Reconsider Its Determination that the Plaintiff is Likely to

Succeed on the Merits of Its Claims

23

Many of the Court’s determinations regarding plaintiff’s likelihood of success on the

24 merits are based on a reading of the Executive Order that is inconsistent with the position set forth

25 in the AG Memorandum. Under the conclusive interpretation of the Executive Order set forth in

26 the Memorandum, plaintiff cannot establish a likelihood of success on any of its claims.

27

28

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1 Accordingly, the Court should reconsider its previous determinations with respect to the merits of

2 plaintiff’s constitutional claims.

3

A. The AG Memorandum Alleviates the Court’s Separation of Powers Concerns

4

The AG Memorandum provides grounds for the Court to reconsider its conclusion that

5 “Section 9 [of the Executive Order] purports to give the Attorney General and the Secretary the

6 power to place a new condition on federal funds . . . not provided for by Congress.” Order of

7 Apr. 25, 2017 at 36. Based on that interpretation of the grant-eligibility provision, the Court

8 reasoned that the provision constituted an attempt by the President to “wield Congress’s exclusive

9 spending power,” in a manner that violated the constitutional separation of powers. Id. at 37.

10

The AG Memorandum, however, refutes the Court’s interpretation of the grant-eligibility

11 provision, and consequently undermines the Court’s separation of powers analysis. As the Court

12 recognized, “Congress can delegate some discretion to the President to decide how to spend

13 appropriated funds” so long as “any delegation and discretion is cabined by [relevant] constitu-

14 tional boundaries.” Id. at 36; see DKT Mem’l Fund Ltd., 887 F.2d at 280-81. Indeed, executive

15 agencies like DOJ have frequently utilized their congressionally delegated authority to tailor

16 grants to advance agency priorities. See, e.g., 2016 COPS Hiring Program Fact Sheet, DOJ

17 Community Oriented Policing Services, https://cops.usdoj.gov/ pdf/ 2016AwardDocs/ chp/

18 2016_CHP_FactSheet_v3.pdf (last visited May 22, 2017) (“Applicants that choose ‘Homicide’

19 and ‘Gun Violence’ as a problem area in their 2016 [COPS Hiring Program] application will

20 receive additional consideration for funding.”); 2015 COPS Hiring Program Fact Sheet, DOJ

21 Community Oriented Policing Services, https://cops.usdoj.gov/ pdf/ 2015AwardDocs/

22 chp/2015_CHP_PostAward_FactSheet.pdf (last visited May 22, 2017) (noting priority for

23 applicants whose applications focused on “school-based policing through School Resource

24 Officers”).

25

The AG Memorandum makes clear that the grant-eligibility provision is not an attempt by

26 the President to unilaterally impose new conditions on federal grants. Rather, just as administra-

27 tions have in the past, the Executive Order “declare[s] the policy of the executive branch.” Exec.

28

13

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1 Order 13,768 at 1. The grant-eligibility provision furthers the implementation of that policy by

2 directing the Secretary and the Attorney General to use lawful means to ensure compliance with

3 Section 1373. With respect to the imposition of conditions on federal grant programming, the AG

4 Memorandum confirms that such conditions would not be imposed pursuant to a purported

5 unilateral executive authority, but rather where “existing statutory or constitutional authority”

6 permits the imposition of such conditions. See AG Mem. at 2; see also Allbaugh, 295 F.3d at 33.

7

B. The AG Memorandum Alleviates the Court’s Spending Clause Concerns

8

The AG Memorandum also provides grounds for the Court to reconsider its conclusion

9 that the grant-eligibility provision violates constitutional Spending Clause restrictions. See Order

10 of Apr. 25, 2017 at 37-39. The Court relied on its broad interpretation of the grant-eligibility

11 provision in concluding that plaintiff established a likely violation of three specific Spending

12 Clause limitations: “(1) conditions must be unambiguous and cannot be imposed after funds have

13 already been accepted; (2) there must be a nexus between the federal funds at issue and the

14 federal program’s purpose; and (3) the financial inducement cannot be coercive.” Id. at 37.

15

With respect to its ambiguity concerns, the Court found that because the Executive Order

16 purported to “retroactively condition all ‘federal grants’ on compliance with Section 1373,” and

17 because the grant-eligibility provision lacked clarity as to the specific “Federal grants” that fell

18 within its scope, the Executive Order deprived plaintiff of the ability to “voluntarily and

19 knowingly choose to accept conditions on those funds.” Id. at 38 (emphasis added). The AG

20 Memorandum makes clear, however, that the grant-eligibility provision applies only to grant

21 programs administered by DOJ or DHS; that, in relation to DOJ grants, any conditions imposed

22 pursuant to the directives contained in the Executive Order will apply “to future grants”; and that

23 grant recipients or applicants “will receive notice” of their obligations. AG Mem. at 2 (emphasis

24 added). In other words, the grant-eligibility provision does not create retroactive conditions on

25 federal grants. The position set forth in the AG Memorandum is thus consistent with the Supreme

26 Court’s oft-repeated presumption against retroactivity. See generally Fernandez-Vargas v.

27 Gonzales, 548 U.S. 30, 37 (2006).

28

14

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1

The interpretation of the scope of the Executive Order provided in the AG Memorandum

2 also alleviates the Court’s concerns regarding the existence of a nexus between the federal funds

3 at issue and the federal program’s purpose. Relying on its interpretation of the term “Federal

4 grants” as applying to all federal funding, the Court found that a sufficient nexus could not exist

5 between compliance with Section 1373 and federal programs unrelated to law enforcement, such

6 as child welfare programs or vaccination programs. See Order of Apr. 25, 2017 at 38. But, as the

7 AG Memorandum establishes, the term “Federal grants” is not so broad. AG Mem. at 2. Rather,

8 it applies only to DHS or DOJ administered grant programs, and, with respect to DOJ grants, only

9 those programs that contain grant-eligibility terms that explicitly require compliance with Section

10 1373 as a condition of grant-eligibility. Id. Indeed, as the AG Memorandum explicitly

11 acknowledges, because “Section 9(a) expressly requires enforcement ‘to the extent consistent

12 with law,’ [it] does not call for the imposition of grant conditions that would violate any

13 applicable constitutional or statutory limitation,” id. at 1-2, which would include the “nexus”

14 requirement.

15

The position set forth in the AG Memorandum also mitigates the Court’s concern that the

16 grant-eligibility provision creates an unconstitutionally coercive financial inducement. As the

17 Court acknowledged, recent Supreme Court precedent on the Spending Clause’s coercion

18 limitation has held that the threat of denying federal funding that amounts to ten percent of a

19 state’s overall budget may be sufficiently severe to constitute unconstitutional coercion. Order of

20 Apr. 25, 2017 at 39 (citing Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2604 (2012)).

21 Because the Court determined that the grant-eligibility provision of Section 9(a) threatens

22 defunding of “all federal grants” to the County, amounting in the “hundreds of millions of

23 dollars,” it held that the provision was unconstitutionally coercive. Id.

24

Again, the AG Memorandum contravenes this determination. In confirming that the term

25 “Federal grants” is limited to grant programs administered by DHS or DOJ that have grant terms

26 requiring compliance with Section 1373, the AG Memorandum drastically reduces the potential

27 coercive effect of the grant-eligibility provision. As mentioned, only three grant programs

28

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1 currently fall within the scope of the provision, and plaintiff has put forth no evidence demon-

2 strating that the funding levels encompassed by those programs are so significant as to constitute

3 unconstitutional coercion.

4

Accordingly, because the AG Memorandum directly addresses and alleviates the

5 Spending Clause concerns that the Court articulated, defendants respectfully request that the

6 Court reconsider its analysis on those points.

7

C. The AG Memorandum Alleviates the Court’s Tenth Amendment Concerns

8

In analyzing plaintiff’s likelihood of success on the merits of its Tenth Amendment

9 claims, the Court held that the Executive Order “equates ‘sanctuary jurisdictions’ with ‘any

10 jurisdiction that ignored or otherwise failed to honor any [federal civil] detainer[] [requests]’ and

11 therefore places such jurisdictions at risk of losing all federal grants.” Order of Apr. 25, 2017 at

12 40. As a result of that interpretation, the Court found that the grant-eligibility provision of

13 Section 9(a) was likely unconstitutional under the Tenth Amendment because it effectively

14 sought “to compel the states and local jurisdictions to enforce a federal regulatory program

15 through coercion.” Id. The Court also found that the separate provision of Section 9(a)

16 instructing the Attorney General to “take appropriate enforcement action against any entity that

17 violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders

18 the enforcement of Federal law,” should be interpreted as an attempt to force state and local

19 jurisdictions to comply with civil detainer requests. Id. The Court relied on that interpretation as

20 additional support for the conclusion that the County was likely to succeed in its Tenth

21 Amendment challenge.

22

The AG Memorandum, however, undermines this conclusion.3 As an initial matter, the

23 Memorandum provides a definition of “sanctuary jurisdiction” that is untethered to compliance

24 with federal civil detainer requests. See AG Mem. at 2 (stating that, “for purposes of enforcing

25
3 Indeed, even if compliance with federal civil detainer requests were an explicit condition

26 on the receipt of a federal grant award, the mere existence of such a condition would not alone

violate Spending Clause or Tenth Amendment principles. See Dole, 483 U.S. at 210 (holding that
27 a condition that might otherwise be deemed as infringing on State sovereignty does not violate

28

that sovereignty where the State can “adopt the simple expedient” of rejecting the funding). 16

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1 the Executive Order, the term ‘sanctuary jurisdiction’ will refer only to jurisdictions that

2 ‘willfully refuse to comply with 8 U.S.C. 1373’”). The AG Memorandum further clarifies that

3 Section 1373 compliance obligations (as well as any other grant programming obligations) may

4 be imposed only pursuant to “existing statutory or constitutional authority,” and that “grantees

5 will receive notice of their obligation to comply with section 1373.” AG Mem. at 2.

6

The Court also held that mandating compliance with federal civil detainer requests in a

7 coercive manner or compelling compliance through enforcement actions “violates the Tenth

8 Amendment’s provisions against conscription.” Order of Apr. 25, 2017 at 40. Despite acknow-

9 ledging that noncompliance with federal civil detainer requests frustrates federal enforcement of

10 immigration laws, the Attorney General has not, to date, taken any enforcement action against

11 any jurisdiction for noncompliance with such requests, and the Attorney General is prohibited

12 from compelling compliance with federal civil detainer requests in a constitutionally imper-

13 missible manner. Moreover, the government has recently confirmed its position that federal civil

14 detainer requests “are voluntary . . . rather than mandatory commands.” See Br. of the United

15 States as Amicus Curiae at 22, Mass. v. Lunn, No. SJC-12276, 2017 WL 1240651 at *22 (Mass.

16 Mar. 27, 2017). To the extent the plaintiff is concerned that the Attorney General might one day

17 engage in an enforcement action that the County believes is unconstitutional, it will undoubtedly

18 have an opportunity to assert its challenges in response to that hypothetical action, if it occurs.

19

Accordingly, because the AG Memorandum establishes that compliance with federal civil

20 detainer requests is not a precondition to the receipt of all federal grant funding, defendants

21 respectfully request that the Court reconsider its holding that the plaintiff has established a

22 likelihood of success on the merits of its Tenth Amendment claims.

23

D. The AG Memorandum Alleviates the Court’s Vagueness Concerns

24

Much of the Court’s vagueness analysis is predicated on the presumption that Section 9(a)

25 of the Executive Order effectively renders state and local jurisdictions that fail to comply with

26 Section 1373 automatically ineligible to receive any federal grants. See Order of Apr. 25, 2017 at

27 41-43. The Court found that, because the Order does not define the terms “sanctuary jurisdiction”

28

17

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1 or “compliance with Section 1373,” federal grant recipients “do not know how to avoid the

2 Order’s defunding penalty,” thereby implicating constitutional vagueness concerns. Id. at 42.

3

Contrary to the Court’s interpretation, however, the AG Memorandum specifies that the

4 grant-eligibility provision does not create a self-effectuating defunding penalty. See, e.g.,

5 Allbaugh, 295 F.3d at 33 (noting that an executive order that required action “to the extent

6 consistent with law” was “not selfexecuting”). Section 9(a) of the Executive Order does not

7 impose retroactive conditions on all federal grants, nor does it attempt to alter the existing

8 requirements of Section 1373 (or any other federal law). See AG Mem. at 1-2. Rather, the AG

9 Memorandum specifies that the grant-eligibility provision applies only to DOJ or DHS grants

10 and, with respect to DOJ grants, only to those that contain grant terms requiring certification of

11 compliance with Section 1373. Id. Moreover, the Memorandum confirms that jurisdictions will

12 have notice of Section 1373 compliance obligations prior to the imposition of those obligations.

13 Id. Thus, the AG Memorandum “provide[s] explicit standards” governing the scope of the grant-

14 eligibility provision, thereby mitigating the Court’s vagueness concerns with that provision. See

15 Gaynard v. City of Rockford, 408 U.S. 104, 108 (1972).

16

The Court also identified vagueness concerns regarding the separate provision of Section

17 9(a) that directs the Attorney General to take appropriate enforcement action against jurisdictions

18 that hinder enforcement of federal law (the “appropriate enforcement provision”). Although the

19 AG Memorandum does not directly address the appropriate enforcement provision of Section

20 9(a), the provision itself limits the Attorney General to taking “appropriate” action; the Attorney

21 General has taken no action whatsoever against Santa Clara County pursuant to the provision;

22 and, in any event, any jurisdiction subject to an enforcement action under that provision would

23 undoubtedly have the opportunity to challenge such action once it occurs. More importantly,

24 because the AG Memorandum sets forth the parameters of the grant-eligibility provision, and

25 because the harm identified by the County consists primarily of the potential loss of federal

26 funding and resultant budgetary uncertainty, the AG Memorandum mitigates any harm that the

27

28

18

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Case 3:17-cv-00574-WHO Document 113 Filed 05/23/17 Page 23 of 37

1 plaintiff might assert as a result of the alleged vagueness contained in the appropriate

2 enforcement provision of Section 9(a).

3

Accordingly, defendants respectfully request that the Court reconsider its conclusion

4 under the Fifth Amendment vagueness doctrine in light of the guidance provided in the AG

5 Memorandum.

6

E. The AG Memorandum Alleviates the Court’s Due Process Concerns

7

The position set forth in the AG Memorandum also contradicts the Court’s procedural due

8 process analysis. As the Court explained, to state a procedural due process claim, a litigant must

9 identify “a legally protectable property interest and that he has suffered or will suffer a deprava-

10 tion of that property without adequate process.” Order of Apr. 25, 2017 at 43 (citing Thornton v.

11 City of Helens, 425 F.3d 1158, 1164 (9th Cir. 2005)). Here, the Court found that the plaintiff has

12 a legally protectable property interest “in federal funds that Congress has already appropriated

13 and that the [plaintiffs] have accepted.” Order of Apr. 25, 2017 at 43. The Court further held that

14 the grant-eligibility provision of Section 9(a) purported to render the County ineligible to receive

15 those funds without appropriate process. Id.

16

The AG Memorandum undermines those determinations. As an initial matter, the AG

17 Memorandum makes clear that the grant-eligibility provision does not encompass all “funds that

18 Congress has already appropriated and that the [plaintiffs] have accepted.” Id. Rather, the

19 provision encompasses only grant programs administered by DHS or DOJ and only where the

20 grant-eligibility terms explicitly require compliance with Section 1373. See AG Mem. at 1-2.

21 Moreover, the grant-eligibility provision does not purport to create an automatic defunding

22 mechanism that would effectively terminate federal funding to the County with no process of law.

23 Rather, only those jurisdictions “that fail[] to certify compliance with section 1373 will be

24 ineligible receive [an] award[]” under the specific grant programs that fall within the scope of the

25 provision. See AG Mem. at 2. Thus, based on the conclusive guidance contained in the AG

26 Memorandum, the County cannot establish that it is likely to succeed on its claim that the

27

28

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1 Executive Order deprives it of a legally protected property interest without sufficient process of

2 law.

3

Accordingly, defendants respectfully request that the Court reconsider its Fifth

4 Amendment procedural due process analysis.

5 III. 6

The Injunction Should Not Restrict Defendants’ Independent Authority to Impose Conditions on Grant Programming

7

Although defendants believe the Court should lift the injunction in this matter for the

8 above-stated reasons, should the Court determine that an injunction remains appropriate,

9 defendants respectfully seek clarification regarding the scope of the injunction’s prohibitions.

10 The Court has made clear that defendants may “use lawful means to enforce existing conditions

11 of federal grants or 8 U.S.C. 1373.” Order of Apr. 25, 2017 at 49. Defendants respectfully

12 request confirmation, however, that DOJ or DHS are not enjoined from exercising legal authority

13 independent of the Executive Order to impose conditions on grant programming for future DOJ

14 or DHS-administered grants.

15

As detailed above and in the accompanying declaration from the Office of Justice

16 Programs, with respect to certain grant programs, DOJ and DHS are legally authorized,

17 independent of Section 9(a) of the Executive Order, to impose certain conditions in grant

18 programming. See Declaration of Ralph Martin ¶¶ 5-11 (Attachment 2 hereto); see also Order of

19 Apr. 25, 2017 at 36 (acknowledging that executive agencies may have “some discretion . . . to

20 decide how to spend appropriated funds”). For example, prior to the issuance of the Executive

21 Order, DOJ had identified Section 1373 as an applicable federal law with which grantees are

22 required to comply in the JAG program, as well as under two other DOJ-administered grant

23 programs. See, e.g., Tr. of Oral Arg. at 35:2-9; Martin Decl. ¶ 17. Moreover, as the government

24 indicated at oral argument, “[g]oing forward . . . DOJ and, potentially, DHS” may choose to

25 impose similar conditions, where authorized to do so. See Tr. of Oral Arg. at 25:14-16; see also

26 AG Mem. at 2 (providing that, where legally authorized, defendants “may seek to tailor grants to

27 promote a lawful system of immigration”). To ensure that DHS and DOJ retain their ability to

28

20

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Case 3:17-cv-00574-WHO Document 113 Filed 05/23/17 Page 25 of 37

1 exercise that previously existing authority, which is independent of the Executive Order,

2 defendants respectfully request that, should the Court decline to lift the injunction in this matter, it

3 clarify that the injunction does not prohibit defendants from utilizing grant-related legal

4 authorities that exist independent of the Executive Order.

5

CONCLUSION

6 For the foregoing reasons, defendants respectfully request that the Court reconsider its entry of

7 preliminary injunctive relief in light of the binding guidance articulated in the AG Memorandum.

8 Alternatively, defendants request that the Court clarify the scope of its Order to specify that

9 defendants are not enjoined from exercising their independent, constitutionally permissible

10 authority to impose conditions on certain grant programs they administer.

11 Dated: May 22, 2017

12

Respectfully submitted,

13

CHAD A. READLER

14

Acting Assistant Attorney General

15

BRIAN STRETCH

United States Attorney
16

17

JOHN R. TYLER Assistant Director

18

STEPHEN J. BUCKINGHAM

19

Special Counsel

20

/s/ W. Scott Simpson

21
W. SCOTT SIMPSON (Va. Bar #27487)

22

Senior Trial Counsel

23

Attorneys, Department of Justice

24

Civil Division, Room 7210 Federal Programs Branch

25

Post Office Box 883

Washington, D.C. 20044

26

Telephone: (202) 514-3495

Facsimile: (202) 616-8470

27

E-mail: scott.simpson@usdoj.gov

28

21

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Case 3:17-cv-00574-WHO Document 113 Filed 05/23/17 Page 26 of 37

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defs’ Mot. for Leave: Reconsid. No. 3:17-cv-00574-WHO

COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; MICK MULVANEY, Director of the Office of Management and Budget
22

Case 3:17-cv-00574-WHO Document 113 Filed 05/23/17 Page 27 of 37
County of Santa Clara v. Donald J. Trump, et al., No. 3:17-cv-00574-WHO (N.D. Cal.)
Defendants’ Motion for Reconsideration or, in the Alternative, Clarification of the Court’s Order of April 25, 2017
Attachment 1 Memorandum from the Attorney General
for All Department Grant-Making Components (May 22, 2017)

Case 3:17-cv-00574-WHO Document 113 Filed 05/23/17 Page 28 of 37
®ffic.e of fq.e J\ftnrn.eu ®.en.era!
�as£ringtnn, �.QL 20530 May 22, 2017

MEMORANDUM FOR ALL DEPARTMENT GRANT-M ING COMPONENTS

FROM: SUBJECT:

THE ATTORNEY GENERA
I
,L Implementation of Executive er 13768,
"Enhancing Public Safety in tU Interior of the United States"

Federal law provides a process for foreign citizens to lawfully enter the country. Circumventing that process and crossing our borders unlawfully is a federal crime. It is the role of federal agencies, including the Department of Justice, to enforce our immigration laws, prosecute violations, and secure our borders.
The President has established immigration enforcement as a priority for this Administration and, in furtherance of that priority, issued Executive Order 13768, "Enhancing Public Safety in the Interior of the United States," on January 25, 2017. The Executive Order makes clear that "[i]t is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373." To accomplish this policy, section 9(a) of the Executive Order provides, in part:
[T]he Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.
Section 1373 provides in part that state and local jurisdictions "may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [federal immigration officers] information regarding the citizenship or immigration status, lawful or unlawful, of any individual." 8 U.S.C. § 1373(a).
In accordance with my duties as Attorney General, I have determined that section 9(a) of the Executive Order, which is directed to the Attorney General and the Secretary of Homeland Security, will be applied solely to federal grants administered by the Department of Justice or the Department of Homeland Security, and not to other sources of federal funding. Section 9(a) expressly requires enforcement "to the extent consistent with law," and therefore does not call for the imposition of grant conditions that would violate any applicable constitutional or

Case 3:17-cv-00574-WHO Document 113 Filed 05/23/17 Page 29 of 37

Memorandum for All Department Grant-Making Components Subject: Implementation of Executive Order 13768,
"Enhancing Public Safety in the Interior of the United States"

Page2

statutory limitation. Nor does the Executive Order purport to expand the existing statutory or constitutional authority of the Attorney General and the Secretary of Homeland Security in any respect. Indeed, apart from the Executive Order, the Department of Justice and the Department of Homeland Security, in certain circumstances, may lawfully exercise discretion over grants that they administer. Section 9(a) directs the Attorney General and the Secretary of Homeland Security to exercise, as appropriate, their lawful discretion to ensure that jurisdictions that willfully refuse to comply with section 1373 are not eligible to receive Department of Justice or Department of Homeland Security grants.
Consistent with the Executive Order, statutory authority, and past practice, the Department of Justice will require jurisdictions applying for certain Department grants to certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for receiving an award. Any jurisdiction that fails to certify compliance with section 1373 will be ineligible to receive such awards. This certification requirement will apply to any existing grant administered by the Office of Justice Programs and the Office of Community Oriented Policing Services that expressly contains this certification condition and to future grants for which the Department is statutorily authorized to impose such a condition. All grantees will receive notice of their obligation to comply with section 1373. The Department will administer this certification requirement in accordance with the law and will comply with any binding court order.
After consultation with the Secretary of Homeland Security, I have determined that, for purposes of enforcing the Executive Order, the term "sanctuary jurisdiction" will refer only to jurisdictions that "willfully refuse to comply with 8 U.S.C. 1373." A jurisdiction that does not willfully refuse to comply with section 1373 is not a "sanctuary jurisdiction" as that term is used in section 9(a). While the Executive Order's definition of "sanctuary jurisdiction" is narrow, nothing in the Executive Order limits the Department's ability to point out ways that state and local jurisdictions are undermining our lawful system of immigration or to take enforcement action where state or local practices violate federal laws, regulations, or grant conditions.
The provisions of the Executive Order quoted above address only 8 U.S.C. § 1373. Separate and apart from the Executive Order, statutes may authorize the Department to tailor grants or to impose additional conditions on grantees to advance the Department's law enforcement priorities. Consistent with this authority, over the years, the Department has tailored grants to focus on, among other things, homeland security, violent crime (including drug and gang activity), and domestic violence. Going forward, the Department, where authorized, may seek to tailor grants to promote a lawful system of immigration.

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County of Santa Clara v. Donald J. Trump, et al., No. 3:17-cv-00574-WHO (N.D. Cal.)
Defendants’ Motion for Reconsideration or, in the Alternative, Clarification of the Court’s Order of April 25, 2017
Attachment 2 Declaration of Ralph Martin Office of Justice Programs U.S. Department of Justice

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1 OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA
2 JAMES R. WILLIAMS - # 271253 County Counsel
3 james.williams@cco.sccgov.org GRETA S. HANSEN - # 251471
4 L. JAVIER SERRANO - # 252266 DANIELLE L. GOLDSTEIN - # 257486
5 KAVITA NARAYAN - # 264191 JULIE WILENSKY - #271765
6 JULIA B. SPIEGEL - # 292469 ADRIANA L. BENEDICT - # 306936
7 70 West Hedding Street East Wing, Ninth Floor
8 San Jose, CA 95110-1770 Telephone: 408 299-5900
9 Facsimile: 408 292-7240

KEKER, VAN NEST & PETERS LLP JOHN W. KEKER - # 49092 jkeker@keker.com ROBERT A. VAN NEST - # 84065 rvannest@keker.com DANIEL PURCELL - # 191424 dpurcell@keker.com CODY S. HARRIS - # 255302 charris@keker.com NICHOLAS S. GOLDBERG - # 273614 ngoldberg@keker.com EDWARD A. BAYLEY - # 267532 ebayley@keker.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188

10 ATTORNEYS FOR PLAINTIFF COUNTY OF SANTA CLARA

11 UNITED STATES DISTRICT COURT

12 NORTHERN DISTRICT OF CALIFORNIA

13 SAN FRANCISCO DIVISION

14

COUNTY OF SANTA CLARA, 15

Case No. 17-cv-00574-WHO

Plaintiff, 16

PLAINTIFF COUNTY OF SANTA CLARA’S OPPOSITION TO

v. 17

DEFENDANTS’ MOTION FOR RECONSIDERATION

DONALD J. TRUMP, President of the 18 United States of America, JOHN F. KELLY,

Judge:

Hon. William Orrick

in his official capacity as Secretary of the 19 United States Department of Homeland

Date Filed: February 3, 2017

Security, JEFFERSON B. SESSIONS, in his 20 official capacity as Attorney General of the

Trial Date: April 23, 2017

United States, JOHN MICHAEL “MICK” 21 MULVANEY, in his official capacity as

Director of the Office of Management and 22 Budget, and DOES 1-50,

23

Defendants.

24

25

26

27

28

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1

TABLE OF CONTENTS

2

Page

3 I. INTRODUCTION ...............................................................................................................1

4 II. FACTUAL BACKGROUND..............................................................................................1

5

A. The President signs Executive Order 13,768 and repeatedly explains its

broad purpose and scope. .........................................................................................1

6

B. Defendants fail to respond to the County’s constitutional arguments or

7

submit any evidence.................................................................................................3

8
9
10
11
12 III.
13 IV.
14
15

C. Defendants attempt to re-write the Executive Order at the hearing on the preliminary injunction motion. ................................................................................4
D. The Court rejects defendants’ revised interpretation of the Executive Order. ........5
E. The AG Memorandum formalizes the same flawed interpretation that the Court already rejected as incompatible with the Executive Order’s plain text............................................................................................................................5
LEGAL STANDARD..........................................................................................................8
ARGUMENT .......................................................................................................................9
A. Defendants fail to satisfy Local Rule 7-9’s requirements for reconsideration. ........................................................................................................9

16

1. Defendants make no effort to “specifically show reasonable

diligence” in bringing their motion..............................................................9

17

2. Defendants’ motion repeats the same arguments they advanced, and

18

the Court properly rejected, in their opposition to the County’s

preliminary injunction motion. ..................................................................10

19

3. Defendants have failed to show any “material difference in fact or

20

law” from what was previously presented to the Court. ............................11

21

B. The AG Memorandum provides no basis for reconsidering the PI Order

because it contradicts the Executive Order’s plain text and stated purpose. .........14

22

C. The AG Memorandum, even if credited, fails to remedy the Executive

23

Order’s constitutional infirmities. ..........................................................................19

24

D. There is no reason for the Court to “clarify” the preliminary injunction...............23

25 V. CONCLUSION..................................................................................................................23

26 FILER’S ATTESTATION.............................................................................................................25

27

28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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TABLE OF AUTHORITIES
Page(s)
Federal Cases
Bassidji v. Goe 413 F.3d 928 (9th Cir. 2005) ................................................................................................... 12
Bowen v. Georgetown Univ. Hosp. 488 U.S. 204 (1988)................................................................................................................. 13
Boyd v. Avanquest N. Am. Inc. 2014 WL 5840811 (N.D. Cal. Nov. 10, 2014) ........................................................................ 10
Building & Construction Trades Department, AFL-CIO v. Allbaugh 295 F.3d 28 (D.C. Cir. 2002) ............................................................................................. 18, 19
Carroll v. Nakatani 342 F.3d 934 (9th Cir. 2003) ..................................................................................................... 8
Cherichel v. Holder 591 F.3d 1002 (8th Cir. 2010) ................................................................................................. 13
Christopher v. SmithKline Beecham Corp. 132 S. Ct. 2156 (2012) ............................................................................................................. 13
County of Santa Clara v. Trump --- F. Supp. 3d ---, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017).................................... passim
English v. Apple Inc. 2016 WL 1108929 (N.D. Cal. Mar. 22, 2016)........................................................................... 8
Garcia v. City of Napa 2014 WL 342085 (N.D. Cal. Jan. 28, 2014) .............................................................................. 8
International Refugee Assistance Project v. Trump 2017 WL 2273306 (4th Cir. May 25, 2017) ............................................................................ 12
Keen v. JPMorgan Chase Bank, N.A. 2015 WL 6601775 (N.D. Cal. Oct. 30, 2015).......................................................................... 10
Kona Enterprises, Inc. v. Estate of Bishop 229 F.3d 877 (9th Cir. 2000) ............................................................................................... 8, 10
Marbury v. Madison 5 U.S. 137 (1803)..................................................................................................................... 12
McLaughlin v. Wells Fargo Bank, N.A. 2015 WL 10889994 (N.D. Cal. Nov. 24, 2015) ...................................................................... 11
Minnesota v. Mille Lacs Band of Chippewa Indians 526 U.S. 172 (1999)........................................................................................................... 11, 12
National Fed. of Indep. Bus. v. Sebelius 132 S. Ct. 2566 (2012) ............................................................................................................. 20
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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Old Dominion Branch No. 496, Nat. Ass’n of Letter Carriers, AFL-CIO v. Austin 418 U.S. 264 (1974)................................................................................................................. 12
Omstead v. Dell, Inc. 533 F. Supp. 2d 1012 (N.D. Cal. 2008) ..................................................................................... 9
Printz v. United States 521 U.S. 898 (1997)................................................................................................................. 22
Public Citizen v. Burke 655 F. Supp. 318 (D.D.C. 1987) .............................................................................................. 13
Safe Air For Everyone v. EPA 488 F.3d 1088 (9th Cir. 2007) ................................................................................................. 13
South Dakota v. Dole 483 U.S. 203 (1987)................................................................................................................. 21
Texas v. United States 201 F. Supp. 3d 810 (N.D. Tex. 2016) .................................................................................... 21
Texas v. United States 86 F. Supp. 3d 591 (S.D. Tex. 2015) ....................................................................................... 21
United States v. Stevens 559 U.S. 460 (2010)................................................................................................................... 5
United States v. Williams 553 U.S. 285 (2008)................................................................................................................. 22
Victor v. R.C. Bigelow, Inc. 2015 WL 5569716 (N.D. Cal. Sept. 21, 2015) .................................................................... 8, 10
Vietnam Veterans of Am. v. CIA 811 F.3d 1068 (9th Cir. 2016) ................................................................................................. 13
Washington v. Sandoval 2011 WL 2039687 (N.D. Cal. May 24, 2011) ........................................................................... 8
Washington v. Trump 847 F.3d 1151 (9th Cir.) .......................................................................................................... 12
Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952)................................................................................................................. 19
Federal Statutes
8 U.S.C. § 1103(a)(1)..................................................................................................................... 13
8 U.S.C. § 1373....................................................................................................................... passim
42 U.S.C. § 3752(5)(D).................................................................................................................. 20
Federal Rules
Local Rule 7-9(b)(1) ............................................................................................................... passim
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1 Local Rule 7-9(b)(3) ...................................................................................................................... 11

2 Local Rule 7-9(c) ........................................................................................................................... 10

3 Executive Orders

4 Executive Order 108 ........................................................................................................................ 6

5 Executive Order 13,768 .......................................................................................................... passim

6 Constitutional Provisions

7 U.S. Const. amend. IV ................................................................................................................... 22

8 U.S. Const. amend. V..................................................................................................................... 22

9 U.S. Const. amend. X............................................................................................................... 21, 22

10 Other Authorities

11 H.R. 3009, 114th Cong. (2015)...................................................................................................... 20

12 H.R. 3437, 114th Cong. (2016)...................................................................................................... 20

13 S. 1764, 114th Cong. (2015).......................................................................................................... 20

14 S. 1842, 114th Cong. (2016).......................................................................................................... 20

15 Appendix to Budget of the U.S. Gov’t, Fiscal Year 2018, at 544,

https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/budget/fy2018/appendix.

16

pdf ............................................................................................................................................ 19

17 Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1318 (2000)........................................................ 13
18

19

20

21

22

23

24

25

26

27

28

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1 I. INTRODUCTION

2

In a last-ditch effort to avoid injunctive relief, defendants announced an implausible new

3 interpretation of President Trump’s Executive Order 13,768 (the “Executive Order” or “EO”) at

4 the April 14, 2017 oral argument on the County of Santa Clara’s motion for a preliminary

5 injunction. Having declined to defend the substance of the Executive Order in their briefing,

6 defendants declared for the first time during the hearing that—despite the plain text of the

7 Executive Order expressing the Administration’s intent to starve state and local governments

8 deemed “sanctuary jurisdictions” of all “Federal funds” and to strip them of eligibility for all

9 “Federal grants”—the EO was actually vanishingly narrow in scope and not meant to affect any

10 change in the law. The Court carefully considered, then rejected, these arguments because

11 defendants’ reading of the Executive Order was incompatible with its text. See County of Santa

12 Clara v. Trump, --- F. Supp. 3d ---, 2017 WL 1459081, at *7–10 (N.D. Cal. Apr. 25, 2017)

13 (“Santa Clara” or “PI Order”).

14

Defendants now contend that the law governing the County’s request for a preliminary

15 injunction materially changed on May 22, 2017, when one of the named defendants, Attorney

16 General Jeff Sessions, issued a two-page memorandum repeating the same interpretation of the

17 Executive Order defendants presented to the Court at oral argument. See Dkt. 113-1(the “AG

18 Memorandum”). Defendants’ Motion for Reconsideration is nothing more than a rehash of the

19 eleventh-hour and implausible argument that the Court has already considered and properly

20 rejected.

21

This Court should decline to reconsider its ruling for numerous reasons, both procedural

22 and substantive. First, defendants have failed to show “reasonable diligence” as Local Rule 7-9

23 demands. Indeed, they make no attempt to make the required showing of diligence, and their

24 conduct belies any such effort. The purported new legal authority on which the Administration

25 now relies was entirely within defendants’ control to produce before the Court entered its order.

26 Defendants’ failure to include this new “guidance” in their opposition to the County’s motion, or

27 in writing at oral argument—or at any time before the eve of their deadline to file a motion for

28 reconsideration—would eviscerate any claim of diligence, had defendants bothered to make one.

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1 Second, defendants concede they are repeating an argument they made (and the Court rejected)

2 previously. Third, not only is defendants’ proffered “legal authority” nothing “new,” is also lacks

3 legal relevance; the Attorney General’s belated, litigation-driven interpretation of the Executive

4 Order lacks the force of law and in no way binds the Court. Fourth, even if the Court were to

5 excuse these failures and consider the AG Memorandum as a potential basis for reconsideration,

6 that memorandum still offers an implausible interpretation that contradicts the Executive Order’s

7 plain text and stated purpose, just as the Court recognized in its April 25, 2017 order. Finally,

8 even if the AG Memorandum offered a plausible interpretation of the Executive Order, it comes

9 nowhere close to curing the Executive Order’s many constitutional infirmities. Accordingly, the

10 Court should deny defendants’ motion and leave its nationwide preliminary injunction

11 undisturbed.

12 II. 13 14

FACTUAL BACKGROUND
A. The President signs Executive Order 13,768 and repeatedly explains its broad purpose and scope.

15

By now the Court is familiar with the relevant facts, nearly all of which are undisputed.

16 On January 25, 2017, President Donald J. Trump issued Executive Order 13,768, entitled

17 “Enhancing Public Safety in the Interior of the United States.” Harris Decl. (Dkt. 36) ¶ 2 & Ex.

18 A (Dkt. 36-1). Section 2 describes the “policy of the executive branch” as, among other things,

19 “[e]nsur[ing] that jurisdictions that fail to comply with applicable Federal law do not receive

20 Federal funds, except as mandated by law.” Id. § 2(c).

21

Section 9 of the Executive Order implements this “policy” by authorizing federal officials

22 to take punitive actions against state and local governments that the Administration deems to be

23 “sanctuary jurisdictions.” Although the Executive Order nowhere defines “sanctuary

24 jurisdiction,” section 9(a) uses that term synonymously with state and local governments that

25 “willfully refuse to comply with 8 U.S.C. § 1373,” id. § 9(a), or those that decline to honor

26 Immigration and Customs Enforcement (“ICE”) civil detainer requests. Id. § 9(b) (equating

27 “sanctuary jurisdictions” with jurisdictions “that ignored or otherwise failed to honor any

28 detainers with respect to such aliens”). Section 9(a) grants the Secretary of Homeland Security—

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1 not the Attorney General—authority to develop a fuller definition of the term and to designate

2 states and localities as “sanctuary jurisdictions.” Id. § 9(a).

3

Section 9(a) begins by directing executive branch officials to strip state and local

4 sanctuary jurisdictions of eligibility “to receive Federal grants,” without limitation:

5

[T]he Attorney General and the Secretary [of Homeland Security], in their

discretion and to the extent consistent with law, shall ensure that jurisdictions that

6

willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not

eligible to receive Federal grants, except as deemed necessary for law

7

enforcement purposes by the Attorney General or the Secretary. The Secretary has

the authority to designate, in his discretion and to the extent consistent with law, a

8

jurisdiction as a sanctuary jurisdiction.

9 Id. § 9(a) (the “Defunding Provision”) (emphasis added). As the Court recognized in its PI Order,

10 the Defunding Provision must be read in the context of the Executive Order as carrying out the

11 President’s policy of denying all federal funds to targeted jurisdictions. See id. § 2(c). Indeed,

12 Section 9(c) orders the Director of the Office of Management and Budget (“OMB”) to provide

13 “information on all Federal grant money that currently is received by any sanctuary jurisdiction,”

14 id. § 9(c) (emphases added), not simply a list of certain federal grants issued by certain agencies

15 for certain purposes.

16

Section 9(a) further contains a separate Enforcement Provision, which orders the Attorney

17 General to “take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or

18 which has in effect a statute, policy, or practice that prevents or hinders the enforcement of

19 Federal law.” Id. § 9(a) (the “Enforcement Provision”). The Executive Order neither defines

20 what it means to “prevent[] or hinder[]” federal law enforcement nor cabins or defines the phrase

21 “Federal law” in any way.

22

As the Court noted in its PI Order, defendants’ own statements further confirm that the

23 Executive Order means what it says. See Santa Clara, 2017 WL 1459081, at *2. The President

24 repeatedly pledged, both on the campaign trail and after election, to deny all federal funding to

25 jurisdictions he believes are hindering his immigration enforcement agenda, thereby “ending”

26 such jurisdictions altogether. See Compl. ¶ 93 (listing statements). After being sworn in and

27 issuing the Executive Order, the President characterized defunding as a “weapon” he could wield

28 to deprive jurisdictions of “the money they need to properly operate as a city or state.” Harris

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1 Decl. ¶ 3 & Ex. B (Dkt. 36-2) at 4. The President’s press secretary confirmed that the President’s

2 goal was to ensure that “counties and other institutions that remain sanctuary cities don’t get

3 federal government funding.” Id. ¶ 4 & Ex. C (Dkt. 36-3) at 4–5 (emphasis added).

4

Defendants persisted in publicly describing the Executive Order as all-encompassing even

5 after the County moved for a preliminary injunction. On March 27, 2017, the Attorney General

6 stated that any jurisdiction the Department of Justice determines does not comply with Section

7 1373 will suffer “withholding [of] grants, termination of grants, and disbarment or ineligibility

8 for future grants,” as well as the “claw back” of “any funds” previously awarded. Dkt. 82-1,

9 Req. for Court Approval to Supp. Record, Ex. A at 2 (emphases added). All of these statements

10 confirm that the Executive Order was intended to apply to all funds provided by the federal

11 government, without limitation.

12

B. Defendants fail to respond to the County’s constitutional arguments or

submit any evidence. 13

14

On February 3, 2017, the County filed this lawsuit, seeking a declaration that the

15 Executive Order is unconstitutional and preliminary and permanent injunctive relief against the

16 enforcement of Section 9. Dkt. 1. On February 23, 2017, the County moved for a nationwide

17 preliminary injunction of Section 9, asserting four separate constitutional violations. Dkt. 26.

18

On March 9, 2017, defendants opposed the County’s motion, but “present[ed] no defense

19 to the [County’s] constitutional arguments.” Santa Clara, 2017 WL 1459081, at *21. Instead,

20 defendants argued that the County lacked standing, its claims were unripe, and it had not suffered

21 irreparable harm because the Executive Order “does not alter or expand the existing law that

22 governs when the Federal Government may revoke a federal grant,” and “does not change

23 existing law.” Dkt. 46, Defs.’ Opp. to Pl.’s Mot. for Prelim. Injunction at 3, 8. Even though the

24 President had executed the Executive Order five weeks earlier, defendants failed to submit a

25 declaration or any other competent evidence supporting their counsel’s arguments that the

26 Executive Order applied narrowly and did not expand or change existing law.

27

28

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1

C. Defendants attempt to re-write the Executive Order at the hearing on the

preliminary injunction motion.

2 On April 14, 2017, at the hearing on the County’s motion, defendants argued for the first

3 time that, despite its plain text, the Executive Order does not actually purport to give the

4 Secretary of Homeland Security and the Attorney General the power to declare “sanctuary

5 jurisdictions” ineligible for any “Federal funds.” EO § 2(c). Instead, defendants’ counsel

6 asserted that, despite the Executive Order’s plain text and defendants’ many confirmatory

7 statements, it applies only to “federal grants issued by [two] specific agencies”—DOJ and DHS—

8 and only to those DOJ and DHS grants that Congress had expressly conditioned on compliance

9 with section 1373. Apr. 14, 2017 Tr. (“Tr.”) at 34:24–35:9; see also id. at 25:4–6 (“[T]he

10 Executive Order is directed to only grants issued by DHS and DOJ.”). The Administration

11 further represented that DHS had not yet identified any DHS grants that Congress had expressly

12 conditioned on compliance with section 1373, although it might do so in the future. Id. at 35:3–4.

13 For its part, DOJ had identified only three grant programs that it claimed were expressly

14 conditioned on compliance with section 1373: the State Criminal Alien Assistance Program

15 (“SCAAP”), the Justice Assistance Grant (“JAG”) program, and the Community Oriented

16 Policing Assistance (“COPS”) initiative. Id. at 35:4–9. Despite the fact that Section 9(a)

17 specifically exempts grants “deemed necessary for law enforcement purposes” from the

18 Defunding Provision, EO § 9(a), defendants argued at the hearing that the only federal funds

19 subject to the Executive Order are grants from these three programs, even though all three grants

20 are provided specifically for law-enforcement purposes.1

21 At oral argument the County questioned whether the defendants’ counsel was capable of

22 binding the Department of Justice or the Executive Branch in light of past statements made by

23 federal officials. Dkt. 108, Defs.’ Mot. for Leave to File Mot. for Reconsideration at 4. But

24 defendants repeatedly emphasized, and the Court stated its understanding, that the interpretation

25

26 27 28
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1 For example, the JAG website (located at www.bja.gov/jag/) explains that: “The JAG Program provides states, tribes, and local governments with critical funding necessary to support a range of program areas including law enforcement, prosecution, indigent defense, courts, crime prevention and education, corrections and community corrections, drug treatment and enforcement, planning, evaluation, technology improvement, and crime victim and witness initiatives.”
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1 offered at the hearing represented the official position of the Department of Justice. The Court

2 noted that defendants’ counsel had “taken this up through the Department,” and the interpretation

3 was based on “what the Department says the Order says.” Tr. at 45:15–24.

4

D. The Court rejects defendants’ revised interpretation of the Executive Order.

5

On April 25, 2017, the Court granted the County’s motion and entered an order enjoining

6 enforcement of Section 9(a) of the Executive Order. See Santa Clara, 2017 WL 1459081, at *29.

7 In its order, the Court carefully considered the last-minute re-interpretation of the Executive

8 Order that defendants had offered at the hearing, rejecting it as “not legally plausible.” Id. at *2.

9 The Court based its finding that defendants’ reading was implausible principally on the plain

10 language of the Executive Order, which the Court held “is not readily susceptible to the

11 Government’s narrow interpretation. Indeed, ‘[t]o read [the Order] as the Government desires

12 requires rewriting, not just reinterpretation.’” Id. at *8 (quoting United States v. Stevens, 559

13 U.S. 460, 481 (2010)). The Court further held that “Section 9(a), by its plain language, attempts

14 to reach all federal grants, not merely the three mentioned at the hearing.” Id. at *2. The Court

15 found that defendants’ attempt to save Section 9(a) by “reading the defunding provision narrowly

16 and ‘consistent with law,’ so that all it does is direct the Attorney General and Secretary to

17 enforce existing grant conditions,” was “in conflict with the Order’s express language and is

18 plainly not what the Order says.” Id. at *9.

19

The Court reinforced its conclusions with the repeated public statements by the President

20 and the Attorney General, both of whom consistently characterized the Executive Order as a

21 means of stripping sanctuary jurisdictions of all federal funding. See id. at *2 (“And if there was

22 doubt about the scope of the Order, the President and the Attorney General have erased it with

23 their public comments”); see also id. at *14–15 (collecting statements). In sum, the Court

24 rejected the Administration’s implausible, litigation-driven interpretation, instead taking the

25 Executive Order on its own terms and according to its authors’ own statements.

26

E. The AG Memorandum formalizes the same flawed interpretation that the

Court already rejected as incompatible with the Executive Order’s plain text. 27

28

On May 22, 2017, the Attorney General released a two-page memorandum entitled

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1 “Implementation of Executive Order 13768, ‘Enhancing Public Safety in the Interior of the

2 United States.’” AG Memo at 1. The Attorney General issued this document 117 days after the

3 President signed the Executive Order, 108 days after the County filed its lawsuit, 38 days after the

4 oral argument in which the Administration’s interpretation was first announced, and 27 days after

5 the Court issued its PI Order. The AG Memorandum does nothing more than reduce to writing the

6 same implausible interpretation of the Executive Order that the Administration adopted at oral

7 argument and that the Court carefully considered and properly rejected in granting the injunction.

8

The AG Memorandum announces that: (1) Section 9(a) “will be applied solely to federal

9 grants administered by the Department of Justice or the Department of Homeland Security, and

10 not to other sources of federal funding;” (2) “the Executive Order [does not] purport to expand

11 the existing statutory or constitutional authority of the Attorney General and the Secretary of

12 Homeland Security in any respect;” and (3) the Executive Order only applies to “certain

13 Department grants [that require recipients] to certify their compliance with federal law, including

14 8 U.S.C. § 1373, as a condition for receiving an award.” AG Memo at 1–2. Although Section 9

15 expressly vests the Secretary of Homeland Security with the authority to designate entities as

16 “sanctuary jurisdictions,” the Attorney General, “[a]fter consultation with the Secretary of

17 Homeland Security,” purports to exercise that authority on his own, setting forth a definition of

18 “sanctuary jurisdictions” as only “’jurisdictions that ‘willfully refuse to comply with 8 U.S.C. §

19 1373.’” Id. at 2.

20

On the same day that defendant Sessions issued the AG Memorandum, defendants moved

21 for leave to file a motion for reconsideration claiming that the Memorandum “constitutes new 22 authority.” Dkt. 108 at 2.2 But there is nothing “new” in the AG Memorandum. The Court has

23 already heard—and rejected—each of these arguments:

24 PI Oral Argument 25 “[T]he Executive Order is
directed to only grants issued 26 by DHS and DOJ. And it’s --

AG Memorandum “[S]ection 9(a) of the Executive Order . . . will be applied solely to federal grants

PI Order “At the hearing, Government counsel argued that the Order applies only to grants issued

27 28
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2 On May 23, 2017, the Court granted defendants leave to file their motion for reconsideration, but noted that it would consider issues “regarding diligence and material change of fact when evaluating the merits of the government’s motion for reconsideration.” Dkt. 112 at 2.
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1 and it’s expressly to grants.” administered by the

by the Department of Justice

(Tr. at 25:4–6.) 2

Department of Justice or the Department of Homeland

and the Department of Homeland Security because it

3

Security, and not to other

is directed only at the Attorney

sources of federal funding.” General and Secretary of

4

(AG Memo. at 1.)

Homeland Security. This

reading is similarly

5

implausible. Nothing in

6

Section 9(a) limits the “Federal grants” affected to

7

those only given th[r]ough the

Departments of Justice and

8

Homeland Security.” Santa

Clara, 2017 WL 1459081, at

9

*9.

10

“The Order does not rewrite the law. It does not invoke

“[T]he Executive Order [does “While the Government urges

not] purport to expand the

that the Order ‘does not

11 new powers and does not instruct the Department of

existing statutory or

purport to give the Secretary

constitutional authority of the or Attorney General the

12 Justice or Department of

Attorney General and the

unilateral authority’ to impose

Homeland Security to engage Secretary of Homeland

new conditions on federal

13 in unconstitutional activity.” Security in any respect.” (AG grants, that is exactly what the

14 (Tr. at 21:1–4.)

Memo. at 2.)

Order purports to do.” Santa Clara, 2017 WL 1459081, at

15 “9(a), again, applies to federal “Department of Justice will

*8. “Under this interpretation,

16 grants where it’s made clear to require jurisdictions applying Section 9(a) applies only to

the grantee that they must

for certain Department grants three federal grants in the

17 require 1373.” (Tr. at 24:4–6.) to certify their compliance

Department of Justice and

18 “[A]gain, it’s three – it’s three with federal law, including 8 Homeland Security that

grants that DOJ identified.

U.S.C. § 1373, as a condition already have conditions

19 DHS has not, as far as I know, for receiving an award. Any requiring compliance with 8

identified any grants yet. But jurisdiction that fails to certify U.S.C. 1373. This 20 DOJ has identified three that compliance with section 1373 interpretation renders the

expressly relate to criminal will be ineligible to receive 21 justice issues or immigration such awards. This

Order toothless; the Government can already

22 issues: The SCAAP grant; the certification requirement will enforce these three grants by

JAG grant; and the COPS

apply to any existing grant

the terms of those grants and

23 grant. And those are the three administered by the Office of can enforce 8 U.S.C. 1373 to

where they put these express Justice Programs and the

the extent legally possible

24 conditions, given the

Office of Community Oriented under the terms of existing

25

Department’s authority to do so, regarding the compliance

Policing Services. . . .” (AG Memo. at 2.)

law. . . . Section 9(a) is not reasonably susceptible to the

26 with 1373.” (Tr. at 35:2–9.)

new, narrow interpretation offered at the hearing.” Santa

27

Clara, 2017 WL 1459081, at

*1. 28

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“This use of the term ‘sanctuary jurisdiction’ is, again, a broad term. And it can mean different things to different people. And, importantly, in Section 9(a), it’s used after the sentence ‘failure to comply with 8 U.S.C. 1373.’ So there the reference is -- sanctuary jurisdiction is with respect to a city that violates 1373. We know that’s how it’s being used there.” (Tr. at 36:25– 37:6.)

“[T]he term ‘sanctuary jurisdiction’ will refer only to jurisdictions that ‘willfully refuse to comply with 8 U.S.C. § 1373.” (AG Memo. at 2.)

“Section 9(b) equates ‘sanctuary jurisdictions’ with ‘any jurisdiction that ignored or otherwise failed to honor any detainers with respect to [aliens that have committed criminal actions].’ This language raises the reasonable concern that a state or local government may be designated a sanctuary jurisdiction, and subject to defunding, if it fails to honor ICE detainer requests.” Santa Clara, 2017 WL 1459081, at *13.

III. LEGAL STANDARD Reconsideration of a court order is “‘an extraordinary remedy, to be used sparingly in the

interests of finality and conservation of judicial resources.’” English v. Apple Inc., 2016 WL

1108929, at *2 (N.D. Cal. Mar. 22, 2016) (Orrick, J.) (quoting Carroll v. Nakatani, 342 F.3d 934,

945 (9th Cir. 2003)). Motions for reconsideration “may not be used to relitigate old matters and

‘may not be used to raise arguments or present evidence for the first time when they could

reasonably have been raised earlier in the litigation.’” Victor v. R.C. Bigelow, Inc., 2015 WL

5569716, at *2 (N.D. Cal. Sept. 21, 2015) (Orrick, J.) (quoting Kona Enterprises, Inc. v. Estate of

Bishop, 229 F.3d 877, 890 (9th Cir. 2000)). Nor is reconsideration a “substitute for appeal or a

means of attacking some perceived error of the court.” Washington v. Sandoval, 2011 WL

2039687, at *1 (N.D. Cal. May 24, 2011). Such a motion may not “be used to ask the Court to

rethink what it has already thought.” Garcia v. City of Napa, 2014 WL 342085, at *1 (N.D. Cal.

Jan. 28, 2014).

To meet the high standard justifying reconsideration, this District’s Civil Local Rule 7-9

requires defendants to “specifically show” that (1) they acted with reasonable diligence; and (2)

one of the following three grounds for reconsideration applies:

(1) That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or
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1

(2) The emergence of new material facts or a change of law occurring after the

time of such order; or

2

(3) A manifest failure by the Court to consider material facts or dispositive legal

3

arguments which were presented to the Court before such interlocutory order.

4 Civil L.R. 7-9(b)(1)–(3). To prevail on such a motion, “a party must set forth facts or law of a

5 strongly convincing nature” to induce the court to change its prior decision. Omstead v. Dell,

6 Inc., 533 F. Supp. 2d 1012, 1019 (N.D. Cal. 2008).

7 IV. ARGUMENT

8

A. Defendants fail to satisfy Local Rule 7-9’s requirements for reconsideration.

9

1. Defendants make no effort to “specifically show reasonable diligence”

in bringing their motion.

10

11

The Court should deny reconsideration of PI Order because defendants’ moving papers

12 make no attempt to “specifically show reasonable diligence in bringing [this] motion,” as Rule 7-

13 9(b) requires. Defendants offer no argument, much less the required competent evidence,

14 showing that they acted with reasonable diligence. The Court should decline to reconsider its

15 order for this reason alone.

16

Further, the factual record shows defendants were dilatory, not diligent. Despite having

17 notice of the County’s claims and arguments on February 3, 2017, defendants waited more than

18 three months to issue their purportedly new authority. What’s more, defendants failed to issue

19 this interpretation when opposing the County’s motion, which—as the Court pointed out—would

20 have been a good time to do so. See Tr. at 50:21-22 (THE COURT: “If it was a plain reading, it

21 would have been argued earlier in the papers.”). Nor did defendants unveil the memorandum

22 before oral argument, or even at oral argument. And defendants’ lack of reasonable diligence did

23 not end there: after the Court entered the injunction, defendants waited 27 days—one day shy of

24 their deadline to seek leave to file a motion for reconsideration—to publish the AG Memorandum

25 and to seek such leave.

26

Defendants offer neither explanation nor excuse for this delay. And in fact none exists;

27 the issuance and timing of the memorandum were entirely within their control. Defendants

28 therefore run afoul of the Ninth Circuit’s prohibition on using a motion for reconsideration to

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1 “present evidence for the first time,” which “could reasonably have been raised earlier in the

2 litigation.” Kona Enters., 229 F.3d at 890. In short, defendants’ long and unjustified delay, along

3 with the absence of any new factual development or substantive change to their legal position in

4 the interim, establishes a clear lack of diligence.

5

2. Defendants’ motion repeats the same arguments they advanced, and

the Court properly rejected, in their opposition to the County’s

6

preliminary injunction motion.

7

Defendants’ request for reconsideration also violates Local Rule 7-9(c), which prohibits

8 them from “repeat[ing] any oral or written argument” they made in opposing the ruling they

9 “now seek[] to have reconsidered.” Civil L. R. 7-9(c) (emphasis added). Defendants violate this

10 rule extensively and without apology. See Dkt. 113, Defs.’ Mot. for Reconsideration (“Mot.”) at

11 1 (conceding that “[t]he AG Memorandum . . . reaffirms the representations made by government

12 counsel at oral argument”); compare Part II.C, supra (defendants’ interpretation of the Executive

13 Order at the April 14, 2017 oral argument) with Part II.E, supra (interpretation of Executive

14 Order in the AG Memorandum, with comparisons to substantively identical prior arguments at

15 April 14 hearing).

16

The only thing that has changed since oral argument is that defendants have taken the oral

17 representations they made to the Court at the April 14, 2017 hearing and written them down in a

18 memorandum. But revising the form of a previously-made argument provides no valid basis for

19 reconsideration. See, e.g., Keen v. JPMorgan Chase Bank, N.A., 2015 WL 6601775, at *2 (N.D.

20 Cal. Oct. 30, 2015) (Orrick, J.) (denying reconsideration based on CFPB’s official interpretations

21 of a regulation where the CFPB had adopted prior Federal Reserve Board interpretations “in

22 wholesale form, minus a few technical changes”) (internal quotations omitted); Victor, 2015 WL

23 5569716, at *1 (denying motion for leave to file a motion for reconsideration where “Victor’s

24 motion repeats previously made arguments”); Boyd v. Avanquest N. Am. Inc., 2014 WL 5840811,

25 at *1 (N.D. Cal. Nov. 10, 2014) (Orrick, J.) (denying leave to file motion for reconsideration

26 where movant “repeat[ed] the arguments that it made in its motions to dismiss” and “simply

27 dispute[d] the conclusions that the Court made”). Indeed, Local Rule 7-9(b)’s express prohibition

28 on repeating “oral” arguments is designed to prevent litigants from raising an argument for the

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1 first time at a hearing, losing, and then taking another run at the same argument after reducing it

2 to writing. See McLaughlin v. Wells Fargo Bank, N.A., 2015 WL 10889994, at *2 (N.D. Cal.

3 Nov. 24, 2015) (denying reconsideration where litigant “simply rehashed its old arguments” that

4 had been presented at oral argument).

5

3. Defendants have failed to show any “material difference in fact or

law” from what was previously presented to the Court. 6

7

Defendants contend that the AG Memorandum justifies reconsideration of the preliminary

8 injunction in this case because it constitutes “a material difference in controlling authority.”

9 Mot. at 7. Presumably, defendants are attempting to invoke Local Rule 7-9(b)(1), which requires

10 them to show “a material difference in fact or law exists from that which was presented to the

11 Court before entry of the interlocutory order for which reconsideration is sought.” Civil L.R. 7-

12 9(b)(1); see also Mot. at 7 (quoting subsection (b)(1)). Plainly, no new facts undercutting the

13 Court’s reading of the Executive Order have emerged since the Court entered its injunction.

14 Instead, defendants point only to the AG Memorandum, which they describe variously as a

15 “conclusive interpretation of the scope of the grant-eligibility provision in Section 9(a) of the

16 Executive Order,” an “authoritative position” of the Department of Justice, and “binding

17 guidance” regarding how the Executive Order should be interpreted. Mot. at 1, 2. Accordingly,

18 their lone argument for reconsideration must be that the AG Memorandum constitutes “a material

19 difference in . . . law” governing the interpretation of the Executive Order for purposes of Local 20 Rule 7-9(b)(1).3

21

This argument fails. To begin with, what constitutes a “conclusive” interpretation of an

22 Executive Order is a matter properly left to the courts, not to executive branch officials—

23 particularly ones who are named defendants in litigation challenging the executive order they are

24 purporting to interpret. See, e.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S.

25 172, 188 (1999) (resolving a dispute over the correct interpretation of an executive order);

26 27 28
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3Defendants make no argument that their motion is proper under Local Rule 7-9(b)(3), which allows for reconsideration when the Court has made a “manifest failure . . . to consider material facts or dispositive legal arguments” previously presented to the Court. Civ. L.R. 7-9(b)(3). And in fact, there was no such failure here; the Court carefully considered defendants’ interpretation of the Order and discussed it at length in its PI Order. Santa Clara, 2017 WL 1459081, at *12–15.
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Marbury v. Madison, 5 U.S. 137, 26 (1803) (“It is emphatically the province and duty of the judicial department to say what the law is.”); Washington v. Trump, 847 F.3d 1151, 1161–62 (9th Cir.), reconsideration en banc denied, 853 F.3d 933 (9th Cir. 2017) (affirming reviewability of executive orders and noting, “Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the [r]esolution of litigation challenging the constitutional authority of one of the three branches” (internal quotation marks omitted)). As the Ninth Circuit has explained, “the interpretation of an Executive Order begins with its text.” Bassidji v. Goe, 413 F.3d 928, 934 (9th Cir. 2005). Crucially, “[t]he text must be construed consistently with the Order’s object and policy,” and courts must reject interpretations that do not serve the purpose of the Order. Id. (internal quotation marks omitted). Further, because executive orders are presidential directives that carry the force of law, courts may focus on statements made by the President when determining the order’s scope and intent. See International Refugee Assistance Project v. Trump, 2017 WL 2273306, at *19 (4th Cir. May 25, 2017), as amended (May 31, 2017) (considering “explicit statements of purpose” that “are attributable either to President Trump directly or to his advisors” when determining the purpose of an executive order); Washington v. Trump, 847 F.3d 1151, 1167 (9th Cir. 2017) (considering President’s statements about “his intent to implement a ‘Muslim Ban’” when analyzing an executive order’s constitutionality).4 Here, the President’s statements—which neither the President nor his codefendants have ever walked back, much less disavowed in some legally binding form—confirm the Executive Order’s text and stated purpose while contradicting the Attorney General’s belated attempt to rewrite the order and evade this Court’s ruling.
The AG Memorandum is not new law that supersedes the President’s Executive Order. Although defendants assert that “the AG Memorandum constitutes formal and binding guidance,” Mot. at 10, their own authority fails to support the bold claim that executive-branch guidance
4 See also Mille Lacs, 526 U.S. at 191 (relying on the President’s intent to determine severability of executive order); Old Dominion Branch No. 496, Nat. Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 275–76 (1974) (considering executive branch officials’ statements when analyzing whether executive order restricted protected speech under the NLRA).
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1 memoranda are binding—even within the executive branch.5 And regardless of the extent to

2 which such opinions may be authoritative within the executive branch, “the courts are not bound

3 by them.” See Cherichel v. Holder, 591 F.3d 1002, 1016 & n.17 (8th Cir. 2010) (“declin[ing] to

4 adopt [the] reasoning” in an Office of Legal Counsel memo). Indeed, courts should (and do)

5 reject executive branch guidance that conflicts with the text or stated purpose of the law being

6 interpreted, or with preexisting court rulings. See, e.g., Public Citizen v. Burke, 655 F. Supp. 318,

7 322 (D.D.C. 1987), aff’d 843 F.2d 1473 (holding that a DOJ memo purportedly implementing the

8 Presidential Recordings and Materials Preservation Act was “contrary to law and cannot be relied

9 on,” because it “thwarted the legislative intent of the Act” and “cannot be reconciled with” a prior

10 D.C. Circuit decision interpreting the Act).

11

To the extent defendants argue the Attorney General’s reading of the Executive Order is

12 entitled to some deference as matter of administrative law, they are wrong. This is not a case

13 involving an agency’s interpretation of its own ambiguous regulation. Even if it were,

14 “[d]eference is undoubtedly inappropriate . . . when the agency’s interpretation is plainly

15 erroneous or inconsistent with the regulation,” “when it appears that the interpretation is nothing

16 more than a convenient litigating position,” or when it is a “post hoc rationalizatio[n] advanced

17 by an agency seeking to defend past agency action against attack.” Christopher v. SmithKline

18 Beecham Corp., 132 S. Ct. 2156, 2166–67 (2012) (internal quotation marks omitted). Those

19 principles apply with particular force in this case, where defendants’ post hoc re-interpretation of

20 the Executive Order is not only at odds with the Executive Order’s text and purpose, but is also

21 “nothing more than [the] ‘convenient litigating position’” of a named defendant. Vietnam

22 Veterans of Am. v. CIA, 811 F.3d 1068, 1077–78 (9th Cir. 2016) (quoting Bowen v. Georgetown

23 Univ. Hosp., 488 U.S. 204, 213 (1988)); see also Safe Air For Everyone v. EPA, 488 F.3d 1088,

24 25 26 27 28
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5 For example, according to the law review article defendants cite, “the question of whether (and in what sense) the opinions of the Attorney General, and, more recently, the Office of Legal Counsel, are legally binding within the executive branch remains somewhat unsettled.” Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1318 (2000). Nor does the Immigration and Nationality Act, 8 U.S.C. 1103(a)(1), provide the Attorney General with authority to rewrite an executive order, or undo a federal district court’s reasoned interpretation by fiat. The Attorney General is neither interpreting the INA, nor issuing any determination or ruling “relating to the immigration and naturalization of aliens.” 8 U.S.C. 1103(a)(1).
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1 1099 (9th Cir. 2007) (“We owe no deference to these post hoc litigating positions, adopted by

2 counsel for EPA.”).

3 B. The AG Memorandum provides no basis for reconsidering the PI Order

4

because it contradicts the Executive Order’s plain text and stated purpose.

5

Even if the Court were to forgive defendants’ numerous and admitted violations of Local

6 Rule 7-9 and nonetheless consider the AG Memorandum as a possible basis for reconsideration,

7 that memorandum does nothing to undercut the Court’s ruling. Because the AG Memorandum

8 advances the same interpretation of the Executive Order in a new package, it is just as

9 incompatible with the plain text and stated purpose of the Executive Order as the position

10 defendants offered at oral argument.

11

As before, defendants argue that they will interpret the Executive Order (for the time

12 being) as reaching only DOJ and DHS grant programs, which they contend are subject to express

13 congressional conditions regarding compliance with 8 U.S.C. § 1373. Notably, defendants say

14 nothing about which or how many DHS grants are in play, and they offer no declaration from any

15 DHS official in support of their now-memorialized interpretation. Instead, they focus on three

16 DOJ-issued grants: SCAAP, JAG, and COPS grants. As the Court previously and properly ruled,

17 the Executive Order cannot be squared with defendants’ crabbed reading. See Santa Clara, 2017

18 WL 1459081, at *9 (“[I]t is not reasonable to interpret the directive as applying solely to law

19 enforcement grants that the Attorney General and Secretary are specifically given authority to

20 exempt from the Order.”). The Court’s existing PI Order remains fundamentally sound and

21 correct for the following eight reasons.

22

First, Section 2 of the Executive Order (titled “Policy”) sets forth the policy justifications

23 for the Order. Among them is the unqualified purpose of ensuring “that jurisdictions that fail to

24 comply with applicable Federal law do not receive federal funds.” EO § 2(c) (emphasis added).

25 This is the broadest possible statement of intent to defund, and it clearly speaks, without

26 limitation, in terms of “federal funds,” not three specified DOJ grant programs. Likewise,

27 Section 9(c) instructs the OMB Director to assemble a list of all federal grants received by any

28 sanctuary jurisdiction, see EO § 9(c), which again demonstrates that the Executive Order was

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1 intended to apply to all federal funding.

2

Second, nothing in the enjoined Defunding Provision of Section 9(a) limits the definition

3 of affected “Federal grants” in any way. Neither does the text of that section leave it up to the

4 Attorney General or DHS Secretary to determine which “Federal grants” are subject to defunding,

5 or indicate that any executive branch official will need to make a further determination about the

6 scope of affected federal funds. Certainly there is nothing in Section 9(a) that limits defunding to

7 only DOJ and DHS grants expressly conditioned on compliance with section 1373.

8

Third, as the Court has already noted in rejecting the Administration’s interpretation, “the

9 Government can already enforce [SCAAP, JAG, and COPS] grants by the terms of those grants

10 and can enforce 8 U.S.C. 1373 to the extent legally possible under the terms of existing law.”

11 Santa Clara, 2017 WL 1459081, at *1. If this were truly the intended scope of the Executive

12 Order, it would be a legal nullity. Rather than issuing repeated proclamations about stripping

13 federal funds from targeted jurisdictions, the President simply could have made telephone calls to

14 cabinet members, directing them to enforce existing law. The Executive Order was obviously

15 intended and clearly drafted to do more than this; as the Court reasoned in its order granting

16 preliminary relief, defendants’ “interpretation renders the Order toothless.” Id.

17

Fourth, the Administration’s limiting construction of Section 9(a)’s Defunding Provision

18 directly contradicts the lone exception included in that provision. Section 9(a) directs the

19 Attorney General and DHS Secretary to ensure that “sanctuary jurisdictions” are “not eligible to

20 receive Federal grants, except as deemed necessary for law enforcement purposes . . . .” EO §

21 9(a) (emphasis added). There is no dispute here that the three grant programs defendants identify

22 as subject to defunding—SCAAP, JAG, and COPS—are all law enforcement programs. Nothing

23 in the AG Memorandum suggests that anyone in the government has made any determination that

24 these law enforcement grants are not “necessary” for local law enforcement, thus taking them

25 outside the Defunding Provision’s law enforcement carve-out. In other words, under the

26 Administration’s tortured reading, the Defunding Provision applies only to grants that the text of

27 that provision clearly exempts. The Court already considered and properly rejected this strained

28 reading for just this reason. Santa Clara, 2017 WL 1459081, at *9.

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1

Fifth, the AG Memorandum’s creation itself violates the plain text of Section 9(a). That

2 section gives the DHS Secretary, not the Attorney General, “the authority to designate, in his

3 discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.” EO §

4 9(a). Defendants acknowledged this provision at oral argument, describing the DHS Secretary’s

5 role as a threshold issue that made the County’s claims unripe. As defendants’ counsel explained,

6 “the Order just directs the Secretary to look into the issue and to make the designation.” Tr. at

7 27:3–9; see also id. at 26:8–10 (“The second sentence is a directive to the Secretary—separate

8 from the first sentence, to the Secretary of DHS to identify sanctuary jurisdictions.”). The Court

9 likewise concluded that the Executive Order’s “structure and language make clear” that “the

10 Secretary will eventually define” the phrase “sanctuary jurisdiction.” Santa Clara, 2017 WL

11 1459081, at *9; id. at *13 (noting “Section 9(a)’s broad grant of discretion to the Secretary to

12 designate jurisdictions as ‘sanctuary jurisdictions’”).

13

But as the AG Memorandum makes clear, the Attorney General, not the DHS Secretary,

14 has now defined “sanctuary jurisdictions” as “only . . . jurisdictions that ‘willfully refuse to

15 comply with 8 U.S.C. 1373.’” AG Memo at 2. By promulgating this definition, Attorney

16 General Sessions has usurped the DHS Secretary’s delegated role under Section 9(a). Again, this

17 shows the AG Memorandum is an on-the-fly, litigation-driven redrafting of the Executive Order, 18 not a reasoned interpretation.6

19

Sixth, much like defendants’ opposition to the County’s preliminary injunction motion

20 did, the AG Memorandum ignores Section 9(a)’s separate Enforcement Provision, which instructs

21 the Attorney General to “take appropriate enforcement action against any entity that violates 8

22 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the

23 enforcement of Federal law.” EO § 9(a). Nothing in the Enforcement Provision—or the AG

24 Memorandum purporting to interpret it—limits “appropriate enforcement action” to withdrawing

25 three kinds of DOJ grants for alleged refusal to comply with section 1373. To the contrary, by

26 referencing actions that “prevent or hinder the enforcement of Federal law” generally, the

27 28
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6 It is also worth noting that other sections of the Executive Order direct executive branch officials to issue guidance or promulgate regulations to carry those provisions into effect. See EO §§ 6, 10(b). Section 9 includes no such directive.
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1 Enforcement Provision plainly contemplates punishment of “sanctuary jurisdictions” for any

2 perceived hindrance of federal law enforcement, whether or not related to section 1373. To have

3 meaning, the Enforcement Provision must enable some action beyond what the Defunding

4 Provision already authorizes, but neither the Executive Order nor the AG Memorandum sets any

5 limits on what the Enforcement Provision permits. Moreover, unlike the Defunding Provision,

6 the Enforcement Provision does not contain the usual perfunctory savings clause directing that it

7 be applied “to the extent consistent with law.”

8

In their motion, defendants attempt to make up for this admitted deficiency in the AG

9 Memorandum, arguing that the Enforcement Provision “limits the Attorney General to taking

10 ‘appropriate’ action,” and that the County could challenge such an action if and when it is taken.

11 Mot. at 18. That is no limit at all; rather, it is a concession that the Enforcement Provision is

12 unconstitutionally vague, just as the Court concluded in its PI Order. See Santa Clara, 2017 WL

13 1459081, at *25.

14

Seventh, the AG Memorandum fails to clarify whether a jurisdiction’s refusal to comply

15 with ICE civil detainer requests would constitute a “willful refusal to comply” with section 1373.

16 If anything, the memorandum muddies the waters still further. In one breath, defendants concede

17 that the AG Memorandum is silent on whether the refusal to comply with civil detainer requests

18 from ICE would constitute “willful refusal to comply” with section 1373. Mot. at 11 (“The

19 Memorandum does not mention detainer requests”). Then, in the next breath, defendants turn 180

20 degrees to argue that “the AG Memorandum clarifies that the grant-eligibility provision does not

21 create a retroactive grant condition requiring compliance with federal civil detainer requests.” Id.

22 at 11:18-19. The AG Memorandum says no such thing; it avoids any discussion of detainer

23 requests at all.

24

Other provisions of the Executive Order, however, suggest that the Administration is—

25 mistakenly—reading section 1373 to require compliance with detainer requests. Section 9(b)

26 explicitly directs the government to compile a list of states or localities that “ignore[] or otherwise

27 fail[] to honor” detainer requests, in order “[t]o better inform the public regarding the public

28 safety threats associated with sanctuary jurisdictions.” EO § 9(b). This confirms that the

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1 Administration equates failure to comply with detainer requests with “sanctuary jurisdiction”

2 status and the associated penalties under the Executive Order. And the Administration’s

3 reference to “retroactive” grant conditions leaves open the prospect that the Attorney General will

4 demand compliance with civil detainer requests as a condition for receipt of future grants.

5

Eighth, as discussed in Part II.A, supra, the many public statements of the President and

6 his subordinates regarding the intended scope of the Executive Order directly refute the AG

7 Memorandum’s after-the-fact attempts to narrow its broad sweep. There can be no question that

8 the President and his Administration intended the Executive Order to mean what it says on its

9 face. The Court partially enjoined that Order, and its language remains unchanged.

10

Defendants’ revisionist interpretation of the Executive Order fails for all these reasons. In

11 response, defendants repeat another argument they advanced previously: the Executive Order

12 must be constitutional, because it limits its enforcement “to the extent permitted by law.” Mot. at

13 9–10. Of course, as just noted, the Enforcement Provision in section 9(a) does not contain this (or

14 any) limitation. But in any event, defendants’ reliance on these boilerplate savings clauses

15 elevates form over substance and should be rejected.

16

Defendants cite only one out-of-circuit case in support of their rehashed savings-clause

17 argument: the D.C. Circuit’s decision in Building & Construction Trades Department, AFL-CIO

18 v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002). But Allbaugh provides no support for defendants’

19 position. Allbaugh related to the scope of the executive branch’s authority under a federal

20 statute—the Federal Property and Administrative Services Act (the “Procurement Act”)—and

21 how the exercise of that authority meshed with the National Labor Relations Act. Unlike

22 Executive Order 13,768, which lacks any statutory basis, the executive order in Allbaugh did not

23 announce a facially unconstitutional presidential policy, and a lawful interpretation of that order

24 was possible given its plain language and stated purpose. In Allbaugh, the executive order

25 “establish[ed] the policy of the Government with regard to the use of PLAs [project labor

26 agreements] in federal and federally funded construction contracts.” 295 F.3d at 30. It was

27 uncontested that Congress, via the Procurement Act, had expressly authorized a role for the

28 President. Id. at 32. The court explained that because the President directed his subordinates to

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1 proceed “[t]o the extent permitted by law,” they were “duty-bound to give effect to the policies

2 embodied in the President’s direction,” but only insofar as legally permitted. Id. at 32–33.

3

Allbaugh cannot save this Executive Order. That case in no way held that a boilerplate “to

4 the extent permitted by law” savings clause can rescue an executive order like this one, which is

5 unconstitutional on its face. Defendants essentially conceded this at oral argument. See Tr. at

6 23:22–24:2 (“THE COURT: . . . so, for example, if there is an Executive Order that prohibited

7 the sale of excess federal property to African Americans to the extent consistent with law, that

8 would be an unconstitutional order, wouldn’t it? MR. READLER: That would be hard to defend,

9 Your Honor, correct.”). Neither does Allbaugh authorize a subordinate executive branch official

10 to reinterpret—or, more accurately, rewrite—an executive order in a manner that is inconsistent

11 with the plain language of the order, the express purpose of the order, and the President’s

12 repeated public statements about the order.

13

Because the AG Memorandum, like defense counsel’s statements at the April 14 hearing,

14 are a wholesale redrafting of a patently unconstitutional Executive Order rather than an

15 interpretation of that Order, defendants fail to provide any legitimate basis for this Court to

16 reconsider its April 25, 2017 ruling.

17

C. The AG Memorandum, even if credited, fails to remedy the Executive

Order’s constitutional infirmities. 18

19

For the foregoing reasons, the Court should disregard the AG Memorandum as a basis to

20 revisit its order. But even if taken at face value as new controlling authority rather than a

21 warmed-over written version of a previously rejected oral argument, the AG Memorandum fails

22 to salvage the Executive Order from its inherent unconstitutionality.

23

First, to carry the force of law, an executive order must be supported by some statutory or

24 constitutional authority. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 586 (1952).

25 The AG Memorandum cannot and does not provide any such authority. Indeed, the President’s

26 recent budget document urged Congress to provide him with the statutory authority he admittedly

27 lacked when he issued the Order. See Appendix to Budget of the U.S. Gov’t, Fiscal Year 2018, at

28 544, https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/budget/fy2018/appendix.pdf.

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1 Because the President had no such statutory or constitutional authority to issue the Executive

2 Order, it remains an unconstitutional violation of the separation of powers. See Santa Clara,

3 2017 WL 1459081, at *21–22.

4

Second, the Administration’s focus on SCAAP, JAG, and COPS grants raises as many

5 questions as it answers. The parties have never briefed, and the County does not concede, that

6 SCAAP, JAG, or COPS grants have ever been subject to an express congressional condition that

7 grant recipients comply with section 1373. In fact, nothing in any act of Congress approving

8 those programs mentions section 1373, much less conditions those grants on compliance with that

9 statute. Indeed, defendants’ own declarant, Mr. Martin, confirms that JAG grants are not

10 expressly conditioned on compliance with section 1373. See Dkt. 113-2, Martin Decl. ¶ 15. And

11 Congress has repeatedly considered and rejected tying those funds to compliance with section

12 1373. See, e.g., Protecting American Lives Act, S. 1842, 114th Cong. (2016) (died in

13 committee); Protecting American Lives Act, H.R. 3437, 114th Cong. (2016) (same); Protecting

14 American Citizens Together Act, S. 1764, 114th Cong. (2015) (same); Enforce the Law for

15 Sanctuary Cities Act, H.R. 3009, 114th Cong. (2015) (same). Instead, the current congressional

16 enactment generically refers only to “all other applicable federal laws.” See 42 U.S.C.

17 3752(5)(D)(certification that “the applicant will comply with all provisions of this part and all

18 other applicable Federal laws”). It was not until 2016 that DOJ first interpreted the SCAAP and

19 JAG grant programs as requiring compliance with section 1373, despite Congress’s silence on the

20 matter. The County neither concedes that DOJ’s expansive position on section 1373’s scope or

21 the grant conditions at issue is correct, nor that Congress expressly or validly conditioned any

22 funds on compliance with section 1373 under controlling spending clause jurisprudence.

23

Third, the AG Memorandum’s silence on which DHS grants are affected is similarly

24 problematic. DHS’s discretionary grants to state and local jurisdictions—such as the pre-disaster

25 mitigation and emergency preparedness grants the County receives, see Dkt. 32, Decl. of Dana

26 Reed ¶¶ 5–6—plainly have no nexus to immigration enforcement. Even an attempt by Congress

27 to tie such grants to compliance with Section 1373 or civil detainer requests would likely violate

28 the Constitution. See National Fed. of Indep. Bus. v. Sebelius (“NFIB”), 132 S. Ct. 2566, 2602–

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1 04 (2012); South Dakota v. Dole, 483 U.S. 203, 211 (1987); Santa Clara, 2017 WL 1459081, at 2 *23 (noting there is no nexus between section 1373 and “emergency preparedness” grants).7

3

Fourth, the AG Memorandum’s big reveal is its definition for “sanctuary jurisdictions,”

4 supposedly limiting the term to “jurisdictions that ‘willfully refuse to comply with 8 U.S.C.

5 1373.’” AG Memo. at 2. But this definition ignores this Court’s conclusion that this same

6 language is unconstitutionally vague:

7

The Order clearly directs the Attorney General and Secretary to ensure that

jurisdictions that “willfully refuse to comply” with Section 1373, “sanctuary

8

jurisdictions,” are not eligible to receive federal grants. The Government

repeatedly emphasizes in its briefing that it does not know what it means to

9

“willfully refuse to comply” with Section 1373. Past DOJ guidance and various

court cases interpreting Section 1373 have not reached consistent conclusions as to

10

what 1373 requires. In the face of conflicting guidance, and no clear standard

from the Government, jurisdictions do not know how to avoid the Order’s

11

defunding penalty.

12 Santa Clara, 2017 WL 1459081, at *25 (citation omitted). In other words, the AG Memorandum

13 provides a key term with a definition that this Court has previously—and correctly—concluded

14 makes “it impossible for jurisdictions to determine how to modify their conduct, if at all, to avoid

15 the Order’s penalties.” Id. By providing no further explanation of what it means to “willfully

16 refuse to comply” with Section 1373, the Attorney General has doubled down on a definition that

17 this Court has already ruled is too vague to be enforced consistent with constitutional due process.

18

Fifth, Section 9(a)’s Enforcement Provision remains as unconstitutionally vague as it was

19 the day the Court ruled. The AG Memorandum ignores it completely. It does not, for example,

20 limit the scope of permissible “enforcement” to alleged violations of section 1373. The AG

21 Memorandum leaves in place the Executive Order’s broadest possible threat of reprisals for any

22 act the Administration contends hinders federal law enforcement. Because the Administration

23 remains unable to explain what sorts of punishments the Attorney General may mete out, or what

24 25 26 27 28
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7 Moreover, even the narrow categories of grants that the Administration seeks unlawfully to tie to section 1373 suffice to justify preliminary injunctive relief. Not only do the constitutional violations themselves support the injunction, but as discussed in the PI Order and the County’s briefing, irreparable harm is also independently supported by the Executive Order’s coercive impact on state and local governments, even if the total dollar amount in question is diminished. See Santa Clara, 2017 WL 1459081, at *26-27 (finding irreparable harm because “the Order improperly seeks to coerce [the plaintiffs] into changing their policies in violation of the Tenth Amendment”); see also Texas v. United States, 201 F. Supp. 3d 810, 819 (N.D. Tex. 2016); Texas v. United States, 86 F. Supp. 3d 591, 673–74 (S.D. Tex. 2015).
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1 state and local governments would have to do to avoid such unspecified punishment, the

2 Enforcement Provision (still) violates the Fifth Amendment and must be struck down. See United

3 States v. Williams, 553 U.S. 285, 304 (2008).

4

Sixth, nothing in the two-page AG Memorandum suggests that it is and must be the

5 Administration’s final word on the Executive Order’s interpretation and application. On the

6 contrary, the memorandum’s failure to mention affected DHS grants, or to clarify the Executive

7 Order’s application to declined civil detainer requests, suggests additional guidance may be

8 forthcoming. Accordingly, notwithstanding defense counsel’s assurances that the AG

9 Memorandum is “conclusive,” “authoritative,” and “binding,” there is no reason to suppose that

10 the Attorney General may not decide to revise, supplement, supplant, or revoke that guidance if

11 and when he sees fit. If the Administration believes it can displace a Court order—and rewrite an

12 Executive decree—merely by issuing a memo, there is every reason to suspect it may do so again.

13 In other words, whether or not the AG Memorandum binds the executive branch as a whole (it

14 doesn’t) or this Court (it can’t), it certainly doesn’t bind the Attorney General who issued it.

15

Finally, by leaving the door open to enforcing the Order against jurisdictions that refuse to

16 comply with civil detainer requests, the AG Memorandum does nothing to cure the Executive

17 Order’s Tenth Amendment problems. The County continues to have every reason to expect that

18 the Administration will withhold appropriated federal funds unless the County is prepared to

19 violate its residents’ Fourth Amendment rights and incur civil liability for doing so. The federal

20 government may not commandeer local officials to implement a federal regulatory program in

21 that way. See Printz v. United States, 521 U.S. 898, 925 (1997).

22

In sum, the AG Memorandum says little and changes nothing. Even if it were a binding

23 statement of law that overrules the President’s Executive Order (which it is not), it falls far short

24 of remedying the constitutional flaws the County identified in its moving papers. Consequently,

25 it provides no basis for the Court to revisit its holding that the County’s claims are likely to

26 succeed, that they are justiciable, and that the County faces irreparable harm. The constitutional

27 harms, budgetary uncertainty, and reasonable fear of enforcement are just as compelling as they

28 were when the Court issued its preliminary injunction.

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1

D. There is no reason for the Court to “clarify” the preliminary injunction.

2

The Court should likewise reject defendants’ alternative request to “clarify” the scope of

3 the preliminary injunction. Under the Court’s existing order, the Administration is not enjoined

4 from “exercising legal authority independent of the Executive Order to impose conditions on

5 grant programming for future DOJ or DHS-administered grants.” Mot. at 20. There is no reason

6 for the Court to issue any “clarification.” Indeed, the Court’s preliminary injunction order

7 distinguished Section 9(a) of the Executive Order, which is unlawful, from other provisions of

8 federal law that might theoretically give the Administration the power to withdraw or modify

9 grant funding. The Court took pains in its order to make clear that the injunction “does not

10 impact the Government’s ability to use lawful means to enforce existing conditions of federal

11 grants or 8 U.S.C. 1373.” Santa Clara, 2017 WL 1459081, at *29. This could hardly be clearer,

12 and defendants do not explain the source of their apparent confusion about the scope of the

13 injunction, or present a specific hypothetical case where the applicability of the Court’s order

14 might be in doubt.

15 V. CONCLUSION

16

Only one document at issue in this lawsuit has the force of law, and that is Executive

17 Order 13,768. The County challenged Section 9 of that Order, and that is what the Court

18 enjoined. The Executive Order remains in place and unchanged. Yet in a transparent effort to

19 override this Court’s preliminary injunction order, defendants have issued a two-page

20 memorandum that lacks the force of law and merely reduces to writing the same arguments this

21 Court has already considered and rejected. Defendants now ask this Court to ignore the

22 challenged Executive Order, which is binding law, and focus instead on the memorandum, which

23 is not.

24 //

25 //

26 //

27 //

28 //

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1

The Court should decline defendants’ invitation. Defendants have failed to show

2 reasonable diligence, failed to point to any material change in the law that could justify

3 reconsideration, and failed to put forward a plausible interpretation of the Executive Order that

4 cures its many constitutional defects. In short, defendants’ arguments fare no better the second

5 time around. The Court should deny defendants’ motion for reconsideration.

6 7 Dated: June 6, 2017 8

Respectfully submitted,
OFFICE OF THE COUNTY COUNSEL, COUNTY OF SANTA CLARA

9 10 11 12 13 14 15 16 Dated: June 6, 2017

By: /s/ James R. Williams JAMES R. WILLIAMS GRETA S. HANSEN L. JAVIER SERRANO DANIELLE L. GOLDSTEIN KAVITA NARAYAN JULIE WILENSKY JULIA B. SPIEGEL ADRIANA L. BENEDICT
Attorneys For Plaintiff COUNTY OF SANTA CLARA
KEKER, VAN NEST & PETERS LLP

17

By: /s/ John W. Keker

18

JOHN W. KEKER

ROBERT A. VAN NEST

19

DANIEL PURCELL

CODY S. HARRIS

20

NICHOLAS S. GOLDBERG

EDWARD A. BAYLEY 21

Attorneys For Plaintiff COUNTY OF

22

SANTA CLARA

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1

FILER’S ATTESTATION

2

I, John W. Keker, am the ECF user whose identification and password are being used to

3 file this PLAINTIFF COUNTY OF SANTA CLARA’S OPPOSITION TO DEFENDANTS’

4 MOTION FOR RECONSIDERATION. Pursuant to Rule 5-1(i)(3), I hereby attest that the other

5 above named signatories concur in this filing.

6

7

/s/ John W. Keker JOHN W. KEKER

8

9

10

11

12

13

14

15

16

17

18

19

20

21

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 Case 3:17-cv-00574-WHO Document 115 Filed 06/07/17 Page 1 of 32

1 CHAD A. READLER

2

Acting Assistant Attorney General BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883
Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the

11 United States; JOHN F. KELLY, Secretary of
Homeland Security; JEFFERSON B.

12 SESSIONS, III, Attorney General of

the United States; MICK MULVANEY,
13 Director of the Office of Management and

14 Budget

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

SAN FRANCISCO DIVISION

18 COUNTY OF SANTA CLARA,

19
Plaintiff,

20

v.

21 DONALD J. TRUMP, et al.,

22

Defendants.

23

24

No. 3:17-cv-00574-WHO

DEFENDANTS’ NOTICE OF MOTION AND MOTION TO DISMISS; MEMORANDUM OF POINT AND AUTHORITIES

Date: Time:

July 19, 2017 2:00 p.m.

25

26

27

28

Motion to Dismiss; Memorandum No. 3:17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 115 Filed 06/07/17 Page 2 of 32

1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES .......................................................................................................... ii

4 NOTICE OF MOTION AND MOTION TO DISMISS ................................................................. 1

5 MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1

6 INTRODUCTION .......................................................................................................................... 1

7 ISSUES PRESENTED.................................................................................................................... 3

8 STATUTORY AND ADMINISTRATIVE BACKGROUND ....................................................... 4

9

I. Broad Executive Discretion in Enforcement of Immigration Law ......................... 4

10

II. Executive Order 13,768 .......................................................................................... 6

11

III. The AG Memorandum ............................................................................................ 7

12 PROCEDURAL BACKGROUND ................................................................................................. 8

13 ARGUMENT .................................................................................................................................. 8

14

I. Plaintiff Lacks Standing and Its Claims Are Unripe............................................. 11

15

II. Plaintiff Fails to State Any Viable Claim Regarding the Executive Order, Which Is an Internal Directive and Does

16

Not Directly Affect the Plaintiff ........................................................................... 11

17

III. Plaintiff Fails to State a Viable Challenge to Section 9(a) of the Executive Order, as Elucidated by the AG Memorandum ......................... 13

18

A. Plaintiff Fails to State a Viable Claim under

19

the Separation of Powers........................................................................... 13

20

B. Plaintiff Fails to State a Viable Claim under the Spending Clause .................................................................................. 14

21

C. Plaintiff Fails to State a Viable Claim that

22

Section 9(a) Is Unconstitutionally Vague ................................................. 19

23

D. Plaintiff Fails to State a Viable Claim Regarding Procedural Due Process............................................................................. 21

24

IV. Plaintiff’s Claim that the “Appropriate Enforcement Action”

25

Provision of Section 9(a) Violates the Tenth Amendment Is Non-Justiciable.................................................................................................. 22

26 CONCLUSION ............................................................................................................................. 25

27

28

Motion to Dismiss; Memorandum

i

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1

TABLE OF AUTHORITIES

2

3 CONSTITUION
4 U.S. Const. Art. I, § 8, cl. 1...................................................................................................... 13, 14
5
U.S. Const., Art. III, § 2 ................................................................................................................... 8
6
U.S. Const. art. III, § 2, cl. 1 .......................................................................................................... 23
7

8 CASES

9 Abbott Labs. v. Gardner, 387 U.S. 136 (1967) .................................................................. 11, 23, 24

10 Aguiar v. Wells Fargo Bank, N.A., No. 12-CV-03653 YGR,

11

2012 WL 5915124 (N.D. Cal. Nov. 26, 2012) ............................................................................ 2

12

Am. Fed’n of State, Cty. & Mun. Employees v. Scott, 717 F.3d 851 (11th Cir. 2013) ....................................................................................... 11, 14, 15

13 Arizona Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. Feb. 2, 2017) .................................... 4

14 Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492 (2012) ......................................... 4, 21, 25

15 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............................................................................................ 9

16 Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ................... 17

17 Bigelow v. Virginia, 421 U.S. 809 (1975)...................................................................................... 23

18 Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002) .................. 7, 8

19 Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc.,

20

288 F.3d 414 (9th Cir. 2002) ..................................................................................................... 22

21 Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F.3d 1156 (9th Cir. 2016) ............................. 9

22 Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal. May 19, 1995) ............... 11

23

Cty. of Santa Clara v. Trump, No. 17-CV-00485-WHO, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017) ................................................................... 13, 14, 16

24 DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275 (D.C. Cir. 1989)...................................................... 13

25 Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905 (D.C. Cir. 1985)................................................. 24

26 FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) .................................................................... 23

27 Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198 (D. Haw. 1998) ..................................... 23

28

Motion to Dismiss; Memorandum

ii

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Case 3:17-cv-00574-WHO Document 115 Filed 06/07/17 Page 4 of 32

1 Humanitarian Law Project v. U.S. Treasury Dep’t,
578 F.3d 1133 (9th Cir. 2009) ....................................................................................... 10, 20, 21
2
In re Apple Iphone Antitrust Litig., 846 F.3d 313 (9th Cir. 2017) ................................................... 9
3
In re ATM Fee Antitrust Litig., No. C 04-2676 CRB, 2010 WL 2557519
4 (N.D. Cal. June 21, 2010) ............................................................................................................ 9

5 Legal Aid Soc’y of Alameda County v. Brennan, 608 F.2d 1319 (9th Cir. 1979).......................... 12

6 Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992)....................................................................... 9

7 Mathews v. Eldridge, 424 U.S. 319 (1976).................................................................................... 21

8 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ....................................................... 16, 17

9 Mir v. Little Co. of Mary Hosp., 844 F.2d 646 (9th Cir. 1988)........................................................ 2

10 N.Y. v. United States, 505 U.S. 144 (1992) .................................................................................... 17

11 Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ..................................................... 19

12 Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016)........................... 23

13 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) .............................................................................. 9

14 NTEU v. Bush, 891 F.2d 99 (5th Cir. 1989)............................................................................. 11, 14

15 Ore. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc.,
288 F.3d 414 (9th Cir. 2002) ..................................................................................................... 23
16
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981) .................................................. 15
17
Renne v. Geary, 501 U.S. 312 (1991) .............................................................................................. 9
18
Robinson v. United States, 586 F.3d 683 (9th Cir. 2009) ................................................................ 9
19
SEIU, Local 82 v. D.C., 608 F. Supp. 1434 (D.D.C. 1985) .......................................................... 20
20
Skilling v. United States, 561 U.S. 358 (2010) ............................................................................. 20
21
South Dakota v. Dole, 483 U.S. 203 (1987) ........................................................................... passim
22
Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624 (9th Cir. 1989) .......................................... 24
23
State of Cal. v. United States, 104 F.3d 1086 (9th Cir. 1997)........................................................ 18
24
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)................................................ 9, 23, 24
25
Tenaska Washington Partners II, L.P. v. United States, 34 Fed. Cl. 434 (1995) ............................ 7
26
Texas v. United States, 523 U.S. 296 (1998) ................................................................................. 24
27
Tucson Woman's Clinic v. Eden, 379 F.3d 531 (9th Cir. 2004)............................................... 19, 20
28

Motion to Dismiss; Memorandum

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1 U.S. W. Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112 (9th Cir. 1999).................................... 24

2 United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) ..................................................... 21, 25

3 United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal. 2015) ................................................... 12

4 United States v. Salerno, 481 U.S. 739 (1987) ....................................................................... passim

5 United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013) ............................................... 21, 25

6 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) .................... 10, 19, 20

7 Whitmore v. Arkansas, 495 U.S. 149 (1990) ..................................................................... 11, 23, 24

8 Winter v. California Med. Review, Inc., 900 F.2d 1322 (9th Cir. 1989)........................................ 24

9

10 STATUTES

11 8 U.S.C. §§ 1101 et seq.................................................................................................................... 4

12 8 U.S.C. § 1103(c)(1) ....................................................................................................................... 7

13 8 U.S.C. § 1324 .............................................................................................................................. 21

14 8 U.S.C. § 1324a ............................................................................................................................ 21

15 8 U.S.C. § 1325 .............................................................................................................................. 21

16 8 U.S.C. § 1357(g)(1)....................................................................................................................... 5

17 8 U.S.C. § 1357(g)(10)(B) ............................................................................................................... 5

18 8 U.S.C. § 1373 ....................................................................................................................... passim

19 28 U.S.C. § 512 ............................................................................................................................ 2, 7

20 42 U.S.C. § 3712(a) ....................................................................................................................... 14

21 42 U.S.C. § 3752(a)(5)(D) ............................................................................................................. 14

22 Pub. L. No. 104-208, Div. C, Title VI, § 642, 110 Stat. 3009 (1996) ............................................. 5

23 24 REGULATIONS 25 2 C.F.R. § 200.341 ......................................................................................................................... 22 26 28 C.F.R. § 0.5(c)......................................................................................................................... 2, 7 27 28 C.F.R. pt. 18 .............................................................................................................................. 22

28

Motion to Dismiss; Memorandum

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1 EXECUTIVE ORDERS

2 Exec. Order No. 13,608, 77 Fed. Reg. 26,409 (2012) ..................................................................... 4

3 Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (2016) ..................................................................... 4

4 Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. passim

5

6 OTHER AUTHORITIES

7 Mem. from Att’y Gen. for All Dep’t Grant-Making Components (May 22, 2017) ............... passim

8

Mem. from John Kelly, Sec’y of Homeland Sec., to Kevin McAleenan, Acting Comm’r, U.S. Customs and Border Protection, et al.,

9

Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017)............... 5

10

Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason, Assistant Att’y Gen., Office of Justice Programs, Department of Justice

11

Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016) ............................................................................................ 5, 6

12 Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the

13

Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1319-20 (2000) ........................................... 7

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

NOTICE OF MOTION AND MOTION TO DISMISS

2

PLEASE TAKE NOTICE that on Wednesday, July 19, 2017, at 2:00 p.m., or as soon

3 thereafter as counsel may be heard, before The Honorable William H. Orrick, in Courtroom 2,

4 17th Floor, of the United States Courthouse, 450 Golden Gate Avenue, San Francisco, California,

5 the defendants will move, and hereby do move, for dismissal of this action under Rules 12(b)(1)

6 and 12(b)(6) of the Federal Rules of Civil Procedure. This motion is based on the following

7 Memorandum of Points and Authorities, the evidence and records on file in this action, and any

8 other written or oral evidence or argument that may be presented at or before the time this motion

9 is heard by the Court.1

10

MEMORANDUM OF POINTS AND AUTHORITIES

11

INTRODUCTION

12

On January 25, 2017, the President signed Executive Order 13,768 for the declared

13 purpose of “direct[ing] executive departments and agencies . . . to employ all lawful means to

14 enforce the immigration laws of the United States.” See Exec. Order No. 13,768, § 1, 82 Fed.

15 Reg. 8,799 (Jan. 30, 2017). Section 9 of the Order, which is the subject of this litigation, directs

16 the Attorney General and the Secretary of Homeland Security (“Secretary”), “in their discretion

17 and to the extent consistent with law, [to] ensure that jurisdictions that willfully refuse to comply

18 with 8 U.S.C. 1373 . . . are not eligible to receive Federal grants, except as deemed necessary for

19 law enforcement purposes . . . .” Id. § 9(a). Section 9 also instructs the Attorney General to take

20 “appropriate enforcement action” against any entity that violates Section 1373 or has a statute or

21 policy that “prevents or hinders the enforcement of Federal law.” Id. Section 1373 provides,

22 among other things, that no government entity or official may prohibit or restrict the sending or

23 receiving of information regarding the citizenship or immigration status of any individual to

24 federal immigration authorities. 8 U.S.C. § 1373(a).

25

26

1 Plaintiff names “DOES 1-100” as defendants in this matter but does not identify those

27

individuals or specify the capacity in which they are being sued (Doc. 1 ¶ 24). Undersigned counsel does not purport to represent those individuals, and claims against them are not at issue in

28 this motion to dismiss. Moreover, because those individuals have not been named or served,
granting this motion would resolve this litigation in its entirety.

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1

The Order is a presidential directive, directed to the Attorney General, the Secretary, and

2 other federal officials. It does not purport to alter the existing requirements of Section 1373 (or

3 any other federal law), to impose new burdens on state or local jurisdictions, or to expand the

4 legal authority of the Attorney General or the Secretary. Rather, it simply announces the policy

5 of the Executive Branch and directs the Attorney General and the Secretary, in their discretion

6 and consistent with their existing legal authority, to ensure that jurisdictions that willfully refuse

7 to comply with Section 1373 not be eligible to receive federal grants and to take enforcement

8 action as appropriate. Id.

9

The Attorney General, in the exercise of his discretion under Section 9(a) of the Order and

10 his overall responsibility to advise executive department heads, see 28 U.S.C. § 512; 28 C.F.R.

11 § 0.5(c), has issued authoritative, binding guidance regarding the implementation of Section 9(a).

12 See Mem. from Att’y Gen. for All Dep’t Grant-Making Components (May 22, 2017) (Attachment

13 1 hereto) (hereinafter AG Mem.).2 Among other things, the AG Memorandum provides (1) that

14 the grant eligibility provision in Section 9(a) applies “solely to federal grants administered by the

15 Department of Justice or the Department of Homeland Security [“DHS”], and not to other sources

16 of federal funding[,]” (2) that the Department of Justice (“DOJ”) will require jurisdictions

17 applying for certain DOJ-administered grants “to certify their compliance with federal law,

18 including 8 U.S.C. § 1373,” (3) that the certification will be required only where the agency is

19 “statutorily authorized to impose such a condition,” (4) that “[a]ll grantees will receive notice of

20 their obligation to comply with section 1373,” and (5) that only “jurisdiction[s] that fail[] to

21 certify compliance with section 1373 will be ineligible to receive [an] award[].” AG Mem. at 1-2.

22

23
2 This Court can freely consider the AG Memorandum on this motion to dismiss without
24 affecting the nature of the motion. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th
25 Cir. 1988) (“[I]t is proper for the district court to take judicial notice of matters of public record
outside the pleadings and consider them for purposes of the motion to dismiss.”) (internal
26 quotation marks omitted); Aguiar v. Wells Fargo Bank, N.A., No. 12-CV-03653 YGR, 2012 WL
5915124, at *2 (N.D. Cal. Nov. 26, 2012) (stating that court “may consider matter that is properly
27 the subject of judicial notice, such as court filings and other public records, without converting a
28 motion to dismiss into one for summary judgment”).

Motion to Dismiss; Memorandum

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1

The AG Memorandum further establishes that Santa Clara County lacks standing in this

2 case and that its claims are unripe; thus, all of plaintiff’s claims herein should be dismissed for

3 lack of jurisdiction. Further, to the extent the Court addresses plaintiff’s individual claims, each

4 claim must be dismissed under either Rule 12(b)(6) or 12(b)(1) of the Federal Rules of Civil

5 Procedure, particularly in light of the AG Memorandum. Given that the grant eligibility

6 provision in Section 9(a) will apply only to certain grants administered by DOJ and DHS and

7 only where the imposition of such a condition is statutorily authorized, and given that grantees

8 will be asked to certify their compliance with 8 U.S.C. § 1373 as part of the grant process, the

9 County cannot state viable claims that the grant eligibility provision violates the Separation of

10 Powers or the Spending Clause (Doc. 1 ¶¶ 118-134). This is especially true given that these

11 claims are facial challenges to an Executive Order, and plaintiff cannot show that “no set of

12 circumstances exists under which the [Order] would be valid.” United States v. Salerno, 481 U.S.

13 739, 745 (1987).

14

Also in light of the AG Memorandum, plaintiff cannot state viable claims that Section 9(a)

15 of the Order is unconstitutionally vague or that it violates procedural due process (Doc. 1

16 ¶¶ 138-148). The AG Memorandum authoritatively clarifies and limits the meaning and scope of

17 Section 9(a), and incorporates the procedural requirements for making or revoking federal grants.

18 Finally, given that no action has been taken against Santa Clara County pursuant to the provision

19 in the Executive Order instructing the Attorney General to take “appropriate enforcement action”

20 against certain entities, the Court lacks subject matter jurisdiction over plaintiff’s challenge to that

21 provision under the Tenth Amendment (id. ¶¶ 149-152).

22

Accordingly, the Court should dismiss plaintiff’s Complaint for failure to state a claim on

23 which relief can be granted and for lack of subject matter jurisdiction.

24

ISSUES PRESENTED

25

1. Whether the plaintiff has established its standing and the ripeness of its claims.

26

2. Whether the plaintiff can challenge an Executive Order that constitutes only an internal

27 Executive Branch directive and has no direct effect on the plaintiff.

28

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1

3. Whether the plaintiff has stated a viable claim that the grant eligibility provision in

2 Section 9(a) of the Executive Order violates the Separation of Powers.

3

4. Whether the plaintiff has stated a viable claim that the grant eligibility provision

4 exceeds the Spending Power.

5

5. Whether the plaintiff has stated a viable claim that Section 9(a) of the Order is

6 unconstitutionally vague.

7

6. Whether the plaintiff has stated a viable claim that Section 9(a) violates procedural

8 due process requirements.

9

7. Whether the Court has subject matter jurisdiction over plaintiff’s claim that the

10 “appropriate enforcement action” provision in Section 9(a) violates the Tenth Amendment.

11

STATUTORY AND ADMINISTRATIVE BACKGROUND

12 I.

Broad Executive Discretion in Enforcement of Immigration Law

13

“The Government of the United States has broad, undoubted power over the subject of

14 immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492,

15 2497 (2012). Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq.,

16 Congress granted the Executive Branch significant authority to control the entry, movement, and

17 other conduct of foreign nationals in the United States. Under the INA, the Department of Home-

18 land Security, the Department of Justice, and other agencies of the Executive Branch administer

19 and enforce the immigration laws. Likewise, the INA permits the Executive Branch to exercise

20 considerable executive discretion to direct enforcement pursuant to federal policy objectives. See

21 Arizona Dream Act Coal. v. Brewer, 855 F.3d 957, 967 (9th Cir. Feb. 2, 2017) (“By necessity, the

22 federal statutory and regulatory scheme, as well as federal case law, vest the Executive with very

23 broad discretion to determine enforcement priorities.”). Several Presidents have exercised this

24 discretion by Executive Order, and they have done so in differing ways, reflecting their individual

25 judgments as to how best to take care that the laws of the United States be faithfully executed.

26 See, e.g., Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (2016) (“Suspending Entry Into the

27 United States of Persons Contributing to the Situation in Libya”); Exec. Order No. 13,608, 77

28 Fed. Reg. 26,409 (2012) (“Suspending Entry Into the United States of Foreign Sanctions Evaders

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1 With Respect to Iran and Syria”). The Secretary has also consistently exercised similar executive

2 discretion in the enforcement of federal immigration law. See, e.g., Mem. from John Kelly, Sec’y

3 of Homeland Sec., to Kevin McAleenan, Acting Comm’r, U.S. Customs and Border Protection, et

4 al., Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017).3

5

The INA contains a number of provisions regarding the involvement of state and local

6 authorities in the enforcement of immigration law. For example, Section 287(g) of the INA

7 authorizes the Secretary to enter into written agreements with a state or local government under

8 which officers of such government may “perform a function of an immigration officer in relation

9 to the investigation, apprehension, or detention of aliens in the United States.” 8 U.S.C.

10 § 1357(g)(1). Likewise, the INA provides for cooperation with DHS in the “identification,

11 apprehension, detention, or removal of aliens not lawfully present in the United States,” even

12 without a formal cooperation agreement. Id. § 1357(g)(10)(B). Another provision, 8 U.S.C.

13 § 1373, ensures the sharing of information between federal and state actors:

14

Notwithstanding any other provision of Federal, State, or local law, a Federal,

15

State, or local government entity or official may not prohibit, or in any way

restrict, any government entity or official from sending to, or receiving from,

16

[federal immigration authorities] information regarding the citizenship or

immigration status, lawful or unlawful, of any individual.
17
Id. § 1373(a); see Pub. L. No. 104-208, Div. C, Title VI, § 642, 110 Stat. 3009, 3009-707 (1996).

18
Section 1373 also proscribes prohibiting or restricting any government entity from “maintaining”

19
information regarding the immigration status of any individual. 8 U.S.C. § 1373(b).

20
Well before the issuance of Executive Order 13,768, the compliance of state and local

21
governments with Section 1373 has been of interest to federal agencies because such govern-

22
ments are recipients of federal grants. For example, the Inspector General of the Department of

23
Justice issued a memorandum on May 31, 2016, as plaintiff notes (Doc. 1 ¶ 43), describing a

24
concern that several state and local governments receiving federal grants were not complying

25
with 8 U.S.C. § 1373. See Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason,

26

27

3 This memorandum is available at https://www.dhs.gov/ sites/ default/ files/

28

publications/ 17_0220_S1_Enforcement-of-the-Immigration-Laws-to-Serve-the-NationalInterest.pdf.

Motion to Dismiss; Memorandum

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1 Assistant Att’y Gen., Office of Justice Programs, Department of Justice Referral of Allegations of

2 Potential Violations of 8 U.S.C. § 1373 by Grant Recipients (May 31, 2016), available at

3 https://oig.justice.gov/reports/2016/1607.pdf. Although the Inspector General observed that some

4 applications of certain local ordinances might be inconsistent with Section 1373, id. at 4-8, the

5 report nevertheless noted that “no one at DHS . . . has made a formal legal determination whether

6 certain state and local laws or policies violate Section 1373, and we are unaware of any

7 Department of Justice decision in that regard.” Id. at 8 n.12.

8 II. Executive Order 13,768

9

The President signed Executive Order 13,768, Enhancing Public Safety in the Interior of

10 the United States, on January 25, 2017. 82 Fed. Reg. 8,799 (Jan. 30, 2017). The Order seeks to

11 “[e]nsure the faithful execution of the immigration laws,” including the INA. See id. § 2(a), 82

12 Fed. Reg. at 8,799. It sets forth several policies and priorities regarding enforcement of federal

13 immigration law within the United States, and it instructs certain federal officials to use “all

14 lawful means” to enforce those laws. See id. §§ 1, 4, 82 Fed. Reg. at 8,799-800.

15

As permitted by the INA, Executive Order 13,768 establishes priorities regarding aliens

16 who are subject to removal from the United States under the immigration laws. Id. § 5, 82 Fed.

17 Reg. at 8,800. Several provisions of the Order instruct officials to take actions directing future

18 conduct, including instructions to promulgate certain regulations within one year, to take “all

19 appropriate action” to hire additional immigration officers, to seek agreements with state and

20 local officials under Section 287(g) of the INA (referred to above), to develop a program to

21 ensure adequate prosecution of criminal immigration offenses, and to establish an office to

22 provide certain services to victims of crimes committed by removable aliens. Id. §§ 6, 7, 8, 11,

23 13, 82 Fed. Reg. at 8,799-802. Throughout, the Order specifies that federal officials are to take

24 these actions as “permitted by law” or as “consistent with law.” Id. §§ 7, 8, 9(a), 10(b), 12, 14,

25 17, 18(b), 82 Fed. Reg. at 8,799-802.

26

Section 9 of the Executive Order provides that “[i]t is the policy of the executive branch to

27 ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall

28 comply with 8 U.S.C. 1373.” Section 9(a) directs federal agencies to achieve that policy:

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1

2

In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that

3

jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary juris-

dictions) are not eligible to receive Federal grants, except as deemed necessary for

4

law enforcement purposes by the Attorney General or the Secretary. The Secre-

tary has the authority to designate, in his discretion and to the extent consistent

5

with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall

6

take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the

7

enforcement of Federal law.

8 Id. § 9(a), 82 Fed. Reg. at 8,801. Section 9 also instructs the Director of the Office of

9 Management and Budget to “obtain and provide relevant and responsive information on all

10 Federal grant money that currently is received by any sanctuary jurisdiction.” Id. § 9(c), 82 Fed.

11 Reg. at 8,801.

12 III. The AG Memorandum

13

On May 22, 2017, the Attorney General issued a Memorandum regarding the

14 implementation of Executive Order 13,768. See AG Mem. at 1. The Attorney General has a

15 statutory duty to advise executive department heads on “questions of law,” 28 U.S.C. § 512, and

16 to furnish formal legal opinions to executive agencies, 28 C.F.R. § 0.5(c). Also, although the

17 Secretary principally administers the immigration laws, the INA provides that “the determination

18 and ruling by the Attorney General with respect to all questions of law shall be controlling.”

19 8 U.S.C. § 1103(c)(1). By longstanding tradition and practice, the Attorney General’s legal

20 opinions are treated as authoritative by the heads of executive agencies. See, e.g., Tenaska

21 Washington Partners II, L.P. v. United States, 34 Fed. Cl. 434, 439 (1995); Randolph D. Moss,

22 Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52

23 Admin. L. Rev. 1303, 1319-20 (2000).

24

The AG Memorandum sets forth in a formal, conclusive manner the administration’s

25 interpretation of Section 9(a) of the Executive Order. The Memorandum specifies that the Order

26 does not “purport to expand the existing statutory or constitutional authority of the Attorney

27 General and the Secretary of Homeland Security in any respect,” but rather instructs those

28 officials to take certain action, “to the extent consistent with the law.” AG Mem. at 2; see Bldg.

Motion to Dismiss; Memorandum

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1 & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 33 (D.C. Cir. 2002) (noting that the

2 President is merely wielding his “supervisory authority over the Executive Branch” where he

3 “directs his subordinates” to take certain action “but only ‘[t]o the extent permitted by law’”).

4 The AG Memorandum further clarifies that the grant eligibility provision in Section 9(a) is

5 limited “solely to federal grants administered by [DOJ] or [DHS],” and to grants requiring the

6 applicant to “certify . . . compliance with federal law, including 8 U.S.C. § 1373, as a condition

7 for receiving an award.” AG Mem. at 1, 2. Only “jurisdiction[s] that fail[] to certify compliance

8 with [8 U.S.C. § 1373] will be ineligible to receive [an] award[]” pursuant to the grant eligibility

9 provision. Id. In other words, the provision applies only where an applicant or grant recipient

10 has had the choice either to certify compliance with 8 U.S.C. § 1373 as an express condition of

11 eligibility to participate in a certain grant program, or to refuse to certify compliance and thereby

12 render itself ineligible to participate in the program. The AG Memorandum also makes clear that,

13 with respect to Section 1373 compliance conditions, DOJ and DHS may impose such conditions

14 only pursuant to the exercise of “existing statutory or constitutional authority,” and only where

15 “grantees will receive notice of their obligation to comply with section 1373.” AG Mem. at 2.

16 Lastly, the Attorney General states that, “[a]fter consultation with the Secretary of Homeland

17 Security, [he has] determined that, for purposes of enforcing the Executive Order, the term

18 ‘sanctuary jurisdiction’ will refer only to jurisdictions that ‘willfully refuse to comply with 8

19 U.S.C. 1373.’” Id.

20

PROCEDURAL BACKGROUND

21

Santa Clara County filed this action on February 3, 2017 (Doc. 1). Plaintiff filed a motion

22 for preliminary injunction against the implementation of Section 9 of the Executive Order, which

23 the Court granted on April 25, 2017 (Doc. 98). Defendants filed a motion for reconsideration or

24 clarification of the preliminary injunction on May 23, 2017 (Doc. 113), which remains pending.

25

ARGUMENT

26

A claim should be dismissed under Rule 12(b)(1) if the court lacks subject matter

27 jurisdiction to consider it. The jurisdiction of the federal courts is limited to “Cases” and

28 “Controversies.” U.S. Const., Art. III, § 2. “Jurisdiction is power to declare the law, and when it

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1 ceases to exist, the only function remaining to the court is that of announcing the fact and

2 dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). Courts

3 should “presume that [they] lack jurisdiction unless the contrary appears affirmatively from the

4 record,” Renne v. Geary, 501 U.S. 312, 316 (1991), and “the party asserting subject matter

5 jurisdiction has the burden of proving its existence,” Robinson v. United States, 586 F.3d 683,

6 685 (9th Cir. 2009); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).

7

Additionally, a claim should be dismissed under Rule 12(b)(6) of the Federal Rules of

8 Civil Procedure if it “fail[s] to state a claim upon which relief can be granted.” A motion under

9 Rule 12(b)(6) “tests the legal sufficiency” of a complaint. Navarro v. Block, 250 F.3d 729, 732

10 (9th Cir. 2001). On such a motion, the district court accepts all “plausible,” “well-pleaded”

11 factual allegations as true, In re Apple Iphone Antitrust Litig., 846 F.3d 313, 315 (9th Cir. 2017);

12 Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F.3d 1156, 1159 (9th Cir. 2016), but need not

13 accept “a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678

14 (2009). The complaint is subject to dismissal if it fails to “state a claim to relief that is plausible

15 on its face.” Id. “A complaint may be dismissed for failure to state a claim where the factual

16 allegations do not raise the right to relief above the speculative level.” In re ATM Fee Antitrust

17 Litig., No. C 04-2676 CRB, 2010 WL 2557519, at *4 (N.D. Cal. June 21, 2010).

18

Plaintiff’s Complaint contains five claims: Count 1 alleges that the grant eligibility

19 provision in Section 9(a) of the Executive Order violates the constitutional Separation of Powers

20 and the Spending Clause (Doc. 1 ¶¶ 118-134).4 Count 2 alleges that Section 9(a) of the Order is

21 unconstitutionally vague under the Fifth Amendment, and Count 3 alleges that Section 9(a)

22 violates the procedural due process requirements of the Fifth Amendment. Count 4 alleges that

23 the provision in Section 9(a) requiring the Attorney General to take “appropriate enforcement

24 action” against certain entities violates the Tenth Amendment. All of these claims should be

25 dismissed for lack of standing and ripeness under Rule 12(b)(1), as made even clearer by the AG

26

27

4 Count 1 is entitled “Violation of the Separation of Powers Inherent in the U.S.

28

Constitution,” but it argues that the grant eligibility provision violates both the constitutional Separation of Powers and the Spending Clause.

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1 Memorandum. Also, all of plaintiff’s claims against the Executive Order should be dismissed

2 under Rule 12(b)(6) because the Order is only an internal Executive Branch directive with no

3 direct effect on the City.

4

Assuming the Court reaches the merits, plaintiff’s first four claims should be dismissed

5 for failure to state a claim on which relief can be granted under Rule 12(b)(6), and the last claim

6 should be dismissed for lack of subject matter jurisdiction under Rule 12(b)(1). In relation to the

7 merits of Count 1, the AG Memorandum makes clear that the grant eligibility provision will be

8 applied only where authorized by statute, and that the limitations on the spending power

9 described in South Dakota v. Dole, 483 U.S. 203 (1987), will be followed. In relation to Count 2,

10 the AG Memorandum authoritatively clarifies the meaning and scope of Section 9(a), such that

11 the County cannot show that it is “impermissibly vague in all its applications” as required for a

12 facial vagueness challenge. See Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d

13 1133, 1146 (9th Cir. 2009). And in relation to Count 3, since the AG Memorandum clarifies (1)

14 that Section 9(a) is limited to certain grants administered by DOJ and DHS, (2) that “grantees will

15 receive notice of their obligation to comply with section 1373,” and (3) that the usual procedures

16 of grant making and revocation will apply, see AG Mem. at 1-2, the County cannot show that it

17 will be deprived of any process that may be “due.”

18

Finally, in relation to Count 4, defendants have taken no “enforcement action” against

19 Santa Clara County under Section 9(a) of the Executive Order and there is no indication that any

20 such action is imminent, such that the County lacks standing to challenge that provision in the

21 Order, and its challenge is not ripe.

22

Plaintiff’s claims are all the more difficult to sustain because these are facial challenges to

23 an Executive Order. The Supreme Court has held that a facial challenge is “the most difficult

24 challenge to mount successfully.” United States v. Salerno, 481 U.S. 739, 745 (1987). In this

25 context, “the challenger must establish that no set of circumstances exists under which the

26 [challenged enactment] would be valid.” Id.

27

As the Supreme Court has observed, “[f]acial challenges are disfavored for several

28 reasons.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450 (2008). First,

Motion to Dismiss; Memorandum

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1 “[c]laims of facial invalidity often rest on speculation. As a consequence, they raise the risk of

2 premature interpretation of [enactments] on the basis of factually barebones records.” Id. (internal

3 quotation marks omitted). Additionally, such challenges “run contrary to the fundamental

4 principle of judicial restraint that courts should neither anticipate a question of constitutional law

5 in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is

6 required by the precise facts to which it is to be applied.” These rules apply to Executive Orders

7 as much as to statutes and regulations. See Am. Fed’n of State, Cty. & Mun. Employees v. Scott,

8 717 F.3d 851, 862-63 (11th Cir. 2013); NTEU v. Bush, 891 F.2d 99, 101 (5th Cir. 1989). As

9 further discussed below, Santa Clara County’s Complaint fails to establish that the Executive

10 Order would be invalid under all circumstances.

11 I. Plaintiff Lacks Standing and Its Claims Are Unripe

12

Article III of the Constitution requires that a plaintiff have standing and that its claims be

13 ripe for judicial consideration. To have standing, the plaintiff must show that it has suffered

14 “concrete,” “palpable” injury, see Whitmore v. Arkansas, 495 U.S. 149, 155 (1990), and, for the

15 claims to be ripe, the challenged enactment must have been “formalized and its effects felt in a

16 concrete way.” See Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). As discussed in

17 Defendants’ Motion for Reconsideration or, in the Alternative, Clarification of the Court’s Order

18 of April 25, 2017, the AG Memorandum makes even clearer that these requirements are not

19 satisfied here and that, therefore, all of the County’s claims must be dismissed for lack of

20 standing and ripeness (Doc. 113 at 8-12).

21 II. 22

Plaintiff Fails to State Any Viable Claim Regarding the Executive Order, Which Is an Internal Directive and Does Not Directly Affect the Plaintiff

23

In any event, the Court should dismiss all of plaintiff’s challenges to Executive Order

24 13,768 because the Order only directs internal Executive Branch policy and does not directly

25 affect the plaintiff. Courts in this Circuit have distinguished between Executive Orders that only

26 “implement policy as a product of executive authority,” and those that effectuate an authority

27 explicitly vested in the President through an act of Congress. See Chen v. Schiltgen, No. C-94-

28 4094 MHP, 1995 WL 317023, at *5 (N.D. Cal. May 19, 1995), aff’d sub nom. Chen v. INS, 95

Motion to Dismiss; Memorandum

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1 F.3d 801 (9th Cir. 1996); Legal Aid Soc’y of Alameda County v. Brennan, 608 F.2d 1319, 1330

2 n.14 (9th Cir. 1979).

3

The former type of Executive Order does not carry the independent force of law; rather, it

4 serves only as an internal Executive Branch directive. The Executive Order in this action falls

5 into that category. This is even clearer in light of the AG Memorandum, which indicates that the

6 challenged provisions of the Order are directives to the Attorney General and the Secretary of

7 Homeland Security regarding their exercise of existing statutory and constitutional authority. AG

8 Mem. at 1-2. Because the Order is an internal Executive Branch policy directive, the County

9 cannot plead viable challenges against it. Cf. United States v. Pickard, 100 F. Supp. 3d 981, 1011

10 (E.D. Cal. 2015) (rejecting a Tenth Amendment challenge to a statement of agency policy on the

11 grounds that a policy statement “is a very different creature from a statute” in that it does not bind

12 States as would a statute).

13

Moreover, consistent with its internal nature, the Executive Order does not directly affect

14 the plaintiff. It does not impose conditions on federal grants or any requirements on state or local

15 jurisdictions. Rather, the Order “establish[es] immigration enforcement as a priority for this

16 Administration,” AG Mem. at 1, in an effort to “ensure that our Nation’s immigration laws are

17 faithfully executed.” Exec. Order 13,768 at 1. It directs the appropriate executive officials to

18 prioritize means for achieving that priority.

19

At no point, however, does the Order purport to directly impose affirmative obligations on

20 state or local jurisdictions. Rather, the Attorney General and the Secretary are to enforce the

21 Order’s directives “to the extent permitted by law.” Exec. Order 13,768, § 9(a). Consistent with

22 that directive, the Executive Order “does not call for the imposition of grant conditions that would

23 violate any applicable constitutional or statutory limitation . . . [n]or does the Executive Order

24 purport to expand the existing statutory or constitutional authority of the Attorney General and

25 the Secretary . . . in any respect.” AG Mem. at 1-2. Rather, in the event the Secretary or the

26 Attorney General determines to impose obligations on a grant program pursuant to the directives

27 contained the Order, such as certification of compliance with 8 U.S.C. § 1373, that obligation

28

Motion to Dismiss; Memorandum

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1 may be imposed only where existing legal authority allows, and only where grantees are given

2 “notice of their obligation[s].” Id. at 2.

3 III. Plaintiff Fails to State a Viable Challenge to Section 9(a) of the
Executive Order, as Elucidated by the AG Memorandum
4
Assuming the Court reaches the merits, plaintiff’s claims under the Separation of Powers,
5
the Spending Clause, and the Due Process Clause should be dismissed for failure to state a claim
6
upon which relief can be granted, especially in light of the AG Memorandum.
7
A. Plaintiff Fails to State a Viable Claim under the Separation of Powers
8
Count 1 in plaintiff’s Complaint alleges that the grant eligibility provision of Section 9(a)
9
violates the Separation of Powers by “claim[ing] for the executive branch powers exclusively
10
assigned to Congress” under the Constitution (Doc. 1 ¶ 129). Article I of the Constitution confers
11
on Congress the authority to “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts
12
and provide for the common Defence and general Welfare of the United States.” U.S. Const. Art.
13
I, § 8, cl. 1. As this Court has said, Congress may, “[i]ncident to” its spending power, “attach
14
conditions on the receipt of federal funds,” Cty. of Santa Clara v. Trump, No. 17-CV-00485-
15
WHO, 2017 WL 1459081, at *21 (N.D. Cal. Apr. 25, 2017) (quoting Dole, 483 U.S. at 206), and
16
“Congress can delegate some discretion to the President to decide how to spend appropriated
17
funds” so long as “any delegation and discretion is cabined by [relevant] constitutional
18
boundaries.” 2017 WL 1459081, at *21; see DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275, 280-81
19
(D.C. Cir. 1989) (upholding conditions on spending imposed by President where statute
20
authorized President to set certain “terms and conditions as he may determine”).
21
Especially as elucidated by the AG Memorandum, the grant eligibility provision is
22
consistent with this division of constitutional responsibilities. The Executive Order requires the
23
Attorney General and Secretary of Homeland Security to condition grant eligibility on
24
compliance with 8 U.S.C. § 1373 “to the extent consistent with law.” The AG Memorandum
25
makes clear that the Order does not “purport to expand the existing statutory or constitutional
26
authority of the Attorney General and the Secretary . . . in any respect” and “does not call for the
27
imposition of grant conditions that would violate any applicable constitutional or statutory
28

Motion to Dismiss; Memorandum

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1 limitation.” AG Mem. at 1-2. Even more specifically, the Memorandum confirms that

2 compliance with Section 1373 will be imposed as a condition of grant eligibility only where the

3 agency “is statutorily authorized to impose such a condition.” Id.

4

In fact, Congress has frequently authorized agencies administering certain grant programs

5 to impose discretionary conditions on the receipt of funds. Those statutory authorizations have

6 taken a variety of forms, including authorizing an agency to ensure that a grant recipient complies

7 “with all provisions of . . . applicable Federal laws,” see 42 U.S.C. § 3752(a)(5)(D) (governing

8 DOJ grant program), or allowing an agency to “plac[e] special conditions” on certain grants under

9 appropriate circumstances. See id. § 3712(a). Pursuant to these types of statutory authorizations,

10 DOJ has already conditioned eligibility for participation in three DOJ-administered grant

11 programs on the applicant’s certification of compliance with Section 1373. See generally Tr. of

12 Oral Arg. at 35:4-6, City & Cnty. of San Francisco v. Trump, No. 3:17-cv-00485 (N.D. Cal. Apr.

13 14, 2017) (identifying the three programs); 2017 WL 1459081, at *4 (same).

14

Further, as noted above, a party challenging the facial constitutionality of an Executive

15 Order must establish that the Order would be unconstitutional in all its applications. See Salerno,

16 481 U.S. at 745 (facial challenge must establish that “no set of circumstances exists under which

17 [the enactment] would be valid”); see also Am. Fed’n of State, Cty. & Mun. Employees, 717 F.3d

18 at 862-63; NTEU v. Bush, 891 F.2d at 101. That standard is necessarily impossible to meet in

19 relation to plaintiff’s Separation of Powers claim, since Congress frequently authorizes the

20 Executive to impose discretionary conditions on the receipt of federal grants.

21

Therefore, especially in light of the AG Memorandum, plaintiff cannot state a viable claim

22 for violation of the constitutional Separation of Powers.

23

B. Plaintiff Fails to State a Viable Claim under the Spending Clause

24

Count 1 of plaintiff’s Complaint also alleges that the grant eligibility provision exceeds

25 the federal power under the Spending Clause (Doc. 1 ¶¶122-132). This Clause provides that

26 Congress may “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide

27 for the common Defence and general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1.

28 As the Supreme Court has held, “Congress may attach conditions on the receipt of federal funds,

Motion to Dismiss; Memorandum

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1 and has repeatedly employed the power to further broad policy objectives by conditioning receipt

2 of federal moneys upon compliance by the recipient with federal statutory and administrative

3 directives.” S. Dakota v. Dole, 483 U.S. 203, 206 (1987) (internal quotation marks omitted).

4

The Court in Dole described certain limitations or potential limitations on the spending

5 power. Most basically, “the exercise of the spending power must be in pursuit of ‘the general

6 welfare’” – as stated in the Spending Clause itself, id. at 207 – and conditions on the receipt of

7 federal funds must be stated “unambiguously” so that recipients can “exercise their choice

8 knowingly, cognizant of the consequences of their participation.” Id. (citing Pennhurst State Sch.

9 & Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (“The legitimacy of Congress’ power to legislate

10 under the spending power thus rests on whether the State voluntarily and knowingly accepts the

11 terms of the ‘contract.’ There can, of course, be no knowing acceptance if a State is unaware of

12 the conditions or is unable to ascertain what is expected of it.”) (citations omitted) (hereinafter

13 Pennhurst). Additionally, the Court observed in Dole, “our cases have suggested (without

14 significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated

15 to the federal interest in particular national projects or programs,” and that “in some circum-

16 stances the financial inducement offered by Congress might be so coercive as to pass the point at

17 which pressure turns into compulsion.” 483 U.S. at 207-08, 211 (internal quotation marks

18 omitted). And finally, the Court said that “other constitutional provisions may provide an

19 independent bar to the conditional grant of federal funds.” Id. at 207-08.

20

Although these are limitations on congressional power, the plaintiff herein alleges that the

21 grant eligibility provision imposes conditions on spending that “would be unconstitutional even if

22 imposed by Congress” (Doc. 1 ¶ 132). Specifically, the County alleges that the provision

23 “impose[s] a condition on federal spending retroactively”; that it imposes conditions not “reason-

24 ably related to the federal interest to which the expenditure relates”; that it “requires County law

25 enforcement officers to undertake actions that are themselves unconstitutional”; and that it

26 imposes conditions that are “profoundly coercive to the County” (id. ¶ 131). Particularly in light

27 of the AG Memorandum, each of these assertions is without merit.

28

Motion to Dismiss; Memorandum

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1

Focusing on the “knowing acceptance” aspect of Dole and Pennhurst, Santa Clara County

2 asserts, first, that the grant eligibility provision unconstitutionally “impose[s] a condition on

3 federal spending retroactively” (id. ¶ 131(i)).5 See 2017 WL 1459081, at *22 (“Because states

4 must opt-in to a federal program willingly, fully aware of the associated conditions, Congress

5 cannot implement new conditions after-the-fact.”). As described above, however, the AG

6 Memorandum makes clear that the grant eligibility provision will be implemented by “requiring

7 jurisdictions applying for certain [DOJ] grants to certify their compliance with federal law,

8 including 8 U.S.C. § 1373, as a condition for receiving an award.” AG Mem. at 2. Thus, the AG

9 Memorandum continues, “[a]ll grantees will receive notice of their obligation to comply with

10 section 1373” ahead of time, and the grant eligibility provision will be applied to “[a]ny

11 jurisdiction that fails to certify compliance.” Id. Necessarily, therefore, potential grantees will be

12 able to “exercise their choice knowingly, cognizant of the consequences of their participation” in

13 grant programs that include this condition. Dole, 483 U.S. at 207. The plaintiff cannot show that

14 the grant eligibility provision will fail this aspect of Dole in all its applications, as necessary in

15 this facial challenge. See Salerno, 481 U.S. at 745.

16

Second, plaintiff alleges that the grant eligibility provision imposes conditions that are not

17 “reasonably related to the federal interest to which the expenditure relates” (Doc. 1 ¶ 131(ii)). As

18 the Court of Appeals has observed, however, this aspect of Dole suggests only a “possible

19 ground” for invalidating an enactment, and does not impose an “exacting standard”:

20

The Supreme Court has suggested that federal grants conditioned on compliance

21

with federal directives might be illegitimate if the conditions share no relationship

to the federal interest in particular national projects or programs. This possible

22

ground for invalidating a Spending Clause statute, which only suggests that the

legislation might be illegitimate without demonstrating a nexus between the

23

conditions and a specified national interest, is a far cry from imposing an exacting

24

standard for relatedness.

Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (citing Dole, 483 U.S. at 207).
25

26

27

5 Plaintiff does not allege that the grant eligibility provision violates the requirement that

28

federal grant conditions be stated “unambiguously.” Dole, 483 U.S. at 207. In any event, for the reasons stated herein, any such claim would be without merit in light of the AG Memorandum.

Motion to Dismiss; Memorandum

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1 Thus, conditions on federal funding must only “bear some relationship to the purpose of the

2 federal spending.” 314 F.3d at 1067 (quoting N.Y. v. United States, 505 U.S. 144, 167 (1992));

3 see Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir. 2004)

4 (noting that Supreme Court has never “overturned Spending Clause legislation on relatedness

5 grounds”).

6

Especially as implemented by the AG Memorandum, the grant eligibility provision easily

7 meets this standard. The provision will be applied only to grants administered by the Department

8 of Justice and the Department of Homeland Security – that is, the primary law enforcement

9 agency of the United States and the agency responsible for the admission and removal of non-

10 citizens. AG Mem. at 1. DHS is the very agency whose communication with state and local

11 government officials is protected by Section 1373. Moreover, the grant eligibility provision will

12 be applied only to “certain . . . grants” as to which the agency “is statutorily authorized to impose

13 such a condition.” Id. at 2. Plaintiff alleges that the grant eligibility provision “applies to, and

14 would bar the County from being eligible for funding for, Medicare and Medicaid programs,

15 transportation, child welfare services, elder care programs, mental health services, immunization

16 and vaccine programs” (Doc. 1 ¶ 131(ii)). The AG Memorandum has eliminated any possibility

17 that the grant eligibility provision could be applied in relation to any of those categories of federal

18 funding.

19

Third, plaintiff alleges that the grant eligibility provision exceeds the spending power by

20 “requir[ing] County law enforcement officers to undertake actions that are themselves

21 unconstitutional” (Doc. 1 ¶ 131(iii)). The Court in Dole emphasized the narrowness on this

22 limitation on the federal spending power, noting that “the ‘independent constitutional bar’

23 limitation . . . is not . . . a prohibition on the indirect achievement of objectives which Congress is

24 not empowered to achieve directly.” 483 U.S. at 210. Rather, the Court said, this limitation

25 “stands for the unexceptionable proposition that the power may not be used to induce the States to

26 engage in activities that would themselves be unconstitutional. Thus, for example, a grant of

27 federal funds conditioned on invidiously discriminatory state action or the infliction of cruel and

28

Motion to Dismiss; Memorandum

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1 unusual punishment would be an illegitimate exercise of the Congress’ broad spending power.”

2 Id. at 210-11.

3

The grant eligibility provision does not “induce” Santa Clara County to violate any such

4 constitutional prohibition. As stated in the AG Memorandum, that provision merely requires

5 grantees to certify compliance with 8 U.S.C. § 1373, which proscribes prohibiting or restricting

6 the sharing of information with federal immigration authorities. See AG Mem. at 2. That is not,

7 however, the kind of “independent [constitutional] bar to the conditional grant of federal funds”

8 that the Supreme Court contemplated in Dole. 483 U.S. at 207-08. Plaintiff alleges that the

9 Executive Order will “require County law enforcement officers to comply with federal directives

10 regarding detainer actions” in violation of the Fourth Amendment to the Constitution (Doc. 1

11 ¶ 131(iii)), but the AG Memorandum says nothing about immigration detainer requests, and, in

12 any event, state or local law enforcement’s decision to exercise their authority to cooperate with

13 such requests is fully consistent with the Fourth Amendment. Moreover, the AG Memorandum

14 states affirmatively that the grant eligibility provision “does not call for the imposition of grant

15 conditions that would violate any applicable constitutional or statutory limitation.” AG Mem. at

16 1-2. Thus, Santa Clara County cannot show that the grant eligibility provision will require the

17 County to “undertake actions that are themselves unconstitutional” in all circumstances. Cf.

18 Salerno, 481 U.S. at 745.

19

Fourth and finally, plaintiff alleges that the grant eligibility provision imposes conditions

20 that are “profoundly coercive to the County” (Doc. 1 ¶ 131(iv)). As the Court of Appeals has

21 observed, however, the Supreme Court in Dole concluded that it would find a violation of this

22 potential limitation, “if ever, [only] in the most extraordinary circumstances.” State of Cal. v.

23 United States, 104 F.3d 1086, 1092 (9th Cir. 1997) (citing Dole, 483 U.S. at 210-11). Thus, for

24 example, the Court in Dole found no constitutional violation where a State risked losing 5% of its

25 highway funds for refusing to implement a federal minimum drinking age. Dole, 483 U.S. at 211.

26 Conversely, the Court held more recently that Congress violated anti-coercion principles by

27 subjecting States to a risk of losing “all federal Medicaid funding,” which constituted “over 10

28 percent of a State’s overall budget,” if they declined to adopt certain Medicaid expansion actions.

Motion to Dismiss; Memorandum

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1 See Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2664 (2012) (hereinafter NFIB). In

2 that case, “the sheer size of this federal spending program in relation to state expenditures”

3 rendered the condition coercive. Id. at 2663. As the Court held, however, “courts should not

4 conclude that [an enactment] is unconstitutional on this ground unless the coercive nature of an

5 offer is unmistakably clear.” Id. at 2662.

6

Under this precedent, plaintiff’s “coerciveness” claim must fail, especially in light of the

7 AG Memorandum. As noted already, the grant eligibility provision of the Executive Order “will

8 be applied solely to [certain] federal grants administered by the Department of Justice or the

9 Department of Homeland Security, and not to other sources of federal funding.” AG Mem. at 1.

10 Moreover, DOJ has so far identified only three grant programs whose eligibility will be condi-

11 tioned on compliance with Section 1373. See Tr. of Oral Arg. at 35:2-9. According to its

12 complaint, Santa Clara County previously received funds under two of those programs, but has

13 decided not to “apply for or accept future” funds under either program, in order to “retain its

14 discretion” regarding the sharing of immigration status information (Doc. 1 at 14 n.3). In these

15 circumstances, the plaintiff has fallen far short of stating a viable claim that the “coercive nature”

16 of the grant eligibility provision is “unmistakably clear.” See NFIB, 132 S. Ct. at 2662.

17

In short, particularly as elucidated by the AG Memorandum, the grant eligibility provision

18 in the Executive Order is only a “relatively mild encouragement” to comply with Section 1373.

19 483 U.S. at 211.

20

C. Plaintiff Fails to State a Viable Claim that Section 9(a)

21

Is Unconstitutionally Vague

22

Plaintiff’s next claim, in Count 2 of the Complaint, is that Section 9(a) is unconstitu-

23 tionally vague in violation of the Due Process Clause (Doc. 1 ¶¶ 138-141). An enactment may be

24 unconstitutionally vague if it “fails to provide a reasonable opportunity to know what conduct is

25 prohibited, or is so indefinite as to allow arbitrary and discriminatory enforcement.” Tucson

26 Woman’s Clinic v. Eden, 379 F.3d 531, 554 (9th Cir. 2004) (citation omitted). The Supreme

27 Court, however, has cautioned against engaging in a vagueness analysis in the pre-enforcement

28 context, particularly in matters that do not involve First Amendment rights. See Wash. State

Motion to Dismiss; Memorandum

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1 Grange v. Wash. State Republican Party, 552 U.S. 442, 50 (2008) (noting that facial vagueness

2 challenges are “disfavored for several reasons,” including because such claims often “rest on

3 speculation”). “Outside the First Amendment context, a plaintiff alleging facial vagueness must

4 show that the enactment is impermissibly vague in all its applications.” Humanitarian Law

5 Project v. U.S. Treasury Dep’t, 578 F.3d 1133, 1146 (9th Cir. 2009) (internal quotation marks

6 omitted). This is consistent with the rule that a party challenging an enactment on its face must

7 show that “no set of circumstances exists under which the [enactment] would be valid.” Salerno,

8 481 U.S. at 745. Moreover, courts will consider whether a provision is fairly “amenable to a

9 limiting construction” before striking it down as vague. Skilling v. United States, 561 U.S. 358,

10 405 (2010). Thus, a plaintiff bringing a pre-enforcement facial vagueness challenge “bears a

11 heavy burden.” SEIU, Local 82 v. D.C., 608 F. Supp. 1434, 1446-47 (D.D.C. 1985).

12

In this case, the County argues that “Section 9(a) of the Executive Order fails to define

13 key terms, such as ‘sanctuary jurisdiction,’ ‘Federal grants,’ ‘law enforcement purposes,’

14 ‘appropriate enforcement action,’ and ‘entity,’ as well as . . . ‘statute, policy, or practice that

15 prevents or hinders the enforcement of Federal law’” (Doc. 1 ¶ 139). As discussed above,

16 however, the Order is an internal directive to Executive Branch officials and does not have any

17 direct effect on the plaintiff. Therefore, there can be no legitimate question as to whether the

18 Order provides “reasonable” notice to the plaintiff. See Tucson Woman’s Clinic, 379 F.3d at 554.

19 In any event, the AG Memorandum authoritatively clarifies the meaning of Section 9(a),

20 specifying, for example, that the “the term ‘sanctuary jurisdiction’ will refer only to jurisdictions

21 that “willfully refuse to comply with 8 U.S.C. 1373.” AG Mem. at 2. Additionally, the Memo-

22 randum makes clear that the “Federal grants” to which Section 9(a) will apply are only those

23 “grants administered by the Department of Justice or the Department of Homeland Security” as to

24 which the agency is “statutorily authorized” to impose the condition of compliance with 8 U.S.C.

25 § 1373. Id. at 1-2.

26

Other aspects of plaintiff’s vagueness challenge “rest [entirely] on speculation.” See

27 Wash. State Grange, 552 U.S. at 50. Undeniably and uncontroversially, the Attorney General is

28 authorized to take certain “enforcement actions” against a State and local jurisdiction whose

Motion to Dismiss; Memorandum

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1 “statute, policy, or practice . . . prevents or hinders the enforcement of Federal law.” See Arizona

2 v. United States, 567 U.S. 387, 132 S. Ct. 2492 (2012) (asserting that certain state laws regarding

3 non-citizens are preempted by federal law); United States v. South Carolina, 720 F.3d 518 (4th

4 Cir. 2013) (same); United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) (same). There is no

5 indication that the Attorney General will take any unauthorized or inappropriate actions pursuant

6 to this provision in Section 9(a). Thus, the County cannot show that President’s instruction to

7 take “appropriate” action against such statutes, policies, or practices is “impermissibly vague in

8 all its applications.” See Humanitarian Law Project, 578 F.3d at 1146.6

9

Accordingly, plaintiff’s Fifth Amendment vagueness claim must be dismissed for failure

10 to state a claim on which relief can be granted.

11

D. Plaintiff Fails to State a Viable Claim Regarding Procedural Due Process

12

Count 3 of plaintiff’s Complaint alleges that Section 9(a) of the Order “deprives the

13 County of its procedural due process rights under the Fifth Amendment because it grants the

14 Attorney General and Secretary . . . unfettered discretion to deprive the County of all federal

15 funds, with no opportunity to review, challenge, or even obtain notice that the deprivation is

16 coming” (Doc. ¶ 146). Under the Fifth Amendment, the government may not deprive anyone of

17 “property” without “due process of law.” Where a constitutionally protected property interest

18 exists, what type of procedural protections are “due” depends on the circumstances, including

19 “the risk of an erroneous deprivation,” the “probable value” of procedural safeguards, and the

20 government’s interests. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Plaintiff asserts that it

21 “has a constitutionally protectable property interest in the federal funds it relies on to provide

22 essential services to 1.9 million residents” (Doc. 1 ¶ 146).

23

24

6 The same is true of plaintiff’s allegation (Doc. 1 ¶ 141) that vagueness principles are

25 violated by Section 6 of the Executive Order, which instructs the Secretary of Homeland Security
to “ensure the assessment and collection of all fines and penalties that the Secretary is authorized

26 under the law to assess and collect from aliens unlawfully present in the United States and from

those who facilitate their presence in the United States” (emphasis added). The INA provides for
27 several such fines and penalties. See, e.g., 8 U.S.C. §§ 1324 (penalties for bringing in and

28

harboring certain aliens), 1324a (penalties for unlawful employment of aliens), 1325 (civil penalties for improper entry).

Motion to Dismiss; Memorandum

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1

In light of the AG Memorandum, however, Section 9(a) does not apply to funding in

2 which the County might have a constitutionally protectable interest, and, in any event, the

3 applicable procedures will be provided. As discussed earlier, the grant eligibility provision of

4 Section 9(a) will be applied only to certain grants administered by DOJ and DHS, see AG Mem.

5 at 1, and DOJ has so far identified only three programs in which eligibility will depend on

6 compliance with Section 1373. See Tr. of Oral Arg. at 35:2-9. The County does not allege – and

7 cannot show – that these programs provide “federal funds it relies on to provide essential services

8 to 1.9 million residents” (Doc. 1 ¶ 146). Moreover, the AG Memorandum indicates that

9 compliance with Section 1373 will be included as a grant condition only where the agency “is

10 statutorily authorized to impose such a condition,” and that “[a]ll grantees will receive notice of

11 their obligation to comply with section 1373.” AG Mem. at 2. Additionally, by specifying that

12 this condition be exercised “to the extent consistent with law,” Section 9(a) incorporates the

13 governing legal limitations, such as the procedural requirements for making or revoking federal

14 grants. See, e.g., 2 C.F.R. § 200.341 (hearings and appeals in federal grant-making); 28 C.F.R. pt.

15 18 (DOJ Office of Justice Programs Hearing and Appeal Procedures).

16

Therefore, plaintiff has not stated a claim on which relief can be granted regarding

17 procedural due process.

18 IV. 19

Plaintiff’s Claim that the “Appropriate Enforcement Action” Provision of Section 9(a) Violates the Tenth Amendment Is Non-Justiciable

20

Plaintiff’s last claim, in Count 4 of the Complaint, is that the Tenth Amendment is

21 violated by the provision in Section 9(a) that instructs the Attorney General to “take appropriate

22 enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute,

23 policy, or practice that prevents or hinders the enforcement of Federal law” (Doc. 1 ¶¶ 149-152).

24 The County characterizes various statements by public officials as meaning that defendants

25 “interpret[] the Executive Order to require County law enforcement officers to comply with

26 federal directives regarding detainer actions by U.S. Immigration & Customs Enforcement’”

27 (Doc. 1 ¶ 131(iii)). From this, the County leaps to the conclusion that this provision in Section

28 9(a) “commandeers state and local officials” in violation of the Tenth Amendment by requiring

Motion to Dismiss; Memorandum

22

No. 3:17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 115 Filed 06/07/17 Page 29 of 32

1 them to “imprison individuals subject to removal at the request of federal officials” and

2 “transforming [state and local officials] into federal apparatchiks” (id. ¶¶ 13, 88, 151). Plaintiff

3 does not allege, however, that the defendants have taken any “enforcement action” against it or

4 have indicated that any such action is imminent. Accordingly, this claim is non-justiciable and

5 must be dismissed under principles of standing and ripeness.

6

Under Article III of the Constitution, the jurisdiction of the federal courts extends only to

7 “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. Matters outside this rubric are “non-

8 justiciable.” Ore. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288

9 F.3d 414, 416 (9th Cir. 2002). Two principles of justiciability bar jurisdiction over plaintiff’s

10 Count Three: standing and ripeness. “While standing is concerned with who is a proper party to

11 litigate a particular matter, the doctrines of mootness and ripeness determine when that litigation

12 may occur.” Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198, 1201 (D. Haw. 1998).

13 Where a plaintiff lacks standing or its claims are unripe, the court lacks jurisdiction. See Nat’l

14 Inst. of Family & Life Advocates v. Harris, 839 F.3d 823, 832 (9th Cir. 2016).

15

To satisfy the “irreducible constitutional minimum” of standing, a plaintiff must

16 demonstrate an “injury in fact,” a “fairly traceable” causal connection between the injury and

17 defendant’s conduct, and redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

18 102-03 (1998). The injury needed for constitutional standing must be “concrete,” “objective,”

19 and “palpable,” not merely “abstract” or “subjective.” See Whitmore v. Arkansas, 495 U.S. 149,

20 155 (1990); Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975). Additionally, the injury must be

21 “certainly impending” rather than “speculative.” Whitmore, 495 U.S. at 157, 158. “[S]tanding is

22 perhaps the most important of [the jurisdictional] doctrines.” FW/PBS, Inc. v. City of Dallas, 493

23 U.S. 215, 231 (1990) (internal quotation marks omitted).

24

Constitutional justiciability also requires that a dispute be ripe for judicial consideration –

25 that is, that the challenged action “has been formalized and its effects felt in a concrete way by the

26 challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). In other words, “[a]

27 claim is not ripe for adjudication [under the Constitution] if it rests upon contingent future events

28

Motion to Dismiss; Memorandum

23

No. 3:17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 115 Filed 06/07/17 Page 30 of 32

1 that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523

2 U.S. 296, 300 (1998) (internal quotation marks omitted).

3

In assessing constitutional ripeness in the context of a “pre-enforcement challenge” to a

4 statutory or administrative enactment, the courts consider “both the fitness of the issues for

5 judicial decision and the hardship to the parties of withholding court consideration.” Abbott

6 Labs., 387 U.S. at 149. “A claim is fit for decision if the issues raised are primarily legal, do not

7 require further factual development, and the challenged action is final.” Standard Alaska Prod.

8 Co. v. Schaible, 874 F.2d 624, 627 (9th Cir. 1989). In other words, a court considers whether the

9 court and the parties would “benefit from deferring review until the agency’s policies have

10 crystallized and the question arises in some more concrete and final form.” Eagle-Picher Indus.,

11 Inc. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985) (internal quotation marks omitted); see U.S. W.

12 Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1119 (9th Cir. 1999) (finding that claim was not

13 fit for decision where administrative proceedings had not concluded and court would “benefit”

14 from outcome of those proceedings). Finally, “[t]o meet the hardship requirement, a litigant must

15 show that withholding review would result in direct and immediate hardship and would entail

16 more than possible financial loss.” Winter v. California Med. Review, Inc., 900 F.2d 1322, 1325

17 (9th Cir. 1989) (internal quotation marks omitted).

18

Applying these standards here, the plaintiff cannot show the “injury in fact” needed for

19 constitutional standing to challenge the “appropriate enforcement action” provision, Steel Co.,

20 523 U.S. at 102-03, and this claim is not constitutionally ripe for judicial review, Abbott Labs.,

21 387 U.S. at 148-49. The defendants have taken no enforcement action against Santa Clara

22 County under Section 9(a) of the Executive Order, and there is no indication that any such action

23 is imminent. Thus, the plaintiff has not suffered any “concrete” injury due to this provision, and

24 no such injury is “certainly impending.” See Whitmore, 495 U.S. at 155, 158. Similarly, since the

25 federal government might never take enforcement action against the County under Section 9(a),

26 this claim rests on “contingent future events that . . . may not occur at all,” see Texas, 523 U.S. at

27 300, and the County cannot show any “direct and immediate hardship” from withholding review,

28 see Winter, 900 F.2d at 1325.

Motion to Dismiss; Memorandum

24

No. 3:17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 115 Filed 06/07/17 Page 31 of 32

1

Nor could the plaintiff allege that the mere possibility of enforcement action has inflicted

2 any cognizable injury. Indeed, there is always a possibility that the Federal Government may sue

3 a State or local government alleging that the defendant’s laws or policies are constitutionally

4 preempted. See Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492 (2012); United States v.

5 South Carolina, 720 F.3d 518 (4th Cir. 2013); United States v. Alabama, 691 F.3d 1269 (11th

6 Cir. 2012). This authority exists entirely independent of the Executive Order. Id. Further, if

7 such action were to occur, the County would have an opportunity at that time to challenge its

8 propriety and merits.

9

Accordingly, Count 4 of the Complaint should be dismissed for lack of subject matter

10 jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure.

11

CONCLUSION

12

For the reasons discussed above, all of plaintiff’s claims should be dismissed with

13 prejudice.

14 Dated: June 7, 2017 15 16 17 18

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
BRIAN STRETCH United States Attorney

19

JOHN R. TYLER

20

Assistant Director

21

/s/ W. Scott Simpson

22 23 24 25 26 27 28
Motion to Dismiss; Memorandum No. 3:17-cv-00574-WHO

W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel
Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
25

Case 3:17-cv-00574-WHO Document 115 Filed 06/07/17 Page 32 of 32

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Motion to Dismiss; Memorandum No. 3:17-cv-00574-WHO

COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; MICK MULVANEY, Director of the Office of Management and Budget
26

Case 3:17-cv-00574-WHO Document 115-1 Filed 06/07/17 Page 1 of 3
County of Santa Clara v. Donald J. Trump, et al., No. 3:17-cv-00574-WHO (N.D. Cal.) Defendants’ Motion to Dismiss
Attachment 1 Memorandum from the Attorney General
for All Department Grant-Making Components (May 22, 2017)

Case 3:17-cv-00574-WHO Document 115-1 Filed 06/07/17 Page 2 of 3
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Case 3:17-cv-00574-WHO Document 115-2 Filed 06/07/17 Page 1 of 2
County of Santa Clara v. Donald J. Trump, et al., No. 3:17-cv-00574-WHO (N.D. Cal.) Defendants’ Motion to Dismiss
Attachment 2 Proposed Order

Case 3:17-cv-00574-WHO Document 115-2 Filed 06/07/17 Page 2 of 2

1

2

3

4

5

6

7

IN THE UNITED STATES DISTRICT COURT

8

FOR THE NORTHERN DISTRICT OF CALIFORNIA

9

SAN FRANCISCO DIVISION

10 COUNTY OF SANTA CLARA,

11
Plaintiff,

12

v.

No. 3:17-cv-00574-WHO ORDER

13 DONALD J. TRUMP, et al.,

14

Defendants.

15

16

17

18
Defendants having filed a motion to dismiss and the Court having considered all materials
19
submitted in relation thereto, defendants’ motion to dismiss [ECF No. 115] is hereby GRANTED
20
and plaintiff’s Complaint [ECF No. 1] is DISMISSED WITH PREJUDICE.
21

22
IT IS SO ORDERED.
23

24
Dated: ______________, 2017
25

26
27
28
Order: Dismissal No. 3:17-cv-00574-WHO

William H. Orrick United States District Judge

 
 Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 1 of 17

1 CHAD A. READLER

Acting Assistant Attorney General 2 BRIAN STRETCH

3 United States Attorney JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487) 5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883 Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS (See signature page for parties represented.)

11

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE NORTHERN DISTRICT OF CALIFORNIA

14

SAN FRANCISCO DIVISION

15 CITY AND COUNTY OF SAN
16 FRANCISCO,

17

Plaintiff,

18

v.

19 DONALD J. TRUMP, et al.,

REPLY IN SUPPORT OF DEFENDANTS’ MOTION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, CLARIFICATION OF THE COURT’S ORDER OF APRIL 25, 2017

20

Defendants.

No. 3:17-cv-00485-WHO

21 22 COUNTY OF SANTA CLARA,

23

Plaintiff,

v.

24

DONALD J. TRUMP, et al., 25

26

Defendants.

No. 3:17-cv-00574-WHO

27

28

Defs’ Reply: Motion for Reconsideration No. 3:17-cv-00485/00574-WHO

Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 2 of 17

1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES...........................................................................................................ii

4 INTRODUCTION ........................................................................................................................... 1

5 ARGUMENT .................................................................................................................................. 1

6

I. The Relevant Standards Here Are Those That Govern a Motion for Reconsideration, Not a Request for Leave to File a Motion ............................. 1

7

II. Defendants’ Motion for Reconsideration Is Timely................................................ 2

8

III. The AG Memorandum Constitutes New Evidence and New Authority

9

Relevant to the Motions for Preliminary Injunction................................................ 3

10

IV. The AG Memorandum Provides a Basis for the Court to Reconsider Its Preliminary Injunction..................................................................... 4

11

A. The AG Memorandum Is an Authoritative Elucidation

12

of the Executive Order................................................................................. 4

13

B. The AG Memorandum Provides a Basis for the Court to Reconsider Its Justiciability Determination................................................. 7

14

C. The AG Memorandum Alleviates the Court’s

15

Concerns on the Merits................................................................................ 8

16

1. The AG Memorandum Alleviates the Court’s Separation of Powers Concerns....................................................... 8

17

2. The AG Memorandum Alleviates the Court’s

18

Spending Clause Concerns .............................................................. 9

19

3. The AG Memorandum Alleviates the Court’s Tenth Amendment Concerns ......................................................... 10

20

4. The AG Memorandum Alleviates the Court’s

21

Vagueness Concerns...................................................................... 11

22 CONCLUSION ............................................................................................................................. 12

23

24

25

26

27

28

Defs’ Reply: Motion for Reconsideration

i

No. 3:17-cv-00485/00574-WHO

Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 3 of 17

1

TABLE OF AUTHORITIES

2 CASES
3
4 ACLU v. Dep’t of, Def., 396 F. Supp. 2d 459 (S.D.N.Y. 2005) ....................................................... 5

5 Aris Helicopters, Ltd. v. Avco Corp., Textron Lycoming Div., 956 F.2d 274 (9th Cir. 1992) ......... 3

6 Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ................... 10

7 Building & Construction Trades Department, AFL-CIO v.

8

Allbaugh, 295 F.3d 28 (D.C. Cir. 2002)....................................................................................... 8

9 Coal. for Healthy Ports v. U.S. Coast Guard, No. 13-CV-5347 (RA), 2015 WL 7460018 (S.D.N.Y. Nov. 24, 2015) ............................................................................. 2
10 Cty. of Santa Clara v. Trump, No. 17-CV-00485-WHO,
11 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017) ......................................................................... 4, 6

12 Doe v. Harris, 772 F.3d 563 (9th Cir. 2014) .................................................................................... 4
13 Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) ........................................................... 10
14 Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133 (9th Cir. 2009) ..................... 11
15 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ............................................................. 10
16 Morton v. Ruiz, 415 U.S. 199 (1974) ............................................................................................... 8
17 New York v. United States, 505 U.S. 144 (1992) ........................................................................... 10
18 Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255 (9th Cir. 1993).................... 3
19 South Dakota v. Dole, 483 U.S. 203 (1987) ................................................................................... 10
20
21 United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976) .......................................................... 3
22 Vargasarellano v. Hessling, No. 16-CV-00919-YGR (PR), 2017 WL 661367 (N.D. Cal. Feb. 17, 2017)............................................................................................................. 3
23 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) ................................ 11
24

25 STATUTES

26 8 U.S.C. § 1103(a)(1) ....................................................................................................................... 5

27 8 U.S.C. § 1373(a) .......................................................................................................................... 12

28

Defs’ Reply: Motion for Reconsideration

ii

No. 3:17-cv-00485/00574-WHO

Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 4 of 17

1 28 U.S.C. § 512 ................................................................................................................................ 5

2 28 U.S.C. § 516 ................................................................................................................................ 5
3 42 U.S.C. § 3712(a)(6) ..................................................................................................................... 8
4 42 U.S.C. § 3752(a)(5)(D)................................................................................................................ 8
5

6 REGULATIONS 7 28 C.F.R. § 0.5(c) ............................................................................................................................. 5 8 9 EXECUTIVE ORDERS

10 Exec Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................... 5, 6, 7

11 LOCAL RULES
12 Civ. L.R. 9-7 ..................................................................................................................................... 1
13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Defs’ Reply: Motion for Reconsideration

iii

No. 3:17-cv-00485/00574-WHO

Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 5 of 17

1

INTRODUCTION

2

In opposing defendants’ motion for reconsideration of the Court’s preliminary injunction,

3 plaintiffs San Francisco and Santa Clara County fail to acknowledge that the Attorney General’s

4 Memorandum on implementing Section 9 of Executive Order 13,768 is more than a mere

5 “interpretation” of the Order. Rather, it sets forth formal guidance and direction by the Nation’s

6 chief legal officer and one of the officials responsible for implementing the grant eligibility

7 provision in Section 9. Thus, the AG Memorandum constitutes new evidence and new authority

8 for purposes of seeking reconsideration. The Memorandum is also an authoritative elucidation of

9 the grant eligibility provision that alleviates the concerns expressed by the Court on the merits of

10 plaintiffs’ claims.

11

When counsel for defendants conveyed defendants’ understanding of Section 9 during

12 argument on the motions for preliminary injunction, counsel for Santa Clara County questioned

13 whether the Attorney General had “signed off” on that understanding.1 Obviously, the AG

14 Memorandum eliminates that objection.

15

Accordingly, the Court should reconsider its order granting plaintiffs’ motions for

16 preliminary injunction.2

17

ARGUMENT

18 I. 19

The Relevant Standards Here Are Those That Govern a Motion for Reconsideration, Not a Request for Leave to File a Motion

20

Plaintiffs’ oppositions to the motion for reconsideration recite and address the standards of

21 Civil Local Rule 7-9 (SF Dkt. No. 108 at 4-6; SC Dkt. No. 114 at 9-14), but those standards are

22 no longer relevant. Civil Local Rule 7-9 provides that “[n]o party may notice a motion for

23 reconsideration without first obtaining leave of Court to file the motion,” and it requires parties to

24 make certain showings in requesting leave. See Civil L.R. 7-9(a); see also id. 7-9(b), (c).

25

1 Tr. of Oral Arg. at 46:1-3, City & Cnty. of San Francisco v. Trump, No. 3:17-cv-00485

(N.D. Cal. Apr. 14, 2017).

26

2 Both of the plaintiffs oppose defendants’ alternative request for clarification of the

27 Court’s preliminary injunction (SC Dkt. No. 114 at 23; SF Dkt. No. 108 at 24-25). If the Court believes defendants correctly read the Order of April 25, 2017, as not enjoining them from

28 exercising legal authority, independent of the Executive Order, to impose conditions on grant programming, then formal clarification may be unnecessary.

Defs’ Reply: Motion for Reconsideration No. 3:17-cv-00485/00574-WHO

Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 6 of 17

1 Defendants filed motions for leave in these actions on May 22, 2017 (SF Dkt. No. 102; SC Dkt.

2 No. 108). On May 23, 2017, the Court entered an “Order Granting Motion for Leave to File

3 Motion for Reconsideration,” stating that the Court would “GRANT the government’s Motion for

4 Leave . . . and deem the government’s Motions for Reconsideration” filed as of that date (SF Dkt.

5 No. 106 at 2). Although the Court noted that it would “consider the issues raised in the Counties’

6 short oppositions regarding diligence and material change of fact when evaluating the merits of

7 the government’s motion for reconsideration” (id., emphasis added), the Court’s Order resolved

8 defendants’ compliance with Civil Local Rule 7-9. Presently before the Court, therefore, are “the

9 merits of the government’s motion for reconsideration,” which should be judged according to the

10 standards governing such motions, as discussed below.

11 II. Defendants’ Motion for Reconsideration Is Timely

12

Plaintiffs argue that defendants have not been “diligent” in submitting their motion for

13 reconsideration (SF Dkt. No. 108 at 5-6; SC Dkt. No. 114 at 9-10). To the extent the timing of

14 defendants’ motion is relevant to its merits, the motion is timely – as was, indeed, the AG

15 Memorandum itself. Two time periods are involved here: the period between promulgation of

16 the Executive Order and issuance of the AG Memorandum, and the period between issuance of

17 the AG Memorandum and the filing of defendants’ motion for leave. Plaintiffs cannot complain

18 about the length of the second period, which lasted less than a day. Nor can plaintiffs complain

19 about the length of the first period, during which defendants were preparing to implement the

20 grant eligibility provision in the Executive Order. This litigation commenced only a few days

21 after issuance of the Executive Order, and defendants explained, in their opposition to plaintiffs’

22 motions for preliminary injunction, that the government would need more time to implement the

23 grant eligibility provision. The AG Memorandum was issued once it was ready. Cf. Coal. for

24 Healthy Ports v. U.S. Coast Guard, No. 13-CV-5347 (RA), 2015 WL 7460018, at *2 (S.D.N.Y.

25 Nov. 24, 2015) (referring to agency guidance that “clarified” an Executive Order issued three

26 years earlier).

27

Furthermore, the passage of time between promulgation of the Executive Order and

28 issuance of the AG Memorandum did not harm the plaintiffs. During that time, the grant eligibil-

Defs’ Reply: Motion for Reconsideration

2

No. 3:17-cv-00485/00574-WHO

Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 7 of 17

1 ity provision was not implemented, and, indeed, its implementation was judicially enjoined as of

2 April 25, 2017. Although San Francisco argues that this sequence of events “maintained the full

3 coercive force of the Executive Order for as long as possible” (SF Dkt. No. 108 at 1), plaintiff

4 does not allege (and cannot allege) that the Order has had any “coercive force” on the City.

5 Finally, as plaintiffs concede, defendants’ motion for reconsideration is timely under Rule 59(e)

6 of the Federal Rules of Civil Procedure, as it was filed 28 days after the Court’s preliminary

7 injunction. See Vargasarellano v. Hessling, No. 16-CV-00919-YGR (PR), 2017 WL 661367, at

8 *1-2 (N.D. Cal. Feb. 17, 2017) (noting timeliness of motion for reconsideration filed within 28

9 days).3

10 III. 11

The AG Memorandum Constitutes New Evidence and New Authority Relevant to the Motions for Preliminary Injunction

12

The Court of Appeals has held that reconsideration of a prior decision is appropriate if the

13 court is presented with “newly discovered evidence,” there has been “an intervening change in

14 controlling law,” the court committed “clear error,” or the decision was “manifestly unjust.” See

15 Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255, 1263 (9th Cir. 1993); see

16 also Aris Helicopters, Ltd. v. Avco Corp., Textron Lycoming Div., 956 F.2d 274 (9th Cir. 1992)

17 (noting that reconsideration may be based on “new authority or new evidence”). Here, the AG

18 Memorandum constitutes both new evidence and new legal authority. Plaintiffs argue that the

19 Memorandum does not constitute new authority because it merely repeats the representations of

20 government counsel at oral argument on the motions for preliminary injunction (SC Dkt. No. 114

21 at 6-8, 10-; SF Dkt. No. 105 at 6-7). But they fail to recognize that the significance of the AG

22 Memorandum lies not only in what it says, but also in the fact that the Attorney General himself

23 has now provided guidance, and in a formal way that is binding on those who will implement the

24 grant eligibility provision – thus directly affecting the likelihood that the Order could be imple-

25 mented in any way that violates the Constitution or injures the plaintiffs. The Attorney General is

26 not only the “chief legal advisor” to the President, United States v. Ehrlichman, 546 F.2d 910,

27

28

3 Defendants regret the short time allowed for the Court to act on their motion for leave, and appreciate the Court’s quick action.

Defs’ Reply: Motion for Reconsideration

3

No. 3:17-cv-00485/00574-WHO

Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 8 of 17

1 925 (D.C. Cir. 1976), but also one of the two officials charged with implementing Section 9.

2 Thus, the AG Memorandum constitutes more than a mere “interpretation” of Section 9 (SC Dkt.

3 No. 114 at 1; SF Dkt. No. 108 at 1).

4

In fact, at oral argument, counsel for Santa Clara County argued against relying on the

5 representations made by defendants’ counsel specifically because they were not made by the

6 Attorney General:

7

[I]t’s not binding on anybody. [W]hat we’re worried about is the President, we’re

8

worried about the Attorney General. [W]ith all deference, what a Justice

Department lawyer down the food chain says, without a declaration, without an

9

affidavit, without any binding effect, is not something that you should consider,

we believe. 10
Tr. of Oral Arg. at 11:7-13, City & Cnty. of San Francisco v. Trump, No. 3:17-cv-00485 (N.D.

11 Cal. Apr. 14, 2017). And later, counsel added: “I didn’t hear that Attorney General Sessions had

12

signed off to this new interpretation.” Id. at 46:1-3. The Attorney General himself has now

13 issued authoritative guidance regarding the implementation of Section 9.4

14

15 IV.

The AG Memorandum Provides a Basis for the Court to Reconsider Its Preliminary Injunction

16

Not only does the AG Memorandum constitute new evidence and new authority justifying

17 a motion for reconsideration, but it also sets forth an authoritative elucidation of Section 9 of the

18 Executive Order. Further, the Attorney General’s guidance undercuts the Court’s findings that

19 plaintiffs’ claims are justiciable and that plaintiffs are likely to succeed on the merits.

20 A. The AG Memorandum Is an Authoritative Elucidation

21

of the Executive Order

22

Plaintiffs challenge the extent to which the AG Memorandum authoritatively “binds other

23 Executive Branch agencies and officials” regarding the scope of the grant eligibility provision (SF

24 Dkt. No. 108 at 10). As noted in defendants’ motion for reconsideration, however, the Attorney

25

4 Thus, this case is unlike Doe v. Harris, 772 F.3d 563 (9th Cir. 2014), on which San

26 Francisco relies (SF Dkt. No. 108 at 9). There, the court rejected an argument that the challenged

provision would be implemented consistent with “general principles of good police practices” and 27 thus was not overly broad. Id. at 581. In this case, by contrast, the very official charged with

28

implementing the grant eligibility provision – and with providing legal advice to other agencies – has stated how the provision will be implemented.

Defs’ Reply: Motion for Reconsideration

4

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Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 9 of 17

1 General has a statutory duty to advise executive department heads on “questions of law,” 28

2 U.S.C. § 512, and to furnish formal legal opinions to executive agencies, 28 C.F.R. § 0.5(c).5

3 Also, although the Secretary of Homeland Security is principally responsible for administering

4 the immigration laws, the Immigration and Nationality Act (“INA”) provides that “the

5 determination and ruling by the Attorney General with respect to all questions of law shall be

6 controlling.” 8 U.S.C. § 1103(a)(1).

7

The AG Memorandum obviously deals with underlying “questions of law,” such as the

8 application of 8 U.S.C. 1373. See 28 U.S.C. § 512; 28 C.F.R. § 0.5(c); see also ACLU v. Dep’t of

9 Def., 396 F. Supp. 2d 459, 462 (S.D.N.Y. 2005) (“The Office of the Attorney General of the DOJ

10 is empowered to furnish advice and opinions on legal matters to government agencies, 28 C.F.R.

11 § 0.5 (2005), and has issued public memoranda interpreting the Convention Against Torture.”).

12 Similarly, for purposes of the INA, the AG Memorandum clearly constitutes a “determination” on

13 underlying “questions of law.” See 8 U.S.C. § 1103(a)(1). San Francisco argues that these

14 statutory and regulatory provisions do not apply because the AG Memorandum does not contain

15 “legal analysis” or set forth “opinions on questions of law” (SF Dkt. No. 108 at 10), but there is

16 no indication in 28 U.S.C. § 512 or 28 C.F.R. § 0.5(c) that an opinion thereunder must contain

17 any particular degree of “analysis.” Additionally, the Order instructs the Attorney General and

18 the Secretary to “ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373

19 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for

20 law enforcement purposes by the Attorney General or the Secretary.” Exec. Order No. 13,768,

21 § 9(a). Necessarily, therefore, the grant eligibility provision can have no broader scope than that

22 specified by the Attorney General and the Secretary, even aside from any general statutory or

23 regulatory statement of their duties.6

24

25

5 Additionally, except as otherwise authorized by law, the Attorney General or his

26 designee conducts litigation on behalf of the United States and its agencies. See 28 U.S.C. § 516. 6 Further, the issue here is not whether this Court is bound by the Attorney General’s
27 determination as to the scope and meaning of the grant eligibility provision, but rather whether

28

other federal agencies are bound by it. Thus, the rules of judicial deference are inapplicable. See SC Dkt. No. 114 at 11-14; SF Dkt. No. 108 at 13-16 & n.9.

Defs’ Reply: Motion for Reconsideration

5

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Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 10 of 17

1

Plaintiffs argue that the Court should not credit the AG Memorandum because it was

2 issued “in the context of this litigation” and therefore was meant merely “to gain a litigation

3 advantage” (SF Dkt. No. 108 at 15-16; see SC Dkt. 114 at No. 1, 5, 16). But the fact that the

4 Memorandum was issued during the course of litigation is attributable to the timing of this

5 litigation, not to the Attorney General’s timing. The President signed the Executive Order on

6 January 25, 2017, and San Francisco filed its original complaint six days later, on January 31. The

7 Order required the Attorney General to take various actions to implement Section 9(a) and, as

8 defendants indicated in response to plaintiffs’ motions for preliminary injunctions and in the

9 hearing before the Court on those motions, those actions had not yet been completed. The

10 Attorney General, of course, was required to take action at some point to implement Section 9(a),

11 and the fact that he took action during the course of this ongoing litigation should not undercut

12 the authoritativeness of the AG’s memorandum.

13

Plaintiffs also argue that the Court should not rely on the AG Memorandum in relation to

14 the meaning of the term “sanctuary jurisdiction” “because the Executive Order gives the

15 Secretary – not the Attorney General – the authority and discretion to designate sanctuary

16 jurisdictions” (SF Dkt. No. 108 at 21; see SC Dkt. No. 114 at 1-2, 6, 16). The plaintiffs, however,

17 are confusing the elucidation of that term with the responsibility to designate individual sanctuary

18 jurisdictions. The Order gives the Secretary “the authority to designate, in his discretion and to

19 the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.” Exec. Order No. 13,768,

20 § 9(a). But the AG Memorandum does not “designate” any sanctuary jurisdictions; it only

21 clarifies what the Executive Order says about the meaning of the term – that is, that it “will refer

22 only to jurisdictions that ‘willfully refuse to comply with 8 U.S.C. 1373.’” AG Mem. at 2. And

23 the Memorandum makes clear that the Secretary concurs in that understanding.7

24

25

26

27

7 Lastly, plaintiffs argue that the AG Memorandum is not authoritative or binding because

28

the Attorney General could issue a differing guidance in the future (SF Dkt. No. 108 at 12-13; SC Dkt. No. 114 at 22). But that is true of any authoritative guidance issued by a federal official.

Defs’ Reply: Motion for Reconsideration

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1

B. The AG Memorandum Provides a Basis for the Court to

Reconsider Its Justiciability Determination 2

The AG Memorandum undercuts this Court’s findings and conclusions regarding the 3

justiciability of plaintiffs’ claims. In opposing plaintiffs’ motions for preliminary injunction, 4

defendants argued that the Executive Order had not been applied to the plaintiffs, such as through 5

a loss of federal funds or a designation of “sanctuary jurisdictions,” so that plaintiffs lacked the 6

“concrete,” “objective,” and “palpable” injury needed for constitutional standing and the Order 7

had not been “formalized and its effects felt in a concrete way” as needed for constitutional 8

ripeness (SF Dkt. No. 35 at 19; SC Dkt. No. 46 at 17-18). In rejecting those arguments, the Court 9

found, among other things, that plaintiffs had a “well-founded fear” of the “withholding [of] all 10

federal funds, or at least all federal grants,” which made up “a significant part of the Counties’ 11

budgets” (SF Dkt. No 82 at 29, 32). The Court found that a loss of such grants would, among 12

other things, “require severe cuts to [San Francisco’s] transportation system; threaten the Mayor’s 13

program to end chronic veterans’ homelessness by 2018; and likely require cuts to social services, 14

such as senior meals, safety net services for low-income children, and domestic violence preven15

tion services” (id. at 30). “[This] potential loss of all federal grants,” the Court observed, “creates 16

a contingent liability large enough to have real and concrete impacts on the Counties’ ability to 17

budget and plan for the future” (id. at 29). 18

The AG Memorandum completely eliminates this element of the Court’s justiciability 19

analysis. The Memorandum makes clear that the grant eligibility provision will be applied only 20
to DOJ and DHS grants, not to “all federal grants” (much less “all federal funds”).8 There is no 21

indication that grants from those two agencies make up a “a significant part of the Counties’ 22

23

24

8 In arguing to the contrary, Santa Clara County seeks to rely on Section 9(c) of the Order (SC Dkt. No. 114 at 14-15), which directs the Office of Management and Budget to “obtain and

25 provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.” See Exec. Order No. 13,768, § 9(c) (emphasis added). That

26 provision, however, is consistent with the AG Memorandum’s statements regarding the grant

eligibility provision in Section 9(a). The President can direct the gathering and dissemination of 27 information in an effort to affect public perception and opinion, separately from directing certain

28

agencies to use their discretion to impose conditions on certain federal grants, where statutorily authorized.

Defs’ Reply: Motion for Reconsideration

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Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 12 of 17

1 budgets,” and they do not include grants for “social services, such as senior meals, [or] safety net

2 services for low-income children.” Plaintiffs do not address this aspect of the justiciability

3 analysis in opposing defendants’ motion for reconsideration.

4

C. The AG Memorandum Alleviates the Court’s Concerns on the Merits

5

The AG Memorandum also alleviates the concerns expressed by the Court on the merits

6 of plaintiffs’ claims under the Separation of Powers, the Spending Clause, the Tenth Amendment,

7 and the Fifth Amendment (vagueness and procedural due process). The Memorandum’s effect on

8 these claims is addressed in defendants’ motions to dismiss (SF Dkt. No. 111; SC Dkt. No. 115),

9 which also refute many of the arguments that plaintiffs make in opposing defendants’ motion for

10 reconsideration. The points in plaintiffs’ oppositions are addressed below to the extent they are

11 not already refuted in the motions to dismiss.9

12

1. The AG Memorandum Alleviates the Court’s

13

Separation of Powers Concerns

14

In relation to plaintiffs’ Separation of Powers claims, the AG Memorandum makes clear

15 that the Executive Order does not “purport to expand the existing statutory or constitutional

16 authority of the Attorney General and the Secretary,” and that compliance with Section 1373 will

17 be imposed as a condition of grant eligibility only where the agency “is statutorily authorized to

18 impose such a condition.” AG Mem. at 2; see, e.g., 42 U.S.C. § 3712(a)(6) (authorizing certain

19 DOJ officials to place “special conditions” on particular grants); id. § 3752(a)(5)(D) (authorizing

20 Office of Justice Programs to require applicants to certify compliance “with all provisions of this

21 part and all other applicable Federal laws”); Morton v. Ruiz, 415 U.S. 199, 230 (1974) (finding

22 that, in certain instances, such as where a congressional appropriation is insufficient to carry out

23 its purpose, the agency administering the program is deemed authorized “to create reasonable

24 classifications and eligibility requirements in order to allocate the limited funds available”). This 25 eliminates any concern in relation to the Separation of Powers.10

26

9 Santa Clara County’s opposition says nothing about its procedural due process claim

(SC Dkt. No. 114), so that claim is not addressed below.

27

10 Thus, this case is similar to Building & Construction Trades Department, AFL-CIO v.

28

Allbaugh, 295 F.3d 28 (D.C. Cir. 2002), where the President issued an executive order instructing his subordinates to take certain action “[t]o the extent permitted by law.” Id. at 30. Santa Clara

Defs’ Reply: Motion for Reconsideration

8

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Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 13 of 17

1

Nevertheless, San Francisco argues that these existing authorities must not include the

2 authority to condition grants on compliance with Section 1373 because the President has

3 proposed certain amendments to Section 1373 related to grant-making (SF Dkt. 108 at 19-20).

4 Specifically, the proposed amendments would expressly authorize the Attorney General and the

5 Secretary to condition any grant “related to immigration, national security, law enforcement, or

6 preventing, preparing for, protecting against or responding to acts of terrorism” on the grantee’s

7 agreement to comply with immigration detainer requests and otherwise to assist federal

8 immigration officials in specific ways (SF Dkt. No. 109-1, Ex. A). That proposal, however, is

9 much broader than existing authorities, so that it does not suggest any uncertainty about the

10 existing authorities.

11

2. The AG Memorandum Alleviates the Court’s

12

Spending Clause Concerns

13

In relation to plaintiffs’ Spending Clause claims, the AG Memorandum makes clear that

14 the grant eligibility provision will be applied only to certain future grants administered by the 15 Department of Justice11 and the Department of Homeland Security, that “[a]ll grantees will

16 receive notice of their obligation to comply with [8 U.S.C. § 1373],” and that grantees will only

17 be required to certify compliance with Section 1373, which proscribes prohibiting or restricting

18 the sharing of information with federal immigration authorities. This should eliminate any

19 Spending Clause concerns.

20

In arguing to the contrary, San Francisco asserts that the AG Memorandum “does not limit

21 application of the Executive Order to funds related to immigration enforcement, as required to

22 satisfy the nexus requirement” (SF Dkt. No. 108 at 21). This gives the nexus principle much too

23 County seeks to distinguish Allbaugh by saying that the statute involved there “had expressly

24

authorized a role for the President” (SC Dkt. No. 114 at 18-19). But that is actually a point of similarity: As with the President’s instruction in Allbaugh, the grant eligibility provision here

25

will be applied only where statutorily authorized. 11 Santa Clara County argues that DOJ’s identification of three grant programs as subject

26 to the grant eligibility provision is unreasonable because they are “all law enforcement programs”

and the Executive Order excepts grant payments that are “deemed necessary for law enforcement 27 purposes” (SC Dkt. No. 114 at 15). But the fact that a given program is meant to assist law

28

enforcement does not mean that a specific disbursement under such a program, to a specific jurisdiction on a specific occasion, would be deemed “necessary.”

Defs’ Reply: Motion for Reconsideration

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Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 14 of 17

1 narrow a focus, however. As the Court of Appeals has held, this aspect of South Dakota v. Dole,

2 483 U.S. 203 (1987), “only suggests that [an enactment] might be illegitimate without

3 demonstrating a nexus between the conditions and a specified national interest,” and it does not

4 impose “an exacting standard for relatedness.” Mayweathers v. Newland, 314 F.3d 1062, 1067

5 (9th Cir. 2002). Specifically, the court said, conditions on federal funding must only “bear some

6 relationship to the purpose of the federal spending.” Id. (quoting New York v. United States, 505

7 U.S. 144, 167 (1992)); see Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161,

8 1168 (D.C. Cir. 2004) (noting that Supreme Court has never “overturned Spending Clause

9 legislation on relatedness grounds”).

10

That standard is easily met here, where the grant eligibility provision will be applied only

11 to certain grants administered by two federal law enforcement agencies. Each of these agencies

12 has grant programs whose purposes obviously “bear some relationship” to encouraging grantees

13 to cooperate with federal law enforcement agencies. Moreover, any alleged violation of this

14 principle in connection with a specific grant could be raised in an as-applied challenge.12

15

3. The AG Memorandum Alleviates the Court’s

16

Tenth Amendment Concerns

17

In relation to San Francisco’s Tenth Amendment claim, the AG Memorandum makes

18 clear that, “for purposes of enforcing the Executive Order, the term ‘sanctuary jurisdiction’ will

19 refer only to jurisdictions that ‘willfully refuse to comply with 8 U.S.C. 1373’,” which simply

20 proscribes prohibiting or restricting the sharing of information with federal immigration

21 authorities, and that the grant eligibility provision will be implemented by requiring grantees to

22 certify their compliance with Section 1373. AG Mem. at 2. Thus, a potential grantee can avoid

23 any possibility of encroachment by the Federal Government simply by refraining from seeking or

24 accepting funds under the covered grant programs. See Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d

25 832, 847 (9th Cir. 2003) (“[A]s long as the alternative to implementing a federal regulatory

26 program does not offend the Constitution’s guarantees of federalism, the fact that the alternative

27

12 Plaintiffs point to certain specific grants (SC Dkt. No. 114 at 20; SF Dkt. No. 108 at 21

28

n.13), but there is no indication that the grant eligibility provision will be applied in relation to any of them.

Defs’ Reply: Motion for Reconsideration

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Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 15 of 17

1 is difficult, expensive or otherwise unappealing is insufficient to establish a Tenth Amendment

2 violation.”) (internal quotation marks omitted).

3

In opposing reconsideration, plaintiffs express a concern that a federal agency may take

4 action under the Executive Order to try to compel them to comply with federal immigration

5 detainer requests (SF Dkt. No. 108 at 22-23; SC Dkt. No. 114 at 22). But a jurisdiction can

6 choose whether to participate in a given grant program, and thus necessarily cannot be

7 “commandeered” in that way (SC Dkt. No. 114 at 22). Further, in expressing a concern that the

8 Attorney General might seek to compel compliance with detainer requests under the provision in

9 the Order instructing the Attorney General to take “appropriate enforcement action” against

10 certain jurisdictions (SF Dkt. No. 108 at 22-23), San Francisco ignores the fact that the govern-

11 ment has recently confirmed its position that such requests “are voluntary . . . rather than

12 mandatory commands.” See Br. of the United States as Amicus Curiae at 22, Mass. v. Lunn, No.

13 SJC-12276, 2017 WL 1240651, at *22 (D. Mass. Mar. 27, 2017). In any event, if the Attorney

14 General were to take any “enforcement action” that San Francisco believed to be unconstitutional,

15 the City could assert the unconstitutionality at that time.

16

4. The AG Memorandum Alleviates the Court’s

17

Vagueness Concerns

18

Finally, in relation to Santa Clara County’s vagueness claim, the Supreme Court has noted

19 that facial vagueness challenges are “disfavored for several reasons,” including because such 20 claims often “rest on speculation.” Wash. State Grange v. Wash. State Republican Party, 552

21 U.S. 442, 450 (2008). Further, the Court of Appeals has held that “[o]utside the First

22 Amendment context, a plaintiff alleging facial vagueness must show that the enactment is

23 impermissibly vague in all its applications.” Humanitarian Law Project v. U.S. Treasury Dep’t,

24 578 F.3d 1133, 1146 (9th Cir. 2009) (internal quotation marks omitted). The County’s opposition

25 does not mention either of these decisions, and the AG Memorandum forecloses any ability to

26 show that Section 9 of the Order is “impermissibly vague in all its applications.” See id.

27

The County asserts that the Order is still unconstitutionally vague because it does not

28 define the phrase “willfully refuse to comply with 8 U.S.C. 1373” (SC Dkt. No. 114 at 21). Any

Defs’ Reply: Motion for Reconsideration

11

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Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 16 of 17

1 uncertainty on that subject cannot support a facial vagueness challenge, however. Although the

2 margins of Section 1373’s coverage may be unsettled, it obviously covers “information regarding

3 the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a).

4

CONCLUSION

5

Accordingly, the Court should grant Defendants’ Motion for Reconsideration or, in the

6 Alternative, Clarification of the Court’s Order of April 25, 2017.

7 Dated: June 13, 2017

8

Respectfully submitted,

9

CHAD A. READLER

10

Acting Assistant Attorney General

11

BRIAN STRETCH

United States Attorney 12

13

JOHN R. TYLER Assistant Director

14 /s/ W. Scott Simpson
15

W. SCOTT SIMPSON (Va. Bar #27487)

16

Senior Trial Counsel

17 Attorneys, Department of Justice

18

Civil Division, Room 7210

Federal Programs Branch

19

Post Office Box 883

Washington, D.C. 20044

20

Telephone: (202) 514-3495

21

Facsimile: (202) 616-8470

E-mail: scott.simpson@usdoj.gov

22

COUNSEL FOR DEFENDANTS

23

DONALD J. TRUMP, President of the

24

United States; UNITED STATES OF AMERICA; JOHN F. KELLY, Secretary of

25

Homeland Security; JEFFERSON B.

SESSIONS, III, Attorney General of the

26

United States in City & County of San Francisco

v. Trump, et al., No. 3:17-cv-00485-WHO 27

28

Defs’ Reply: Motion for Reconsideration

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Case 3:17-cv-00574-WHO Document 117 Filed 06/13/17 Page 17 of 17

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defs’ Reply: Motion for Reconsideration No. 3:17-cv-00485/00574-WHO

DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; MICK MULVANEY, Director of the Office of Management and Budget in County of Santa Clara v. Trump, et al., No. 3:17-cv-00574-WHO
13

 
 Case 3:17-cv-00574-WHO Document 118 Filed 06/16/17 Page 1 of 7

Patrick Morrisey, W. Va. State Bar No. 11777 ATTORNEY GENERAL OF WEST VIRGINIA Elbert Lin, W. Va. State Bar No. 12171 Solicitor General Thomas M. Johnson, Jr., W. Va. State Bar No. 13003 Deputy Solicitor General Counsel of Record OFFICE OF THE ATTORNEY GENERAL State Capitol Building 1, Room E-26 Charleston, WV 25305 Telephone: (304) 558-2021 Fax: (304) 558-0140 Email: tjohnson@wvago.gov Counsel for Amicus Curiae THE STATE OF WEST VIRGINIA

Jeff Landry, La. State Bar No. 29942 ATTORNEY GENERAL OF LOUISIANA Elizabeth Baker Murrill, La. State Bar No. 20685 Solicitor General OFFICE OF THE ATTORNEY GENERAL 1885 N. 3rd Street Baton Rouge, LA 70802 Telephone: (225) 326-6766 Fax: (225) 326-6773 Email: murrille@ag.louisiana.gov Counsel for Amicus Curiae THE STATE OF LOUISIANA

UNITED STATES DISTRICT COURT

DISTRICT OF NORTHERN CALIFORNIA

City and County of San Francisco, Plaintiff,
v.
Donald J. Trump, et al. Defendants.
County of Santa Clara, Plaintiff,
v.
Donald J. Trump, et al., Defendants.

)

Case No. 3:17-cv-00485-WHO

)

Case No. 3:17-cv-00574-WHO

)

Case No. 3:17-cv-01535-WHO

)

)

MOTION FOR LEAVE TO FILE BRIEF

)

AMICI CURIAE FOR STATES OF

)

WEST VIRGINIA, LOUISIANA,

)

ALABAMA, ARKANSAS, MICHIGAN,

)

NEVADA, OHIO, OKLAHOMA,

)

SOUTH CAROLINA, AND TEXAS

)

IN SUPPORT OF THE UNITED

)

STATES’ MOTIONS TO DISMISS;

)

PROPOSED ORDER

Case 3:17-cv-00574-WHO Document 118 Filed 06/16/17 Page 2 of 7

City of Richmond,

)

Plaintiff.

)

v.

)

)

Donald J. Trump, et al.,

)

Defendants.

)

____________________________________)

Hon. William H. Orrick

MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE The States of West Virginia, Louisiana, and eight other States hereby request permission to file the attached amicus brief in support of the United States’ motions to dismiss the Plaintiffs’ complaints challenging the constitutionality of Section 9(a) of the President’s Executive Order 13,768, “Enhancing Public Safety in the Interior of the United States” (the “Order”), in related actions filed by Plaintiffs the City and County of San Francisco (Case No. 3:17-cv-00485WHO), County of Santa Clara (Case No. 3:17-cv-00574), and City of Richmond (Case No. 3:17cv-01535-WHO). The proposed amicus brief is attached to this motion as Exhibit 1. A proposed order is attached to this motion as Exhibit 2. Consistent with this Court’s Order of March 21, 2017, amici States respectfully request waiver of this Court’s rules governing admission pro hac vice and permission to file this brief in the above-captioned matters. The United States and City of San Francisco do not object to the filing of this motion. Amici were not able to obtain the position of the other parties prior to this filing. IDENTITY OF THE AMICI: Amici are the States of West Virginia, Louisiana, Alabama, Arkansas, Michigan, Nevada, Ohio, Oklahoma, South Carolina, and Texas. INTEREST OF THE AMICI: Amici States have two important interests in the outcome of this litigation. First, as the chief legal officers of their States, the undersigned Attorneys General have an important interest in complying with federal immigration law and instructing state and local law enforcement to do the same. Sanctuary jurisdictions—cities and localities that prohibit
2

Case 3:17-cv-00574-WHO Document 118 Filed 06/16/17 Page 3 of 7

or otherwise obstruct cooperation between federal and local officials on immigration enforcement—undermine the rule of law and deprive law enforcement of the tools necessary for effective civil and criminal enforcement. Second, the States have an important interest in ensuring that all federal immigration policy—including the directives in the Order—respect the principles of separation of powers and federalism inherent in our constitutional structure.
REASON WHY BRIEF OF AMICI STATES IS DESIRABLE: Amici States have a unique perspective as the chief law enforcement officers of their respective States. The attached brief explains how the Order can be interpreted and applied consistent with the principles of federalism and separation of powers in the U.S. Constitution. Amici States respectfully submit that the brief will aid this Court in resolution of the issues presented in the motions brought by the United States.

Dated: June 16, 2017

Respectfully submitted,

Jeff Landry ATTORNEY GENERAL OF LOUISIANA
Elizabeth Baker Murrill Solicitor General
By:/s/ Elizabeth Baker Murrill Elizabeth Baker Murrill Solicitor General
Counsel for Amicus Curiae THE STATE OF LOUISIANA

Patrick Morrisey ATTORNEY GENERAL OF WEST VIRGINIA Elbert Lin
Solicitor General Thomas M. Johnson, Jr. Deputy Solicitor General Counsel of Record
By: /s/ Thomas M. Johnson, Jr. Thomas M. Johnson, Jr. Deputy Solicitor General
Counsel for Amicus Curiae THE STATE OF WEST VIRGINIA

3

Case 3:17-cv-00574-WHO Document 118 Filed 06/16/17 Page 4 of 7

/s/ Andrew Brasher Steve Marshall
ATTORNEY GENERAL OF ALABAMA Andrew Brasher
Solicitor General Counsel of Record 501 Washington Avenue Montgomery, AL 36130 Tel: (334) 353-2609 abrasher@ago.state.al.us
Counsel for Amicus Curiae State of Alabama

/s/ Lee Rudofsky Leslie Rutledge
ATTORNEY GENERAL OF ARKANSAS Lee Rudofsky
Solicitor General Counsel of Record 323 Center Street, Suite 400 Little Rock, AR 72201 Tel: (501) 682-5310 jamie.ewing@arkansasag.gov
Counsel for Amicus Curiae State of Arkansas

/s/ Aaron D. Lindstrom Bill Schuette
ATTORNEY GENERAL OF MICHIGAN Aaron D. Lindstrom
Solicitor General Counsel of Record P.O. Box 30212 Lansing, MI 48909 Tel: (515) 373-1124 Fax: (517) 373-3042 lindstroma@michigan.gov
Counsel for Amicus Curiae State of Michigan

/s/ Lawrence VanDyke Adam Paul Laxalt
ATTORNEY GENERAL OF NEVADA Lawrence Van Dyke
Solicitor General Counsel of Record 100 North Carson Street Carson City, NV 89701 Tel: (775) 684-1150 LVanDyke@ag.nv.gov
Counsel for Amicus Curiae State of Nevada

Case 3:17-cv-00574-WHO Document 118 Filed 06/16/17 Page 5 of 7

/s/ Eric E. Murphy Michael DeWine
ATTORNEY GENERAL OF OHIO Eric E. Murphy
State Solicitor Counsel of Record 30 E. Broad Street, 17th Floor Columbus, OH 43215 Tel: (614) 466-8980 eric.murphy@ohioattorneygeneral.gov
Counsel for Amicus Curiae State of Ohio

/s/ Mithun Mansinghani Mike Hunter
ATTORNEY GENERAL OF OKLAHOMA Mithun Mansinghani
Solicitor General Counsel of Record Oklahoma Office of the Attorney General 313 N.E. 21st Street Oklahoma City, OK 73105 Tel: (405) 521-3921 Fax: (405) 522-0608 Mithun.mansinghani@oag.ok.gov docket@oag.ok.gov
Counsel for Amicus Curiae State of Oklahoma

/s/ James Emory Smith, Jr. Alan Wilson
ATTORNEY GENERAL OF SOUTH CAROLINA Robert D. Cook Solicitor General James Emory Smith, Jr. Deputy Solicitor General Counsel of Record P.O. Box 11549 Columbia, SC 29211 Tel: (803) 734-3680 Fax: (803) 734-3677 esmith@scag.gov

/s/ Scott A. Keller Ken Paxton
ATTORNEY GENERAL OF TEXAS Scott A. Keller
Solicitor General Counsel of Record P.O. Box 12548 Austin, TX 78711-2548 Tel: (512) 936-1700 scott.keller@texasattorneygeneral.gov
Counsel for Amicus Curiae State of Texas

Counsel for Amicus Curiae State of South Carolina

5

Case 3:17-cv-00574-WHO Document 118 Filed 06/16/17 Page 6 of 7
ATTORNEY ATTESTATION I, Thomas M. Johnson, Jr., am the ECF user whose ID and password are being used to file this Motion for Leave to File Brief Amici Curiae for the States of West Virginia, Louisiana, Alabama, Arkansas, Michigan, Nevada, Ohio, Oklahoma, South Carolina, and Texas. In compliance with N.D. Cal. Civil L.R. 5-1(i)(3), I hereby attest that I have the authority to file this document and its related exhibits and attachments on behalf of each of the signatories.
By: /s/ Thomas M. Johnson, Jr. Thomas M. Johnson

Case 3:17-cv-00574-WHO Document 118 Filed 06/16/17 Page 7 of 7
CERTIFICATE OF SERVICE I hereby certify that on June 16, 2017, I electronically filed the above document with the Clerk of Court using CM/ECF which will send electronic notification of such filing to all registered counsel.
By: /s/ Thomas M. Johnson, Jr. Thomas M. Johnson

 
 Case 3:17-cv-00574-WHO Document 118-1 Filed 06/16/17 Page 1 of 17

Patrick Morrisey, W. Va. State Bar No. 11777 ATTORNEY GENERAL OF WEST VIRGINIA Elbert Lin, W. Va. State Bar No. 12171 Solicitor General Thomas M. Johnson, Jr., W. Va. State Bar No. 13003 Deputy Solicitor General Counsel of Record OFFICE OF THE ATTORNEY GENERAL State Capitol Building 1, Room E-26 Charleston, WV 25305 Telephone: (304) 558-2021 Fax: (304) 558-0140 Email: tjohnson@wvago.gov Counsel for Amicus Curiae THE STATE OF WEST VIRGINIA

Jeff Landry, La. State Bar No. 29942 ATTORNEY GENERAL OF LOUISIANA Elizabeth Baker Murrill, La. State Bar No. 20685 Solicitor General OFFICE OF THE ATTORNEY GENERAL 1885 N. 3rd Street Baton Rouge, LA 70802 Telephone: (225) 326-6766 Fax: (225) 326-6773 Email: murrille@ag.louisiana.gov Counsel for Amicus Curiae THE STATE OF LOUISIANA

UNITED STATES DISTRICT COURT

DISTRICT OF NORTHERN CALIFORNIA

City and County of San Francisco, Plaintiff,
v.
Donald J. Trump, et al. Defendants.
County of Santa Clara, Plaintiff,
v.
Donald J. Trump, et al., Defendants.

)

Case No. 3:17-cv-00485-WHO

)

Case No. 3:17-cv-00574-WHO

)

Case No. 3:17-cv-01535-WHO

)

)

PROPOSED BRIEF OF AMICI CURIAE

)

STATES OF WEST VIRGINIA,

)

LOUISIANA, ALABAMA, ARKANSAS,

)

MICHIGAN, NEVADA, OHIO,

)

OKLAHOMA, SOUTH CAROLINA,

)

AND TEXAS

)

)

)

Hon. William H. Orrick

Case 3:17-cv-00574-WHO Document 118-1 Filed 06/16/17 Page 2 of 17

City of Richmond,

)

Plaintiff.

)

v.

)

)

Donald J. Trump, et al.,

)

Defendants.

)

____________________________________)

Case 3:17-cv-00574-WHO Document 118-1 Filed 06/16/17 Page 3 of 17
TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................. i TABLE OF AUTHORITIES .......................................................................................................... ii INTEREST OF AMICI CURIAE ................................................................................................... 1 INTRODUCTION .......................................................................................................................... 2 ARGUMENT.................................................................................................................................. 4
I. The Text Of The Order Ensures That It May Only Be Applied Consistent With All Applicable Constitutional Limitations. ............................................................................... 4
II. The Order Can Be Applied Consistent With Law Where Congress Has Validly Authorized The Attorney General Or Secretary To Place Conditions On The States’ Receipt Of Federal Funds Under The Spending Power...................................................... 6
III. The Order and the Act Do Not Violate The Tenth Amendment.......................................... 8 CONCLUSION............................................................................................................................. 12

Case 3:17-cv-00574-WHO Document 118-1 Filed 06/16/17 Page 4 of 17
TABLE OF AUTHORITIES
Cases
Arizona v. United States, 132 S. Ct. 2492 (2012) ........................................................................................................ 10, 11
Chamber of Commerce of the United States v. Whiting, 563 U.S. 582 (2011).................................................................................................................. 11
City of New York v. United States, 179 F.3d 29 (2d Cir. 1999)........................................................................................................ 11
Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ................................................................................................................ 5
Foti v. City of Menlo Park, 146 F.3d 629 (9th Cir. 1998) .................................................................................................. 6, 7
Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264 (1981).................................................................................................................. 10
Hotel & Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959 (9th Cir. 2003) ...................................................................................................... 6
New York v. United States, 505 U.S. 144 (1992).................................................................................................................... 9
Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)........................................................................................................................ 8
Printz v. United States, 521 U.S. 898 (1997).............................................................................................................. 9, 10
Reno v. Condon, 528 U.S. 141 (2000)............................................................................................................ 10, 12
Sabri v. United States, 541 U.S. 600 (2004).................................................................................................................... 7
South Carolina v. Baker, 485 U.S. 505 (1988).................................................................................................................. 10
South Dakota v. Dole, 483 U.S. 203 (1987)............................................................................................................ 3, 7, 8
Toll v. Moreno, 458 U.S. 1 (1982)...................................................................................................................... 11
United States v. Butler, 297 U.S. 1 (1936)........................................................................................................................ 7
United States v. Richardson, 418 U.S. 166 (1974).................................................................................................................... 5
United States v. Salerno, 481 U.S. 739 (1987)................................................................................................................ 6, 7
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008).................................................................................................................... 6
ii

Case 3:17-cv-00574-WHO Document 118-1 Filed 06/16/17 Page 5 of 17
Statutes and Constitutional Provisions 8 U.S.C. § 1373................................................................................................................. 2, 3, 8, 11 U.S. Const. Art. I, § 8, cl. 1......................................................................................................... 6, 7 U.S. Const. amend. X...................................................................................................................... 9 U.S. Const. Art. VI, cl. 2............................................................................................................... 10 Regulations 2 C.F.R. § 200.341 ...................................................................................................................... 2, 6 82 Fed. Reg. 8,799 (Jan. 25, 2017) ..................................................................................... 1, 2, 4, 6 Other Authorities Exec. Order No. 13,768 .................................................................................................................. 2 The Attorney General, Memorandum for all Department Grant-Making Components,
Implementation of Executive Order 13768 ................................................................................. 5 What Spending Clause? (Or the President’s Paramour): An Examination of the Views of
Hamilton, Madison, and Story on Article I, Section 8, Clause I of the United States Constitution, 33 J. Marshall L. Rev. 81 (Fall 1999) .................................................................... 9
iii

Case 3:17-cv-00574-WHO Document 118-1 Filed 06/16/17 Page 6 of 17
INTEREST OF AMICI CURIAE The States of West Virginia, Louisiana, and eight other States1 respectfully submit this brief of amici curiae in support of the United States’ motions to dismiss the Plaintiffs’ complaints challenging the constitutionality of Section 9(a) of the President’s Executive Order 13,768, “Enhancing Public Safety in the Interior of the United States” (the “Order”). Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 25, 2017). Amici States have two important interests in the outcome of this litigation. First, as the chief legal officers of their States, the undersigned Attorneys General have an important interest in complying with federal immigration law and instructing state and local law enforcement to do the same. Sanctuary jurisdictions—cities and localities that prohibit or otherwise obstruct cooperation between federal and local officials on immigration enforcement—undermine the rule of law and deprive law enforcement of the tools necessary for effective civil and criminal enforcement. Indeed, sanctuary jurisdictions can cause harm to neighboring States—even States that have no sanctuary jurisdictions—by making it easier for people who are not lawfully in this country, and who have committed civil or criminal offenses, to evade capture by law enforcement and to travel out-of-state. For example, the City of Baltimore, which has adopted sanctuary city policies, is a significant source of illegal drugs for the Eastern Panhandle of West Virginia. Sanctuary policies deprive law enforcement in Baltimore and similar jurisdictions of important tools that could assist with preventing out-of-state drug trafficking. Second, the States have an important interest in ensuring that all federal immigration policy—including the directives in the Order—respect the principles of separation of powers and federalism inherent in our constitutional
1 Amici are the States of West Virginia, Louisiana, Alabama, Arkansas, Michigan, Nevada, Ohio, Oklahoma, South Carolina, and Texas.
1

Case 3:17-cv-00574-WHO Document 118-1 Filed 06/16/17 Page 7 of 17
structure. As further set forth below, amici States respectfully submit that Plaintiffs’ facial challenge
to the Order must fail because there are ways in which Congress and the President can enforce the Order while respecting the role of the States in our constitutional structure.
INTRODUCTION In this case, Plaintiffs have mounted a pre-enforcement, facial challenge to an Executive Order concerning immigration enforcement—an area where Congress and the President have considerable power. The Order directs the Attorney General and Secretary of the Department of Homeland Security (“Secretary”), “in their discretion and to the extent consistent with law” (emphasis added), to “ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. § 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants. . . .” Exec. Order No. 13,768, 82 Fed. Reg. at 8,801. The statute cited in the Order, 8 U.S.C. § 1373 (the “Act”), prevents States from prohibiting local law enforcement from cooperating with federal officials. Plaintiffs bear the heavy burden of showing that the Order has caused them present injury and is unconstitutional in all its applications. Plaintiffs cannot meet this burden. As an initial matter, the United States has not yet applied this Order to deny Plaintiffs any specific grant award, and the United States could not terminate or suspend an award without providing Plaintiffs with notice, an opportunity to object, and the right to appeal, as required by federal regulations. See, e.g., 2 C.F.R. § 200.341. Therefore, Plaintiffs cannot show that they will be harmed by some future, speculative application of the Order. Nor can Plaintiffs show that the Order, which applies “only to the extent consistent with law,” would be unconstitutional in all its applications. To the contrary, as both Plaintiffs and the United States acknowledge, the federal government may validly place conditions on the States’
2

Case 3:17-cv-00574-WHO Document 118-1 Filed 06/16/17 Page 8 of 17
receipt of federal grant money as long as it complies with the conditions set forth by the United States Supreme Court in South Dakota v. Dole, 483 U.S. 203 (1987). See, e.g., United States Mem. Supp. Mot. to Dismiss 16–20, ECF No. 111; 2d Am. Compl. ¶¶ 122–32, ECF No. 105.2 That is, Congress must (1) legislate to promote the general welfare, (2) ensure that the States have clear notice of the relevant grant conditions, (3) ensure that the conditions relate to the purposes for which the grant issues, and (4) ensure that the inducement to accept the grant is non-coercive. While amici States take no position on whether any existing grant program satisfies these criteria, the Dole factors provide a well-established path for the federal government to attach conditions to grants to the States that would be “consistent with law.” Plaintiffs therefore cannot show that the Order would be unconstitutional in all its applications, and if the federal government were to exceed its power in denying States particular sources of funding, Plaintiffs would have an opportunity to mount an as-applied challenge at that time.
Plaintiffs also argue that the Order violates the Tenth Amendment by instructing the Attorney General to “take appropriate action” against States that violate the Act—8 U.S.C. § 1373. See, e.g., 2d Am. Compl. ¶¶ 149–53, ECF No. 105. This challenge is also premature, as the United States has taken no action against Plaintiffs, and if it did, Plaintiffs would have the opportunity to bring an as-applied challenge. In any event, neither the Order nor the Act present Tenth Amendment problems.
The Tenth Amendment prohibits the federal government from conscripting States into administering federal programs. But to the extent that the States voluntarily accept federal grant money in exchange for compliance with federal immigration law, no such conscription has occurred. In addition, the Act itself does not require state law enforcement officers to do anything.
2 All ECF citations are to the docket for case number 3:17-cv-00485-WHO. 3

Case 3:17-cv-00574-WHO Document 118-1 Filed 06/16/17 Page 9 of 17
Rather, it merely displaces state laws that directly conflict by prohibiting voluntary communications between such officers and federal officials, while leaving ample room for the States to take other actions to support and promote federal immigration policies.
For all these reasons, the United States’ motions to dismiss should be granted. ARGUMENT
I. The Text Of The Order Ensures That It May Only Be Applied Consistent With All Applicable Constitutional Limitations
As an initial matter, the text of the Order itself acknowledges important caveats that legally cabin the President’s authority and ensure executive officers can only act in a manner consistent with the constitutional requirements of separation of powers and federalism.
First, Section 9(a) of the Order only refers to the Attorney General and Secretary, and therefore, can only apply to grant programs administered by those two cabinet officers. Specifically, the Order directs that “the Attorney General and the Secretary . . . shall ensure that jurisdictions that willfully refuse to comply with [the Act] are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” 82 Fed. Reg. at 8,801 (Emphases added.) Therefore, the Order could not be interpreted, for example, to deny States federal dollars disbursed under unrelated federal programs, administered by other federal departments or agencies, such as funds for education, highways, or Medicaid.
The Attorney General’s Memorandum interpreting the scope of the Order confirms this narrow scope. In that document, the Attorney General states that the Order “will be applied solely to federal grants administered by the Department of Justice or the Department of Homeland
4

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Security, and not to other sources of federal funding.”3 The Attorney General’s plausible interpretation should carry significant weight in the context of a facial challenge, where Plaintiffs cannot show actual injury from some more farfetched application. See Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013) (hypothetical future harm that was not certainly impending insufficient to confer standing); United States v. Richardson, 418 U.S. 166, 172 (1974). Should the United States ever apply the Order in some other context, Plaintiffs could seek injunctive relief when they challenge the Order as applied.
Second, the Order repeatedly makes clear that the Attorney General and Secretary can only deny eligibility to grant recipients as permitted by law. Section 9 of the Order first sets forth the “policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with” the Act. (Emphasis added.) Section 9(a) further states that the Attorney General and Secretary can only make eligibility determinations “to the extent consistent with law.” Similarly, in determining what qualifies as a sanctuary jurisdiction, the cabinet officers must act only “to the extent consistent with law.” Further, because the Order only applies “to the extent consistent with law,” the Attorney General noted in his Memorandum that it “does not call for the imposition of grant conditions that would violate any applicable constitutional or statutory limitation.”4 Nor does the Order “purport to expand the existing statutory or constitutional authority of the Attorney General and the Secretary . . . in any respect.” Id. at 2. Finally, the Memorandum provides that the Order will not apply except in circumstances
3 The Attorney General, Memorandum for all Department Grant-Making Components, Implementation of Executive Order 13768, Enhancing Public Safety in the Interior of the United States 1 (May 22, 2017). 4 See supra n.3 at 1–2.
5

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where States have “notice of their obligation[s]” under the law. Id. Therefore, both the Order’s text and the Memorandum expressly limit the Order’s reach to
constitutional applications. And, as noted above, any party adversely affected by a particular application of the Order has an opportunity for notice, hearing, and a right to appeal under federal law. See, e.g., 2 C.F.R. § 200.341. As explained below, Congress and the President have tools available to apply the Order consistently with the U.S. Constitution.
II. The Order Can Be Applied Consistent With Law Where Congress Has Validly Authorized The Attorney General Or Secretary To Place Conditions On The States’ Receipt Of Federal Funds Under The Spending Power
Plaintiffs claim that the Order is unconstitutional because the President has purported to place a new condition on the States’ receipt of federal funds—compliance with the Act—that the federal government has not validly authorized. See, e.g., 2d Am. Compl. ¶ 152–53, ECF No. 105. But as Plaintiffs themselves acknowledge (see id.), Congress may place conditions on the States’ receipt of federal funds, “consistent with law,” pursuant to the “spending power” located in Article I, Section 8, clause 1 of the U.S. Constitution.
In order to mount a successful facial challenge to the Act, Plaintiffs must show that “the law is unconstitutional in all of its applications.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008). “[O]utside the context of the First Amendment, ‘the challenger must establish that no set of circumstances exists under which the [statute] would be valid.’” Hotel & Motel Ass’n of Oakland v. City of Oakland, 344 F.3d 959, 971 (9th Cir. 2003) (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)); see also Foti v. City of Menlo Park, 146 F.3d 629, 635 (9th Cir. 1998) (statute is facially unconstitutional if it would be invalid “in every conceivable application”). Here, Plaintiffs cannot meet the high hurdle of showing that the Order, which must be administered “consistent with law,” would be unconstitutional in “every conceivable
6

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application” (Foti, 146 F.3d at 635) or in every “set of circumstances” (Salerno, 481 U.S. at 745). To the contrary, there is a well-established path for the federal government to impose valid grant conditions on the States.
Supreme Court jurisprudence has interpreted the Taxing Clause of Article I, Section 8 of the Constitution, sometimes referred to as the Spending Clause, as the source of an implicit power for Congress to appropriate funds. See, e.g., Dole, 483 U.S. at 206; Sabri v. United States, 541 U.S. 600, 605 (2004). The text of this provision, however, refers only to the power to tax, not the power to spend. See U.S. Const. Art. I, § 8, cl. 1 (“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States. . . .”). Therefore, since the Founding, there has been debate over whether, and to what extent, this provision could serve as a basis for Congress to appropriate money to accomplish objects that it could not pursue under other enumerated powers.5
Under the modern view adopted by the Supreme Court, “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.” United States v. Butler, 297 U.S. 1, 66 (1936). But because affording this implied power to Congress raises significant federalism concerns, the Supreme Court has placed important limitations on this power—sometimes referred to as the Dole factors. For example, Congress must in fact legislate in pursuit of the “general welfare,” the grant conditions must be related to the federal interest in the particular national projects, and the financial inducement offered by Congress cannot be coercive. See Dole, 483 U.S. at 207–11. And, because “legislation enacted pursuant to the spending power is much in the nature of a contract, . . . [t]he
5 See Jeffrey T. Renz, What Spending Clause? (Or the President’s Paramour): An Examination of the Views of Hamilton, Madison, and Story on Article I, Section 8, Clause I of the United States Constitution, 33 J. Marshall L. Rev. 81, 103–06 (Fall 1999).
7

Case 3:17-cv-00574-WHO Document 118-1 Filed 06/16/17 Page 13 of 17
legitimacy of Congress’ power to legislate under the spending power . . . rests on whether the State knowingly accepts the terms of the ‘contract.’” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 (1981); see also Dole, 483 U.S. at 211. “Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.” Pennhurst, 451 U.S. at 17. Whenever Congress acts pursuant to its implied spending power, it must adhere to these criteria.
While amici take no position on whether any existing grant program meets these criteria, the Dole framework provides a constitutional mechanism for Congress to validly authorize the Attorney General or Secretary to administer a grant program that conditions receipt of federal dollars on compliance with certain provisions of federal immigration law. Because Congress and the President are thus able to act in a manner that would permit the Order to be applied “consistent with law,” Plaintiffs’ pre-enforcement, facial challenge to the constitutionality of the Order must fail.
III. The Order and the Act Do Not Violate The Tenth Amendment Plaintiffs also argue that the Order violates the Tenth Amendment by instructing the Attorney General to “take appropriate action” against States that violate 8 U.S.C. § 1373. See, e.g., 2d Am. Compl. ¶¶ 149–52, ECF No. 105. This too is incorrect. While the Tenth Amendment prohibits the federal government from compelling state and local officials to enact or enforce federal programs, the Order at most suggests that States will be offered the opportunity to voluntarily accept certain federal grant money in exchange for compliance with the Act. The Order was issued in the context of state and local officials adopting policies that prohibit cooperation with immigration officials, in violation of the Act, which neither the current nor the prior Administrations deemed permissible. Providing States with voluntary inducements to comply
8

Case 3:17-cv-00574-WHO Document 118-1 Filed 06/16/17 Page 14 of 17
with federal law does not raise problems of unlawful commandeering. Nor does the Act itself violate the Tenth Amendment. Instead, the Act merely displaces or
preempts state laws that prohibit localities or local law enforcement officials from voluntarily communicating with federal officials. The Act does this to further the goals of a comprehensive federal immigration scheme—the Immigration and Nationality Act—that falls within Congress’s power to create a uniform rule of naturalization. The Act is therefore consistent with both the Supremacy Clause and the Tenth Amendment.
A. The Tenth Amendment provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. Under that amendment, “Congress cannot compel the States to enact or enforce a federal regulatory program.” Printz v. United States, 521 U.S. 898, 935 (1997). In addition, “Congress cannot circumvent that prohibition by conscripting the State[s’] officers directly.” Id.
These principles protect the Constitution’s system of dual sovereignty, in which the federal government and the States each remain politically accountable to the people for their own actions. For example, in New York v. United States, Congress directed the States either to take possession of nuclear waste or to regulate the waste according to Congress’s specific instructions. New York v. United States, 505 U.S. 144, 153–54 (1992). The Court invalidated this regime because by forcing the States to regulate according to Congress’s demands, lines of political accountability become unclear: “[I]t may be state officials who will bear the brunt of public disapproval, while the federal officials who devised the regulatory program may remain insulated from the electoral ramifications of their decision.” Id. at 169.
Similarly, the statute in Printz required state law enforcement to conduct background
9

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checks in connection with the transfer of handguns. 521 U.S. at 903. By conscripting state law enforcement officials into federal service, the law invalidated in Printz enabled members of Congress to “take credit for ‘solving’ problems without having to ask their constituents to pay for the solutions with higher federal taxes,” while putting States “in the position of taking the blame for [the program’s] burdensomeness and for its defects.” Id. at 930. This blurring of political lines is precisely what the Tenth Amendment was designed to avoid.
B. If Congress acts within these constitutional boundaries, it may enact legislation pursuant to its enumerated grants of power that become “the Supreme Law of the Land” and displace inconsistent state law. U.S. Const. Art. VI, Cl. 2. To displace state law, Congress must make its intent to preempt clear, which it can do most directly by “enact[ing] a statute containing an express preemption provision.” Arizona v. United States, 132 S. Ct. 2492, 2500–01 (2012).
“Although such congressional enactments obviously curtail or prohibit the States’ prerogatives to make legislative choices respecting subjects the States may consider important, the Supremacy Clause permits no other result.” Hodel v. Virginia Surface Mining & Reclamation Ass’n, 452 U.S. 264, 290 (1981). Thus, the Supreme Court has rejected Tenth Amendment challenges where Congress has merely chosen to “regulate[] state activities” by, for instance, prohibiting States from issuing unregistered bonds in furtherance of a federal regime discouraging tax evasion. South Carolina v. Baker, 485 U.S. 505, 514 (1988). Similarly, the Court upheld a law prohibiting States from selling information obtained from motor vehicle records in furtherance of a federal regulatory scheme intended to protect the privacy of drivers. Reno v. Condon, 528 U.S. 141, 151 (2000).
C. Applying these principles here, the Act plainly does not constitute unlawful commandeering under the Tenth Amendment.
10

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The Act provides, in relevant part, that a State “may not prohibit, or in any way restrict,
any government entity or official from sending to, or receiving from, the Immigration and
Naturalization Service information regarding the citizenship or immigration status, lawful or
unlawful, of any individual.” 8 U.S.C. § 1373. This is a valid exercise of Congress’s power to
regulate immigration. See, e.g., City of New York v. United States, 179 F.3d 29, 34–35 (2d Cir.
1999) (rejecting a claim that 8 U.S.C. § 1373 constituted unconstitutional commandeering). The
Supreme Court has recognized that “[t]he Government of the United States has broad, undoubted
power over the subject of immigration and the status of aliens.” Arizona, 132 S. Ct. at 2498. This
power rests on Congress’s power to “establish an uniform Rule of Naturalization,” and its
“inherent power as sovereign to control and conduct relations with foreign nations,” Id. (quoting
Toll v. Moreno, 458 U.S. 1, 10 (1982)). Further, the means selected by Congress—displacement
of state law—furthers the purposes of the comprehensive federal regime by facilitating
communication between state and local officials on matters relating to citizenship and immigration status.6 See, e.g., id. at 2508 (“Consultation between federal and state officials is an important
feature of the immigration system.”) (discussing 8 U.S.C. § 1373); City of New York, 179 F.3d at
35 (“[S]tates do not retain under the Tenth Amendment an untrammeled right to forbid all
6 Of course, States are not prohibited from creating their own laws to implement section 1373 that are consistent with the aims of section 1373. The language in the federal immigration-information sharing provisions reflect “a congressional intention to displace inconsistent law.” Relationship Between Illegal Immigration Reform and Immigrant Responsibility Act of 1996 and Statutory Requirement for Confidentiality of Census Information, 23 Op. O.L.C. Supp., at 7 (May 18, 1999), http://www.justice.gov/sites/default/files/olc/opinions/attachments/2014/11/10/1999-05-18census-confidentiality.pdf (emphasis added). And Congress has not even attempted to enter the field of appropriate enforcement mechanisms for section 1373, meaning state law penalties could not possibly be preempted. Thus, States are free to create their own enforcement mechanisms to promote compliance with section 1373. See, e.g., Chamber of Commerce of the United States v. Whiting, 563 U.S. 582, 606–07 (2011) (holding that a state could tailor specific sanctions for the violation of federal immigration laws in the absence of congressional prohibition on those sanctions).
11

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voluntary cooperation by state or local officials with particular federal programs.”). Unlike in Printz, for example, where local law enforcement were required to conduct
background checks, the Act “does not require the States in their sovereign capacity to regulate their own citizens,” and “does not require state officials to assist in the enforcement of federal statutes regulating private individuals.” Reno, 528 U.S. at 151. Rather, the Act merely prevents States from prohibiting local law enforcement from cooperating voluntarily with the federal government. Under the Supremacy Clause, the Act displaces any state policy choice that would be inconsistent with this comprehensive federal regime within Congress’s enumerated powers— namely, the choice to ensure the enforcement of this Nation’s immigration laws.
CONCLUSION For the foregoing reasons, the United States’ motions to dismiss should be granted.

Dated: June 16, 2017

Respectfully submitted,

Jeff Landry ATTORNEY GENERAL OF LOUISIANA
Elizabeth Baker Murrill Solicitor General
By: /s/ Elizabeth Baker Murrill Elizabeth Baker Murrill Solicitor General
Counsel for Amicus Curiae THE STATE OF LOUISIANA

Patrick Morrisey ATTORNEY GENERAL OF WEST VIRGINIA Elbert Lin
Solicitor General Thomas M. Johnson, Jr.
Deputy Solicitor General Counsel of Record
By: /s/ Thomas M. Johnson, Jr. Thomas M. Johnson, Jr. Deputy Solicitor General
Counsel for Amicus Curiae THE STATE OF WEST VIRGINIA

12

 
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1 OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA
2 JAMES R. WILLIAMS - # 271253 County Counsel
3 james.williams@cco.sccgov.org GRETA S. HANSEN - # 251471
4 L. JAVIER SERRANO - # 252266 DANIELLE L. GOLDSTEIN - # 257486
5 KAVITA NARAYAN - # 264191 JULIE WILENSKY - # 271765
6 JULIA B. SPIEGEL - # 292469 ADRIANA L. BENEDICT - # 306936
7 70 West Hedding Street East Wing, Ninth Floor
8 San Jose, CA 95110-1770 Telephone: 408 299-5900
9 Facsimile: 408 292-7240

KEKER, VAN NEST & PETERS LLP JOHN W. KEKER - # 49092 jkeker@keker.com ROBERT A. VAN NEST - # 84065 rvannest@keker.com DANIEL PURCELL - # 191424 dpurcell@keker.com CODY S. HARRIS - # 255302 charris@keker.com NICHOLAS S. GOLDBERG - # 273614 ngoldberg@keker.com EDWARD A. BAYLEY - # 267532 ebayley@keker.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188

10 ATTORNEYS FOR PLAINTIFF COUNTY OF SANTA CLARA

11

UNITED STATES DISTRICT COURT

12

NORTHERN DISTRICT OF CALIFORNIA

13

SAN FRANCISCO DIVISION

14

COUNTY OF SANTA CLARA, 15

Case No. 17-cv-00574-WHO

Plaintiff, 16

PLAINTIFF COUNTY OF SANTA CLARA’S OPPOSITION TO

v. 17

DEFENDANTS’ MOTION TO DISMISS

DONALD J. TRUMP, President of the 18 United States of America, JOHN F. KELLY,

Date: Time:

July 12, 2017 2:00 p.m.

in his official capacity as Secretary of the 19 United States Department of Homeland

Dept.: Judge:

Courtroom 2, 17th Floor Hon. William Orrick

Security, JEFFERSON B. SESSIONS, in his 20 official capacity as Attorney General of the

Date Filed: February 3, 2017

United States, JOHN MICHAEL “MICK” 21 MULVANEY, in his official capacity as

Trial Date: April 23, 2018

Director of the Office of Management and 22 Budget, and DOES 1-50,

23

Defendants.

24

25

26

27

28

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Case 3:17-cv-00574-WHO Document 119 Filed 06/21/17 Page 2 of 32

1 2 3 I. 4 II. 5 6 7 8 9 10 III. 11 IV. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 V. 26 27 28
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TABLE OF CONTENTS Page
INTRODUCTION ...............................................................................................................1 FACTUAL BACKGROUND ..............................................................................................2 A. Executive Order 13768 ............................................................................................2 B. Defendants’ Statements Regarding Executive Order 13768 ...................................3 C. The Court’s Order Granting the County’s Request for a Nationwide
Preliminary Injunction of Section 9(a) of Executive Order 13768..........................4 D. The Attorney General’s Memorandum and Defendants’ Motion for
Reconsideration........................................................................................................6 LEGAL STANDARD..........................................................................................................6 ARGUMENT .......................................................................................................................7 A. The AG Memorandum offers no basis for dismissal. ..............................................7
1. Unlike the Executive Order, the AG Memorandum is not binding law. ...............................................................................................................8
2. Even if credited, the AG Memorandum fails to cure the Executive Order’s constitutional defects. ...................................................................11
B. The Court has subject matter jurisdiction over the County’s claims. ....................12 C. The Executive Order has the force of law and directly affects the County. ..........15 D. The Executive Order is facially unconstitutional...................................................17 E. The County’s causes of action satisfy Rule 12(b)(6).............................................20
1. The County has adequately pled its separation of powers claim. ..............20 2. The County has adequately pled its Tenth Amendment claim. .................22 3. The County has adequately pled its Fifth Amendment vagueness
claim. ..........................................................................................................22 4. The County has adequately pled its Fifth Amendment procedural
due process claim. ......................................................................................24 CONCLUSION ..................................................................................................................25
i COUNTY OF SANTA CLARA’S OPP. TO DEFS.’ MOTION TO DISMISS
Case No. 17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 119 Filed 06/21/17 Page 3 of 32

1

TABLE OF AUTHORITIES

2

Page(s)

3 Federal Cases

4 Alfred L. Snapp & Son, Inc. v. Puerto Rico

458 U.S. 592 (1982)................................................................................................................. 16

5

Ashcroft v. Iqbal

6

556 U.S. 662 (2009)................................................................................................................... 7

7 Bassidji v. Goe

413 F.3d 928 (9th Cir. 2005) ..................................................................................................... 9

8

California Pro-Life Council, Inc. v. Getman

9

328 F.3d 1088 (9th Cir. 2003) ................................................................................................. 14

10 Chen v. Schiltgen

1995 WL 317023 (N.D. Cal. May 19, 1995), aff’d sub nom.

11

Chen v. I.N.S., 95 F.3d 801 (9th Cir. 1996) ............................................................................. 16

12 Christopher v. SmithKline Beecham Corp.

567 U.S. 142 (2012)................................................................................................................... 8

13

City of Los Angeles v. Patel

14

135 S. Ct. 2443 (2015) ....................................................................................................... 18, 19

15 Comite de Jornaleros de Redondo Beach v. City of Redondo Beach

657 F.3d 936 (9th Cir. 2011) ................................................................................................... 18

16

County of Santa Clara v. Trump

17

--- F. Supp. 3d ---, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017).................................... passim

18 Doe v. City of Albuquerque

667 F.3d 1111 (10th Cir. 2012) ......................................................................................... 18, 23

19

Doe v. Harris

20

772 F.3d 563 (9th Cir. 2014) ................................................................................................... 18

21 Doe v. United States

58 F.3d 494 (9th Cir. 1995) ..................................................................................................... 20

22

Doran v. Houle

23

721 F.2d 1182 (9th Cir. 1983) ................................................................................................. 25

24 Foti v. City of Menlo Park

146 F.3d 629 (9th Cir. 1998) ..................................................................................................... 9

25

Hawaii v. Trump

26

--- F.3d ---, 2017 WL 2529640 (9th Cir. June 12, 2017) ........................................... 3, 8, 14, 15

27 Humanitarian Law Project v. U.S. Treasury Department 578 F.3d 1133 (9th Cir. 2009) ................................................................................................. 23
28

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1173331

Int’l Refugee Assistance Project v. Trump 857 F.3d 554 (4th Cir. 2017) ............................................................................................... 3, 14
Jackson v. Carey 353 F.3d 750 (9th Cir. 2003) ............................................................................................... 7, 17
Jackson v. City & Cty. of San Francisco 746 F.3d 953 (9th Cir. 2014) ............................................................................................. 17, 18
Lam Research Corp. v. Schunk Semiconductor 65 F. Supp. 3d 863 (N.D. Cal. 2014) ....................................................................................... 14
Legal Aid Soc’y. of Alameda Cty. v. Brennan 608 F.2d 1319 (9th Cir. 1979) ........................................................................................... 15, 16
Lopez-Valenzuela v. Arpaio 770 F.3d 772 (9th Cir. 2014) ............................................................................................. 18, 19
Lujan v. Defs. of Wildlife 504 U.S. 555 (1992)......................................................................................................... 6, 7, 13
Marbury v. Madison 5 U.S. 137 (1803)....................................................................................................................... 8
Massachusetts v. EPA 549 U.S. 497 (2007)................................................................................................................... 6
Maya v. Centex Corp. 658 F.3d 1060 (9th Cir. 2011) ................................................................................................... 6
Minnesota v. Mille Lacs Band of Chippewa Indians 526 U.S. 172 (1999)................................................................................................................... 8
Miranda–Olivares v. Clackamas Cty. 2014 WL 1414305 (D. Or. Apr. 11, 2014) .............................................................................. 22
Morales v. Chadbourne 793 F.3d 208 (1st Cir. 2015) .................................................................................................... 22
National Fed. of Indep. Bus. v. Sebelius 132 S. Ct. 2566 (2012) ............................................................................................................. 11
Retail Prop. Trust v. United Bd. of Carpenters & Joiners of Am. 768 F.3d 938 (9th Cir. 2014) ..................................................................................................... 7
Safe Air For Everyone v. EPA 488 F.3d 1088 (9th Cir. 2007) ................................................................................................... 8
Santoyo v. United States No. 5:16-CV-855-OLG (W.D. Tex. June 5, 2017) .................................................................. 22
Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc 806 F.2d 1393 (9th Cir. 1986) ................................................................................................. 20
Semiconductor Energy Lab. Co. v. Chi Mei Optoelectronics Corp. 2006 WL 2130866 (N.D. Cal. July 27, 2006).......................................................................... 14
iii COUNTY OF SANTA CLARA’S OPP. TO DEFS.’ MOTION TO DISMISS
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Case 3:17-cv-00574-WHO Document 119 Filed 06/21/17 Page 5 of 32

1 Shell Offshore Inc. v. Greenpeace, Inc.

864 F. Supp. 2d 839 (D. Alaska 2012), aff’d, 709 F.3d 1281 (9th Cir. 2013)......................... 13

2

Skilling v. United States

3

561 U.S. 358 (2010)................................................................................................................... 8

4 South Dakota v. Dole

483 U.S. 203 (1987)..................................................................................................... 11, 21, 22

5

Susan B. Anthony List v. Driehaus

6

134 S. Ct. 2334 (2014) ............................................................................................................. 14

7 Swierkiewicz v. Sorema N.A.

534 U.S. 506 (2002)................................................................................................................... 7

8

United States v. Arizona

9

2010 WL 11405085 (D. Ariz. Dec. 10, 2010) ......................................................................... 20

10 United States v. Pickard

100 F. Supp. 3d 981 (E.D. Cal. 2015)................................................................................ 16, 17

11

United States v. Stevens

12

559 U.S. 460 (2010)................................................................................................... 4, 9, 18, 23

13 United States v. Williams

553 U.S. 285 (2008)................................................................................................................. 24

14

Valle del Sol Inc. v. Whiting

15

732 F.3d 1006 (9th Cir. 2013) ................................................................................................. 23

16 Vietnam Veterans of Am. v. CIA

811 F.3d 1068 (9th Cir. 2016) ................................................................................................... 8

17

Virginia v. Am. Booksellers Ass’n, Inc.

18

484 U.S. 383 (1988)............................................................................................................. 5, 13

19 Washington State Grange v. Wash. State Republican Party

552 U.S. 442 (2008)........................................................................................................... 18, 23

20

Youngstown Sheet & Tube Co. v. Sawyer

21

343 U.S. 579 (1952)..................................................................................................... 11, 20, 21

22 Federal Statutes

23 2 U.S.C. § 683................................................................................................................................ 20

24 8 U.S.C. § 1103(a)(1)..................................................................................................................... 10

25 8 U.S.C. § 1373....................................................................................................................... passim

26 28 U.S.C. § 512.............................................................................................................................. 10

27 Federal Rules

28 Fed. R. Civ. Proc. § 12(b)(1) ........................................................................................................... 6

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1 Fed. R. Civ. Proc. § 12(b)(6) ....................................................................................... 1, 6, 7, 17, 20

2 Fed. R. Civ. Proc. § 15(a) .............................................................................................................. 20

3 State Regulations

4 Exec. Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017).......................................................... passim

5 Constitutional Provisions

6 U.S. Const. amend. IV ............................................................................................................. 21, 22

7 U.S. Const. amend. V........................................................................................................... 4, 22, 24

8 U.S. Const. amend. X............................................................................................... 4, 11, 12, 17, 22

9 Other Authorities

10 Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 Admin. L. Rev. 1303 (2000).................................................................. 10
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12

13

14

15

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17

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19

20

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1 I. INTRODUCTION

2

On April 25, 2017, this Court issued a preliminary injunction enjoining enforcement of

3 Section 9(a) of Executive Order 13768 nationwide. See County of Santa Clara v. Trump, --- F.

4 Supp. 3d ---, 2017 WL 1459081, at *29 (N.D. Cal. Apr. 25, 2017). In opposing the County of

5 Santa Clara’s motion for preliminary injunctive relief, defendants made the same arguments they

6 now repeat regarding the Executive Order’s purportedly limited scope and force. See Tr. of Oral

7 Arg. (Apr. 14, 2017) at 21:1–4, 24:4–6, 25:4–6, 35:2–9, 36:25–37:6. The Court carefully

8 considered and correctly rejected those arguments, because they relied on a legally implausible

9 reading of the Executive Order. The Court went on to conclude that the County is likely to

10 succeed on the merits of its claims, a standard far more demanding than Federal Rule of Civil

11 Procedure 12(b)(6)’s requirement that the County plead a plausible claim for relief.

12

Despite this Court’s well-reasoned holdings, defendants filed a baseless motion for

13 reconsideration advancing the same interpretation of the Executive Order the Court has already

14 rejected. They now repackage that same interpretation for the third time in the context of a

15 motion to dismiss. Their interpretation fares no better this time around.

16

Defendants’ motion to dismiss, like their motion for reconsideration, rests on a slender

17 reed: a two-page guidance memorandum issued by the Attorney General—a named defendant in

18 this case. See Dkt. 108-1, Attach. 1 (Mem. from Att’y General Jefferson B. Sessions,

19 “Implementation of Executive Order 13768, ‘Enhancing Public Safety in the Interior of the

20 United States’” (May 22, 2017)) (“AG Memorandum”). The AG Memorandum cannot support

21 the weight defendants place on it. As defendants concede, this Court owes no deference to the

22 Attorney General’s Memorandum when interpreting the Executive Order. That is especially true

23 given that the AG Memorandum is nothing more than a litigation-driven fig leaf that repeats a

24 reading of the Executive Order so implausible that it deprives the Executive Order of “any legal

25 meaning.” Santa Clara, 2017 WL 1459081, at *10. Moreover, unlike the Executive Order, the

26 AG Memorandum both lacks the force of law and can be withdrawn or altered by the Attorney

27 General at will. In the meantime, a facially unconstitutional Executive Order would remain on

28 the books, hanging like Damocles’ sword over the heads of targeted jurisdictions, including the

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County of Santa Clara. Targeted jurisdictions would continue to face unlawful coercion as they waited to see whether the Administration would follow constitutional requirements or enforce the Executive Order the President actually promulgated.
Because the Court was right to reject defendants’ implausible narrowing construction of the Executive Order, the Court’s prior rulings, both on the justiciability and the merits of the County’s claims, remain sound. Contrary to defendants’ arguments, the Court correctly concluded that the County is likely to succeed on its claims that the Executive Order is facially unconstitutional, and the AG Memorandum has no bearing on the County’s facial challenges. Further, even if the Court were to credit the AG Memorandum’s implausible interpretation of the Executive Order for the sake of argument, it would still violate fundamental constitutional principles, and the County would still have valid and justiciable claims against its enforcement.
In the end, defendants’ arguments cannot be reconciled with the relief they seek. If defendants truly intend to enforce the Executive Order only as provided in the AG Memorandum, then the preliminary injunction does them no harm and they should have no objection to its remaining in place, as the Court’s existing order expressly permits defendants to do everything authorized under existing law.
For all these reasons, the Court should deny defendants’ motion.
II. FACTUAL BACKGROUND A. Executive Order 13768 Because the Court is well-versed in the relevant facts, the County will not repeat them
here. See Santa Clara, 2017 WL 1459081, at *2–6 (setting forth factual findings). Instead, for the Court’s convenience, the key portions of Executive Order 13768 are set forth below:
Sec. 2. Policy. It is the policy of the executive branch to: . . . (c) Ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law;
Sec. 3. Definitions. The terms of this order, where applicable, shall have the meaning provided by section 1101 of title 8, United States Code. Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.
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1

(a) In furtherance of this policy, the Attorney General and the Secretary,

in their discretion and to the extent consistent with law, shall ensure that

2

jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary

jurisdictions) are not eligible to receive Federal grants, except as deemed

3

necessary for law enforcement purposes by the Attorney General or the

Secretary. The Secretary has the authority to designate, in his discretion

4

and to the extent consistent with law, a jurisdiction as a sanctuary

jurisdiction. The Attorney General shall take appropriate enforcement

5

action against any entity that violates 8 U.S.C. 1373, or which has in

effect a statute, policy, or practice that prevents or hinders the

6

enforcement of Federal law.

7

(b) To better inform the public regarding the public safety threats

associated with sanctuary jurisdictions, the Secretary shall utilize the

8

Declined Detainer Outcome Report or its equivalent and, on a weekly

basis, make public a comprehensive list of criminal actions committed by

9

aliens and any jurisdiction that ignored or otherwise failed to honor any

detainers with respect to such aliens.

10

(c) The Director of the Office of Management and Budget is directed to

11

obtain and provide relevant and responsive information on all Federal

grant money that currently is received by any sanctuary jurisdiction.

12

13 Exec. Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order” or “EO”).

14

B. Defendants’ Statements Regarding Executive Order 13768

15

Also relevant are the President’s own statements regarding the Executive Order’s purpose

16 and scope, as well as those of his subordinates, including the current Attorney General. See

17 Hawaii v. Trump, --- F.3d ---, 2017 WL 2529640, at *15 n.14 (9th Cir. June 12, 2017) (taking

18 judicial notice of the President’s statements when interpreting executive order); Int’l Refugee

19 Assistance Project v. Trump, 857 F.3d 554, 595 (4th Cir. 2017) (“We need not probe anyone’s

20 heart of hearts to discover the purpose of [the executive order], for President Trump and his aides

21 have explained it on numerous occasions and in no uncertain terms.”). President Trump

22 repeatedly pledged, both on the campaign trail and after taking the oath of office, to deny all

23 federal funding to jurisdictions he believes are hindering his immigration enforcement agenda,

24 thereby “ending” such jurisdictions altogether. See Dkt. 1 (“Compl.”) ¶ 93 (listing statements).

25 After issuing the Executive Order, the President characterized defunding as a “weapon” he could

26 wield to deprive jurisdictions of “the money they need to properly operate as a city or state.” Dkt.

27 36, Harris Decl. ¶ 3 & Dkt. 36-2, Ex. B at 4. The President’s press secretary confirmed that the

28 President’s goal was to ensure that “counties and other institutions that remain sanctuary cities

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1 don’t get federal government funding.” Dkt. 36, Harris Decl. ¶ 4 & Dkt. 36-3, Ex. C at 4–5.

2 These threats continued even after the County moved to enjoin the Executive Order. On March

3 27, 2017, Defendant Sessions stated that any jurisdiction the Department of Justice deems

4 noncompliant with Section 1373 will suffer “withholding [of] grants, termination of grants, and

5 disbarment or ineligibility for future grants,” as well as the “claw back” of “any funds” previously

6 awarded. Dkt. 82-1, Req. for Court Approval to Supp. R., Ex. A at 2.

7

C. The Court’s Order Granting the County’s Request for a Nationwide

Preliminary Injunction of Section 9(a) of Executive Order 13768 8

9

The County filed the instant lawsuit on February 3, 2017, seeking a judicial declaration

10 that Section 9 of the Executive Order is unconstitutional, and a permanent injunction of that

11 provision. The County asserted four separate causes of action: (1) violation of the separation of

12 powers; (2) violation of the Tenth Amendment; (3) violation of the Fifth Amendment

13 (vagueness); and (4) violation of the Fifth Amendment (procedural due process). See Compl. ¶¶

14 118–52. On February 23, 2017, the County moved for a nationwide preliminary injunction of

15 Section 9 of the Executive Order on each of those grounds. See Dkt. 26.

16

On April 25, 2017, the Court granted the County’s motion and issued an order enjoining

17 enforcement of Section 9(a) of the Executive Order. Santa Clara, 2017 WL 1459081, at *29. In

18 its analysis, the Court considered and rejected many of the same arguments Defendants advance

19 in the instant motion.

20

First, the Court rejected as “not legally plausible” the last-minute re-interpretation of the

21 Executive Order that defendants offered at the April 14, 2017 hearing on the County’s

22 preliminary injunction motion, concluding that “‘[t]o read [the Order] as the Government desires

23 requires rewriting, not just reinterpretation.’” Id. at *8 (quoting United States v. Stevens, 559

24 U.S. 460, 481 (2010)). Specifically, the Court rejected the argument that Section 9(a) could be

25 construed to apply only to a small number of federal grants administered by the Departments of

26 Justice and Homeland Security. Id. at *2 (“Section 9(a), by its plain language, attempts to reach

27 all federal grants, not merely the three mentioned at the hearing.”). The Court grounded that

28 conclusion on the Executive Order’s plain text, which the Court held “is not reasonably

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1 susceptible to the new, narrow interpretation offered at the hearing.” Id. The Court reinforced its

2 reading with defendants’ public statements, which characterized the Executive Order as a means

3 of stripping sanctuary jurisdictions of all federal funding. See id. (“[I]f there was doubt about the

4 scope of the Order, the President and Attorney General have erased it with their public

5 comments.”).

6

Second, the Court considered and rejected the argument that the Executive Order could

7 withstand constitutional scrutiny because it stated, in places, that it was to be applied “consistent

8 with law.” Id. at *9 (“Effectively, the Government argues that Section 9(a) is ‘valid’ and does not

9 raise constitutional issues as long as it does nothing at all.”).

10

Third, the Court considered and rejected the argument that “the Order carries no legal

11 force.” Id. at *14. Instead, the Court concluded that the Executive Order “carries the force of

12 law” and that “[a]dopting the Government’s proposed reading would transform an Order that

13 purports to create real legal obligations into a mere policy statement and would work to mislead

14 individuals who are not able to conclude, by reading Section 9(a) itself, that it is fully self-

15 cancelling and carries no legal weight.” Id. at *9. In particular, the Court found that the

16 Executive Order purports “‘to give the Secretary or Attorney General the unilateral authority’ to

17 impose new conditions on federal grants,” without a constitutional or statutory basis for doing so.

18 Id. at *8 (quoting Defs.’ Opp. to Mot. for Prelim. Inj.).

19

Fourth, the Court thoroughly considered and rejected defendants’ justiciability

20 arguments, concluding that the County had Article III standing and that its claims were ripe for

21 adjudication. See id. at *7–21. The Court further concluded that “the Government’s proposed

22 narrow construction does not destroy justiciability” under controlling Supreme Court precedent.

23 Id. at *8 (citing Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392 (1988)).

24

Because of the Executive Order’s “facially unconstitutional directives and its coercive

25 effects,” the Court issued a nationwide injunction of Section 9(a). Id. at *28. Narrowly tailoring

26 its order, the Court declined to enjoin the President himself, and also made clear that the

27 injunction “does not impact the Government’s ability to use lawful means to enforce existing

28 conditions of federal grants or 8 U.S.C. 1373, nor does it restrict the Secretary from developing

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1 regulations or preparing guidance on designating a jurisdiction as a ‘sanctuary jurisdiction.’” Id.

2 at *29.

3

D. The Attorney General’s Memorandum and Defendants’ Motion for

Reconsideration 4

5

On May 22, 2017, the Attorney General released a two-page Memorandum entitled

6 “Implementation of Executive Order 13768.” Dkt. 108-1. The AG Memorandum reduces to

7 writing the same interpretation of the Executive Order that defendants adopted at oral argument,

8 and the Court rejected in granting the preliminary injunction.

9

The same day that Attorney General Sessions issued the AG Memorandum, defendants

10 moved for leave to file a motion for reconsideration of the Court’s preliminary injunction order,

11 claiming that the AG Memorandum “constitutes new authority.” Dkt. 108 at 2 (Defs.’ Mot. for

12 Recons.). Defendants’ motion for reconsideration makes many of the same arguments presented

13 here under the guise of a motion to dismiss. Opposing defendants’ motion for reconsideration,

14 the County explained why the AG Memorandum changed nothing, and why the preliminary

15 injunction must remain in place. See Dkt. 114 at 11–22. The motion remains pending.

16 III. LEGAL STANDARD

17

Defendants move to dismiss the County’s lawsuit pursuant to Federal Rules of Civil

18 Procedure 12(b)(1) and 12(b)(6). Rule 12(b)(1) concerns Article III standing and ripeness. See

19 Maya v. Centex Corp., 658 F.3d 1060, 1067–68 (9th Cir. 2011). The Court recited the law on

20 Article III standing in its preliminary injunction order:

21

Article III, section 2 of the Constitution limits the jurisdiction of the federal courts

to “Cases” and “Controversies.” Massachusetts v. EPA, 549 U.S. 497, 516, 127

22

S.Ct. 1438, 167 L.Ed.2d 248 (2007); see U.S. Const. art. III, §, cl. 1. “Standing is

an essential and unchanging part of the case-or-controversy requirement.” Lujan

23

v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S. Ct. 2130, 119 L.Ed.2d 351 (1992).

To establish standing a plaintiff must demonstrate “that it has suffered a concrete

24

and particularized injury that is either actual or imminent, that the injury is fairly

traceable to the defendant, and that it is likely that a favorable decision will redress

25

that injury.” Massachusetts, 549 U.S. at 517, 127 S. Ct. 1438 (citing Lujan, 504

U.S. at 560–61, 112 S. Ct. 2130). 26

27 Santa Clara, 2017 WL 1459081, at *7. “At the pleading stage, general factual allegations of

28 injury resulting from the defendant’s conduct may suffice,” to establish justiciability because on a

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1 motion to dismiss courts “presume that general allegations embrace those specific facts that are

2 necessary to support the claim.” Lujan, 504 U.S. at 561 (internal quotations and alterations

3 omitted).

4

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a claim. A claim

5 can be dismissed only if “it is clear that no relief could be granted under any set of facts that

6 could be proved consistent with the allegations.” Swierkiewicz v. Sorema N.A., 534 U.S. 506, 514

7 (2002) (internal quotation marks omitted). A motion to dismiss must be denied if an alleged

8 claim is “plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The issue is not

9 whether the plaintiff will ultimately prevail, but solely whether it has stated a claim upon which

10 relief could be granted. Jackson v. Carey, 353 F.3d 750, 755 (9th Cir. 2003). The Court “must

11 accept as true all factual allegations in the complaint and draw all reasonable inferences in favor

12 of the nonmoving party.” Retail Prop. Trust v. United Bd. of Carpenters & Joiners of Am., 768

13 F.3d 938, 945 (9th Cir. 2014).

14 IV. 15 16

ARGUMENT A. The AG Memorandum offers no basis for dismissal. Virtually all of the arguments defendants advance in the instant motion rely upon a

17 premise this Court has already rejected: that the Court should ignore the Executive Order’s plain

18 text and express purpose—as well as defendants’ public statements confirming that it means what

19 it says—and instead credit the implausible reading set forth in the AG Memorandum as

20 controlling. See, e.g., Dkt. 115, Defs.’ Mot. to Dismiss (“Mot.”) at 2 (arguing that the AG

21 Memorandum renders the County’s claims non-justiciable and/or subject to dismissal), 12

22 (arguing that the AG Memorandum makes clear that the Executive Order lacks “the independent

23 force of law”), 13–14 (arguing that the AG Memorandum confirms that Section 9(a) does not

24 offend separation of powers principles), 21–22 (arguing that the AG Memorandum defeats the

25 County’s procedural due process claim). The AG Memorandum provides no basis for dismissing

26 the County’s complaint both because the memorandum in no way binds the Court, and because,

27 even if credited, it fails to cure the Executive Order’s inherent unconstitutionality.

28

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1. Unlike the Executive Order, the AG Memorandum is not binding law.

2

Defendants’ arguments consist of sleight-of-hand, asking the Court to ignore the

3 Executive Order’s legally binding text and instead focus on a non-binding two-page guidance

4 memorandum. The Court should reject that approach for several reasons.

5

First, it is this Court’s interpretation of the Executive Order that controls, not the Attorney

6 General’s. See, e.g., Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 188

7 (1999) (resolving a dispute over the correct interpretation of an executive order); Marbury v.

8 Madison, 5 U.S. 137, 26 (1803) (“It is emphatically the province and duty of the judicial

9 department to say what the law is.”); Hawaii, 2017 WL 2529640, at *12 (reviewing a challenge to

10 an executive order where plaintiff asserted that the order “exceed[ed] the statutory authority

11 delegated by Congress and constitutional boundaries”). Indeed, defendants concede that the AG

12 Memorandum cannot and does not control this Court’s interpretation of the Executive Order,

13 arguing that “the rules of judicial deference are inapplicable” here, and that this Court is not

14 “bound by the Attorney General’s determination as to the scope and meaning of the grant

15 eligibility provision.” See Dkt. 117, Defs.’ Reply in Supp. of Defs.’ Mot. for Recons. at 5 n.6.

16 That is especially true where, as here, the AG Memorandum’s implausible interpretation of the

17 Executive Order is nothing more than a convenient litigation position taken by a named defendant

18 to evade a valid and binding Court order. See Christopher v. SmithKline Beecham Corp., 567

19 U.S. 142, 155 (2012) (deference is inappropriate “when the agency’s interpretation is plainly

20 erroneous or inconsistent with the regulation,” “when it appears that the interpretation is nothing

21 more than a convenient litigating position,” or when it is a “post hoc rationalization[n] advanced

22 by an agency seeking to defend past agency action against attack” (internal citations and

23 quotations omitted)); see also Vietnam Veterans of Am. v. CIA, 811 F.3d 1068, 1077–78 (9th Cir.

24 2016) (same); Safe Air For Everyone v. EPA, 488 F.3d 1088, 1099 (9th Cir. 2007) (same).

25 Accordingly, the Court’s interpretation of the Executive Order remains fundamentally sound.

26

Second, it is impossible to square the AG Memorandum’s interpretation of the Executive

27 Order with the Executive Order’s text and stated purpose. Any purportedly lawful interpretation

28 of a statute or order must be a “reasonable construction” of the law at issue. Skilling v. United

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States, 561 U.S. 358, 406 (2010). In this instance, as this Court has held, defendants’ interpretation of the Executive Order is implausible. Santa Clara, 2017 WL 1459081, at *3. The Court was correct: “[T]he interpretation of an Executive Order begins with its text” and “[t]he text must be construed consistently with the Order’s ‘object and policy.’” Bassidji v. Goe, 413 F.3d 928, 934 (9th Cir. 2005); see also United States v. Stevens, 559 U.S. 460, 481 (2010) (courts do not adopt interpretations that “require[] rewriting, not just reinterpretation”); Foti v. City of Menlo Park, 146 F.3d 629, 639 (9th Cir. 1998) (holding that it is not the courts’ job “to insert missing terms into the statute or adopt an interpretation precluded by [its] plain language”). Employing a textual analysis, this Court correctly rejected the notion that the Executive Order was not intended to change existing law and affects only a narrow subset DOJ and DHS grants. See Santa Clara, 2017 WL 1459081, at *8–9 (“Nothing in Section 9(a) limits the ‘Federal grants’ affected to those only given though the Departments of Justice and Homeland Security.”).
The AG Memorandum merely reduces that same discredited argument to writing, asserting that, for the time being, the Executive Order applies only to three DOJ grants (the same three grants defendants’ counsel raised during oral argument), and potentially some unspecified DHS grants. As the Court has already concluded, this interpretation cannot withstand scrutiny. By its terms, the Executive Order reaches all federal funds. Section 2(c) confirms that the Executive Order targets “Federal funds” in general; Section 9(a) refers to all “Federal grants,” not just DOJ and DHS funds; and Section 9(c) directs the Office of Management and Budget to “obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.” See EO §§ 2(c), 9(a), 9(c) (emphasis added). As this Court put it in rejecting this argument previously, “a construction so narrow that it renders a legal action legally meaningless cannot possibly be reasonable and is clearly inconsistent with the Order’s broad intent.” Santa Clara, 2017 WL 1459081, at *9.1
Third, nothing in the AG Memorandum suggests that it is or must be the last word on implementation. On the contrary, the memorandum fails to mention affected DHS grants, or to
1 In addition, as the Court pointed out, “if there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments.” Santa Clara, 2017 WL 1549081, at *2.
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clarify the Executive Order’s application to ICE civil detainer requests. And it contradicts both the President, who has called defunding a “weapon” he can use to deprive local governments of their ability to function, see Dkt. 36, Harris Decl. ¶ 3 & Dkt. 36-2, Ex. B at 4, and the Attorney General, who has promised to “claw back” funds previously awarded, Dkt. 82-1 at 2 (Tr. of Att’y General’s March 27, 2017 White House press briefing). Accordingly, notwithstanding defendants’ assurances that the AG Memorandum is “conclusive,” “authoritative,” and “binding,” the Attorney General could revise, revoke, or supplement the memorandum at any time.
Fourth, defendants mischaracterize the AG Memorandum’s supposedly “authoritative” legal effect, even within the executive branch. Mot. at 2. Contrary to defendants’ suggestion, the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1103(a)(1), provides the Attorney General with no authority to rewrite an executive order, or undo a federal court’s reasoned interpretation by fiat. The Attorney General is neither interpreting the INA nor issuing any determination or ruling “relating to the immigration and naturalization of aliens.” 8 U.S.C. 1103(a)(1).2 And even according to the law review article defendants rely upon, “the question of whether (and in what sense) the opinions of the Attorney General, and, more recently, the Office of Legal Counsel, are legally binding within the executive branch remains somewhat unsettled.” Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1318 (2000). Indeed, the AG Memorandum is neither signed by nor addressed to DHS Secretary Kelly, and does not purport to bind or guide DHS’s implementation of the Executive Order. See AG Memorandum at 2 (limiting the memorandum’s application to grants administered by the DOJ’s Office of Justice Programs and the Office of Community Oriented Policing Services, as well as unspecified “future grants” issued by DOJ).
For all these reasons, the County, and this Court, must focus on the Executive Order itself when assessing its legality and impact, rather than a belatedly produced litigation-driven memorandum.
2 Nor does 28 U.S.C. § 512, which permits a department head to request and obtain an Attorney General opinion on “questions of law arising in the administration of his department,” support defendants’ position. Defendants nowhere claim that the AG Memorandum was issued in response to any such request, and that statute says nothing about whether Attorney General opinions are binding or authoritative.
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2. Even if credited, the AG Memorandum fails to cure the Executive Order’s constitutional defects.
Even if the Court were inclined to credit the AG Memorandum for purposes of deciding defendants’ motion, that memorandum fails to cure the Executive Order’s inherent unconstitutionality. To state the obvious, the AG Memorandum neither points to nor provides any independent statutory or constitutional authorization for the President’s action. See Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 586 (1952). In addition, the AG Memorandum says nothing about which DHS grants come within the Executive Order’s ambit, and many of them—such as the pre-disaster mitigation and emergency preparedness grants the County receives and relies upon—have no connection whatsoever to immigration enforcement. See Compl. ¶¶ 41–42. Tying such funds to compliance with 8 U.S.C. § 1373 would therefore violate the spending clause, even if Congress had attempted to do so. See National Fed. of Indep. Bus. v. Sebelius (“NFIB”), 132 S. Ct. 2566, 2602–04 (2012); South Dakota v. Dole, 483 U.S. 203, 211 (1987); Santa Clara, 2017 WL 1459081, at *23 (noting there is no nexus between section 1373 and “emergency preparedness” grants).3
Nor does the AG Memorandum alleviate the Executive Order’s coercive effects. Defendants have never disputed that the Executive Order, even as reimagined by the AG Memorandum, is designed to coerce the County and other jurisdictions into changing their local policies. In fact, the Attorney General made the threat plain in his March 27, 2017 press conference, urging “our nation’s states and cities and counties to carefully consider” and “rethink” their local policies, or else “risk [] losing federal dollars.” Dkt. 82-1 at 2. As the County has alleged, such coercion is “‘contrary to our system of federalism.’” Compl. ¶ 84 (quoting NFIB, 132 S. Ct. at 2604).
The AG Memorandum likewise does nothing to cure the Executive Order’s Tenth Amendment violations. The AG Memorandum artfully omits any reference to ICE civil detainer
3 The AG Memorandum also wrongly assumes that DOJ may constitutionally deny SCAAP, JAG, and COPS grants for failure to comply with 8 U.S.C. § 1373. See Dkt. 114 at 20. The County in no way concedes that point. Nothing in those grants’ authorizing statutes expressly links receipt of funds with section 1373 compliance, and Congress has repeatedly declined to impose such a link.
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1 requests, even though the Executive Order expressly links compliance with section 1373 to

2 honoring such requests. See Santa Clara, 2017 WL 1459081, at *13 (noting that, under the

3 Executive Order’s plain terms, “a state or local government may be designated a sanctuary

4 jurisdiction, and subject to defunding, if it fails to honor ICE detainer requests”); Compl. ¶ 151.

5 With the AG Memorandum conspicuously silent on the question of civil detainer requests, this

6 Court’s holding remains applicable: “To the extent the Executive Order seeks to condition all

7 federal grants on honoring civil detainer requests, it is likely unconstitutional under the Tenth

8 Amendment because it seeks to compel the states and local jurisdictions to enforce a federal

9 regulatory program through coercion.” Santa Clara, 2017 WL 1459081, at *24.

10

The AG Memorandum also omits any reference whatsoever to Executive Order Section

11 9(a)’s separate enforcement provision, which empowers the Attorney General to take unspecified

12 enforcement action against any jurisdiction he deems is hindering federal law enforcement. EO §

13 9(a). As the County alleged, and as the Court has previously held, this provision violates the

14 Tenth Amendment. Santa Clara, 2017 WL 1459081, at *24; Compl. ¶ 152.

15

Finally, even with the thin gloss the AG Memorandum provides, the Executive Order

16 remains vague and subject to arbitrary enforcement, since no one (including defendants) knows

17 what willful refusal to comply with Section 1373 means in practice. Santa Clara, 2017 WL

18 1459081 at *25. By adding nothing to the Executive Order’s definition of “sanctuary

19 jurisdiction,” the AG Memorandum merely doubles down on a definition that this Court has

20 already ruled is too vague to pass constitutional muster.

21

In sum, the AG Memorandum constitutes nothing more than a post hoc litigation position

22 rather than a plausible interpretation of the President’s Executive Order. It has no effect on the

23 Court’s prior justiciability or merits analyses, and provides no basis for dismissal.

24

B. The Court has subject matter jurisdiction over the County’s claims.

25

In granting the County’s motion for preliminary injunction and finding irreparable harm,

26 the Court expressly held that the County “demonstrated Article III standing to challenge the

27 Order” and that the case is ripe for review. Id. at *11. That holding settles the question, both

28 because “[a] district court may not grant a preliminary injunction if it lacks subject matter

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1 jurisdiction over the claim before it,” Shell Offshore Inc. v. Greenpeace, Inc., 864 F. Supp. 2d

2 839, 842 (D. Alaska 2012), aff’d, 709 F.3d 1281 (9th Cir. 2013), and because “general factual

3 allegations of injury resulting from the defendant’s conduct” suffice at the pleading stage to allow

4 a claim to proceed, Lujan, 504 U.S. at 561 (internal quotations and alterations omitted).

5

The AG Memorandum has no effect on the Court’s prior justiciability analysis. Indeed,

6 the Court has already ruled that defendants’ proposed “narrow construction”—now reduced to

7 writing in the AG Memorandum— “does not destroy justiciability.” Santa Clara, 2017 WL

8 1459081, at *8 (citing American Booksellers, 484 U.S. at 392 (noting that plaintiff’s standing

9 may be based on its interpretation of a statute even when a narrower interpretation is offered)).

10 Because the AG Memorandum contains the same unreasonable interpretation the Court already

11 considered and rejected—and because, as explained above, the memorandum in no way binds this

12 Court—the Court’s prior holdings on justiciability apply.

13

Even if the Court were inclined to credit the AG Memorandum, that document does

14 nothing to deprive the County of its standing to sue. To begin with, it defines “sanctuary

15 jurisdictions” as state and local governments that willfully refuse to comply with 8 U.S.C. 1373.

16 To the extent this definition does anything more than repeat a vague directive, see Part IV.E.3,

17 infra, it confirms that the County is in defendants’ crosshairs. Pursuant to Section 9(b) of the

18 Executive Order, defendants have identified the County as maintaining policies that they believe

19 violate Section 1373. See, e.g., Dkt. 90 (Pl.’s Second Req. for Court Approval to Supp. R.), Ex.

20 B at 8, 22 (listing the County as a jurisdiction that has “[e]nacted [p]olicies which [li]mit

21 [c]ooperation with ICE”). Moreover, the AG Memorandum pointedly omits any reference to ICE

22 civil detainer requests. The Executive Order therefore continues to threaten the County with

23 defunding or other unspecified enforcement actions due to the County’s refusal to honor those

24 requests.

25

The Court should reject defendants’ justiciability arguments for another reason: they

26 amount to a second motion for reconsideration on the Court’s justiciability ruling. Defendants

27 previously told this Court that they would not repeat their unsuccessful justiciability arguments in

28 a motion to dismiss. See Tr. of CMC Hr’g (May 2, 2017) at 12:23–13:4 (“THE COURT: . . . I

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1 understand why you would want to file a motion to dismiss. Do you think there’s much more that

2 you need to know from the Court about what I think about subject matter jurisdiction? MR.

3 SIMPSON: No, your Honor. It would be other matters. It would be 12(b)(6) matters primarily

4 that we’d be addressing.”). Notwithstanding that assertion, defendants have rehashed their

5 justiciability arguments not once, but twice. Indeed, defendants’ motion to dismiss includes a

6 perfunctory argument on Article III standing and ripeness, instead referring the Court to the

7 justiciability arguments in defendants’ motion for reconsideration. See Mot. at 11. The motion to

8 dismiss is therefore, “in substance, a motion for reconsideration,” and “can be denied on that

9 basis alone.” Semiconductor Energy Lab. Co. v. Chi Mei Optoelectronics Corp., 2006 WL

10 2130866, at *1 (N.D. Cal. July 27, 2006); see also Lam Research Corp. v. Schunk Semiconductor,

11 65 F. Supp. 3d 863, 869 (N.D. Cal. 2014) (“The Court will not exalt form over substance and

12 permit a party to circumvent the applicability of Local Rule 7–9 merely by avoiding the ‘motion

13 for reconsideration’ label. Courts routinely look to the substance of the motion rather than how it

14 is styled in determining the standard to apply.”).

15

In any event, the Court’s previous justiciability analysis was correct. The Executive

16 Order’s plain text, the President’s repeated statements threatening to deprive state and local

17 governments of all federal funds, and the County’s policies regarding non-participation in federal

18 immigration enforcement and ICE civil detainer requests, all support the same conclusion: the

19 County has a “credible threat” of being targeted for defunding and enforcement actions under

20 Section 9(a). See Compl. ¶¶ 50–65, 107–117. This establishes both Article III standing and

21 ripeness. See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014); accord

22 California Pro-Life Council, Inc. v. Getman, 328 F.3d 1088, 1094 n.2 (9th Cir. 2003). Indeed,

23 after this Court issued its preliminary injunction order, both the Ninth and Fourth Circuits issued

24 opinions echoing the Court’s conclusion in their separate analyses of the President’s “travel ban”

25 executive order. See Hawaii, 2017 WL 2529640, at *6–12 (finding Article III standing to

26 challenge the legality of revised travel ban order, and holding that pre-enforcement challenge was

27 ripe for review); Int’l Refugee Assistance Project, 857 F.3d at 586 (same).

28

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1

C. The Executive Order has the force of law and directly affects the County.

2

Relying on another premise this Court has already rejected, defendants contend that the

3 Court should dismiss the County’s lawsuit because the Executive Order “only directs internal

4 Executive branch policy and does not directly affect the [County].” Mot. at 11. This argument

5 fails for three reasons.

6

First, as the Court properly held in its preliminary injunction order, the Executive Order

7 “purports to delegate to the Attorney General and the Secretary [of Homeland Security] the

8 authority to place a new condition on federal grants” and it “carries the force of law.” Santa

9 Clara, 2017 WL 1459081, at *8–9. Purportedly promulgated pursuant to the President’s

10 constitutional and statutory authority to remedy harm “to the very fabric of our Republic,” EO §

11 1, nothing in the Executive Order suggests that it was “issued as a housekeeping measure.” Legal

12 Aid Soc’y. of Alameda Cty. v. Brennan, 608 F.2d 1319, 1329 n.14 (9th Cir. 1979). Instead, the

13 text, purpose and structure of the Executive Order confirm its intent to carry the force of law,

14 particularly with respect to Section 9(a). Placing new conditions on federal funding received by

15 states and localities is not an inward-looking interagency directive. See Hawaii, 2017 WL

16 2529640, at *26 (distinguishing between unlawful provisions of executive order that “burden

17 individuals outside of the executive branch of the federal government” and those that solely

18 pertain to “internal government operations and procedures”). In issuing the Executive Order, the

19 President made plain that the Order’s purpose was to create real obligations on state and local

20 jurisdictions, or else face denial of all federal funds, unspecified enforcement actions, and other

21 violations and penalties. Compl. ¶ 93. The Attorney General said the same thing during a March

22 press conference. See Dkt. 82-1, Req. for Court Approval to Supp. R., Ex. A at 2; see also Santa

23 Clara, 2017 WL 1459081, at *15 (“The statements of the President, his press secretary and the

24 Attorney General belie the Government’s argument . . . that the Order does not change the law.”).

25 The Executive Order cannot be both an internal directive and a tool for enforcement of new grant

26 conditions and civil penalties at the same time.

27

Second, the Executive Order directly affects the County by attempting to coerce it to

28 change its policies regarding cooperation with federal immigration enforcement. See Compl. ¶¶

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1 66–90 (discussing coercive structure and impact of Defunding and Enforcement Provisions).

2 Indeed, as the Court held in the irreparable harm analysis portion of its preliminary injunction

3 order, “the Executive Order seeks to undermine [the County’s local policy] judgment by

4 attempting to compel [jurisdictions] to change their policies and enforce the Federal

5 government’s immigration laws” under threat of defunding and unspecified enforcement action.

6 Santa Clara, 2017 WL 1459081, at *17. This directly harms the County by impairing its

7 sovereign interest in crafting its “own local policies and enforcement priorities,” id. at *16 (citing

8 Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592, 601 (1982)), and by creating budgetary

9 uncertainty that impacts the County’s ability to budget and plan for the future. Id. at *17–19.

10 The Executive Order’s coercive effects therefore belie the claim that it is merely “an internal

11 Executive Branch directive” devoid of legal force. Mot. at 12.

12

Third, none of the cases upon which defendants rely supports their argument that the

13 Executive Order lacks the force of law. In Chen v. Schiltgen, the district court held that that the

14 executive order at issue provided no private right of action for an immigrant seeking asylum to

15 enforce the executive order. 1995 WL 317023, at *2 (N.D. Cal. May 19, 1995), aff’d sub nom.

16 Chen v. I.N.S., 95 F.3d 801 (9th Cir. 1996). Here, the County is challenging—not seeking to

17 enforce—the Executive Order, and an executive order need contain no private right of action to

18 be challenged and held unconstitutional. Defendants also cite Legal Aid Society of Alameda

19 County v. Brennan, 608 F.2d 1319 (9th Cir. 1979), but that case supports the County. There, the

20 court held that an executive order requiring federal contractors to maintain adequate affirmative

21 action programs “ha[d] the force of law” and was subject to judicial review. Id. at 1329–30.

22 Finally, United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal. 2015), did not involve an

23 executive order at all, but instead a policy memorandum issued by the Deputy Attorney General

24 setting out “eight enforcement priorities to guide” enforcement of the Controlled Substances Act.

25 Id. at 1010. Unlike the Executive Order at issue here, the policy memorandum was “intended

26 solely as a guide for prosecutors in their exercise of discretion” and federal prosecutors

27 “retain[ed] exclusive authority and absolute discretion to decide whether to prosecute a case.” Id.

28 at 1011 (internal quotations omitted). Pickard has no bearing on the County’s constitutional

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challenges to the Executive Order, which the Court correctly concluded carries the force of law. Indeed, Pickard reinforces the County’s argument that DOJ memoranda carry no such weight.
In any case, defendants’ remarkable assertion that the Executive Order “does not carry the independent force of law,” Mot. at 12, hardly supports dismissal of the County’s lawsuit. On the contrary, if defendants are correct that the Executive Order is a toothless paper tiger, despite the President’s assertion that it is not, see Dkt. 36-2 at 4, then the proper outcome to this litigation is a stipulated judgment making permanent the Court’s preliminary injunction. If, as defendants now claim, the Executive Order does nothing, then there can be no harm to leaving the Court’s order in place. Defendants would remain able to enforce whatever constitutionally acceptable grant restrictions Congress has authorized, and state and local governments could go about their business free from the uncertainty and coercion the Executive Order creates.
D. The Executive Order is facially unconstitutional. Defendants next argue that three of the County’s causes of action should be dismissed under Rule 12(b)(6) because they raise improper facial challenges.4 Defendants are wrong: the Executive Order is facially unconstitutional, the County properly challenged it on that basis, and the Court correctly concluded that the County is likely to succeed on the merits of those facial challenges. Defendants misunderstand the law on facial challenges in at least three ways. First, defendants contend that, so long as the Executive Order can lawfully be applied in any single instance, it stands immune from facial challenge. See Mot. at 10–11. But defendants’ argument “reflects a misunderstanding of the Supreme Court’s [facial challenge] jurisprudence.” Jackson v. City & Cty. of San Francisco, 746 F.3d 953, 962 (9th Cir. 2014). In Jackson, a challenge to a “flat prohibition on keeping unsecured handguns in the home,” the City of San Francisco argued that a facial challenge could not succeed, because the challenger had conceded that locked storage could be required in some circumstances. Thus, according to San Francisco, the statute had a “plainly legitimate sweep,” rendering a facial challenge inappropriate. Id. The Ninth Circuit rejected that argument because the statute “[o]n its face . . . does not give courts the opportunity to construe the prohibition narrowly or accord the prohibition ‘a limiting construction
4 Defendants make no facial challenge argument to the County’s Tenth Amendment claim.
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to avoid constitutional questions.’” Id. The same is true here. As this Court has held, the
categorical commands of the Executive Order are likely unconstitutional and “not readily susceptible to the Government’s narrow interpretation.” Santa Clara, 2017 WL 1459081, at *8.5
Second, defendants can hardly sidestep the Executive Order’s inherent constitutional
infirmities merely by vowing to implement it lawfully. As this Court correctly ruled in granting
preliminary injunctive relief, the Attorney General’s current inclination “to enforce [the
Executive Order] sparingly cannot impact whether it is unconstitutional on its face.” Id. at *20.
The constitution “protects against the Government; it does not leave [the County] at the mercy of
noblesse oblige.” Stevens, 559 U.S. at 480. Courts will “not uphold an unconstitutional statute
merely because the Government promised to use it responsibly.” Id.; see also Doe v. Harris, 772
F.3d 563, 580–81 (9th Cir. 2014) (“[T]he promise from the State that it will use the power
[granted it by unconstitutional statute] appropriately is not sufficient”); Comite de Jornaleros de
Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 946–47 (9th Cir. 2011) (“We cannot
simply presume the City will act in good faith and adhere to standards absent from the
ordinance’s face.”) (internal quotations and alterations omitted). The concerns animating this
prohibition are particularly acute where, as here, defendants’ assertion that they will implement
the Executive Order narrowly contradicts the President’s and Attorney General’s own past
statements, along with the DOJ’s prior positions.
Third, defendants cannot defeat a facial challenge merely by pointing to actions that they
could take under separate statutes regulating grant eligibility and funding, which exist
independently of the Executive Order. See Mot. at 13–14. As the Supreme Court has explained,
when analyzing facial challenges, courts consider “only applications of the statute in which it
actually authorizes or prohibits conduct.” City of Los Angeles v. Patel, 135 S. Ct. 2443, 2451
5 See also Washington State Grange v. Wash. State Republican Party, 552 U.S. 442, 454 (2008) (contrasting a challenge based on what is required by a law with a hypothetical possible approach to implementation of that statute ); Lopez-Valenzuela v. Arpaio, 770 F.3d 772, 789 (9th Cir. 2014) (en banc) (holding a statute facially unconstitutional where “the entire statute fails [the relevant] decision rule and would thus be invalid in all of its applications”) (emphasis in original); Doe v. City of Albuquerque, 667 F.3d 1111, 1123–27 (10th Cir. 2012) (rejecting approach that “divorces review of the constitutionality of a statute from the terms of the statute itself, and instead improperly requires a court to engage in hypothetical musings about potentially valid applications of the statute.”) (emphasis in original).
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1 (2015). In other words, the “proper focus of the constitutional inquiry is [activity] that the law

2 actually authorizes, not those for which it is irrelevant.” Id.

3

The Supreme Court’s decision in Patel illustrates this principle. In that case, motel

4 operators brought a facial challenge to Los Angeles’s municipal ordinance authorizing

5 warrantless searches of hotel guest registries. Los Angeles argued that the motel operators could

6 not prevail on a facial challenge “because such [warrantless] searches will never be

7 unconstitutional in all applications,” such as where exigency or consent would render the searches

8 valid. Id. at 2450–51. The Court rejected that argument as “misunderstand[ing] how courts

9 analyze facial challenges.” Id. at 2451. In Los Angeles’s postulated constitutional applications,

10 the warrantless search statute “do[es] no work” and cannot itself authorize searches already

11 authorized by other law. Id. The Court thus concluded that those supposed applications were

12 “irrelevant to [the] analysis because they do not involve actual applications of the statute.” Id.;

13 see also Lopez-Valenzuela, 770 F.3d at 789 (declaring state laws denying bail to undocumented

14 immigrants facially unconstitutional even if some persons “could be detained consistent with due

15 process under a different categorical statute,” or after an “individualized determination”).

16

The same analysis applies to defendants’ purportedly lawful applications of the Executive

17 Order. Defendants argue that the Executive Order can be lawfully implemented because certain

18 appropriations statutes authorize the executive branch to impose the grant conditions that the

19 Executive Order purports to impose. See Mot. at 14 (“[T]he Memorandum confirms that

20 compliance with Section 1373 will be imposed as a condition of grant eligibility only where the

21 agency ‘is statutorily authorized to impose such a condition.’”). But even if defendants’ proposed

22 actions were authorized by the appropriations statutes (which the County does not concede), that

23 is “irrelevant” to the Court’s analysis because those actions “do not involve actual applications”

24 of the Executive Order. Patel, 135 S. Ct. at 2451. To approach facial challenges in any other

25 way would be to adopt “[a] construction so narrow that it reads out any legal force,” which “does

26 not save the [Executive Order] and obviates the entire purpose of adopting a narrow reading.”

27 Santa Clara, 2017 WL 1459081, at *9.

28

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E. The County’s causes of action satisfy Rule 12(b)(6). The Court has already concluded that the County is likely to succeed on the merits of its constitutional claims under a standard more exacting than the one set forth in Rule 12. It follows “[a] fortiori” that because the County has “passed muster under the likelihood of success standard, it has also stated a claim sufficient to survive a motion to dismiss under Rule 12(b)(6).” United States v. Arizona, 2010 WL 11405085, at *6 (D. Ariz. Dec. 10, 2010) (“On account of the more exacting standard required to demonstrate a likelihood of success on the merits, the Court will not reexamine in this Order the claims with regard to which the Court previously found that Plaintiff had demonstrated a likelihood of success.”). In any event, for the reasons that follow, each of the County’s causes of action states a claim for relief.6
1. The County has adequately pled its separation of powers claim. The Executive Order’s most glaring constitutional defect is that it usurps the spending power, which belongs exclusively to Congress, and empowers executive branch officials to deem state and local entities ineligible to receive any federal grants, except as necessary for law enforcement purposes. As this Court previously held, this facially unconstitutional directive violates structural separation of powers principles articulated since the founding of the Republic. See Santa Clara, 2017 WL 1459081, at *20–22. This unconstitutional power-grab is all the more problematic because the President took the action with neither statutory nor constitutional authority to do so. See Youngstown, 343 U.S. at 585 (holding that the president’s power to issue executive orders “must stem either from an act of Congress or from the Constitution itself.”). The only time Congress has spoken regarding the president’s ability to impound allocated funds was when it enacted the Impoundment Control Act of 1974. 2 U.S.C. § 683. The President has made no attempt to follow the procedures outlined in that Act, and defendants have never even mentioned it. Nor do they address the many times Congress has expressly declined to provide the President with the very powers he has now
6 If the Court finds a pleading defect, the County respectfully requests leave to amend its complaint under Federal Rule of Civil Procedure 15(a). Because defendants have provided no reason why leave to amend would be inappropriate here, dismissal with prejudice would constitute an abuse of discretion. See Doe v. United States, 58 F.3d 494, 496–97 (9th Cir. 1995); Schreiber Distrib. Co. v. Serv-Well Furniture Co., Inc, 806 F.2d 1393, 1401 (9th Cir. 1986).
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1 claimed for himself. See Santa Clara, 2017 WL 1459081, at *22 (listing legislation). “This puts

2 the President’s power ‘at its lowest ebb.’” Id. (quoting Youngstown, 343 U.S. at 637 (Jackson, J.,

3 concurring)).

4

Rather than addressing these issues, defendants’ motion spends a good deal of time

5 challenging a cause of action the County never asserted, namely a claimed violation of the

6 Spending Clause. Mot. at 14–19. Defendants’ argument misses the mark entirely: the County

7 has alleged no independent spending clause violation because Congress has not acted—the

8 President has. The County’s complaint merely points out that if the Executive Order had been an

9 Act of Congress rather than a presidential edict, it would violate the spending clause. See Compl.

10 ¶¶ 82–83, 121–32. That remains the case. The Executive Order still contains a categorical

11 command to strip “sanctuary jurisdictions” of their eligibility for all federal grants. That

12 command would be facially unconstitutional, even if Congress had issued it.

13

For example, defendants continue to get the nexus requirement established in South

14 Dakota v. Dole exactly backwards: the AG Memorandum limits the application of the Executive

15 Order to law-enforcement related grants, even though such grants are the only ones potentially

16 exempted from the Executive Order. See EO § 9(a) (exempting from the defunding provision

17 funds “deemed necessary for law enforcement”). Nor is the new condition unambiguous, as Dole

18 requires. 483 U.S. at 207. To avoid defunding and enforcement action, state and local

19 governments must certify compliance with section 1373, even though—as this Court has held—

20 the federal government is unsure what that statute demands. See Santa Clara, 2017 WL 1459081,

21 at *25. Nor does the AG Memorandum alleviate the Executive Order’s coercive effects. See

22 Dole, 483 U.S. at 210 (holding that spending conditions may not be so coercive as to compel

23 compliance). The AG Memorandum fails to identify which DHS grants are at issue, and the

24 County relies on DHS grants for two-thirds of its Office of Emergency Services budget. See

25 Compl. ¶¶ 41–43; Santa Clara, 2017 WL 1459081, at *6. And the Executive Order’s sweeping

26 enforcement provision remains in place. Finally, the AG Memorandum’s silence on civil detainer

27 requests means that, to avoid punishment, state and local governments may be forced to violate its

28 residents Fourth Amendment rights by incarcerating individuals without probable cause. See

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1 Dole, 483 U.S. at 213 (holding that a condition on spending may not violate “any independent

2 constitutional prohibition”); Morales v. Chadbourne, 793 F.3d 208, 215–217 (1st Cir. 2015)

3 (holding that honoring civil detainer requests violate the Fourth Amendment); Santoyo v. United

4 States, No. 5:16-CV-855-OLG, Dkt. 36, at 11 (W.D. Tex. June 5, 2017) (same); Miranda–

5 Olivares v. Clackamas Cty., 2014 WL 1414305, at *9–11 (D. Or. Apr. 11, 2014) (same). The

6 County has adequately pled its separation of powers claim.

7

2. The County has adequately pled its Tenth Amendment claim.

8

As this Court correctly found, the Executive Order likely violates the Tenth Amendment

9 by seeking to condition federal grants on compliance with ICE civil detainer requests, and by

10 commanding to the Attorney General to “take appropriate enforcement action against any entity

11 that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or

12 hinders the enforcement of Federal law.” Santa Clara, 2017 WL 1459081, at *23–24.

13 Defendants do not challenge this finding or the constitutional merits of the County’s Tenth

14 Amendment claim. Instead, defendants’ motion rehashes their argument that this claim is non-

15 justiciable. Mot. at 22–25. As discussed in Section IV.B supra, that argument lacks merit and

16 the Court correctly rejected it in its preliminary injunction order. Furthermore, the AG

17 Memorandum completely sidesteps the issue of compliance with civil detainer requests and

18 Section 9(a)’s enforcement provision. Thus, even if the AG Memorandum were credited for

19 purposes of this motion, nothing in it would change the Court’s conclusion that “[t]he Executive

20 Order’s threat to pull federal grants from jurisdictions that refuse to honor detainer requests or to

21 bring ‘enforcement action’ against them violates the Tenth Amendment’s prohibitions against

22 commandeering.” Santa Clara, 2017 WL 1459081, at *24.

23

3. The County has adequately pled its Fifth Amendment vagueness claim.

24

The Court has also found that the County is likely to prevail on its claim that the

25 Executive Order is unconstitutionally vague in violation of the Fifth Amendment’s Due Process

26 Clause. Id. at *24–25. Ignoring the plain language of the Executive Order and the Court’s

27 conclusions in the preliminary injunction order, defendants yet again pin their hopes on the AG

28 Memorandum. See Mot. at 10, 19–21. Defendants’ argument fails as a matter of law and fact.

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As a legal matter, defendants contend that because the AG Memorandum “clarifies the meaning and scope” of some (but not all) of the terms in Section 9, the Executive Order cannot be considered vague in all of its applications. Mot. at 10. In support of this argument, defendants rely on Humanitarian Law Project v. U.S. Treasury Department, 578 F.3d 1133 (9th Cir. 2009). But there, all parties agreed that the federal government’s interpretation of the challenged statutory term, “service,” was reasonable. See id. at 1146. This case, by contrast, is governed by Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1021–22 (9th Cir. 2013), which flatly rejected the argument that a defendant can cure a facially unconstitutional statute by adopting an unreasonable narrowing interpretation. In Valle del Sol, the Ninth Circuit affirmed a trial court’s order preliminarily enjoining an Arizona immigration statute because it was facially void for vagueness. Id. Like defendants, Arizona made no attempt to defend the statute “as written” but instead argued that the court should adopt “a possible limiting construction that would save the statute.” Id. at 1021. The Ninth Circuit declined to do so because “[a]s currently drafted, the statute [was] incomprehensible to a person of ordinary intelligence,” and Arizona’s proposed narrowing construction was “not a readily apparent gloss on the statute’s language.” Id. at 1022 (internal quotations omitted).
The same is true here. Defendants’ implausible interpretation of the Executive Order— first adopted at oral argument on the preliminary injunction motion and later memorialized in the AG Memorandum—fails to remedy the Executive Order’s facial vagueness. The Court has already concluded that the Executive Order is “not reasonably susceptible to the new, narrow interpretation” defendants offer, which “‘requires rewriting, not just reinterpretation.’” Santa Clara, 2017 WL 1540981, at *2, 8 (quoting Stevens, 559 U.S. at 481).7
As a factual matter, the AG Memorandum, even if credited, offers defendants no aid. The AG Memorandum defines “sanctuary jurisdictions” as “jurisdictions that ‘willfully refuse to
7 Defendants cite Washington State Grange, 552 U.S. 442 (2008), but “Grange merely supports the approach to facial challenges which involves an examination of whether the terms of the statute itself ‘measured against the relevant constitutional doctrine, and independent of the constitutionality of particular applications, contain[ ] a constitutional infirmity that invalidates the statute in its entirety.’” Albuquerque, 667 F.3d at 1127. As the Court has already concluded, the Executive Order flunks that test.
23 COUNTY OF SANTA CLARA’S OPP. TO DEFS.’ MOTION TO DISMISS
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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comply with 8 U.S.C. 1373.’” AG Memorandum at 2. This clarifies nothing. As the Court
found in granting the preliminary injunction, defendants themselves “do[] not know what it
means to ‘willfully refuse to comply’ with Section 1373.” Santa Clara, 2017 WL 1540891, at
*25. The Secretary of Homeland Security is on record saying he “do[esn’t] have a clue” how to
define a “sanctuary city,” Dkt. 36-4, and the AG Memorandum provides no guidance beyond the
Executive Order’s vague text. Therefore, there is—and remains—“no clear standard from the
[federal] Government” that would allow jurisdictions to “avoid the Order’s defunding penalty.”
Santa Clara, 2017 WL 1540891, at *12.
Likewise, Section 9(a)’s Enforcement Provision, which the AG Memorandum entirely
ignores, remains as unconstitutionally vague as it was the day the Court ruled. “This expansive,
standardless language creates huge potential for arbitrary and discriminatory enforcement, leaving
the Attorney General to figure out what ‘appropriate enforcement action’ might entail and what
policies and practices might ‘hinder[] the enforcement of Federal law.’” Id. at *25. Because the
Administration remains unable to explain what sorts of punishments the Attorney General may
mete out, or what state and local governments would have to do to avoid such unspecified
punishment, the Enforcement Provision (still) violates the Fifth Amendment and must be struck down. See United States v. Williams, 553 U.S. 285, 304 (2008).8
4. The County has adequately pled its Fifth Amendment procedural due process claim.
In attempting to defeat the County’s procedural due process claim, defendants offer the
same “‘consistent with law’ bandage” that this Court rejected in its preliminary injunction order.
Santa Clara, 2017 WL 1459081, at *26; Mot. at 22. As this Court correctly recognized, Section
9(a) provides no process at all. Instead, the Attorney General and Secretary of Homeland
Security determine whether a state or local government is a “sanctuary jurisdiction” or “hinders
the enforcement of Federal law.” EO § 9(a). And after making either such finding, those
8 Defendants suggest that “[t]here is no indication that the Attorney General will take any unauthorized or inappropriate actions pursuant to [the Enforcement Provision] in Section 9(a).” Mot. at 21 (emphases added). But that is exactly the point—neither the Executive Order nor the AG Memorandum provides any clear standards for what “appropriate enforcement action” the Attorney General could take, EO§ 9(a), leaving jurisdictions subject to the broadest possible threat of reprisals and “seriously discriminatory enforcement.” Williams, 553 U.S. at 304.
24 COUNTY OF SANTA CLARA’S OPP. TO DEFS.’ MOTION TO DISMISS
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1 officials “shall” declare the jurisdiction “not eligible” for federal funds, and “shall” take

2 enforcement action. Id. A targeted state or local government receives no notice, no opportunity

3 to be heard before its fate is decided, and no right to appeal any adverse finding.

4

Defendants also argue that the County lacks a constitutionally protectable interest in the

5 federal funding threatened by the Executive Order because, under the AG Memorandum’s

6 implausible interpretation, the Order applies only to three DOJ grants. Mot. at 22. But, as

7 discussed in Section IV.A supra, the Court has already rejected that interpretation. In any event,

8 the County has a legitimate claim of entitlement to federal funds that Congress has already

9 appropriated and directed to local entities. See Doran v. Houle, 721 F.2d 1182, 1184–85 (9th Cir.

10 1983). Defendants fail to cite any authority supporting their argument that a party’s

11 constitutionally protected interest depends on the magnitude of the federal funding at stake.

12 V. 13

CONCLUSION Defendants—including the President, the Attorney General, and the Secretary of

14 Homeland Security—have made vastly different statements regarding the Executive Order’s

15 scope, intent, and application. These shifting statements reaffirm why this lawsuit must proceed

16 and why the Court’s preliminary injunction must be made permanent. The County relies on more

17 than $1 billion annually in federal and federally dependent funds to provide essential services to

18 1.9 million residents. Compl. ¶¶ 25, 27–45. On its face, the Executive Order puts those funds at

19 risk. The County cannot rely—and should not be forced to rely—on defendants’ malleable

20 interpretations of an unconstitutional Executive Order that is designed to coerce and ultimately

21 bludgeon the County into submission. To budget and govern, the County requires a definitive

22 judicial interpretation of the Executive Order and an order enjoining it on that basis. Having

23 already demonstrated its standing and likelihood of success on its claims, the County has perforce

24 demonstrated it has alleged facts sufficient to state a claim for relief. The Court should deny

25 defendants’ motion in its entirety.

26

27

28

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1 Dated: June 21, 2017 2

OFFICE OF THE COUNTY COUNSEL, COUNTY OF SANTA CLARA

3 4 5 6 7 8 9 10 Dated: June 21, 2017

By: /s/ James R. Williams JAMES R. WILLIAMS GRETA S. HANSEN L. JAVIER SERRANO DANIELLE L. GOLDSTEIN KAVITA NARAYAN JULIE WILENSKY JULIA B. SPIEGEL ADRIANA L. BENEDICT
Attorneys For Plaintiff COUNTY OF SANTA CLARA
KEKER, VAN NEST & PETERS LLP

11

By: /s/ John W. Keker

12

JOHN W. KEKER

ROBERT A. VAN NEST

13

DANIEL PURCELL

CODY S. HARRIS

14

NICHOLAS S. GOLDBERG

EDWARD A. BAYLEY 15

Attorneys For Plaintiff COUNTY OF

16

SANTA CLARA

17

18

19

20

21

22

23

24

25

26

27

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COUNTY OF SANTA CLARA’S OPP. TO DEFS.’ MOTION TO DISMISS Case No. 17-cv-00574-WHO

 
 Case 3:17-cv-00574-WHO Document 136 Filed 06/29/17 Page 1 of 28

1 CHAD A. READLER

Acting Assistant Attorney General
2 BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883
Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS (See signature page for parties represented.)

11
IN THE UNITED STATES DISTRICT COURT
12
FOR THE NORTHERN DISTRICT OF CALIFORNIA
13

14

SAN FRANCISCO DIVISION

15 CITY AND COUNTY OF SAN
FRANCISCO,

16

Plaintiff,

v.
17

18

DONALD J. TRUMP, et al., Defendants.

19

20

COUNTY OF SANTA CLARA, Plaintiff,

21

v.

REPLY IN SUPPORT OF DEFENDANTS’ MOTIONS TO DISMISS

Date: Time:

July 12, 2017 2:00 p.m.

No. 3:17-cv-00485-WHO

22 DONALD J. TRUMP, et al.,
Defendants.
23

No. 3:17-cv-00574-WHO

24 CITY OF RICHMOND,

Plaintiff,

25

v.

26 DONALD J. TRUMP, et al.,

27

Defendants.

No. 3:17-cv-01535-WHO

28

Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO

Case 3:17-cv-00574-WHO Document 136 Filed 06/29/17 Page 2 of 28

1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES ......................................................................................................... iii

4 INTRODUCTION .......................................................................................................................... 1

5 ARGUMENT .................................................................................................................................. 2

6

I. The AG Memorandum Is an Authoritative Statement on the Executive Order within the Executive Branch........................................................ 2

7

A. The AG Memorandum Is a Formal, Authoritative Statement..................... 2

8

B. The AG Memorandum Is Consistent With the

9

Executive Order .......................................................................................... 3

10

C. The AG Memorandum Carries Out Rather than Detracts from the Order’s Intended Effect ................................................................ 5

11

D. The Timing of the AG Memorandum Does Not

12

Undermine Its Authoritativeness................................................................. 6

13

II. Plaintiffs Lack Standing and Their Claims Are Unripe .......................................... 6

14

III. Plaintiffs Fail to State Any Viable Claim Regarding the Executive Order, Which Is an Internal Directive and

15

Does Not Necessarily Directly Affect the Plaintiffs ............................................... 9

16

IV. Plaintiffs Fail to State Any Viable Claim Regarding the Grant Eligibility Provision, as Elucidated by the AG Memorandum ............................. 10

17

A. Plaintiffs Must Establish that the Grant Eligibility Provision

18

Is Unconstitutional in All Applications .................................................... 11

19

B. Plaintiffs Fail to State a Viable Claim that the Grant Eligibility Provision Violates the Separation of Powers........................... 13

20

C. Plaintiffs Fail to State a Viable Claim that the Grant

21

Eligibility Provision Exceeds the Spending Power................................... 14

22

D. Richmond and San Francisco Fail to State a Viable Claim that the Grant Eligibility Provision Violates the Tenth Amendment ............... 16

23

E. Richmond and Santa Clara County Fail to State a Viable Claim

24

of Unconstitutional Vagueness under the Due Process Clause................. 17

25

F. Santa Clara County Fails to State a Viable Claim Regarding Procedural Due Process ........................................................... 18

26
G. Richmond Fails to State a Viable Claim

27

Under the Fourth Amendment .................................................................. 19

28

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1

V. Richmond and San Francisco Fail to State a Viable Claim for

Declaratory Relief Regarding Their Compliance with Section 1373 ................... 20

2

CONCLUSION ............................................................................................................................. 21

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

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20

21

22

23

24

25

26

27

28

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1

TABLE OF AUTHORITIES

2
CASES
3
4 Abel v. United States, 362 U.S. 217 (1960) .................................................................................. 20

5 Alphonsus v. Holder, 705 F.3d 1031 (9th Cir. 2013) ..................................................................... 17

6 Arizona v. United States, 567 U.S. 387 (2012) ................................................................................ 6

7 Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (1972) .......................................................... 19

8
Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal. May 19, 1995) ................. 9
9
City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015)..................................................................... 12
10

11

Cty. of Santa Clara v. Trump, ___ F. Supp. 3d ___, No. 17-CV-00485-WHO, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017) ............................................................................. 7

12
Doran v. Houle, 721 F.2d 1182 (9th Cir. 1983)............................................................................. 19

13

Fox-Quamme v. Health Net Health Plan of Or., Inc., No. 3:15-CV-01248-BR,

14

2016 WL 1724358 (D. Or. Apr. 29, 2016) ................................................................................ 20

15 Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) ........................................................................... 8

16
Gonzales v. Carhart, 550 U.S. 124 (2007) .................................................................................... 13
17
Heggestad v. Dep’t of Justice, 182 F. Supp. 2d 1 (D.D.C. 2000) .................................................... 3
18
19 Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133 (9th Cir. 2009) ..................... 17

20 Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir. 2014) .................................. 13

21 Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000) ................................................................. 16

22 Lanier v. City of Woodburn, 518 F.3d 1147 (9th Cir. 2008) ................................................... 11, 12

23 Legal Aid Soc’y of Alameda Cty. v. Brennan, 608 F.2d 1319 (9th Cir. 1979)................................. 9
24
Lindsey v. Tacoma-Pierce Cty. Health Dep’t, 195 F.3d 1065 (9th Cir. 1999) ................................ 4
25
La. Mun. Police Employees’ Ret. Sys. v. Wynn, 829 F.3d 1048 (9th Cir. 2016).............................. 7
26
27 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ............................................................. 15

28 Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138 (D.C. Cir. 2015) ..................................... 16

Reply: Motions to Dismiss

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1

Muhammad v. Berreth, No. C 12-02407 CRB, 2012 WL 4838427

2

(N.D. Cal. Oct. 10, 2012)........................................................................................................... 20

3
Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) .............................................................................. 7
4
New York v. United States, 505 U.S. 144 (1992) ........................................................................... 15
5
6 Planned Parenthood Ariz., Inc. v. Brnovich, 172 F. Supp. 3d 1075 (D. Ariz. 2016) ...................... 6

7 S. Dakota v. Dole, 483 U.S. 203 (1987)................................................................................... 11, 14

8 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ................................................. 7

9 United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976) .......................................................... 3

10 United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal. 2015) ..................................................... 9
11
United States v. Salerno, 481 U.S. 739 (1987) .............................................................. 1, 11, 17, 20
12
Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013)......................................................... 18
13
14 Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ........................ 17

15 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) ................................ 12

16 Williams v. Cty. of Alameda, 26 F. Supp. 3d 925 (N.D. Cal. 2014) ................................................ 6

17 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ................................................... 10 18

19 STATUTES

20 8 U.S.C. § 1103(a)(1) ................................................................................................................. 3, 14

21 8 U.S.C. § 1226 .............................................................................................................................. 20
22
8 U.S.C. § 1231 .............................................................................................................................. 20
23
28 U.S.C. § 512 ............................................................................................................................ 2, 3
24
28 U.S.C. § 516 ................................................................................................................................ 3
25

26 REGULATIONS

27
2 C.F.R. § 200.341 ......................................................................................................................... 19
28

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1 28 C.F.R. § 0.5(c)............................................................................................................... 1, 2, 3, 14

2 28 C.F.R. pt. 18 .............................................................................................................................. 19 3 4 EXECUTIVE ORDERS

5 Exec. Order No. 10,340, 17 Fed. Reg. 3139 (1952) ...................................................................... 10

6 Exec. Order No. 13,129, 64 Fed. Reg. 36,759 (1999) ................................................................... 10

7 Exec. Order No. 13,466, 73 Fed. Reg. 36,787 (2008) ................................................................... 10
8
Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (2017) ................................................. 4, 5, 11, 13, 15
9

10 OTHER AUTHORITIES

11 Mem. from Att’y Gen. for All Dep’t Grant-Making Components (May 22, 2017) ............... passim 12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

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1

INTRODUCTION

2

Plaintiffs devote much of their opposition briefs to attempting to undermine the Attorney

3 General’s Memorandum of May 22, 2017 (“AG Memorandum”). This is perhaps unsurprising

4 given the Memorandum’s conclusive effect. As an authoritative statement on the key provisions

5 of Executive Order 13,768, the AG Memorandum eliminates the supposed “budgetary uncer-

6 tainty” on which Plaintiffs primarily base their assertions of standing and ripeness. The AG

7 Memorandum also bolsters the conclusion that the Executive Order is consistent with the

8 Constitution.

9

Indeed, the AG Memorandum is authoritative because it is a formal statement by the

10 Cabinet official responsible for “[f]urnish[ing] advice and opinions . . . on legal matters to the

11 President and the Cabinet and to the heads of the executive departments and agencies of the

12 Government.”1 Every aspect of the AG Memorandum is supported by language in the Executive

13 Order, the goal of which is to establish a policy of faithful enforcement of federal immigration

14 law. Consistent with that purpose, the AG Memorandum clarifies that the grant eligibility

15 provision in Section 9(a) of the Order will be applied only where the Department of Justice and

16 the Department of Homeland Security are statutorily authorized to do so. In short, the Executive

17 Order and the AG Memorandum simply apply existing law.

18

Especially in light of the AG Memorandum, the Executive Order is consistent with the

19 constitutional Separation of Powers, the Spending Clause, the Tenth Amendment, and the other

20 constitutional provisions cited in Plaintiffs’ complaints. This is especially true given that Plain-

21 tiffs challenge the Order on its face, “the most difficult challenge to mount successfully.” In this

22 context, plaintiffs “must establish that no set of circumstances exists under which the [challenged

23 enactment] would be valid.”2 Plaintiffs cannot, however, show that the grant eligibility provision

24 would violate the Constitution in all of its applications. Nor have San Francisco or Richmond

25 identified a right of action to seek a judicial declaration that they comply with 8 U.S.C. § 1373.

26 Finally, there is no live controversy regarding whether they comply with that statute.

27

28

1 28 C.F.R. § 0.5(c).

2 United States v. Salerno, 481 U.S. 739, 745 (1987).

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1

Accordingly, Plaintiffs’ claims should be dismissed.

2
3
I.
4

ARGUMENT
The AG Memorandum Is an Authoritative Statement on the Executive Order within the Executive Branch

5

A. The AG Memorandum Is a Formal, Authoritative Statement

6

Plaintiffs attempt to equate the AG Memorandum with the representations of Defendants’

7 counsel at oral argument on the motions for preliminary injunction, asserting that the Memoran-

8 dum “merely reduces that same . . . argument to writing” (SC Opp. at 9; see Richmond Opp. at 9;

9 SF Opp. at 16). They also argue that the Court has already rejected the “reading” of the Execu-

10 tive Order conveyed in the AG Memorandum (SF Opp. at 16; Richmond Opp. at 8).

11

Plaintiffs fail to acknowledge, however, that the AG Memorandum and the representations

12 of counsel are fundamentally different. Counsel for Santa Clara County made this very point at

13 oral argument: “[W]ith all deference, what a Justice Department lawyer down the food chain

14 says, without a declaration, without an affidavit, without any binding effect, is not something that

15 you should consider . . . . I didn’t hear that Attorney General Sessions had signed off to this new

16 interpretation.” Tr. of Oral Arg. at 11:9-12, 46:1-3, City & Cnty. of San Francisco v. Trump, No.

17 3:17-cv-00485 (N.D. Cal. Apr. 14, 2017).

18

The AG Memorandum is far more than the representation of “a Justice Department lawyer

19 down the food chain.” Nor does it merely “repeat” counsel’s representations “in a written form,”

20 as might a letter from counsel (SC Opp. at 1; Richmond Opp. at 9).3 Rather, the AG Memoran-

21 dum is a formal, authoritative statement by a member of the President’s Cabinet, and the single

22 official ultimately responsible for “[f]urnish[ing] advice and opinions, formal and informal, on

23 legal matters to the President and the Cabinet and to the heads of the executive departments and

24 agencies of the Government.” 28 C.F.R. § 0.5(c); see 28 U.S.C. § 512 (Attorney General’s duty

25
3 Even if the AG Memorandum adopted the arguments of counsel in their entirety, its

26 independent legal authority would be unaffected. The fact that counsel have interpreted the

Executive Order consistent with subsequent formal guidance from the Attorney General does not
27 in any way undermine the legitimacy or authority of that guidance. In other words, the fact that

28

the Department of Justice has spoken consistently about the meaning and effect of Executive Order 13,768 is not a credible argument against the AG Memorandum.

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1 to advise executive department heads on “questions of law”). The Attorney General is the “chief

2 legal advisor” to the President, United States v. Ehrlichman, 546 F.2d 910, 925 (D.C. Cir. 1976),

3 and one of the two officials charged with implementing Section 9 of the Executive Order.

4 Moreover, the statute that sets forth the “powers and duties” of the Secretary of Homeland

5 Security – the other official charged with implementing Section 9 – provides that a

6 “determination and ruling by the Attorney General with respect to all questions of law shall be

7 controlling.” 8 U.S.C. § 1103(a)(1).4 Finally, the Attorney General is responsible for

8 representing almost all federal agencies in litigation, 28 U.S.C. § 516, such that any position

9 taken by an agency contrary to the Attorney General’s guidance may not be defended in

10 litigation.

11

Plaintiffs argue that 28 U.S.C. § 512 and 28 C.F.R. § 0.5(c) cannot apply here because the

12 Attorney General has delegated his authority thereunder to the Office of Legal Counsel (SF Opp.

13 at 18; Richmond Opp. at 11). But “it is well established that the head of an agency retains the

14 authority to make final decisions for the agency even if he or she delegates the authority to make

15 these decisions to his or her subordinates.” Heggestad v. Dep’t of Justice, 182 F. Supp. 2d 1, 9

16 (D.D.C. 2000). Plaintiffs also argue that these statutory and regulatory provisions do not apply

17 here because the AG Memorandum does not contain “legal analysis” (SF Opp. at 17; Richmond

18 Opp. at 11), but there is no indication in 28 U.S.C. § 512 or 28 C.F.R. § 0.5(c) that an opinion

19 thereunder must contain any particular kind of “analysis.”

20

B. The AG Memorandum Is Consistent With the Executive Order

21

Next, Plaintiffs argue that the AG Memorandum sets forth an “implausible interpretation”

22 or “reading” of the Executive Order (SC Opp. at 8; SF Opp. at 16) that “contradicts” the Order’s

23 “plain language” (Richmond Opp. at 2). To the contrary, the Attorney General’s statements on

24 the meaning and implementation of Section 9(a) are fully supported by the language of the Order.

25

26

4 The fact that 8 U.S.C. § 1103 is the statute that generally sets forth the Secretary’s
27 powers and duties belies plaintiffs’ assertion that the Attorney General’s authority relates only to

28

“interpreting the INA” or ruling on “a question of immigration law” (SC Opp. at 10; SF Opp. at 18).

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1

First, the AG Memorandum provides that the grant eligibility provision applies “solely to

2 federal grants administered by the Department of Justice or the Department of Homeland

3 Security, and not to other sources of federal funding.” AG Mem. at 1. This is based on the

4 President’s instruction that “the Attorney General and the Secretary, in their discretion and to the

5 extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8

6 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants.” Exec. Order No.

7 13,768, § 9(a), 82 Fed. Reg. 8,799 (Jan. 30, 2017) (emphasis added). If the President had

8 intended to apply that provision to all federal agencies or to all federal grants, he would have said

9 “all federal agencies, in their discretion and to the extent consistent with law,” or “not eligible to

10 receive any Federal grants,” respectively. Nor can it be assumed that the President intended the

11 Attorney General to enforce such a prohibition across all federal agencies; if that had been the

12 intent, there would have been no need to include the Secretary in the same sentence.

13

Further, the fact that Section 2(c) of the Order refers more generally to “Federal funds,”

14 whereas Section 9(a) refers to “Federal grants,” supports the Attorney General’s conclusion that

15 the grant eligibility provision applies only to the latter (SC Opp. at 9; Richmond Opp. at 16). If

16 the President had intended Section 9(a) to apply to all types of federal funding rather than only

17 grants, he would have repeated the term “Federal funds” in Section 9 rather than changing it to

18 “grants.” Cf. Lindsey v. Tacoma-Pierce Cty. Health Dep’t, 195 F.3d 1065, 1074 (9th Cir. 1999)

19 (referring to “basic principle of statutory construction that different words in the same statute

20 must be given different meanings”).

21

Second, the AG Memorandum provides that the Department of Justice (“DOJ”) will

22 require jurisdictions applying for certain DOJ-administered grants “to certify their compliance

23 with federal law, including 8 U.S.C. § 1373,” but only where the agency is “statutorily authorized

24 to impose such a condition.” AG Mem. at 2. This is based on the President’s instruction that

25 compliance with Section 1373 be imposed as a grant condition “to the extent consistent with

26 law.” Exec. Order No. 13,768, § 9(a). That phrase would have been unnecessary – and self-

27 defeating – if the President had intended to impose a grant condition without regard to existing

28 law. Moreover, although the Order does not expressly authorize the Attorney General and the

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1 Secretary to require certification of compliance, that method of “ensuring” non-payment of grant

2 funds to non-compliant jurisdictions is logical and certainly within the “discretion” conferred by

3 the Order.5

4

Third, the AG Memorandum states that “[a]ll grantees will receive notice of their

5 obligation to comply with section 1373.” AG Mem. at 2. This language, too, is based on the

6 instruction to impose this grant condition “to the extent consistent with law.” Exec. Order No.

7 13,768, § 9(a). That phrase would have been superfluous if the President had wanted the

8 Attorney General and the Secretary to disregard the well-established procedures of federal grant-

9 making.6

10

C. The AG Memorandum Carries Out Rather than Detracts

11

from the Order’s Intended Effect

12

Further, Plaintiffs contend that the Court must not credit the AG Memorandum because a

13 directive “merely . . . to exercise authority conferred by other laws” would be without “legal

14 force” (SF Opp. at 1, 17; see Richmond Opp. at 8). In Plaintiffs’ view, an Executive Order that

15 instructs federal agencies to carry out their responsibilities under existing law would be

16 “meaningless” (SC Opp. at 9).

17

Far from it. Executive Order 13,768 was necessary precisely because the Federal

18 Government previously had failed to “exercise authority conferred by other laws.” As stated in

19 the Order itself, federal agencies had “failed to discharge” their responsibilities under the

20 immigration laws “to ensure the removal of aliens who have no right to be in the United States.”

21 Exec. Order No. 13,768, § 1. Thus, the express purpose of the Order is to “direct executive

22 departments and agencies . . . to employ all lawful means to enforce the immigration laws of the

23

5 Santa Clara County asserts that the AG Memorandum is contradicted by the Attorney

24

General’s statement that DOJ will “take all lawful steps to claw back any funds awarded to a jurisdiction that willfully violates 1373” (SC Opp. at 10; SF Dkt. No. 116-3 at 3). But a grantee’s

25 false certification of compliance with Section 1373 would constitute violation of the grant
conditions, potentially requiring a return of funds.

26

6 Nor does the AG Memorandum contradict Section 9(c) of the Order (SC Opp. at 9). The

President can direct the Office of Management and Budget to gather and disseminate information
27 regarding recipients of all federal grants for possible later attention or to affect public perception

28

and opinion, while directing specific agencies to use their discretion to impose conditions on certain federal grants, where statutorily authorized.

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1 United States.” Id. In other words, the Order reversed the policy of prior administrations and,

2 among other things, established a policy of “ensur[ing], to the fullest extent of the law, that a

3 State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373” and other federal

4 statutes. Id. § 9; see Arizona v. United States, 567 U.S. 387, 446 (2012) (noting that

5 “immigration enforcement priorities . . . change from administration to administration”).

6

Accordingly, the AG Memorandum effectuates the intent of the Executive Order – that is,

7 to direct agencies to exercise existing legal authorities – rather than “abandon[ing]” the Order (SF

8 Opp. at 1).

9

D. The Timing of the AG Memorandum Does Not

10

Undermine Its Authoritativeness

11

Lastly, Plaintiffs attack the authoritativeness of the AG Memorandum on the basis that it

12 was issued in the course of litigation and allegedly at the “last minute” (SF Opp. at 4, 19; SC

13 Opp. at 4, 12). But the timing of the Memorandum is irrelevant. The fact that it was issued

14 during the course of litigation is attributable to the premature timing of this litigation, not to the

15 Attorney General’s timing. The President signed the Executive Order on January 25, 2017, and

16 the first plaintiff – San Francisco – filed its original complaint six days later, on January 31. The

17 Order required the Attorney General to take various actions to implement Section 9(a), and, as

18 Defendants indicated in response to Plaintiffs’ motions for preliminary injunctions and in the

19 hearing on those motions, those actions had not yet been completed at the time of the hearing.

20 The fact that the Attorney General took action during the course of this ongoing litigation, in the

21 form of the AG Memorandum, does nothing to detract from the authoritativeness of the

22 Memorandum.

23 II. Plaintiffs Lack Standing and Their Claims Are Unripe

24

Especially in light of the AG Memorandum, Plaintiffs have not satisfied their burden to

25 establish the justiciability of their claims.7 See Planned Parenthood Ariz., Inc. v. Brnovich, 172

26

7 San Francisco faults the Defendants (SF Opp. at 5 n.1) for incorporating arguments

made in Defendants’ Motion for Reconsideration or, in the Alternative, Clarification of the
27 Court’s Order of April 25, 2017, which is currently pending before the Court (SF Dkt. No. 107).

28

The authority on which the City relies, which criticizes the incorporation of arguments made in connection with “a motion that is not before the Court,” Williams v. Cty. of Alameda, 26

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1 F. Supp. 3d 1075, 1085 (D. Ariz. 2016) (“The plaintiff bears the burden of establishing the

2 existence of a justiciable case or controversy, and must demonstrate standing for each claim he

3 seeks to press and for each form of relief that is sought.”) (internal quotation marks omitted). As

4 San Francisco concedes, “Defendants have not . . . officially declared San Francisco a ‘sanctuary

5 jurisdiction,’ withheld any funds pursuant to the [grant eligibility provision], or initiated other

6 enforcement action against San Francisco” (SF Opp. at 6). Those concessions are fatal, and they

7 are true of all three plaintiffs in these cases.

8

The AG Memorandum confirms that Plaintiffs’ claims are non-justiciable under these

9 circumstances. The alleged “budgetary uncertainty” on which Plaintiffs primarily base their

10 assertions of present concrete injury, Cty. of Santa Clara v. Trump, ___ F. Supp. 3d ___, No. 17-

11 CV-00485-WHO, 2017 WL 1459081, at *17-19 (N.D. Cal. Apr. 25, 2017), evaporates because

12 (1) the grant eligibility provision will be applied only to grants administered by DOJ and the

13 Department of Homeland Security (“DHS”) where the agency has authority to require compliance

14 with 8 U.S.C. § 1373, and (2) grant applicants will receive notice of their obligation to comply

15 with the statute. See AG Mem. at 1-2. These facts also eliminate any concern that Plaintiffs will

16 be “force[d] to change [their] policies” (Richmond Opp. at 6; see SC Opp. at 11, 15; SF Opp. at

17 6).8

18

Further, the Executive Order – especially as elucidated by the AG Memorandum – does

19 not “require jurisdictions to comply with detainer requests or face loss of federal funds and other

20

21 F. Supp. 3d 925, 947 (N.D. Cal. 2014), does not apply here, since the motion for reconsideration
is “before the Court.”

22

8 Although Richmond implies that the Court need only consider the allegations in its

complaint (Richmond Opp. at 14-20), the AG Memorandum should be considered in relation to
23 both lack of jurisdiction and failure to state a claim. For example, since a motion under Rule

24

12(b)(6) “tests the legal sufficiency” of a complaint, Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001), the Court should consider outside legal authorities, such as case law, regulations, and

25 the AG Memorandum, that bear upon that issue. The Court should also consider the AG
Memorandum under judicial notice, if necessary. See La. Mun. Police Employees' Ret. Sys. v.

26 Wynn, 829 F.3d 1048, 1063 (9th Cir. 2016) (“The Supreme Court has instructed that courts ruling

on a motion to dismiss ‘must consider the complaint in its entirety, as well as other sources courts
27 ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents

28

incorporated into the complaint by reference, and matters of which a court may take judicial notice.’”) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)).

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1 enforcement action” (SF Opp. at 7). The AG Memorandum specifies that application of the grant

2 eligibility provision will turn on compliance with 8 U.S.C. § 1373, which relates only to the

3 sharing of information. See AG Mem. at 2. In any event, the Government recently confirmed its

4 position that immigration detainer requests are “voluntary.” See Br. of the United States as

5 Amicus Curiae at 22, Mass. v. Lunn, No. SJC-12276, 2017 WL 1240651, at *22 (D. Mass. Mar.

6 27, 2017); see also Galarza v. Szalczyk, 745 F.3d 634, 639-42 (3d Cir. 2014) (rejecting contention

7 that immigration detainers are mandatory). San Francisco and San Clara County argue that that

8 confirmation is contradicted by a statement in which they claim the Attorney General said that

9 “failure to comply with detainer requests violates federal law and will render jurisdictions

10 ineligible for DOJ grants under Section 1373” (SF Opp. at 7 n.3). But that is an inaccurate

11 characterization of the Attorney General’s remarks. Although he said that refusing to comply

12 with detainer requests “frustrate[s] [the] enforcement of immigration laws” and that “jurisdictions

13 seeking or applying for Department of Justice grants [would be required] to certify compliance

14 with 1373,” he did not say that non-compliance with detainer requests would constitute non-

15 compliance with Section 1373 (Dkt. 116-3, Ex. C).

16

Finally, San Francisco and Santa Clara County have not established the justiciability of

17 their challenge to the “appropriate enforcement action” provision in Section 9(a). The Defen-

18 dants have taken no enforcement action against the Plaintiffs under that provision, and there is no

19 indication that any such action is imminent. In response, San Francisco cites a few general state-

20 ments about sanctuary policies in general and the City’s policies in particular – including a

21 statement by a member of Congress (SF Opp. at 8-9). But those statements do not indicate that

22 any “enforcement action” against the City under Section 9(a) is imminent. In any event, if the

23 United States were to initiate any judicial action against one of the Plaintiffs outside of Section

24 9(a), the defendant municipality would have an opportunity at that time to challenge the propriety

25 and merits of the action.

26

27

28

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1 III. 2

Plaintiffs Fail to State Any Viable Claim Regarding the Executive Order, Which Is an Internal Directive and Does Not Necessarily Directly Affect the Plaintiffs

3

Assuming Plaintiffs could show the justiciability of their claims, all of the claims

4 challenging Executive Order 13,768 should be dismissed because the Order only directs internal

5 Executive Branch policy and does not directly affect the Plaintiffs absent a finding that they have

6 violated Section 1373. See Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023, at *5

7 (N.D. Cal. May 19, 1995), aff’d sub nom. Chen v. INS, 95 F.3d 801 (9th Cir. 1996); Legal Aid

8 Soc’y of Alameda Cty. v. Brennan, 608 F.2d 1319, 1330 n.14 (9th Cir. 1979); see also United

9 States v. Pickard, 100 F. Supp. 3d 981, 1011 (E.D. Cal. 2015). San Francisco and Santa Clara

10 County attempt to distinguish Chen and Legal Aid Society of Alameda County on the basis that

11 those cases dealt with whether certain executive orders “create[d] [a] private right of action that

12 can be enforced in court,” whereas the Plaintiffs here challenge an executive order (SF Opp. at

13 13-14; see SC Opp. at 16). But both conclusions proceed from the same rationale: In each

14 situation, the order is “merely an internal directive from the President to [certain Cabinet

15 officials], instructing them to exercise their statutory authority.” Chen, 1995 WL 317023, at *6.

16 If there is no private right of action to enforce an internal directive, then there cannot possibly be

17 a private right of action to challenge it, either.9

18

Richmond argues that Executive Order 13,768 “contains no language suggesting it was

19 intended to be merely an internal directive” (Richmond Opp. at 11). Yet all of the Order’s

20 mandates are directed at federal officials. Section 4 – the first section after the provisions on

21 policy and definitions – “direct[s] agencies to employ all lawful means to ensure the faithful

22 execution of the immigration laws of the United States against all removable aliens.” Section 9

23 sets forth instructions to the Attorney General, the Secretary of Homeland Security, and the

24 Director of the Office of Management and Budget. Except for statements of purpose, policy, and

25 the general construction of the Order (Sections 3 and 18), every section and subsection sets forth

26

9 San Francisco also seeks to distinguish United States v. Pickard, 100 F. Supp. 3d 981
27 (E.D. Cal. 2015). Plaintiff recognizes, however, that the court in Pickard rejected a challenge to

28

an internal memorandum that “described . . . enforcement priorities” (SF Opp. at 14 n.5). Like that memorandum, the Executive Order here sets forth “enforcement priorities.”

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1 instructions to one or more federal officials. In sharp contrast to Executive Order 13,768, other

2 orders have contained more than internal directives. One example is Executive Order 13,129,

3 which prohibited “any transaction or dealing by United States persons . . . in property or interests

4 in property” of the Taliban. 64 Fed. Reg. 36,759, § 2(a) (1999). Another example is Executive

5 Order 13,466, which provided that “United States persons may not register a vessel in North

6 Korea . . . or own, lease, operate, or insure any vessel flagged by North Korea.” 73 Fed. Reg.

7 36,787, § 2 (2008). Unlike the Executive Order involved here, those Orders were not merely

8 internal directives.

9

Finally, San Francisco argues that Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

10 (1952), supports this challenge to Executive Order 13,768 because the order struck down there

11 “was similarly framed as a directive to an Executive Branch official” (SF Opp. at 13). But the

12 executive order involved in Youngstown necessarily affected the plaintiffs in that case very

13 directly, in contrast to the Order involved here. There, the President directed the Secretary of

14 Commerce to seize the facilities of certain named companies, including those of the plaintiffs.

15 See Exec. Order No. 10,340, § 1, 17 Fed. Reg. 3139 (1952). Here, in contrast, the Order only

16 directs the Attorney General and the Secretary to focus on certain aspects of their existing

17 authorities.

18 IV. 19

Plaintiffs Fail to State Any Viable Claim Regarding the Grant Eligibility Provision, as Elucidated by the AG Memorandum

20

All three of the Plaintiffs challenge the grant eligibility provision under the Separation of

21 Powers and the Spending Clause (although Santa Clara County argues Spending Clause

22 principles only in the context of its Separation of Powers claim). San Francisco and Richmond

23 allege that the grant eligibility provision violates the Tenth Amendment. Santa Clara County and

24 Richmond allege that the provision is unconstitutionally vague under the Due Process Clause.

25 Finally, the County also makes a procedural due process claim, and Richmond also makes a

26 Fourth Amendment claim. All of these challenges are without merit, especially in light of the AG

27 Memorandum and the high standard for facial challenges.

28

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1

A. Plaintiffs Must Establish that the Grant Eligibility Provision

2

Is Unconstitutional in All Applications

All of Plaintiffs’ claims against the grant eligibility provision challenge its facial
3

constitutionality. As the Supreme Court has said, a facial challenge is “the most difficult
4

challenge to mount successfully”; in this context, “the challenger must establish that no set of
5

circumstances exists under which the [challenged enactment] would be valid.” United States v.
6

Salerno, 481 U.S. 739, 745 (1987). Plaintiffs argue that the Salerno principle does not apply here
7

(SF Opp. at 20-21; SC Opp. at 18-19), but this case fits comfortably within Salerno.
8

In Salerno itself, for example, the plaintiffs alleged, among other things, that the Bail
9

Reform Act’s procedures for determining whether to impose pretrial detention violated the Due
10

Process Clause on their face. 481 U.S. at 742, 751-52. The Court rejected that challenge, noting
11

that “to sustain [the procedures] against such a challenge, we need only find them adequate to
12

authorize the pretrial detention of at least some persons charged with crimes, whether or not they
13

might be insufficient in some particular circumstances.” Id. at 751 (citation and internal
14

quotation marks omitted). Applying that standard here, this Court should reject Plaintiffs’ facial
15

challenges because the grant eligibility provision can be applied constitutionally to “at least some
16

[jurisdictions]” that “willfully refuse to comply with 8 U.S.C. 1373,” Exec. Order No. 13,768,
17

§ 9(a). For example, especially in light of the AG Memorandum, there will be “at least some”
18

instances in which the agency has statutory authority to require certification of compliance with
19

Section 1373, the applicant or grantee is aware of the certification requirement beforehand,
20

compliance with Section 1373 is germane to the purposes of the particular grant, and requiring
21

such certification does not violate any “independent [constitutional] bar.” See S. Dakota v. Dole,
22

483 U.S. 203, 207-08 (1987).
23

The Court of Appeals applied Salerno to reject a facial challenge in Lanier v. City of
24

Woodburn, 518 F.3d 1147 (9th Cir. 2008). There, an applicant for a position at a public library
25

alleged that defendant’s policy requiring pre-employment drug testing violated the Fourth
26

Amendment on its face. Id. at 1149. Plaintiff argued “that there [was] no set of circumstances
27

under which the City’s policy would be constitutional as applied to every applicant for all jobs.”
28

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1 Id. at 1150. The court rejected that argument, holding that “a policy of general applicability is

2 facially valid unless it can never be applied in a constitutional manner. . . . As [there is] no

3 concrete reason why [defendant’s] policy could not constitutionally be applied to jobs that, for

4 example, require the operation of dangerous equipment,” the court continued, “we cannot say that

5 the policy is invalid on its face.” Id. Lanier reflects that Salerno means exactly what it says: A

6 plaintiff challenging the facial constitutionality of an enactment must establish that no set of

7 circumstances exists under which the enactment could be applied constitutionally.

8

San Francisco and Santa Clara County argue that City of Los Angeles v. Patel, 135 S. Ct.

9 2443 (2015), forecloses applying Salerno here (SF Opp. at 21; SC Opp. at 19). Patel, however,

10 involved a situation different from this case. The plaintiffs there brought a facial Fourth Amend-

11 ment challenge to a city ordinance that required hotel operators to allow law enforcement officers

12 to examine information about their guests on demand. 135 S. Ct. at 2447-48. The City argued

13 that plaintiffs’ challenge necessarily failed Salerno because some of the examinations (i.e., Fourth

14 Amendment searches) would be supported by consent, presentation of a warrant, or exigent

15 circumstances. Id. at 2450-51. The Court rejected that argument, holding that Salerno asks

16 whether the challenged enactment “’is unconstitutional in all of its applications’” – that is, in

17 those situations where the enactment must actually be applied. Id. at 2451 (quoting Wash. State

18 Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)) (emphasis added).

19

The Plaintiffs here argue that Patel forecloses applying Salerno given “the existence of

20 other laws that might allow Defendants to condition specific grants on compliance with Section

21 1373” (SF Opp. at 21; see SC Opp. at 19). But this is fundamentally different from the facts in

22 Patel. Here, the challenged Order, especially as elucidated by the AG Memorandum, directs the

23 Attorney General and the Secretary to condition grants on compliance with Section 1373 only

24 where authorized by statute. In Patel, however, the ordinance required hotel operators to make

25 their records available under all circumstances, not only where independent legal bases existed to

26 require their availability. Plaintiffs’ argument would foreclose applying Salerno to any enactment

27 directing officials to apply existing law.

28

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1

Santa Clara County also argues that applying Salerno here would be inconsistent with the

2 Court of Appeals’ decision in Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir.

3 2014). Jackson, also, is readily distinguishable from this case. There, plaintiffs brought a facial

4 Second Amendment challenge to an ordinance that required handguns in a residence to be either

5 stored in a locked container, disabled with a trigger lock, or carried by an adult. Id. at 958.

6 Defendant argued that the facial challenge was inappropriate because plaintiffs had conceded that

7 “locked storage is appropriate in some circumstances, such as when it is foreseeable that a child

8 would otherwise gain possession of a firearm.” Id. at 961. The court rejected that argument

9 because the case did not fall within the rationales for the Supreme Court’s jurisprudence on facial

10 challenges: Specifically, the challenged ordinance was “not an example of ‘complex and

11 comprehensive legislation’ which may be constitutional in a broad swath of cases”; and the

12 constitutionality of the ordinance would not “turn on how San Francisco chooses to enforce it.”

13 Id. at 962 (quoting Gonzales v. Carhart, 550 U.S. 124, 168 (2007)).

14

In contrast, Executive Order 13,768 does fall within those rationales. The Order requires

15 DOJ and DHS to require certification of compliance with Section 1373 where it has authority to

16 do so. Such authority may exist in relation to a “broad swath” of grant programs, and any

17 disappointed applicant or grantee could bring an as-applied challenge in any particular case where

18 one of the agencies applies the grant eligibility provision. Thus, the Ninth Circuit’s decision in

19 Jackson does not undercut the application of Salerno here.

20

B. Plaintiffs Fail to State a Viable Claim that the Grant

Eligibility Provision Violates the Separation of Powers
21

As noted earlier, all three plaintiffs allege that the grant eligibility provision violates the
22

constitutional Separation of Powers. However, the Executive Order requires the Attorney
23

General and the Secretary to condition grant eligibility on compliance with 8 U.S.C. § 1373 “to
24

the extent consistent with law,” Exec. Order No. 13,768, § 9(a), and the AG Memorandum
25

confirms that compliance with Section 1373 will be imposed as a condition of grant eligibility
26

only where the agency “is statutorily authorized to impose such a condition.” AG Mem. at 2.
27

This should eliminate any facial Separation of Powers concerns, especially under Salerno.
28

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1

In response to these points, Santa Clara County asserts that the AG Memorandum does not

2 apply to the Department of Homeland Security’s application of the grant eligibility provision (SC

3 Opp. at 22).10 As discussed above, however, the Attorney General is responsible for “[f]urnish-

4 [ing] advice and opinions, formal and informal, on legal matters to the President and the Cabinet

5 and to the heads of the executive departments and agencies of the Government” – including the

6 Secretary of Homeland Security. 28 C.F.R. § 0.5(c). Also, the statute establishing the Secre-

7 tary’s “powers and duties” related to immigration enforcement provides that a “determination and

8 ruling by the Attorney General with respect to all questions of law shall be controlling.” 8 U.S.C.

9 § 1103(a)(1). In any event, the Executive Order itself provides that compliance with Section

10 1373 shall be imposed as a grant condition only “to the extent consistent with law,” and an action

11 taken without authority would not be “consistent with law.”

12

C. Plaintiffs Fail to State a Viable Claim that the Grant

13

Eligibility Provision Exceeds the Spending Power

14

All three plaintiffs also allege that the grant eligibility provision violates the Spending

15 Clause, or that it would violate the Spending Clause if enacted by Congress. Especially in light of

16 the AG Memorandum, the grant eligibility provision states its requirements “unambiguously”;

17 applicants and grantees will “exercise their choice knowingly, cognizant of the consequences of

18 their participation” by choosing whether to certify compliance with Section 1373, which is related

19 to at least some grant programs; the provision’s “financial inducement” is not “so coercive” as to

20 constitute “compulsion”; and “other constitutional provisions” do not provide an “independent

21 bar.” S. Dakota v. Dole, 483 U.S. 203, 207-8, 211 (1987). The fact that these are facial chal-

22 lenges is especially relevant to this claim, as Plaintiffs cannot show that the condition imposed

23 pursuant to the grant eligibility provision is unrelated to all DOJ and DHS grants, that imposition

24

25
10 Richmond quotes at length from this Court’s discussion of the Separation of Powers

26 claims in ruling on the motions for preliminary injunction (Richmond Opp. a 16-17). But that

ruling was made before issuance of the AG Memorandum, and, in any event, a court’s finding on
27 the probability of success under a motion for preliminary injunction is not a final ruling on the

28

merits. Also, Defendants have asked the Court to reconsider its ruling on the motions for preliminary injunction.

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1 of that condition will necessarily constitute compulsion, or that all potential applications of the

2 condition will be constitutionally barred.

3

In response, San Francisco argues that the AG Memorandum does not settle the meaning

4 of “sanctuary jurisdictions” because “the Executive Order gives the Secretary – not the Attorney

5 General – the authority and discretion to designate sanctuary jurisdictions” (SF Opp. at 23).

6 However, this argument confuses the elucidation of that term with the responsibility to designate

7 individual jurisdictions. The Order gives the Secretary “the authority to designate, in his discre-

8 tion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.” Exec. Order

9 No. 13,768, § 9(a). But the AG Memorandum does not “designate” any sanctuary jurisdictions; it

10 only clarifies what the Order says about the meaning of the term – that is, that it “will refer only

11 to jurisdictions that ‘willfully refuse to comply with 8 U.S.C. 1373.’” AG Mem. at 2. And the

12 Memorandum makes clear that the Secretary was consulted on that issue.

13

San Francisco also argues that the AG Memorandum “does not limit application of the

14 Executive Order to funds related to immigration enforcement, as required to satisfy the nexus

15 requirement” (SF Opp. at 24). The “relatedness” factor of Dole cannot fairly be called a nexus

16 “requirement,” however. As the Court of Appeals has said, “This possible ground for invalidat-

17 ing a Spending Clause statute, which only suggests that the legislation might be illegitimate

18 without demonstrating a nexus between the conditions and a specified national interest, is a far

19 cry from imposing an exacting standard for relatedness.” Mayweathers v. Newland, 314 F.3d

20 1062, 1067 (9th Cir. 2002).11 Thus, conditions on federal funding must only “bear some rela-

21 tionship to the purpose of the federal spending.” Id. (quoting New York v. United States, 505 U.S.

22 144, 167 (1992)). Especially in light of Salerno and the AG Memorandum, the grant eligibility

23 provision easily meets this standard. The provision will be applied, “to the extent consistent with

24 law,” only to certain grants administered by DOJ and DHS, which are, respectively, the primary

25 federal law enforcement agency and the agency responsible for the admission and removal of

26 non-citizens (and the very agency whose communication with state and local government

27

28

11 Defendants’ motions to dismiss quoted Mayweathers, but the parties’ opposition briefs ignore it.

Reply: Motions to Dismiss

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1 officials is protected by Section 1373). Any alleged departure from this aspect of Dole could be

2 raised in an as-applied challenge.

3

Lastly, Santa Clara County argues that the AG Memorandum does not eliminate

4 coerciveness concerns because it “fails to identify which DHS grants are at issue, and the County

5 relies on DHS grants for [almost] two-thirds of its Office of Emergency Services budget,”

6 amounting to “more than $5 million” for Fiscal Year 2016 (SC Opp. at 21; SC Complaint ¶ 42).

7 This, however, does not state a viable claim for violation of the Spending Clause, especially on a

8 facial challenge. The County alleges that its annual budget is approximately $6 billion (id. ¶ 27),

9 so the alleged DHS grants for the Office of Emergency Services amount to approximately .083

10 percent of the County’s overall budget. By contrast, the Eighth Circuit has held that a State’s

11 potential loss of “approximately $250 million or 12 per cent. of the annual state education

12 budget” would not constitute coercion under Dole, see Jim C. v. United States, 235 F.3d 1079,

13 1082 (8th Cir. 2000), and the D.C. Circuit has held that a State’s risk of losing something less

14 than 4% of its overall budget in the form of federal highway funds would not be unconstitu-

15 tionally coercive, see Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138, 178 (D.C. Cir.

16 2015). Either of those potential losses may have amounted to a large proportion of one office’s

17 budget.

18

D. Richmond and San Francisco Fail to State a Viable Claim that the

Grant Eligibility Provision Violates the Tenth Amendment
19

San Francisco and Richmond allege that the grant eligibility provision violates the Tenth

20

Amendment. This provision should cause no concern under the Tenth Amendment, since a

21

grantee’s obligation to comply with Section 1373 would arise only because of its voluntary

22

acceptance of a grant that includes the condition, and a jurisdiction can simply decline to apply

23

for such a grant. San Francisco argues that the AG Memorandum does not eliminate this concern

24

because there is still a threat that the grant eligibility provision might be used to require jurisdic-

25

tions to comply with immigration detainer requests (SF Opp. at 24-25). As noted earlier,

26

however, the AG Memorandum makes clear that application of the grant eligibility provision will

27

turn on compliance with 8 U.S.C. § 1373, which relates only to the sharing of information. See

28

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1 AG Mem. at 2. Even if that were not the case, a jurisdiction could avoid any concern about being

2 “commandeered” by declining to apply for a covered grant.

3

Moreover, even if the grant eligibility provision were somehow seen as related to detainer

4 requests, the claim would also fail under Salerno. Some jurisdictions believe that federal detainer

5 requests are appropriate and voluntarily choose to comply with them. Those jurisdictions are

6 obviously not being “commandeered” in violation of the Tenth Amendment. Therefore, if the

7 potential for being compelled to comply with such requests is the basis of Plaintiffs’ facial Tenth

8 Amendment claim, the claim must be dismissed because they cannot establish that the grant

9 eligibility provision would violate the Tenth Amendment in all its applications. See Salerno, 481

10 U.S. at 745 (facial challenge must establish that “no set of circumstances exists under which [the

11 enactment] would be valid”).

12

E. Richmond and Santa Clara County Fail to State a Viable Claim of

13

Unconstitutional Vagueness under the Due Process Clause

14

Richmond and Santa Clara County allege that the grant eligibility provision is

15 unconstitutionally vague under the Due Process Clause of the Fifth Amendment.12 This is an

16 especially difficult challenge to mount facially. “Outside the First Amendment context, a plaintiff

17 alleging facial vagueness must show that the enactment is impermissibly vague in all its

18 applications.” Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133, 1146 (9th Cir.

19 2009) (internal quotation marks omitted). The plaintiff “’must prove that the enactment is vague

20 not in the sense that it requires a person to conform his conduct to an imprecise but comprehen-

21 sible normative standard, but rather in the sense that no standard of conduct is specified at all.’

22 Put another way, [the challenger] must demonstrate that the ‘provision simply has no core.’”

23 Alphonsus v. Holder, 705 F.3d 1031, 1042 (9th Cir. 2013) (quoting Vill. of Hoffman Estates v.

24 Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982)). The AG Memorandum should

25 eliminate any concern under these standards. Furthermore, as discussed in Part III above, the

26

12 Santa Clara County’s complaint also alleges that Section 6 of the Executive Order is
27 unconstitutionally vague (SC Dkt. No. 1 ¶ 141). For the reasons stated in Defendants’ motion,

28

any such claim should be dismissed (SC Dkt. No. 115 at 19-21 & n.6). The County’s opposition does not mention Section 6.

Reply: Motions to Dismiss

17

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1 Executive Order is an internal directive to Executive Branch officials; thus, there can be no

2 legitimate question as to whether it provides a “standard of conduct” for the plaintiffs.

3

Relying on Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013), Plaintiffs argue

4 that Defendants cannot “cure a facially unconstitutional statute by adopting an unreasonable

5 narrowing interpretation” (SC Opp. at 23; see Richmond Opp. at 20). As discussed above,

6 however, the AG Memorandum is fully consistent with the Executive Order. For example, the

7 limitation to federal grants rather than other types of funding is reflected in the President’s use of

8 “Federal funds” in Section 2 of the Order but “Federal grants” in Section 9(a); the limitation to

9 DOJ and DHS grants is reflected in the President’s references to the Attorney General and the

10 Secretary in Section 9(a); and implementing Section 9(a) by requiring grantees to certify

11 compliance with Section 1373 is based on the President’s conferral of “discretion” on the

12 Attorney General and Secretary regarding the means of implementing the grant eligibility

13 provision and his instruction to do so “consistent with law.”

14

Further, in any event, Valle del Sol is very different from this case. There, a state criminal

15 law prohibited anyone “who is in violation of a criminal offense” from taking certain action, and

16 plaintiffs brought a vagueness challenge focused on the phrase “in violation of a criminal

17 offense.” 732 F.3d at 1019. The State asserted that the phrase should be understood as meaning

18 “in violation of a law or statute,” but the court rejected that assertion, finding that the State was

19 proposing “not to adopt a narrowing construction, but rather to replace a nonsensical statutory

20 element with a different element.” Id. at 1021. That is far from the situation here. No one could

21 argue that the grant eligibility provision is “nonsensical.” The AG Memorandum merely clarifies

22 certain elements that could be understood variously – and in ways that perfectly accord with the

23 Order itself, as discussed above. Thus, Valle del Sol does not support Plaintiffs’ vagueness claim.

24

F. Santa Clara County Fails to State a Viable Claim

25

Regarding Procedural Due Process

26

Santa Clara County also alleges that the grant eligibility provision violates procedural due

27 process under the Fifth Amendment. Especially in light of the AG Memorandum, the County

28 does not have a protectable property interest in any grant funds to which the eligibility provision

Reply: Motions to Dismiss

18

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Case 3:17-cv-00574-WHO Document 136 Filed 06/29/17 Page 25 of 28

1 might apply, and, in any event, the applicable grant-making procedures would provide any

2 “process” that is due. Aside from whether the County might have a “legitimate claim of

3 entitlement” to certain kinds of federal funding, such as Medicaid reimbursements, the County

4 certainly does not have such a claim to discretionary grant funds provided by DOJ and DHS. See

5 Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). In any event, by specifying that

6 the grant eligibility provision be implemented “consistent with law,” Section 9(a) incorporates the

7 applicable procedural requirements for making or revoking federal grants. See, e.g., 2 C.F.R.

8 § 200.341 (hearings and appeals in federal grant-making); 28 C.F.R. pt. 18 (DOJ Office of Justice

9 Programs Hearing and Appeal Procedures).

10

In response, the County relies primarily on this Court’s ruling on Plaintiff’s motion for

11 preliminary injunction (SC Opp. at 24-25). But that ruling was made without the benefit of the

12 AG Memorandum, and Defendants have asked the Court to reconsider it. The County also cites

13 Doran v. Houle, 721 F.2d 1182 (9th Cir. 1983), for the proposition that it has a legitimate claim

14 of entitlement to “federal funds that Congress has already appropriated and directed to local

15 entities” (SC Opp. at 25). But that case addressed whether veterinarians had a property interest in

16 permits to perform a certain diagnostic test, 721 F.2d at 1183-84, not whether a jurisdiction might

17 have a property interest in “federal funds that Congress has already appropriated and directed to

18 local entities.”

19

G. Richmond Fails to State a Viable Claim under the Fourth Amendment

20

The final claim regarding the grant eligibility provision is Richmond’s claim that the

21 provision violates the Fourth Amendment. Again, however, application of the grant eligibility

22 provision will turn on compliance with 8 U.S.C. § 1373, which involves the sharing of informa-

23 tion and thus does not create any issue under the Fourth Amendment. See AG Mem. at 2.

24 Moreover, the AG Memorandum also states that the grant eligibility provision “does not call for

25 the imposition of grant conditions that would violate any applicable constitutional or statutory

26 limitation.” Id. at 1-2.

27

Further, even aside from those considerations, this claim fails the Salerno test. First, as of

28 April 2, 2017, every detainer request issued by U.S. Immigration and Customs Enforcement

Reply: Motions to Dismiss

19

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Case 3:17-cv-00574-WHO Document 136 Filed 06/29/17 Page 26 of 28

1 (“ICE”) is supported not only by a probable cause finding as to removability in the detainer form

2 itself, but also by an administrative warrant issued pursuant to 8 U.S.C. §§ 1226 or 1231, which

3 contains a probable cause finding made by ICE. See ICE, “Detainer Policy” (Mar. 24, 2017),

4 available at https://www.ice.gov/ detainer-policy. By definition, then, all such detainer requests

5 will satisfy the Fourth Amendment, see, e.g., Abel v. United States, 362 U.S. 217, 233 (1960),

6 such that a facial challenge cannot succeed. See Salerno, 481 U.S. at 745. And even without this

7 policy, because detainer requests are generally supported by probable cause findings, Richmond

8 cannot establish that complying with such requests would always violate the Fourth Amendment,

9 as necessary to sustain a facial challenge. See id. Richmond contends that the Court must accept

10 as true its allegation that the Order “requires Richmond to keep people in custody who would

11 otherwise be released” (Richmond Opp. at 19), but the Plaintiff does not – and cannot – allege

12 that such detention would always violate the Fourth Amendment.

13 V. 14

Richmond and San Francisco Fail to State a Viable Claim for Declaratory Relief Regarding Their Compliance with Section 1373

15

Aside from Plaintiffs’ challenges to the grant eligibility provision in Section 9(a),

16 Richmond and San Francisco seek a judicial declaration that they comply with 8 U.S.C. § 1373.

17 Plaintiffs do not, however, identify a right of action to seek such a declaration, and there is no live

18 controversy regarding whether they comply with Section 1373.

19

Plaintiffs argue that the Declaratory Judgment Act allows them to seek this relief (Rich-

20 mond Opp. at 21; SF Opp. at 10). “It is well-settled, however, that the Declaratory Judgment Act

21 does not create a stand-alone cause of action.” Fox-Quamme v. Health Net Health Plan of Or.,

22 Inc., No. 3:15-CV-01248-BR, 2016 WL 1724358, at *1 (D. Or. Apr. 29, 2016); see Muhammad v.

23 Berreth, No. C 12-02407 CRB, 2012 WL 4838427, at *5 (N.D. Cal. Oct. 10, 2012) (“Declaratory

24 relief is not an independent cause of action or theory of recovery, only a remedy.”). Plaintiffs

25 have not pointed to any statute that provides a right of action to seek a declaration regarding their

26 compliance with Section 1373.

27

Nevertheless, San Francisco asserts that it can seek such a declaration because the United

28 States “could bring civil preemption actions against jurisdictions to enforce Section 1373” (SF

Reply: Motions to Dismiss

20

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Case 3:17-cv-00574-WHO Document 136 Filed 06/29/17 Page 27 of 28

1 Opp. at 10). The right of the United States to bring a preemption suit, however, is based on the

2 Supremacy Clause of the Constitution. San Francisco has no such right. Furthermore, the issue

3 involved in a federal preemption suit is fundamentally different from the cause of action that

4 Plaintiffs seek to assert: In a federal preemption action brought by the United States, the issue is

5 whether a State or local government’s law or action is constitutionally preempted by federal law.

6 If the court finds that the law or action is preempted, it is enjoined. In Plaintiff’s proposed action,

7 by contrast, the issue would be whether a local government’s law violates a federal law. The

8 Constitution requires the existence of the first kind of action, but not the second.

9

Lastly, there is no live controversy regarding whether Richmond or San Francisco

10 complies with Section 1373. Plaintiffs allege that they do not comply with immigration detainer

11 requests or otherwise cooperate with federal immigration authorities. But the Defendants have

12 not taken a position on whether Richmond or San Francisco complies with Section 1373.

13

CONCLUSION

14

For the reasons discussed above and in Defendants’ motions to dismiss, all of Plaintiffs’

15 claims should be dismissed.

16 Dated: June 29, 2017

17
Respectfully submitted,
18

CHAD A. READLER

19

Acting Assistant Attorney General

20
BRIAN STRETCH

21

United States Attorney

22

JOHN R. TYLER

23

Assistant Director

24

/s/ W. Scott Simpson

25

W. SCOTT SIMPSON (Va. Bar #27487)

Senior Trial Counsel

26

27

28

Reply: Motions to Dismiss

21

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Case 3:17-cv-00574-WHO Document 136 Filed 06/29/17 Page 28 of 28

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO

Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov
COUNSEL FOR DEFENDANTS
DONALD J. TRUMP, President of the United States; UNITED STATES OF AMERICA; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States in City & County of San Francisco v. Trump, et al., No. 3:17-cv-00485-WHO
DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; MICK MULVANEY, Director of the Office of Management and Budget in County of Santa Clara v. Trump, et al., No. 3:17-cv-00574-WHO
DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; and UNITED STATES OF AMERICA in City of Richmond v. Trump, et al., No. No. 3:17-cv-01535-WHO
22

 
 Case 3:17-cv-00574-WHO Document 138 Filed 07/06/17 Page 1 of 3

1 OFFICE OF THE COUNTY COUNSEL

COUNTY OF SANTA CLARA 2 JAMES R. WILLIAMS - # 271253

3

County Counsel james.williams@cco.sccgov.org

4 GRETA S. HANSEN - # 251471 L. JAVIER SERRANO - # 252266

5 DANIELLE L. GOLDSTEIN - # 257486

KAVITA NARAYAN - # 264191 6 JULIE WILENSKY - # 271765

7 JULIA B. SPIEGEL - # 292469 ADRIANA L. BENEDICT - # 306936

8 70 West Hedding Street

East Wing, Ninth Floor

9 San Jose, CA 95110-1770

Telephone: 408 299-5900 10 Facsimile: 408 292-7240

KEKER, VAN NEST & PETERS LLP JOHN W. KEKER - # 49092 jkeker@keker.com ROBERT A. VAN NEST - # 84065 rvannest@keker.com DANIEL PURCELL - # 191424 dpurcell@keker.com CODY S. HARRIS - # 255302 charris@keker.com NICHOLAS S. GOLDBERG - # 273614 ngoldberg@keker.com EDWARD A. BAYLEY - # 267532 ebayley@keker.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188

11 ATTORNEYS FOR PLAINTIFF COUNTY OF SANTA CLARA
12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO DIVISION

16 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

17

Plaintiff,

18

v.

19 DONALD J. TRUMP, President of the
20 United States of America, JOHN F. KELLY, in his official capacity as Secretary of the
21 United States Department of Homeland Security, JEFFERSON B. SESSIONS, in his
22 official capacity as Attorney General of the
United States, JOHN MICHAEL “MICK” 23 MULVANEY, in his official capacity as
24 Director of the Office of Management and Budget, and DOES 1-50,
25 Defendants.
26

PLAINTIFF COUNTY OF SANTA CLARA’S MOTION FOR LEAVE TO FILE A SURREPLY IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Date: Time: Dept: Judge:

July 12, 2017 2:00 p.m. Courtroom 2, 17th Floor Hon. William Orrick

Date Filed: February 3, 2017

Trial Date: April 23, 2018

27

28

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Case 3:17-cv-00574-WHO Document 138 Filed 07/06/17 Page 2 of 3

1

Pursuant to Civil Local Rule 7-3(d), Plaintiff County of Santa Clara (“the County”)

2 respectfully asks the Court for leave to file a Surreply in response to Defendants’ Reply in

3 Support of Defendants’ Motion to Dismiss (Dkt. 136).

4

Defendants’ reply brief makes assertions that are directly contradicted by congressional

5 testimony recently provided by Department of Homeland Security officials regarding the meaning

6 and scope of Executive Order 13768 and the “sanctuary jurisdictions” that order targets.

7 Defendants’ reply brief also contains representations that stand at odds with recent official

8 statements made by President Trump. All of these statements are subject to judicial notice, and

9 the County intends to raise them at the hearing on defendants’ motion. To provide the Court with

10 the benefit of these public and binding statements before the hearing, the County seeks leave to

11 file a short surreply, highlighting the statements and attaching transcripts for the Court’s review.

12 The County believes this information will aid the Court in deciding the issues presented. See In

13 re Cathode Ray Tube (CRT) Antitrust Litig., No. 3:14-CV-02510, 2014 WL 7206620, at *1 n.2

14 (N.D. Cal. Dec. 18, 2014) (granting leave to file a surreply “in the interests of completeness and

15 judicial efficiency”). The County’s proposed surreply is attached hereto as Attachment A.

16

If the Court is disinclined to allow the County to file a surreply, then, in the alternative,

17 the County requests that the Court take judicial notice of the documents attached as Exhibits A

18 through D to the proposed surreply brief. Those documents, which consist of official White

19 House press releases and transcripts of congressional testimony, are subject to judicial notice, and

20 the Court may consider them when deciding defendants’ motion to dismiss. See Mir v. Little Co.

21 of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (“[I]t is proper for the district court to take

22 judicial notice of matters of public record outside the pleadings and consider them for purposes of

23 the motion to dismiss.”); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010)

24 (judicially noticing information contained on a government website); 321 Studios v. Metro

25 Goldwin Mayer Studios, Inc., 307 F. Supp. 2d 1085, 1107 (judicially noticing records from

26 congressional hearings “because they are the types of documents for which the accuracy cannot

27 reasonably be questioned.”); Fed. R. Evid. 201(b)(2); see also Fed. R. Evid. 201(c)(2) (mandating

28

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Case 3:17-cv-00574-WHO Document 138 Filed 07/06/17 Page 3 of 3

1 that the court “must take judicial notice if a party requests it and the court is supplied with the

2 necessary information”).

3 4 Dated: July 6, 2017
5

OFFICE OF THE COUNTY COUNSEL, COUNTY OF SANTA CLARA

6 7 8 9 10 11 12 13
Dated: July 6, 2017 14

By: /s/ James R. Williams JAMES R. WILLIAMS GRETA S. HANSEN L. JAVIER SERRANO DANIELLE L. GOLDSTEIN KAVITA NARAYAN JULIE WILESNSKY JULIA B. SPIEGEL ADRIANA L. BENEDICT
Attorneys For Plaintiff COUNTY OF SANTA CLARA
KEKER, VAN NEST & PETERS LLP

15 By: /s/ John W. Keker

16

JOHN W. KEKER

ROBERT A. VAN NEST

17

DANIEL PURCELL

18

CODY S. HARRIS NICHOLAS S. GOLDBERG

19

EDWARD A. BAYLEY

20

Attorneys For Plaintiff COUNTY OF

SANTA CLARA 21

22

23 24

25

26 27

28

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2
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Case 3:17-cv-00574-WHO Document 138-1 Filed 07/06/17 Page 1 of 6

1 OFFICE OF THE COUNTY COUNSEL
COUNTY OF SANTA CLARA 2 JAMES R. WILLIAMS - # 271253
3 County Counsel james.williams@cco.sccgov.org
4 GRETA S. HANSEN - # 251471 L. JAVIER SERRANO - # 252266
5 DANIELLE L. GOLDSTEIN - # 257486
KAVITA NARAYAN - # 264191 6 JULIE WILENSKY - # 271765
7 JULIA B. SPIEGEL - # 292469 ADRIANA L. BENEDICT - # 306936
8 70 West Hedding Street East Wing, Ninth Floor
9 San Jose, CA 95110-1770
Telephone: 408 299-5900 10 Facsimile: 408 292-7240

KEKER, VAN NEST & PETERS LLP JOHN W. KEKER - # 49092 jkeker@keker.com ROBERT A. VAN NEST - # 84065 rvannest@keker.com DANIEL PURCELL - # 191424 dpurcell@keker.com CODY S. HARRIS - # 255302 charris@keker.com NICHOLAS S. GOLDBERG - # 273614 ngoldberg@keker.com EDWARD A. BAYLEY - # 267532 ebayley@keker.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188

11 ATTORNEYS FOR PLAINTIFF COUNTY OF SANTA CLARA
12

13

UNITED STATES DISTRICT COURT

14

NORTHERN DISTRICT OF CALIFORNIA

15

SAN FRANCISCO DIVISION

16 COUNTY OF SANTA CLARA,

Case No. 17-cv-00574-WHO

17

Plaintiff,

18

v.

19 DONALD J. TRUMP, President of the

20 United States of America, JOHN F. KELLY, in his official capacity as Secretary of the

21 United States Department of Homeland

Security, JEFFERSON B. SESSIONS, in his 22 official capacity as Attorney General of the

23

United States, JOHN MICHAEL “MICK” MULVANEY, in his official capacity as

24 Director of the Office of Management and Budget, and DOES 1-50,

25

Defendants.

26

PLAINTIFF COUNTY OF SANTA CLARA’S SURREPLY IN OPPOSITION TO DEFENDANTS’ MOTION TO DISMISS

Date: Time: Dept: Judge:

July 12, 2017 2:00 p.m. Courtroom 2, 17th Floor Hon. William Orrick

Date Filed: February 3, 2017

Trial Date: April 23, 2018

27

28

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1 I. INTRODUCTION

2

In their Reply in Support of Defendants’ Motion to Dismiss, Dkt. 136, defendants attempt

3 for the first time to explain away Attorney General Sessions’s assertion that a local government’s

4 failure to comply with Immigration and Customs Enforcement (“ICE”) civil detainer requests

5 would render that entity subject to defunding or enforcement action under Executive Order 13768 6 (the “Executive Order” or “EO”). This representation, among others defendants make in their 7 reply brief, is directly contradicted by recent statements made by high-ranking executive branch

8 officials, including Department of Homeland Security (“DHS”) Secretary John Kelly, Acting 9 Director of the Immigration and Customs Enforcement (“ICE”) Thomas Homan, and President 10 Trump himself. Plaintiff County of Santa Clara (“the County”) submits this surreply to highlight

11 these critical factual inconsistencies, and to provide relevant judicially noticeable transcripts and 12 official documents for the Court’s consideration in connection with resolving defendants’ motion.

13 II. 14

ARGUMENT During a March 27, 2017 press briefing, Attorney General Sessions directly linked

15 “sanctuary jurisdiction” status to “refusing to detain known felons on the federal detainer request

16 [sic].” See Dkt. 82-1 at 1–2. The County cited this statement in its preliminary injunction

17 briefing, see id., and this Court relied on the “Sessions Press Conference” in its April 25, 2017

18 order. County of Santa Clara v. Trump, --- F. Supp. 3d ----, 2017 WL 1459081, *13 (N.D. Cal.

19 Apr. 25, 2017). Nonetheless, for the first time in their reply brief, defendants try to contort

20 Attorney General Sessions’s plain remarks into precisely the opposite of what he said. See Reply

21 Br. at 8. According to the reply brief, the Attorney General in no way suggested that “non-

22 compliance with detainer requests would constitute non-compliance with Section 1373.” Id.

23 Similarly, the reply brief asserts that the AG Memorandum “authoritatively” and “conclusively”

24 defines the Executive Order, clarifies how it will be implemented, decouples it from ICE civil

25 detainer requests, cures its vagueness, and binds the entire executive branch, including DHS.

26

The public record tells a different story. While Department of Justice (“DOJ”) lawyers

27 tell this Court one thing, other executive branch officials—including the President, DHS officials,

28

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and those charged with implementing the Executive Order—are singing a different tune. The relevant evidence is as follows.1
On June 13, 2017—some three weeks after Attorney General Sessions issued the AG
Memorandum—Acting ICE Director Thomas Homan testified before the House Appropriations
Committee’s Subcommittee on Homeland Security. See H. Approps. Comm. Hr’g Tr., Fed.
News Serv. Transcripts, 2017 WLNR 18737622 (June 13, 2017) (attached hereto as Exhibit A).
One of the questions posed to Director Homan was what, exactly, a state or local government
must do to comply with 8 U.S.C. § 1373, and thereby avoid being deemed a sanctuary
jurisdiction. Specifically, committee members wanted to know whether honoring ICE civil
detainer requests was required. Director Homan replied:
We all understand 1373, but operationally what does it mean to us? So DHS is working with DOJ to come up with some sort of clear operational instructions to law enforcement agency on what a sanctuary city is and how we define it. . . . It begins with cooperation. And one thing I can, sir, to 1373, not only sharing the information, but allow us access to the jails.
Id. at 45 (emphasis added). In other words, the Director of ICE represented to Congress that, as
of mid-June, DHS and DOJ believed that whatever else Section 1373 demands, at a minimum it
requires local law enforcement to provide ICE with “access to the jails.” Id. This testimony
stands at odds with defendants’ reply brief, which states that “compliance with 8 U.S.C. § 1373
. . . relates only to the sharing of information.” Reply Br. at 8.
What’s more, Director Homan admitted that, despite the AG Memorandum, DHS and
DOJ were still “struggling” with how to define the key term, “sanctuary jurisdictions.” He
testified:
1 All of the transcripts and documents discussed herein and attached hereto are subject to judicial notice. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th Cir. 1988) (“[I]t is proper for the district court to take judicial notice of matters of public record outside the pleadings and consider them for purposes of the motion to dismiss.”); Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998–99 (9th Cir. 2010) (judicially noticing information contained on a government website); 321 Studios v. Metro Goldwin Mayer Studios, Inc., 307 F. Supp. 2d 1085, 1107 (judicially noticing records from congressional hearings “because they are the types of documents for which the accuracy cannot reasonably be questioned”); Fed. R. Evid. 201(b)(2).
2
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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DHS leadership is working with DOJ leadership to try to come up with an operational meaning of what we’re going to consider for operational reasons the sanctuary cities. So that’s still in discussion. As soon as we, you know, get some closer to clarity, we certainly will share it with you, but that’s something that we’re struggling with, right? Ex. A at 45. That testimony is striking because, according to defendants’ reply brief, the AG Memorandum authoritatively and conclusively answered those questions on May 22, 2017. See Reply Br. at 2, 11, 18. The reply brief’s inaccuracies do not end there. The reply brief asserts that the AG Memorandum “makes clear that . . . Secretary [Kelly] was consulted on” “the meaning of the term” “sanctuary jurisdictions,” and that an authoritative definition—one that would defeat the County’s vagueness claim—had been reached. Reply Br. at 15. Secretary Kelly, however, apparently does not concur. On May 25, 2017—three days after Attorney General Sessions issued his memorandum—DHS Secretary Kelly testified before the Senate Appropriations Committee’s Subcommittee on Homeland Security. See S. Approps. Comm. Hr’g Tr., Fed. News Serv. Transcripts, 2017 WLNR 16423595 (May 25, 2017) (Attached hereto as Exhibit B). During his testimony, Secretary Kelly was asked, “What are we doing about the Sanctuary Cities issue?” With respect to “the Sanctuary Cities thing,” he said: “Frankly, I don’t really know what it means. I don’t think anyone out there knows what it means . . . .” Id. at 16–17 (emphasis added). This comment echoes his previous statement that he didn’t “have a clue” how to define a sanctuary jurisdiction. Santa Clara, 2017 WL 1459081, at *25. In short, it appears that the AG Memorandum failed to clarify matters for Secretary Kelly—the man charged with designating sanctuary jurisdictions under the Executive Order. That may be because, quite literally, he didn’t get the memo: it was addressed only to “Grant-Making Components” within the DOJ, not to the Department of Homeland Security. See AG Memorandum at 1. The reply brief also fails to mention or take into account an op-ed Attorney General Sessions published the day before defendants filed their reply brief. In the brief, defendants argue that they have not yet declared San Francisco to be a sanctuary jurisdiction, a fact “fatal” to “all three plaintiffs in these cases.” Reply Br. at 7. But on June 28, 2017, Attorney General Sessions penned an op-ed for Fox News in which he singled out San Francisco as a sanctuary city with a
3
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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“city policy” he found unacceptable. See The White House, Office of the Press Sec’y, AG Sessions: “Congress Must Pass Kate’s Law and Make America Safer,” https://www.whitehouse. gov/the-press-office/2017/06/29/ag-sessions-congress-must-pass-kates-law-and-make-americasafer (June 28, 2017) (attached hereto as Exhibit C). The County maintains a similar policy. See Compl. ¶¶ 50–65. Particularly in light of the Attorney General’s public statements, the notion that the plaintiffs in these cases lack a “credible threat” of enforcement under the Executive Order, which is all that is required for standing to pursue their claims, is fanciful. See Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2342 (2014).
While cleaving tightly to the AG Memorandum, the reply brief avoids referencing statements made by the man who actually issued the Executive Order—President Donald Trump. As it happens, President Trump issued an official press release on June 28, 2017—more than a month after the AG Memorandum’s release, and one day before defendants filed their reply brief—reaffirming his oft-professed intention to completely defund “sanctuary jurisdictions.” See The White House, President Donald J. Trump Taking Action Against Illegal Immigration, June 28, 2017, https://www.whitehouse.gov/the-press-office/2017/06/28/president-donald-j-trumptaking-action-against-illegal-immigration (attached hereto as Exhibit D). Specifically, the White House asserted that “President Donald J. Trump is keeping his promises to the American people and taking action to enforce our country’s immigration laws.” Id. The statement then repeats the President’s “promise” to “end the sanctuary cities” and to ensure that “[c]ities that refuse to cooperate with Federal authorities will not receive taxpayer dollars.” Id. (emphasis added). As all of his statements on this issue have been, this one is categorical. The statement also contradicts the reply brief’s textual argument that President Trump could not possibly have intended the defunding provision to reach all taxpayer dollars, but rather intended the provision to affect only a handful of grants issued by two agencies. Reply Br. at 4.
III. CONCLUSION Defendants’ shifting positions, clarifications, and interpretations of the Executive Order
make clear why the Court’s injunction is necessary. Between counsel’s representations, the AG Memorandum, relevant congressional testimony, and the President’s own statements, defendants
4
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1 aren’t merely moving the goalposts in this litigation; they’re switching sports entirely. That is

2 why it is critical to keep the focus on the Executive Order’s text, read in light of the expressed

3 intent of the man who signed it. As this Court has already concluded, that text is likely to be

4 found unconstitutional. By omitting key statements and congressional testimony, defendants’

5 reply brief paints an incomplete and inaccurate picture of the federal government’s approach to

6 interpreting and implementing what is, at its core, a vague, standardless, coercive, and

7 unconstitutional Executive Order. The Court should deny defendants’ motion to dismiss.

8 Dated: July 6, 2017
9
10

OFFICE OF THE COUNTY COUNSEL, COUNTY OF SANTA CLARA

11
12
13
14
15
16
17
18 Dated: July 6, 2017
19

By: /s/ James R. Williams JAMES R. WILLIAMS GRETA S. HANSEN L. JAVIER SERRANO DANIELLE L. GOLDSTEIN KAVITA NARAYAN JULIE WILENSKY JULIA B. SPIEGEL ADRIANA BENEDICT
Attorneys For Plaintiff COUNTY OF SANTA CLARA
KEKER, VAN NEST & PETERS LLP

20 By: /s/ John W. Keker

21

JOHN W. KEKER

ROBERT A. VAN NEST

22

DANIEL PURCELL

23

CODY S. HARRIS NICHOLAS S. GOLDBERG

24

EDWARD A. BAYLEY

25

Attorneys For Plaintiff COUNTY OF

SANTA CLARA 26

27

28

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PLAINTIFF COUNTY OF SANTA CLARA’S SURREPLY IN OPP. TO DEFS.’ MOTION TO DISMISS Case No. 17-cv-00574-WHO

 
 Case 3:17-cv-00574-WHO Document 145 Filed 07/20/17 Page 1 of 20

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 COUNTY OF SANTA CLARA,

8

Plaintiff,

9

v.

10 DONALD J. TRUMP, et al.,

11

Defendants.

12 CITY AND COUNTY OF SAN
13 FRANCISCO,

14

Plaintiff,

15

v.

16 DONALD J. TRUMP, et al.,

17

Defendants.

ORDER DENYING THE GOVERNMENT’S MOTIONS FOR RECONSIDERATION AND TO DISMISS WITH REGARDS TO THE CITY AND COUNTY OF SAN FRANCISCO AND THE COUNTY OF SANTA CLARA
Case No. 17-cv-00574-WHO Dkt. Nos. 113, 115
Case No. 17-cv-00485-WHO Dkt. Nos. 107, 111

18 INTRODUCTION
19 The government has moved for reconsideration of my April 25, 2017 order enjoining
20 section 9(a) of Executive Order 13768 (“PI Order”).1 It has also moved to dismiss the City and
21 County of San Francisco’s and the County of Santa Clara’s claims under Rule 12(b)(6) and Rule
22 12(b)(1). The government’s motions rely heavily on Attorney General Sessions’s two page
23

24

25

1 In the alternative, the government seeks to clarify the scope of the PI Order. However, in its reply, the government states, “If the Court believes defendants correctly read the Order of April

26

25, 2017, as not enjoining them from exercising legal authority, independent of the Executive Order, to impose conditions on grant programming, then formal clarification may be

27

unnecessary.” Gov. Recon. Reply at 1 n.2 (SF Dkt. No. 113). The government correctly reads the PI Order as enjoining only section 9(a) of the Executive Order. The PI Order does not address or

28

enjoin any other independent authority that may allow the government to impose grant conditions on funds, as no such issue was before the court.

Case 3:17-cv-00574-WHO Document 145 Filed 07/20/17 Page 2 of 20

United States District Court Northern District of California

1 memorandum (the “AG Memorandum”) directed to the grant making components of the

2 Department of Justice (“DOJ”), which the government argues outlines DOJ’s definitive

3 interpretation of the Executive Order. Because I conclude that the AG Memorandum does not

4 change the analysis from the PI Order, the government’s motions for reconsideration are

5 DENIED.

6

Similarly, with regards to the motions to dismiss, the AG Memorandum does not impact

7 my prior conclusions that the Counties have standing, that their claims against the Executive Order

8 are ripe, and that they are likely to succeed on the merits of those claims. I have not previously

9 addressed San Francisco’s declaratory relief claim. I do so now and conclude that San Francisco

10 has adequately stated a claim for declaratory relief. The government’s motions to dismiss San 11 Francisco’s and Santa Clara’s claims are DENIED.2

12

BACKGROUND

13

On April 25, 2017, I granted San Francisco’s and Santa Clara’s motions for a preliminary

14 injunction enjoining enforcement of Executive Order 13768 section 9(a). Preliminary Injunction

15 Order (“PI Order”) (SF Dkt. No. 82); (SC Dkt. No. 98). In granting the Counties’ motions, I

16 rejected the interpretation of the Executive Order that the government put forward at oral

17 argument, that the Executive Order is a mere directive to the Department of Homeland Security

18 (“DHS”) and DOJ that does not seek to place any new conditions on federal funds. Even though

19 government counsel convincingly assured me that this was the accepted interpretation of the Order

20 throughout the ranks of DOJ, I concluded that the interpretation was not legally plausible in light

21 of the Order’s plain language and the government’s many statements indicating the Order’s

22 expansive scope. PI Order at 14.

23

On May 22, 2017, Attorney General Sessions issued the AG Memorandum, putting

24 forward DOJ’s “conclusive” interpretation of the Executive Order; it essentially repeats the

25 interpretation that the government proposed at oral argument. See Reconsideration Motion,

26

27

2 The motions for leave to file amicus briefs at SF Dkt. Nos. 114, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132; and SC Dkt. Nos. 118, 122, 123, 124, 125, 126, 127, 128,

28

129, 130, 131, 132, 133, 134, 135 are GRANTED. Santa Clara’s motion to file a sur-reply at SC Dkt. No. 138 is GRANTED.

2

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1 Attachment A (“AG Memorandum”) (SF Dkt. No. 107). The AG Memorandum states that the

2 Executive Order does not “purport to expand the existing statutory or constitutional authority of

3 the Attorney General and the Secretary of Homeland Security in any respect” and instead instructs

4 those officials to take action “to the extent consistent with the law.” AG Memorandum at 2. It

5 also states that the defunding provision in section 9(a) will be applied “solely to federal grants

6 administered by [DOJ] or [DHS]” and to grants that require the applicant to “certify . . .

7 compliance with federal law, including 8 U.S.C. section 1373, as a condition for receiving an

8 award.” AG Memorandum at 1-2. The AG Memorandum also states that DHS and DOJ may only

9 impose these conditions pursuant to “existing statutory or constitutional authority,” and only

10 where “grantees will receive notice of their obligation to comply with section 1373.” AG

11 Memorandum at 2.

12

The same day that the AG Memorandum was released, the government moved for leave to

13 file a motion for reconsideration of the PI Order on the grounds that the AG Memorandum

14 contradicts conclusions central to my justiciability and merits determinations. Reconsideration

15 Motion (“Recon. Mot.”) at 4 (SF Dkt. No. 107); (SC Dkt. No. 113). The Counties opposed the

16 motion for leave, arguing that the government had not been diligent in bringing the motion and

17 had failed to demonstrate that the AG Memorandum was a material change of fact or law, as

18 required by Civil Local Rule 7-9. See e.g. SF Opposition to Motion for Leave at 1-4 (SF Dkt. No.

19 103). I granted the government’s motion for leave without addressing these arguments to avoid

20 creating a procedural ambiguity regarding the government’s time to appeal the PI Order, and the

21 government promptly filed its motions for reconsideration. See Leave Order at 1-2 (SF Dkt. No. 22 106).3

23

While its reconsideration motions were pending, the government moved to dismiss all the

24

25

3 In my Order granting leave, I stated that I would address Local Rule 7-9’s requirements in ruling on the merits of the reconsideration motion. Leave Order at 1-2. Because I conclude that the

26

government is not entitled to reconsideration on the merits, I do not address Local Rule 7-9’s diligence requirement. Although I do not directly address Local Rule 7-9(b)’s requirement that

27

the moving party show a material change in fact or law, or a manifest error by the court, I address substantially similar issues in analyzing the merits of the reconsideration motions under Ninth

28 Circuit law.

3

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United States District Court Northern District of California

1 claims brought by San Francisco and Santa Clara.4 In its motions to dismiss, the government

2 asserts that the Counties lack standing to challenge the Executive Order, especially in light of the

3 guidance issued in the AG Memorandum, because the Executive Order is an internal directive that

4 does not purport to change the law. It further asserts that the plaintiffs have failed to state any

5 claim against the Executive Order. The government also moves to dismiss San Francisco’s claim

6 for a declaration that it complies with section 1373 on the grounds that San Francisco has not

7 identified an independent cause of action to seek declaratory relief and its claim is non-justiciable.

8

LEGAL STANDARD

9 RECONSIDERATION

10

Under the Northern District’s local rules, before filing a motion for reconsideration a party

11 must obtain leave of court. Civil L.R. 7-9(a). To obtain leave, the party must “specifically show

12 reasonable diligence in bringing the motion” and one of the following:

13

(1) That at the time of the motion for leave, a material difference in

fact or law exists from that which was presented to the Court before

14

entry of the interlocutory order for which reconsideration is sought.

The party also must show that in the exercise of reasonable diligence

15

the party applying for reconsideration did not know such fact or law

at the time of the interlocutory order; or 16

(2) The emergence of new material facts or a change of law

17

occurring after the time of such order; or

18

(3) A manifest failure by the Court to consider material facts or

dispositive legal arguments which were presented to the Court

19

before such interlocutory order.

20 Civil L. R. 7-9(b)(1)-(3).

21

Once a reconsideration motion is filed, reconsideration is appropriate “if the district court

22 (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision

23 was manifestly unjust, or (3) there is an intervening change in controlling law.” Sch. Dist. No. 1J,

24 Multnomah Cnty., Or. v. ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993).

25

26

27 4 The government has also moved to dismiss the claims brought by the City of Richmond in the

28

related action City of Richmond v. Trump, No. 17-cv-1535. I will address that motion in a separate order.

4

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United States District Court Northern District of California

1 MOTION TO DISMISS

2

Under Federal Rule of Civil Procedure 12(b)(6), a district court must dismiss a complaint

3 if it fails to state a claim upon which relief can be granted. To survive a Rule 12(b)(6) motion to

4 dismiss, the plaintiff must allege “enough facts to state a claim to relief that is plausible on its

5 face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is facially plausible when

6 the plaintiff pleads facts that “allow the court to draw the reasonable inference that the defendant

7 is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citation

8 omitted). There must be “more than a sheer possibility that a defendant has acted unlawfully.” Id.

9 While courts do not require “heightened fact pleading of specifics,” a plaintiff must allege facts

10 sufficient to “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555, 570.

11

In deciding whether a plaintiff has stated a claim upon which relief can be granted, the

12 court accepts plaintiff’s allegations as true and draws all reasonable inferences in favor of the

13 plaintiff. Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987). However, the court is

14 not required to accept as true “allegations that are merely conclusory, unwarranted deductions of

15 fact, or unreasonable inferences.” In re Gilead Scis. Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.

16 2008).

17

A motion to dismiss filed pursuant to Rule 12(b)(1) is a challenge to the court’s subject

18 matter jurisdiction. See Fed. R. Civ. P. 12(b)(1). “Federal courts are courts of limited

19 jurisdiction,” and it is “presumed that a cause lies outside this limited jurisdiction.” Kokkonen v.

20 Guardian Life Ins. of Am., 511 U.S. 375, 377 (1994). The party invoking the jurisdiction of the

21 federal court bears the burden of establishing that the court has the requisite subject matter

22 jurisdiction to grant the relief requested. Id.

23

A challenge pursuant to Rule 12(b)(1) may be facial or factual. See White v. Lee, 227 F.3d

24 1214, 1242 (9th Cir. 2000). In a facial attack, the jurisdictional challenge is confined to the

25 allegations pled in the complaint. See Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004).

26 The challenger asserts that the allegations in the complaint are insufficient “on their face” to

27 invoke federal jurisdiction. See Safe Air for Everyone v. Meyer, 373 F.3d 1035, 1039 (9th Cir.

28 2004). To resolve this challenge, the court assumes that the allegations in the complaint are true 5

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United States District Court Northern District of California

1 and draws all reasonable inferences in favor of the party opposing dismissal. See Wolfe, 392 F.3d

2 at 362.

3

“By contrast, in a factual attack, the challenger disputes the truth of the allegations that, by

4 themselves, would otherwise invoke federal jurisdiction.” Safe Air, 373 F.3d at 1039. To resolve

5 this challenge, the court “need not presume the truthfulness of the plaintiff’s allegations.” Id.

6 (citation omitted). Instead, the court “may review evidence beyond the complaint without

7 converting the motion to dismiss into a motion for summary judgment.” Id. (citations omitted).

8 Once the moving party has made a factual challenge by offering affidavits or other evidence to

9 dispute the allegations in the complaint, the party opposing the motion must “present affidavits or

10 any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses

11 subject matter jurisdiction.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir. 1989); see also

12 Savage v. Glendale Union High Sch. Dist. No. 205, 343 F.3d 1036, 1040 n.2 (9th Cir. 2003).

13

DISCUSSION

14 I. 15

RECONSIDERATION The government has moved for reconsideration of my preliminary injunction order.

16 Under Ninth Circuit precedent, reconsideration is only appropriate “if the district court (1) is

17 presented with newly discovered evidence, (2) committed clear error or the initial decision was

18 manifestly unjust, or (3) there is an intervening change in controlling law.” See Sch. Dist. No. 1J,

19 Multnomah Cnty., Or., 5 F.3d at 1263. The government does not contend that I committed clear

20 error in my initial decision or manifestly failed to consider material facts or dispositive legal

21 arguments. Instead, it argues that the AG Memorandum represents a change in law and is a new

22 material fact that justifies reconsideration.

23

A. Whether the AG Memorandum Reflects a Change in Controlling Law

24

The government does not contend that the AG Memorandum is controlling authority that

25 binds this court. See Gov. Recon. Reply at 5 n.6. It does suggest that the AG Memorandum

26 undermines my prior conclusions regarding the meaning and scope of the Executive Order and

27 should be credited because it is the “conclusive” interpretation of the Attorney General. Id. at 7-

28 11. 6

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United States District Court Northern District of California

1

This argument is not persuasive. If, as the government admits, the AG Memorandum is

2 not new controlling authority, it is persuasive only to the extent that it is an accurate and credible

3 reading of the Executive Order. See Comite de Jornaleros de Redondo Beach v. City of Redondo

4 Beach, 657 F.3d 936, 946 (9th Cir. 2011)(while a court must “consider the City’s authoritative

5 constructions of the Ordinance, including its implementation and interpretation of it,” it need not

6 “adopt an interpretation precluded by the plain language of the ordinance.”). It is unnecessary to

7 address the merits of the interpretation outlined in the AG Memorandum because it is the same

8 interpretation the government proposed at oral argument; I have already assessed and rejected it as

9 not legally plausible. See SC Recon. Oppo. at 6-8.

10

A motion for reconsideration should not “be used to ask the Court to rethink what it has

11 already thought,” Garcia v. City of Napa, No. C-13-03886-EDL, 2014 WL 342085, at *1 (N.D.

12 Cal. Jan. 28, 2014), and is not a “substitute for appeal or a means of attacking some perceived

13 error of the court.” Washington v. Sandoval, C-10-0250-LHK, 2011 WL 2039687, at *1 (N.D.

14 Cal. May 24, 2011). Because the AG Memorandum is not new controlling authority and only

15 repeats an interpretation of the Executive Order that I have already rejected, it does not justify

16 reconsideration as a “change in controlling authority.”

17

B. Whether the AG Memorandum Reflects a Material Change in Fact or

Evidence 18

The government submits that the AG Memorandum reflects a material change in fact or

19

evidence because it is formal guidance from the Attorney General regarding the scope and

20

meaning of the Executive Order that binds DOJ and other federal agencies. Id. It argues that “the

21

significance of the AG Memorandum lies not only in what it says, but also in the fact that the

22

Attorney General himself has now provided guidance, and in a formal way that is binding on those

23

who will implement the grant eligibility provision – thus directly affecting the likelihood that the

24

Order could be implemented in any way that violates the Constitution or injures the plaintiffs.”

25

Gov. Recon. Reply at 3.

26

1. Illusory Promises to Enforce a Law Narrowly Do Not Resolve

27

Challenges to the Law Itself

28

In opposition, the Counties contend that the AG Memorandum is nothing new and merely

7

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United States District Court Northern District of California

1 states the same reading of the Executive Order that the government presented at the hearing and

2 which I have already rejected. They assert that to the extent the AG Memorandum reflects a

3 commitment to implement the Executive Order more narrowly than it is written, similar promises

4 are routinely rejected by courts as illusory and should not impact the analysis here. See e.g., City

5 of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 (1988).

6

For example, in City of Lakewood, the Supreme Court considered whether a local

7 ordinance that gave the mayor near unbridled discretion to reject permits was constitutional. Id.

8 The City had urged the Court to presume that “the mayor will act in good faith and adhere to

9 standards absent from the ordinance’s face.” Id. The Court declined to do so, holding that

10 limitations on the discretion of a government actor must be “made explicit by textual

11 incorporation, binding judicial or administrative construction, or well-established practice.” Id.

12

Similarly in Doe v. Harris, the Ninth Circuit upheld a preliminary injunction order

13 enjoining enforcement of a California statute that required sex offenders to disclose their online

14 usernames and passwords to the state and which the state could then disclose to the public “when

15 necessary to ensure the public safety.” Doe v. Harris, 772 F.3d 563, 579-80 (9th Cir. 2014). The

16 Ninth Circuit rejected the state’s argument that “existing constraints on law enforcement

17 activities” would prevent the statute from being implemented in an unconstitutional way, holding

18 that a “promise from the State that it will use the power appropriately is not sufficient.” Id. at 580-

19 581; see also United States v. Stevens, 559 U.S. 460, 480 (2010) (the Executive Branch’s

20 reassurance that it construed a statute as applying only to “extreme” animal cruelty and that it

21 “neither has brought nor will bring a prosecution for anything less” did not resolve a constitutional

22 challenge based on the text of the statute); United States v. Nosal, 676 F.3d 854, 862 (9th Cir.

23 2012) (“The government assures us that, whatever the scope of the CFAA, it won’t prosecute

24 minor violations. But we shouldn’t have to live at the mercy of our local prosecutor.”).

25

Even a formalized promise from those charged with enforcing an offending statute may be

26 insufficient. See City of Redondo Beach, 657 F.3d at 946. In City of Redondo Beach, the City had

27 submitted an affidavit from its City Attorney, attesting that a local Ordinance had only been

28 enforced narrowly “and that [the City Attorney] ha[d] no intention of altering this practice.” Id. 8

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United States District Court Northern District of California

1 But this affidavit did not resolve the Ninth Circuit’s concern that the ordinance’s plain language

2 raised constitutional issues. Id. Although the court acknowledged that it must “consider the

3 City’s authoritative constructions of the Ordinance, including its implementation and

4 interpretation of it,” it held that it need not “adopt an interpretation precluded by the plain

5 language of the ordinance.” Id.

6

The government argues that the AG Memorandum is different than the illusory promises in

7 the cases listed above. Gov. Recon. Reply at 4 n.4. It specifically distinguishes Doe v. Harris,

8 noting that while in that case the state relied on “general principles of good police practices,” in

9 this case “the very official charged with implementing the grant eligibility provision – and with

10 providing legal advice to other agencies – has stated how the provision will be implemented.” Id.

11 The AG Memorandum is certainly more forceful than the representations of counsel in many of

12 the cases above, but is it the kind of binding authority that would genuinely dispel the Counties’

13 fear of unlawful enforcement?

14

C. Is the AG Memorandum an Illusory Promise? Or is it Truly Binding?

15

The government asserts that the AG Memorandum is not illusory because, by longstanding

16 tradition and practice, the Attorney General’s legal opinions are treated as authoritative by the

17 heads of executive agencies. The Counties raise two initial responses to this argument: the AG

18 Memorandum is not a legal opinion; and even if it is, it is not clear that the Attorney General’s

19 legal opinions do in fact bind other agencies. In addition, they argue that this Memorandum does

20 not bind DHS, cannot bind the Attorney General, and is therefore nothing more than an illusory

21 promise to enforce the Executive Order narrowly.

22

1. Is the AG Memorandum a binding legal opinion?

23

a. The AG Memorandum is not a legal opinion

24

The Counties first assert that the AG Memorandum is not a legal opinion. In support of

25 this argument they point out that the Memorandum’s title is “Implementation of Executive Order

26 13768.” SF Recon. Oppo. at 10. The Counties assert that this title indicates that the

27 Memorandum is an “implementation” document regarding how the Executive Order will be

28 enforced, not a legal opinion regarding its meaning and scope. They note that the Memorandum is 9

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United States District Court Northern District of California

1 directed only to “All Department Grant-Making Components” within DOJ, and not to any other

2 executive agency. Id. at 11. They contend that this also indicates that the AG Memorandum is

3 only meant to lay out a plan to enforce the Executive Order within DOJ, and is not intended to

4 offer legal guidance to other executive agencies.

5

With regards to the substance of the AG Memorandum, the Counties point out that the

6 document is only two pages long and “does nothing more than summarize the relevant terms of

7 the Executive Order and set forth the Attorney General’s determination of how he intends to carry

8 out the responsibilities it assigns to him. It offers no legal analysis or opinion regarding, for

9 example, the constitutional limits of the Executive Order’s broad language or the legal reasons

10 requiring or dictating his espoused narrowed interpretation.” Id.

11

The government dismisses these critiques. It asserts that the AG Memorandum is a legal

12 opinion because it “obviously deals with underlying ‘questions of law,’ such as the application of

13 8 U.S.C. 1373.” Gov. Recon. Reply at 5. That the AG Memorandum “deals with underlying

14 questions of law” is not persuasive evidence that it is in fact a legal opinion; any memorandum

15 discussing the implementation of a particular law is likely to touch on some underlying questions 16 of the law. While parts of the AG Memorandum seem to reach legal determinations, 5 many

17 indicate only a plan of enforcement. For example, with regard to the funds at issue under the

18 Executive Order, the AG Memorandum states: “I have determined that section 9(a) of the

19 Executive Order, which is directed to the Attorney General and the Secretary of Homeland

20 Security, will be applied solely to federal grants administered by the Department of Justice or the

21 Department of Homeland Security, and not to other sources of federal funding.” AG

22 Memorandum at 1 (emphasis added). This statement indicates a plan to apply section 9(a) only to

23 DOJ and DHS grants, not a legal determination that the Order is actually limited solely to those

24 grants as a matter of law. Similarly, the AG Memorandum states that “I have determined that, for

25 purposes of enforcing the Executive Order, the term ‘sanctuary jurisdiction’ will refer only to

26

27 5 See e.g., AG Memorandum at 1 (“Section 9(a) expressly requires enforcement ‘to the extent

28

consistent with law,’ and therefore does not call for the imposition of grant conditions that would violate any applicable constitutional or statutory limitation.”).

10

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1 jurisdictions that ‘willfully refuse to comply with 8 U.S.C. 1373.” AG Memorandum at 2

2 (emphasis added). This statement reflects a plan of enforcement, not a legal determination that the

3 Order could not bear a broader reading of “sanctuary jurisdictions” if desired.

4

The AG Memorandum is directed only to grant-making components within DOJ, is labeled

5 as an “implementation” memorandum, is only two pages long, does not engage in substantive

6 legal analysis, and primarily outlines plans to enforce the order, rather than an opinion on its

7 meaning or scope. It does not appear to be a legal opinion that might be binding authority on

8 other federal agencies or DHS.

9

2. Even if it is a legal opinion, the AG Memorandum does not clearly bind

other executive agencies 10

The government asserts that Attorney General legal opinions are binding on executive

11

agencies both by tradition and as a result of the Attorney General’s statutory duties. Case law

12

does not conclusively support the government’s position that all Attorney General Memoranda are

13

binding on the executive branches.

14

In support of its argument, the government cites Tenaska Washington Partners II, L.P. v.

15

United States, 34 Fed. Cl. 434, 439 (1995) in which the Court of Federal Claims stated that

16

“Memoranda issued by the [Office of Legal Counsel], including this one, are binding on the

17

Department of Justice and other Executive Branch agencies and represent the official position of

18

those arms of government.” It also cites ACLU v. Dep’t of Def., 396 F. Supp. 2d 459, 462

19

(S.D.N.Y. 2005) in which the Southern District of New York stated that “The Office of the

20

Attorney General of the DOJ is empowered to furnish advice and opinions on legal matters to

21

government agencies, 28 C.F.R. § 0.5 (2005), and has issued public memoranda interpreting the

22

Convention Against Torture.”

23

While these cases offer some support for the government’s position, they are also clearly

24

distinguishable from the facts here. Both dealt with formal and reasoned legal opinions prepared

25

by the Office of Legal Counsel. In addition, while ACLU acknowledges that the Attorney General

26

may furnish advice and opinions to government agencies, it does not address the primary issue

27

here, whether those opinions are then binding on the agencies. See ACLU, 396 F. Supp. 2d 462.

28

11

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1

The government’s reliance on Tenaska and ACLU, two non-binding lower court cases, one

2 of which does not address the issue at hand, demonstrates that whether an Attorney General

3 memorandum is binding is not a settled issue of law. This conclusion is further supported by one

4 of the secondary sources the government cites, which itself notes that “the question of whether

5 (and in what sense) the opinions of the Attorney General, and, more recently, the Office of Legal

6 Counsel, are legally binding within the executive branch remains somewhat unsettled.” See

7 Randolph Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal

8 Counsel, 52 Admin. L. Rev. 1303, 1318 (2000).

9

Nor do the statutes the government cites offer persuasive support for its position. It asserts

10 that the Attorney General’s memoranda are binding on other agencies because the Attorney

11 General has a statutory duty to advise executive department heads on “questions of law,” 28

12 U.S.C. § 512, and to furnish formal legal opinions to executive agencies, 28 C.F.R. § 0.5(c).

13 While section 512 allows a department head to request and receive an Attorney General opinion

14 on “questions of law arising in the administration of his department,” 28 U.S.C. § 512, it does not

15 address whether such an opinion would bind the relevant department; moreover, it is inapplicable

16 to the facts here since there has been no such request. And while section 0.5(c) requires the

17 Attorney General to provide “formal and informal” advice and opinions “on legal matters,” 28

18 C.F.R. § 0.5(c), it is silent on whether any such advice would bind other agencies.

19

The AG Memorandum does not appear to be a legal opinion, and the law is unsettled on

20 whether such opinions are binding on other agencies. The government has not persuasively

21 demonstrated that the AG Memorandum is “binding” on other agencies as a legal opinion.

22

3. Does the AG Memorandum Bind DHS as an Opinion re Immigration

Enforcement? 23

The government asserts that the AG Memorandum binds DHS because, although the

24

Secretary of the Department of Homeland Security administers the immigration laws, the

25

Immigration and Nationality Act states that a “determination and ruling by the Attorney General

26

with respect to all questions of law shall be controlling.” 8 U.S.C. § 1103(c)(1). But the AG

27

Memorandum is not clearly a determination or ruling on a question of immigration law. The AG

28

12

Case 3:17-cv-00574-WHO Document 145 Filed 07/20/17 Page 13 of 20

United States District Court Northern District of California

1 Memorandum is an internal DOJ implementation order, is not directed to DHS, and does not

2 appear to be a legal opinion. This two-page order outlining how the Executive Order will be

3 implemented within DOJ is not fairly read as a determination and ruling of law that might be

4 controlling on the Secretary of the Department of Homeland Security.

5

4. Does the AG Memorandum Bind DOJ and the Attorney General?

6

The final and most glaring problem with the AG Memorandum is that it is not binding on

7 the Attorney General. As the Counties point out, the Attorney General could, at any time, revoke

8 the AG Memorandum and issue new guidance. Or the President could replace the Attorney

9 General to revoke it.

10

The government does not dispute that the AG Memorandum is revocable, but notes that

11 “that is true of any authoritative guidance issued by a federal official.” Gov. Recon. Reply at 6.

12 That the AG Memorandum shares this trait with other federal guidance does nothing to resolve the

13 issue here. The problem with the AG Memorandum, like the promises from Harris, Stevens, and

14 City of Redondo Beach, is that it is a self-imposed restriction. Where the problem with a law is

15 that it grants excessive discretion or power to a particular official, the problem cannot be resolved

16 by having that same official impose a revocable limitation on himself. Such a restriction does not

17 have the type of exterior oversight that the Supreme Court has held is necessary to cabin unbridled

18 discretion. See City of Lakewood, 486 U.S. at 770 (limitations on the discretion of a government

19 actor must be “made explicit by textual incorporation, binding judicial or administrative

20 construction, or well-established practice.”). Although more formal than a bare promise, because

21 the AG Memorandum will remain in effect only so long as the Attorney General or the President

22 see fit, it is still effectively a “promise from the State that it will use the power appropriately” and

23 “is not sufficient” to cabin the Executive Order. Harris, 772 F.3d at 579-80.

24

I conclude that the AG Memorandum is functionally an “illusory promise” to enforce the

25 Executive Order narrowly and, as such, does not resolve the constitutional claims that the

26

27

28 13

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United States District Court Northern District of California

1 Counties have brought based on the Order’s language.6 As the AG Memorandum reflects the

2 same interpretation of the Executive Order that government counsel proposed at the preliminary

3 injunction hearing, and which I considered and rejected in the PI Order, it is not a material change

4 in fact or evidence that would impact my prior analysis.

5

Because the AG Memorandum reflects neither a change in controlling authority nor a

6 material change in fact or evidence, it does not support reconsideration of the PI Order. The

7 government’s motions for reconsideration are DENIED.

8 II. MOTIONS TO DISMISS

9

The government moves to dismiss the Counties’ claims. It leans heavily on the AG

10 Memorandum, which it asserts demonstrates that the Counties lack standing, that their claims are

11 not ripe, and that their claims challenging the Executive Order are meritless. SF MTD (SF Dkt.

12 No. 111); SC MTD (SC Dkt. No. 115). As discussed with regard to the motions for

13 reconsideration, the AG Memorandum does not resolve the Executive Order’s constitutional

14 issues or alter the analysis from the PI Order. Accordingly, I do not credit the AG Memorandum’s

15 findings in assessing the government’s motions to dismiss. This substantially simplifies resolution

16 of the government’s motions as I addressed most of the arguments it raises now, in detail, in the PI

17 Order. Instead of repeating my prior analysis here, I will simply refer to the relevant portions of

18 my prior order where appropriate. I have not previously discussed San Francisco’s declaratory

19 relief claim and so address the government’s motion to dismiss that claim below.

20

A. Plaintiffs Have Standing and Their Claims are Ripe

21

The government argues that the plaintiffs lack standing and that their claims are unripe. In

22 the PI Order I dedicated twenty-five pages to these issues with regards to San Francisco and Santa

23 Clara and concluded that the Counties have standing to challenge the Executive Order. See PI

24 Order at 11-35. I also concluded that the Counties’ claims were ripe. San Francisco and Santa

25 Clara have established standing and ripeness.

26

27

6 For the same reasons, the AG Memorandum does not meaningfully dispel the Counties’ fear of irreparable harm resulting from budget uncertainty. With nothing preventing the AG

28

Memorandum from being revoked or overwritten, absent the preliminary injunction, the Counties would still face a genuine threat that the Executive Order could be enforced broadly.

14

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B. The Executive Order is not an Internal Directive 1
The government contends that the plaintiffs’ claims must be dismissed because the 2
Executive Order is an internal directive and does not change the law. In the PI Order, I concluded 3
that the Executive Order is not an internal directive and does change the law. See PI Order at 124
16. 5

C. The Plaintiffs Have Stated Valid Claims Challenging Section 9(a) of the

6

Executive Order

7

The government asserts that Santa Clara and San Francisco have failed to state any claim

8 challenging section 9(a) of the Executive Order. In the PI Order, I found that the Counties were

9 likely to succeed on all of their claims against the Executive Order. See PI Order at 35-44. In

10 concluding that the Counties were likely to succeed on these claims, I necessarily concluded that

11 the Counties had adequately stated these claims, a considerably lower burden. Accordingly, as

12 specified below, I conclude that the Counties have adequately stated all their claims challenging

13 section 9(a) of the Executive Order.

14

1. The Counties’ Separation of Powers Claims

15

The government asserts that Santa Clara and San Francisco have failed to state a separation

16 of powers claim. As detailed in the PI Order, the Counties have adequately stated a separation of

17 powers claim. See PI Order at 35-37.

18

2. The Counties Spending Clause Claims

19

The government asserts that Santa Clara and San Francisco have failed to state a spending

20 clause violation claim. As detailed in the PI Order, the Counties have adequately stated a

21 spending clause violation claim. See PI Order at 37-41.

22

3. San Francisco’s Tenth Amendment Claim

23

The government asserts that San Francisco has failed to state a Tenth Amendment

24 violation. As detailed in the PI Order, San Francisco has adequately stated a Tenth Amendment

25 violation. See PI Order at 39-41.

26

4. Santa Clara’s Fifth Amendment Vagueness Claim

27

The government asserts that Santa Clara has failed to state a Fifth Amendment vagueness

28 claim. As detailed in the PI Order, Santa Clara has adequately stated a Fifth Amendment 15

Case 3:17-cv-00574-WHO Document 145 Filed 07/20/17 Page 16 of 20

United States District Court Northern District of California

1 vagueness claim. See PI Order at 41-43.

2

5. Santa Clara’s Fifth Amendment Procedural Due Process Claim

3

The government asserts that Santa Clara has failed to state a Fifth Amendment procedural

4 due process claim. As detailed in the PI Order, Santa Clara has adequately stated a Fifth

5 Amendment procedural due process claim. See PI Order at 43-44.

6

D. San Francisco’s Declaratory Relief Claim

7

San Francisco has brought a claim for declaratory relief seeking a declaration that its laws

8 comply with section 1373. The government moves to dismiss this claim. It asserts that San

9 Francisco has failed to identify a right of action in section 1373 or elsewhere that would allow it to

10 pursue declaratory relief and that “the declaration that plaintiff seeks would constitute a prohibited

11 advisory opinion.” SF MTD at 11.

12

1. San Francisco Must Demonstrate an “Actual Controversy” to Seek

Declaratory Relief Under the Declaratory Judgment Act 13

Despite the government’s assertions, San Francisco does not need to demonstrate an

14

independent cause of action to seek a declaration that it complies with section 1373. Instead, it

15

must demonstrate that there is an actual legal controversy regarding its compliance with section

16

1373 in order to pursue declaratory relief under the Declaratory Judgment Act.

17

The government correctly notes that the Declaratory Judgment Act creates a remedy for

18

litigants but is not an independent cause of action. See, e.g., Muhammad v. Berreth, No. C 12-

19

02407 CRB, 2012 WL 4838427, at *5 (N.D. Cal. Oct. 10, 2012) (“Declaratory relief is not an

20

independent cause of action or theory of recovery, only a remedy. The [Declaratory Judgment

21

Act] does not itself confer federal subject-matter jurisdiction.”) (citation and internal quotation

22

marks omitted). However, it draws the wrong conclusion from this well-established holding,

23

asserting that a plaintiff must have some other independent statutory right to bring a plausible

24

claim for declaratory relief. SF MTD at 11. If that were the case, the Declaratory Judgment Act

25

would be meaningless; any plaintiff able to seek declaratory relief would already have an

26

independent right to do so. What this rule clarifies is that the Declaratory Judgment Act “does not

27

itself confer federal subject-matter jurisdiction” and that a plaintiff seeking declaratory relief must

28

16

Case 3:17-cv-00574-WHO Document 145 Filed 07/20/17 Page 17 of 20

United States District Court Northern District of California

1 independently establish that it has standing to seek relief. Fid. & Cas. Co. v. Reserve Ins. Co., 596

2 F.2d 914, 916 (9th Cir. 1979).

3

To establish Article III standing and seek relief under the Declaratory Judgment Act, a

4 plaintiff must demonstrate that its claim involves an “actual controversy.” See Aetna Life Ins. Co.

5 v. Haworth, 300 U.S. 227, 240 (1937); 28 U.S.C. § 2201(a) (“In a case of actual controversy

6 within its jurisdiction . . . any court of the United States . . . may declare the rights and other legal

7 relations of any interested party seeking such declaration, whether or not further relief is or could

8 be sought.”). This means that the dispute must be “definite and concrete, touching the legal

9 relations of parties having adverse legal interests” and be “real and substantial.” Aetna, at 240-

10 241. “Basically, the question in each case is whether the facts alleged, under all the

11 circumstances, show that there is a substantial controversy, between parties having adverse legal

12 interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.”

13 Maryland Casualty Co. v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941).

14

2. San Francisco Has Demonstrated an “Actual Controversy” regarding

its Compliance with Section 1373 15

There is a real and immediate controversy between San Francisco and the federal

16

government regarding whether San Francisco complies with section 1373. Although the

17

government has not sued San Francisco for failing to comply with section 1373 and has not

18

declared San Francisco a “sanctuary jurisdiction” under section 9(a) of the Executive Order, in

19

many statements, official writings, and opinion pieces, key government officials have repeatedly

20

indicated that, in the eyes of the federal government, San Francisco’s policies do not comply with

21

federal law.

22

For example, in a March 27, 2017 statement on sanctuary cities, Attorney General Sessions

23

criticized San Francisco for its “sanctuary policies,” noted that this type of “disregard for the law

24

must end” and indicated that DOJ would be taking steps to ensure compliance with section 1373.

25 See SF. RJN Ex. D. (SF Dkt. No. 116-4).7 In a statement to law enforcement representatives in

26

27 7 I take judicial notice of RJN Ex. D; a press release dated March 27, 2017 and titled “Attorney

28

General Jeff Sessions Delivers Remarks on Sanctuary Jurisdictions.” Attorney General Sessions’s statements in this document are judicially noticeable at the statements “can be accurately and

17

Case 3:17-cv-00574-WHO Document 145 Filed 07/20/17 Page 18 of 20

United States District Court Northern District of California

1 Las Vegas on the day of the hearing on these motions, the Attorney General noted that “[s]ome

2 300 jurisdictions in this country refuse to cooperate with federal immigration authorities,” and,

3 that “politicians have forbidden [local law enforcement] to help.” SF. 2nd Supp. RJN Ex. A at 2 4 (SF Dkt. No. 139).8 He specifically called out San Francisco as one of the cities that “have these

5 policies.” Id. Representative John Culberson, who chairs the House of Representatives

6 subcommittee that controls DOJ spending, and who has helped condition certain DOJ grants on

7 compliance with section 1373, has stated that a sanctuary city is any city that “[v]iolates 8 U.S.C. 8 Code 1373,” SF RJN Ex. U at 2 (SF Dkt. No. 116-21),9 and that section 1373 “bars state and local

9 officials from interfering ‘in any way’ with requests for personal immigration information by 10 federal authorities.” SF RJN Ex. E at 3-4 (SF Dkt. No. 116-5).10 Culberson has indicated his clear

11 belief that San Francisco is in violation of section 1373, noting that it was San Francisco’s

12 sanctuary policies and the murder of Kate Steinle that galvanized him to ensure that DOJ grants

13 would be conditioned on compliance with section 1373 in the first place. SF RJN Ex. U at 6.

14 When questioned regarding San Francisco’s lawsuit challenging the Executive Order, Culberson

15 confidently asserted that San Francisco would ultimately lose and would not receive any federal

16 money because it doesn’t “follow federal law.” SF RJN Ex. E at 11. Finally, in a formal

17

18

readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201(b)(2). They are also judicially noticeable because they were posted on an official

19 government website. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-99 (9th Cir. 2010).

20

8 I take judicial notice of 2nd Supp. RJN Ex. A; a press release dated July 12, 2017 and titled “Attorney General Jeff Sessions Delivers Remarks in Las Vegas to Federal, State and Local Law

21

Enforcement About Sanctuary Cities and Efforts to Combat Violent Crime.” Attorney General Sessions’s statements in this document are judicially noticeable at the statements “can be

22

accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201(b)(2). They are also judicially noticeable because they were posted on an

23 official government website. See Daniels-Hall, 629 F.3d at 998-99.

24

9 I take judicial notice of RJN Ex. U, a copy of Jeff Sessions, John Culberson, Dennis Herrera, Jose Antonio Vargas, Op-Ed, 4 Voices: Are Sanctuary Cities Good for the Community, S.F.

25

Chron., Apr.7, 2017, as it contains the statements of government officials which “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”

26 Fed. R. Evid. § 201(b)(2).

27

10 I take judicial notice of RJN Ex. E, a copy of the article “Did Culberson Misfire when he took a shot a ‘sanctuary city’ funds?”, Houstonchronicle.com, updated March 19, 2017, as it contains the

28

statements of government officials which “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201(b)(2).

18

Case 3:17-cv-00574-WHO Document 145 Filed 07/20/17 Page 19 of 20

United States District Court Northern District of California

1 Memorandum assessing potential violations of section 1373, Inspector General Michael Horowitz

2 indicated that San Francisco’s policies appear to be “inconsistent” with section 1373’s 3 requirements. SF. RJN Ex. F at 6 n.7 (SF Dkt. No. 116-6).11

4

Given that key government actors charged with enforcing compliance with section 1373

5 have repeatedly called out San Francisco for its sanctuary policies and non-compliance with

6 federal immigration law, it appears there is a “real and substantial” dispute regarding whether San

7 Francisco complies with section 1373. The government could resolve this dispute by bringing a

8 federal preemption suit and challenging the legality of San Francisco’s sanctuary policies (or by

9 disavowing that it has any intent to do so), but it has not done so. Meanwhile, it indicates that it

10 intends to expand the number of federal grants conditioned on compliance with section 1373 and

11 to enforce any conditions already in place.

12

“The Declaratory Judgment Act was designed to relieve potential defendants from the

13 Damoclean threat of impending litigation which a harassing adversary might brandish, while

14 initiating suit at his leisure or never. The Act permits parties so situated to forestall the accrual of

15 potential damages by suing for a declaratory judgment, once the adverse positions have

16 crystallized and the conflict of interests is real and immediate.” Societe de Conditionnement en

17 Aluminium v. Hunter Engineering Co., 655 F.2d 938, 943 (9th Cir. 1981). Because San Francisco

18 has demonstrated an “actual controversy” regarding its compliance with section 1373, it need not

19 sit back and wait, as the potential liability for its potential noncompliance with section 1373

20 increases. The Declaratory Judgment Act permits it to seek declaratory relief to resolve this “real

21 and substantial” legal dispute.

22

San Francisco has stated a justiciable claim for declaratory relief.

23

24

25 11 I take judicial notice of RJN Ex. F, a copy of a Memorandum prepared by Michael E. Horowitz,

26

Inspector General, U.S. Department of Justice, to Karol V. Mason, Assistant Attorney General for the Office of Justice Programs, U.S. Department of Justice, entitled “Department of Justice

27

Referral of Allegations of Potential Violations of U.S.C. § 1373 by Grant Recipients,” dated May 31, 2016, because government memoranda, bulletins, reports, letters, and statements of public

28

record are appropriate for judicial notice. See Brown v. Valoff, 422 F.3d 926, 933 n.9 (9th Cir. 2005).

19

Case 3:17-cv-00574-WHO Document 145 Filed 07/20/17 Page 20 of 20

United States District Court Northern District of California

1

CONCLUSION

2

As outlined above, the government’s motions for reconsideration and to dismiss San

3 Francisco’s and Santa Clara’s claims are DENIED. It shall answer the complaints within twenty

4 days.

5

IT IS SO ORDERED.

6 Dated: July 20, 2017

7

8

9

William H. Orrick United States District Judge

10

11

12

13

14

15

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28 20

 
 Case 3:17-cv-00574-WHO Document 151 Filed 08/30/17 Page 1 of 33

1 OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA
2 JAMES R. WILLIAMS - # 271253 County Counsel
3 james.williams@cco.sccgov.org GRETA S. HANSEN - # 251471
4 L. JAVIER SERRANO - # 252266 DANIELLE L. GOLDSTEIN - # 257486
5 KAVITA NARAYAN - # 264191 JULIE WILENSKY - #271765
6 JULIA B. SPIEGEL - # 292469 ADRIANA L. BENEDICT - # 306936
7 70 West Hedding Street East Wing, Ninth Floor
8 San Jose, CA 95110-1770 Telephone: 408 299-5900
9 Facsimile: 408 292-7240

KEKER, VAN NEST & PETERS LLP JOHN W. KEKER - # 49092 jkeker@keker.com ROBERT A. VAN NEST - # 84065 rvannest@keker.com DANIEL PURCELL - # 191424 dpurcell@keker.com CODY S. HARRIS - # 255302 charris@keker.com NICHOLAS S. GOLDBERG - # 273614 ngoldberg@keker.com EDWARD A. BAYLEY - # 267532 ebayley@keker.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188

10 Attorneys For Plaintiff COUNTY OF SANTA CLARA

11 UNITED STATES DISTRICT COURT

12 NORTHERN DISTRICT OF CALIFORNIA

13 SAN FRANCISCO DIVISION

14

COUNTY OF SANTA CLARA, 15

Case No. 17-cv-00574-WHO

Plaintiff, 16

COUNTY OF SANTA CLARA’S NOTICE OF MOTION AND MOTION FOR

v. 17

SUMMARY JUDGMENT

DONALD J. TRUMP, President of the 18 United States of America, ELAINE DUKE,

Date: Time:

October 4, 2017 2:00 pm

in her official capacity as Acting Secretary 19 of the United States Department of

Dept.: Judge:

Courtroom 2, 17th Floor Hon. William Orrick

Homeland Security, JEFFERSON B. 20 SESSIONS, in his official capacity as

Date Filed: February 3, 2017

Attorney General of the United States, 21 JOHN MICHAEL “MICK” MULVANEY,

Trial Date: April 23, 2018

in his official capacity as Director of the 22 Office of Management and Budget, and

DOES 1-50, 23

Defendants. 24

25

26

27

28

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COUNTY OF SANTA CLARA’S NOTICE OF MOTION AND MOTION FOR SUMMARY JUDGMENT Case No. 17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 151 Filed 08/30/17 Page 2 of 33

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
1186564

NOTICE OF MOTION AND MOTION TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on October 4, 2017 at 2:00 p.m., or as soon thereafter as counsel may be heard, at the United States District Court for the Northern District of California, San Francisco Division, located at 450 Golden Gate Avenue, San Francisco, California, before the Honorable William H. Orrick, plaintiff County of Santa Clara (the “County”) will and hereby does move the Court for summary judgment on each of the four causes of actions set forth in the County’s Complaint. This Motion is based on this Notice of Motion and Motion, the supporting Memorandum of Points and Authorities, the accompanying Request for Judicial Notice, the declarations of Sara H. Cody, M.D. (County Public Health Officer), Paul Lorenz (Chief Executive Officer of Santa Clara Valley Medical Center), Miguel Márquez (County Chief Operating Officer), Robert Menicocci (Director of the County’s Social Services Agency), Carl Neusel (Undersheriff of the County), Dana Reed (Director of the County’s Office of Emergency Services), Jeffrey F. Rosen (District Attorney of the County), Jeffrey V. Smith (County Executive), and Laurie Smith (Sheriff of the County), filed concurrently herewith, and the record and files of this Court, and all other matters of which the Court may take judicial notice.
STATEMENT OF RELIEF REQUESTED 1. A declaration pursuant to 28 U.S.C. §§ 2201–02 that Section 9(a) of Executive
Order 13768 is unconstitutional; 2. A permanent injunction enjoining defendants from implementing Section 9(a) of
Executive Order 13768.
i COUNTY OF SANTA CLARA’S NOTICE OF MOTION AND
MOTION FOR SUMMARY JUDGMENT Case No. 17-cv-00574-WHO

Case 3:17-cv-00574-WHO Document 151 Filed 08/30/17 Page 3 of 33

1 2 3 I. 4 II. 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 III. 20 21 22 IV. 23 24 25 26 27 28
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TABLE OF CONTENTS
Page
INTRODUCTION ...............................................................................................................1
FACTUAL BACKGROUND ..............................................................................................1
A. The President issues Executive Order 13768...........................................................2
B. The President and his subordinates have repeatedly confirmed the Executive Order’s sweeping intended scope. ..........................................................3
1. The Executive Order is designed to strip all federal funding from state and local governments deemed “sanctuary jurisdictions.” ..................3
2. The Executive Order targets jurisdictions that refuse to comply with ICE civil detainer requests. ..........................................................................4
3. The Administration intends to enforce the Executive Order against the County of Santa Clara. ...........................................................................5
C. To enhance public safety, the County has enacted policies and practices that fall squarely within the Executive Order’s ambit. ............................................6
D. The County relies on federal funding to provide critical health and safety services to its 1.9 million residents. .........................................................................8
E. The Court’s Preliminary Injunction Order...............................................................9
F. The Court’s Order Denying Defendants’ Motions for Reconsideration and Dismissal ................................................................................................................10
G. Defendants’ Continuing Efforts to Punish and Coerce Targeted Jurisdictions ...........................................................................................................11
LEGAL STANDARD........................................................................................................12
A. Rule 56 Summary Judgment Standard...................................................................12
B. Standard for Interpretation of Executive Orders....................................................12
ARGUMENT .....................................................................................................................13
A. Section 9(a) of the Executive Order violates the separation of powers inherent in the Constitution....................................................................................13
1. Congress, not the President, may place conditions on federal funds.........13
2. Section 9(a) of the Executive Order purports to grant the President spending powers that even Congress lacks. ...............................................15
B. The Executive Order violates the Tenth Amendment............................................17
ii COUNTY OF SANTA CLARA’S NOTICE OF MOTION AND
MOTION FOR SUMMARY JUDGMENT Case No. 17-cv-00574-WHO

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1 2 3 4 5 6 7 8 9
V. 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
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C. The Executive Order is void for vagueness in violation of the Fifth Amendment’s Due Process Clause. .......................................................................19
D. The Executive Order deprives the County of procedural due process...................21 E. The Court should enter a nationwide permanent injunction. .................................21
1. The County will suffer irreparable harm without a permanent injunction. ..................................................................................................22
2. The County has no adequate remedy at law. .............................................24 3. The balance of harms and public interest support a permanent
injunction. ..................................................................................................24 F. The County has standing and its claims are ripe....................................................24 CONCLUSION ..................................................................................................................25
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TABLE OF AUTHORITIES
Page(s)
Federal Cases
Am. Trucking Ass’ns, Inc. v. City of Los Angeles 559 F.3d 1046 (9th Cir. 2009) ................................................................................................. 22
Babbitt v. United Farm Workers Nat’l Union 442 U.S. 289 (1979)................................................................................................................. 25
Bassidji v. Goe 413 F.3d 928 (9th Cir. 2005) ................................................................................................... 12
Bd. of Regents of State Colleges v. Roth 408 U.S. 564 (1972)................................................................................................................. 21
Cedar-Riverside People’s Ctr. v. Minn. Dep’t of Human Servs. 2009 WL 1955440 (D. Minn. July 6, 2009) ............................................................................ 24
City of Lakewood v. Plain Dealer Publ’g Co. 486 U.S. 750 (1988)................................................................................................................. 13
Clinton v. City of New York 524 U.S. 417 (1998)........................................................................................................... 13, 14
Comite de Jornaleros de Redondo Beach v. City of Redondo Beach 657 F.3d 936 (9th Cir. 2011) ................................................................................................... 12
County of Santa Clara v. Trump -- F. Supp. 3d --, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017) ...................................... passim
County of Santa Clara v. Trump -- F. Supp. 3d --, 2017 WL 3086064 (N.D. Cal. July 20, 2017) ....................................... passim
County of Santa Cruz v. Sebelius 399 Fed. App’x 174 (9th Cir. 2010) ........................................................................................ 21
Dalzin v. Belshe 993 F. Supp. 732 (N.D. Cal. 1997) .......................................................................................... 12
Doe v. Harris 772 F.3d 563 (9th Cir. 2014) ................................................................................................... 13
Doran v. Houle 721 F.2d 1182 (9th Cir. 1983) ................................................................................................. 21
Foti v. City of Menlo Park 146 F.3d 629 (9th Cir. 1998) ................................................................................................... 12
In re Aiken Cty. 725 F.3d 255 (D.C. Cir. 2013) ................................................................................................. 15
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Kansas Health Care Ass’n, Inc. v. Kansas Dep’t of Soc. & Rehab. Servs. 31 F.3d 1536 (10th Cir. 1994) ................................................................................................. 24
Mathews v. Eldridge 424 U.S. 319 (1976)................................................................................................................. 21
Melendres v. Arpaio 695 F.3d 990 (9th Cir. 2012) ................................................................................................... 22
Mendia v. Garcia 2016 WL 2654327 (N.D. Cal. May 10, 2016) ..................................................................... 8, 16
Mil-Spec Monkey, Inc. v. Activision Blizzard, Inc. 74 F. Supp. 3d 1134 (N.D. Cal. 2014) ..................................................................................... 12
Miranda-Olivares v. Clackamas Cnty. 2014 WL 1414305 (D. Or. Apr. 11, 2014) .......................................................................... 8, 16
Morales v. Chadbourne 793 F.3d 208 (1st Cir. 2015) ................................................................................................ 8, 16
Nat’l Fed. of Indep. Bus. v. Sebelius 567 U.S. 519 (2012)............................................................................................... 15, 17, 18, 21
New York v. United States 505 U.S. 144 (1992)................................................................................................................. 18
Nken v. Holder 556 U.S. 418 (2009)................................................................................................................. 24
Orellana v. Nobles Cnty. 230 F. Supp. 3d 934 (D. Minn. 2017) .................................................................................. 8, 16
Pennhurst State Sch. & Hosp. v. Halderman 451 U.S. 1 (1981)..................................................................................................................... 21
Printz v. United States 521 U.S. 898 (1997)................................................................................................................. 18
Rodriguez v. Robbins 715 F. 3d 1127 (9th Cir. 2013) ................................................................................................ 24
South Dakota v. Dole 483 U.S. 203 (1987)............................................................................................... 13, 15, 16, 17
Texas v. United States 201 F. Supp. 3d 810 (N.D. Tex. 2016) .................................................................................... 22
Texas v. United States 86 F. Supp. 3d 591 (S.D. Tex. 2015) ....................................................................................... 22
Thornton v. City of St. Helens 425 F.3d 1158 (9th Cir. 2005) ................................................................................................. 21
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United States v. Nosal 676 F.3d 854 (9th Cir. 2012) ................................................................................................... 13
United States v. Soussi 316 F.3d 1095 (10th Cir. 2002) ............................................................................................... 19
United States v. Stevens 559 U.S. 460 (2010)........................................................................................................... 12, 13
United States v. Williams 553 U.S. 285 (2008)........................................................................................................... 19, 20
W. Watersheds Project v. Abbey 719 F.3d 1035 (9th Cir. 2013) ................................................................................................. 22
Washington v. Trump 847 F.3d 1151 (9th Cir. 2017) ................................................................................................. 22
Wong v. Ilchert 785 F. Supp. 822 (N.D. Cal. 1991) .......................................................................................... 12
Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 (1952)................................................................................................................. 14
State Cases
Lunn v. Commonwealth 78 N.E.3d 1143 (Mass. 2017) .................................................................................................. 16
Federal Statutes
2 U.S.C. § 683................................................................................................................................ 14
8 U.S.C. § 1373....................................................................................................................... passim
State Statutes
Cal. Gov’t Code § 7282.5 ................................................................................................................ 8
Federal Rules
Fed. R. Civ. P. 56(a) ...................................................................................................................... 12
Federal Regulations
Exec. Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017).......................................................... passim
Constitutional Provisions
U.S. Const. art. I, § 8, cl. 1............................................................................................................. 13
U.S. Const. art. II § 3, cl. 5 ............................................................................................................ 14
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1

MEMORANDUM OF POINTS AND AUTHORITIES

2 I. INTRODUCTION

3

Section 9(a) of Executive Order 13768 (the “Executive Order”) is unconstitutional. It

4 purports to seize for the President spending powers that belong solely to Congress, then distorts

5 and expands those powers beyond constitutional limitations. It baldly attempts to compel state 6 and local governments to become agents of the federal government’s immigration enforcement 7 agenda, violating core principles of federalism. The Executive Order’s plain text establishes its

8 unlawfulness. Section 9(a) purports to render state and local governments deemed “sanctuary 9 jurisdictions” ineligible for any federal funds, and subject to unspecified enforcement actions, 10 unless they knuckle under to vague and standardless demands in a manner the Attorney General

11 and Secretary of Homeland Security, in their unbounded discretion, deem sufficient. Because 12 section 9(a) violates the separation of powers inherent in the Constitution, the Tenth Amendment, 13 and the Fifth Amendment’s due process clause, the Court should declare it unconstitutional and

14 permanently enjoin its implementation.

15

Although defendants have recently taken the position that the Executive Order is a legally

16 meaningless internal directive that they claim they will implement narrowly, the Court has rightly

17 rejected that argument as incompatible with the Executive Order itself. And the County of Santa 18 Clara (the “County”) cannot depend on such an illusory promise, particularly when executive 19 branch officials persist in making public declarations demonstrating that the Executive Order

20 means exactly what it says. To effectively govern, meet its state-mandated duties to protect the 21 health and safety of all its residents, and avoid drastic and widespread cuts in essential services, 22 the County—and state and local governments across the nation—require a clear and enforceable

23 judicial order stopping this unconstitutional power grab. Because the material facts are 24 undisputed and the law is clear, the County moves for summary judgment and requests that the 25 Court make its preliminary injunction permanent.

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II. FACTUAL BACKGROUND
As the Court explained during the hearing on the County’s preliminary injunction motion,
“[t]here are a number of facts that aren’t in dispute, [and] that don’t need further explication.”
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Request for Judicial Notice (“RJN”) ¶ 1, Ex. A (Apr. 14, 2017 Hr’g Tr.) at 5:18–19. Having reviewed the factual record in its preliminary injunction order—and having revisited those facts when denying defendants’ motion for reconsideration of that order—the Court is well-versed in the relevant facts. See County of Santa Clara v. Trump (“Santa Clara”), -- F. Supp. 3d --, 2017 WL 1459081, at *2–6 (N.D. Cal. Apr. 25, 2017), reconsideration denied, -- F. Supp. 3d --, 2017 WL 3086064 (N.D. Cal. July 20, 2017). The material facts supporting the County’s claims remain largely unchanged and are undisputed.
A. The President issues Executive Order 13768. On January 25, 2017, President Donald J. Trump issued Executive Order 13768. Exec. Order 13768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (the “Executive Order” or “EO”). The Executive Order declares that “[i]t is the policy of the executive branch to . . . “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” Id. § 2(c) (emphasis added). Section 9 implements that policy by authorizing federal officials to take punitive actions against any state and local governments that the Trump Administration deems to be “Sanctuary Jurisdictions.” Id. § 9. Specifically, Section 9(a) gives the Secretary of Homeland Security (the “Secretary”) the authority to designate state and local governments as “sanctuary jurisdictions.” Id. § 9(a). Although the Executive Order nowhere defines that key term, section 9(a) uses “sanctuary jurisdiction” synonymously with state and local governments that “willfully refuse to comply with 8 U.S.C. § 1373,”1 id. § 9(a), or that decline to honor Immigration and Customs Enforcement (“ICE”) civil detainer requests. Id. § 9(b) (equating “sanctuary jurisdictions” with jurisdictions “that ignored or otherwise failed to honor any detainers with respect to such aliens”). Section 9(a) contains two distinct penalty provisions, each mandatory in application. The first—the Defunding Provision—commands executive branch officials to strip state and local governments deemed to be “sanctuary jurisdictions” of their eligibility “to receive Federal
1 Section 1373 is a federal statute that “prohibits local governments from restricting government officials or entities from communicating immigration status information to ICE.” Santa Clara, 2017 WL 1459081, at *3.
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grants.” EO § 9(a). The second—the Enforcement Provision—orders the Attorney General to “take appropriate enforcement action against any entity that violates 8 U.S.C. § 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” Id. § 9(a). The Executive Order neither defines what it means to “prevent[] or hinder[]” federal law enforcement nor cabins or defines the phrase “Federal law” in any way.
B. The President and his subordinates have repeatedly confirmed the Executive Order’s sweeping intended scope.
As this Court has noted, “if there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments.” Santa Clara, 2017 WL 1459081, at *2. The record contains numerous judicially noticeable statements from the President, the Attorney General, and other executive branch officials, all of which confirm that the Executive Order is intended to, and does, have the broad scope its plain language reveals.
1. The Executive Order is designed to strip all federal funding from state and local governments deemed “sanctuary jurisdictions.”
President Trump has repeatedly pledged, both on the campaign trail and after taking the oath of office, not just to punish “sanctuary jurisdictions,” but to fully and finally “end” them by denying federal funding. See RJN ¶¶ 2, 7, Exs. B at 8, G. As a candidate, Mr. Trump issued a “Contract with the American Voter,” which was (and remains) accessible on his campaign website. See id. ¶ 3, Ex. C. One promise on Mr. Trump’s very short list of actions that the administration pledged to “immediately pursue” was to “cancel all federal funding to sanctuary cities.” Id. (emphasis added).
After taking office, the President confirmed his intent in issuing the Executive Order was exactly that: to deny all federal funds to targeted jurisdictions. Speaking to former Fox News personality Bill O’Reilly on February 5, 2017, the President frankly described defunding as a “weapon” that he could wield to deprive jurisdictions of “the money they need to properly operate as a city or state.” RJN ¶ 4, Ex. D at 4. With the Executive Order freshly issued, the President’s then-press secretary confirmed that the Administration’s policy, and the Executive Order’s goal,
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1 was to ensure that “counties and other institutions that remain sanctuary cities don’t get federal

2 government funding.” Id. ¶ 5, Ex. E at 4–5.

3

These threats have continued during this litigation and even after the Court entered the

4 preliminary injunction on April 25, 2017. On March 27, 2017, Attorney General Sessions stated

5 that any jurisdiction the Department of Justice deems noncompliant with Section 1373 will suffer

6 not only “withholding [of] grants, termination of grants, and disbarment or ineligibility for future

7 grants,” but also the “claw back” of “any funds” previously awarded. Id. ¶ 6, Ex. F at 3. And on

8 June 28, 2017, the White House issued a press release asserting that the President “is keeping his

9 promise[]” to “end the sanctuary cities” and to ensure that “[c]ities that refuse to cooperate with

10 Federal authorities will not receive taxpayer dollars.” Id. ¶ 7, Ex. G.

11

2. The Executive Order targets jurisdictions that refuse to comply with

ICE civil detainer requests. 12

13

Defendants have likewise made clear that, for purposes of the Executive Order, “sanctuary

14 jurisdictions” includes local jurisdictions that refuse to comply with ICE civil detainer requests.

15 Although defendants have taken the position—in this litigation, at least—that ICE civil detainer

16 requests are “voluntary” and that “compliance with 8 U.S.C. § 1373 . . . relates only to the sharing

17 of information,” Dkt. 136 at 8, the Administration’s public statements tell a different story.

18

On January 26, 2017, President Trump lauded the mayor of Miami, Florida, tweeting,

19 “Miami-Dade Mayor drops sanctuary policy. Right decision. Strong!” RJN ¶ 8, Ex. H. The

20 President’s tweet cited a Miami Herald article reporting that Miami’s mayor had directed his

21 corrections department “to honor all immigration detainer requests received form the Department

22 of Homeland Security.” Id. ¶ 9, Ex. I; see also id. ¶ 10, Ex. J. In light of this policy change, the

23 Department of Justice recently certified that Miami-Dade County is in compliance with Section

24 1373. Id. ¶ 11, Ex. K. Indeed, during a speech in Miami on August 16, 2017, Attorney General

25 Sessions confirmed that Miami-Dade’s decision to begin honoring ICE civil detainer requests had

26 persuaded him that Miami-Dade was now “in full compliance and eligible for federal law

27 enforcement grant dollars.” Id. ¶ 12, Ex. L. The implication is clear: to avoid being labeled a

28
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sanctuary jurisdiction under the Executive Order, a local government must comply with ICE civil
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1 detainer requests.

2

The Attorney General has likewise continued to link sanctuary jurisdictions with ICE

3 detainers—even after his counsel disclaimed the argument that Section 1373 requires compliance

4 with ICE civil detainer requests, and after issuing a supposedly clarifying Memorandum on the

5 Executive Order that nowhere mentions such requests. See infra at Part II.F (discussing May 22,

6 2017 Attorney General Memorandum). On July 12, 2017, after this Court rejected defendants’

7 motion for reconsideration of its preliminary injunction order, Attorney General Sessions publicly

8 lambasted “sanctuary cities” and “counties” for refusing to honor civil detainer requests, stating

9 “I urge them to review what they’re doing, to rethink those policies,” and to “detain someone so

10 the next jurisdiction can prosecute the case[.]” See RJN ¶ 13 (video of Att’y Gen. Sessions

11 Remarks of July 12, 2017, at 32:40–33:00). Acting ICE Director Thomas Homan has made the

12 same link, testifying in a congressional hearing that, at a minimum, DHS believes that Section

13 1373 requires “not only sharing the information, but allow[ing] us access to the jails.” Id. ¶ 14,

14 Ex. M at 45. These remarks echo previous comments Mr. Homan made after meeting with

15 President Trump on June 28, 2017. Referencing the “executive orders signed by the President

16 earlier this year,” Mr. Homan expressly equated “sanctuary jurisdictions” with those that “fail to

17 honor detainers.” Id. ¶ 15, Ex. N at 2.

18

3. The Administration intends to enforce the Executive Order against the

County of Santa Clara. 19

20

In addition to its general admissions about the Executive Order’s purpose and scope, the

21 Administration has made clear that it is targeting the County specifically. In the weeks after the

22 Executive Order was issued, ICE issued three “Weekly Declined Detainer Outcome Reports”

23 (“DDORs”) pursuant to Section 9(b) of the Executive Order, identifying counties deemed to be

24 “sanctuary jurisdictions.” RJN ¶¶ 16–18, Exs. O–Q. ICE called out the County by name in all 25 three DDORs. Id., Ex. O at 4; Ex. P at 8, 22; Ex. Q at 2, 22.2 The Administration has not

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2 The DDORs for February 4–10, 2017 and February 11–17, 2017 list the entire State of California as a “non-cooperative jurisdiction.” RJN, Ex. P at 8, 20; Ex. Q at 10, 21. This is consistent with President Trump’s public statement that California is, in his view, “out of control” and a potential target for his defunding “weapon.” Id., Ex. D at 4.
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wavered since then, despite arguing before this Court that the County lacks standing. Further, the number of requests ICE has sent to the County in 2017 has already surpassed all of those received in 2016. Decl. of Carl Neusel (“Neusel Decl.”) ¶ 6. Pursuant to the County’s policies, the County has denied all such requests. See infra Part II.C.
Defendants have made no secret that they consider California in general, and many of the state’s larger counties in particular, sanctuary jurisdictions that hinder the President’s immigration enforcement agenda. On March 29, 2017, Attorney General Sessions and then-Secretary of Homeland Security Kelly sent a letter to the Chief Justice of the California Supreme Court, asserting that “the State of California and many of its largest counties and cities, have enacted statutes and ordinances designed to specifically prohibit or hinder ICE from enforcing immigration law by prohibiting communication with ICE, and denying requests by ICE officers and agents to enter prisons and jails to make arrests.” RJN ¶ 19, Ex. R at 2.
C. To enhance public safety, the County has enacted policies and practices that fall squarely within the Executive Order’s ambit.
It is undisputed that the County’s policies and practices regarding federal immigration enforcement stand at odds with the Executive Order. To protect public safety and provide services to all its residents, the County has adopted policies and practices that prioritize local law enforcement and public safety over participating in federal immigration enforcement. See Decl. of Laurie Smith (“L. Smith Decl.”) ¶¶ 4–11; Neusel Decl. ¶¶ 4–11; Decl. of Jeffrey F. Rosen (“Rosen Decl.”) ¶¶ 5–12; Decl. of Miguel Márquez (“Márquez Decl.”) ¶¶ 22–29. In 2010, the County Board of Supervisors passed a Resolution barring County employees from using County resources to transmit to ICE information collected by the County in the course of providing critical services or benefits, as well as initiating an inquiry or enforcement action based solely on an individual’s actual or suspected immigration status. Márquez Decl. ¶ 28 & Ex. H; Neusel Decl. ¶ 8; L. Smith Decl. ¶ 7. The Resolution further prohibits the use of County resources to pursue an individual solely because of an actual or suspected civil violation of federal immigration law. Id.
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1

The County also has adopted a policy that limits compliance with ICE civil detainer

2 requests.3 Before late 2011, the County regularly responded to such requests, straining its

3 resources by housing an average of 135 additional inmates each day at a daily cost of $159 per

4 inmate (the cost would be $200 per inmate today). Neusel Decl. ¶ 4. ICE refused to reimburse

5 detention costs or indemnify the County for liability. Márquez Decl. ¶¶ 22–26 & Exs. C–E. A

6 County task force, which included the County Sheriff and other top law enforcement officials,

7 recommended that the County comply with ICE detainer requests only for individuals with

8 serious or violent felony convictions, as defined by California law, and the County’s final policy

9 honors such requests only if ICE agrees to reimburse the County for the costs of complying. L.

10 Smith Decl. ¶¶ 5–6; Neusel Decl. ¶¶ 5–6; Márquez Decl. ¶ 27 & Ex. G. Because ICE refuses to

11 reimburse costs associated with detainer requests, the County has declined to honor such requests

12 since the policy’s implementation in November 2011. Id.

13

The County’s core mission and mandate is to protect and promote public health and

14 safety. The County adopted policies and practices regarding federal immigration enforcement to

15 advance this core mission. As the County’s District Attorney, Sheriff, and Chief of Correction all

16 attest, enforcement of federal immigration law by the County has a toxic effect on the County’s

17 ability to fight crime and makes the entire community less safe. Rosen Decl. ¶¶ 3–12; L. Smith

18 Decl. ¶¶ 4–11; Neusel Decl. ¶¶ 5–11. Immigrants are no more likely to commit crimes than U.S.

19 citizens, see Rosen Decl. ¶ 7, and County law enforcement officials rely on all members of the

20 local community—including undocumented individuals—to assist with criminal investigations

21 and prosecutions. Id. ¶¶ 8–11; L. Smith Decl. ¶¶ 8–9; Neusel Decl. ¶ 9. When residents perceive

22 local law enforcement officers as cooperating with ICE, they are less willing to report crimes,

23 offer testimony, or seek basic medical care and other critical services. Rosen Decl. ¶¶ 8–11; L.

24 Smith Decl. ¶ 10; Neusel Decl. ¶ 9; Cody Decl. ¶ 13.

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3 An ICE civil detainer request asks a local law enforcement agency voluntarily to continue to hold an immigrant inmate—who is in a local jail because of actual or suspected violations of state criminal laws—for up to 48 hours after his or her scheduled release date so that ICE can decide whether to take the individual into custody and initiate removal proceedings. Neusel Decl. ¶ 10; Márquez Decl., Ex. C at 3.
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1

It is not the County’s role to enforce federal immigration law, and, in any event, the

2 County cannot change its local policies without suffering significant harms. First, as a local

3 government accountable to its residents, the County is responsible for identifying and

4 implementing policies that enhance and protect public health, welfare, and safety. The County

5 has determined that its current policies, rather than those the Executive Order would force upon it,

6 serve those objectives. See generally Rosen Decl.; L. Smith Decl.; Neusel Decl. Second, forcing

7 the County to comply with ICE civil detainer requests would impose significant costs that would

8 strain the County’s already severely impacted jail system. Neusel Decl. ¶¶ 10–11; Márquez Decl.

9 ¶ 29. Third, complying with civil detainer requests would force the County to violate the

10 constitutional rights of its residents and expose the County to substantial liability. Márquez Decl. 11 ¶¶ 22, 29.4 Finally, even if the County decided that it must change its local policies to avoid loss

12 of federal funds, it must still comply with state law that limits or prohibits its participation in

13 federal immigration enforcement activities. See, e.g., Transparency and Responsibility Using

14 State Tools (TRUST) Act, Cal. Gov’t Code § 7282.5.

15

D. The County relies on federal funding to provide critical health and safety

services to its 1.9 million residents. 16

17

It is undisputed that the County heavily relies upon federal funds to provide a wide array

18 of essential services to its residents. In fiscal year 2015–2016, the County received

19 approximately $1.7 billion in federal and federally dependent funds, representing roughly 35% of 20 the County’s revenue during that fiscal year.5 Decl. of Jeffrey V. Smith (“J. Smith Decl.”) ¶ 6;

21 Márquez Decl. ¶ 8. The County uses the vast majority of this federal funding to provide essential

22 safety-net programs and social services to its residents. Márquez Decl. ¶¶ 5–8. Without these

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4 See, e.g., Santa Clara, 2017 WL 1459081, at *4 (noting that several courts have held that complying with civil detainer requests violate the Fourth Amendment); Morales v. Chadbourne, 793 F.3d 208, 215–16 (1st Cir. 2015); Orellana v. Nobles Cnty., 230 F. Supp. 3d 934, 943–44 (D. Minn. 2017); Mendia v. Garcia, 2016 WL 2654327, at *6–7 (N.D. Cal. May 10, 2016); MirandaOlivares v. Clackamas Cnty., 2014 WL 1414305, at *11–12 (D. Or. Apr. 11, 2014).
5 The County received roughly $1 billion in federal funds not commingled with other funding sources. Márquez Decl. ¶ 8. It received an additional approximately $680 million in revenues which included a significant federal funding component and was dependent upon the receipt of federal funds through a matching requirement or other mechanism. Id. These two funding streams are referred to herein, collectively, as the County’s “federal funding” or “federal funds.”
8
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1 funds, the County would be forced to make extraordinary cuts to critical services—or even

2 eliminate key services and functions altogether. Id. ¶¶ 16–19; J. Smith Decl. ¶¶ 6–10. If not

3 permanently enjoined, the Executive Order’s threat to withdraw federal funding from the County

4 “would decimate the County budget and cause immediate and devastating injury to the 1.9

5 million residents who rely on the essential services that the County provides.” J. Smith Decl. ¶ 6.

6

In support of this motion, the County has submitted declarations from the County

7 Executive, Chief Operating Officer, Director of Emergency Management, Public Health Officer,

8 Director of the Social Services Agency, and CEO of Santa Clara Valley Medical Center detailing

9 the Executive Order’s potentially devastating impact on the County and its residents absent

10 injunctive relief. This undisputed evidence demonstrates that the Executive Order’s threat to strip

11 the County of federal funding would gut the County’s ability to provide basic services to its 12 residents.6 See, e.g., Decl. of Paul E. Lorenz (“Lorenz Decl.”) ¶ 6 (detailing how Valley Medical

13 Center relies on roughly $1 billion in federal funds, comprising 70% of its annual expenses);

14 Decl. of Robert Menicocci (“Menicocci Decl.”) ¶ 6 (explaining that the County’s Social Services

15 Agency receives more than $300 million in federal funding annually); Decl. of Sara H. Cody,

16 M.D. (“Cody Decl.”) ¶ 5 (explaining that the County’s Public Health Department receives more

17 than $38 million in federal funding annually—nearly 40% of its expenditures—for public health

18 services provided to residents); Decl. of Dana Reed (“Reed Decl.”) ¶ 8 (explaining that the

19 County’s Office of Emergency Services relies on federal funding for more than two-thirds of its

20 budget and “could not perform its current functions without it”).

21

E. The Court’s Preliminary Injunction Order

22

On April 25, 2017, the Court entered a nationwide preliminary injunction against section

23 9(a) of the Executive Order. See Santa Clara, 2017 WL 1459081, at *29. In its order, the Court

24 analyzed and rejected an argument that defendants had made for the first time at oral argument:

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6 As discussed above, the phrase “Federal grants” in Section 9(a) of the Executive Order applies to all federal funds, whatever their source. But even if that phrase were limited to federal funds that are not provided through entitlement programs, the County still received more than $338 million in non-entitlement federal grant awards in fiscal year 2014-2015 and more than $400 million in federal grant awards in fiscal year 2015-2016. Márquez Decl. ¶ 21 & Exs. A & B.
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that, despite its plain language, the Executive Order does not actually declare “sanctuary jurisdictions” ineligible for “Federal funds.” Id. at *7–10; EO § 2(c). Instead, defendants asserted, the Executive Order applies only to “federal grants issued by [two] specific agencies”— DOJ and DHS—and only those DOJ and DHS grants that Congress had expressly conditioned on compliance with section 1373. RJN, Ex. A at 34:24–35:9. The Administration further represented that DHS had not yet identified any DHS grants that Congress had expressly conditioned on compliance with section 1373. Id. at 35:3–4. Meanwhile, DOJ had identified only three grant programs that it contended were expressly conditioned on compliance with section 1373: the State Criminal Alien Assistance Program (“SCAAP”), the Justice Assistance Grant (“JAG”) program, and the Community Oriented Policing Assistance (“COPS”) initiative. Id. at 35:4–9. According to DOJ, the only federal funds subject to the Executive Order were grants from these three programs.
The Court rejected that re-interpretation of the Executive Order as “not legally plausible.” Santa Clara, 2017 WL 1459081 at *2. The Court based its ruling primarily on the Executive Order’s plain language, while also taking notice of repeated public comments by the President and the Attorney General, both of whom have consistently characterized the order as a means of stripping “sanctuary jurisdictions” of all federal dollars. Id. at *14–15.
F. The Court’s Order Denying Defendants’ Motions for Reconsideration and Dismissal
On May 23, 2017, defendants filed a motion for reconsideration, asking the Court to revisit its preliminary injunction order. Dkt. 113. Defendants based their motion on a two-page memorandum issued by the Attorney General on May 22, 2017, which merely reduced to writing the same implausible interpretation of the Executive Order that the Court had considered and rejected in its preliminary injunction order. See Dkt. 108-2 (“AG Memorandum”). On June 7, 2017, defendants moved to dismiss, also advancing the same implausible interpretation of the Executive Order, as well as the same arguments regarding justiciability that the Court had already considered and rejected. Dkt. 115.
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1

The Court denied both of defendants’ motions on July 20, 2017. See Santa Clara, 2017

2 WL 3086064, at *1. Confirming its preliminary injunction order, the Court again rejected

3 defendants’ interpretation of the Executive Order as “not legally plausible,” and concluded that

4 the AG Memorandum amounted to “nothing more than an illusory promise to enforce the

5 Executive Order narrowly.” Id. at *4–6. Turning to the motion to dismiss, the Court reiterated its

6 earlier ruling that the County’s claims are justiciable, concluding that the County had not only

7 stated valid causes of action challenging Section 9(a) of the Executive Order, but also had shown

8 that it is “likely to succeed on all of [its] claims.” Id. at *9.

9

G. Defendants’ Continuing Efforts to Punish and Coerce Targeted Jurisdictions

10

With the preliminary injunction in place, the County could continue providing its 1.9

11 million residents with core health and safety services, preserve the local policies targeted by the

12 Executive Order, and proceed with its annual budget process based upon the expectation that it

13 would continue to receive roughly $1.7 billion in federal funds. Márquez Decl. ¶ 20; J. Smith

14 Decl. ¶ 10.

15

But the danger inherent in the Executive Order remains. Even after this Court issued its

16 preliminary injunction, defendants have continued their attempts to coerce state and local

17 governments into changing their local policies to suit the federal government’s wishes. On July

18 25, 2017, DOJ issued new grant conditions designed to deny JAG funding to jurisdictions that

19 decline to (a) offer ICE access to local jails, and (b) provide DHS with 48 hours’ notice before

20 releasing certain individuals from local custody. RJN ¶¶ 20–21, Exs. S–T. The White House has

21 expressly tied these new conditions to the Executive Order. See id. ¶ 22, Ex. U. The cities of

22 Chicago, San Francisco, and Los Angeles, as well as the State of California, have challenged

23 these new conditions as unconstitutional. See id. ¶¶ 23–26, Exs. V–Y. What is clear is that

24 defendants are probing the outer limits of this Court’s preliminary injunction in order to continue

25 enforcing Section 9(a), including by aggressively over-reading statutory authorizations for their

26 grants. Defendants’ actions demonstrate why the Court must make its preliminary injunction

27 permanent.

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1 III. LEGAL STANDARD

2

A. Rule 56 Summary Judgment Standard

3

A party may move for summary judgment on any “claim or defense” or “part of [a] claim

4 or defense,” Fed. R. Civ. P. 56(a), and a district court should enter summary judgment where

5 “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a 6 matter of law.” Id. A dispute as to a material fact is only genuine “if there is sufficient evidence 7 for a reasonable jury to return a verdict for the nonmoving party. This requires evidence, not

8 speculation.” Mil-Spec Monkey, Inc. v. Activision Blizzard, Inc., 74 F. Supp. 3d 1134, 1139 (N.D.

9 Cal. 2014) (quotations omitted).

10

The primary issue presented by this motion is the interpretation and constitutionality of

11 the Executive Order. Where, as here, a “case involves interpretation of the EO as a matter of law, 12 . . . summary judgment is appropriate.” Wong v. Ilchert, 785 F. Supp. 822, 823–24 (N.D. Cal. 13 1991), aff’d, 998 F.2d 661 (9th Cir. 1993) (Orrick, J.); see also Dalzin v. Belshe, 993 F. Supp.

14 732, 734 (N.D. Cal. 1997) (“It is axiomatic that questions of statutory interpretation are questions 15 of law. Summary judgment is therefore the appropriate means for resolving this case” (citation 16 omitted)).

17

B. Standard for Interpretation of Executive Orders

18

Courts called upon to interpret executive orders begin with the order’s text. See Bassidji

19 v. Goe, 413 F.3d 928, 934 (9th Cir. 2005). “The text must be construed consistently with the

20 Order’s ‘object and policy.’” Id. Courts may not adopt interpretations that “require[] rewriting, 21 not just reinterpretation” of an order. United States v. Stevens, 559 U.S. 460, 481 (2010); see also 22 Foti v. City of Menlo Park, 146 F.3d 629, 639 (9th Cir. 1998) (holding that courts may not “insert

23 missing terms into the statute or adopt an interpretation precluded by [its] plain language”).

24

As the Court has already concluded—and defendants have conceded—the Court is in no

25 way bound by the Attorney General’s interpretation of the Executive Order. See Santa Clara,

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2017 WL 3086064, at *4. Nor does the Court owe any deference to an agency interpretation that
is neither an accurate nor a credible reading of an executive order. See id.; Comite de Jornaleros
de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 946 (9th Cir. 2011) (stating that
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1 courts need not “adopt an interpretation precluded by the plain language of the ordinance”). In

2 addition, when construing statutes and ordinances, courts consistently reject government officials’

3 promises or commitments to enforce an order more narrowly than it is written. See, e.g., Stevens,

4 559 U.S. at 480; City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 770 (1988); Doe v.

5 Harris, 772 F.3d 563, 580–81 (9th Cir. 2014); United States v. Nosal, 676 F.3d 854, 862 (9th Cir.

6 2012); Santa Clara, 2017 WL 3086064, at *5.

7 IV. 8

ARGUMENT In granting the County’s motion for a preliminary injunction, the Court concluded that the

9 County is likely to succeed on the merits of its four constitutional claims. Santa Clara, 2017 WL

10 1459081, at *21–26. Because neither the material facts nor the governing law have changed, the

11 Court’s analysis remains sound and the County is entitled to summary judgment.

12

A. Section 9(a) of the Executive Order violates the separation of powers inherent

in the Constitution. 13

14

Section 9(a) of the Executive Order seeks to grant the executive branch spending powers

15 that belong exclusively to Congress. Because neither the Constitution nor an act of Congress

16 grants the President the coercive spending powers he now claims, the Executive Order is

17 unconstitutional.

18

1. Congress, not the President, may place conditions on federal funds.

19

Article I of the Constitution vests the federal spending power exclusively in Congress.

20 See U.S. Const. art. I, § 8, cl. 1. The President may neither dictate federal spending nor place

21 conditions or limits on such spending. Rather, incident to its spending power, “Congress may

22 attach conditions on the receipt of federal funds,” and may “condition[] receipt of federal moneys

23 upon compliance by the recipient with federal statutory and administrative directives.” South

24 Dakota v. Dole, 483 U.S. 203, 206 (1987) (emphasis added and internal quotation marks

25 omitted). In our tripartite system of government, the President’s role is limited to approving a

26 spending bill or vetoing it; he may not amend or discard certain parts of it to further his own

27 policy objectives. See Clinton v. City of New York, 524 U.S. 417, 439 (1998). As this Court

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previously recognized, “[t]his is true even if Congress has attempted to expressly delegate such
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1 power to the President.” Santa Clara, 2017 WL 1459081, at *21; see also City of New York, 524

2 U.S. at 439 (striking down the Line Item Veto Act, which sought to grant the President the power

3 to cancel certain spending and tax provisions on a line-by-line basis).

4

Once a law is in place, the President must faithfully execute that law. See U.S. Const. art.

5 II § 3, cl. 5. “Where Congress has failed to give the President discretion in allocating funds, the

6 President has no constitutional authority to withhold such funds and violates his obligation to

7 faithfully execute the laws duly enacted by Congress if he does so.” Santa Clara, 2017 WL

8 1459081, at *21 (citing City of New York, 524 U.S. at 439). Nor can the President simply

9 withhold or “impound” allocated funds—Congress has expressly limited his authority to do so by

10 passing the Impoundment Control Act of 1974. 2 U.S.C. §§ 683 et seq.

11

As this Court previously concluded, Section 9(a) of the Executive Order “runs afoul of

12 these basic and fundamental constitutional structures” by vesting authority in the President and

13 his subordinates to enact new spending conditions or to deny previously allocated funds. Santa

14 Clara, 2017 WL 1459081, at *22. The Court reasoned that “Section 9 purports to give the

15 Attorney General and the Secretary the power to place a new condition on federal funds

16 (compliance with Section 1373) not provided for by Congress. But the President does not have

17 the power to place conditions on federal funds and so cannot delegate this power.” Id. Section

18 9’s text has not changed. This analysis is correct and entitles the County to summary judgment.

19

What’s more, by linking eligibility for federal funds to compliance with 8 U.S.C. § 1373,

20 civil detainer requests, and other assistance enforcing immigration laws, Section 9(a) of the

21 Executive Order contravenes Congress’s repeated refusals to pass legislation doing exactly that.

22 Santa Clara, 2017 WL 1459081, at *22 (listing failed federal legislation that would have

23 conditioned federal funds on compliance with immigration laws). It is well-settled that the

24 President’s power, “if any,” to issue executive orders “must stem either from an act of Congress

25 or from the Constitution itself,” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585

26 (1952), and that “when the President takes measures incompatible with the expressed or implied

27 will of Congress, his power is at its lowest ebb,” id. at 637 (Jackson, J., concurring). Such is the

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case here: the President may not enact spending conditions that Congress has expressly rejected.
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Nor is there any argument that the Constitution itself grants the President the spending power he now claims. Although “a President sometimes has policy reasons . . . for wanting to spend less than the full amount appropriated by Congress for a particular project or program,” “even the President does not have unilateral authority to refuse to spend the funds.” In re Aiken Cty., 725 F.3d 255, 261 n.1 (D.C. Cir. 2013).
2. Section 9(a) of the Executive Order purports to grant the President spending powers that even Congress lacks.
The Executive Order not only attempts to seize Congress’s spending power, but it also expands that power beyond constitutional limits. Indeed, the Court has already recognized that Section 9(a) of the Executive Order violates “at least three” of the limitations the Supreme Court has recognized cabin Congress’s spending power. Santa Clara, 2017 WL 1459081, at *22.
First, “Congress cannot use the spending power in a way that compels local jurisdictions to adopt certain policies.” Santa Clara, 2017 WL 1459081, at *23; see also Dole, 483 U.S. at 211 (holding that Congress may not offer “financial inducement . . . so coercive as to pass the point at which pressure turns to compulsion” (internal quotation marks omitted)). This requirement is rooted in fundamental notions of federalism; Congress may not use the power of the purse to “coerce[] a State to adopt a federal regulatory system as its own.” Nat’l Fed. of Indep. Bus. v. Sebelius (“NFIB”), 567 U.S. 519, 578 (2012). The Constitution forbids Congress from imposing spending conditions so draconian that they amount to “a gun to the head,” leaving the state or local government no realistic choice but to buckle to the federal government’s demands. Id. at 581.
The Executive Order fails this test. If the Affordable Care Act’s threat to deny Medicaid funds was an unconstitutional “gun to the head,” id., then the Executive Order is a fiscal nuclear weapon, threatening not only the County’s Medicaid funding, but every federal dollar the County receives, including funding for core County programs ranging from childhood nutrition to emergency preparedness training. See J. Smith Decl. ¶¶ 6–7; Márquez Decl. ¶ 8. “The threat is unconstitutionally coercive.” Santa Clara, 2017 WL 1459081, at *23.
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1

Although the Court did not reach the issue in entering its preliminary injunction, the

2 Executive Order also violates the Constitution’s rule against imposing a spending condition that

3 requires the recipient to take unconstitutional actions in order to receive the money. Dole, 483

4 U.S. at 208. Here, Sections 9(a) and 9(b) make clear that any jurisdiction that fails to honor ICE

5 civil detainer requests will find itself ineligible for federal funding. But state and federal courts in

6 this District and across the country have held that detaining individuals who would otherwise be

7 released from custody, at ICE’s request, violates the Fourth Amendment. See, e.g., Morales, 793

8 F.3d at 215–16; Orellana, 230 F. Supp. 3d at 943–44; Mendia, 2016 WL 2654327, at *6–7;

9 Miranda-Olivares, 2014 WL 1414305, at *11–12; Lunn v. Commonwealth, 78 N.E.3d 1143,

10 1153–54 (Mass. 2017). Thus, by conditioning federal funds on honoring ICE civil detainer

11 requests, the Executive Order is threatening to withhold promised money unless the County

12 agrees to violate its residents’ constitutional rights. Such an approach would be unconstitutional

13 even if Congress attempted it.

14

Second, Congress may only constitutionally impose spending conditions that bear some

15 relation to the funds appropriated—this is the “nexus” requirement. See Dole, 483 U.S. at 213.

16 Accordingly, the federal “funds conditioned on compliance with Section 1373 must have some

17 nexus to immigration enforcement.” Santa Clara, 2017 WL 1459081, at *23. Here, Section

18 9(a)’s “attempt to condition all federal grants on compliance with Section 1373 clearly runs afoul

19 of the nexus requirement: there is no nexus between Section 1373 and most categories of federal

20 funding, including without limitation funding related to Medicare, Medicaid, transportation, child

21 welfare services, immunization and vaccination programs, and emergency preparedness.” Id.

22 The County’s declarations make clear that virtually all of the County programs threatened by the

23 Executive Order have absolutely nothing to do with immigration. See J. Smith Decl. ¶ 5;

24 Márquez Decl. ¶¶ 10, 17–19; Lorenz Decl. ¶ 6; Cody Decl. ¶¶ 13–15; Menicocci Decl. ¶¶ 19–28; 25 Reed Decl. ¶¶ 8, 10–17.7

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7 Although defendants now contend that the Executive Order targets only a subset of federal grants, that is an “illusory promise” that fails to bind agencies other than DOJ, the executive branch as a whole, the Attorney General himself, or whoever his successor might be. See Santa Clara, 2017 WL 3086064, at *4–9.
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1

Third, any condition Congress places on spending must be unambiguous and made in

2 advance. See Dole, 483 U.S. at 207. “The legitimacy of Congress’s exercise of the spending

3 power thus rests on whether the state voluntarily and knowingly accepts the terms of the contract”

4 at the time Congress offers the money. NFIB, 567 U.S. at 577 (internal quotation marks omitted).

5 By placing ambiguous, retroactive conditions on all “federal grants,” Section 9(a) of the

6 Executive Order fails this constitutional requirement. Santa Clara, 2017 WL 1459081, at *22.

7 The Enforcement Provision suffers from an even more glaring lack of clarity. No one can say

8 what conduct the executive branch might decide “hinders the enforcement of Federal law”—a

9 vast category that may include statutes, regulations, and international treaties. EO § 9(a).

10

Furthermore, the Executive Order’s directives are themselves unclear and ambiguous:

11 defendants have never clarified or explained what it means to willfully refuse to comply with

12 Section 1373. Department of Homeland Security officials’ congressional testimony on that

13 question was that ICE was “struggling” along with DOJ to settle on an “operational meaning” of

14 a sanctuary jurisdiction, and what Section 1373 requires. See RJN ¶ 14, Ex. M at 45. Former

15 DHS Secretary and current White House Chief of Staff John Kelly testified that, with respect to

16 “the Sanctuary Cities thing . . . Frankly, I don’t really know what it means.” Id. ¶ 27, Ex. Z at

17 16–17. If defendants aren’t clear on what a state or local government must do to avoid being

18 classified as a sanctuary jurisdiction subject to defunding under the Executive Order, it follows

19 that the Order itself is unconstitutionally ambiguous.

20

In sum, Section 9(a) of the Executive Order tramples over ground on which even

21 Congress may not tread. Because it violates the Constitution’s separation of powers, the County

22 is entitled to summary judgment on this claim.

23

B. The Executive Order violates the Tenth Amendment.

24

Section 9(a) of the Executive Order violates the Tenth Amendment’s anti-commandeering

25 principle “because it attempts to conscript states and local jurisdictions into carrying out federal

26 immigration law.” Santa Clara, 2017 WL 1459081, at *23. Consequently, the Court should

27 grant summary judgment on the County’s second cause of action as well.

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The Supreme Court has “made clear that the Federal Government may not compel the States to implement, by legislative or executive action, federal regulatory programs.” Printz v. United States, 521 U.S. 898, 925 (1997) (emphasis added); see also New York v. United States, 505 U.S. 144, 175–76, 188 (1992). “That is true whether Congress directly commands a State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.” NFIB, 567 U.S. at 578.
That is exactly what the Executive Order is designed to accomplish. “[T]he Order equates ‘sanctuary jurisdictions’ with ‘any jurisdiction that ignored or otherwise failed to honor any detainers’ and therefore places such jurisdictions at risk of losing all federal grants.” Santa Clara, 2017 WL 1459081, at *24 (citing EO § 9(b)). By strong-arming state and local governments into becoming federal immigration agents, the Executive Order violates the Tenth Amendment.
Executive branch officials in the Departments of Justice and Homeland Security have repeatedly confirmed their intent to coerce state and local governments into becoming federal immigration enforcers. On March 27, 2017, Attorney General Sessions stated, “I strongly urge our nation’s states and cities and counties to . . . to rethink these policies. Such policies . . . put them at risk of losing federal dollars.” RJN ¶ 6, Ex. F at 3. The message is clear: enforce federal immigration law, or risk insolvency. On July 12, 2017, Attorney General Sessions reiterated this message, urging state and local governments to “rethink” their policies and to “detain” suspected undocumented persons “so the next jurisdiction”—namely ICE—“can prosecute the case.” See id. ¶ 13 (video of Att’y Gen. Sessions Remarks of July 12, 2017, at 32:40–33:00). In other words, participate in federal immigration enforcement activities and transform your jails into local ICE holding cells, or risk loss of federal funds and enforcement action. Acting ICE Director Thomas Homan has likewise confirmed the link between “sanctuary jurisdiction” status under the Executive Order and compliance with civil detainer requests. On July 12, 2017, he appeared on Fox News and demanded federal access to local jails, adding, “We have to make these people”— meaning local law enforcement officials—“cooperate with us.” Id. ¶ 28 (video of Fox News interview with Acting Director of ICE Thomas Homan at 4:00–4:30) (emphasis added).
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The Tenth Amendment, however, forbids the federal government from making state and local officials implement a federal regulatory program, by coercion or otherwise. Here, the County’s elected leaders and law enforcement officials have determined that the County is best served when its officials decline to act as federal immigration enforcers. Accordingly, the County has declined to honor ICE civil detainer requests since November 2011. Because the Executive Order threatens to withhold all federal funds from “sanctuary jurisdictions” that refuse to administer the Administration’s immigration enforcement agenda, the County can only avoid draconian penalties by requiring its officers to act as arms of the federal immigration enforcement apparatus. Such coercion violates the Tenth Amendment.
Moreover, the Enforcement Provision also seeks to compel state and local governments to comply with civil detainer requests by directing the Attorney General to “take appropriate enforcement action against any entity that . . . has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” EO § 9(a). As defendants’ statements make clear, the Administration views a refusal to comply with civil detainer requests as a hindrance to the enforcement of federal immigration law. See supra, Part II.B.2. Conversely, jurisdictions that do change their policies to get in line with the Administration’s immigration enforcement agenda, such as Miami-Dade, are deemed compliant and eligible to receive federal funds. See RJN ¶¶ 8–11, Exs. H–K. Accordingly, Section 9(a)’s Enforcement Provision seeks to conscript local officials in violation of the Tenth Amendment.
C. The Executive Order is void for vagueness in violation of the Fifth Amendment’s Due Process Clause.
The Executive Order is also unconstitutionally vague under the Fifth Amendment’s Due Process Clause. A federal law is unconstitutionally vague if it (1) “fails to provide a person of ordinary intelligence fair notice of what is prohibited,” or (2) “is so standardless that it authorizes or encourages seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008). These constitutional vagueness standards apply with full force to executive orders. See United States v. Soussi, 316 F.3d 1095, 1101 (10th Cir. 2002). As the Court concluded when
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1 granting the preliminary injunction, the Executive Order fails both of these tests. See Santa

2 Clara, 2017 WL 1459081, at *24–25.

3

First, the Executive Order fails to provide the County with fair notice of what conduct is

4 required or prohibited. Indeed, the Executive Order is “so vague and standardless” that the

5 officials charged with designating “sanctuary jurisdictions” have expressed utter befuddlement as

6 to what the term “sanctuary jurisdiction” means, even after the DOJ issued its supposedly

7 conclusive AG Memorandum. See RJN ¶ 29, Ex. AA at 3 (“I don’t have a clue.”); id. ¶ 27, Ex. Z

8 at 16–17 (“Frankly, I don’t really know what it means.”). On June 13, 2017—22 days after the

9 AG Memorandum’s release—acting ICE Director Homan reported to Congress that his agency

10 and the DOJ were still “struggling” to define the term, and to determine what, exactly, Section

11 1373 requires. See id. ¶ 14, Ex. M at 45. If the officials charged with implementing the

12 Executive Order are so baffled, then there is no way that state and local officials have “fair notice 13 of what is prohibited.” Williams, 553 U.S. at 304.8 Nor is it clear what the County must do (or

14 stop doing) to persuade defendants that it has no “practice that prevents or hinders the

15 enforcement of Federal law.” EO § 9(a). Such broad and sweeping text is beyond salvaging.

16

Second, the Executive Order lacks any clear standards or criteria, vesting the Attorney

17 General and Secretary with unfettered discretion to determine which jurisdictions fall within the

18 Executive Order’s ambit, whether they have “willfully refuse[d] to comply” with Section 1373,

19 and whether “appropriate enforcement action” is required. Id.. These “standardless guidance and

20 enforcement provisions” are therefore “likely to result in arbitrary and discriminatory

21 enforcement.” Santa Clara, 2017 WL 1459081, at *25. Because Section 9(a) of the Executive

22 Order is unconstitutionally vague, the Court should grant summary judgment on the County’s

23 void-for-vagueness claim.

24

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8 The AG Memorandum does nothing to clarify matters. In fact, it merely repeats verbatim the definition of “sanctuary jurisdictions” offered in the Executive Order: jurisdictions that “willfully refuse to comply with Section 1373.” EO § 9(a); AG Memorandum at 2. That is the same text the Court found too vague to pass muster, especially in light of the fact that the federal government has conceded that “it does not know what it means to ‘willfully refuse to comply’ with Section 1373.” Santa Clara, 2017 WL 1459081, at *25.
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D. The Executive Order deprives the County of procedural due process. Finally, the Executive Order violates the Fifth Amendment because it fails to provide the County with procedural due process. The undisputed facts establish that the County (1) has a protectable liberty or property interest, and (2) will suffer a denial of adequate process unless Section 9(a) of the Executive Order is permanently enjoined. See Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005). The County has “a legitimate property interest in federal funds that Congress has already appropriated and that the Count[y] ha[s] accepted.” Santa Clara, 2017 WL 1459081, at *26; see also NFIB, 132 S. Ct. at 2602; Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972); Doran v. Houle, 721 F.2d 1182, 1184–85 (9th Cir. 1983).9 The undisputed facts demonstrate that the County developed its budget based on “the expectation that the County would receive the federal funds to which it is entitled under its agreements with a number of federal and state agencies.” Márquez Decl. ¶¶ 13–16. In doing so, the County accepted the terms of a congressional contract and began performing under it. See Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 17 n.13 (1981). Accordingly, the County has a protectable property interest in federal appropriations previously authorized by Congress. “The essence of due process is the requirement that a person in jeopardy of serious loss be given notice of the case against him and opportunity to meet it.” Mathews v. Eldridge, 424 U.S. 319, 348 (1976) (internal alterations and quotations omitted). In this case, “[t]he Executive Order purports to make the Counties ineligible to receive these funds through a discretionary and undefined process,” that fails to provide any notice, opportunity to be heard, adjudicatory procedure, or appellate rights. Santa Clara, 2017 WL 1459081, at *26. “This complete lack of process violates the Fifth Amendment’s due process requirements.” Id.
E. The Court should enter a nationwide permanent injunction. A party seeking a permanent injunction must show “(1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to
9 Counties are “persons” for the purpose of asserting due process claims related to payment of federal funds. County of Santa Cruz v. Sebelius, 399 Fed. App’x 174, 176 (9th Cir. 2010).
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1 compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and

2 defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved

3 by a permanent injunction.” W. Watersheds Project v. Abbey, 719 F.3d 1035, 1054 (9th Cir.

4 2013) (internal quotation marks omitted). The County meets these requirements.

5

1. The County will suffer irreparable harm without a permanent

injunction.

6

7

The undisputed material facts demonstrate that, without an order enjoining Section 9(a),

8 the County faces both unconstitutional coercion to change its policies and extreme budgetary

9 uncertainty. Defendants’ illusory promise that they will exercise their discretion to implement the

10 Executive Order as set forth in the AG Memorandum—for now—leaves the Executive Order

11 untouched and fails to allay the County’s “reasonabl[e] fear [of] enforcement under the Order.”

12 Santa Clara, 2017 WL 1459081, at *27.

13

The constitutional harms the Executive Order inflicts constitute irreparable injury

14 sufficient to justify injunctive relief as a matter of law. See, e.g., Washington v. Trump, 847 F.3d

15 1151, 1169 (9th Cir. 2017); Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012). Most

16 fundamentally, the order attempts to “coerce the Count[y] into changing [its] local policies by

17 imposing overwhelming financial penalties without due process.” Santa Clara, 2017 WL

18 1459081, at *27. The County has enacted its policies governing local participation in

19 immigration enforcement for sound reasons that enhance—not subvert—public safety. See Rosen

20 Decl. ¶ 12; Neusel Decl. ¶ 9. The Executive Order’s attempt to strong-arm the County into

21 undoing these local policies constitutes irreparable harm. See Texas v. United States, 201 F.

22 Supp. 3d 810, 834–35 (N.D. Tex. 2016); Texas v. United States, 86 F. Supp. 3d 591, 673–74

23 (S.D. Tex. 2015). Similarly, the County “must choose either to attempt to comply” with an order

24 that violates the separation of powers and other constitutional limitations, or else “defy the Order

25 and risk losing hundreds of millions of dollars in federal grants.” Santa Clara, 2017 WL

26 1459081, at *27–28. Those structural constitutional injuries also establish irreparable harm. See

27 Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1058–59 (9th Cir. 2009).

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Moreover, absent a permanent injunction, the County would be “obligated to take steps to mitigate the risk of losing millions of dollars in federal funding, which will include placing funds in reserve and making cuts to services.” Santa Clara, 2017 WL 1459081, at *27. It will be forced to choose between slashing services and staff, or else bowing to unconstitutional directives. For example, Valley Medical Center (“VMC”) relies on roughly $1 billion in federal funding, mostly through Medi-Cal and Medicare programs. Lorenz Decl. ¶ 6. As VMC’s Chief Executive Officer has stated under oath, “The Court’s April 25, 2017 preliminary injunction order preserved [VMC’s] federal funding, thus preventing a massive and untenable public health crisis in the County, for now.” Id. ¶ 7. But with the injunction lifted, and defendants free to implement Section 9(a) according to its terms, VMC’s “ability to provide a broad range of quality services to thousands of patients – including infants and children, those with chronic diseases, and the elderly – would be greatly diminished, or at worst, potentially eliminated.” Id. Similarly, the County’s Director of Emergency Management has explained that the Office of Emergency Service (“OES”) relies on several DHS grants to fund roughly two-thirds of OES’ annual budget, with more than $1.3 million in expenditures awaiting federal reimbursement. Reed Decl. ¶¶ 8–9. Without a permanent injunction, OES would again face the prospect of slashing programs that help communities prepare for terrorist acts, natural disasters, and facilitate emergency preparedness. Id. ¶¶ 10–15. The County’s Social Services Agency (“SSA”) would likely face catastrophic fiscal consequences, absent a permanent injunction. See Menicocci Decl. ¶¶ 9–28. SSA’s director has declared that the preliminary injunction “allowed the Agency to continue providing critical services” to County residents, and that permanent relief will allow the Agency “to continue to perform its core safety net functions without the devastating impact of the loss of federal funds.” Id. ¶¶ 29–30. Importantly, none of these programs concerns federal immigration enforcement. Yet all of them fall within the Executive Order’s broad and unconstitutional sweep.
Defendants’ recent statements and actions—several of which have come after the Court’s preliminary injunction order—reinforce why the County requires permanent injunctive relief. See supra, Part II.G. Defendants’ shifting and confusing statements regarding the Executive Order’s meaning and reach—coupled with their ongoing attempts to deny federal funds to state and local
23 COUNTY OF SANTA CLARA’S NOTICE OF MOTION AND
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1 governments around the country—demonstrate why the County needs the certainty that only a

2 clear and enforceable judicial order can provide.

3

2. The County has no adequate remedy at law.

4

No remedy at law can compensate the injuries the Executive Order imposes. The County

5 cannot continue to spend millions of dollars per day on core health and safety programs in the

6 hopes of receiving federal reimbursement in the future, and seek redress later. See Márquez Decl.

7 ¶¶ 11–20; J. Smith Decl. ¶¶ 6–11. Such an approach not only courts fiscal calamity for the

8 County, but it would also likely face a sovereign immunity defense. See Kansas Health Care

9 Ass’n, Inc. v. Kansas Dep’t of Soc. & Rehab. Servs., 31 F.3d 1536, 1543 (10th Cir. 1994); Cedar-

10 Riverside People’s Ctr. v. Minn. Dep’t of Human Servs., 2009 WL 1955440, *2 (D. Minn. July 6,

11 2009). Even in the unlikely event that the County could somehow later recover unlawfully

12 withheld funds, the irreparable harm would have been done: the County would have been forced

13 to change its local policies, or lay off employees and slash critical services. No after-the-fact

14 monetary award could compensate for those injuries.

15

3. The balance of harms and public interest support a permanent

injunction. 16

17

When the federal government is a party, the balance of harms and the public interest

18 factors merge. See Nken v. Holder, 556 U.S. 418, 435 (2009). Both favor a permanent injunction

19 here. The government “cannot suffer harm from an injunction that merely ends an unlawful

20 practice.” Rodriguez v. Robbins, 715 F. 3d 1127, 1145 (9th Cir. 2013). Given that defendants

21 claim the Executive Order in no way changes existing law, an injunction limiting its

22 implementation can work no harm on defendants. See Santa Clara, 2017 WL 1459081, at *28.

23 The public, however, greatly benefits from an injunction alleviating the Executive Order’s

24 “facially unconstitutional directives” and “coercive effects.” Id.

25

F. The County has standing and its claims are ripe.

26

The Court has twice held that the County’s claims are justiciable. See Santa Clara, 2017

27 WL 3086064, at *9; Santa Clara, 2017 WL 1459081, at *7–21. Those decisions remain sound.

28
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Defendants have repeatedly singled out the County for prospective enforcement under the
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Executive Order, establishing “a credible threat of prosecution thereunder.” Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298 (1979). Accordingly, the County has standing and its claims are ripe. V. CONCLUSION
The constitutional flaws inherent in Section 9(a) of the Executive Order are fatal. The material facts, controlling law, and the Executive Order’s text remain unchanged since the Court issued and reaffirmed its preliminary injunction order, and denied defendants’ motion to dismiss the case. The Court should grant summary judgment, declare Section 9(a) of the Executive Order unconstitutional, and make permanent the preliminary injunction issued on April 25, 2017.

Dated: August 30, 2017

Respectfully submitted,
OFFICE OF THE COUNTY COUNSEL, COUNTY OF SANTA CLARA

Dated: August 30, 2017

By: /s/ James R. Williams JAMES R. WILLIAMS, County Counsel GRETA S. HANSEN L. JAVIER SERRANO DANIELLE GOLDSTEIN KAVITA NARAYAN JULIE WILENSKY JULIA SPIEGEL ADRIANA BENEDICT
Attorneys For Plaintiff COUNTY OF SANTA CLARA
KEKER, VAN NEST & PETERS LLP

By: /s/ John W. Keker JOHN W. KEKER ROBERT A. VAN NEST DANIEL PURCELL CODY S. HARRIS NICHOLAS S. GOLDBERG EDWARD A. BAYLEY
Attorneys For Plaintiff COUNTY OF SANTA CLARA
25 COUNTY OF SANTA CLARA’S NOTICE OF MOTION AND
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1

FILER’S ATTESTATION

2

I, John W. Keker, am the ECF user whose identification and password are being used to

3 file this Notice of Motion and Motion for Summary Judgment. Pursuant to Rule 5-1(i)(3), I

4 hereby attest that the other above named signatories concur in this filing.

5

6

/s/ John W. Keker JOHN W. KEKER

7

8

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Case 3:17-cv-00574-WHO Document 151-1 Filed 08/30/17 Page 1 of 2

1 OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA
2 JAMES R. WILLIAMS - # 271253 County Counsel
3 james.williams@cco.sccgov.org GRETA S. HANSEN - # 251471
4 L. JAVIER SERRANO - # 252266 DANIELLE L. GOLDSTEIN - # 257486
5 KAVITA NARAYAN - # 264191 JULIE WILENSKY - #271765
6 JULIA B. SPIEGEL - # 292469 ADRIANA L. BENEDICT - # 306936
7 70 West Hedding Street East Wing, Ninth Floor
8 San Jose, CA 95110-1770 Telephone: 408 299-5900
9 Facsimile: 408 292-7240

KEKER, VAN NEST & PETERS LLP JOHN W. KEKER - # 49092 jkeker@keker.com ROBERT A. VAN NEST - # 84065 rvannest@keker.com DANIEL PURCELL - # 191424 dpurcell@keker.com CODY S. HARRIS - # 255302 charris@keker.com NICHOLAS S. GOLDBERG - # 273614 ngoldberg@keker.com EDWARD A. BAYLEY - # 267532 ebayley@keker.com 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188

10 Attorneys For Plaintiff COUNTY OF SANTA CLARA

11 UNITED STATES DISTRICT COURT

12 NORTHERN DISTRICT OF CALIFORNIA

13 SAN FRANCISCO DIVISION

14

COUNTY OF SANTA CLARA, 15

Case No. 17-cv-00574-WHO

Plaintiff, 16

[PROPOSED] ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION

v. 17

FOR SUMMARY JUDGMENT

DONALD J. TRUMP, President of the 18 United States of America, ELAINE DUKE,

Dept.: Judge:

Courtroom 2, 17th Floor Hon. William Orrick

in her official capacity as Acting Secretary 19 of the United States Department of

Date Filed: February 3, 2017

Homeland Security, JEFFERSON B. 20 SESSIONS, in his official capacity as

Trial Date: April 23, 2018

Attorney General of the United States, 21 JOHN MICHAEL “MICK” MULVANEY,

in his official capacity as Director of the 22 Office of Management and Budget, and

DOES 1-50, 23

Defendants. 24

25

26

27

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Before the Court is Plaintiff County of Santa Clara’s (the “County”) Motion for Summary Judgment. Having considered the County’s moving and reply papers, defendants’ opposition papers, all evidence submitted in connection therewith, the case record, and the arguments of counsel, the Court hereby GRANTS the County’s Motion for Summary Judgment in its entirety.
IT IS FURTHER ORDERED THAT: 1. Section 9(a) of Executive Order 13768 is declared unconstitutional; 2. Defendants are permanently enjoined from implementing Section 9(a) of
Executive Order 13768.

IT IS SO ORDERED. Dated:

HON. WILLIAM H. ORRICK

1
[PROPOSED] ORDER GRANTING COUNTY OF SANTA CLARA’S MOTION FOR SUMMARY JUDGMENT CASE NO. 17-CV-00574-WHO

 
 Case 3:17-cv-00574-WHO Document 168 Filed 09/27/17 Page 1 of 29

1 CHAD A. READLER

Acting Assistant Attorney General
2 BRIAN STRETCH

3 United States Attorney
JOHN R. TYLER

4 Assistant Director

W. SCOTT SIMPSON (Va. Bar #27487)
5 Senior Trial Counsel

6

Department of Justice, Room 7210 Civil Division, Federal Programs Branch

7 Post Office Box 883
Washington, D.C. 20044

8 Telephone: (202) 514-3495

Facsimile: (202) 616-8470

9 E-mail:

scott.simpson@usdoj.gov

10

COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the

11 United States; ELAINE C. DUKE, Acting
Secretary of Homeland Security;

12 JEFFERSON B. SESSIONS, III, Attorney

General of the United States; MICK
13 MULVANEY, Director of the Office of

14 Management and Budget

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE NORTHERN DISTRICT OF CALIFORNIA

17

SANTA CLARA COUNTY DIVISION

18 COUNTY OF SANTA CLARA,

19

Plaintiff,

20

v.

21 DONALD J. TRUMP, et al.,

No. 3:17-cv-00574-WHO
OPPOSITION TO PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT

22

Defendants.

Date:

October 18, 2017

23

Time: 2:00 p.m.

24

25

26

27

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1

TABLE OF CONTENTS

2

3 TABLE OF AUTHORITIES .......................................................................................................... ii

4 INTRODUCTION .......................................................................................................................... 1

5 STATUTORY AND ADMINISTRATIVE BACKGROUND ....................................................... 3

6

I. Broad Executive Discretion in Enforcement of Immigration Law ......................... 3

7

II. Executive Order 13,768 .......................................................................................... 4

8

III. The AG Memorandum ............................................................................................ 5

9 ARGUMENT .................................................................................................................................. 6

10

I. Plaintiff’s Claims Are Non-Justiciable Under Principles of Standing and Ripeness ........................................................................................ 6

11

A. Plaintiff’s Claims Regarding the Grant Eligibility Provision

12

of the Executive Order Are Non-Justiciable ............................................... 8

13

B. Plaintiff’s Claim Regarding the “Appropriate Enforcement Action” Provision of the Executive Order Is Non-Justiciable .................. 10

14

II. Plaintiff Is Not Entitled to Judgment Regarding the Grant

15

Eligibility Provision of the Executive Order......................................................... 11

16

A. Plaintiff Is Not Entitled to Judgment Under the Separation of Powers........................................................................... 11

17

B. Plaintiff Is Not Entitled to Judgment in Relation

18

to the Limitations on the Spending Power ................................................ 13

19

C. Plaintiff Is Not Entitled to Judgment on its Claim that the Grant Eligibility Provision Is Unconstitutionally Vague .......................... 17

20

D. Plaintiff Is Not Entitled to Judgment on its Claim that the

21

Grant Eligibility Provision Violates Procedural Due Process................... 19

22

III. Plaintiff Is Not Entitled to Judgment Regarding the “Appropriate Enforcement Action” Provision of the Executive Order....................................... 20

23

IV. Any Injunction Herein Should Be Limited to the Plaintiff ................................... 21

24 CONCLUSION ............................................................................................................................. 22

25

26

27

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1

TABLE OF AUTHORITIES

2 3 CONSTITUTION

4 U.S. Const. art. I, § 8, cl. 1 ....................................................................................................... 11, 13

5 U.S. Const. art. III, § 2, cl. 1 ............................................................................................................ 6

6 7 CASES

8 Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ............................................................................ 7, 9

9 Arizona v. United States, 567 U.S. 387 (2012) .............................................................. 1, 10, 18, 21

10 Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ................... 16
11
Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298 (1994) ....................................... 20
12
Bigelow v. Virginia, 421 U.S. 809 (1975)........................................................................................ 7
13
14 Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002) ...................... 6

15 Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal.
May 19, 1995), aff'd sub nom. Chen v. INS, 95 F.3d 801 (9th Cir. 1996) ................................... 8
16
Colwell v. HHS, 558 F.3d 1112 (9th Cir. 2009)............................................................................. 10
17

18

Cty. of Santa Clara v. Trump, ___ F. Supp. 3d ___, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017) ............................................................... 11, 12, 22

19
Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993) ............................................................................ 21
20
DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275 (D.C. Cir. 1989)...................................................... 11
21

22 Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905 (D.C. Cir. 1985)................................................... 8

23 El Cenizo v. Texas, No. 17-50762, 2017 WL 4250186 (5th Cir. Sept. 25, 2017) ......................... 15

24 Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198 (D. Haw. 1998) ....................................... 7

25 Hines v. Davidowitz, 312 U.S. 52 (1941)....................................................................................... 21

26
Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133 (9th Cir. 2009) ............... 17, 19

27

Mathews v. Eldridge, 424 U.S. 319 (1976).................................................................................... 19

28

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1
Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ............................................................. 16
2
3 Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519 (2012) ................................................... 14, 15

4 Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016)............................. 7

5 New York v. United States, 505 U.S. 144 (1992) ........................................................................... 16

6 Newdow v. Bush, 391 F. Supp. 2d 95 (D.D.C. 2005)..................................................................... 22
7
Ore. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc.,
8 288 F.3d 414 (9th Cir. 2002) ....................................................................................................... 6

9 Price v. City of Stockton, 390 F.3d 1105 (9th Cir. 2004)............................................................... 21

10 S. Dakota v. Dole, 483 U.S. 203 (1987).................................................................................. passim
11
SEIU, Local 82 v. D.C., 608 F. Supp. 1434 (D.D.C. 1985) ........................................................... 18
12
Sierra Club v. Dombeck, 161 F. Supp. 2d 1052 (D. Ariz. 2001) ..................................................... 7
13
14 Skaff v. Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832 (9th Cir. 2007) ................................... 7

15 Skilling v. United States, 561 U.S. 358 (2010) .............................................................................. 17

16 Skydive Arizona, Inc. v. Quattrocchi, 673 F.3d 1105 (9th Cir. 2012)............................................ 21

17 Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624 (9th Cir. 1989) ............................................ 7
18 State of Cal. v. United States, 104 F.3d 1086 (9th Cir. 1997)........................................................ 14 19
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)............................................................ 7
20
Tenaska Washington Partners II, L.P. v. United States, 34 Fed. Cl. 434 (1995) ............................ 5
21
22 Texas v. United States, 523 U.S. 296 (1998) ............................................................................. 7, 11

23 Texas v. United States, 809 F.3d 134 (5th Cir. 2015) .............................................................. 21, 22

24 Tucson Woman’s Clinic v. Eden, 379 F.3d 531 (9th Cir. 2004) .............................................. 17, 18

25 U.S. W. Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112 (9th Cir. 1999)...................................... 8

26
United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) ............................................... 10, 18, 21

27

United States v. Salerno, 481 U.S. 739 (1987) ....................................................................... passim

28

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1
United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013) ......................................... 10, 18, 21
2
3 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) .................... 17, 18, 19

4 Whitmore v. Arkansas, 495 U.S. 149 (1990) ......................................................................... 7, 9, 10

5 Wilton v. Seven Falls Co., 515 U.S. 277 (1995) .............................................................................. 8

6 Winter v. California Med. Review, Inc., 900 F.2d 1322 (9th Cir. 1989).................................... 8, 11 7

8 STATUTES

9 28 U.S.C. § 512 ............................................................................................................................ 1, 5

10 8 U.S.C. § 1103(a)(1) ....................................................................................................................... 5
11
8 U.S.C. § 1103(g) ........................................................................................................................... 5
12
8 U.S.C. § 1101 et seq...................................................................................................................... 3
13
14 8 U.S.C. § 1324 .............................................................................................................................. 19

15 8 U.S.C. § 1324a ............................................................................................................................ 19

16 8 U.S.C. § 1357(g) ......................................................................................................................... 16

17 8 U.S.C. § 1357(g)(1)....................................................................................................................... 3
18 8 U.S.C. § 1357(g)(10)(B) ............................................................................................................... 4 19
8 U.S.C. § 1373 ....................................................................................................................... passim
20
8 U.S.C. § 1644 ................................................................................................................................ 4
21
22 Pub. L. No. 104-193, Title IV, § 434, 110 Stat. 2275 (1996) .......................................................... 4

23 Pub. L. No. 104-208, Div. C, Title VI, § 642, 110 Stat. 3009 (1996) ............................................. 4

24
EXECUTIVE ORDER
25
26 Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. passim

27

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1 REGULATIONS

2 2 C.F.R. § 200.341 ......................................................................................................................... 20
3 28 C.F.R. § 0.5(c)......................................................................................................................... 1, 5 4
28 C.F.R. pt. 18 .............................................................................................................................. 20
5

6 7 COURT RULES 8 Fed. R. Civ. P. 56(a)......................................................................................................................... 3

9
OTHER AUTHORITIES
10
Mem. from Att’y Gen. for All Dep’t Grant-Making Components (May 22, 2017) ............... passim
11
Mem. from John Kelly, Sec’y of Homeland Sec., to Kevin McAleenan,
12 Acting Comm’r, U.S. Customs and Border Protection, et al.,
Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017)............... 3
13
Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from the
14 Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1319-20 (2000) ........................................... 5

15

16

17

18

19

20

21

22

23

24

25

26

27

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1

INTRODUCTION

2

“The Government of the United States has broad, undoubted power over the subject of

3 immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 394 (2012).

4 Consistent with this federal power, Executive Order 13,768 establishes the enforcement of federal

5 immigration law as a priority for the Executive Branch. See Exec. Order No. 13,768, § 2, 82 Fed.

6 Reg. 8,799 (Jan. 30, 2017). Pertinent here, Section 9(a) of the Order directs the Attorney General

7 and the Secretary of Homeland Security (“Secretary”) to exercise their existing authority to

8 “ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 . . . are not eligible to

9 receive Federal grants” Id. § 9(a). Section 1373 provides that no government entity or official

10 may “prohibit, or in any way restrict” the sending of information regarding the citizenship or

11 immigration status of any individual to federal immigration authorities. 8 U.S.C. § 1373(a).

12 Section 9(a) of the Executive Order also instructs the Attorney General to exercise his existing

13 authority to take “appropriate enforcement action” against any entity that violates Section 1373 or

14 has a statute or policy that “prevents or hinders the enforcement of Federal law.” Id.

15

The Attorney General, in the exercise of his discretion under Section 9(a) and his overall

16 responsibility to advise executive department heads, see 28 U.S.C. § 512; 28 C.F.R. § 0.5(c), has

17 issued formal guidance regarding the implementation of Section 9(a). See Mem. from Att’y Gen.

18 for All Dep’t Grant-Making Components (May 22, 2017) (Attachment 1 hereto) (hereinafter AG

19 Mem.). Among other things, the AG Memorandum provides (1) that the grant eligibility

20 provision in Section 9(a) applies “solely to federal grants administered by the Department of

21 Justice or the Department of Homeland Security [“DHS”],” (2) that the Department of Justice

22 (“DOJ”) will require jurisdictions applying for certain DOJ-administered grants “to certify their

23 compliance with federal law, including 8 U.S.C. § 1373,” (3) that the certification will be

24 required only where the agency is “statutorily authorized to impose such a condition,” (4) that

25 “[a]ll grantees will receive notice of their obligation to comply with section 1373,” and (5) that

26 only “jurisdiction[s] that fail[] to certify compliance with section 1373 will be ineligible to

27 receive [an] award[].” AG Mem. at 1-2.

28

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1

In its motion for summary judgment, plaintiff seeks a declaration that the grant eligibility

2 provision in Section 9(a) of the Executive Order violates the constitutional Separation of Powers

3 and the Due Process Clause (as void for vagueness and procedurally deficient); a declaration that

4 the “appropriate enforcement action” provision in Section 9(a) violates the Tenth Amendment;

5 and an injunction against implementation of Section 9(a). Plaintiff’s claim under the Separation

6 of Powers also asserts that the grant eligibility provision violates principles under the Spending

7 Clause.

8

As discussed below, since plaintiff has not shown a concrete risk of harm from Section

9 9(a), the County lacks standing and its claims are unripe. Alternatively, assuming plaintiff’s

10 claims were justiciable, Section 9(a) and the AG Memorandum make clear that the grant

11 eligibility provision will be applied only where the Attorney General or the Secretary is acting

12 under statutory authority to condition grants on compliance with Section 1373, such that Section

13 9(a) is entirely consistent with the constitutional Separation of Powers.

14

Additionally, Section 1373 only addresses the sharing of information with federal

15 immigration authorities, and the AG Memorandum makes clear that prospective grantees will

16 receive notice of the Section 1373 condition in advance and that the condition will be applied

17 only to grants administered by the Department of Justice and the Department of Homeland

18 Security, which are, respectively, the primary law enforcement agency of the United States and

19 the agency responsible for the admission and removal of non-citizens. Thus, this grant condition

20 will not violate any of the Supreme Court’s limitations on the Spending Power. See S. Dakota v.

21 Dole, 483 U.S. 203, 207-08, 211 (1987).

22

Further, the AG Memorandum clarifies Section 9(a) of the Executive Order to indicate not

23 only that “[a]ll grantees will receive notice of their obligation to comply with section 1373,” but

24 also, among other things, that the process will be subject to the procedural requirements for

25 making or revoking federal grants, AG Mem. at 2 – thus satisfying the substantive and procedural

26 requirements of the Due Process Clause. Finally, the “appropriate enforcement action” provision

27

28

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1 of Section 9(a) does not “commandeer” a state or local government in violation of the Tenth

2 Amendment.

3

Thus, the plaintiff is not “entitled to judgment as a matter of law,” Fed. R. Civ. P. 56(a),

4 and its motion for summary judgment should be denied.

5

STATUTORY AND ADMINISTRATIVE BACKGROUND

6 I.

Broad Executive Discretion in Enforcement of Immigration Law

7

Through the Immigration and Nationality Act (“INA”), 8 U.S.C. § 1101 et seq., Congress

8 granted the Executive Branch significant authority to control the entry, movement, and other

9 conduct of foreign nationals in the United States. Under the INA, the Department of Homeland

10 Security, the Department of Justice, and other agencies of the Executive Branch administer and

11 enforce the immigration laws. Likewise, the INA permits the Executive Branch to exercise

12 considerable executive discretion to direct enforcement pursuant to federal policy objectives. For

13 example, the Secretary has consistently exercised executive discretion in the enforcement of

14 federal immigration law. See, e.g., Mem. from John Kelly, Sec’y of Homeland Sec., to Kevin

15 McAleenan, Acting Comm’r, U.S. Customs and Border Protection, et al., Enforcement of the

16 Immigration Laws to Serve the National Interest (Feb. 20, 2017).1

17

In emphasizing the federal government’s leading role in immigration enforcement, the

18 INA also envisions involvement from state and local authorities in the enforcement of

19 immigration law. For example, Section 287(g) of the INA authorizes the Secretary to enter into

20 written agreements with a state or local government under which officers of such government

21 may “perform a function of an immigration officer in relation to the investigation, apprehension,

22 or detention of aliens in the United States.” 8 U.S.C. § 1357(g)(1). Likewise, the INA provides

23 for cooperation with DHS in the “identification, apprehension, detention, or removal of aliens not

24 lawfully present in the United States,” even without a formal cooperation agreement. Id.

25

26

1 This memorandum is available at https://www.dhs.gov/ sites/ default/ files/
27 publications/ 17_0220_S1_Enforcement-of-the-Immigration-Laws-to-Serve-the-National-

28 Interest.pdf.

3

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1 § 1357(g)(10)(B). Another provision, 8 U.S.C. § 1373, ensures the sharing of information

2 between federal and state actors:

3

Notwithstanding any other provision of Federal, State, or local law, a Federal,

4

State, or local government entity or official may not prohibit, or in any way

restrict, any government entity or official from sending to, or receiving from,

5

[federal immigration authorities] information regarding the citizenship or

immigration status, lawful or unlawful, of any individual.

6

Id. § 1373(a); see Pub. L. No. 104-208, Div. C, Title VI, § 642, 110 Stat. 3009, 3009-707 (1996);

7

see also 8 U.S.C. § 1644 (similar provision enacted in Pub. L. No. 104-193, Title IV, § 434, 110

8

Stat. 2275 (1996)). Section 1373 also proscribes prohibiting or restricting any government entity

9

from “maintaining” information regarding the immigration status of any individual. 8 U.S.C.

10

§ 1373(b).

11

II. Executive Order 13,768

12

The President signed Executive Order 13,768, Enhancing Public Safety in the Interior of

13

the United States, on January 25, 2017. 82 Fed. Reg. 8,799 (Jan. 30, 2017). The Order seeks to

14

“[e]nsure the faithful execution of the immigration laws,” including the INA. See id. § 2(a), 82

15

Fed. Reg. at 8,799. It sets forth several policies and priorities regarding enforcement of federal

16

immigration law within the United States, and it instructs certain federal officials to use “all

17

lawful means” to enforce those laws. See id. §§ 1, 4, 82 Fed. Reg. at 8,799-800.

18

As permitted by the INA, Executive Order 13,768 establishes priorities regarding aliens

19

who are subject to removal from the United States under the immigration laws. Id. § 5, 82 Fed.

20

Reg. at 8,800. Section 9 of the Order provides that “[i]t is the policy of the executive branch to

21

ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall

22

comply with 8 U.S.C. 1373.” Section 9(a) directs federal agencies to achieve that policy:

23

24

In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that

25

jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary juris-

dictions) are not eligible to receive Federal grants, except as deemed necessary for

26

law enforcement purposes by the Attorney General or the Secretary. The Secre-

tary has the authority to designate, in his discretion and to the extent consistent

27

with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall

28

take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, 4

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1

or which has in effect a statute, policy, or practice that prevents or hinders the

enforcement of Federal law.
2

Id. § 9(a), 82 Fed. Reg. at 8,801. Section 9 also instructs the Director of the Office of
3

Management and Budget to “obtain and provide relevant and responsive information on all
4

Federal grant money that currently is received by any sanctuary jurisdiction.” Id. § 9(c), 82 Fed.
5

Reg. at 8,801.
6

III. The AG Memorandum
7

On May 22, 2017, the Attorney General issued a Memorandum regarding the
8

implementation of Executive Order 13,768. See AG Mem. at 1. The Attorney General has a
9

statutory duty to advise executive department heads on “questions of law,” 28 U.S.C. 512; to
10

represent federal agencies in litigation, id. § 516; and to furnish formal legal opinions to executive
11

agencies, 28 C.F.R. § 0.5(c). Also, although the Secretary principally administers the immigra-
12

tion laws, the INA provides that “the determination and ruling by the Attorney General with
13

respect to all questions of law shall be controlling.” 8 U.S.C. § 1103(a)(1); see id. § 1103(g). By
14

longstanding tradition and practice, the Attorney General’s legal opinions are treated as
15

authoritative by the heads of executive agencies. See, e.g., Tenaska Washington Partners II, L.P.
16

v. United States, 34 Fed. Cl. 434, 439 (1995); Randolph D. Moss, Executive Branch Legal
17

Interpretation: A Perspective from the Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1319-20
18

(2000) (“Few . . . dispute the proposition that whether for legal reasons, to promote uniformity
19

and stability in executive branch legal interpretation, or to avoid the personal risk of being subject
20

to the imputation of disregarding the law as officially pronounced, executive branch agencies
21

have treated Attorney General . . . opinions as conclusive and binding since at least the time of
22

Attorney General William Wirt [1817-1829].”) (footnotes and internal quotation marks omitted).
23

The AG Memorandum sets forth in a formal, conclusive manner the administration’s
24

interpretation of Section 9(a) of the Executive Order. The Memorandum specifies that the Order
25

does not “purport to expand the existing statutory or constitutional authority of the Attorney
26

General and the Secretary of Homeland Security in any respect,” but rather instructs those
27

officials to take certain action, “to the extent consistent with the law.” AG Mem. at 2; see Bldg.

28

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1 & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 33 (D.C. Cir. 2002) (noting that the

2 President is merely wielding his “supervisory authority over the Executive Branch” where he

3 “directs his subordinates” to take certain action “but only ‘[t]o the extent permitted by law’”).

4 The AG Memorandum further clarifies that the grant eligibility provision in Section 9(a) is

5 limited “solely to federal grants administered by [DOJ] or [DHS],” and to grants requiring the

6 applicant to “certify . . . compliance with federal law, including 8 U.S.C. § 1373, as a condition

7 for receiving an award.” AG Mem. at 1, 2. Only “jurisdiction[s] that fail[] to certify compliance

8 with [8 U.S.C. § 1373] will be ineligible to receive [an] award[]” pursuant to the grant eligibility

9 provision. Id. In other words, the provision applies only where an applicant or grant recipient

10 has had the choice either to certify compliance with 8 U.S.C. § 1373 as an express condition of

11 eligibility to participate in a certain grant program, or to refuse to certify compliance and thereby

12 render itself ineligible to participate in the program. The AG Memorandum also makes clear that,

13 with respect to Section 1373 compliance conditions, DOJ and DHS may impose such conditions

14 only pursuant to the exercise of “existing statutory or constitutional authority,” and only where

15 prospective grantees “will receive notice of their obligation to comply with section 1373.” AG

16 Mem. at 2. Lastly, the Attorney General states that, “[a]fter consultation with the Secretary of

17 Homeland Security, [he has] determined that, for purposes of enforcing the Executive Order, the

18 term ‘sanctuary jurisdiction’ will refer only to jurisdictions that ‘willfully refuse to comply with 8

19 U.S.C. 1373.’” Id. 20

ARGUMENT

21 I.

Plaintiff’s Claims Are Non-Justiciable Under Principles of Standing and Ripeness

22

Under Article III of the Constitution, the jurisdiction of the federal courts extends only to

23 “Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. Matters outside this rubric are “non-

24 justiciable.” Ore. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288

25 F.3d 414, 416 (9th Cir. 2002). Two principles of justiciability bar jurisdiction over plaintiff’s

26 claims: standing and ripeness. “While standing is concerned with who is a proper party to

27 litigate a particular matter, the doctrines of mootness and ripeness determine when that litigation

28

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1 may occur.” Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198, 1201 (D. Haw. 1998).

2 Where a plaintiff lacks standing or its claims are unripe, the court lacks jurisdiction. See Nat’l

3 Inst. of Family & Life Advocates v. Harris, 839 F.3d 823, 832 (9th Cir. 2016).

4

To satisfy the “irreducible constitutional minimum” of standing, a plaintiff must

5 demonstrate an “injury in fact,” a “fairly traceable” causal connection between the injury and

6 defendant’s conduct, and redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,

7 102-03 (1998). The injury needed for constitutional standing must be “concrete,” “objective,”

8 and “palpable,” not merely “abstract” or “subjective.” See Whitmore v. Arkansas, 495 U.S. 149,

9 155 (1990); Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975). Additionally, the injury must be

10 “certainly impending” rather than “speculative.” Whitmore, 495 U.S. at 157, 158. “The existence

11 of standing turns on the facts as they existed at the time the plaintiff filed the complaint.” Skaff v.

12 Meridien N. Am. Beverly Hills, LLC, 506 F.3d 832, 838 (9th Cir. 2007).

13

Constitutional justiciability also requires that a dispute be ripe for judicial consideration –

14 that is, that the challenged action “has been formalized and its effects felt in a concrete way by the

15 challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). In other words, “[a]

16 claim is not ripe for adjudication [under the Constitution] if it rests upon contingent future events

17 that may not occur as anticipated, or indeed may not occur at all.” Texas v. United States, 523

18 U.S. 296, 300 (1998) (internal quotation marks omitted). Like standing, “ripeness is determined

19 at the time of the filing of the complaint.” Sierra Club v. Dombeck, 161 F. Supp. 2d 1052, 1062

20 (D. Ariz. 2001).

21

In assessing constitutional ripeness in the context of a “pre-enforcement challenge” to a

22 statutory or administrative enactment, the courts consider “both the fitness of the issues for

23 judicial decision and the hardship to the parties of withholding court consideration.” Abbott

24 Labs., 387 U.S. at 149. “A claim is fit for decision if the issues raised are primarily legal, do not

25 require further factual development, and the challenged action is final.” Standard Alaska Prod.

26 Co. v. Schaible, 874 F.2d 624, 627 (9th Cir. 1989). In other words, a court considers whether the

27 court and the parties would “benefit from deferring review until the agency’s policies have

28

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1 crystallized and the question arises in some more concrete and final form.” Eagle-Picher Indus.,

2 Inc. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985) (internal quotation marks omitted); see U.S. W.

3 Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1119 (9th Cir. 1999) (finding that claim was not

4 fit for decision where administrative proceedings had not concluded and court would “benefit”

5 from outcome of those proceedings). Finally, “[t]o meet the hardship requirement, a litigant must

6 show that withholding review would result in direct and immediate hardship and would entail

7 more than possible financial loss.” Winter v. California Med. Review, Inc., 900 F.2d 1322, 1325

8 (9th Cir. 1989) (internal quotation marks omitted).

9

Under these principles, all of the claims in plaintiff’s Complaint are non-justiciable, as

10 discussed below. Aside from these standing and ripeness issues, plaintiff’s challenges to the

11 grant eligibility provision and the “appropriate enforcement action” provision in Section 9(a) of

12 the Executive Order are non-justiciable for the additional reason that the Order is only an internal

13 directive to certain Executive Branch officials and does not directly affect the plaintiff. See Chen

14 v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023, at *5 (N.D. Cal. May 19, 1995) (“President

15 Bush issued Executive Order 12,711 on the authority of his general constitutional powers to direct

16 the exercise of powers statutorily delegated to executive branch officials. Such an executive

17 order implementing policy as a product of executive authority rather than as a consequence of

18 congressional lawmaking does not have the full force of law.”) (citation omitted), aff’d sub nom.

19 Chen v. INS, 95 F.3d 801 (9th Cir. 1996).2

20

A. Plaintiff’s Claims Regarding the Grant Eligibility Provision

21

of the Executive Order Are Non-Justiciable

22

Counts 1, 2, and 3 in plaintiff’s Complaint allege that the grant eligibility provision

23 violates the Separation of Powers and the Due Process Clause (Doc. 1 ¶¶ 118-148). Santa Clara

24 County has not, however, established a concrete risk of losing any funds under that provision.

25

2 Additionally, to the extent the issues that plaintiff now seeks to litigate may later be

raised in a concrete, as-applied challenge regarding the County’s laws or policies, the Court

26 should exercise its discretion to decline jurisdiction under the Declaratory Judgment Act on that

basis. See Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995) (noting that “district courts
27 possess discretion in determining whether and when to entertain an action under the Declaratory

28

Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional prerequisites”). 8

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1 Indeed, eight months have now passed since promulgation of the Executive Order, and the

2 County can still cite no concrete threat of loss under Section 9(a), even aside from this Court’s

3 preliminary injunction. The County alleges budgetary “uncertainty” (Doc. 151 at 22), but fails to

4 acknowledge that the Attorney General’s Memorandum of May 22, 2017, eliminates that

5 uncertainty. The Memorandum provides (1) that the grant eligibility provision applies “solely to

6 federal grants administered by the Department of Justice or the Department of Homeland Security

7 [“DHS”],” (2) that the Department of Justice (“DOJ”) will require jurisdictions applying for

8 certain DOJ-administered grants “to certify their compliance with federal law, including 8 U.S.C.

9 § 1373,” and (3) that only “jurisdiction[s] that fail[] to certify compliance with section 1373 will

10 be ineligible to receive [an] award[].” AG Mem. at 1-2. Although plaintiff argues that the AG

11 Memorandum sets forth an “implausible interpretation” of the Executive Order (Doc. 151 at 10),

12 every essential element of the Memorandum is, in fact, reflected in the Order, which instructs the

13 Attorney General and the Secretary to “ensure that jurisdictions that willfully refuse to comply

14 with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants,” and to

15 impose compliance with Section 1373 as a grant condition “to the extent consistent with law.”

16 Exec. Order No. 13,768, § 9(a). Thus, compliance with Section 1373 can be imposed as a grant

17 condition only where there is independent authority to do so.

18

Even under the rationale of this Court’s Order denying defendants’ motion for

19 reconsideration, plaintiff cannot establish the “concrete” injury needed for standing and the

20 “concrete” impact needed for ripeness. See Whitmore, 495 U.S. at 155; Abbott Labs., 387 U.S. at

21 148-49. The Court disagreed with defendants’ contention that the AG Memorandum is a binding

22 legal opinion, but held that the Memorandum sets forth a “plan” for implementation of the

23 Executive Order – “a plan to apply section 9(a) only to DOJ and DHS grants” (Doc. 145 at 10).

24 More than four months have now passed since promulgation of the AG Memorandum, which

25 remains the only Federal Government statement regarding implementation of the grant eligibility

26 provision. Neither the President nor the Secretary has indicated any disagreement with the

27 Attorney General’s “plan” – or, in defendants’ view, the Attorney General’s legal opinion – and

28

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1 there is no suggestion that the grant eligibility provision might be implemented in any other way.

2 “The burden of establishing ripeness and standing rests on the party asserting the claim.” Colwell

3 v. HHS, 558 F.3d 1112, 1121 (9th Cir. 2009). Under these circumstances, Santa Clara County

4 cannot establish any concrete threat of losing funds pursuant to the grant eligibility provision.

5

B. Plaintiff’s Claim Regarding the “Appropriate Enforcement Action”

6

Provision of the Executive Order Is Non-Justiciable

7

Count 4 in plaintiff’s Complaint alleges that the Tenth Amendment is violated by the

8 provision in Section 9(a) that instructs the Attorney General to “take appropriate enforcement

9 action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or

10 practice that prevents or hinders the enforcement of Federal law.” Plaintiff’s claim to standing

11 and ripeness on this challenge is equally tenuous. The Federal Government has taken no

12 enforcement action against Santa Clara County under Section 9(a), and there is no indication that

13 any such action is imminent. Thus, the plaintiff has not suffered any “concrete” injury due to this

14 provision, and no such injury is “certainly impending.” See Whitmore, 495 U.S. at 155, 158.

15 Similarly, since the defendants might never take enforcement action against the County under

16 Section 9(a), this claim rests on “contingent future events that . . . may not occur at all,” see

17 Texas, 523 U.S. at 300, and the County cannot show any “direct and immediate hardship” from

18 withholding review, see Winter, 900 F.2d at 1325.

19

Nor could the plaintiff assert that the mere possibility of an enforcement action under

20 Section 9(a) of the Order has inflicted any cognizable injury. Indeed, there is always a possibility

21 that the Federal Government may sue a State or local government alleging that the defendant’s

22 laws or policies are constitutionally preempted. See Arizona v. United States, 567 U.S. 387

23 (2012); United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013); United States v. Alabama,

24 691 F.3d 1269 (11th Cir. 2012). This authority exists entirely independent of the Executive

25 Order. Id. Further, if such action were to occur, the County would have an opportunity at that

26 time to challenge its propriety and merits.

27

28

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1 II. Plaintiff Is Not Entitled to Judgment Regarding the Grant

2

Eligibility Provision of the Executive Order

As noted earlier, Counts 1, 2, and 3 of plaintiff’s Complaint allege that the grant eligibility
3

provision in Section 9(a) of the Executive Order violates the constitutional Separation of Powers
4

and the Due Process Clause (as void for vagueness and procedurally deficient). The Separation-
5

of-Powers claim includes an argument that the grant eligibility provision also violates principles
6

under the Spending Clause. Assuming these claims were justiciable, this provision of the Order is
7

consistent with all of those constitutional requirements, especially as elucidated by the AG
8

Memorandum.
9

Plaintiff’s claims regarding the grant eligibility provision are all the more difficult to
10

sustain because these are facial challenges to an Executive Order. The Supreme Court has held
11

that a facial challenge is “the most difficult challenge to mount successfully.” United States v.
12

Salerno, 481 U.S. 739, 745 (1987). In this context, “the challenger must establish that no set of
13

circumstances exists under which the [challenged enactment] would be valid.” Id. As further
14

discussed below, Santa Clara County has failed to establish that, even if Section 9 of the
15

Executive Order had the force of law (which it does not, as it is only an internal executive
16

directive), it would be invalid under all circumstances.
17

18

A. Plaintiff Is Not Entitled to Judgment Under the Separation of Powers

Count 1 alleges that the grant eligibility provision violates the Separation of Powers by
19

“claim[ing] for the executive branch powers exclusively assigned to Congress” (Doc. 1 ¶ 129).
20

Article I of the Constitution confers on Congress the authority to “lay and collect Taxes, Duties,
21

Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare
22

of the United States.” U.S. Const. Art. I, § 8, cl. 1. As this Court has said, Congress may,
23

“[i]ncident to” its spending power, “attach conditions on the receipt of federal funds,” Cty. of
24

Santa Clara v. Trump, ___ F. Supp. 3d ___, 2017 WL 1459081, at *21 (N.D. Cal. Apr. 25, 2017)
25

(quoting Dole, 483 U.S. at 206), and “Congress can delegate some discretion to the President to
26

decide how to spend appropriated funds” so long as “any delegation and discretion is cabined by
27

[relevant] constitutional boundaries.” 2017 WL 1459081, at *21; see DKT Mem’l Fund Ltd. v.

28

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1 AID, 887 F.2d 275, 280-81 (D.C. Cir. 1989) (upholding conditions on spending imposed by

2 President where statute authorized President to set certain “terms and conditions as he may

3 determine”).

4

Especially as elucidated by the AG Memorandum, the grant eligibility provision in

5 Section 9(a) is consistent with this division of constitutional responsibilities. The Executive

6 Order requires the Attorney General and Secretary to condition grant eligibility on compliance

7 with 8 U.S.C. § 1373 “to the extent consistent with law.” The AG Memorandum makes clear that

8 the Order does not “purport to expand the existing statutory or constitutional authority of the

9 Attorney General and the Secretary . . . in any respect” and “does not call for the imposition of

10 grant conditions that would violate any applicable constitutional or statutory limitation.” AG

11 Mem. at 1-2. Even more specifically, the Memorandum confirms that compliance with Section

12 1373 will be imposed as a condition of grant eligibility only where the agency “is statutorily

13 authorized to impose such a condition.” Id.

14

Authority to impose at least some conditions is inherent in the statutory authority to

15 administer a grant program. Moreover, beyond that inherent authority, Congress has frequently

16 authorized agencies administering certain grant programs, in a variety of ways, to impose

17 discretionary conditions on the receipt of funds. Pursuant to such authorizations, for example,

18 DOJ has determined to condition eligibility for participation in three DOJ-administered programs

19 on the applicant’s certification of compliance with Section 1373. See generally Tr. of Oral Arg.

20 at 35:4-6, City & Cty. of San Francisco v. Trump, No. 3:17-cv-00485 (N.D. Cal. Apr. 14, 2017)

21 (identifying the three programs); 2017 WL 1459081, at *4 (same).

22

Further, as noted above, a party challenging the facial constitutionality of an Executive

23 Order must establish that the Order would be unconstitutional in all its applications. See Salerno,

24 481 U.S. at 745 (facial challenge must establish that “no set of circumstances exists under which

25 [the enactment] would be valid”). That standard is necessarily impossible to meet in relation to

26 plaintiff’s Separation of Powers claim, since Congress frequently authorizes the Executive to

27 impose discretionary conditions on the receipt of federal grants.

28

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1

B. Plaintiff Is Not Entitled to Judgment in Relation to the

2

Limitations on the Spending Power

Plaintiff’s Count 1 also alleges that the grant eligibility provision violates the limitations
3

on the Spending Power (Doc. 1 ¶¶ 122-128). The Spending Clause of the Constitution provides
4

that Congress may “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
5

provide for the common Defence and general Welfare of the United States.” U.S. Const. art. I,
6

§ 8, cl. 1. As the Supreme Court has held, “Congress may attach conditions on the receipt of
7

federal funds, and has repeatedly employed the power to further broad policy objectives by
8

conditioning receipt of federal moneys upon compliance by the recipient with federal statutory
9

and administrative directives.” S. Dakota v. Dole, 483 U.S. 203, 206 (1987) (internal quotation
10

marks omitted).
11

The Court in Dole described certain limitations or potential limitations on the spending
12

power. Most basically, “the exercise of the spending power must be in pursuit of ‘the general
13

welfare’” – as stated in the Spending Clause itself, id. at 207 – and conditions on the receipt of
14

federal funds must be stated “unambiguously” so that recipients can “exercise their choice
15

knowingly, cognizant of the consequences of their participation.” Id. Additionally, the Court
16

observed in Dole, “our cases have suggested (without significant elaboration) that conditions on
17

federal grants might be illegitimate if they are unrelated to the federal interest in particular
18

national projects or programs,” and that “in some circumstances the financial inducement offered
19

by Congress might be so coercive as to pass the point at which pressure turns into compulsion.”
20

Id. at 207-08, 211 (internal quotation marks omitted). And finally, the Court said that “other
21

constitutional provisions may provide an independent bar to the conditional grant of federal
22

funds.” Id. at 207-08. Especially in light of the AG Memorandum, the grant eligibility provision
23

is fully consistent with these principles.
24

Plaintiff argues, first, that the grant eligibility provision will lead to the imposition of
25

conditions that are “profoundly coercive” in relation to the County’s overall budget (Doc. 1
26

¶ 131(iv); see Doc. 151 at 15). As the Court of Appeals has observed, however, the Supreme
27

Court in Dole concluded that it would find a violation of this potential limitation, “if ever, [only]

28

13

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1 in the most extraordinary circumstances.” State of Cal. v. United States, 104 F.3d 1086, 1092

2 (9th Cir. 1997) (citing Dole, 483 U.S. at 210-11). Thus, for example, the Court in Dole found no

3 constitutional violation where a State risked losing 5% of its highway funds for refusing to

4 implement a federal minimum drinking age. Dole, 483 U.S. at 211. Conversely, the Court held

5 more recently that Congress violated anti-coercion principles by subjecting States to a risk of

6 losing “all federal Medicaid funding,” which constituted “over 10 percent of a State’s overall

7 budget,” if they declined to adopt certain Medicaid expansion actions. See Nat’l Fed’n of Indep.

8 Bus. v. Sebelius, 567 U.S. 519, 542 (2012) (hereinafter NFIB). In that case, “the sheer size of this

9 federal spending program in relation to state expenditures” rendered the condition coercive. Id. at

10 683 (Scalia, J., dissenting). Courts should not conclude, however, that an enactment is

11 unconstitutional on this ground “unless the coercive nature of an offer is unmistakably clear.” Id.

12 at 681.

13

Under this precedent, plaintiff’s “coerciveness” claim must fail. As noted already, the

14 grant eligibility provision “will be applied solely to [certain] federal grants administered by the

15 Department of Justice or the Department of Homeland Security, and not to other sources of

16 federal funding.” AG Mem. at 1. Moreover, DOJ has so far identified only three programs

17 whose eligibility will be conditioned on compliance with Section 1373. See Tr. of Oral Arg. at

18 35:2-9. According to its Complaint, Santa Clara County previously received funds under two of

19 those programs, but has decided not to “apply for or accept future” funds under either program, in

20 order to “retain its discretion” regarding the sharing of immigration status information (Doc. 1 at

21 14 n.3). In these circumstances, the County has fallen far short of stating a viable claim that the

22 “coercive nature” of the grant eligibility provision is “unmistakably clear.” See NFIB, 567 U.S. at

23 681 (Scalia, J., dissenting).

24

Next, plaintiff argues that the grant eligibility provision exceeds the spending power by

25 requiring the County to “take unconstitutional actions in order to receive the money” (Doc. 151 at

26 16). The Court in Dole emphasized the narrowness of this limitation on the spending power,

27 noting that “the ‘independent constitutional bar’ limitation . . . is not . . . a prohibition on the

28

14

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1 indirect achievement of objectives which Congress is not empowered to achieve directly.” 483

2 U.S. at 210. Rather, the Court said, this limitation “stands for the unexceptionable proposition

3 that the power may not be used to induce the States to engage in activities that would themselves

4 be unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously

5 discriminatory state action or the infliction of cruel and unusual punishment would be an

6 illegitimate exercise of the Congress’ broad spending power.” Id. at 210-11.

7

The grant eligibility provision does not “induce” Santa Clara County to violate any such

8 constitutional prohibition. As stated in the AG Memorandum, that provision merely requires

9 prospective grantees to certify compliance with 8 U.S.C. § 1373, which proscribes prohibiting or

10 restricting the sharing of information with federal immigration authorities. See AG Mem. at 2.

11 That is not, however, the kind of “independent [constitutional] bar to the conditional grant of

12 federal funds” that the Supreme Court contemplated in Dole. 483 U.S. at 207-08. Plaintiff

13 asserts that the grant eligibility provision will require it to comply with federal immigration

14 detainer requests in violation of the Fourth Amendment (Doc. 151 at 16), but the AG Memoran-

15 dum says nothing about such requests, and, in any event, cooperating with them is fully consistent

16 with the Fourth Amendment. See El Cenizo v. Texas, No. 17-50762, 2017 WL 4250186, *2 (5th

17 Cir. Sept. 25, 2017) (staying injunction of state law requiring cooperation with federal detainer

18 requests and holding that State would likely succeed on its argument that mandatory cooperation

19 with such requests does not violate Fourth Amendment). Moreover, the AG Memorandum states

20 affirmatively that the provision “does not call for the imposition of grant conditions that would

21 violate any applicable constitutional or statutory limitation.” AG Mem. at 1-2. Santa Clara

22 County cannot show that the grant eligibility provision will require the County to “take

23 unconstitutional actions” in every application. Cf. Salerno, 481 U.S. at 745.

24

Plaintiff also argues that the grant eligibility provision imposes immigration-related

25 conditions in programs that “have absolutely nothing to do with immigration” (Doc. 151 at 16).

26 As the Court of Appeals has observed, however, this aspect of Dole suggests only a “possible

27 ground” for invalidating an enactment, and does not impose an “exacting standard”:

28

15

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1

The Supreme Court has suggested that federal grants conditioned on compliance

with federal directives might be illegitimate if the conditions share no relationship

2

to the federal interest in particular national projects or programs. This possible

3

ground for invalidating a Spending Clause statute, which only suggests that the

legislation might be illegitimate without demonstrating a nexus between the

4

conditions and a specified national interest, is a far cry from imposing an exacting

standard for relatedness.
5
Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (citing Dole, 483 U.S. at 207).

6
Thus, conditions on federal funding must only “bear some relationship to the purpose of the

7
federal spending.” 314 F.3d at 1067 (quoting New York v. United States, 505 U.S. 144, 167

8
(1992)); see Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir.

9
2004) (noting that Supreme Court has never “overturned Spending Clause legislation on

10
relatedness grounds”).

11
Especially as implemented by the AG Memorandum, the grant eligibility provision easily

12
meets this standard. The provision will be applied only to grants administered by the Department

13
of Justice and the Department of Homeland Security – that is, the primary law enforcement

14
agency of the United States and the agency responsible for the admission and removal of non-

15
citizens. AG Mem. at 1. DHS is the very agency whose communication with state and local

16
government officials is protected by Section 1373. Moreover, the provision will be applied only

17
to “certain . . . grants” as to which the agency “is statutorily authorized to impose such a

18
condition.” Id. at 2. And federal law clearly favors state-federal cooperation on immigration

19
matters. See 8 U.S.C. § 1357(g). Plaintiff continues to argue that the grant eligibility provision

20
threatens funds that provide “essential safety-net services to its residents,” including “Medicare,

21
Medicaid, transportation, child welfare [and] immunization and vaccination” services (Doc. 1

22
¶ 116; Doc. 151 at 16). But the AG Memorandum has eliminated any possibility that this

23
provision could be applied in relation to any of those categories of federal funding.

24
Lastly, plaintiff argues that the grant eligibility provision imposes conditions that are

25
“ambiguous” and not stated “in advance” (Doc. 151 at 17). As described above, however, the AG

26
Memorandum makes clear that the provision will be implemented by “requir[ing] jurisdictions

27
applying for certain [DOJ] grants to certify their compliance with federal law, including 8 U.S.C.

28

16

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Case 3:17-cv-00574-WHO Document 168 Filed 09/27/17 Page 23 of 29

1 § 1373, as a condition for receiving an award.” AG Mem. at 2. Thus, “[a]ll grantees will receive

2 notice of their obligation to comply with section 1373” ahead of time, and the grant eligibility

3 provision will be applied to “[a]ny jurisdiction that fails to certify compliance.” Id. Necessarily,

4 therefore, by reviewing the applicable grant program solicitations and award documents presented

5 to them for acceptance or refusal, potential grantees will be able to “exercise their choice

6 knowingly, cognizant of the consequences of their participation” in grant programs that include

7 this condition. Dole, 483 U.S. at 207. The plaintiff cannot show that the grant eligibility

8 provision will fail this aspect of Dole in all its applications, as necessary in this facial challenge.

9 See Salerno, 481 U.S. at 745.

10

C. Plaintiff Is Not Entitled to Judgment on its Claim that the

Grant Eligibility Provision Is Unconstitutionally Vague
11

Plaintiff’s next claim, in Count 2 of the Complaint, is that Section 9(a) is unconstitu-

12

tionally vague in violation of the Due Process Clause (Doc. 1 ¶¶ 135-142). An enactment may be

13

unconstitutionally vague if it “fails to provide a reasonable opportunity to know what conduct is

14

prohibited, or is so indefinite as to allow arbitrary and discriminatory enforcement.” Tucson

15

Woman’s Clinic v. Eden, 379 F.3d 531, 554 (9th Cir. 2004) (citation omitted). The Supreme

16

Court, however, has cautioned against engaging in a vagueness analysis in the pre-enforcement

17

context, particularly in matters that do not involve First Amendment rights. See Wash. State

18

Grange v. Wash. State Republican Party, 552 U.S. 442, 50 (2008) (noting that facial vagueness

19

challenges are “disfavored for several reasons,” including because such claims often “rest on

20

speculation”). “Outside the First Amendment context, a plaintiff alleging facial vagueness must

21

show that the enactment is impermissibly vague in all its applications.” Humanitarian Law

22

Project v. U.S. Treasury Dep’t, 578 F.3d 1133, 1146 (9th Cir. 2009) (internal quotation marks

23

omitted). This is consistent with the rule that a party challenging an enactment on its face must

24

show that “no set of circumstances exists under which the [enactment] would be valid.” Salerno,

25

481 U.S. at 745. Moreover, courts will consider whether a provision is fairly “amenable to a

26

limiting construction” before striking it down as vague. Skilling v. United States, 561 U.S. 358,

27

28

17

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1 405 (2010). Thus, a plaintiff bringing a pre-enforcement facial vagueness challenge “bears a

2 heavy burden.” SEIU, Local 82 v. D.C., 608 F. Supp. 1434, 1446-47 (D.D.C. 1985).

3

In this case, the County argues that “Section 9(a) of the Executive Order fails to define

4 key terms, such as ‘sanctuary jurisdiction,’ ‘Federal grants,’ ‘law enforcement purposes,’

5 ‘appropriate enforcement action,’ and ‘entity,’ as well as . . . ‘statute, policy, or practice that

6 prevents or hinders the enforcement of Federal law’” (Doc. 1 ¶ 139). As discussed above,

7 however, the Order is an internal directive to Executive Branch officials and does not have any

8 direct effect on the plaintiff. Therefore, there can be no legitimate question as to whether the

9 Order provides “reasonable” notice to the plaintiff. See Tucson Woman’s Clinic, 379 F.3d at 554.

10 In any event, the AG Memorandum authoritatively clarifies the meaning of Section 9(a),

11 specifying, for example, that the “the term ‘sanctuary jurisdiction’ will refer only to jurisdictions

12 that “willfully refuse to comply with 8 U.S.C. 1373.” AG Mem. at 2. Additionally, the Memo-

13 randum makes clear that the “Federal grants” to which Section 9(a) will apply are only those

14 “grants administered by the Department of Justice or the Department of Homeland Security” as to

15 which the agency is “statutorily authorized” to impose the condition of compliance with 8 U.S.C.

16 § 1373. Id. at 1-2.

17

Other aspects of plaintiff’s vagueness challenge “rest [entirely] on speculation.” See

18 Wash. State Grange, 552 U.S. at 50. Undeniably and uncontroversially, the Attorney General is

19 authorized to take certain “enforcement actions” against a State and local jurisdiction whose

20 “statute, policy, or practice . . . prevents or hinders the enforcement of Federal law.” See Arizona

21 v. United States, 567 U.S. 387 (2012) (asserting that certain state laws regarding non-citizens are

22 preempted by federal law); United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013) (same);

23 United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) (same). There is no indication that the

24 Attorney General will take any unauthorized or inappropriate actions pursuant to this provision in

25 Section 9(a). Thus, the County cannot show that President’s instruction to take “appropriate”

26

27

28

18

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Case 3:17-cv-00574-WHO Document 168 Filed 09/27/17 Page 25 of 29

1 action against such statutes, policies, or practices is “impermissibly vague in all its applications.”

2 See Humanitarian Law Project, 578 F.3d at 1146.3

3

D. Plaintiff Is Not Entitled to Judgment on its Claim that the

4

Grant Eligibility Provision Violates Procedural Due Process

5

Count 3 of plaintiff’s Complaint alleges that Section 9(a) of the Order “deprives the

6 County of its procedural due process rights under the Fifth Amendment because it grants the

7 Attorney General and Secretary . . . unfettered discretion to deprive the County of all federal

8 funds, with no opportunity to review, challenge, or even obtain notice that the deprivation is

9 coming” (Doc. 1 ¶ 146). Under the Fifth Amendment, the government may not deprive anyone

10 of “property” without “due process of law.” Where a constitutionally protected property interest

11 exists, what type of procedural protections are “due” depends on the circumstances, including

12 “the risk of an erroneous deprivation,” the “probable value” of procedural safeguards, and the

13 government’s interests. Mathews v. Eldridge, 424 U.S. 319, 335 (1976). Plaintiff asserts that it

14 “has a constitutionally protectable property interest in the federal funds it relies on to provide

15 essential services to 1.9 million residents” (Doc. 1 ¶ 145).

16

In light of the AG Memorandum, however, Section 9(a) does not apply to funding in

17 which the County might have a constitutionally protectable interest, and, in any event, the

18 applicable procedures will be provided. As discussed earlier, the grant eligibility provision will

19 be applied only to certain grants administered by DOJ and DHS, see AG Mem. at 1, and DOJ has

20 so far identified only three programs in which eligibility will depend on compliance with Section

21 1373. See Tr. of Oral Arg. at 35:2-9. The County does not allege – and cannot show – that these

22 programs provide “federal funds it relies on to provide essential services to 1.9 million residents”

23

24

3 The same is true of plaintiff’s allegation (Doc. 1 ¶ 141) that vagueness principles are

violated by Section 6 of the Executive Order, which instructs the Secretary of Homeland Security

25 to “ensure the assessment and collection of all fines and penalties that the Secretary is authorized
under the law to assess and collect from aliens unlawfully present in the United States and from
26 those who facilitate their presence in the United States” (emphasis added). The INA provides for

several such fines and penalties. See, e.g., 8 U.S.C. §§ 1324 (penalties for bringing in and
27 harboring certain aliens), 1324a (penalties for unlawful employment of aliens), 1325 (civil

28 penalties for improper entry).

19

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Case 3:17-cv-00574-WHO Document 168 Filed 09/27/17 Page 26 of 29

1 (Doc. 1 ¶ 145). Moreover, the AG Memorandum indicates that compliance with Section 1373

2 will be included as a grant condition only where the agency “is statutorily authorized to impose

3 such a condition,” and that “[a]ll grantees will receive notice of their obligation to comply with

4 section 1373.” AG Mem. at 2. Additionally, by specifying that this condition be exercised “to

5 the extent consistent with law,” Section 9(a) incorporates the governing legal limitations, such as

6 the procedural requirements for making or revoking federal grants. See, e.g., 2 C.F.R. § 200.341

7 (hearings and appeals in federal grant-making); 28 C.F.R. pt. 18 (DOJ Office of Justice Programs

8 Hearing and Appeal Procedures).

9 III. Plaintiff Is Not Entitled to Judgment Regarding the “Appropriate

10

Enforcement Action” Provision of the Executive Order

11

Count 4 in plaintiff’s Complaint alleges that the Tenth Amendment is violated by the last

12 sentence of Section 9(a), which instructs the Attorney General to “take appropriate enforcement

13 action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or

14 practice that prevents or hinders the enforcement of Federal law” (Doc. 1 ¶¶ 149-152). Plaintiff

15 alleges that this provision “commandeers state and local officials” by seeking to compel them “to

16 comply with civil detainer requests” (Doc. 1 ¶ 151; Doc. 151 at 19).4

17

In this facial challenge, however, plaintiff must show that the “appropriate enforcement

18 action” provision would violate the Tenth Amendment in all of its applications. See Salerno, 481

19 U.S. at 745 (facial challenge must establish that “no set of circumstances exists under which [the

20 enactment] would be valid”). The County does not – and could not – argue that there are never

21 situations where the Federal Government may appropriately take action against a state or local

22 government entity whose “statute, policy, or practice . . . prevents or hinders the enforcement of

23 Federal law.” For example, the United States, represented by the Attorney General, may bring a

24 judicial action against such an entity to enjoin a statute or practice that is preempted by federal

25
4 In its assertions regarding the intent of this provision, plaintiff cites press statements and

26 media interviews (Doc. 151 at 18). But Executive Branch actions that “express federal policy but

lack the force of law,” such as press releases, are “merely precatory” and cannot render an
27 otherwise valid action unconstitutional. See Barclays Bank PLC v. Franchise Tax Bd. of Cal.,

28 512 U.S. 298, 329-30 (1994).

20

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Case 3:17-cv-00574-WHO Document 168 Filed 09/27/17 Page 27 of 29

1 immigration law. See, e.g., Arizona v. United States, 567 U.S. 387 (2012); United States v. South

2 Carolina, 720 F.3d 518 (4th Cir. 2013); United States v. Alabama, 691 F.3d 1269 (11th Cir.

3 2012). Indeed, one of the tests for federal preemption is whether the state or local enactment

4 “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of

5 Congress,” Arizona, 567 U.S. at 399 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)) –

6 which is essentially another way of asking whether an enactment “prevents or hinders the

7 enforcement of Federal law.” If such a lawsuit were ever to overreach the bounds of constitu-

8 tional preemption, the County (or any other defendant entity) could oppose the relief sought at

9 that time on an as-applied basis.

10 IV. Any Injunction Herein Should Be Limited to the Plaintiff

11

Even if the Court were to conclude that plaintiff has satisfied the requirements for

12 summary judgment, the Court should not enter a nationwide injunction herein (contra Doc. 151 at

13 21). “[A]n injunction must be narrowly tailored to affect only those persons over which [the

14 court] has power, and to remedy only the specific harms shown by the plaintiffs, rather than to

15 enjoin all possible breaches of the law.” Price v. City of Stockton, 390 F.3d 1105, 1117 (9th Cir.

16 2004) (internal quotation marks omitted). Thus, courts routinely deny requests for nationwide

17 injunctive relief. See Dep’t of Def. v. Meinhold, 510 U.S. 939 (1993) (staying nationwide

18 injunction insofar as it “grants relief to persons other than” named plaintiff); Skydive Arizona, Inc.

19 v. Quattrocchi, 673 F.3d 1105, 1116 (9th Cir. 2012) (affirming district court’s refusal to grant

20 nationwide relief).

21

In support of its request for a nationwide injunction, plaintiff’s preliminary injunction

22 motion cited Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015), where the court affirmed a

23 nationwide injunction against programs allowing certain non-citizens to remain in the United

24 States (Doc. 26 at 25). The County fails to acknowledge, however, that it vigorously objected to

25 the nationwide injunction in that case.5 In an amicus brief filed before the Supreme Court, Santa

26

27

5 Moreover, the court in Texas entered a nationwide injunction in light of the “substantial

28

likelihood that a geographically-limited injunction would be ineffective because [affected 21

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Case 3:17-cv-00574-WHO Document 168 Filed 09/27/17 Page 28 of 29

1 Clara County and other jurisdictions urged the Court to vacate the injunction because the plain-

2 tiffs had failed “to establish injury sufficient to enjoin the [programs] nationwide.” See Brief for

3 Amici Curiae, United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15-674), 2016 WL 891345, at

4 *20 (Attachment 2 hereto). The County and its fellow amici argued that, to justify “an expansive

5 nationwide injunction,” the plaintiffs there would have to “establish standing to justify the scope

6 of the injunction.” Id. at *19, *30. In this case, Santa Clara County has not even attempted to

7 establish standing to seek a nationwide injunction against Section 9(a). By its own arguments,

8 therefore, any permanent injunction herein should be limited to Santa Clara County.6

9

CONCLUSION

10

For the reasons discussed above, plaintiff’s motion for summary judgment should be

11 denied.

12 Dated: September 27, 2017 13 14 15 16

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
BRIAN STRETCH United States Attorney

17

JOHN R. TYLER

18

Assistant Director

19

/s/ W. Scott Simpson

20

W. SCOTT SIMPSON (Va. Bar #27487)

Senior Trial Counsel
21

22

23

24

persons] would be free to move among states.” 809 F.3d at 188. No analogous situation is presented here.

25

6 Additionally, any permanent injunction in this action, like the existing preliminary

injunction, should not include the President. See Cty. of Santa Clara v. Trump, ___ F. Supp. 3d

26 ___, 2017 WL 1459081, at *29 (N.D. Cal. Apr. 25, 2017) (“I conclude that an injunction against

the President is not appropriate.”); see also Newdow v. Bush, 391 F. Supp. 2d 95, 105, 106
27 (D.D.C. 2005) (“[T]he Supreme Court has sent a clear message that an injunction should not be

28

issued against the President for official acts.”). 22

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Case 3:17-cv-00574-WHO Document 168 Filed 09/27/17 Page 29 of 29

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Defs’ Opp. Summ. Judgment No. 3:17-cv-00574-WHO

Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS DONALD J. TRUMP, President of the United States; ELAINE C. DUKE, Acting Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; MICK MULVANEY, Director of the Office of Management and Budget
23

Case 3:17-cv-00574-WHO Document 168-1 Filed 09/27/17 Page 1 of 3
County of Santa Clara v. Donald J. Trump, et al., No. 3:17-cv-00574-WHO (N.D. Cal.) Opposition to Plaintiff’s Motion for Summary Judgment
Attachment 1 Memorandum from the Attorney General
for All Department Grant-Making Components (May 22, 2017)

Case 3:17-cv-00574-WHO Document 168-1 Filed 09/27/17 Page 2 of 3
®ffic.e of fq.e J\ftnrn.eu ®.en.era!
�as£ringtnn, �.QL 20530 May 22, 2017

MEMORANDUM FOR ALL DEPARTMENT GRANT-M ING COMPONENTS

FROM: SUBJECT:

THE ATTORNEY GENERA
I
,L Implementation of Executive er 13768,
"Enhancing Public Safety in tU Interior of the United States"

Federal law provides a process for foreign citizens to lawfully enter the country. Circumventing that process and crossing our borders unlawfully is a federal crime. It is the role of federal agencies, including the Department of Justice, to enforce our immigration laws, prosecute violations, and secure our borders.
The President has established immigration enforcement as a priority for this Administration and, in furtherance of that priority, issued Executive Order 13768, "Enhancing Public Safety in the Interior of the United States," on January 25, 2017. The Executive Order makes clear that "[i]t is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373." To accomplish this policy, section 9(a) of the Executive Order provides, in part:
[T]he Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.
Section 1373 provides in part that state and local jurisdictions "may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, [federal immigration officers] information regarding the citizenship or immigration status, lawful or unlawful, of any individual." 8 U.S.C. § 1373(a).
In accordance with my duties as Attorney General, I have determined that section 9(a) of the Executive Order, which is directed to the Attorney General and the Secretary of Homeland Security, will be applied solely to federal grants administered by the Department of Justice or the Department of Homeland Security, and not to other sources of federal funding. Section 9(a) expressly requires enforcement "to the extent consistent with law," and therefore does not call for the imposition of grant conditions that would violate any applicable constitutional or

Case 3:17-cv-00574-WHO Document 168-1 Filed 09/27/17 Page 3 of 3

Memorandum for All Department Grant-Making Components Subject: Implementation of Executive Order 13768,
"Enhancing Public Safety in the Interior of the United States"

Page2

statutory limitation. Nor does the Executive Order purport to expand the existing statutory or constitutional authority of the Attorney General and the Secretary of Homeland Security in any respect. Indeed, apart from the Executive Order, the Department of Justice and the Department of Homeland Security, in certain circumstances, may lawfully exercise discretion over grants that they administer. Section 9(a) directs the Attorney General and the Secretary of Homeland Security to exercise, as appropriate, their lawful discretion to ensure that jurisdictions that willfully refuse to comply with section 1373 are not eligible to receive Department of Justice or Department of Homeland Security grants.
Consistent with the Executive Order, statutory authority, and past practice, the Department of Justice will require jurisdictions applying for certain Department grants to certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for receiving an award. Any jurisdiction that fails to certify compliance with section 1373 will be ineligible to receive such awards. This certification requirement will apply to any existing grant administered by the Office of Justice Programs and the Office of Community Oriented Policing Services that expressly contains this certification condition and to future grants for which the Department is statutorily authorized to impose such a condition. All grantees will receive notice of their obligation to comply with section 1373. The Department will administer this certification requirement in accordance with the law and will comply with any binding court order.
After consultation with the Secretary of Homeland Security, I have determined that, for purposes of enforcing the Executive Order, the term "sanctuary jurisdiction" will refer only to jurisdictions that "willfully refuse to comply with 8 U.S.C. 1373." A jurisdiction that does not willfully refuse to comply with section 1373 is not a "sanctuary jurisdiction" as that term is used in section 9(a). While the Executive Order's definition of "sanctuary jurisdiction" is narrow, nothing in the Executive Order limits the Department's ability to point out ways that state and local jurisdictions are undermining our lawful system of immigration or to take enforcement action where state or local practices violate federal laws, regulations, or grant conditions.
The provisions of the Executive Order quoted above address only 8 U.S.C. § 1373. Separate and apart from the Executive Order, statutes may authorize the Department to tailor grants or to impose additional conditions on grantees to advance the Department's law enforcement priorities. Consistent with this authority, over the years, the Department has tailored grants to focus on, among other things, homeland security, violent crime (including drug and gang activity), and domestic violence. Going forward, the Department, where authorized, may seek to tailor grants to promote a lawful system of immigration.

Case 3:17-cv-00574-WHO Document 168-2 Filed 09/27/17 Page 1 of 25
County of Santa Clara v. Donald J. Trump, et al., No. 3:17-cv-00574-WHO (N.D. Cal.) Opposition to Plaintiff’s Motion for Summary Judgment
Attachment 2 Brief for Amici Curiae, United States v. Texas,
136 S. Ct. 2271 (2016) (No. 15-674), 2016 WL 891345

Case 3:17-cv-00574-WHO Document 168-2 Filed 09/27/17 Page 2 of 25
United States of America v. State of Texas, 2016 WL 891345 (2016)

2016 WL 891345 (U.S.) (Appellate Brief) Supreme Court of the United States.
UNITED STATES OF AMERICA, et al., Petitioners, v.
STATE OF TEXAS, et al., Respondents.
No. 15-674. March 7, 2016.
On Writ of Certiorari to the United States Court of Appeals for the Fifth Circuit

Brief for Amici Curiae the Mayors of New York, Los Angeles, Atlanta, Austin, Birmingham, 113 Additional Mayors, County Executives, and Localities, the United States Conference of Mayors,
and the National League of Cities in Support of Petitioners

Zachary W. Carter, Corporation Counsel of the City of New York. Richard Dearing*, Cecelia Chang, Jeremy W. Shweder, Emma Grunberg, New York City Law, Department, 100 Church Street, New York, NY 10007, (212) 356-2500, rdearing@law.nyc.gov, for the City of New York and Mayor Bill de Blasio.
Michael N. Feuer, City Attorney.
James P. Clark, Chief Deputy City Attorney.
Wendy Shapero, Deputy City Attorney, for the City of Los Angeles and Mayor Eric Garcetti.
Cathy Hampton, City Attorney, for Kasim Reed, Mayor of Atlanta, for amici curiae.
Anne L. Morgan City Attorney, for Steve Adler, Mayor of Austin, Texas.
Thomas Bentley, III, Deputy City Attorney, for William A. Bell, Sr., Mayor of Birmingham, Alabama.
Donna R. Ziegler, County Counsel for the County of Alameda, for the County of Alameda, California.
Stephen Thies, City of Alamogordo Attorney, for the City of Alamogordo, New Mexico and for Mayor Susie Galea.
John J. Reilly, Corporation Counsel, for Katherine M. Sheehan, Mayor of Albany, New York.
James L. Banks, Jr., City Attorney, Office of the City Attorney, for the City of Alexandria, for the City of Alexandria, Virginia and Mayor Allison Silberberg.
Susan Ellis Wild, Solicitor, City of Allentown, Pennsylvania, for the City of Allentown and Mayor Ed Pawlowski.

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Nancy Diamond, City Attorney, for the City of Areata, California Mayor Paul Pitino.

Stephen A. MacIsaac, County Attorney, for the County Board of Arlington County, Virginia.

George A. Nilson, Baltimore City Solicitor, for Mayor Stephanie Rawlings-Blake acting on behalf of the Mayor and City Council of Baltimore.

David J. Aleshire, City Attorney, for the City of Bell, California.

Philippa M. Guthrie, Corporation Counsel, for the City of Bloomington, Indiana Mayor John Hamilton.

Robert B. Luce, City Attorney, City of Boise, for David H. Bieter, Mayor of the City of Boise, Idaho.

Eugene L. O’Flaherty, Corporation Counsel, City of Boston Law Department, for Martin J. Walsh, Mayor of the City of Boston, Massachusetts.

R. Christopher Meyer, City Attorney for the City of Bridgeport, on behalf of the Honorable Joseph P. Ganim, Mayor of the City of Bridgeport, Connecticut.

Mark Sossi, City Attorney, for the City of Brownsville, Texas Mayor Tony Martinez.

Timothy A. Ball, Corporation Counsel, for Byron W. Brown, Mayor of Buffalo, New York.

Nancy E. Glowa, City Solicitor, Law Department, for the City of Cambridge, Massachusetts.

G. Nicholas Herman, Robert E. Hornik, Jr., The Brough Law Firm, PLLC, for the Town of Carrboro, North Carolina Mayor Lydia Lavelle.

Matthew T. Jerzyk, City Solicitor, City of Central Falls, for James Diossa, Mayor of the City of Central Falls, Rhode Island.

Cheryl Watson Fisher, City Solicitor of the City of Chelsea, for the City of Chelsea, Massachusetts and City Manager Thomas G. Ambrosino.

Stephen R. Patton Corporation Counsel, for the City of Chicago, Illinois and Mayor Rahm Emanuel.

Rose M. Winkeler, Deputy County Attorney, Coconino County Attorneys Office, for the Coconino County, Arizona Board of Supervisors.

Richard C. Pfeiffer, Jr., City Attorney, City of Columbus, for Andrew Ginther, Mayor of the City of Columbus, Ohio.

Anita Alvarez, State’s Attorney, Donald J. Pechous, Paul A. Castiglione, Assistant State’s Attorneys, for Cook County, Illinois.

Wendy L. Elston, City Attorney, for the City of Crete, Nebraska Mayor Roger Foster.

Monica Lira Bravo, Lira Bravo Law, PLLC, for Dallas County, Texas, and Clay Lewis Jenkins, County Judge of Dallas County.

Harriet A. Steiner, City Attorney, Best Best & Krieger LLP, for Dan Wolk, Mayor of the City of Davis,

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California.
John C. Musto, Assistant City Attorney, City of Dayton, Ohio, Department of Law, for City of Dayton, Ohio and Nan Whaley, Mayor of the City of Dayton, Ohio.
D. Scott Martinez, City Attorney, for Michael B. Hancock, Mayor of the City & County of Denver.
John B. Murphey, Rosenthal, Murphey, Coblentz & Donahue, for the Village of Dolton, Illinois and Mayor Riley H. Rogers.
Patrick W. Baker, for the City of Durham, North Carolina.
Thomas M. Yeadon, for the City of East Lansing, Michigan and Mayor Mark S. Meadows.
Ricardo Palacios, Palacios, Garza, & Thompson, P.C., Corporation Counsel, for City of Edinburg, Texas and Mayor Richard H. Garcia.
Jo Anne Bernal, El Paso County Attorney, for El Paso County, Texas.
Michael Guina, City Attorney, for the City of Emeryville, California, Mayor Dianne Martinez.
W. Grant Farrar, Corporation Counsel, City of Evanston Law Department, for Elizabeth Tisdahl, Mayor of Evanston, Illinois.
Roger N. Knutson, City Attorney, for Peter Lindstrom, Mayor of Falcon Heights, Minnesota.
Niquelle Allen Winfrey, Corporation Counsel of the City of Gary, Indiana, for the City of Gary, Indiana and Mayor Karen Freeman-Wilson.
Andrew P. Oddo, Esq., Corporation Counsel, for the Borough of Haledon, New Jersey, for the Borough of Haledon and Mayor Domenick Stampone.
Howard G. Rifkin, Corporation Counsel, City of Hartford, for the City of Hartford, Connecticut and Mayor Luke Bronin.
Debra Urbano DiSalvo, Village Attorney, for Incorporated Village of Hempstead, New York.
Benjamin E. Gehrt, Partner, Clark Baird Smith LLP, for Nancy R. Rotering, Mayor of the City of Highland Park, Illinois.
Alysia M. Proko, Esq., Interim Corporation Counsel, City of Hoboken, for the Mayor and City of Hoboken, New Jersey.
Kara Lamb Cunha, Assistant City Solicitor, for Alex B. Morse, Mayor of Holyoke, Massachusetts.
Donna L. Edmundson, City Attorney, Judith Ramsey, Chief, General Litigation Section, City of Houston Legal Department, for Sylvester Turner, Mayor of Houston.
Scott A. Damron, City Attorney of the City of, Huntington, West Virginia, for the City of Huntington, West Virginia and Mayor Steve Williams.

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United States of America v. State of Texas, 2016 WL 891345 (2016)

Aaron O. Lavine, Corporation Counsel, for Svante L. Myrick, Mayor of Ithaca, New York.
Monica Davis Joiner, City Attorney, for the City of Jackson, Mississippi Mayor Tony Yarber.
Jeremy Farrell, Corporation Counsel, City of Jersey City, for Steven M. Fulop, Mayor of the City of Jersey City, New Jersey.
William D. Geary, City Attorney, for Sylvester “Sly” James, Mayor of the City of Kansas City, Missouri.
Charles W. Swanson Law Director, City of Knoxville, Tennessee, for City of Knoxville, Tennessee and Mayor Madeline Rogero.
Jose M. Sanchez, City Attorney of the City of Livingston, for the City of Livingston, California and Mayor Rodrigo Espinoza.
Charles Parkin, City Attorney, for Robert Garcia, Mayor of Long Beach, California.
Mary C. Wickham, County Counsel, for Los Angeles County, California.
Julia Bates, Lucas County Prosecutor, By Steven J. Papadimos, First Assistant, Lucas County Prosecutor’s Office, for Board of Lucas County, Ohio, Commissioners, Tina Skeldon Wozniak, Pete Gerken, and Carol Contrada.
Michael P. May, City Attorney, for Paul R. Soglin, Mayor of Madison, Wisconsin.
Steven Woodside County Counsel, for the County of Marin, California.
Kori Termine Wisneski Deputy General Counsel, Office of the General Counsel, City of Middletown, for Daniel T. Drew, Mayor of the City of Middletown, Connecticut
Grant F. Langley, City Attorney, City of Milwaukee, for the City of Milwaukee.
Susan L. Segal, Minneapolis City Attorney, for Betsy Hodges, Mayor of Minneapolis, and the City of Minneapolis.
Marc P. Hansen, County Attorney, for Montgomery County, Maryland.
John Rose, Jr., Acting Corporation Counsel, for Toni N. Harp, Mayor of New Haven, Connecticut.
Jeffrey T. Londregan, Corporation Counsel, of the City of New London, for the City of New London, Connecticut and Mayor Michael E. Passero.
Rebecca Dietz, City Attorney, City of New Orleans, for Mitch Landrieu, Mayor of the City of New Orleans, Louisiana.
Kathleen E. Gill, Esq., Chief of Staff for Policy and Government Affairs/, Corporation Counsel, City of New Rochelle, for Mayor Bramson and the City of New Rochelle, New York.
Willie L. Parker, Esq., Corporation Counsel, City of Newark, Department of Law, for Ras J. Baraka, Mayor of the City of Newark, New Jersey.

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Donnalyn B. Lynch Kahn, City Solicitor, City of Newton, for Setti D. Warren, Mayor of the City of Newton, Massachusetts.
Craig H. Johnson, Corporation Counsel, for Paul A. Dyster, Mayor of Niagara Falls, New York.
Barbara J. Parker, City for the, City of Oakland, for Mayor Libby Schaaf and the City of Oakland.
Domenick Stampone, Esq., Corporation Counsel for the City of Paterson, for the City of Paterson, New Jersey and Mayor Jose “joey” Torres.
Samuel S. Goren, Esq., City Attorney, City of Pembroke Pines, for Pembroke Pines, Florida.
Sozi Pedro Tulante, City Solicitor, Philadelphia Law Department, for the City of Philadelphia and Mayor James F. Kenney.
Lourdes Sanchez Ridge, City Solicitor, Chief Legal Officer, for William Peduto, Mayor of Pittsburgh.
David L. Minchello, Corporation Counsel, for Adrian O. Mapp, Mayor of Plainfield, New Jersey.
Tracy Reeve, City Attorney, Harry Auerbach, Chief Deputy City Attorney, for Charlie Hales, Mayor of Portland, on behalf of the City Council of the City of Portland, Oregon.
M. Andree Green, County Attorney, for Prince George’s County, Maryland.
Trishka W. Cecil Mason, Griffin & Pierson, P.C., for Princeton, New Jersey.
Jeff Dana, City Solicitor, for Jorge O. Elorza, Mayor of the City of Providence, Rhode Island.
Bruce Reed Goodmiller, City Attorney, City of Richmond, for the City of Richmond and Mayor Tom Butt, City of Richmond, California.
Brian F. Curran, Corporation Counsel, Law Department, City of Rochester, for Lovely Warren, Mayor of the City of Rochester, New York.
Rachel M. Caruso, Borough Attorney, Borough of Roselle, for the Borough of Roselle, New Jersey Mayor Christine Dansereau.
James Sanchez, City Attorney, for the City Council, Sacramento, California.
Margaret D. Plane, Salt Lake City Attorney, Salt Lake City Corporation, for Salt Lake City and Mayor Jackie Biskupski,
Rick R. Olivarez, City Attorney, for the City of San Fernando, California.
Dennis J. Herrera, San Francisco City Attorney, for the City and County of San Francisco and Mayor Edwin M. Lee.
Richard Doyle, City Attorney, for Mayor Sam Liccardo and the City of San Jose, California.
John C. Beiers, County Counsel, for the County of San Mateo, California.

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Sonia R. Carvalho, City Attorney, City of Santa Ana, for the City of Santa Ana, California Miguel Pulido, Mayor.
Orry P. Korb, County Counsel, County of Santa Clara, for the County of Santa Clara, California.
Charlene Laplante, Chief Civil Deputy, Santa Cruz County Attorney, for the Board of Supervisors Santa Cruz County, Arizona.
Kelley A. Brennan, City Attorney, City of Santa Fe, for the City of Santa Fe Javier M. Gonzales, Mayor.
Marsha Jones Moutrie, City Attorney City of Santa Monica for the City of Santa Monica, California, Mayor Antonio Vazquez.
Carl G. Falotico, Corporation Counsel, for Gary R. McCarthy, Mayor of Schenectady, New York.
Ian Warner, Legal Counsel to the Mayor of Seattle, for Edward B. Murray, Mayor of Seattle.
Francis X. Wright, Jr., City Solicitor, City of Somerville, for Joseph A. Curtatone, as Mayor of Somerville, Massachusetts.
Bruce Goldstein, County Counsel, Alegria De La Cruz, Deputy County Counsel, County of Sonoma, for Sonoma County, California.
Cristal C. Brisco, Corporation Counsel of the City of South Bend, for the City of South Bend, Indiana and Mayor Pete Buttigieg.
Michael A. Garvin, City Counselor, for Francis G. Slay, Mayor of the City of St. Louis
Samuel J. Clark, City Attorney, for Mayor Chris Coleman, Saint Paul, Minnesota.
Terry J. Williams, Solicitor, for State College, Pennsylvania Borough Council and Mayor Elizabeth A. Goreham.
Kimberly A. Kisslan, City Attorney, City of Sunrise, for Michael J. Ryan, Mayor of Sunrise, Florida.
Robert P. Stamey, Corporation Counsel, for Stephanie A. Miner, Mayor of Syracuse, New York.
Elizabeth A. Pauli, City of Tacoma, City Attorney, for Marilyn Strickland, Mayor of the City of Tacoma.
Julia C. Mandell, Esq., City Attorney, for Bob Buckhorn, Mayor of the City of Tampa, Florida.
David A. Escamilla, Travis County Attorney, Sherine E. Thomas, Assistant County Attorney, Travis County Attorney’s Office, for Travis County, Texas.
Marc A. McKithen, Director of Law - City Attorney, for Eric E. Jackson, Mayor of the City of Trenton, New Jersey.
Krystle Nova, City Attorney, for the City of Union City, New Jersey.
Robert E. Barry, Esq., County Counsel, County of Union, for the County of Union, New Jersey.

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Elizabeth A. Cavendish, General Counsel, Mayor Muriel Bowser, for Mayor Muriel Bowser, Washington, D.C.
Michael Jenkins, City Attorney, Jenkins & Hogin, LLP, for Lindsey P. Horvath, Mayor of West Hollywood, California.
Frank Consolo, Law Director, for Mayor Charles E. Smith and The Village of Woodmere, Ohio.
Philip J. Pogledich, County Counsel, County of Yolo, for the County of Yolo, California.
Michael V. Curti, Esq., Corporation Counsel, City of Yonkers, for Mike Spano, Mayor of the City of Yonkers, New York.
Jason R. Sabol, Esq., Assistant Solicitor of the City of York, Pennsylvania, for the City of York, Pennsylvania and Mayor C. Kim Bracey.
Carolyn Coleman, Esq., Director, Federal Advocacy, National League of Cities, for National League of Cities.
John Daniel Reaves, General Counsel, The United States Conference of Mayors, for The United States Conference of Mayors.
*i TABLE OF CONTENTS

TABLE OF CONTENTS ........................................................................................................................

i

TABLE OF AUTHORITIES .................................................................................................................

ii

INTEREST OF AMICI CURIAE .........................................................................................................

1

SUMMARY OF THE ARGUMENT ..................................................................................................

4

ARGUMENT .............................................................................................................................................

6

I. The Guidance Protects Longstanding Local Interests, and Enjoining the Guidance

6

Imposes Immediate Harms on Localities. ..........................................................................................

II. A Single Plaintiffs Claim of Future Administrative Costs Does Not Support Standing

18

for a Nationwide Injunction that Inflicts Widespread Local Harms ...........................................

CONCLUSION ..........................................................................................................................................

31

*ii TABLE OF AUTHORITIES

Cases

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138 (2013) ..........

27

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Daimler Chrysler Corp. v. Cuno, 547 U.S. 332 (2006) .........
Davis v. FEC, 554 U.S. 724 (2008) .............................................
Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167 (2000) ................................................................
Massachusetts v. EPA, 549 U.S. 497 (2007) .............................
Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139 (2010) ....................................................................................................
Salazar v. Buono, 559 U.S. 700 (2010) ......................................
United States v. Mendoza, 464 U.S. 154 (1984) ......................
Weinberger v. Romero-Barcelo, 456 U.S. 305 (1982) ...........
*iii Winter v. NRDC, Inc., 555 U.S. 7 (2008) ...........................
Statutes
USA PATRIOT Act of 2001, Pub. L. No. 107-56, 115 Stat. 272 ...........................................................................................................
Other Authorities
Amendments to the Immigration Reform and Control Act of 1986: Hearing Before the Subcomm. on Immigration, Refugees, and Int’l Law of the H. Comm. on the Judiciary, 101st Cong. (1989) ...........................................................................
Audrey Singer et al., Metropolitan Policy Program at Brookings, Local Insights From DACA for Implementing Future Programs for Unauthorized Immigrants (June 2015) ..................................................................................................................
Austin Police Department, Robbery Prevention & Immigrant Outreach (Hispanic), http://bit.ly/1RMG1za (last visited Mar. 4, 2016) ........................................................................
Bernard Weinraub, State Dept. Reverses Policy on Ethiopian Exiles in U.S., N.Y. Times, July 7, 1982 ................
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8
11
13
9
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Cities for Action, http://bit.ly/1QyRqzY (last visited Mar. 4, 2016) .....................................................................................................
*iv City of Albuquerque Resolution No. 2004-070 (June 7, 2004) .....................................................................................................
City of Austin Resolution (Jan. 30, 1997) ..................................
City of Boston, Mayor’s Office of New Bostonians, http://bit.ly/1Gfh22A (last visited Mar. 4, 2016) .....................
City of Chicago, Office of New Americans, Chicago New Americans Plan: Building a Thriving and Welcoming City (Dec. 2012) ..........................................................................................
Continuing Oversight of the Immigration Reform and Control Act of 1986: Hearing Before the Subcomm. on Immigration, Refugees, and Int’l Law, H. Comm. on the Judiciary, 100th Cong. (1987) .......................................................
Department of Homeland Security, U and T Visa Law Enforcement Resource Guide for Federal, State, Local, Tribal and Territorial Law Enforcement, Prosecutors, Judges, and Other Government Agencies (Jan. 4, 2016) .......
Eric Schmitt, Clinton Expected to Spare Haitians from Deportation, N.Y. Times, Dec. 17, 1997 ...................................
*v Haitian Detention and Interdiction: Hearing Before the Subcomm. on Immigration, Refugees, and Int’l Law of the H. Comm. on the Judiciary, 101st Cong. (1989) ......................
Houston Immigrant Legal Services Collaborative, http://www.citizenshipcorner.org (last visited Mar. 4, 2016) ..................................................................................................................
Immigration Reform and Control Act of 1982: Joint Hearings Before the Subcomm. on Immigration, Refugees, and International Law of the S. Comm. on the Judiciary, 97th Cong. (1982) .............................................................................
Implementation of Immigration Reform: Hearing Before the Subcomm. on Immigration and Refugee Affairs of the S. Comm. on the Judiciary, 100th Cong. (1988) ...........................

15 13 13 15 12 8
10, 11
9 9 15 7
8

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Joanna Dreby, How Today’s Immigration Enforcement Policies Impact Children, Families, and Communities, Center for American Progress (Aug. 2012) ...............................
Jorge L. Carro, Municipal and State Sanctuary Declarations: Innocuous Symbolism or Improper Dictates?, 16 Pepp. L. Rev. 297 (1989) ..........................................................
*vi Lisa Christensen Gee et al., Undocumented Immigrants’ State & Local Tax Contributions, The Inst. of Taxation & Economic Policy (Feb. 24, 2016) .................................................
Liz Robbins, New York to Aid Immigrants Amid Stalled National Reforms, N.Y. Times, Dec. 14, 2015 .........................
Los Angeles City Attorney, Fighting Wage Theft, http://bit.ly/21bTAeO (last visited Mar. 4, 2016) ....................
Marie Price, Cities Welcoming Immigrants: Local Strategies to Attract and Retain Immigrants in U.S. Metropolitan Areas, International Organization for Migration (Dec. 2014) .....................................................................
Marvine Howe, I.N.S. Ruling Benefits Illegal Immigrant Children, N.Y. Times, Mar. 26, 1988 .........................................
Marvine Howe, The Region: Under the New Law, Illegal Aliens Suffer Much in Silence, N.Y. Times, Nov. 27, 1988 ..
Max Ehrenfruend, How having an undocumented parent hurts American children, Wash. Post, Mar. 4, 2015 ...............
*vii Nat’l Immigration Law Center, Immigration-inclusive State and Local Policies Move Ahead in 2014-15, Nat’l Immigration Law Center (Dec. 2015) .........................................
New Orleans Police Department, Operations Manual, Chapter 41.6.1, Immigration Status (effective Feb. 28, 2016) .....................................................................................................
New York City Exec. Order No. 34 (May 13, 2003) ..............
New York City Exec. Order No. 124 (Aug. 7, 1989) .............
Opening Minds, Opening Doors, Opening Communities:
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9
6, 16, 22, 23
15 14 13
8 18 17 13
14
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Cities Leading for Immigrant Integration, USC Dornsife Center for the Study of Immigrant Integration (Dec. 15, 2015) .....................................................................................................
Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact on Public Safety and Honoring the Victims, Hearing Before the S. Comm. on the Judiciary, 114th Cong. (July 21, 2015) ...........
Pew Charitable Trusts, Immigration and Legalization: Roles and Responsibilities of States and Localities (Apr. 2014) .....................................................................................................
*viii Press Release, The Council of the City of New York, Speaker Quinn, New York City Council Members, Bloomberg Administration and Advocates Announce Funding to Provide New Yorkers Immigration Relief (July 17, 2013) ..............................................................................................
Press Release, Mayor of Los Angeles, Mayor Garcetti Announces Nationwide Actions as Court Hearings Proceed on Obama’s Immigration Reforms (Apr. 17, 2015) ................
Press Release, New York City Office of the Mayor, Mayor de Blasio Announces NYC Commission of Human Rights: First Such Agency in Major U.S. City to Issue U and T Visa Certifications (Feb. 9, 2016) ..........................................................
Randy Capps et al., Deferred Action for Unauthorized Immigrant Parents: Analysis of DAPA’s Potential Effects on Families and Children, Migration Policy Institute (Feb. 2016) .....................................................................................................
Raul Hinojosa-Ojeda, The Economic Benefits of Expanding the Dream: DAPA and DACA Impacts on Los Angeles and California, UCLA North American Integration & Development Center (Jan. 26, 2015) ...........................................
*ix Rebecca S. Carson, Ready or Not? Gauging Midwest Preparations for Executive Action on Immigration, The Chicago Council on Global Affairs (Mar. 2015) .....................
Ruth Milkman et al., Wage Theft and Workplace Violations in Los Angeles, UCLA Institute for Research on Labor and Employment (2014) ..........................................................................
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USCIS, Interim Relief for Certain Foreign Academic

10

Students Adversely Affected by Hurricane Katrina:

Frequently Asked Questions (FAQ) (Nov. 25, 2005) .............

*1 INTEREST OF AMICI CURIAE1

Amici represent a broad coalition of local governments. One hundred and eighteen cities, counties, and local government officials have joined this brief as well as The U.S. Conference of Mayors, a nonpartisan group representing mayors of over 1,400 cities, and the National League of Cities, which represents more than 19,000 municipal governments nationwide.
Amici are home to some of the largest immigrant communities in the United States. More than 1.5 million children and parents potentially eligible for relief under the enjoined executive guidance live in our cities and towns. Amici submit this brief to explain why the nationwide injunction in this case - and the novel theory of standing asserted to support it - improperly ignores the irreparable harm to our residents from denying humanitarian deferred action relief.
*2 As amici have explained at every stage of this litigation: because undocumented immigrants are integral members of our communities, the enjoined deferred action programs protect vital local interests. Without the guidance, millions of families in our cities and counties face the threat of deportation, destabilizing our communities and jeopardizing the welfare of families and children. The nationwide injunction also undermines the ability of amici’s police departments to protect and serve all of our residents. Finally, the injunction imposes extensive economic harm on amici. Undocumented immigrants currently contribute hundreds of millions of dollars in tax revenues and other economic benefits to local communities every year. The deferred action programs will contribute over $800 million in additional economic benefits to state and local governments annually. New York City alone loses an estimated $100,000 in tax revenue each day the injunction remains in place.
Amici represent a diverse array of local interests, but are united in making one point: the impact of the injunction is most immediately and acutely felt on the local level. Yet the nationwide injunction in this case was issued without any court considering local harms or weighing local harms against the narrow standing “injury” established by plaintiffs: a claim by Texas, a single plaintiff state, of increased driver’s license processing costs.
The courts below never considered local harms within plaintiff states, let alone local harms *3 nationwide. Forty-four amici are located in plaintiff states or states that have joined amicus briefs supporting plaintiffs. For example, amici include Dallas County, Travis County, and El Paso County, as well as Austin, Houston, Brownsville, and Edinburg, local governments that collectively represent over twenty-six percent of Texas’s population. Other amici located outside plaintiff states represent over 42 million local residents. The interests of all of amici’s residents were ignored by the courts below in authorizing a nationwide injunction.

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If the role of local governments is to be respected, courts must ensure that the core requirements of standing are satisfied before the issuance of a nationwide injunction harming longstanding local interests. Amici submit this brief to explain the local impact of federal immigration measures, and to point out the legal and practical problems in issuing a nationwide injunction without considering the nationwide harms to local governments and their residents.
*4 SUMMARY OF THE ARGUMENT
This brief addresses the first question in the petition: whether plaintiff states have standing to bring this action. Amici local governments focus on an important element of standing: plaintiffs’ proof of standing for each form of relief sought. Here, several factors demonstrate why plaintiffs’ claim of standing to obtain a nationwide injunction is overbroad.
1. Immigration measures, like the guidance in this case, directly implicate significant local interests. For this reason, local governments have been active for decades in supporting deferred action and taking other steps to protect immigrant residents and their families. Federal humanitarian actions to defer deportation for law-abiding local residents, particularly parents and children, have far-reaching social and financial benefits for localities. Withholding and delaying deferred action, by contrast, threatens irreparable local harms for all of amici’s residents.
2. Despite the significant local impact, no court below considered local harms, including whether local harms vastly exceed the sole standing injury proven by Texas, before enjoining the guidance nationwide. No decision of this Court upholds such a sweeping standing theory. To the contrary, this Court has made clear that a party seeking a preliminary injunction must establish irreparable harm and “that an injunction is in the public *5 interest.” Winter v. NRDC, Inc., 555 U.S. 7, 20 (2008). Requiring plaintiffs to establish standing injury sufficient to justify the geographic scope of judicial relief honors this Court’s warning that courts must weigh “competing claims of injury” and ensure that plaintiffs are not seeking overbroad relief before issuing an injunction. See Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982).
3. But here the lower courts did not weigh competing claims of harm, because they treated plaintiff states’ projections about increased driver’s license administration costs - solely in Texas - as overriding tens of millions of dollars of lost revenue and extensive social and law enforcement harms for local governments in Texas and in other states.
4. This Court should not authorize a standing rule for nationwide injunctions that effectively gives objecting parties the right to veto federal policies in every locality in the country, while disregarding the harm to thousands of local governments across the nation. That overbroad concept of standing would invite parties to litigate over political disputes and settle important public questions, as in this case, by strategic litigation and sweeping injunctions that bear little relation to the narrow harms asserted.

*6 ARGUMENT

I. The Guidance Protects Longstanding Local Interests, and Enjoining the Guidance Imposes

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Immediate Harms on Localities.
Amici’s support for the enjoined guidance is based on decades of experience and. longstanding local efforts to protect our immigrant residents and families. As amici have emphasized at every stage of this litigation,2 the guidance protects undocumented immigrants who are important contributors to our cities and towns.3 By denying important humanitarian relief to millions of our residents, the injunction strikes at the heart of our *7 communities. The injunction imposes immediate harms on all local residents by threatening public health and safety, destabilizing families, and harming the social and economic wellbeing of our communities as a whole.

1. Local governments have long recognized that promoting the integration of immigrant residents is essential to the success of local communities, and that lack of integration imposes significant local harm. The depth of local concern in this area is demonstrated by local governments’ decades-long investment in both federal and local policies that advance immigrant integration. This investment reaches back to local support for the legalization provisions of the 1986 Immigration Relief and Control Act (IRCA), with the Los Angeles County supervisor testifying before Congress that legalization would promote integration and allow undocumented immigrants to become productive members of the community.4 Local governments - although not required to do so - played a key role in *8 implementing the IRCA legalization program, raising application rates in their communities.5

Following IRCA’s passage, local leaders and representatives lobbied for deferred action policies, later
enacted into law, to address the social and humanitarian cost of “split-eligibility families”: families where some members had legal status and others lived under the threat of deportation.6 In 1988, local pressure,
prompted by humanitarian concerns, led to a change in regulations to allow undocumented immigrant children in foster care to qualify for legal status under IRCA.7

*9 2. In the years surrounding IRCA, localities also responded to their residents’ fears of political strife
and persecution in their home countries by supporting other federal deferred action programs. For
example, congressional representatives and local government leaders from Los Angeles and Miami -
centers of immigration from Ethiopia and Haiti, respectively - supported deferred action programs in the 1980s and 1990s for those groups.8 At least twelve municipalities officially gave their support to federal deferred action for Salvadoran and Guatemalan refugees in the 1980s.9 More recently, deferred action
programs have provided humanitarian relief to individuals affected by regional disasters in the United States, such as *10 Hurricane Katrina and the September 11 terrorist attacks.10

3. Underscoring the strength of local interest in this area, localities have voluntarily embraced their role in federal relief programs for undocumented victims of crime. For example, the U and T visa programs, created in 2000, allow victims of crimes such as domestic violence and human trafficking to receive temporary status if they cooperate with law enforcement investigations.11 These programs address local interests by encouraging victims to come forward and cooperate with law enforcement. In turn, to increase trust and collaboration between localities and immigrant communities, many local police departments, prosecutors’ offices, family protective services, and other agencies have chosen to invest resources towards identifying potential *11 applicants and providing them with documentation to bolster their applications for federal relief.12

4. Localities continued their frontline implementation role during the 2012 Deferred Action for Childhood

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Arrivals (DACA) initiative. New York City budgeted $18 million for education, outreach, and legal service programs to encourage local residents to apply for relief.13 School districts in cities including San
Diego, California; Des Moines, Iowa; and Yakima, Washington added staff and offices and created new databases and systems to facilitate record requests.14 Immigrant affairs offices held public application
workshops, and in Los Angeles, the mayor re-established the dormant Office of Immigrant Affairs in part to assist applicants.15 Mayors’ offices across the country *12 facilitated access to public documents that
applicants would need; partnered with public libraries to hold outreach sessions: and ensured that residents
were not misled by cracking down on unqualified individuals offering fraudulent legal services to immigrants.16

5. In addition to supporting federal immigration relief programs, localities have also implemented
innovative local policies to promote immigrant integration. There are currently sixty-three offices
promoting immigrant integration at the municipal level across the country, and those numbers are growing.17 Starting in the 1980s, cities including New York, Chicago, Albuquerque, and Austin have
mandated that local services be provided to residents regardless of immigration status, based on local
leaders’ experience that public welfare requires all residents to have access to education, health, and police protection services.18 Policy *13 innovations like municipal identification cards - established by at least
seventeen localities, from Los Angeles to Milwaukee County, Wisconsin - further expand access to local services.19 Other localities have launched health care programs for undocumented residents.20 To build
trust between law enforcement and immigrant communities, police departments from metropolitan centers
and smaller cities have introduced immigration status confidentiality policies, special hotlines, and community education programs.21 Local officials *14 have also prosecuted employers who engage in wage theft and other abuses towards undocumented workers.22

6. The 2014 executive guidance protects these well-established local interests. The guidance extends humanitarian relief to the same category of “split-eligibility families” that local leaders had long sought relief for. And by offering deferred action relief to an estimated 3.8 million local residents, the guidance helps promote local governments’ existing integration efforts.

Because the impact of the guidance is most immediate at the local level, local governments provided early
and extensive support for its implementation. New York City has committed almost $8 million to prepare legal aid providers and *15 community groups for implementation of the guidance.23 Los Angeles raised $4 million for its 2015 campaign to help Los Angeles residents apply for deferred action.24 From Houston
to Indianapolis to Boston and beyond, localities have convened stakeholders to make plans, provide
information to immigrant residents, and ensure access to quality legal services to help residents with their applications.25 Indeed, weeks after the 2014 guidance was announced, a national coalition of mayors and
county leaders came together to support the guidance and share best practices for implementation. This coalition now includes over 100 mayors and county leaders.26

7. Given the local interests at stake, local governments have also made an extraordinary *16 effort to inform the courts below why a nationwide injunction should not issue. Amici have filed amicus briefs at every stage of this litigation explaining why a nationwide injunction blocking implementation of the guidance imposes immediate harms on amici’s residents.

As amici have explained, the injunction harms local economies. Preventing residents from working legally

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deprives localities of tax revenue, keeps families in poverty, and leaves undocumented residents vulnerable to employer exploitation and abuse. The guidance is estimated to increase the income of families with at least one eligible parent by about ten percent.27 Nationwide, it is estimated that the 2012 and 2014 deferred-action initiatives would increase state and local tax contributions by $805 million per year - $59 million for Texas alone.28 The injunction costs local governments hundreds of thousands of dollars each day it remains in effect.
Amici have also explained that the injunction imposes irreparable social harms. The enjoined guidance protects children and parents, *17 undocumented immigrants with family connections to the United States and local communities.29 Withholding deferred action places millions of families in our cities and counties at economic and personal risk - unable to legally support their families and afraid and reluctant to go to the police, seek health care, or take advantage of government services to aid themselves and their children, for fear of revealing the undocumented status of a family member. These harms extend beyond the potential applicants themselves: children of undocumented parents (including many children who are citizens of this country) suffer ongoing social and psychological harms due to fear of separation from parents, siblings, and other loved ones.30 And the safety of all residents is threatened *18 when community members are afraid to seek help from the police.31
Amici rely on the contribution of all residents, and harm to any significant portion of our residents and families affects the wider community. As a New York City official recognized almost thirty years ago: “If some New Yorkers are ill, poorly educated or easy victims of crime, all New Yorkers suffer. We cannot write off our undocumented aliens without great cost to ourselves.”32

II. A Single Plaintiffs Claim of Future Administrative Costs Does Not Support Standing for a Nationwide Injunction that Inflicts Widespread Local Harms
The longstanding local interests implicated by deferred action relief inform the standing question before the Court. Standing requirements are not technical doctrines. One of their core purposes is to assure that plaintiffs are not using federal courts as instruments of partisan political battles, short- *19 circuiting consideration of the public interest in enjoining government action. Here, the courts below failed to ensure that plaintiffs’ proven standing injury justified an expansive nationwide injunction. That standing error had profound practical consequences for amici. It meant that no court below considered the harms to local communities and local residents before issuing an injunction binding in amici’s home jurisdictions.

1. Here, although twenty-six states filed suit, the district court concluded that plaintiffs had established only one concrete form of injury:33 that Texas would allegedly incur “several million dollars” in future
administrative costs, processing driver’s license applications from residents who might qualify for deferred action under the guidance (Pet. App. 21a).34

*20 But this Court has made clear that “standing is not dispensed in gross,” and, as a result, any injunctive relief must be tailored to “the injury in fact that the plaintiff has established.” DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 353 (2006) (citation and quotation marks omitted). To justify the scope of the preliminary injunction, plaintiffs had to establish injury sufficient to enjoin the guidance nationwide. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 185 (2000) (parties must

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establish standing for each form of relief sought, including standing to obtain an injunction).
2. Close attention to standing in the injunction context protects third parties, such as amici and their residents, before a broad injunction is imposed that harms absent parties. This Court has warned that courts must weigh competing claims of injury and protect the public interest before issuing an injunction. See, e.g., Winter, 555 U.S. at 20; Weinberger, 456 U.S. at 313. If these duties are not followed, there is a serious risk that overbroad injunctions will serve as “instrument[s] of wrong.” Salazar v. Buono, 559 U.S. 700, 714-15, (2010) (citation and quotation marks omitted); see also Weinberger, 456 U.S. at 312 (warning courts to “pay *21 particular regard for the public consequences in employing the extraordinary remedy of injunction”). Standing is the starting point for these threshold inquiries. Courts cannot coherently tailor injunctions to avoid public harms unless the scope of relief a plaintiff is entitled to is clear from the outset.
At every stage of this litigation, amici local governments have endeavored to explain the extensive harms imposed and crucial benefits lost by enjoining the guidance in thousands of local communities across the nation. The theory of standing accepted by the lower courts, however, improperly ignored those interests - accepting a discrete and narrow claim of “injury” to a single plaintiff - as conferring standing to enjoin the guidance everywhere, regardless of harmful local impact. But the standing injury claimed does not match the expansive relief that was ordered.
Here, plaintiffs established only one form of alleged standing injury: that Texas may face additional administrative expenditures from increased driver’s license applications if the 2014 guidance goes into effect. Plaintiffs did not even establish that the increased expenditures constituted “harm” or “injury” in the ordinary meaning of those terms. By granting work authorization and recognizing the economic contribution of longterm undocumented residents, the guidance provides hundreds of millions of dollars in economic benefits to states and *22 localities.35 Plaintiffs did not disprove these benefits; they only claimed that the benefits were irrelevant even if Texas and other plaintiffs are net economic and fiscal beneficiaries under the guidance.
3. This concept of standing not only overlooks the lack of concrete financial injury to Texas, it also ignores the harms that a nationwide injunction imposes on localities. The courts below never evaluated why Texas’s claim of increased administrative costs (solely in Texas) warranted enjoining the guidance across the United States. Failure to adhere to threshold standing requirements meant in effect that the real world concerns of millions of local residents were overlooked.
In contrast to Texas’s narrow claim, of injury from future expenditures, blocking implementation of the guidance imposes extensive local harms - all of which the courts below disregarded because they accepted that Texas had standing to enjoin the guidance nationwide: • Local harms within Texas. Local governments within plaintiff states will suffer harm if the guidance is delayed. The *23 2012 and 2014 deferred-action initiatives would likely lead to millions of increased local tax contributions - one estimate is that the state of Texas and its local governments could receive $59 million a year from the initiatives.36 In fact, amici from Texas, representing 6.7 million Texas residents, oppose the preliminary injunction and confirm that the injunction will harm their residents, communities, and local governments.

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• Local harms outside Texas. Likewise, while plaintiffs proved no harm outside of Texas, local governments and millions of local residents in other states are harmed by the preliminary injunction. As amici have explained, even if confined to financial impact alone, the financial harm to local governments in other states far exceeds Texas’s claim of injury. New York City alone loses an estimated $35 million in tax revenue funds because the guidance is blocked for *24 New York City residents.37 In Los Angeles County, undocumented immigrants eligible for deferred action to could see wage growth of a combined $1.6 billion during the life of the guidance, leading to an estimated $1.1 billion in new tax revenue between personal, sales, and business taxes.38

• Irreparable non-financial harms. Even more important, plaintiffs’ standing theory rests on future financial expenditure alone. But monetary expenditure (particularly when offset by compensating economic benefits) generally does not qualify as irreparable harm. By contrast, amici have explained how the nationwide injunction imposes daily harms to amici’s law enforcement and public safety efforts and how the threat of deportation and lack of legal status harms *25 family stability and injures children. Those harms truly are irreparable; they cannot be undone even if the injunction is later lifted.

4. While the lower courts relied on Massachusetts v. EPA, 549 U.S. 497 (2007), that case did not address a nationwide injunction and does not bless plaintiffs’ standing theory here. In Massachusetts, the only question was whether plaintiff states had standing to seek judicial review of a petition for agency rulemaking. The requested rulemaking did not impose any harm on absent individuals or local governments. Moreover, the asserted injury was loss of state territorial lands through climate change, a form of irreparable injury specific to states as sovereign entities.39

This case presents the opposite scenario: plaintiffs sought and obtained a nationwide injunction that imposes widespread harms on absent parties, including local governments and their residents. And the standing “injury” asserted, increased future expenditures, is neither unique to *26 states in their sovereign capacity nor clearly irreparable in scope.

5. The lower courts’ analysis highlights the overbreadth in plaintiffs’ standing theory. Like almost all government actions, the executive guidance balances short-term costs and long-term benefits - here, the benefits to local communities by allowing certain law-abiding and longstanding residents to apply for deferred action relief. It would be almost impossible to implement any beneficial government action, particularly action that aids and protects a large number of individuals, without some party having to make some future administrative expenditures.

The type of administrative costs that Texas asserts are common to any number of parties, including nongovernmental parties like insurance companies, employers, and other businesses that might have to process additional applications or paperwork as a result of a challenged government guidance or action. It makes little sense to issue nationwide injunctions to parties who claim standing based on anticipated administrative costs without considering the public benefits associated with the challenged government action and without considering whether the plaintiff even suffers a net monetary loss.

The breadth of the standing theory in this case is compounded by the circuit majority’s rationale for a nationwide injunction. The two-judge majority *27 justified a nationwide injunction by presuming that a geographically limited injunction would be ineffective because eligible beneficiaries of the executive

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guidance could potentially relocate to Texas from other areas (Pet. App. 89a). But freedom of travel is a basic fact of life in the United States. The potential for individuals to move to a particular location from other areas exists in almost any case.
If that potential alone authorized standing to obtain a nationwide injunction40 notwithstanding widespread local harms elsewhere, local governments would be faced with an unworkable standing rule that placed the interests of their residents at risk. A fundamental trait of American life - unrestricted travel - would authorize nationwide injunctions as a matter of course in litigation challenging federal actions. The “migration” theory of nationwide injunctions also disregards the immediate effects of such injunctions on millions of individuals in their current communities. It disserves the public *28 interest to issue expansive relief based on the theoretical possibility of individuals relocating at some future point, while ignoring present-day harms to millions of local residents in the cities and counties where they reside right now.

6. Accepting such a broad standing theory also threatens to move generalized political disputes into federal courts, giving plaintiffs with narrow and confined injuries a mechanism to obtain nationwide injunctions. The most politically controversial subjects are also those most likely to affect the daily lives of individuals. Local governments are especially vulnerable because they provide frontline services arid directly experience the impact when residents are deprived of essential services, protections, and remedies because of a judicial injunction.

Again, the core components of plaintiffs’ claimed standing - projected future administrative costs plus the possibility of individuals traveling - could be asserted by a wide array of parties both public and private. Giving a single state (or a single party) standing to effectively veto federal action nationwide on such narrow proof of injury goes far beyond the existing standing principles recognized by this Court.41

*29 7. Finally, if standing to obtain a nationwide injunction is upheld based on projected administrative expenditures plus the possibility of individuals traveling, a huge swath of federal actions with critical effects on local residents would be subject to sweeping injunctive challenges in almost any district court in the nation. From a practical perspective, in order to protect municipal interests, local authorities would have to track lawsuits around the country and seek to file amicus briefs, or even intervene, to ward off harmful injunctions in their home jurisdictions.42

City and county attorneys accustomed to practicing only in their local courts would have to appear in faraway federal courts and attempt to present evidence of local harms in litigation involving other parties. Very few municipal law offices have these capabilities, particularly for preliminary injunction proceedings as in this case, *30 which take place on an expedited timeframe. For all these reasons, devoting scarce resources to stave off overbroad injunctions in far-flung jurisdictions is impractical, if not impossible, for the vast majority of the amici cities and counties.

****

In this case, no court below considered the harm to millions of people across thousands of local jurisdictions before issuing a nationwide injunction blocking the guidance. This Court should vacate the injunction because plaintiffs failed to establish standing to justify the scope of the injunction, or prove that the injunction served the public interest and was necessary to remedy cognizable harm to Texas.

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*31 CONCLUSION The judgment of the Court of Appeals should be reversed.

Footnotes
* Counsel of Record.
1 No counsel for a party authored this brief in whole or in part, and no party or counsel for a party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amici or their counsel made a monetary contribution to this briefs preparation or submission. All counsel of record provided blanket consent for the filing of amicus briefs or received timely notice and consented to the filing of this brief.
2 See Br. for Amici Curiae the Mayors of New York, Los Angeles, Atlanta, and Eighty-One Additional Mayors et al. in Support of Petition for a Writ of Certiorari at 6-18 (No. 15-674); Br. for Amici Curiae the Mayors of New York and Los Angeles and Seventy-One Additional Mayors et al. in Support of Appellants at 10-28, No. 15-40238 (5th Cir. Apr. 6, 2015); Br. for Amici Curiae the Mayors of New York and Los Angeles and Thirty-One Additional Mayors et al. ir. Opposition to Plaintiffs’ Motion for Preliminary Injunction at 6-15, No. 14-cv-254 (S.D. Tex. Jan. 27, 2015), ECF No. 121.
3 In New York State alone, undocumented immigrants pay an estimated $1.1 billion in state and local taxes per year - supporting public services for all residents regardless of their immigration status. See Lisa Christensen Gee et al., Undocumented Immigrants’ State & Local Tax Contributions, The Inst, of Taxation & Economic Policy, 3 (Feb. 24, 2016), http://bit.ly/21rPuAd.
4 Immigration Reform and Control Act of 1982: Joint Hearings Before the Subcomm. on Immigration, Refugees, and International Law of the S. Comm. on the Judiciary, 97th Cong. 438 (1982) (statement of Deane Dana, Supervisor, Los Angeles County).
5 See Pew Charitable Trusts, Immigration and Legalization: Roles and Responsibilities of States and Localities, 12 (Apr. 2014), http://bit.ly/1TvNKVX.
6 Implementation of Immigration Reform: Hearing Before the Subcomm. on Immigration and Refugee Affairs of the S. Comm. on the Judiciary, 100th Cong. 190 (1988) (statement of Edward I. Koch, Mayor, City of New York); Continuing Oversight of the Immigration Reform and Control Act of 1986: Hearing Before the Subcomm. on Immigration, Refugees, and Int’l Law, H. Comm. on the Judiciary, 100th Cong. 111-115 (1987) (statements of Rep. Hamilton Fish, Jr.. and Rep. Howard L. Berman, Members, Subcomm. on Immigration, Refugees, and Int’l Law).
7 Marvine Howe, I.N.S. Ruling Benefits Illegal Immigrant Children, N.Y. Times, Mar. 26, 1988; see

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also Amendments to the Immigration Reform and Control Act of 1986: Hearing Before the Subcomm. on Immigration, Refugees, and Int’l Law of the H. Comm. on the Judiciary, 101st Cong. 146-159 (1989) (Statements of John E. Oppenheim, Asst. Dir. for Finance and Administration, Dep’t of Social Services, Santa Clara County, and Carlos M. Sosa, Asst. Dir., Dep’t of Children’s Services of Los Angeles County).

8 Bernard Weinraub, State Dept. Reverses Policy on Ethiopian Exiles in U.S., N.Y. Times, July 7, 1982; Eric Schmitt, Clinton Expected to Spare Haitians from Deportation, N.Y. Times, Dec. 17, 1997; Haitian Detention and Interdiction: Hearing Before the Subcomm. on Immigration, Refugees, and Int’l Law of the H. Comm. on the Judiciary, 101st Cong. 79-81 (1989) (Statement of Barbara Carey, Commissioner, Dade County, Miami).
9 Jorge L. Carro, Municipal and State Sanctuary Declarations: Innocuous Symbolism or Improper Dictates?, 16 Pepp. L. Rev. 297, 311 (1989).
10 USCIS, Interim Relief for Certain Foreign Academic Students Adversely Affected by Hurricane Katrina: Frequently Asked Questions (FAQ) at 1 (Nov. 25, 2005), http://1.usa.gov/1TvO0Eq; USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 423(b), 115 Stat. 272, 361.
11 Department of Homeland Security, U and T Visa Law Enforcement Resource Guide for Federal, State, Local, Tribal and Territorial Law Enforcement, Prosecutors, Judges, and Other Government Agencies, 4, 9 (Jan. 4, 2016), http://1.usa.gov/21Nu5Sm.

12 Id. at 3; Press Release, New York City Office of the Mayor, Mayor de Blasio Announces NYC Commission of Human Rights First Such Agency in Major U.S. City to Issue U and T Visa Certifications (Feb. 9, 2016), http://on.nyc.gov/1Qqptwy.
13 Press Release, The Council of the City of New York, Speaker Quinn, New York City Council Members, Bloomberg Administration and Advocates Announce Funding to Provide New Yorkers Immigration Relief (July 17, 2013), http://on.nyc.gov/1L7mWIE.
14 Pew Charitable Trusts, supra note 5 at 15.
15 Audrey Singer et al., Metropolitan Policy Program at Brookings, Local Insights From DACA for Implementing Future Programs for Unauthorized Immigrants 10, 14 (June 2015), http://brook.gs/1nlvK1O.

16 Rebecca S. Carson, Ready or Not? Gauging Midwest Preparations for Executive Action on Immigration, The Chicago Council on Global Affairs, 8 (Mar. 2015), http://bit.ly/1p4Q61c.
17 Opening Minds, Opening Doors, Opening Communities: Cities Leading for Immigrant Integration, USC Dornsife Center for the Study of Immigrant Integration, 5 (Dec. 15, 2015), http://bit.ly/1Qy7diq.
18 City of Chicago, Office of New Americans, Chicago New Americans Plan: Building a Thriving and

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Welcoming City, 33 (Dec. 2012), http://bit.ly/1OVg5gf; New York City Exec. Order No. 124 (Aug. 7, 1989); New York City Exec. Order No. 34 (May 13, 2003); City of Albuquerque Resolution No. 2004-070 (June 7, 2004); City of Austin Resolution (Jan. 30, 1997).
19 Nat’l Immigration Law Center, Immigration-inclusive State and Local Policies Move Ahead in 2014-15, Nat’l Immigration Law Center, 14-15 (Dec. 2015), http://bit.ly/1QXSRh0.
20 Id. at 13 (describing programs in California counties that provide health services to undocumented immigrants and a pilot program in New York City to use public and private funds to insure a mostly undocumented group).

21 See, e.g., Opening Minds, Opening Doors, Opening Communities, supra note 17 at 28 (describing strategies to build trust between police and immigrant communities in Tucson, Arizona; Boston, Massachusetts; and Norcross, Georgia); Marie Price, Cities Welcoming Immigrants: Local Strategies to Attract and Retain Immigrants in U.S. Metropolitan Areas, International Organization for Migration, 13 (Dec. 2014), http://bit.ly/1QXT5EV (describing New York City Police Department’s multilingual outreach program); Austin Police Department, Robbery Prevention & Immigrant Outreach (Hispanic), http://bit.ly/1RMGlza (last visited Mar. 4, 2016); New Orleans Police Department, Operations Manual, Chapter 41.6.1, Immigration Status (effective Feb. 28, 2016), available at: http://bit.ly/1p4QJrA.
22 See Ruth Milkman et al., Wage Theft and Workplace Violations in Los Angeles, UCLA Institute for Research on Labor and Employment, 58 (2014), http://bit.Jy/1p4R65F. For example, in 2014, the Los Angeles City Attorney’s Office prosecuted employers for failing to pay more than 50 employees approximately $250,000 in wages and overtime. As a result of this suit, Los Angeles created a hotline to assist residents victimized by wage theft. See Los Angeles City Attorney, Fighting Wage Theft, http://bit.ly/21bTAe0 (last visited Mar. 4, 2016).
23 Liz Robbins, New York to Aid Immigrants Amid Stalled National Reforms, N.Y. Times, Dec. 14, 2015.
24 Press Release, Mayor of Los Angeles, Mayor Garcetti Announces Nationwide Actions as Court Hearings Proceed on Obama’s Immigration Reforms (Apr. 17, 2015), http://bit.ly/1p4Rp0a.
25 Houston Immigrant Legal Services Collaborative, http://www.citizenshipcorner.org (last visited Mar. 4, 2016); Carson, supra note 16 at 8; City of Boston, Mayor’s Office of New Bostonians, http://bit.ly/1Gfh22A (last visited Mar. 4, 2016).
26 Cities for Action, http://bit.ly/1QyRqzY (last visited Mar. 4, 2016).
27 Randy Capps et al., Deferred Action for Unauthorized Immigrant Parents: Analysis of DAPA’s Potential Effects on Families and Children, Migration Policy Institute, 17 (Feb. 2016), http://bit.ly/1UNIHQR.
28 Gee, supra note 3 at 5.

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29 Capps, supra note 27 at 5, 7 (noting that more than two-thirds of parents potentially eligible for relief under the guidance have lived in the United States for at least ten years, and eighty-five percent of their minor children are U.S. citizens).
30 See Max Ehrenfruend, How having an undocumented parent hurts American children, Wash. Post, Mar. 4, 2015; Joanna Dreby, How Today’s Immigration Enforcement Policies Impact Children, Families, and Communities, Center for American Progress, 9 (Aug. 2012), http://ampr.gs/1nlxCrC; Capps, supra note 27 at 19-20.
31 See Oversight of the Administration’s Misdirected Immigration Enforcement Policies: Examining the Impact on Public Safety and Honoring the Victims, Hearing Before the S. Comm. on the Judiciary, 114th Cong. (July 21, 2015) (statement of Tom Manger, Major Cities Chiefs Association), available at http://bit.ly/1LESmpB.
32 Marvine Howe, The Region: Under the New Law, Illegal Aliens Suffer Much in Silence, N.Y. Times, Nov. 27, 1988.
33 The district court did not credit the other conclusory allegations of injury made by plaintiffs. Many of plaintiffs’ alleged “injuries” in fact rested on unproven claims about increased local fiscal burden (Respondents’ Br. in Opp. to Petition for a Writ of Certiorari at 12, 17 (No. 15-674)). But plaintiffs do not purport to represent local governments in their jurisdictions, and cannot “seek to enjoin” the 2014 guidance “on the ground that it might cause harm to other parties.” See Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 163 (2010).
34 The United States notes that Texas is claiming harm from a voluntary state subsidy because Texas could shift the cost of processing license applications to applicants (Pet’rs’ Br. at 26). Amici raise standing objections that would apply independently of any voluntary subsidy hurdle.
35 Gee, supra note 3 at 5.
36 Id.
37 See Br. for Amici Curiae the Mayors of New York, Los Angeles, Atlanta, et al. in Support of the Petition for a Writ of Certiorari at 15-18.
38 Raul Hinojosa-Ojeda, The Economic Benefits of Expanding the Dream: DAPA and DACA Impacts on Los Angeles and California, UCLA North American Integration & Development Center, 1 (Jan. 26, 2015), http://bit.ly/1TeIxRL.
39 This Court acknowledged “special solicitude” for states in assessing standing in this context only; nothing in the Court’s decisions authorizes lower federal courts to disregard the interests of other parties, including other states and local governments, merely because a state acts as plaintiff. Massachusetts, 549 U.S. at 520.

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40 Although this Court has required that threatened injury be “real, immediate, and direct” as well as “certainly impending” to support standing, Davis v. FEC, 554 U.S. 724, 734 (2008); Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1143 (2013), plaintiffs never proved that theorized migration into Texas was real and imminent, or even likely to increase the number of future driver’s license applications, given the potential for simultaneous migration of individuals and families out of Texas.
41 Standing theories that readily allow single-court nationwide injunctions also place crucial public issues in the hands of one judge - countermanding this Court’s caution that when government action is at stake, courts should not “thwart the development of important questions of law by freezing the first final decision rendered on a particular legal issue.” United States v. Mendoza, 464 U.S. 154, 160 (1984).
42 By divorcing the scope of the injunction from proven injury, the standing theory in this case encourages plaintiffs to strategically forum shop and to deliberately choose courts in forums where the harms of a broad injunction will not be obvious or apparent, and where it will be difficult for adversely affected parties, like local governments, to appear.

End of Document

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 Case 3:17-cv-00574-WHO Document 182 Filed 11/20/17 Page 1 of 28

United States District Court Northern District of California

1

2

3

4

UNITED STATES DISTRICT COURT

5

NORTHERN DISTRICT OF CALIFORNIA

6

7 COUNTY OF SANTA CLARA,

8

Plaintiff,

9

v.

10 DONALD J. TRUMP, et al.,

11

Defendants.

12 CITY AND COUNTY OF SAN FRANCISCO,

13

Plaintiff,

14

v.

15 DONALD J. TRUMP, et al.,

16

Defendants.

17

Case No. 17-cv-00574-WHO
Case No. 17-cv-00485-WHO ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

18

INTRODUCTION

19

On April 25, 2017, I entered a preliminary injunction against Section 9(a) of Executive

20 Order 13768, “Enhancing Public Safety in the Interior of the United States,”, 82 Fed. Reg. 8799

21 (Jan. 25, 2017) (the “Executive Order”). Preliminary Injunction Order (“PI Order”)(SF Dkt. No.

22 82), (SC Dkt. No. 98). I concluded that the County of Santa Clara and the City and County of San

23 Francisco had pre-enforcement standing to protect hundreds of millions of dollars of federal grants

24 from the unconstitutionally broad sweep of the Executive Order. The federal government argued

25 for the first time at the hearing for the preliminary injunction that the Executive Order was meant

26 to be far more narrow than I interpreted it, a mere directive to the Department of Homeland

27 Security (“DHS”) and the Department of Justice (“DOJ”) that does not seek to place any new

28

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1 conditions on federal funds. I concluded that this interpretation was not legally plausible in light

2 of the Executive Order’s plain language, as confirmed by the administration’s many statements

3 indicating the Executive Order’s expansive scope. PI Order at 14.

4

A month later, the Attorney General issued a two page memorandum memorializing the

5 DOJ’s interpretation (the “AG Memorandum”) and asked me to reconsider the injunction.

6 Because the AG’s Memorandum does not amend the Executive Order, is not binding on the

7 Executive Branch and suggests an implausible interpretation of Section 9(a), I denied the federal

8 government’s motion on July 20, 2017. Order Denying Reconsideration (SF Dkt. No. 146), (SC

9 Dkt. no. 145).

10

Now on summary judgment, the parties have shown that there are no material facts in

11 dispute concerning the Executive Order. This Order plows no new ground: for the reasons

12 summarized below, and as further described in my earlier Orders, I GRANT the Counties’ 13 motions for summary judgment on the Executive Order and permanently enjoin Section 9(a).1

14

SUMMARY

15

The Executive Order, in addition to outlining a number of immigration enforcement

16 policies, purports to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do

17 not receive Federal funds, except as mandated by law” and to establish a procedure to make

18 “sanctuary jurisdictions” ineligible to receive federal grants. In two related actions, the County of

19 Santa Clara and the City and County of San Francisco challenge Section 9 of the Executive Order

20 as facially unconstitutional and have brought motions seeking summary judgment. See Cty. of

21 Santa Clara v. Trump, No. 17-cv-0574-WHO; City & Cty. of San Francisco v. Trump, 17-cv-

22 0485-WHO. San Francisco also seeks a declaration that its laws comply with Section 1373.

23

The Counties argue that Section 9(a) violates the separation of powers doctrine enshrined

24 in the Constitution because it improperly seeks to wield congressional spending powers. It is so

25

26 1 This Order addresses San Francisco’s motion only with respect to Count Three of its Complaint.

27

Counts One and Two relate to San Francisco’s claims regarding with 8 U.S.C. § 1373 (“Section 1373”) and its compliance with it, which are better addressed at the time I consider upcoming

28

motions in related litigation. City & Cty. of San Francisco v. Sessions, No. 17-cv-4642-WHO; California v. Sessions, No. 17-cv-4701-WHO (“the related litigation”).

2

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1 overbroad and coercive that even if the President had spending powers, the Executive Order would

2 clearly exceed them and violate the Tenth Amendment’s prohibition against commandeering local

3 jurisdictions. It is so vague and standardless that it violates the Fifth Amendment’s Due Process

4 Clause and is void for vagueness. And because it seeks to deprive local jurisdictions of

5 congressionally allocated funds without any notice or opportunity to be heard, it violates the

6 procedural due process requirements of the Fifth Amendment.

7

The federal government responds that the Counties’ cannot demonstrate that Section 9 of

8 the Executive Order is invalid under all circumstances, which the federal government contends is

9 the proper standard for a facial challenge. It also claims that the grant eligibility provision in

10 Section 9(a) is consistent with the Constitution’s separation of powers; that it is a valid exercise of

11 the Spending Power because it is not overly coercive, does not force the Counties to take

12 unconstitutional actions to receive the funds, and the funds bear a relationship to immigration; that

13 the AG Memorandum clarifies the meaning of Section 9(a), eliminating its vagueness (and

14 alternatively, the Counties’ vagueness challenge impermissibly relies on speculation); and, finally,

15 in light of the AG Memorandum, Section 9(a) does not apply to funding in which the County

16 might have a constitutionally protectable interest (and alternatively that the federal government

17 will apply the applicable procedures).

18

Section 9(a), by its plain language, attempts to reach all federal grants, not merely the three

19 grants listed in the AG’s Memorandum. The rest of the Executive Order is broader still,

20 addressing all federal funding. And if there was doubt about the scope of the Executive Order, the

21 President and Attorney General erased it with their public comments. The President has called it

22 “a weapon” to use against jurisdictions that disagree with his preferred policies of immigration

23 enforcement, and his press secretary reiterated that the President intends to ensure that “counties

24 and other institutions that remain sanctuary cites don’t get federal government funding in

25 compliance with the executive order.” The Attorney General has warned that jurisdictions that do

26 not comply with Section 1373 would suffer “withholding grants, termination of grants, and

27 disbarment or ineligibility for future grants,” and the “claw back” of any funds previously

28 awarded. The AG Memorandum not only provides an implausible interpretation of Section 9 (a) 3

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1 but is functionally an “illusory promise” because it does not amend Section 9(a) and does not bind

2 the Executive branch. It does not change the plain meaning of the Executive Order.

3

The Constitution vests the spending powers in Congress, not the President, so the

4 Executive Order cannot constitutionally place new conditions on federal funds. Further, the Tenth

5 Amendment requires that conditions on federal funds be unambiguous and timely made; that they

6 bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that

7 bears no meaningful relationship to immigration enforcement cannot be threatened merely because

8 a jurisdiction chooses an immigration enforcement strategy of which the President disapproves.

9 Because the Executive Order violates the separation of powers doctrine and deprives the Counties

10 of their Tenth and Fifth Amendment rights, I GRANT the Counties’ motions for summary 11 judgment and permanently enjoin the defunding and enforcement provisions of Section 9(a). 2

12

BACKGROUND

13 I. 14

THE EXECUTIVE ORDER On January 25, 2017, President Donald J. Trump issued Executive Order 13768,

15 “Enhancing Public Safety in the Interior of the United States.” See RJN, Ex. J (“EO”) (SC Dkt.

16 No. 161-10). In outlining the Executive Order’s purpose, Section 1 reads, in part, “Sanctuary

17 jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens

18 from removal from the United States.” EO § 1. Section 2 states that the policy of the executive

19 branch is to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not

20 receive Federal funds, except as mandated by law.” Id. § 2(c).

21

Section 9, titled “Sanctuary Jurisdictions,” lays out this policy in more detail. It reads:

22

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive

branch to ensure, to the fullest extent of the law, that a State, or a

23

political subdivision of a State, shall comply with 8 U.S.C. 1373.

24

(a) In furtherance of this policy, the Attorney General and the

Secretary, in their discretion and to the extent consistent with law,

25

shall ensure that jurisdictions that willfully refuse to comply with 8

U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive

26

Federal grants, except as deemed necessary for law enforcement

27

28

2 The motions for leave to file amicus briefs at SF Dkt. Nos. 174, 175, 176, 180, 181; and SC Dkt. Nos. 169, 172, 173, 174, 175 are GRANTED.

4

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purposes by the Attorney General or the Secretary. The Secretary

1

has the authority to designate, in his discretion and to the extent

consistent with law, a jurisdiction as a sanctuary jurisdiction. The

2

Attorney General shall take appropriate enforcement action against

any entity that violates 8 U.S.C. 1373, or which has in effect a

3

statute, policy, or practice that prevents or hinders the enforcement

of Federal law. 4

(b) To better inform the public regarding the public safety threats

5

associated with sanctuary jurisdictions, the Secretary shall utilize the

Declined Detainer Outcome Report or its equivalent and, on a

6

weekly basis, make public a comprehensive list of criminal actions

committed by aliens and any jurisdiction that ignored or otherwise

7

failed to honor any detainers with respect to such aliens.

8

(c) The Director of the Office of Management and Budget is

directed to obtain and provide relevant and responsive information

9

on all Federal grant money that currently is received by any

sanctuary jurisdiction. 10

Id. § 9.

11

Section 3 of the Executive Order, titled “Definitions,” incorporates the definitions listed in

12

8 U.S.C. § 1101. Id. § 3. Section 1101 does not define “sanctuary jurisdiction.” The term is not

13

defined anywhere in the Executive Order. Similarly, neither section 1101 nor the Executive Order

14

defines what it means for a jurisdiction to “willfully refuse to comply” with Section 1373 or for a

15

policy to “prevent[] or hinder[] the enforcement of Federal law.” Id. § 9(a).

16

II. SECTION 1373 17
Section 1373, to which Section 9 refers, prohibits local governments from restricting 18
government officials or entities from communicating immigration status information to ICE. It 19
states in relevant part: 20

(a) In General. Notwithstanding any other provision of Federal,

21

State, or local law, a Federal, State, or local government entity or

official may not prohibit, or in any way restrict, any government

22

entity or official from sending to, or receiving from, the Immigration

and Naturalization Service information regarding the citizenship or

23

immigration status, lawful or unlawful, of any individual.

24

(b) Additional Authority of Government Entities. Notwithstanding

any other provision of Federal, State, or local law, no person or

25

agency may prohibit, or in any way restrict, a Federal, State, or local

government entity from doing any of the following with respect to

26

information regarding the immigration status, lawful or unlawful, of

any individual: 27

(1) Sending such information to, or requesting or receiving

28

such information from, the Immigration and Naturalization

5

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1 2 3 4 8 U.S.C. 1373.

Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.

5

In July, 2016, the U.S. Department of Justice issued guidance linking two federal grant

6 programs, the State Criminal Alien Assistance Program (“SCAAP”) and Edward Byrne Memorial 7 Justice Assistance Grant (“JAG”), to compliance with Section 1373.3 This guidance states that all

8 applicants for these two grant programs are required to “assure and certify compliance with all

9 applicable federal statutes, including Section 1373, as well as all applicable federal regulations,

10 policies, guidelines, and requirements.” Id. The DOJ has indicated that the Community Oriented

11 Policing Services Grant (“COPS”) is also conditioned on compliance with Section 1373.

12 III. THE AG MEMORANDUM

13

On May 22, 2017, Attorney General Sessions issued the AG Memorandum, putting

14 forward the DOJ’s “conclusive” interpretation of the Executive Order. See Oppo. Attachment 1

15 (“AG Memorandum”) (SC Dkt. No. 168-1). The AG Memorandum states that the Executive

16 Order does not “purport to expand the existing statutory or constitutional authority of the Attorney

17 General and the Secretary of Homeland Security in any respect” and instead instructs those

18 officials to take action “to the extent consistent with the law.” Id. at 2. It also states that the

19 defunding provision in section 9(a) will be applied “solely to federal grants administered by [DOJ]

20 or [DHS]” and to grants that require the applicant to “certify . . . compliance with federal law,

21 including 8 U.S.C. section 1373, as a condition for receiving an award.” Id. at 1-2. The AG

22 Memorandum also states that DHS and DOJ may only impose these conditions pursuant to

23 “existing statutory or constitutional authority,” and only where “grantees will receive notice of

24 their obligation to comply with section 1373.” Id. at 2.

25

26

3 See Letter from Peter J. Kadzik, Asst. Att’y Gen. U.S. Dep’t of Justice, to Hon John A. Culberson, Chairman of the Subcomm. On Commerce, Justice, Sci & Related Agencies, (Jul. 7,

27

2016), http://culberson.house.gov/uploadedfiles/2016-7-7_section_1373_doj_letter_to_culberson.pdf. I take judicial notice of Peter Kadzik’s letter as courts may

28

judicially notice information and official documents contained on official federal government websites. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998-999 (9th Cir. 2010).

6

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1

The AG Memorandum purports to clarify the scope of the Executive Order to a more

2 narrow interpretation than what its plain meaning allows. To fix the constitutional problems I

3 have identified, the Executive Order itself would need to be amended. I have concluded that the

4 AG Memorandum amounts to “nothing more than an illusory promise to enforce the Executive

5 Order narrowly.” See Cty. of Santa Clara v. Trump, No. 17–cv–00574, 2017 WL 3086064, at *1

6 (N.D. Cal. July 20, 2017).

7 IV. CIVIL DETAINER REQUESTS

8

An ICE civil detainer request asks a local law enforcement agency to continue to hold an

9 inmate who is in local jail because of actual or suspected violations of state criminal laws for up to

10 48 hours after his or her scheduled release so that ICE can determine if it wants to take that

11 individual into custody. See 8 C.F.R. § 287.7; Marquez Decl., Ex. C at 3 (SC Dkt. No. 160-3).

12 ICE civil detainer requests are voluntary and local governments are not required to honor them.

13 See 8 C.F.R. § 287.7(a); Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (“[S]ettled

14 constitutional law clearly establishes that [immigration detainers] must be deemed requests”

15 because any other interpretation would render them unconstitutional under the Tenth

16 Amendment).

17

Several courts have held that it is a violation of the Fourth Amendment for local

18 jurisdictions to hold suspected or actual removable aliens subject to civil detainer requests because

19 those requests are often not supported by an individualized determination of probable cause that a

20 crime has been committed. See Morales v. Chadbourne, 793 F.3d 208, 215-217 (1st Cir. 2015);

21 Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 2014 WL 1414305, at *9-11 (D. Or.

22 Apr. 11, 2014). ICE does not reimburse local jurisdictions for the cost of detaining individuals in

23 response to a civil detainer request and does not indemnify local jurisdictions for potential liability

24 they could face for related Fourth Amendment violations. See 8 C.F.R. § 287.7(e); Marquez Decl.

25 ¶¶ 24-27 & Exs. C-E.

26 V. 27 28

THE COUNTIES’ POLICIES A. Santa Clara’s Policies Santa Clara asserts that its local policies and practices with regard to federal immigration
7

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1 enforcement are at odds with the Executive Order’s provisions regarding Section 1373. SC Mot.

2 at 6. (SC Dkt. No. 151). In 2010, the Santa Clara County Board of Supervisors adopted a

3 Resolution prohibiting Santa Clara employees from using County resources to transmit any

4 information to ICE that was collected in the course of providing critical services or benefits.

5 Marquez Decl. ¶ 28 (SC Dkt. No. 160) & Ex. G (SC Dkt. No. 160-7); Neusel Decl. ¶ 8 (SC Dkt.

6 No. 153); L. Smith Decl. ¶ 7 (SC Dkt. No. 156). The Resolution also prohibits employees from

7 initiating an inquiry or enforcement action based solely on the individual’s actual or suspected

8 immigration status, national origin, race or ethnicity, or English-speaking ability, or from using

9 County resources to pursue an individual solely because of an actual or suspected violation of

10 immigration law. Marquez Decl. ¶ 28 & Ex. G; Neusel Decl. ¶ 8; L. Smith Decl. ¶ 7.

11

Santa Clara also asserts that its policies with regard to ICE civil detainer requests are

12 inconsistent with the Executive Order and the President’s stated immigration enforcement agenda.

13 Prior to late 2011, Santa Clara responded to and honored ICE civil detainer requests, housing an

14 average of 135 additional inmates each day at a daily cost of approximately $159 per inmate.

15 Neusel Decl. ¶ 10-11. When the County raised concerns about the costs associated with

16 complying with detainer requests and potential civil liability, ICE confirmed that it would not

17 reimburse the County or indemnify it for the associated costs and liabilities. Marquez Decl. ¶¶ 22-

18 26 & Exs. C-E.

19

Santa Clara subsequently convened a task force and adopted a new policy where the

20 County agreed to honor requests for individuals with serious or violent felony convictions, but

21 only if ICE would reimburse the County for the cost of holding those individuals. Neusel Decl.

22 ¶¶ 5-6; Marquez Decl. ¶ 27 & Ex. G. ICE has never agreed to reimburse the County for any costs,

23 so since November 2011 the County has declined to honor all ICE detainer requests. Neusel Decl.

24 ¶¶ 5-6; Marquez Decl. ¶ 27 & Ex. G.

25

B. San Francisco’s Policies

26

San Francisco’s sanctuary city policies are contained in Chapters 12H and 12I of its

27 Administrative Code. See S.F. Admin Code § 12. The stated purpose of these laws is “to foster

28 respect and trust between law enforcement and residents, to protect limited local resources, to 8

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1 encourage cooperation between residents and City officials, including especially law enforcement

2 and public health officers and employees, and to ensure community security, and due process for

3 all.” S.F. Admin Code § 12I.1.

4

As relevant to Section 1373, Chapter 12H prohibits San Francisco departments, agencies,

5 commissions, officers, and employees from using San Francisco funds or resources to assist in

6 enforcing federal immigration law or gathering or disseminating information regarding an

7 individual’s release status, or other confidential identifying information (which as defined does not

8 include immigration status), unless such assistance is required by federal or state law. Id. § 12H.2.

9 Although Chapter 12H previously prohibited city employees from sharing information regarding

10 individuals’ immigration status, the San Francisco Board of Supervisors removed this restriction

11 in July 2016 due to concerns that the provision violated Section 1373.

12

With regard to civil detainer requests, Chapter 12I prohibits San Francisco law

13 enforcement from detaining an individual, otherwise eligible for release from custody, solely on

14 the basis of a civil immigration detainer request. Id. § 12I.3. It also prohibits local law

15 enforcement from providing ICE with advanced notice that an individual will be released from

16 custody, unless the individual meets certain criteria. Id. Chapter 12I.3.(e) provides that a “[l]aw

17 enforcement official shall not arrest or detain an individual, or provide any individual’s personal

18 information to a federal immigration officer, on the basis of an administrative warrant, prior

19 deportation order, or other civil immigration document based solely on alleged violations of the

20 civil provisions of immigration laws.” Id. § 12I.3.(e). San Francisco explains that it adopted these

21 policies due to concerns that holding people in response to civil detainers would violate the Fourth

22 Amendment and require it to dedicate scarce law enforcement personnel and resources to holding

23 these individuals. Hennessy Decl. ¶¶ 13-14 (SF Dkt. No. 160).

24 VI. THE COUNTIES’ FEDERAL FUNDING

25

A. Santa Clara’s Federal Funding

26

In the 2015-2016 fiscal year, Santa Clara received approximately $1.7 billion in federal

27 and federally dependent funds, making up roughly 35% of the County’s total revenues. J. Smith

28 Decl. ¶ 6 (SC Dkt. No. 155); Marquez Decl. ¶ 8. This figure includes federal funds provided 9

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1 through entitlement programs.

2

Most of the County’s federal funds are used to provide essential services to its residents.

3 Marquez Decl. ¶¶ 5-8. In support of its motion, the County includes a number of declarations

4 outlining how a loss of any substantial amount of federal funding would force it to make

5 substantial cut backs to safety-net programs and essential services and would require it to lay off

6 thousands of employees. It highlights that the County’s Valley Medical Center, the only public

7 safety-net healthcare provider in the County, relies on $1 billion in federal funds each year, which

8 covers up to 70% of its total annual costs. Lorenz Decl. ¶ 6 (SC Dkt. No. 157). A loss of all

9 federal funds would shut down Valley Medical Center and cut off the only healthcare option for

10 thousands of poor, elderly, and vulnerable people in the County. Id. ¶ 8. It further highlights that

11 Santa Clara’s Social Services Agency, which provides various services to vulnerable residents,

12 including child welfare and protection, aid to needy families, and support for disabled children,

13 adults and the elderly, receives roughly 40% of its budget, $300 million, from federal funds.

14 Menicocci Decl. ¶ 6 (SC Dkt. No. 158). The County’s Public Health Department receives 40% of

15 its budget and $38 million in federal funds. And the County’s Office of Emergency Services,

16 whose job is to prepare for and respond to disasters such as earthquakes and terrorism, receives

17 more than two-thirds of its budget from federal funds. Reed Decl. ¶ 8 (SC Dkt. No. 154)

18

In the 2014-2015 fiscal year, the County received over $565 million in non-entitlement

19 federal grants. See Marquez Decl. Ex. A at 11-12 (SC Dkt. No. 160-1) (showing $338 million in

20 federal grants subject to OMB auditing requirements and an additional $227 million in federal

21 grants through the Department of Housing and Urban Development). This represents

22 approximately 11% of the County’s budget.

23

B. San Francisco’s Federal Funding

24

San Francisco’s yearly budget is approximately $9.6 billion; it receives approximately $1.2

25 billion of this from the federal government. Rosenfield Decl. ¶ 10 (SF Dkt. No. 159). San

26 Francisco uses these federal funds to provide vital services such as medical care, social services,

27 and meals to vulnerable residents, to maintain and upgrade roads and public transportation, and to

28 make needed seismic upgrades. Whitehouse Decl. ¶15 (SF Dkt. No. 167). Losing all, or a 10

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1 substantial amount, of federal funds would have significant effects on core San Francisco

2 programs. Rosenfield Decl. ¶ 42. Federal funds make up 30% of the budget for San Francisco’s

3 Department of Emergency Management, id. ¶¶ 28-31; 33% of the budget for San Francisco’s

4 Human Services Agency, id. ¶¶ 16-21; and 40% of the budget for San Francisco’s Department of

5 Public Health, id. ¶¶ 22-27.

6

Approximately 20% of the federal funds, or $240 million, are from federal grants. Id. ¶ 43.

7 San Francisco also receives $800 million each year in federal multi-year grants, primarily for

8 public infrastructure projects. Whiteside Decl. ¶ 13.

9

San Francisco must adopt a balanced budget for each fiscal year beginning on July 1.

10 Whitehouse Decl. ¶16. Under local law, the Mayor must submit a balanced budget to the Board of

11 Supervisors by June 1 and make fundamental budget decisions by May 15, including whether to

12 create a budget reserve to account for the potential loss of significant funds. Id. ¶¶ 5, 9. Any

13 money placed in the budget reserve would not be available to be used for other programs or

14 services in the coming fiscal year. Id. ¶ 9.

15

DISCUSSION

16 I. 17

JUSTICIABILITY The federal government argues that the Counties’ claims against the Executive Order are

18 not justiciable because the Counties cannot establish standing and because their claims are not ripe

19 for review. It also contends that the claims are non-justiciable because the Executive Order is

20 merely an internal directive that does not directly affect the Counties. These principles of

21 justiciability go to whether this court has jurisdiction to hear the Counties’ claims. I conclude that

22 the Executive Order carries the weight of the law, the Counties have demonstrated Article III

23 standing to challenge the Executive Order, and their claims are ripe for review.

24

The federal government raises three primary arguments against the justiciability of the

25 Counties’ claims. First, it asserts that the Counties have not established a concrete risk of losing

26 any funds under Section 9(a). Second, it argues that the Counties cannot establish the “concrete”

27 injury necessary for standing nor “concrete” impact necessary for ripeness because neither the

28 President nor the Secretary of DHS has disagreed with the “plan” set forth by the Attorney 11

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1 General in the AG Memorandum. Lastly, the federal government argues that because the

2 Executive Order is merely a “internal directive,” it does not affect the Counties.

3

The federal government’s arguments are nearly identical to those I have rejected before. It

4 does not identify any change in the law or alternative explanation that would change my prior

5 analysis in the PI Order and Order Denying Reconsideration. I address its arguments in turn,

6 repeating my previous conclusions. All of the Counties’ claims are justiciable.

7

A. The Counties Establish a Concrete Risk of Losing Funds

8

The federal government repeatedly indicated its intent to enforce the Executive Order in its

9 public statements and through its actions. Although the defunding provision was not enforced

10 against any jurisdiction prior to the nationwide injunction, the President and other members of the

11 administration have made numerous statements reaffirming the federal government’s intent to

12 enforce the Executive Order and to use the threat of withholding federal funds as a tool to coerce

13 states and local jurisdictions to change their policies.

14

For example, on February 5, 2017, after signing the Executive Order, President Trump

15 confirmed that he was willing and able to use “defunding” as a “weapon” so that sanctuary cities

16 would change their policies. See RJN Ex. H (Tr. of Feb. 5, 2017 Bill O’Reilly Interview with

17 President Donald J. Trump) at 4 (SF Dkt. No. 163-9) (“I don’t want to defund anybody. I want to

18 give them the money they need to properly operate as a city or a state. If they’re going to have 19 sanctuary cities, we may have to do that. Certainly that would be a weapon.”).4 Attorney General

20 Sessions confirmed the federal government’s intent to enforce the defunding provisions, stating

21 that if jurisdictions do not comply with Section 1373, such violations would result in “withholding

22 grants, termination of grants, and disbarment or ineligibility for future grants,” and that the federal

23 government would seek to “claw back any funds awarded to a jurisdiction that willfully violates

24 1373.” See RJN, Ex. I (“Sessions Press Conference”) at 2 (SF Dkt. No. 163-9).

25

The statements of the President and the Attorney General repeatedly indicated an intent to

26

27

4 I take judicial notice of President Trump’s interview statements as the veracity of these statements “can be accurately and readily determined from sources whose accuracy cannot

28 reasonably be questioned.” Fed. R. Evid. § 201 (b)(2).

12

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1 defund sanctuary jurisdictions in compliance with the Executive Order. Though such explicit

2 statements have been scant since I entered the preliminary injunction, the Counties’ concerns that

3 the federal government will enforce the defunding provision are well supported by the federal

4 government’s public statements and actions, all of which are consistent with enforcing the 5 Executive Order.5

6

In addition to demonstrating that the federal government is likely to enforce the Executive

7 Order, the Counties have shown that the federal government is particularly likely to target them

8 and the funds on which they rely. In the February 5, 2017 interview, President Trump specifically

9 threatened to defund California, stating: “I’m very much opposed to sanctuary cities. They breed

10 crime. There’s a lot of problems. If we have to we’ll defund, we give tremendous amounts of

11 money to California . . . California in many ways is out of control.” See RJN, Ex. H at 4. The

12 Counties have established that they both receive large percentages of their federal funding through

13 the State of California and that they would suffer injury if California was “defunded.” ICE has

14 identified California, Santa Clara County, and San Francisco as jurisdictions with policies that

15 “Restrict Cooperation with ICE” and has identified Santa Clara County Main Jail and San

16 Francisco County Jail as two of eleven detention centers with the “highest volume of detainers 17 issued” that “do not comply with detainers on a routine basis.” RJN, Ex. D (SF Dkt. No. 163-3).6

18

The President and the Attorney General have also repeatedly held up San Francisco as an

19 example of how sanctuary policies threaten public safety. In an op-ed recently published in the

20 San Francisco Chronicle, the Attorney General wrote that “Kathryn Steinle might be alive today if

21 she had not lived in a ‘sanctuary city’” and implored “San Francisco and other cities to re-evaluate

22

23 5 I take judicial notice under Fed. R. Evid. § 201 (b)(2) that the DOJ notified the Counties on

24

November 15, 2017 that they “have preliminarily been found to have laws, policies, or practices that violate 8 U.S.C. 1373.” Second Supplement al Request for Judicial Notice in Support of the

25

County of Santa Clara’s Motion for Summary Judgment, Exh. C, Dkt. No. 181. This underscores the concrete risk and injury faced by the Counties.

26 6 I take judicial notice of ICE’s identification of California, Santa Clara County, and San Francisco

27

as jurisdictions with policies that “Restrict Cooperation with ICE” as matters of public record. See Interstate Nat. Gas. Co. v. S. Cal. Gas. Co., 209 F.2d 380, 385 (9th Cir. 1953) (judicially noticing

28 federal government agency records and reports).

13

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1 these policies.” RJN, Ex. R (SF Dkt. No. 163-18).7 In his statements to federal, state, and local

2 law enforcement on July 12, 2017, Attorney General Sessions referenced the tragic death of Ms.

3 Steinle and noted that her killer “admitted that one reason he was in San Francisco that day was

4 that he knew the city had these policies in place” RJN, Ex. T (“Sessions Press Release”) at 2 (Dkt.

5 No. 163-20). These statements indicate not only the belief that San Francisco is a “sanctuary

6 jurisdiction” but that its policies are particularly dangerous and in need of change. They also

7 reveal a choice by the administration to hold up San Francisco as an exemplar of a sanctuary

8 jurisdiction.

9

The federal government’s specific criticisms of San Francisco, Santa Clara, and California

10 support a well-founded fear that San Francisco and Santa Clara will face enforcement directly

11 under the Executive Order, or could be subject to defunding indirectly through enforcement

12 against California. San Francisco and Santa Clara have shown that their current practices and

13 policies are targeted by the Executive Order. They have demonstrated that the federal government

14 has repeatedly indicated its intent to enforce it. And they have established that the federal

15 government has specifically highlighted Santa Clara and San Francisco as jurisdictions with

16 sanctuary policies. On these facts, Santa Clara and San Francisco have demonstrated that the

17 “threat of enforcement [is] credible, not simply imaginary or speculative.” Id. (internal quotation

18 marks omitted). Because the enforcement of Section 9(a) involves defunding, this establishes the

19 Counties’ concrete risk of losing funds.

20

B. The Counties Show Concrete Injury and Concrete Impact

21

The Counties assert that the Executive Order threatens to penalize them for failing to

22 comply with Section 1373 and for failing to honor detainer requests by withholding all federal

23 funds, or at least all federal grants. Section 9(a) does not threaten all federal funding, but it does

24 include all federal grants, which make up a significant part of the Counties’ budgets. This

25 threatened injury meets Article III’s standing requirements. A “loss of funds promised under

26

27 7 I take judicial notice of Attorney General Sessions’s statements in his op-ed as the veracity of

28

these statements “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” Fed. R. Evid. § 201 (b)(2).

14

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1 federal law [] satisfies Article III’s standing requirement.” Organized Village of Kake v. U.S.

2 Dep’t of Agric., 795 F.3d 956, 965 (9th Cir. 2015).

3

The Counties explained that the need to mitigate a potential sudden loss of federal funds

4 wreaked havoc with their budgeting processes prior to issuance of the preliminary injunction.

5 They could not make informed decisions about whether to keep spending federal funds on needed

6 services for which they may not be reimbursed; they were forced to make contingency plans to

7 deal with a potential loss of funds, including placing funds in a budget reserve in lieu of spending

8 that money on needed programs; and the obligation to mitigate potential harm to their residents

9 and drastic cuts to services could ultimately compel them to change their local policies to comply

10 with what they believe to be an unconstitutional Executive Order. The potential loss of all federal

11 grants creates a contingent liability large enough to have real and concrete impacts on the

12 Counties’ ability to budget and plan for the future. As discussed in more detail below, the

13 Counties demonstrated that they are suffering a present “injury [] inflicted by the mere existence

14 and threatened enforcement of the [Executive Order].” Village of Euclid, 272 U.S. at 385. Along

15 with the threatened loss of funds, this may also establish Article III standing.

16

A sudden loss of grant funding would have another effect. The Counties receive large

17 portions of their federal grants through reimbursement structures; the Counties first spend their

18 own money on particular services and then receive reimbursements from the federal government

19 based on the actual services provided. Marquez Decl. ¶ 16. Because these funds are spent on an

20 ongoing basis, at all times the Counties are expecting, and relying on, millions of dollars in federal

21 reimbursements for services already provided. A sudden cut to funding, including a cut to these

22 reimbursements, could place them immediately in significant debt. A sudden and unanticipated

23 cut mid-fiscal year would substantially increase the injury to the Counties by forcing them to make

24 even more drastic cuts to absorb the loss of funds during a truncated period in order to stay on

25 budget. Whitehouse Decl. ¶ 15.

26

San Francisco explains that a mid-year loss of only $120 million in federal funding would:

27 require the City to make significant cuts to critical services and would result in reductions in the

28 numbers of first responders, such as police officers, firefighters, and paramedics; require severe 15

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1 cuts to the City’s MUNI transportation system; threaten the Mayor’s program to end chronic

2 veterans’ homelessness by 2018; and likely require cuts to social services, such as senior meals,

3 safety net services for low-income children, and domestic violence prevention services. Id. ¶ 10.

4 Because federal grants support key services, San Francisco asserts that, without clarity about the

5 funds the Executive Order could withhold or claw back, it would have needed to allocate millions

6 of dollars to a budget reserve on May 15, 2017 to prepare for the potential loss of significant funds

7 during the 2017 fiscal year. Id. ¶ 6, 12. Any funds placed in a reserve fund would not be available

8 to fund other City programs and services for the 2017 fiscal year, which would have resulted in a

9 dollar-for-dollar reduction in services the City is able to provide its residents. Id. ¶¶ 8-10.

10

Santa Clara asserts that the budgetary uncertainty put it in an “untenable position.”

11 Marquez Decl. ¶ 4. It explained that Santa Clara’s budget for the fiscal year is in place and was

12 developed based on careful weighing of various factors, including anticipated revenues, specific

13 service needs, salary and benefits for the County’s 19,000 employees, and the County’s fiscal

14 priorities. Id. ¶ 13. Because Santa Clara operates federally funded programs on a daily basis, and

15 incurs costs in anticipation that it will be reimbursed, its ability to provide these services depends

16 on the County having some confidence that it will continue to receive the federal reimbursements

17 and funds on which it depends. With the Executive Order’s unclear and broad language

18 threatening a significant cut to funding, the County did not know “whether to (1) continue

19 incurring hundreds of millions of dollars in costs that may never be reimbursed by the federal

20 government, (2) discontinue basic safety-net services delivered to its most vulnerable residents, or

21 (3) in an attempt to avoid either of these outcomes, be effectively conscripted into using local law

22 enforcement and other resources to assist the federal government in its immigration enforcement

23 efforts.” Id. ¶ 12.

24

The potential loss of funds also impacts the Counties’ potential borrowing power and

25 financial strength; San Francisco noted that it had received inquiries from credit rating agencies

26 about the Executive Order and its impact on San Francisco’s finances. Rosenfield Decl. ¶ 46-47.

27 This budget uncertainty is not abstract. It has caused the Counties real and tangible harms. They

28 have adequately demonstrated that budgetary uncertainty of the type threatened by the Executive 16

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1 Order constitutes a sufficiently concrete injury and demonstrates a sufficiently concrete impact for

2 purposes of justiciability.

3

C. The Executive Order is Not an Internal Directive

4

The federal government argues that the Executive Order does not change the law, but

5 merely directs the Attorney General and Secretary to enforce existing law. It cites Chen v.

6 Schiltgen, No. C-94-4094-MHP, 1995 WL 317023, at *5 (N.D. Cal. May 29, 1995), for the

7 proposition that the Executive Order “direct[s] the exercise of powers statutorily delegated to

8 executive branch officials.” Oppo. at 8. But the Executive Order is not readily susceptible to the

9 federal government’s narrow interpretation. Indeed, “[t]o read [the Executive Order] as the

10 federal government desires requires rewriting, not just reinterpretation.” U.S. v. Stevens, 559 U.S.

11 460, 481 (2010).

12

The federal government attempts to read out all of Section 9(a)’s unconstitutional

13 directives to render it an ominous, misleading, and ultimately toothless threat. It urges that all it

14 does is direct the Attorney General and Secretary to enforce existing grant conditions “consistent

15 with law.” But in reality, the defunding provision instructs the Attorney General and the Secretary

16 to do something that only Congress has the authority to do – place new conditions on federal

17 funds. If Section 9(a) does not direct the Attorney General and Secretary to place new conditions

18 on federal funds, then it only authorizes them to do something they already have the power to do,

19 which is to enforce existing grant requirements; effectively, the federal government argues that

20 Section 9(a) is “valid” and does not raise constitutional issues as long as it does nothing at all. But

21 a construction so narrow that it renders a legal action legally meaningless cannot possibly be

22 reasonable and is clearly inconsistent with the Executive Order’s broad intent.

23

The federal government’s construction requires a complete rewriting of the Executive

24 Order’s language and does not retain any of Section 9(a)’s legal effect. The Executive Order, as

25 written, is not merely an internal directive but an order intended to have the full force of the law.

26 II. CONSTITUTIONALITY OF THE EXECUTIVE ORDER

27

A. The Executive Order Violates the Separation of Powers

28

The Counties argue that the Executive Order is unconstitutional because it seeks to wield

17

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1 powers that belong exclusively to Congress, the spending powers. The federal government

2 contends that (i) the grant eligibility provision in Section 9(a) is consistent with separation of

3 powers; (ii) authority to impose at least some conditions is inherent in the statutory authority to

4 administer a grant program; and (iii) the Counties have failed to establish that the Executive Order

5 would be unconstitutional in all its applications.

6

The parties disagree about the standard for a facial challenge. Relying on United States v.

7 Salerno, 481 U.S. 739, 745 (1987), the federal government argues that the Counties must

8 demonstrate that Section 9(a) is invalid under all circumstances. SC Oppo. at 11 (SC Dkt. No.

9 168); SF Oppo. at 21 (SF Dkt. No. 165). Santa Clara asserts, and I agree, that a proper facial

10 challenge can be brought when the challenged law cannot be narrowly construed by the courts or

11 narrowly interpreted as to avoid constitutional questions. Jackson v. City & Cty. Of San

12 Francisco, 746 F.3d 953, 963 (9th Cir. 2014). I have found that the Executive Order cannot be

13 narrowly interpreted or construed to avoid constitutional questions, and the federal government

14 makes no argument regarding the separation of powers principles other than its misguided

15 assertion regarding the standard for a facial challenge. The Executive Order violates the

16 Constitution’s separation of powers principles.

17

The constitutional principle at issue is pretty basic. Article I of the Constitution grants

18 Congress the federal spending powers. See U.S. Const. art. I, § 8, cl. 1. “Incident to this power,

19 Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the

20 power ‘to further broad policy objectives by conditioning receipt of federal moneys upon

21 compliance by the recipient with federal statutory and administrative directives.’” South Dakota

22 v. Dole, 483 U.S. 203, 206 (1987) (citing Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)

23 (emphasis added). While the President may veto a Congressional enactment under the

24 Presentment Clause, he must “either ‘approve all the parts of a Bill, or reject it in total.’” Clinton

25 v. City of New York, 524 U.S. 417, 438 (1998) (quoting 33 Writings of George Washington 96 (J.

26 Fitzpatrick ed., 1940)). He cannot “repeal[] or amend[] parts of duly enacted statues” after they

27 become law. Id. at 439.

28

This is true even if Congress has attempted to expressly delegate such power to the

18

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1 President. Id. In City of New York, the Supreme Court concluded that the Line Item Veto Act,

2 which sought to grant the President the power to cancel particular direct spending and tax benefit

3 provisions in bills, was unconstitutional because it ran afoul of the “ ‘finely wrought’ procedures

4 commanded by the Constitution” for enacting laws. Id. at 448 (quoting INS v. Chadha, 462 U.S.

5 919, 951 (1983)). While Congress can delegate some discretion to the President to decide how to

6 spend appropriated funds, any delegation and discretion is cabined by these constitutional

7 boundaries.

8

After a bill becomes law, the President is required to “take Care that the Law be faithfully

9 executed.” See U.S. Const. art. II, § 3, cl. 5. Where Congress has failed to give the President

10 discretion in allocating funds, the President has no constitutional authority to withhold such funds

11 and violates his obligation to faithfully execute the laws duly enacted by Congress if he does so.

12 See City of New York, 524 U.S. at 439; U.S. Const. art. I, § 8, cl. 1. Further, “[w]hen the President

13 takes measures incompatible with the expressed or implied will of Congress, his power is at its

14 lowest ebb.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J.,

15 concurring). Congress has intentionally limited the ability of the President to withhold or

16 “impound” appropriated funds and has provided that the President may only do so after following

17 particular procedures and after receiving Congress’s express permission. See Impoundment

18 Control Act of 1974, 2 U.S.C. §§ 683 et seq.

19

The Executive Order runs afoul of this fundamental constitutional structure. The President

20 does not have the power to place conditions on federal funds and, obviously, cannot delegate this

21 power. But that is what Section 9(a) purports to do, to give the Attorney General and the

22 Secretary the power to place a new condition on federal funds (compliance with Section 1373) not

23 authorized by Congress.

24

Section 9(a) is particularly problematic because Congress has repeatedly declined to

25 broadly condition federal funds or grants on compliance with Section 1373 or other federal

26 immigration laws as the Executive Order purports to do. See, e.g., Ending Sanctuary Cities Act of

27 2016, H.R. 6252, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong.

28 (2016); Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016); Stop Sanctuary 19

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1 Policies and Protect Americans Act, S. 2146, 114th Cong. (2016). This puts the President’s power

2 “at its lowest ebb.” Youngstown, 343 U.S. at 637. The Executive Order’s attempt to place new

3 conditions on federal funds is an improper attempt to wield Congress’s exclusive spending power

4 and is a violation of the Constitution’s separation of powers principles.

5

B. The Counties’ Spending Clause Claims

6

The Counties also argue that, even if the President had the spending power, the Executive

7 Order would be unconstitutional under the Tenth Amendment because it exceeds those powers.

8 Relying largely on the language in the AG Memorandum, the federal government counters that: (i)

9 the Counties do not demonstrate that Section 9(a) is clearly coercive; (ii) Section 9(a) does not

10 induce the Counties to violate any applicable constitutional or statutory limitation; (iii) the AG

11 Memorandum eliminated the possibility of Section 9(a) being applied in arenas unrelated to

12 immigration; and (iv) the AG Memorandum clarifies how the provisions of Section 9(a) will be

13 applied. As I explained in the Order Denying Reconsideration, the AG Memorandum does not

14 resolve the Executive Order’s constitutional issues or alter the constitutional analysis, and there is

15 no need to discuss further those latter two arguments.

16

Regarding the first two arguments, Congress has significant authority to encourage policy

17 through its spending power. The Supreme Court, however, has articulated a number of limitations

18 to the conditions Congress can place on federal funds. The Executive Order likely violates at least

19 three of these restrictions: (1) conditions must be unambiguous and cannot be imposed after funds

20 have already been accepted; (2) there must be a nexus between the federal funds at issue and the

21 federal program’s purpose; and (3) the financial inducement cannot be coercive.

22

1. Unambiguous Requirement

23

When Congress places conditions on federal funds, “it must do so unambiguously” so that

24 state and local jurisdictions contemplating whether to accept such funds can “exercise their choice

25 knowingly, cognizant of the consequences of their participation.” Dole, 483 U.S. at 203 (internal

26 quotation marks omitted). Because states must opt-in to a federal program willingly, fully aware

27 of the associated conditions, Congress cannot implement new conditions after-the-fact. See Nat’l

28 Fed. of Indep. Bus. v. Sebelius (“NFIB”), 132 S. Ct. 2566, 2602-04 (2012). “The legitimacy of 20

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1 Congress’s exercise of the spending power thus rests on whether the state voluntarily and

2 knowingly accepts the terms of the contract” at the time Congress offers the money. Id. at 2602.

3

The Executive Order purports retroactively to condition all “federal grants” on compliance

4 with Section 1373. As this condition was not an unambiguous condition that the states and local

5 jurisdictions voluntarily and knowingly accepted at the time Congress appropriated these funds, it

6 cannot be imposed now by the Executive Order. Moreover, the Executive Order’s language refers

7 to all federal grants but the DOJ says it only applies to three grants issued through the

8 Departments of Justice and Homeland Security. If the funds at stake are not clear, the Counties

9 cannot voluntarily and knowingly choose to accept the conditions on such funds.

10

Finally, as discussed below in Section II.D., the Executive Order’s vague language does

11 not make clear what conduct it proscribes or give jurisdictions a reasonable opportunity to avoid

12 its penalties. The unclear and untimely conditions in the Executive Order fail the “unambiguous”

13 restriction because the Executive Order does not make clear to states and local governments what

14 funds are at issue and what conditions apply to those funds, making it impossible for them to

15 “voluntarily and knowingly accept[] the terms of the contract.” NFIB, 132 S. Ct. at 2602.

16

2. Nexus Requirement

17

The conditions placed on congressional spending must have some nexus with the purpose

18 of the implicated funds. “Congress may condition grants under the spending power only in ways

19 reasonably related to the purpose of the federal program.” Dole, 483 U.S. at 213. This means that

20 funds conditioned on compliance with Section 1373 must have some nexus to immigration

21 enforcement.

22

The Executive Order’s attempt to condition all federal grants on compliance with Section

23 1373 clearly runs afoul of the nexus requirement: there is no nexus between Section 1373 and

24 most categories of federal funding, such as funding related to Medicare, Medicaid, transportation,

25 child welfare services, immunization and vaccination programs, and emergency preparedness.

26 The Executive Order inverts the nexus requirement, directing the Attorney General and Secretary

27 to cut off all federal grants to “sanctuary jurisdictions” but giving them discretion to allow

28 “sanctuary jurisdictions” to receive grants “deemed necessary for law enforcement purposes.” EO 21

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1 § 9(a). As the subset of grants “deemed necessary for law enforcement purposes” likely includes

2 any federal funds related to immigration enforcement, the Executive Order expressly targets for

3 defunding grants with no nexus to immigration enforcement at all. This is the precise opposite of

4 what the nexus test requires.

5

3. Not Coercive Requirement

6

Finally, Congress cannot use the spending power in a way that compels local jurisdictions

7 to adopt certain policies. Congress cannot offer “financial inducement . . . so coercive as to pass

8 the point at which pressure turns to compulsion.” Dole, 483 U.S. at 211 (internal quotation marks

9 omitted). Legislation that “coerces a State to adopt a federal regulatory system as its own” “runs

10 contrary to our system of federalism.” NFIB, 132 S. Ct. at 2602. States must have a “legitimate

11 choice whether to accept the federal conditions in exchange for federal funds.” Id. at 2602-03.

12

In NFIB, the Supreme Court concluded that the Affordable Care Act’s threat of denying

13 Medicaid funds, which constituted over 10 percent of the State’s overall budget, was

14 unconstitutionally coercive and represented a “gun to the head.” Id. at 2604. The Executive Order

15 threatens to deny sanctuary jurisdictions all federal grants, hundreds of millions of dollars on

16 which the Counties rely. The threat is unconstitutionally coercive.

17

C. The Counties’ Tenth Amendment Claim

18

The Counties argue that Section 9(a) violates the Tenth Amendment because it attempts to

19 conscript states and local jurisdictions into carrying out federal immigration law. The federal

20 government does not specifically address the constitutional argument. Instead, it asserts that in

21 order to successfully bring a facial challenge, San Francisco must demonstrate that the

22 “appropriate enforcement action” provision of Section 9(a) would violate the Tenth Amendment in

23 all of its applications. As previously discussed, this argument misinterprets the facial challenge 24 standard.8

25

“The Federal government may not compel the States to enact or administer a federal

26

27

8 This discussion of the Tenth Amendment only addresses the Executive Order’s enforcement threat against all federal grants. I will consider the narrower issues presented concerning Section

28

1373 and specific grant programs involving San Francisco and the State of California in the related litigation.

22

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1 regulatory program.” New York, 505 U.S. at 188. “The Federal government may neither issue

2 directives requiring the States to address particular problems, nor command the States’ officers, or

3 those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz

4 v. United States, 521 U.S. 898, 935 (1997). “That is true whether Congress directly commands a

5 State to regulate or indirectly coerces a State to adopt a federal regulatory system as its own.”

6 NFIB, 132 S. Ct. at 2602.

7

The Counties have demonstrated that under their reasonable interpretation, the Executive

8 Order equates “sanctuary jurisdictions” with “any jurisdiction that ignored or otherwise failed to

9 honor any detainers” and therefore places such jurisdictions at risk of losing all federal grants. See

10 EO § 9(b). The Counties have shown that losing all of their federal grant funding would have

11 significant effects on their ability to provide services to their residents and that they may have no

12 legitimate choice but to accept the federal government’s conditions in exchange for those funds.

13

To the extent the Executive Order seeks to condition all federal grants on honoring civil

14 detainer requests, it is likely unconstitutional under the Tenth Amendment because it seeks to

15 compel the states and local jurisdictions to enforce a federal regulatory program through coercion.

16 It directs the Attorney General to “take appropriate enforcement action against any entity that

17 violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders

18 the enforcement of Federal law.” EO § 9(a). Although the Executive Order provides no further

19 clarification on what this “enforcement” might entail or what policies might “hinder[] the

20 enforcement of Federal law,” Attorney General Sessions, who is tasked with implementing this

21 provision, has equated failure to honor civil detainer requests with policies that “frustrate th[e]

22 enforcement of immigration laws.” See Sessions Press Conference at 2. Given the Attorney

23 General’s apparent interpretation of Section 1373, the Executive Order threatens “enforcement

24 action” against any jurisdiction that refuses to comply with detainer requests or otherwise fails to

25 enforce federal immigration law. While this threat of “enforcement” is left vague and

26 unexplained, “enforcement” by its own definition means to “compel[] compliance.” See BLACK’S

27 LAW DICTIONARY 645 (10th ed. 2014) (defining “enforcement” as “The act or process of

28 compelling compliance with a law, mandate, command, decree, or agreement.”). By seeking to 23

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1 compel states and local jurisdictions to honor civil detainer requests by threatening enforcement

2 action, the Executive Order violates the Tenth Amendment’s provisions against conscription.

3

The Supreme Court has repeatedly held that, “The Federal government cannot compel the

4 States to enact or administer a federal regulatory program.” New York v. United States, 505 U.S.

5 144, 188 (1992). The federal government cannot command them to adopt certain policies, id. at

6 188, command them to carry out federal programs, Printz, 521 U.S. at 935, or otherwise to

7 “coerce them into adopting a federal regulatory system as their own,” NFIB, 132 S. Ct. at 2602.

8 The Executive Order uses coercive means in an attempt to force states and local jurisdictions to

9 honor civil detainer requests, which are voluntary “requests” precisely because the federal

10 government cannot command states to comply with them under the Tenth Amendment. The

11 Executive Order attempts to use coercive methods to circumvent the Tenth Amendment’s direct

12 prohibition against conscription. While the federal government may incentivize states to adopt

13 federal programs voluntarily, it cannot use means that are so coercive as to compel their

14 compliance. The Executive Order’s threat to pull all federal grants from jurisdictions that refuse

15 to honor detainer requests or to bring “enforcement action” against them violates the Tenth

16 Amendment’s prohibitions against commandeering.

17

D. Santa Clara’s Fifth Amendment Vagueness Claim

18

The Counties assert that the Executive Order is unconstitutionally vague in violation of the

19 Fifth Amendment’s Due Process Clause. The federal government responds, first, that the

20 Executive Order is an internal directive that does not have a direct effect on Santa Clara and so

21 Santa Clara needs no notice. SC Oppo. at 18. This argument holds no weight; as discussed

22 before, the Executive Order is not merely an internal directive. See PI Order at 12-16;

23 Reconsideration Order at 15; infra Section I.C. Next, it argues that the AG Memorandum

24 “authoritatively clarifies” the terms and makes it clear which federal grants will be affected by the

25 Executive Order. SC Oppo. at 18. As previously explained, the AG Memorandum is not

26 authoritative and does not amend the Executive Order or bind the rest of the Executive Branch,

27 and it does not affect the constitutional analysis.

28

A law is unconstitutionally vague and void under the Fifth Amendment if it fails to make

24

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1 clear what conduct it prohibits and if it fails to lay out clear standards for enforcement. See

2 Gaynard v. City of Rockford, 408 U.S. 104, 108 (1972). To satisfy due process, courts insist that

3 laws (1) “give the person of ordinary intelligence a reasonable opportunity to know what is

4 prohibited, so that he may act accordingly” and (2) “provide explicit standards for those who apply

5 them.” Id. The Executive Order does not meet either of these requirements.

6

The Executive Order does not make clear what conduct might subject a state or local

7 jurisdiction to defunding or enforcement action, making it impossible for jurisdictions to

8 determine how to modify their conduct, if at all, to avoid the Executive Order’s penalties. The

9 Executive Order directs the Attorney General and Secretary to ensure that jurisdictions that

10 “willfully refuse to comply” with Section 1373, “sanctuary jurisdictions,” are not eligible to

11 receive federal grants. Past DOJ guidance and various court cases interpreting Section 1373 have

12 not reached consistent conclusions as to what Section 1373 requires. In the face of conflicting

13 guidance, with no clear standard from the federal government, jurisdictions do not know how to

14 avoid the Executive Order’s defunding penalty.

15

Further, because the Executive Order does not clearly define “sanctuary jurisdictions,” the

16 conduct that will subject a jurisdiction to defunding under the Executive Order is not fully

17 outlined. In addition, the Executive Order directs the Attorney General to take “appropriate

18 enforcement action” against any jurisdiction that willfully refuses to comply with Section 1373 or

19 otherwise has a policy or practice that “hinders the enforcement of Federal law.” This provision

20 vastly expands the scope of the Executive Order. What does it mean to “hinder” the enforcement

21 of federal law? What federal law is at issue: immigration laws? All federal laws? The Executive

22 Order offers no clarification. Although the AG Memorandum purports to clarify these op en

23 questions, it cannot “authoritatively” do so because it does not carry the force of law. It cannot

24 address these constitutional failings of the Executive Order.

25

The Executive Order also fails to provide clear standards to the Secretary and the Attorney

26 General to prevent “arbitrary and discriminatory enforcement.” Id. The Executive Order gives the

27 Secretary discretion to designate jurisdictions as “sanctuary jurisdictions” to the extent consistent

28 with law. But there are no laws, besides the Executive Order, outlining what a sanctuary 25

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1 jurisdiction is, leaving the Secretary with unfettered discretion and the Executive Order’s vague

2 language to make “sanctuary jurisdiction” designations. Similarly, the Executive Order directs the

3 Attorney General to take “appropriate enforcement action” against any jurisdiction that “hinders

4 the enforcement of Federal law.” This expansive, standardless language creates huge potential for

5 arbitrary and discriminatory enforcement, leaving the Attorney General to figure out what

6 “appropriate enforcement action” might entail and what policies and practices might “hinder[] the

7 enforcement of Federal law.” This language is “so standardless that it authorizes or encourages

8 seriously discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304 (2008).

9

The Executive Order gives the Counties no clear guidance on how to comply with its

10 provisions or what penalties will result from non-compliance, and its standardless guidance and

11 enforcement provisions are also likely to result in arbitrary and discriminatory enforcement. It

12 does not “give the person of ordinary intelligence a reasonable opportunity to know what is

13 prohibited, so that he may act accordingly.” Gaynard, 408 U.S. at 108. Section 9(a) is void for

14 vagueness under the Fifth Amendment.

15

E. Santa Clara’s Fifth Amendment Procedural Due Process Claim

16

The Counties assert that the Executive Order fails to provide them with procedural due

17 process in violation of the Fifth Amendment. Again relying on the AG Memorandum, the federal

18 government argues that Section 9(a) does not apply to funding “in which the County might have a

19 constitutionally protectable property interest.” SC Oppo. at 19.

20

To have a legitimate property interest, a person “must have more than a unilateral

21 expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents v.

22 Roth, 408 U.S. 564, 577 (1972). A state or local government has a legitimate claim of entitlement

23 to congressionally appropriated funds, which are akin to funds owed on a contract. See NFIB, 132

24 S. Ct. at 2602 (“The legitimacy of Congress’ power to legislate under the spending power [] rests

25 on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’ ”). The

26 Counties have a legitimate property interest in federal funds that Congress has already

27 appropriated and that the Counties have accepted.

28

The Executive Order purports to make the Counties ineligible to receive these funds

26

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United States District Court Northern District of California

1 through a discretionary and undefined process. The Executive Order directs the Attorney General

2 and Secretary to designate various states and local jurisdictions as “sanctuary jurisdictions,”

3 ensure that such jurisdictions are “not eligible” to receive federal grants, and “take enforcement

4 action” against them. EO § 9 (a). It does not direct the Attorney General or Secretary to provide

5 “sanctuary jurisdictions” with any notice of an unfavorable designation or impending cut to

6 funding. And it does not set up any administrative or judicial procedure for states and local

7 jurisdictions to be heard, to challenge enforcement action, or to appeal any action taken against

8 them under the Executive Order. This complete lack of process violates the Fifth Amendment’s

9 due process requirements. Matthew v. Eldridge, 424 U.S. 319, 349 (1976) (“The essence of due

10 process is the requirement that a person in jeopardy of serious loss be given notice of the case

11 against him and opportunity to meet it.”) (internal alterations and quotations omitted).

12

The Counties have demonstrated that the Executive Order has caused and will cause them

13 constitutional injuries by violating the separation of powers doctrine and depriving them of their

14 Tenth and Fifth Amendment rights. Accordingly, the Counties’ motions for summary judgment

15 are GRANTED with respect to Section 9(a) of the Executive Order.

16 III. SAN FRANCISCO’S 1373 CHALLENGE

17

San Francisco also seeks summary judgment for its claim for declaratory relief that its laws

18 comply with Section 1373. The federal government asserts that San Francisco’s claim is

19 nonjusticiable. Further, if the claim is justiciable, the federal government argues that San

20 Francisco’s ordinances conflict with Section 1373.

21

San Francisco has brought a separate lawsuit against the federal government’s imposition

22 of grant conditions on the Edward Byrne Memorial Justice Assistance Grant Program. See City &

23 Cty. of San Francisco v. Sessions, No. 17-cv-4642-WHO. And the State of California brings its

24 own challenge to the federal government’s interpretation of Section 1373. See State of California v

25 Sessions, No. 17-cv-4701 WHO. I will consider San Francisco’s motion for summary judgment 26 on Counts One and Two when I address the related issues in the related litigation. 9

27

28

9 Given these conclusions, San Francisco’s Administrative Motion to Consider Post-Hearing Developments will be considered at a later date.

27

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United States District Court Northern District of California

1

CONCLUSION

2

The Counties have demonstrated that the Executive Order has caused and will cause them

3 constitutional injuries by violating the separation of powers doctrine and depriving them of their

4 Tenth and Fifth Amendment rights. Accordingly, the Counties’ motions for summary judgment

5 are GRANTED regarding Section 9(a). The defendants are permanently enjoined from enforcing

6 Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions.

7 Because Section 9(a) is unconstitutional on its face, and not simply in its application to the

8 plaintiffs here, a nationwide injunction against the defendants other than President Trump is

9 appropriate. See California v. Yamasaki, 442 U.S. 682, 702 (1979)(“[T]he scope of injunctive

10 relief is dictated by the extent of the violation established, not by the geographical extent of the

11 plaintiff.”); Washington v. Trump, 847 F.3d 1151, 1161-67 (9th Cir. 2017) (affirming nationwide

12 injunction against executive travel ban order).

13

IT IS SO ORDERED.

14 Dated: November 20, 2017

15

16

17

William H. Orrick United States District Judge

18

19

20

21

22

23

24

25

26

27

28 28

 
 UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CITY AND COUNTY OF SAN FRANCISCO,
Plaintiff-Appellee, v. DONALD J. TRUMP, President of the United States; et al.,
Defendants-Appellants.

No. 17-16886
D.C. No. 3:17-cv-00485-WHO Northern District of California, San Francisco

COUNTY OF SANTA CLARA, Plaintiff-Appellee,
v.
DONALD J. TRUMP, President of the United States; et al.,
Defendants-Appellants.

No. 17-16887
D.C. No. 3:17-cv-00574-WHO Northern District of California, San Francisco

MOTION TO DISMISS APPEALS
Plaintiffs-Appellees the County of Santa Clara and the City and County of San Francisco (the “Counties”) respectfully move the Court for an order dismissing these consolidated appeals as moot as a matter of law, because they challenge a preliminary injunction that has since been superseded by final judgment and a permanent injunction.

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These appeals seek review of a district court order preliminarily enjoining Section 9(a) of Executive Order 13768, “Enhancing Public Safety in the Interior of the United States” (the “Executive Order”). The district court granted the preliminary injunction on April 25, 2017. Defendants-Appellants moved for reconsideration and the district court denied that motion on July 20, 2017, leaving the preliminary injunction in place. Defendants-Appellants then filed these appeals on September 18, 2017. The Court set a briefing schedule, which has since been modified by the Court’s Order granting Defendants-Appellants’ unopposed motion for an extension of time to file their opening brief. See Case No. 17-16887, Dkt. 22.
On November 20, 2017, the district court granted the Counties’ motions for summary judgment and permanently enjoined Section 9(a) of the Executive Order. On November 22, 2017, the district court entered final judgment in favor of the County of Santa Clara. On December 7, 2017, the district court entered final judgment in favor of the City and County of San Francisco. DefendantsAppellants have now appealed from both final judgments (Case Nos. 17-17478 and 17-17480), and the Court has set briefing schedules in those appeals.
As a consequence of the district court’s entry of final judgment and a permanent injunction, the instant interlocutory appeals are moot and subject to dismissal. “Where a permanent injunction has been granted that supersedes the
1213371

original preliminary injunction, the interlocutory injunction becomes merged in the final decree and the appeal from the interlocutory preliminary order is properly dismissed.” See In re Estate of Ferdinand Marcos Human Rights Litig., 94 F.3d 539, 544 (9th Cir. 1996) (internal quotation marks omitted). Accordingly, the Court should dismiss these appeals as moot.
Pursuant to Circuit Advisory Committee Note to Circuit Rule 27-1(5), the Counties contacted counsel for Defendants-Appellants to advise them of this motion and obtain their position. Defendants-Appellants stated that they oppose the motion.
Respectfully submitted,

Dated: December 15, 2017

OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA
By: /s/ James R. Williams JAMES R. WILLIAMS 70 West Hedding Street East Wing, Ninth Floor San Jose, CA 95110-1770 Telephone: 408 299 5900 Facsimile: 408 292 7240
Attorneys for Plaintiff-Appellee County of Santa Clara

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Dated: December 15, 2017

KEKER, VAN NEST & PETERS LLP
By: /s/ John W. Keker JOHN W. KEKER 633 Battery Street San Francisco, CA 94111-1809 Telephone: 415 391 5400 Facsimile: 415 397 7188
Attorneys for Plaintiff-Appellee County of Santa Clara

Dated: December 15, 2017

DENNIS J. HERRERA City Attorney of the City & County of San Francisco
By: /s/Christine Van Aken CHRISTINE VAN AKEN City Hall Room 234 One Dr. Carlton B. Goodlett Pl. San Francisco, CA 94102-4602 Telephone: 415 554 4633
Attorneys for Plaintiff-Appellee City & County of San Francisco

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CERTIFICATE OF COMPLIANCE I hereby certify that this motion satisfies the type-volume limitation in Rule 27(d)(2)(A) because it contains 369 words. This motion was prepared using Microsoft Word in Times New Roman, 14-point font, a proportionally-spaced typeface.
1213371

CERTIFICATE OF SERVICE I hereby certify that I electronically filed the following:
MOTION TO DISMISS APPEALS with the clerk of the Court for the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on December 15, 2017.
I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

DATED: December 15, 2017

s/ John W. Keker John W. Keker Keker, Van Nest & Peters LLP Attorneys for Plaintiff-Appellee County of Santa Clara

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9th Circuit Case Number(s) 17-16886, 17-16887

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).

*********************************************************************************
CERTIFICATE OF SERVICE When All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the

United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system

on (date)

.

Dec 15, 2017

I certify that all participants in the case are registered CM/ECF users and that service will be accomplished by the appellate CM/ECF system.

Signature (use "s/" format) /s/ Gloria A. Peterson

*********************************************************************************
CERTIFICATE OF SERVICE When Not All Case Participants are Registered for the Appellate CM/ECF System

I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the

United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system

on (date)

.

Participants in the case who are registered CM/ECF users will be served by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it to a third party commercial carrier for delivery within 3 calendar days to the following non-CM/ECF participants:

Signature (use "s/" format)

 
 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Appellee, v.
DONALD J. TRUMP, et al., Defendants-Appellants.

Nos. 17-16886, 17-17478

COUNTY OF SANTA CLARA, Plaintiff-Appellee, v.
DONALD J. TRUMP, et al., Defendants-Appellants.

Nos. 17-16887, 17-17480

MOTION TO CONSOLIDATE APPEALS AND RETAIN EXISTING BRIEFING SCHEDULE These appeals all arise from a preliminary injunction, subsequently
converted to a permanent injunction, against a provision of an Executive
Order. The government hereby seeks to consolidate new appeals of the
permanent injunction with pending appeals from a preliminary injunction

that had been entered against the same provision for the same reasons, and to retain the briefing schedule that has been set for the original appeals. Plaintiffs have informed us that they oppose this motion.
1. In a single order entered in two cases, the district court issued a nationwide preliminary injunction against a portion of an Executive Order, and then, in another order entered in both cases, the district court denied the government’s motion for reconsideration. The government filed notices of appeal in both cases, and this Court consolidated the appeals (Nos. 17-16886 and 17-16887). The government’s opening brief is due December 18, 2017.
The district court has now granted summary judgment and entered a permanent injunction, again in a single order entered in both cases. The court declared that its summary judgment order “plows no ground” and that summary judgment was warranted for reasons “summarized” in the summary-judgment order and “further described” in the court’s earlier orders that are currently on appeal to this Court. SJ Order 2 (Nov. 20, 2017). The court then entered final judgment in each case, and the government has filed new notices of appeal (Nos. 17-17478 and 17-17480).
2

2. Because these appeals all concern the same district-court reasoning, they should all be treated together to avoid duplicative briefing or unnecessary filings. Accordingly, the government respectfully requests that the appeals be consolidated. The government also respectfully requests that the briefing schedule for the original appeals be retained, and that the case continue to be treated as a Preliminary Injunction Appeal pursuant to Circuit Rule 3.3, so that this Court’s review of the injunction is not unnecessarily delayed. Consistent with that schedule, the government plans to file a single opening brief on December 18, 2017.
3. We have consulted with counsel for plaintiffs, who informed us that they oppose this motion. Plaintiffs’ counsel also informed us that they intended to file a motion to dismiss the preliminary-injunction appeals as moot. The government responded that the government defers to the Court on whether all the appeals should be consolidated, or the original appeals dismissed and the new appeals substituted, so long as the new appeals proceed in accordance with the existing schedule for the original appeals under Circuit Rule 3.3.
3

DECEMBER 2017

Respectfully submitted,
MARK B. STERN
s/ Daniel Tenny DANIEL TENNY BRAD HINSHELWOOD (202) 514-1838
Attorneys, Appellate Staff Civil Division U.S. Department of Justice 950 Pennsylvania Ave., N.W. Room 7215 Washington, DC 20530

4

CERTIFICATE OF COMPLIANCE I hereby certify that this motion satisfies the type-volume limitation in Rule 27(d)(2)(A) because it contains 455 words. This motion was prepared using Microsoft Word 2013 in Book Antiqua, 14-point font, a proportionally-spaced typeface.
s/ Daniel Tenny Daniel Tenny

CERTIFICATE OF SERVICE I hereby certify that on December 15, 2017, I electronically filed the foregoing with the Clerk of the Court by using the appellate CM/ECF system. Participants in the case are registered CM/ECF users and service will be accomplished by the appellate CM/ECF system.
s/ Daniel Tenny Daniel Tenny

 
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FOR PUBLICATION
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CITY AND COUNTY OF SAN FRANCISCO,
Plaintiff-Appellee,
v.

No. 17-17478
D.C. No. 3:17-cv-00485-WHO

DONALD J. TRUMP, President of the United States; JEFFERSON B. SESSIONS III, Attorney General, Attorney General of the United States; ELAINE C. DUKE; UNITED STATES OF AMERICA,
Defendants-Appellants.

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2

SAN FRANCISCO V. TRUMP

COUNTY OF SANTA CLARA, Plaintiff-Appellee,
v.

No. 17-17480
D.C. No. 3:17-cv-00574-WHO

DONALD J. TRUMP, President of the United States; JEFFERSON B. SESSIONS III, Attorney General, Attorney General of the United States; KIRSTJEN NIELSEN, Secretary of Homeland Security; ELAINE C. DUKE; MICK MULVANEY, Director, OMB; UNITED STATES OF AMERICA,
Defendants-Appellants.

OPINION

Appeal from the United States District Court for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted April 11, 2018 San Francisco, California
Filed August 1, 2018
Before: Sidney R. Thomas, Chief Judge, and Ferdinand F. Fernandez and Ronald M. Gould, Circuit Judges.
Opinion by Chief Judge Thomas; Dissent by Judge Fernandez

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SAN FRANCISCO V. TRUMP

3

SUMMARY*

Separation of Powers/Executive Authority/Immigration
The panel (1) affirmed the district court’s grant of summary judgment in favor of the City and County of San Francisco and the County of Santa Clara in an action challenging Executive Order 13,768, “Enhancing Public Safety in the Interior of the United States,” which directed the withholding of federal grants to so-called sanctuary jurisdictions; (2) vacated a nationwide injunction; and (3) remanded.
The Executive Order cross-references 8 U.S.C. § 1373, which prohibits government entities from themselves prohibiting the sharing of “information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a). Section 9 of the Executive Order provides that the Attorney General and the Secretary of the Department of Homeland Security, “in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.”
As a preliminary matter, the panel concluded that the Counties demonstrated standing to bring their action, and that the case was ripe for review.
* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader.

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SAN FRANCISCO V. TRUMP

The panel held that, under the principle of Separation of Powers and in consideration of the Spending Clause, which vests exclusive power to Congress to impose conditions on federal grants, the Executive Branch may not refuse to disperse the federal grants in question without congressional authorization. Because Congress has not acted, the panel affirmed the district court’s grant of summary judgment to the City and County of San Francisco and the County of Santa Clara. However, given the absence of specific findings underlying the nationwide application of the injunction, the panel vacated the nationwide injunction and remanded for reconsideration and further findings.

Dissenting, Judge Fernandez concluded that the case is not ripe for review. Addressing the merits because the majority did so, Judge Fernandez also wrote that the district court’s failure to accord the Executive Order a fair enough reading resulted in its abusing its discretion when it issued the injunction.

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SAN FRANCISCO V. TRUMP

5

COUNSEL

Chad Readler (argued), Acting Assistant Attorney General; Alex G. Tse, Acting United States Attorney; Mark B. Stern, Daniel Tenny, and Brad Hinshelwood, Appellate Staff; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

Christine Van Aken (argued), Yvonne R. Meré, Ronald P. Flynn, Jesse C. Smith, Neha Gupta, Matthew S. Lee, Aileen M. McGrath, Sara J. Eisenberg, Mollie M. Lee, Tara M. Steeley, and Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for PlaintiffAppellee City and County of San Francisco.

Danielle L. Goldstein (argued), Adriana L. Benedict, Laura S. Trice, Julie Wilensky, Kavita Narayan, L. Javier Serrano, Greta S. Hansen, and James R. Williams, County Counsel; Office of the County Counsel, San Jose, California; Tejinder Singh, Sarah E. Harrington, and Kevin K. Russell, Goldstein & Russel P.C., Bethesda, Maryland; for Plaintiff-Appellee County of Santa Clara.

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OPINION

THOMAS, Chief Judge:

This appeal presents the question of whether, in the absence of congressional authorization, the Executive Branch may withhold all federal grants from so-called “sanctuary” cities and counties. We conclude that, under the principle of Separation of Powers and in consideration of the Spending Clause, which vests exclusive power to Congress to impose conditions on federal grants, the Executive Branch may not refuse to disperse the federal grants in question without congressional authorization. Because Congress has not acted, we affirm the district court’s grant of summary judgment to the City and County of San Francisco and the County of Santa Clara (collectively, the “Counties”). However, given the absence of specific findings underlying the nationwide application of the injunction, we vacate the nationwide injunction and remand for reconsideration and further findings.

I

A

The United States Constitution exclusively grants the
power of the purse to Congress, not the President. U.S. Const. art. I, § 9, cl. 7 (Appropriations Clause)1; U.S. Const.

1 “No Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

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SAN FRANCISCO V. TRUMP

7

art. I, § 8, cl. 1 (Spending Clause).2 As Alexander Hamilton succinctly put it, Congress “commands the purse.” THE FEDERALIST, NO. 78. James Madison underscored the significance of that exclusive congressional power, stating, “[t]he power over the purse may [be] the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” THE FEDERALIST, NO. 58.

Congress’s power to spend is directly linked to its power to legislate. “Incident to [the spending] power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power ‘to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.’” South Dakota v. Dole, 483 U.S. 203, 206–07 (1987) (quoting Fullilove v. Klutznick, 448 U.S. 448, 474 (1980)).

On the other hand, as the Supreme Court has observed, “[t]here is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes.” Clinton v. City of New York, 524 U.S. 417, 438 (1998). Aside from the power of veto, the President is without authority to thwart congressional will by canceling appropriations passed by Congress. Simply put, “the President does not have unilateral authority to refuse to spend the funds.” In re Aiken County, 725 F.3d 255, 261 n.1 (D.C. Cir. 2013). And, “the President may not decline to follow a statutory mandate or prohibition simply because of policy objections.” Id. at 259.

2 “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States.”

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SAN FRANCISCO V. TRUMP

The Separation of Powers was an integral part of the Founders’ design. The Constitution and its history evidence the “unmistakable expression of a determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process.” I.N.S. v. Chadha, 462 U.S. 919, 959 (1983). “The power to enact statutes may only ‘be exercised in accord with a single, finely wrought and exhaustively considered, procedure.’” Clinton, 524 U.S. at 439–40 (quoting Chadha, 462 U.S. at 951). Indeed, even when Congress specifically authorized the President’s action, the President’s attempt to exercise authority through a lineitem veto was deemed unconstitutional as antithetical to that “finely wrought” legislative process committed to Congress by the Constitution. Id. at 439. As Justice Kennedy has observed, if “the decision to spend [is] determined by the Executive alone, without adequate control by the citizen’s Representatives in Congress, liberty is threatened.” Id. at 451 (Kennedy, J., concurring).

B

With these Separation of Powers principles in mind, we turn to the question at hand. At issue in this appeal is Executive Order 13,768, “Enhancing Public Safety in the Interior of the United States,” which was signed by the President on January 25, 2017—five days after his inauguration. Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (hereinafter “Executive Order” or “EO”). The Executive Order’s primary concern is “sanctuary jurisdictions,” which, in the President’s view, “willfully violate Federal law in an attempt to shield aliens from removal from the United States.” EO § 1. “The purpose of this order is to direct executive departments and agencies . . .

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SAN FRANCISCO V. TRUMP

9

to employ all lawful means to enforce the immigration laws of the United States.” EO § 1.

Most relevant for our consideration is § 9(a) of the Executive Order, which specifically addresses the federal government’s potential recourses against sanctuary jurisdictions. In its entirety, § 9 reads:

It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary [of the Department of Homeland Security (“DHS”)], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

(b) To better inform the public regarding the public safety threats associated with

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SAN FRANCISCO V. TRUMP

sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.

(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.

Below, under the heading “General Provisions,” the Executive Order provides that it “shall be implemented consistent with applicable law and subject to the availability of appropriations.” EO § 18(b). The Executive Order crossreferences 8 U.S.C. § 1373, which prohibits government entities from themselves prohibiting the sharing of “information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a).

In sum, by its plain terms, the Executive Order directs the agencies of the Executive Branch to withhold funds appropriated by Congress in order to further the Administration’s policy objective of punishing cities and counties that adopt so-called “sanctuary” policies.

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SAN FRANCISCO V. TRUMP

11

C

For us, then, the question is whether the Executive Order violates the Separation of Powers, pursuant to which the Constitution committed the Spending power to Congress.

The President’s authority to act “must stem either from an act of Congress or from the Constitution itself.” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952). Justice Jackson’s Youngstown concurrence provides the operative test in this context:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Youngstown, 343 U.S. at 637–38 (Jackson, J., concurring).

In this instance, because Congress has the exclusive power to spend and has not delegated authority to the Executive to condition new grants on compliance with § 1373, the President’s “power is at its lowest ebb.” Id. at

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637. And when it comes to spending, the President has none of “his own constitutional powers” to “rely” upon. Id.

Rather, the President has a corresponding obligation—to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. Because Congress’s legislative power is inextricable from its spending power, the President’s duty to enforce the laws necessarily extends to appropriations. Moreover, the obligation is an affirmative one, meaning that failure to act may be an abdication of the President’s constitutional role. As then-Assistant Attorney General William Rehnquist noted in 1969, “[w]ith respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such a broad power is supported by neither reason nor precedent.” Office of Legal Counsel, Memorandum Opinion on Presidential Authority to Impound Funds Appropriated for Assistance to Federally Impacted Schools, at 8 (Dec. 1, 1969). And, even if the President’s duty to execute appropriations laws was once unclear, Congress has affirmatively and authoritatively spoken. 2 U.S.C. §§ 681–688 (establishing congressional oversight when the Executive defers budget authority).3

3 In enacting the cited provisions as part of 1974’s Congressional Budget & Impoundment Act, Congress acted “to restore responsibility for the spending policy of the United States to the legislative branch. . . . No matter how prudently Congress discharges its appropriations responsibility, legislative decisions have no meaning if they can be unilaterally abrogated by executive impoundments.” H.R. REP. NO. 93658, as reprinted in 1974 U.S.C.C.A.N. 3462, 3463; see also S. REP. NO. 93-688, as reprinted in 1974 U.S.C.C.A.N. 3504, 3572–3575 (collecting cases “consistently den[ying]” the Executive Branch’s attempts to refuse spending as a means “to achieve less than the full objectives and scope of programs enacted and funded by Congress”).

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Here, the Administration has not even attempted to show that Congress authorized it to withdraw federal grant moneys from jurisdictions that do not agree with the current Administration’s immigration strategies. Nor could it. In fact, Congress has frequently considered and thus far rejected legislation accomplishing the goals of the Executive Order.4 The sheer amount of failed legislation on this issue demonstrates the importance and divisiveness of the policies in play, reinforcing the Constitution’s “unmistakable expression of a determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process.” Chadha, 462 U.S. at 959. Not only has the Administration claimed for itself Congress’s exclusive spending power, it has also attempted to coopt Congress’s power to legislate.

Because the Executive Order directs Executive Branch administrative agencies to withhold funding that Congress has not tied to compliance with § 1373, there is no reasonable argument that the President has not exceeded his authority.

4 See Ending Sanctuary Cities Act of 2016, H.R. 6252, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. (2016); Stop Dangerous Sanctuary Cities Act, H.R. 5654, 114th Cong. (2016); Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. (2015); Sanctuary City All Funding Elimination Act of 2015, H.R. 3073, 114th Cong. 2015); Mobilizing Against Sanctuary Cities Act, H.R. 3002, 114th Cong. (2015); Stop Sanctuary Cities Act, S. 1814, 114th Cong. (2015); Improving Cooperation with States and Local Governments and Preventing the Catch and Release of Criminal Aliens Act of 2015, S. 1812, 114th Cong. (2015); Protecting American Citizens Together Act, S. 1764, 114th Cong. (2015); Enforce the Law for Sanctuary Cities Act, H.R. 3009, 114th Cong. (2015); A Bill to Prohibit Appropriated Funds from Being Used in Contravention of Section 642(a) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, S. 80, 114th Cong. (2015).

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Absent congressional authorization, the Administration may not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals. Because Congress did not authorize withholding of funds, the Executive Order violates the constitutional principle of the Separation of Powers. The district court properly entered summary judgment in favor of the Counties.5

II

The Administration argues that the Counties lack standing. Of course, our jurisdiction is limited to “Cases” and “Controversies.” U.S. Const. art. III, § 2. “Standing to sue is a doctrine rooted in the traditional understanding of a case or controversy . . . [that] limits the category of litigants empowered to maintain a lawsuit in federal court to seek redress for a legal wrong.” Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016).

Standing exists only where the plaintiff demonstrates “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision

5 In granting summary judgment, the district court concluded that: (1) the Executive Order violated the Separation of Powers; (2) even if the President had acted within authority delegated to him by Congress, the congressional action would violate the Spending Clause; (3) the Executive Order violated the Tenth Amendment’s anti-commandeering principle; (4) the Executive Order is void for vagueness under the Fifth Amendment; and (5) the Executive Order infringed upon the Counties’ procedural due process rights. Given our resolution of the merits on the basis of the Separation of Powers, it is unnecessary for us to decide the merits of the other bases of the district court’s decision.

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will redress that injury.” Massachusetts v. EPA, 549 U.S. 497, 517 (2007).

A

A “loss of funds promised under federal law[ ]satisfies Article III’s standing requirement.” Organized Vill. of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 965 (9th Cir. 2015). Both San Francisco and Santa Clara rely heavily on federal funding, much of which is distributed through the State of California. Approximately $1.2 billion of San Francisco’s yearly budget of $9.6 billion comprises federal funds. Santa Clara received approximately $1.7 billion in federal and federally dependent funds in the 2015–2016 fiscal year, totaling about 35% of the County’s total revenue.

Both counties have in place policies intended to protect immigrant communities and to encourage community policing measures. San Francisco is a self-described “City and County of Refuge.” S.F. Admin. Code § 12H.1. San Francisco prohibits city and county entities and employees from

us[ing] any City funds or resources to assist in the enforcement of Federal immigration law or to gather or disseminate information regarding release status of individuals or any other such [confidential, identifying information about an individual] unless such assistance is required by Federal or State statute, regulation, or court decision.

S.F. Admin. Code § 12H.2. Prior to July 2016, the San Francisco Administrative Code prohibited city employees

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from sharing information about immigration status, but the restriction was removed out of concern for its potential conflict with 8 U.S.C. § 1373.

Since 2010, Santa Clara has barred its employees from using County resources to communicate with Immigrations and Customs Enforcement (“ICE”) regarding any information collected in the course of providing critical services or benefits. Cty. of Santa Clara Bd. of Supervisors Resolution No. 2010-316, “Advancing Public Safety and Affirming the Separation Between County Services and the Enforcement of Federal Civil Immigration Law” (June 22, 2010). The County also prohibits employees from “initiat[ing] any inquiry or enforcement action based solely on the individual’s actual or suspected immigration status, national origin, race, ethnicity, and/or inability to speak English” and from using County resources to pursue an “individual solely because of an actual or suspected civil violation of federal immigration law.” Id.

In sum, the Counties have policies in place that arguably would qualify for grant withdrawal under the Executive Order, with potentially devastating fiscal consequences. They have demonstrated a likely “loss of funds promised under federal law.” Organized Vill. of Kake, 795 F.3d at 965.

B

The Administration argues that there is no “imminent” injury because the Executive Order may not be enforced. Massachusetts v. EPA, 549 U.S. at 517. We shall discuss the threat of enforcement later. However, the possibility of nonenforcement does not mean that the Counties lack standing.

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Virginia v. American Booksellers Association is illustrative. There, the Court was “not troubled” by the possibility that a law would not be enforced against the plaintiffs. 484 U.S. 383, 393 (1988). It was enough that, if the plaintiffs’ “interpretation of the statute [was] correct,” the plaintiffs would face serious repercussions in the absence of “significant and costly compliance measures.” Id. at 392. There, as here, the parties disputed the scope of the challenged measure, with the plaintiffs anticipating its application to them and the defendants arguing for a narrower reading. Id. at 390. There, too, as is the case here, the defendant ostensibly conceded the measure’s unconstitutionality if the plaintiffs’ interpretation was given effect. Id. at 393.

Here, the case for standing is even stronger than in American Booksellers. Like the plaintiffs in American Booksellers, the Counties have demonstrated that, if their interpretation of the Executive Order is correct, they will be forced to either change their policies or suffer serious consequences. As we will discuss later, the Administration has consistently evinced its intent to enforce the Executive Order, and it has made clear that the Counties, and the State of California, are likely targets. There is no dispute between the parties that, provided the Counties’ injuries are sufficiently “concrete” and “imminent,” the Counties can satisfy causation and redressability. Because a loss of funds promised under federal law satisfies Article III’s standing requirement, the Counties have met their burden to show standing.

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III

The Administration also contends that this case is not ripe for review. The Administration’s argument is premised entirely on our decision in Thomas v. Anchorage Equal Rights Commission, 220 F.3d 1134, 1138 (9th Cir. 2000). In Thomas, we summarized three factors to be used “[i]n evaluating the genuineness of a claimed threat of prosecution”: (1) “whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in question”; (2) “whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings”; and (3) “the history of past prosecution or enforcement under the challenged statute.” Id. at 1139 (quoting San Diego Cty. Gun Rights Comm’n v. Reno, 98 F.3d 1121, 1126–27 (9th Cir. 1996)).

As to the first factor, as we have discussed, the Counties have demonstrated that their policies are presently in conflict with the Administration’s federal immigration policy as described in the Executive Order. We therefore conclude that the Counties have “articulated . . . concrete plan[s]” to violate the law as asserted in the Executive Order. Thomas, 220 F.3d at 1139 (internal quotation marks omitted).

As to the second factor, there is no doubt that the prosecuting authorities “have communicated specific warning[s and] threat[s] to initiate proceedings.” Id. The Administration quickly and repeatedly announced that the Executive Order would eradicate sanctuary policies by authorizing the wholesale defunding of cities that do not assist the Administration in enforcing its hardline immigration policy. The day that the Executive Order went into effect, then-Press Secretary Sean Spicer said at the daily White House press briefing, “We’re going to strip federal

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grant money from sanctuary states and cities that harbor illegal immigrants.” Priscilla Alvarez, Trump Cracks Down on Sanctuary Cities, THE ATLANTIC (Jan. 25, 2017), http://www.theatlantic.com/politics/archive/2017/01/trumpcrack-down-sanctuary-city/514427. The President echoed Press Secretary Spicer’s statements the next day at the Congressional Republicans Retreat, where he discussed the Executive Order as a “first step[] in our immigration policy, . . . at long last, cracking down on sanctuary cities.” CSPAN, President Trump’s Remarks at Congressional Republican Retreat (Jan. 26, 2017), http://www.cspan.org/video/?422829-1/president-trump-tellscongressional-republicans-now-deliver. A White House Press Release issued days later summarized the Executive Order: “President Trump signed an executive order to ensure that immigration laws are enforced throughout the United States, including halting federal funding for sanctuary cities.” Press Release, White House, “President Trump’s First Week of Action” (Jan. 28, 2017).

On February 1st, Press Secretary Spicer was unequivocal: “the President has been very clear through his executive order that federal funds, paid for by hardworking taxpayers, should not be used to help fund sanctuary cities.” Press Briefing, White House Press Secretary Sean Spicer (Feb. 1, 2017). Days later, the President described defunding as a “weapon” to be deployed against sanctuary cities to force them to change their policies. Bill O’Reilly Interview with President Donald J. Trump (Feb. 5, 2017), transcript available at http://transcripts.cnn.com/transcripts/1702/05/cnr.05.html. The Attorney General was more specific in his public statements, stating that noncompliance with § 1373 would result in “withholding grants, termination of grants, and disbarment or ineligibility for future grants.” Press Briefing,

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White House Press Secretary Spicer with Attorney General Sessions (March 27, 2017).

The State of California has been a specific target of the Administration’s anti-sanctuary cities policies from the Administration’s beginning. In a February 5, 2017 interview with Bill O’Reilly, President Trump said, “I’m very much opposed to sanctuary cities. . . If we have to defund, we give tremendous amounts of money to California . . . . California in many ways is out of control.” Bill O’Reilly Interview with President Donald J. Trump. ICE has designated California, Santa Clara, and San Francisco as jurisdictions that “Restrict Cooperation with ICE.” ICE, Enforcement & Removal Operations: Weekly Declined Detainer Outcome Report for Recorded Declined Detainers Feb. 11–Feb. 17, 2017 § 3. And the Attorney General penned an op-ed holding San Francisco up as an example of a sanctuary city that ought to “re-evaluate [sanctuary] policies.” Jeff Sessions, John Culberson, Dennis Herrera, & Jose Antonio Vargas, 4 Voices: Are Sanctuary Cities Good for the Community?, SAN FRANCISCO CHRONICLE (Apr. 7, 2017). Indeed, the district court noted that California and its cities, especially San Francisco, were visible targets of the Administration’s intent to defund sanctuary jurisdictions.

As to the third factor, DOJ has identified three grants historically conditioned on compliance with § 1373, all of which are law enforcement-related: the State Criminal Alien Assistance Program grant; the Edward Byrne Memorial Justice Assistance grant; and the Community Oriented Policing Services grant. Thus, the Counties have shown a “history of past prosecution or enforcement” tied to compliance with 8 U.S.C. § 1373, the statute relied upon as

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authorization for the Executive Order. Thomas, 220 F.3d at 1139.

In sum, the Counties have satisfied the factors we identified in Thomas to evaluate the genuineness of a claimed threat of prosecution. Given the severe potential for harm and the likelihood of prosecution, the controversy is ripe for adjudication.

IV

On the merits, the Administration argues that the Executive Order is all bluster and no bite, representing a perfectly legitimate use of the presidential “bully pulpit,” without any real meaning—“gesture without motion,” as T.S. Eliot put it. Looking to its plain language, the Administration contends, the Executive Order is merely a directive to DHS and DOJ to condition a limited number of grant programs—as of now, three—on compliance with § 1373.6 However, even if we ignore the statements made by and on behalf of the Administration outside the context of this litigation, the Administration’s interpretation of the Executive Order strains credulity. And consideration of those statements suggests that the Administration’s current litigation position is grounded not in the text of the Executive Order but in a desire to avoid legal consequences.

6 The Administration has been unable to identify any grant programs it may condition on compliance with § 1373 except for those programs that were so conditioned prior to issuance of the Order.

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A

Executive orders are unlike both statutes and other agency actions. In contrast to the many established principles for interpreting legislation, there appear to be few such principles to apply in interpreting executive orders. Compare Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U.S. 172, 191 (1999) (“[F]or purposes of this case we shall assume, arguendo, that the severability standard for statutes also applies to Executive Orders.”), and F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 516 (2009) (“We know of no precedent for applying [the canon of constitutional avoidance] to limit the scope of an authorized executive action.”), with Ex parte Mitsuye Endo, 323 U.S. 283, 298 (1944) (“We approach the construction of Executive Order No. 9066 as we would approach the construction of legislation in this field.”).

However, one interpretive principle is clear, and its application is dispositive. “As is true of interpretation of statutes, the interpretation of an Executive Order begins with its text,” which “must be construed consistently with the Order’s ‘object and policy.’” Bassidji v. Goe, 413 F.3d 928, 934 (9th Cir. 2005) (quoting Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 830 (9th Cir. 1996)).

B

Section 9(a) orders “the Attorney General and the Secretary” to “ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” At minimum, regardless of the potential

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ambiguity of the term “sanctuary jurisdictions” throughout the Executive Order, this particular provision threatens defunding those jurisdictions that do not comply with § 1373.

“Under the doctrine of ‘inclusio unius est exclusio alterius’ (the inclusion of one is the exclusion of the other), ‘when a statute limits a thing to be done in a particular mode, it includes a negative of any other mode.’” United States v. Terrence, 132 F.3d 1291, 1294 (9th Cir. 1997) (alteration omitted) (quoting Longview Fibre Co. v. Rasmussen, 980 F.2d 1307, 1312–13 (9th Cir. 1992)). The canon applies here. By specifically excluding grants “deemed necessary for law enforcement purposes,” the Executive Order directs the Attorney General and the Secretary to cut all other grant programs.

This interpretation is supported by a reading of § 9(a) in the broader context of § 9, directed toward ensuring States’ and localities’ compliance with § 1373. Section 9(c) directs “[t]he Director of the Office of Management and Budget . . . to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.” There would be little reason for the Director to perform such a comprehensive review if the Executive Order meant only that DOJ should continue to do what it has been doing all along. Moreover, the Executive Order, at minimum, addresses both DOJ and DHS grants, and the existing grant programs conditioned on compliance with § 1373 are administered solely by DOJ. All grants are in play. On its face, the Executive Order threatens to withdraw all federal grants from jurisdictions the Administration deems noncompliant with § 1373, except for those “deemed necessary for law enforcement purposes.” EO § 9(a). It

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would be incongruous for us to say it does not mean what it says.

C

Additionally, the Administration raises a textual argument, solely dependent on three words: “consistent with law.” The Attorney General and Secretary are directed to condition grants on compliance with § 1373 “in their discretion and to the extent consistent with law.” EO § 9(a).

Savings clauses are read in their context, and they cannot be given effect when the Court, by rescuing the constitutionality of a measure, would override clear and specific language. See, e.g., Shomberg v. United States, 348 U.S. 540, 547–48 (1955) (refusing to “nullify” “clear legislative purpose” to give effect to a savings clause). This principle is neither controversial nor surprising: “It is a commonplace of statutory construction that the specific governs the general.” RadLAX Gateway Hotel, LLC v. Amalgamated Bank, 566 U.S. 639, 645 (2012) (quoting Morales v. Trans World Airlines, Inc., 504 U.S. 374, 384 (1992)).

The Administration cites Building & Construction Trades Department v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002), for support. In that case, the D.C. Circuit considered an executive order with a savings clause, rejecting the plaintiffs’ argument that “notwithstanding the President’s instruction that the Executive Order be applied only ‘[t]o the extent permitted by law,’ a particular agency may try to give effect to the Executive Order when to do so is inconsistent with the relevant funding statute.” Allbaugh, 295 F.3d at 33. Allbaugh is distinguishable. Because the Executive Order

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unambiguously commands action, here there is more than a “mere possibility that some agency might make a legally suspect decision.” Id. The Executive Order’s savings clause does not and cannot override its meaning.

Further, the Administration’s interpretation would simply lead us into an intellectual cul-de-sac. If “consistent with law” precludes a court from examining whether the Executive Order is consistent with law, judicial review is a meaningless exercise, precluding resolution of the critical legal issues.

The district court correctly rejected this argument.

V

The Administration also claims that an interpretation of the Executive Order by the Attorney General following the district court’s entry of a preliminary injunction saves the Executive Order from constitutional infirmity.

A

The district court enjoined “[t]he defendants (other than the President) . . . from enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions.” The injunction did not extend to “the Government’s ability to use lawful means to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor [did] it restrict the Secretary from developing regulations or preparing guidance on designating a jurisdiction a ‘sanctuary jurisdiction.’” The injunction did not enjoin any action by the President himself but only by the Administration officials charged with following his commands.

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About one month after the issuance of the preliminary injunction, the Attorney General issued a Memorandum (“DOJ Memorandum”) interpreting the Executive Order. Memorandum, Implementation of Executive Order 13768, “Enhancing Public Safety in the Interior of the United States” (May 22, 2017). The DOJ Memorandum is directed internally, to “all department grant-making components.” Id. Although it does not mention the preliminary injunction, the DOJ Memorandum essentially counters the district court’s interpretation of the Executive Order and its analysis of the constitutional problems arising from that interpretation.

The DOJ Memorandum states that § 9(a) “is directed to the Attorney General and the Secretary of Homeland Security” and “will be applied solely to federal grants administered by the Department of Justice or the Department of Homeland Security, and not to other sources of federal funding.” Id. The DOJ Memorandum provides that, because § 9(a) includes a savings clause, the Executive Order “does not call for the imposition of grant conditions that would violate any applicable constitutional or statutory limitation.” Id. Rather, the DOJ Memorandum claims, the Administration will merely continue to require certification of compliance with 8 U.S.C. § 1373 as a condition for receiving “any existing grant . . . that expressly contains this certification condition and to future grants for which the Department is statutorily authorized to impose such a condition.” Id. Moreover, the term “sanctuary jurisdiction,” according to the DOJ Memorandum, “for purposes of enforcing the Executive Order, . . . will refer only to jurisdictions that ‘willfully refuse to comply with 8 U.S.C. 1373.’” Id. Essentially, the Administration argues that the DOJ Memorandum renders the Executive Order a toothless threat.

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The same day that the DOJ Memorandum was issued, the federal government filed a motion for reconsideration, relying almost entirely on the DOJ Memorandum. The district court concluded that the DOJ Memorandum did not change the controlling law, or the material facts, because the DOJ Memorandum was “functionally an ‘illusory promise’ to enforce the Executive Order narrowly and, as such, does not resolve the constitutional claims that the Counties have brought based on the [Executive] Order’s language.”

Consistent with the district court’s rejection of this argument, after the preliminary injunction was issued, other statements made by and on behalf of the Administration, including statements made by the Attorney General, contradict the DOJ Memorandum. Indeed, the Attorney General himself—both before and after the district court’s order—has continuously represented that localities “violate federal law” by refusing to honor detainer requests.7 Press

7 Identified in § 9(b) of the Order, detainer requests are communications from ICE to local law enforcement seeking the continued detention of state detainees after their scheduled release. 8 C.F.R. § 287.7. ICE does not reimburse local jurisdictions for the costs of continued detention, and compliance with a request is voluntary. See Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (“[S]ettled constitutional law clearly establishes that [immigration detainers] must be deemed requests” to avoid conflict with the Tenth Amendment.).
In addition to implicating federalism concerns, detainers create potential Fourth Amendment problems. See, e.g., Arizona v. United States, 567 U.S. 387, 413 (2012) (“Detaining individuals solely to verify their immigration status would raise constitutional concerns.”); Morales v. Chadbourne, 793 F.3d 208, 215–17 (1st Cir. 2015) (affirming denial of qualified immunity to ICE agent and his supervisors when agent issued detainer without probable cause); Miranda-Olivares v. Clackamas Cty., 2014 WL 1414305, at *9–11 (D. Or. Apr. 11, 2014) (granting summary

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Briefing, White House Press Secretary Spicer with Attorney General Sessions (March 27, 2017).

Similarly, in sworn testimony before Congress specifically addressing the reach of the Executive Order, the acting director of ICE equated violation of § 1373 with policies “where [localities] don’t honor detainers or allow us access to the jails.” Hearing on the ICE & CBP F.Y. 2018 Budget Before the Subcommittee on Homeland Security of the H. Comm on Appropriations, 115th Cong., 2017 WLNR 18737622 (June 13, 2017). And the same day that the district court issued its preliminary injunction, the White House issued an official statement that “[s]anctuary cities, like San Francisco, block their jails from turning over criminal aliens” and “are engaged in the dangerous and unlawful nullification of Federal law.” Statement, White House, Statement on Sanctuary Cities Ruling (Apr. 25, 2017).

B

The Administration asks us to look beyond the Executive Order’s text and the Administration’s rhetoric to give controlling construction to the DOJ Memorandum. In light of the Executive Order’s plain meaning and the Administration’s contrary interpretations of the Executive Order, we cannot defer to the DOJ Memorandum.

judgment to detainee against county regarding its “custom or practice in violation of the Fourth Amendment to detain individuals over whom the County no longer has legal authority based only on an ICE detainer which provides no probable cause for detention”).

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1

As a general rule, we give significant weight to an agency interpretation of an executive order. Because an agency has “presumed expertise in interpreting executive orders charged to its administration,” the Court generally will “review such agency interpretations with great deference.” Kester v. Campbell, 652 F.2d 13, 15 (9th Cir. 1981). “To be sustained, the agency’s interpretation need not be the only reasonable interpretation. All that is required is that the interpretation adopted by the agency be reasonable. The agency interpretation is considered reasonable unless it is plainly erroneous or inconsistent with the order.” Id. at 15–16 (citations and quotation marks omitted).

2

Here, the general rule does not apply, and we must respectfully decline to give deference to the DOJ Memorandum.

First, the DOJ Memorandum is not consistent with the terms of the Executive Order because the Executive Order plainly commands the Attorney General and the Secretary to withdraw essentially all federal grants. The DOJ Memorandum is not a reasonable interpretation of the Executive Order because it is “inconsistent with the order” itself. Id. at 15–16. As discussed above, the Executive Order plainly threatens all federal grant money except that “deemed necessary for law enforcement purposes.” EO § 9(a). The DOJ Memorandum, if binding, is therefore an abdication of the Attorney General’s duties under the Executive Order. And the Administration’s claim that the Executive Order has

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meant nothing all along is belied by the Executive Order itself and the Administration’s public statements.

Second, where, as here, an agency’s interpretation involves an issue of “deep ‘economic and political significance,’” it may not be entitled to deference. King v. Burwell, 135 S. Ct. 2480, 2489 (2015) (quoting Utility Air Regulatory Grp. v. EPA, 134 S. Ct. 2427, 2444 (2014)). This is particularly true where the agency lacks expertise and has not been expressly delegated the authority to interpret the law. Id. Aside from its boilerplate savings clause, the Executive Order made no mention of the significant legal issues raised within the Executive Order, and so it cannot be that analysis of those issues was expressly delegated to the Attorney General.

Third, the DOJ Memorandum has no force outside of the Department of Justice. The DOJ Memorandum is addressed to “All Department Grant-Making Components,” with “Department” referring singularly to the Department of Justice. It does not bind other agencies.

Finally, the memo is a “post hoc justification adopted in response to litigation.” Decker v. Nw. Envtl. Def. Ctr., 568 U.S. 597, 614 (2013). The timing of the DOJ Memorandum cannot be ignored. It took months for the Administration to interpret the Executive Order narrowly, and it took a preliminary injunction for the Attorney General to issue the DOJ Memorandum.

3

If we look beyond the text of the Executive Order, the Administration’s position becomes considerably weaker. The

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parties have not directed us to any public statement made by or on behalf of the Administration that is consistent with the DOJ Memorandum—even after the district court entered summary judgment and a permanent injunction in favor of the Counties.

Given our command to interpret the Executive Order “consistently with its ‘object and policy,’” Bassidji, 413 F.3d at 934, we consider the public statements made by the Administration, up to and including the President. For one thing, a president’s statements guide those tasked with enforcing the Executive Order. See Cole v. Young, 351 U.S. 536, 556 (1956) (“[An executive order’s] failure to state explicitly what determinations are required leaves no choice to the agency heads but to follow the most reasonable inferences to be drawn.”). And for another, the Administration’s public statements are indicative of both the object of and policy supporting the Executive Order. Bassidji, 413 F.3d at 934; see also, e.g., Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers v. Austin, 418 U.S. 264, 274–75 (1975) (considering a presidential announcement accompanying the signing of an executive order); Bassidji, 413 F.3d at 935 (considering letter to congressional leaders discussing an executive order); Islamic Rep. of Iran v. Boeing Co., 771 F.2d 1279, 1284 (9th Cir. 1985) (considering President Reagan’s explanation of an executive order to Congress).

While the Administration’s statements cannot alter the plain meaning of the Executive Order, Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, 329–30 (1994), here the statements confirm what we have learned from the text of the Executive Order—that the Administration intends to cripple jurisdictions that do not assist in enforcing federal

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immigration policy. The President himself stated that he would use defunding as a “weapon”—and particularly against California. Bill O’Reilly Interview with President Donald J. Trump. Press Secretary Spicer, announcing the Executive Order, said that President Trump would “make sure that . . . counties and other institutions that remain sanctuary cities don’t get federal government funding in compliance with the executive order.” Press Briefing, White House Press Secretary Sean Spicer (Feb. 8, 2017).

4

For these reasons, the district court properly denied the motion for reconsideration based on the DOJ Memorandum.

VI

We turn now to the relief granted by the district court—a permanent nationwide injunction barring Administration officials “from enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions.” The district court granted the Counties’ motions for summary judgment as to the constitutionality of § 9(a) of the Executive Order, permanently enjoining its enforcement. The court’s analysis largely followed its reasoning in the preliminary injunction order. The scope of the injunction is the same, applying not to the President but to Administration officials tasked with carrying it out. We agree that the Counties are entitled to injunctive relief, but we remand for reexamination of the nationwide scope of the injunction.

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A

The Counties are entitled to injunctive relief. An injunction is appropriate when the party seeking relief demonstrates that: (1) it is likely to suffer irreparable injury that cannot be redressed by an award of damages; (2) that “considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted”; and (3) “that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006).

The Administration’s argument as to the first and third factors is indistinguishable from its position on the Executive Order’s interpretation. Because the Executive Order contemplates no illegal conduct, the argument goes, the Counties cannot be injured and the public interest is at least indifferent to the injunction. We disagree with the Administration’s interpretation of the Executive Order, and we therefore disagree with its argument regarding the propriety of the injunction. A total loss of federal funding would be catastrophic, and the Counties’ (and their residents’) need for certainty renders damages inadequate. Id. And the public interest cannot be disserved by an injunction that brings clarity to all parties and to citizens dependent on public services. Id.

Additionally, the balance of hardships tips in favor of enjoining enforcement of § 9(a) against the Counties. Indeed, the Administration has not even attempted to argue that the injunction causes it any burden at all. See Melendres, 695 F.3d at 1002 (“The Defendants cannot be harmed by an order enjoining an action they will not take.”).

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B

While we agree that the district court was correct to enjoin the Administration from enforcing § 9(a) against the Counties, the present record is not sufficient to support a nationwide injunction. We therefore vacate the injunction and remand for careful consideration by the district court.

“Once a constitutional violation is found, a federal court is required to tailor the scope of the remedy to fit the nature and extent of the constitutional violation.” Hills v. Gautreax, 425 U.S. 284, 293–94 (1976) (citations and internal quotation marks omitted). This is so, in part, because broad injunctions may stymie novel legal challenges and robust debate. See Arizona v. Evans, 514 U.S. 1, 23 n.1 (1995) (Ginsburg, J., dissenting) (“We have in many instances recognized that when frontier legal problems are presented, periods of ‘percolation’ in, and diverse opinions from, state and federal appellate courts may yield a better informed and more enduring final pronouncement by this Court.”).

In recent cases, we have upheld nationwide injunctions when “necessary to give Plaintiffs a full expression of their rights.” Hawaii v. Trump, 878 F.3d 662, 701 (9th Cir. 2017) (per curium), rev’d on other grounds Trump v. Hawaii, 585 U.S. ___, 2018 WL 3116337 (2018); see also Washington v. Trump, 847 F.3d 1151, 1166–67 (9th Cir. 2017) (per curium). These exceptional cases are consistent with our general rule that “[w]here relief can be structured on an individual basis, it must be narrowly tailored to remedy the specific harm shown”—“an injunction is not necessarily made overbroad by extending benefit or protection to persons other than prevailing parties in the lawsuit . . . if such breadth is necessary to give prevailing parties the relief to which they

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are entitled.” Bresgal v. Brock, 843 F.2d 1163, 1170–71 (9th Cir. 1987).

Here, the Counties’ tendered evidence is limited to the effect of the Order on their governments and the State of California. The record supports their claim that their budgets depend on grants awarded to themselves and to the State of California. Further, the evidence supports the conclusion that the Counties and the State of California were particular targets of the Executive Order. However, the record is not sufficiently developed on the nationwide impact of the Executive Order. Cf. City of Chicago v. Sessions, 888 F.3d 272, 292–93 (7th Cir. 2018) (affirming a nationwide injunction in part because the statute “interconnects” all recipients of Byrne JAG grants).

We are unpersuaded by the Administration’s arguments in favor of a blanket restriction on all nationwide injunctions. And we do not wish to interfere with the district court’s considerable discretion in ordering an appropriate equitable remedy. “Crafting a preliminary injunction is an exercise of discretion and judgment, often dependent as much on the equities of a given case as the substance of the legal issues it presents.” Trump v. Intern. Refugee Assistance Project, 137 S. Ct. 2080, 2087 (2017). However, because the record is insufficiently developed as to the question of the national scope of the injunction, we vacate the injunction to the extent that it applies outside California and remand to the district court for a more searching inquiry into whether this case justifies the breadth of the injunction imposed.

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VII

The district court granted summary judgment to the Counties, determining that § 9(a) of Executive Order 13,768, “Enhancing Public Safety in the Interior of the United States,” is unconstitutional and enjoining enforcement of that section. If it were to enforce the Executive Order, the Executive would assert a power that belongs solely to Congress by withdrawing funds in the absence of congressional authorization. We therefore affirm the grant of summary judgment. Although we agree that the Counties are entitled to an injunction as to the Executive Order’s effect in California, the record as presently developed does not justify a nationwide injunction. Thus, we vacate the nationwide injunction and remand for further consideration by the district court in the first instance. We need not—and do not—reach any other issues urged by the parties.

AFFIRMED in part; VACATED in part; and REMANDED.8

Each party to bear its own costs.

8 All pending motions are denied as moot.

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FERNANDEZ, Circuit Judge, dissenting:

Congress has the authority to enact legislation regarding immigration and nationality.1 That entails legislation that determines which foreign citizens are permitted to cross the borders of the United States and live within this country. Congress has done so,2 and those determinations have duly become the laws of the United States.3 Also, the president “shall take Care that the Laws be faithfully executed.”4 It came to the attention of President Trump that some individuals in the country did not agree with the laws duly passed in the area of immigration and nationality. Those individuals were of the opinion that they and others who agreed with their position should delay or thwart the execution of those laws. To that end they had prevailed upon local and state governmental entities in the places they resided to pass laws that were designed to at least reduce the cooperation of state or local government officials and entities with federal immigration officials and entities. For example, the City and County of San Francisco and the County of Santa Clara (hereafter “the Counties”) have enacted ordinances or policies that at least etiolated the Counties’ government officials’ cooperation with or giving of information to federal immigration authorities when those county officials were acting in an official capacity. See S.F., Cal., Admin. Code §§ 12H.1–.6, 12I.1–.7; County of Santa

1 See U.S. Const. art. I, § 8, cl. 4; Toll v. Moreno, 458 U.S. 1, 10, 102 S. Ct. 2977, 2982, 73 L. Ed. 2d 563 (1982).
2 See, e.g., United States Code, Title 8. 3 See U.S. Const. art. I, § 7, cl. 2. 4 U.S. Const. art. II, § 3.

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Clara, Cal., Board of Supervisors Policy 3.54, Civil Immigration Detainer Requests (Oct. 18, 2011); County of Santa Clara, Cal., Board of Supervisors Resolution 2010-316, Advancing Public Safety and Affirming the Separation Between County Services and the Enforcement of Federal Civil Immigration Law (June 22, 2010). For its part, based on the animus that animated those ordinances, the State of California imposed similar restrictions upon all law enforcement officials. See Cal. Gov’t Code §§ 7282–7282.5; id. §§ 7284–7284.12; see also id. §§ 7285.1–7285.3 (prohibiting employers’ voluntary cooperation with federal immigration agents’ access or entry); id. § 7310 (directing housing prohibitions regarding non-citizens in immigration custody); id. § 12532 (conducting detention facility inspections); Cal. Lab. Code § 1019.2 (prohibiting reverification of employment eligibility by an employer).

In partial response to that kind of legislation and action, the President issued an executive order,5 which directs certain
high officers of the United States government as follows:

Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that

5 Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (hereafter the “Executive Order”).

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jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

Executive Order § 9(a). Of course, the Executive Order does make 8 U.S.C. § 1373 the foundation of section 9(a)’s directives. Section 1373 reads as follows in pertinent part:

(a) . . . Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.

(b) . . . Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect

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to information regarding the immigration status, lawful or unlawful, of any individual:

(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.

(2) Maintaining such information.

(3) Exchanging such information with any other Federal, State, or local government entity.

I note that on its face the section does not dragoon state or local officials into federal government service,6 but, rather, merely precludes governmental entities or officials from prohibiting or restricting other governmental entities or officials from communicating with the Immigration and Naturalization Service.7 It does not require any entity or person to communicate any information to the Service, or to do anything with information received from the Service. Besides the section’s rather mild requirement, lest there be any doubt, the Attorney General has essentially declared that he will, indeed, adhere to the Executive Order’s requirement

6 See Printz v. United States, 521 U.S. 898, 928, 117 S. Ct. 2365, 2381, 138 L. Ed. 2d 914 (1997).
7 City of New York v. United States, 179 F.3d 29, 35 (2d Cir. 1999); see also Murphy v. Nat’l Collegiate Athletic Ass’n, ___ U.S. ___, ___, 138 S. Ct. 1461, 1477, ___ L. Ed. 2d ___ (2018) (discussing principles behind the anticommandeering rule, none of which supports attempts to frustrate the carrying out of national programs and policies (like immigration) by prohibiting communications between national and state or local officials).

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that any steps he takes must be consistent with law. See Memorandum for All Department Grant-Making Components from the Attorney General relating to Implementation of the Executive Order (May 22, 2017) (hereafter, “the Formal Memorandum”).

Nevertheless, the Counties have facially challenged the Executive Order and asked the United States courts to enjoin United States officials from following the Executive Order, which, in effect, directed that those officials shall assure that a law of the United States shall “be faithfully executed.”8 Is that a proper use of the power of the United States courts in this case? One would think that to ask the question is to answer it in the negative. Alas, the district court did not agree with that answer. Alack, neither do my esteemed colleagues. I do. The reasons for my doing so follow.

(1) I do not think that this case is ripe for decision. I recognize that the concept of ripeness is very close to the concept of standing, and often is much the same as injury-infact inquiries in the standing area. See Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1138–39 (9th Cir. 2000) (en banc). As we have noted, “ripeness can be characterized as standing on a timeline.” Id. at 1138. In either event, what a party must show is that there is a true “‘case or controversy,’” that is, “that the issues presented are ‘definite and concrete, not hypothetical or abstract.’” Id. at 1139; see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61, 112 S. Ct. 2130, 2136, 119 L. Ed. 2d 351 (1992). Moreover, ripeness doctrine does focus on timing and directs us to consider whether the claim a plaintiff is making keys on an alleged injury that is speculative because it “‘rests upon

8 U.S. Const. art. II, § 3.

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contingent future events that may not occur as anticipated, or indeed may not occur at all.’” Wolfson v. Brammer, 616 F.3d 1045, 1064 (9th Cir. 2010); see also Whitmore v. Arkansas, 495 U.S. 149, 158, 110 S. Ct. 1717, 1724–25, 109 L. Ed. 2d 135 (1990) (“Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact.” (internal quotation marks omitted)). Moreover, while there are times when a “law is aimed directly at plaintiffs”9 and there is reason to believe that it will be enforced against them,10 that is not the case here. The Executive Order itself is not directed toward the Counties at all; it is directed to Federal government officials only. If they obey its dictates, they will not overstep legal or constitutional boundaries. Nor have they threatened that they will knowingly do so.

The parties do not dispute that in order to assess whether action will be taken against the Counties a three-part test should be applied to ripeness in this case. That is: “whether the plaintiffs have articulated a ‘concrete plan’ to violate the law in question, whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and the history of past prosecution or enforcement under the challenged [law].” Thomas, 220 F.3d at 1139. Application of the test demonstrates that this case is not ripe.

First: As already noted, the Executive Order is not directed at the Counties. It is directed to the Attorney

9 Virginia v. Am. Booksellers Ass’n, Inc., 484 U.S. 383, 392, 108 S. Ct. 636, 642, 98 L. Ed. 2d 782 (1988).
10 Id. at 393, 108 S. Ct. at 643.

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General and the Secretary. Moreover, while it does direct those officials to “ensure” that a law—§ 1373—is complied with, it also tells them that whatever they do in that regard must be “consistent with law.” And neither the Attorney General nor the Secretary has threatened to take actions that do not adhere to that admonition. That is quite different from executive orders that direct the executive’s subordinates to take certain actions, but do not caution that those actions must be taken within the confines of existing law. See, e.g., Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 583, 587, 72 S. Ct. 863, 865, 867, 96 L. Ed. 1153 (1952); Washington v. Trump, 847 F.3d 1151, 1156–57 (9th Cir.) (per curiam), cert. denied, __ U.S. __, 138 S. Ct. 448, 199 L. Ed. 2d 331 (2017). The district court suggested that the admonition would render the Executive Order legally meaningless, but that is a disingenuous reading of it. It is not meaningless to announce to executive officers and, indeed, the nation, that a statute—here § 1373—will be enforced even if enforcement has been somewhat lax in the past. And the Counties certainly do not assert that they have violated or intend to violate § 1373.

In short, the Counties have not met the concrete-plan element.

Second: The terms of the Executive Order itself and the Formal Memorandum show that there is no threat to enforce the Executive Order in a manner that takes away (or denies) funding to the Counties in the improper manner that the Counties seem to fear. That is, neither the Executive Order itself, nor any actions taken under it, by creation of regulations or otherwise, have subtended that threat. Rather, whatever the President, or others, might wish for in order to achieve what they deem to be a more perfect polity, the

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Executive Order recognizes their limits in achieving that. Nothing they have said or done threatens the possible illegal horrors conjured up by the Counties. See Sacks v. Office of Foreign Assets Control, 466 F.3d 764, 774 (9th Cir. 2006). And, after all, it is the Executive Order itself that is under attack here. It does not direct that any illegal conduct be undertaken. This factor does not support ripeness.

Third: There is no enforcement history regarding the Executive Order. San Francisco suggests that the factor is, therefore, neutral. Quite the contrary. What it does demonstrate is that the Counties’ rush to litigate caused them to bring this facial attack on the Executive Order before the timeline allowed their case to reach the ripeness stage.

Therefore, in my view this matter is not ripe and the district court should have eschewed jurisdiction, as should we.

(2) While I am of the opinion that we should not opine on the merits at this point, because the majority does, I must say a few words. To a large extent, the defect in the district court’s issuance of an injunction was caused by its failure to accord the Executive Order a fair enough reading. That resulted in its abusing its discretion when it issued the injunction. See LaVine v. Blaine Sch. Dist., 257 F.3d 981, 987 (9th Cir. 2001); see also United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc).

There can be no doubt that the President had the authority and the duty to see that duly adopted laws were faithfully executed, and to direct his subordinates to that end. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 492–93, 130 S. Ct. 3138, 3151–52, 177 L. Ed. 2d 706

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(2010); Nixon v. Fitzgerald, 457 U.S. 731, 749–50, 102 S. Ct. 2690, 2701, 73 L. Ed. 2d 349 (1982); Myers v. United States, 272 U.S. 52, 117, 133–35, 47 S. Ct. 21, 25, 31, 71 L. Ed. 160 (1926). One way a president does that is through executive orders. See Bldg. & Constr. Trades Dep’t v. Allbaugh, 295 F.3d 28, 32–33 (D.C. Cir. 2002). That is what the President did here. The courts do not treat executive orders with disdain, but read and construe them in much the same way as statutes should be treated,11 and the courts do not properly construe executive orders based upon the courts’ own policy preferences.12 Among other things, that means that: “‘when the [order’s] language is plain, the sole function of the courts—at least where the disposition required by the text is not absurd—is to enforce it according to its terms.’” Lamie v. U.S. Tr., 540 U.S. 526, 534, 124 S. Ct. 1023, 1030, 157 L. Ed. 2d 1024 (2004). And it is not the role of the courts “to rewrite the Executive Order.” Washington, 847 F.3d at 1167. Unfortunately, the district court did not follow those rules.

What the Counties argued for and what the district court did was to shunt aside short but clear and extraordinarily important wording in the Executive Order. The introductory sentence of section 9 of the Executive Order merely stated that it was executive branch policy that § 1373 be followed “to the fullest extent of the law,” and lest that be seen as too expansive, the body of section 9(a) directed that any actions

11 See Utley v. Varian Assocs., Inc., 811 F.2d 1279, 1284–85 (9th Cir. 1987); see also Bassidji v. Goe, 413 F.3d 928, 934 (9th Cir. 2005).
12 See Guido v. Mount Lemmon Fire Dist., 859 F.3d 1168, 1174 (9th Cir. 2017), cert. granted, __ U.S. __, 138 S. Ct. 1165, 200 L. Ed. 2d 313 (2018).

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taken by the Attorney General or the Secretary were to be taken “to the extent consistent with law” and not otherwise. To brush those words aside as implausible, or boilerplate, or even as words that would render the Executive Order meaningless was just to say that the plain language of the Executive Order should be ignored in favor of comments made dehors the order itself, none of which have resulted in the taking of any illegal action pursuant to the order.13 That is not the proper way to deal with plain language—it is, instead, an attempt to rewrite the Executive Order itself and then to enjoin use of the newly written version.14 And if there is ambiguity in certain parts of the Executive Order, it is not at all ambiguous in its use of the restrictive language. Nor is it proper to enjoin enforcement of the Executive Order on the unsupported speculation that it will be implemented in an unconstitutional manner. See Arizona v. United States, 567 U.S. 387, 415, 132 S. Ct. 2492, 2510, 183 L. Ed. 2d 351 (2012); Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 454, 128 S. Ct. 1184, 1193, 170 L. Ed. 2d 151

13 As to the dismissive attitude evidenced by those characterizations, the answer is well set forth in Allbaugh, 295 F.3d at 33, where the court, referring to Youngstown, 343 U.S. 579, 72 S. Ct. 863, said: “Indeed, had President Truman merely instructed the Secretary of Commerce to secure the Government’s access to steel ‘[t]o the extent permitted by law,’ Youngstown would have been a rather mundane dispute over whether the Secretary had statutory authority to act as he did.”
14 See Trump v. Hawaii, ___ U.S. ___, ___, 138 S. Ct. 2392, 2416–23, ___ L. Ed. 2d ___ (2018) (rejecting attack on an executive order based on statements made by the President in his election campaign and some of his other general statements).

CCaassee:31:177-1-c7v4-7080,50784/-0W1H/2O018D, oIDcu: m10e9n6t2118977, FDikletEdn0t8ry/0: 71/3168-1,PPaaggee4477ooff4477

SAN FRANCISCO V. TRUMP

47

(2008). Certainly, it was not a proper basis for deciding that the Executive Order was facially unconstitutional.15

In fine, while the Counties may be convinced that the Executive Order loosed a fearsome chimera upon them, that does not mean that the courts should take up arms to vanquish the imagined beast by slaying the Executive Order itself.16

Thus, I respectfully dissent.

15 If an executive agency should misstep at some point, that will be the time to so state and rule accordingly. See Allbaugh, 295 F.3d at 33. I note that City of Chicago v. Sessions, 888 F.3d 272, 278 (7th Cir. 2018), reh’g en banc granted on other grounds, No. 17-2991 (7th Cir. June 4, 2018) is not apposite. It discusses conditions which were not imposed as a result of the Executive Order and does not consider issues regarding enforcement of § 1373 itself.
16 While it goes without saying that I would vacate the injunction in its entirety, even if it were otherwise proper, the district court erred when it granted a nationwide injunction. It could have granted relief to the Counties without so doing. In fact, the whole concept of issuing nationwide injunctions is somewhat dubious. See Trump, ___ U.S. at ___, 138 S. Ct. at 2425–29 (Thomas, J., concurring); cf. id. at ___, 138 S. Ct. at 2423 (majority opinion) (declining to decide “propriety of the nationwide scope of the injunction”). They should at the very least be used with a great deal of caution. In general, a court should not stretch to impose its will further than is necessary to grant relief to those before it. See L.A. Haven Hospice, Inc. v. Sebelius, 638 F.3d 644, 664 (9th Cir. 2011); see also Califano v. Yamasaki, 442 U.S. 682, 701–03, 99 S. Ct. 2545, 2558, 61 L. Ed. 2d 176 (1979).

 
 Case 3:17-cv-00574-WHO Document 206 Filed 08/23/19 Page 1 of 6

1 JAMES R. WILLIAMS, County Counsel (S.B. #271253) GRETA S. HANSEN (S.B. #251471)
2 L. JAVIER SERRANO (S.B. #252266) OFFICE OF THE COUNTY COUNSEL
3 70 West Hedding Street, East Wing, Ninth Floor San José, California 95110-1770
4 Telephone: (408) 299-5900 Facsimile: (408) 292-7240
5
Attorneys for Plaintiff 6 COUNTY OF SANTA CLARA
UNITED STATES DISTRICT COURT
7
NORTHERN DISTRICT OF CALIFORNIA
8
SAN FRANCISCO DIVISION
9

10 CITY AND COUNTY OF SAN

FRANCISCO,
11

Plaintiff,

12

v.

13 DONALD J. TRUMP, et al.,
Defendants.
14

15 COUNTY OF SANTA CLARA, Plaintiff,

16

v.

STIPULATION AND FINAL JUDGMENT AND ORDER
No. 3:17-cv-00485-WHO

17 DONALD J. TRUMP, et al.,

18

Defendants.

No. 3:17-cv-00574-WHO

19
WHEREAS, the underlying actions commenced as cases styled City and County of San
20
Francisco v. Trump (No. 3:17-cv-00485-WHO) and County of Santa Clara v. Trump (No. 3:17-cv-
21
00574-WHO), hereinafter collectively referred to as the “Litigation,” asserting claims challenging
22
the constitutionality of Section 9 of Executive Order Number 13768, entitled “Enhancing Public
23
Safety in the Interior of the United States” (“Section 9”);
24
WHEREAS, on November 20, 2017, the United States District Court for the Northern
25
District of California granted summary judgment in favor of Plaintiffs on these claims and entered a
26
permanent, nationwide injunction barring enforcement of Section 9;
27

28

Stipulation and Order

1
17-CV-00485/17-CV-00574-WHO

Case 3:17-cv-00574-WHO Document 206 Filed 08/23/19 Page 2 of 6

1

WHEREAS, on August 1, 2018, in the Litigation upon appeal, the United States Court of

2 Appeals for the Ninth Circuit affirmed the District Court’s grant of summary judgement and

3 injunction as to the Executive Order’s effect in California but vacated the nationwide injunction for

4 further consideration by the District Court (see City and County of San Francisco v. Trump, 897

5 F.3d 1225 (9th Cir. 2018)); and

6

WHEREAS, the constitutionality of Section 9 is not currently being actively litigated

7 elsewhere in the nation and the Parties wish to avoid the need to expend further resources on

8 resolving these issues,

9

WHEREAS, assuming approval by the Court of the joint Stipulation and Final Judgment, the

10 pending Case Management Conference scheduled for August 20, 2019 may be cancelled as moot,

11

NOW THEREFORE, the parties hereby jointly stipulate to the following:

12

1. Final Judgment is hereby entered in favor of the Plaintiffs on the merits for the

13

reasons set forth in City and County of San Francisco v. Trump, 897 F.3d 1225 (9th

14

Cir. 2018);

15

2. All Parties agree that the deadline for further review of the Ninth Circuit’s August 1,

16

2018 decision has passed. Out of an abundance caution, however, the Parties agree

17

that Defendants shall not seek to pursue any further review from (1) the Ninth

18

Circuit’s decision of August 1, 2018, or (2) the final judgments entered in these cases.

19

3. The enforcement of Section 9 within the State of California is hereby enjoined;

20

4. Plaintiffs withdraw, without prejudice, their request for injunctive relief that would

21

reach outside the State of California;

22

5. For the sake of clarity, nothing in this dismissal precludes Plaintiffs from seeking to

23

renew their request for injunctive relief outside of the State of California by

24

reopening this matter. In the event that Plaintiffs seek to re-open the above

25

referenced cases, Defendants agree that any statute of limitations, statute of repose, or

26

other time-related defense based on federal, state or any other law (including, but not

27

limited to, defenses based on the doctrines of waiver, laches, acquiescence, or

28

estoppel) that may be applicable to any of the claims asserted by Plaintiffs will be

Stipulation and Order

2
17-CV-00485/17-CV-00574-WHO

Case 3:17-cv-00574-WHO Document 206 Filed 08/23/19 Page 3 of 6

1

deemed tolled. However, nothing in this dismissal precludes the United States from

2

defending the merits of such a request; and

3

6. Each party in these actions will bear its own costs and attorney’s fees.

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

Stipulation and Order

3
17-CV-00485/17-CV-00574-WHO

Case 3:17-cv-00574-WHO Document 206 Filed 08/23/19 Page 4 of 6

1

Respectfully submitted,

2 DENNIS J. HERRERA (CA Bar #139669) JOSEPH H. HUNT

City Attorney 3 JESSE C. SMITH (CA Bar #122517)

Assistant Attorney General DAVID L. ANDERSON

Chief Assistant City Attorney 4 RONALD P. FLYNN (CA Bar #184186)

United States Attorney JOHN R. TYLER

Chief Deputy City Attorney 5 YVONNE R. MERÉ (CA Bar #173594)

Assistant Director

Chief of Complex and Affirmative Litigation
6

7

/s/ Sara J. Eisenberg

/s/ Daniel D. Mauler DANIEL D. MAULER

SARA J. EISENBERG (CA Bar #269303) 8 TARA M. STEELEY (CA Bar #231775)

(Va. Bar #73190) Trial Attorney

AILEEN M. McGRATH, (CA Bar #280846)

9 Deputy City Attorneys

Department of Justice, Civil Division

10 City Hall, Room 234

P.O. Box 883 Washington, DC 20044

1 Dr. Carlton B. Goodlett Place 11 San Francisco, California 94102-4602

Telephone: (202) 616-0773 Facsimile: (202) 616-8470

Telephone: (415) 554-4748 12 Facsimile: (415) 554-4715

E-mail:

dan.mauler@usdoj.gov

E-Mail:
13

brittany.feitelberg@sfgov.org COUNSEL FOR DEFENDANTS

COUNSEL FOR PLAINTIFF 14 CITY AND COUNTY OF SAN
FRANCISCO
15
* * *
16
OFFICE OF THE COUNTY COUNSEL, 17 COUNTY OF SANTA CLARA

DONALD J. TRUMP, President of the United States; UNITED STATES OF AMERICA; KEVIN K. McALEENAN, Acting Secretary of Homeland Security; WILLIAM P. BARR, Attorney General of the United States in City & County of San Francisco v. Trump, et al., No. 3:17-cv00485-WHO

18 JAMES R. WILLIAMS County Counsel
19
/s/ Javier Serrano 20 JAVIER SERRANO (CA Bar #252266)
Deputy County Counsel
21
70 West Hedding Street 22 East Wing, Ninth Floor
San Jose, CA 95110-1770 23 Telephone: (408) 299-5900
Facsimile: (408) 292-7240 24 E-mail: javier.serrano@cco.sccgov.org

DONALD J. TRUMP, President of the United States; KEVIN K. McALEENAN, Acting Secretary of Homeland Security; WILLIAM P. BARR, Attorney General of the United States; MICK MULVANEY, Director of the Office of Management and Budget in County of Santa Clara v. Trump, et al., No. 3:17-cv-00574-WHO

25 COUNSEL FOR PLAINTIFF COUNTY OF SANTA CLARA
26

27

28

Stipulation and Order

4
17-CV-00485/17-CV-00574-WHO

Case 3:17-cv-00574-WHO Document 206 Filed 08/23/19 Page 5 of 6

1

ORDER

2

It appearing to the Court that the parties jointly request the following relief, it is hereby

3 ORDRED as follows:

4

1. Final Judgment is hereby entered in favor of the Plaintiffs on the merits for the

5

reasons set forth in City and County of San Francisco v. Trump, 897 F.3d 1225 (9th

6

Cir. 2018);

7

2. All Parties agree that the deadline for further review of the Ninth Circuit’s August 1,

8

2018 decision has passed. Out of an abundance caution, however, the Parties agree

9

that Defendants shall not seek to pursue any further review from (1) the Ninth

10

Circuit’s decision of August 1, 2018, or (2) the final judgments entered in these cases.

11

3. The enforcement of Section 9 within the State of California is hereby ENJOINED;

12

4. Plaintiffs’ request for injunctive relief that would reach outside the State of California

13

is DISMISSED WITHOUT PREJUDICE;

14

5. For the sake of clarity, this dismissal does not Plaintiffs’ rights to seek to renew their

15

request for injunctive relief outside of the State of California by reopening this matter.

16

In the event that Plaintiffs seek to re-open the above referenced cases, Defendants

17

agree that any statute of limitations, statute of repose, or other time-related defense

18

based on federal, state or any other law (including, but not limited to, defenses based

19

on the doctrines of waiver, laches, acquiescence, or estoppel) that may be applicable

20

to any of the claims asserted by Plaintiffs will be deemed tolled. However, nothing in

21

this dismissal precludes the United States from defending the merits of such a

22

request; and

23

6. Each party in these actions shall bear its own costs and attorney’s fees.

24

IT IS SO ORDERED.

25

26 DATED: August 15, 2019
27 28

_____________________________ Hon. William H. Orrick United States District Judge

Stipulation and Order

5
17-CV-00485/17-CV-00574-WHO

Case 3:17-cv-00574-WHO Document 206 Filed 08/23/19 Page 6 of 6

1

ATTESTATION OF SIGNATURES

2

I, Javier Serrano, hereby attest, pursuant to Local Civil Rule 5-1(i)(3) of the Northern District

3 of California, that concurrence in the filing of this document has been obtained from each signatory

4 hereto.

5

6

/s/ Javier Serrano

JAVIER SERRANO (CA Bar #252266)

7

COUNSEL FOR PLAINTIFF

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2064573

Stipulation and Order

6
17-CV-00485/17-CV-00574-WHO

 
 Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 1 of 42
ADRMOP,CLOSED,ProSe,RELATE
U.S. District Court California Northern District (San Francisco) CIVIL DOCKET FOR CASE #: 3:17−cv−00574−WHO

County of Santa Clara v. Donald J. Trump et al Assigned to: Judge William H. Orrick Referred to: Magistrate Judge Nathanael M. Cousins Relate Case Cases: 3:17−cv−00485−WHO
3:17−cv−01535−WHO
Case in other court: 17−16887 Cause: 28:2201 Declaratory Judgement
Plaintiff

Date Filed: 02/03/2017 Date Terminated: 11/22/2017 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: U.S. Government Defendant

County of Santa Clara

represented by Jennifer Lee Taylor Morrison & Foerster LLP 425 Market St. San Francisco, CA 94105−2482 (415) 268−7000 Email: JLeeTaylor@mofo.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

John Watkins Keker Keker Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111−1809 415/391−5400 Fax: 415−397−7188 Email: jkeker@keker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Adriana Lee Benedict Office of the County Counsel 70 West Hedding Street East Wing, 9th Floor San Jose, CA 95110 408−299−5900 Fax: 408−292−7240 Email: adriana.benedict@cco.sccgov.org TERMINATED: 11/29/2018

Cody Shawn Harris Keker and Van Nest LLP 633 Battery Street San Francisco, CA 94111−1809 415−391−5400 Fax: 415−397−7188 Email: charris@keker.com ATTORNEY TO BE NOTICED

Daniel Edward Purcell Keker Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111−1809 415−391−5400 Fax: 415−397−7188 Email: dpurcell@keker.com ATTORNEY TO BE NOTICED

Danielle Luce Goldstein

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 2 of 42
Office of the Los Angeles City Attorney 200 North Spring Street 14th Floor Los Angeles, CA 90012 213.978.1868 Fax: 213.978.2286 Email: danielle.goldstein@lacity.org TERMINATED: 05/03/2019
Edward Andrew Bayley Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111−1809 415−391−5400 Fax: 415−397−7188 Email: ebayley@keker.com ATTORNEY TO BE NOTICED
Greta Suzanne Hansen Office of the County Counsel, Santa Clara County 70 West Hedding Street 9th Floor, East Wing San Jose, Ca 95110 United Sta 408−299−5930 Fax: 408−292−7240 Email: greta.hansen@cco.sccgov.org ATTORNEY TO BE NOTICED
James Robyzad Williams Santa Clara County Counsel's Office 70 W. Hedding Street 9th Floor, East Wing San Jose, CA 95110 408−299−6936 Fax: 408−292−7240 Email: james.williams@cco.sccgov.org ATTORNEY TO BE NOTICED
Julia Blau Spiegel Santa Clara County Counsel's Office 70 West Hedding Street East Wing, 9th Floor San Jose, CA 95110 United Sta 650−740−6621 Fax: 6507406621 Email: julia.spiegel@cco.sccgov.org ATTORNEY TO BE NOTICED
Julie Wilensky Office of the County Counsel County of Santa Clara 70 West Hedding Street San Jose, CA 95110 408−299−5900 Email: julie.wilensky@cco.sccgov.org TERMINATED: 11/29/2018
Kavita Kandala Narayan Office of the County Counsel, County of Santa Clara 70 West Hedding Street East Wing, 9th Floor

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 3 of 42
San Jose, CA 95051 408−299−5900 Fax: 408−292−7240 Email: Kavita.Narayan@cco.sccgov.org ATTORNEY TO BE NOTICED
Lawrence Javier Serrano Office of the County Counsel 70 West Hedding Street East Wing 9th Floor San Jose, CA 95110 408−299−5900 Email: Javier.Serrano@cco.sccgov.org ATTORNEY TO BE NOTICED
Nicholas Samuel Goldberg Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111 415−391−5400 Fax: 415−397−7188 Email: ngoldberg@keker.com ATTORNEY TO BE NOTICED
Robert Addy Van Nest Keker, Van Nest & Peters LLP 633 Battery Street San Francisco, CA 94111−1809 415−391−5400 Fax: 415−397−7188 Email: rvannest@keker.com ATTORNEY TO BE NOTICED

V.
Intervenor Pla
Young Women's Christian Association of Silicon Valley

represented by Catherine Eugenia Moreno Wilson Sonsini Goodrich & Rosati A Professional Corporation 650 Page Mill Road Palo Alto, CA 94304−1050 650−493−9300 Fax: 650−565−5100 Email: cmoreno@wsgr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William S. Freeman ACLU Foundation of Northern California 39 Drumm St. San Francisco, CA 94111 415 621−2493 Fax: 415 255−1478 Email: wfreeman@aclunc.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Andre Ivan Segura ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94117 415−621−2493

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 4 of 42
Fax: 415−255−8437 Email: asegura@aclu.org ATTORNEY TO BE NOTICED
Angelica Salceda ACLU of Northern California POB 188 Fresno, CA 93707 559−554−2994 Fax: (415) 255−8437 Email: asalceda@aclunc.org ATTORNEY TO BE NOTICED
Ava R Miller Wilson Sonsini Goodrich Rosati PC 650 Page Mill Road Palo Alto, CA 94306 650 493−9300 Fax: 650 565−5100 Email: armiller@wsgr.com ATTORNEY TO BE NOTICED
Cody H. Wofsy ACLU Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 415−343−0785 Fax: 415−395−0950 Email: cwofsy@aclu.org ATTORNEY TO BE NOTICED
John David Loy ACLU of San Diego P.O. Box 87131 San Diego, CA 92138−7131 (619) 232−2121 x230 Email: davidloy@aclusandiego.org ATTORNEY TO BE NOTICED
Julia Harumi Mass American Civil Liberties Union of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 415−621−2493 Fax: 415−255−8437 Email: jmass@aclunc.org ATTORNEY TO BE NOTICED
Lauren Gallo White Wilson Sonsini Goodrich and Rosati, PC 650 Page Mill Road Palo Alto, CA 94306−1050 650−493−9300 Fax: 650−565−5100 Email: lwhite@wsgr.com ATTORNEY TO BE NOTICED
Michael Roland Petrocelli Wilson Sonsini Goodrich & Rosati 650 Page Mill Road Palo Alto, CA 94304−1050 650−493−9300 Fax: 650−565−5100 Email: mpetrocelli@wsgr.com

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 5 of 42
ATTORNEY TO BE NOTICED
Omar C. Jadwat ACLU Foundation Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549−2620 Fax: (212) 549−2654 Email: ojadwat@aclu.org ATTORNEY TO BE NOTICED
Ralitza S. Dineva Wilson Sonsini Goodrich and Rosati PC 650 Page Mill Road Palo Alto, CA 94306 650−493−9300 Fax: 650−565−5100 Email: rdineva@wsgr.com ATTORNEY TO BE NOTICED
Spencer Elijah Wittmann Amdur ACLU Immigrants' Rights Project 125 Broad Street, 18th Floor New York, NY 10004 (212) 549−2572 Email: samdur@aclu.org PRO HAC VICE ATTORNEY TO BE NOTICED

V. Defendant Donald J. Trump President of the United States of America
Defendant John F. Kelly in his official capacity as Secretary of the United States Department of Homeland Security

represented by Daniel D. Mauler U.S. Department of Justice Civil Division − Federal Programs Branch 20 Massachusetts Ave, NW Room 6141 Washington, DC 20530 202−616−0773 Email: dan.mauler@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson U.S. Department of Justice, Civil Division 318 South Sixth Street, Room 244 Springfield, IL 62701 202−514−3495 Email: scott.simpson@usdoj.gov TERMINATED: 04/25/2019 LEAD ATTORNEY
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 6 of 42

Defendant Dana J. Boente in his official capacity as Acting Attorney General of the United States
Defendant Mark Sandy in his official capacity as Acting Director of the Office of Management and Budget
Defendant Attorney General Jefferson B. Sessions
Defendant Director, OMB Mick Mulvaney
Defendant Elaine C. Duke
Defendant Kirstjen Nielsen

represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) TERMINATED: 04/25/2019 LEAD ATTORNEY
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 7 of 42

Defendant Kevin K. McAleenan
Defendant William P. Barr

represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) TERMINATED: 04/25/2019 LEAD ATTORNEY
represented by Daniel D. Mauler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
W. Scott Simpson (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Intervenor Dft Kuang−Bao P. Ou−Young
Amicus Service Employees International Union

represented by Kuang−Bao P. Ou−Young 1362 Wright Avenue Sunnyvale, CA 94087 408−736−7793 PRO SE
represented by Claire P. Prestel SEIU 1800 Massachusetts Ave. NW Ste 600 Washington, DC 20036 230−730−7468 Email: claire.prestel@seiu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Smith Service Employees International Union 1800 Massachusetts Avenue NW Washington, DC 20036 202 730−7468 Fax: 202 429−5565 ATTORNEY TO BE NOTICED
Leo Gertner Service Employees International Union 1800 Massachusetts Avenue NW Washington, DC 20036 202 730−7468 Fax: 202 429−5565 ATTORNEY TO BE NOTICED
Nicole Gina Berner Service Employees International Union 1800 Massachusetts Avenue NW

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 8 of 42

Amicus Unite Here Local 19
Amicus Working Partnerships USA
Amicus City of Menlo Park
Amicus City of New Orleans Amicus Services, Immigrants' Rights, and Education Network

Washington, DC 20036 202 730−7468 Fax: 202 429−5565 ATTORNEY TO BE NOTICED
represented by Claire P. Prestel (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Deborah Smith (See above for address) ATTORNEY TO BE NOTICED
Leo Gertner (See above for address) ATTORNEY TO BE NOTICED
Nicole Gina Berner (See above for address) ATTORNEY TO BE NOTICED
represented by Claire P. Prestel (See above for address) ATTORNEY TO BE NOTICED
Deborah Smith (See above for address) ATTORNEY TO BE NOTICED
Leo Gertner (See above for address) ATTORNEY TO BE NOTICED
Nicole Gina Berner (See above for address) ATTORNEY TO BE NOTICED
represented by Kelly M. Dermody Leiff Cabraser Heimann & Bernstein LLP 275 Battery Street, 29th Floor San Francisco, CA 94111−3339 415−956−1000 Fax: 415−956−1008 Email: kdermody@lchb.com ATTORNEY TO BE NOTICED
represented by Kelly M. Dermody (See above for address) ATTORNEY TO BE NOTICED
represented by Jayashri Srikantiah Stanford Law School Immigrants' Rights Clinic Mills Legal Clinic 559 Nathan Abbott Way Stanford, CA 94305−8610

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 9 of 42

Amicus Silicon Valley De−Bug
Amicus Asian Law Alliance
Amicus Community Legal Services in East Palo Alto
Amicus Pangea Legal Services
Amicus Individual Sheriffs and Police Chiefs

650−724−2442 Fax: 650−723−4426 Email: jsrikantiah@law.stanford.edu ATTORNEY TO BE NOTICED
Jennifer Lori Stark Stanford Law School Immigrants' Rights Clinic, Mills Legal Clinic Crown Quadrangle 559 Nathan Abbott Way Stanford, CA 94305 United Sta (650) 725−7958 Fax: (650) 723−4426 Email: jstark@law.stanford.edu ATTORNEY TO BE NOTICED
represented by Jayashri Srikantiah (See above for address) ATTORNEY TO BE NOTICED
Jennifer Lori Stark (See above for address) ATTORNEY TO BE NOTICED
represented by Jayashri Srikantiah (See above for address) ATTORNEY TO BE NOTICED
Jennifer Lori Stark (See above for address) ATTORNEY TO BE NOTICED
represented by Jayashri Srikantiah (See above for address) ATTORNEY TO BE NOTICED
Jennifer Lori Stark (See above for address) ATTORNEY TO BE NOTICED
represented by Jayashri Srikantiah (See above for address) ATTORNEY TO BE NOTICED
Jennifer Lori Stark (See above for address) ATTORNEY TO BE NOTICED
represented by Matthew J. Piers Hughes, Socol, Piers, Resnick & Dym, Ltd. Three First National Plaza 70 West Madison Street, Suite 4000 Chicago, IL 60602 (312) 580−0100 Fax: (312) 580−1994

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 10 of 42

Amicus Southern Poverty Law Center
Amicus Adelante Alabama Worker Center Amicus Alabama Coalition for Immigrant Justice Amicus American Federation of Teachers Amicus Americans for Immigrant Justice Amicus Asian American Legal Defense and Education Fund Amicus Asian Americans Advancing Justice − Asian Law Caucus Amicus Asian Americans Advancing Justice − Los Angeles

Email: mpiers@hsplegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nathan M McClellan University of Southern California Office of the General Counsel 3551 Trousdale Parkway, ADM 352 Los Angeles, CA 90089−5013 610−657−4330 Email: nathan.mcclellan@gmail.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher S. Burrichter Dechert LLP US Bank Tower 633 West 5th Street Los Angeles, CA 90071−2013 213 808−5700 Fax: 213 808−5760 Email: christopher.burrichter@dechert.com ATTORNEY TO BE NOTICED
Fred T. Magaziner Dechert LLP US Bank Tower 633 West 5th Street Los Angeles, CA 90071−2013 213 808−5700 Fax: 213 808−5760 Email: fred.magaziner@dechert.com ATTORNEY TO BE NOTICED

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 11 of 42
Amicus Asian Americans Advancing Justice − AAJC
Amicus Asian Americans Advancing Justice−Atlanta
Amicus Coalition for Humane Immigrant Rights
Amicus Equal Rights Advocates
Amicus Florida Immigrant Coaltion, Inc
Amicus Florida Legal Services, Inc
Amicus Greater Birmingham Ministries
Amicus Greater Rochester Coalition for Immigration Justice
Amicus Illinois Coalition for Immigrant and Refugee Rights
Amicus Immigrant Legal Resource Center
Amicus Jobs With Justice
Amicus Justice in Motion
Amicus Latin American Legal Defense and Education Fund
Amicus LatinoJustice PRLDEF
Amicus National Employment Law Project
Amicus National Immigration Law Center
Amicus

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 12 of 42

New Orleans Workers' Center for Racial Justice Amicus Northwest Forest Worker Center Amicus Refugee and Immigrant Center for Education and Legal Services Amicus Safe Horizon Amicus Southeast Immigrant Rights Network Amicus St. Louis Workers Education Society Amicus We Belong Together Amicus Worker Justice Center of New York, Inc Amicus Workers Defense Project Amicus Worksafe Amicus Professors of Constitutional Law, Administrative Law, and Immigration Law
Amicus Constitutional Law Scholars

represented by Nevin Merrill Gewertz Bartlit Beck LLP Courthouse Place 54 West Hubbard Street Stuite 300 Chicago, IL 60654 312−494−4400 Fax: 312−494−4440 Email: nevin.gewertz@bartlit−beck.com ATTORNEY TO BE NOTICED
Sonya Diane Winner Covington & Burling LLP One Front Street, Suite 3500 San Francisco, CA 94111 (415) 591−6000 Email: swinner@cov.com ATTORNEY TO BE NOTICED
represented by Nevin Merrill Gewertz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 13 of 42

Amicus State of California
Amicus Anti−Defamation League
Amicus Ampush Media, Inc.

represented by Lisa Catherine Ehrlich California Attorney General's Office 1515 Clay Street, 20th Floor Oakland, CA 94612 (510) 879−0173 Fax: (510) 622−2270 Email: lisa.ehrlich@doj.ca.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robert Ward Perrin Latham & Watkins LLP 355 South Grand Avenue, Suite 100 Los Angeles, CA 90071 213−485−1234 Fax: 213−891−8963 Email: robert.perrin@lw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell Fenwick and West LLP 555 California Street 12th floor Mountain View, CA 94041 United Sta 650−988−8500 Fax: 650−938−5200 Email: apurcell@fenwick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz Fenwick & West LLP 555 California Street, Suite 1200 San Francisco, CA 94104 415/875−2300 Fax: 415−281−1350 Email: kfritz@fenwick.com ATTORNEY TO BE NOTICED
Meghan Rhea WG+R Law Group PC 2233 Santa Clara Avenue Alameda, CA 94501 510 323−4034 Fax: 510 747−1724 Email: rhea@wgrpc.com ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman Fenwick & West LLP 801 California Street Mountain View, CA 94041 650 988−8500 Fax: 650 938−5200 Email: mzimmerman@fenwick.com ATTORNEY TO BE NOTICED
Patrick Eugene Premo

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 14 of 42

Amicus Appboy Inc.
Amicus Azavea
Amicus Checkr, Inc.

Fenwick & West LLP Silicon Valley Center 801 California Street Mountain View, CA 94041 (650) 988−8500 Fax: (650) 938−5200 Email: ppremo@fenwick.com ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 15 of 42

Amicus Chegg Inc.
Amicus Eventbrite
Amicus General Assembly

Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 16 of 42

Amicus IDEO
Amicus Knotel
Amicus Managed by Q Inc.

(See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address)

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 17 of 42

Amicus Mapbox
Amicus Marin Software
Amicus Minted LLC

ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 18 of 42

Amicus SugarCRM Inc.
Amicus Work & Co
Amicus County of Alameda

Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by Annasara Guzzo Purcell (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathryn J Fritz (See above for address) ATTORNEY TO BE NOTICED
Meghan Rhea (See above for address) ATTORNEY TO BE NOTICED
Mitchell Harris Zimmerman (See above for address) ATTORNEY TO BE NOTICED
Patrick Eugene Premo (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 19 of 42

Amicus City of Berkeley
Amicus City of Davis
Amicus City of East Palo Alto
Amicus City of Fremont
Amicus County of Marin
Amicus County of Monterey
Amicus City of Mountain View
Amicus City of Oakland
Amicus

Linda Margaret Ross Renne Public Law Group 350 Sansome Street Suite 300 San Francisco, CA 94104 (415) 848−7200 Fax: (415) 848−7230 Email: lross@publiclawgroup.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 20 of 42

City of Richmond
Amicus City of Salinas
Amicus City Of San Jose
Amicus City of Santa Cruz
Amicus City of Santa Rosa
Amicus The Superintendent of Public Instruction California Department of Education 1430 N Street ste 5318 Sacramento, CA 95814
Amicus Tahirih Justice Center, et al.
Amicus

represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Linda Margaret Ross (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Howard Prouty California Department of Education 1430 N. Street, Suite 5319 Sacramento, CA 95814−5901 (916) 319−0860 Fax: (916) 319−0155 Email: tprouty@cde.ca.gov ATTORNEY TO BE NOTICED
Todd Michael Smith CA Dept. of Education 1430 N Street Suite 5319 Sacramento, CA 95814 916−319−0860 Fax: 916−319−0155 Email: TSmith@cde.ca.gov ATTORNEY TO BE NOTICED
represented by Jamie S. Gorelick Wilmer Cutler Pickering Hale and Dorr LLP 1801 Pennsylvania Avenue NW Washington, DC 20006 202−663−6500 Email: Jamie.Gorelick@wilmerhale.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 21 of 42

Public Schools, Public School Districts, and Associations of Educators
Amicus API Council of San Francisco
Amicus California Association of Nonprofits
Amicus Coalition of Agencies Serving the Elderly
Amicus HIV/AIDS Provider Network
Amicus Homeless Emergency Service Providers Association
Amicus San Francisco Human Services Network
Amicus San Francisco Latino Parity and Equity Coalition
Amicus San Francisco Mental Health Contractors Association
Amicus Silicon Valley Council of Nonprofits

represented by Darren S. Teshima Orrick, Herrington & Sutcliffe LLP 405 Howard Street San Francisco, CA 94105 415−773−4286 Fax: 415−773−5759 Email: dteshima@orrick.com ATTORNEY TO BE NOTICED
represented by Maureen P. Alger Cooley LLP Five Palo Alto Square 3000 El Camino Real Palo Alto, CA 94306−2155 650−843−5000 Fax: 650−849−7400 Email: malger@cooley.com ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 22 of 42

Amicus Abode Services
Amicus Asian Americans for Community Involvement
Amicus Caminar
Amicus Catholic Charities of Santa Clara County
Amicus Community Solutions
Amicus Destination: Home
Amicus Fresh Lifelines for Youth
Amicus HealthRIGHT 360
Amicus The Health Trust
Amicus LifeMoves
Amicus Second Harvest Food Bank of Santa Clara and San Mateo Counties
Amicus

represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 23 of 42

Silicon Valley Independent Living Center of Santa Clara, Inc. Amicus West Valley Community Services Amicus Yu−Ai Kai Japanese American Community Senior Service Amicus San Jose/Silicon Valley NAACP
Amicus States of West Virginia, Louisiana, et al.
Amicus National Center for Lesbian Rights
Amicus Tennessee Immigrant and Refugee Rights Coalition Amicus 48 Cities and Counties

Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) ATTORNEY TO BE NOTICED
represented by Maureen P. Alger (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Sheeva June Ghassemi−Vanni Fenwick & West LLP Silicon Valley Center 801 California Street Mountain View, CA 94041 650−988−8500 Email: sghassemi@fenwick.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Thomas Michael Johnson , Jr. Office of the Attorney General of West Virginia State Capitol Complex Bldg. 1, Room E−26 Charleston, WV 25305 United Sta (304) 558−2422 Email: tjohnson@wvago.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Amy Whelan National Center for Lesbian Rights 870 Market Street Suite 370 San Francisco, CA 94102 415−392−6257 Fax: 415−392−8442 Email: awhelan@nclrights.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 24 of 42

Amicus Political Science Scholars
Amicus California Community Colleges
Amicus Administrative Law Professors

Kelly M. Dermody (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Daniel Jeffrey Shih Susman Godfrey LLP 1201 Third Ave, Suite 3800 Seattle, WA 98101−3000 206−373−7390 Email: dshih@susmangodfrey.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Robin Bradle Johansen Olson Remcho, LLP 1901 Harrison Street, Suite 1550 Oakland, CA 94612 510−346−6200 Fax: 510−574−7061 Email: rjohansen@olsonremcho.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Ann Margaret O'Leary San Francisco City Attorney's Office City Hall, Room 234 1 Dr. Carlton B. Goodlett Plac San Francisco, CA 94102 (415) 554−4661 Email: aoleary@bsfllp.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Miscellaneous City of Richmond

represented by Nancy L. Fineman Cotchett, Pitre & McCarthy LLP 840 Malcolm Road Suite 200 Burlingame, CA 94010 650−697−6000 Email: nfineman@cpmlegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Alexandra P Summer Cotchett, Pitre & McCarthy, LLP 840 Malcolm Road Suite 200 Burlingame, CA 94010 650−697−6000 Fax: 650−697−0577 Email: asummer@cpmlegal.com ATTORNEY TO BE NOTICED
Brian Danitz Cotchett, Pitre & McCarthy LLP

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 25 of 42
840 Malcolm Road, Suite 200 Burlingame, CA 94010 650−697−6000 Fax: 650−697−0577 Email: bdanitz@cpmlegal.com ATTORNEY TO BE NOTICED
Bruce Reed Goodmiller City Attorney's Office City of Richmond 450 Civic Center Plaza P.O. Box 4046 Richmond, CA 94804 510−620−6509 Fax: 510−620−6518 Email: bruce_goodmiller@ci.richmond.ca.us ATTORNEY TO BE NOTICED
Camilo Artiga−Purcell Artiga−Purcell Law Office Pier 9, Suite 100 The Embarcadero San Francisco, CA 94111 (415) 226−7651 Email: AP@ArtigaPurcell.com ATTORNEY TO BE NOTICED
Joseph W. Cotchett Cotchett Pitre & McCarthy LLP 840 Malcolm Road, Suite 200 Burlingame, CA 94010 650−697−6000 Fax: 650−697−0577 Email: jcotchett@cpmlegal.com ATTORNEY TO BE NOTICED
Rachel Hannah Sommovilla Bingham McCutchen LLP Three Embarcadero Center 18th Floor Invalid email address as of 05/09/07 San Francisco, CA 94111 415−393−2706 Fax: 415−393−2286 Email: Rachel_Sommovilla@ci.richmond.ca.us ATTORNEY TO BE NOTICED

Date Filed 02/03/2017
02/03/2017 02/03/2017 02/03/2017

# Docket Text
1 COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF against All Defendants ( Filing fee $ 400, receipt number 0971−11131103.). Filed byCounty of Santa Clara. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Civil Cover Sheet)(Keker, John) (Filed on 2/3/2017) (Entered: 02/03/2017)
2 Proposed Summons. (Keker, John) (Filed on 2/3/2017) (Entered: 02/03/2017)
3 CONSENT/DECLINATION to Proceed Before a US Magistrate Judge by County of Santa Clara.. (Keker, John) (Filed on 2/3/2017) (Entered: 02/03/2017)
5 Case assigned to Hon. Lucy H. Koh.
Counsel for plaintiff or the removing party is responsible for serving the Complaint or Notice of Removal, Summons and the assigned judge's standing orders and all other new case documents upon the opposing parties. For information, visit E−Filing A New Civil Case at http://cand.uscourts.gov/ecf/caseopening.

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 26 of 42

02/06/2017
02/06/2017 02/06/2017 02/06/2017 02/06/2017 02/06/2017 02/06/2017
02/06/2017 02/06/2017 02/06/2017 02/06/2017 02/07/2017 02/08/2017
02/10/2017 02/13/2017 02/13/2017

Standing orders can be downloaded from the court's web page at www.cand.uscourts.gov/judges. Upon receipt, the summons will be issued and returned electronically. Counsel is required to send chambers a copy of the initiating documents pursuant to L.R. 5−1(e)(7). A scheduling order will be sent by Notice of Electronic Filing (NEF) within two business days. (bwS, COURT STAFF) (Filed on 2/3/2017) (Entered: 02/06/2017)
Electronic filing error. This filing will not be processed by the clerks office due to incomplete Civil Cover Sheet. Civil Cover Sheet does not indicate selection of "Nature of Suit". Please make selection under Nature of Suit and file Amended Civil Cover Sheet as separate docket entry. Re: 1 Complaint, filed by County of Santa Clara (bwS, COURT STAFF) (Filed on 2/6/2017) (Entered: 02/06/2017)
4 Civil Cover Sheet by County of Santa Clara [AMENDED]. (Keker, John) (Filed on 2/6/2017) (Entered: 02/06/2017)
6 NOTICE of Appearance by Daniel Edward Purcell (Purcell, Daniel) (Filed on 2/6/2017) (Entered: 02/06/2017)
7 NOTICE of Appearance by Cody Shawn Harris (Harris, Cody) (Filed on 2/6/2017) (Entered: 02/06/2017)
8 NOTICE of Appearance by Nicholas Samuel Goldberg (Goldberg, Nicholas) (Filed on 2/6/2017) (Entered: 02/06/2017)
9 NOTICE of Appearance by Edward Andrew Bayley (Bayley, Edward) (Filed on 2/6/2017) (Entered: 02/06/2017)
10 Initial Case Management Scheduling Order with ADR Deadlines: This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras Case Management Statement due by 5/3/2017. Case Management Conference set for 5/10/2017 02:00 PM in Courtroom 8, 4th Floor, San Jose. (Attachments: # 1 Notice of Eligibility for Video Recording)(dhmS, COURT STAFF) (Filed on 2/6/2017) (Entered: 02/06/2017)
11 Summons Issued as to Donald J. Trump, U.S. Attorney and U.S. Attorney General (dhmS, COURT STAFF) (Filed on 2/6/2017) (Entered: 02/06/2017)
12 Summons Issued as to John F. Kelly, U.S. Attorney and U.S. Attorney General (dhmS, COURT STAFF) (Filed on 2/6/2017) (Entered: 02/06/2017)
13 Summons Issued as to Dana J Boente, U.S. Attorney and U.S. Attorney General (dhmS, COURT STAFF) (Filed on 2/6/2017) (Entered: 02/06/2017)
14 Summons Issued as to Mark Sandy, U.S. Attorney and U.S. Attorney General (dhmS, COURT STAFF) (Filed on 2/6/2017) (Entered: 02/06/2017)
15 ORDER OF RECUSAL. Signed by Magistrate Judge Susan van Keulen on 2/7/2017. (ofr, COURT STAFF) (Filed on 2/7/2017) (Entered: 02/07/2017)
16 CLERK'S NOTICE: Case Reassigned to Magistrate Judge Nathanael M. Cousins regarding Discovery Matters re 15 Order of Recusal. Magistrate Judge Susan Van Keulen no longer assigned to case.. (Please note: This is a text−only entry generated by the court. There is no document associated with this entry.) (bwS, COURT STAFF) (Filed on 2/8/2017) (Entered: 02/08/2017)
37 RELATED CASE ORDER − Signed by Judge William H. Orrick on 02/10/2017. (jmdS, COURT STAFF) (Filed on 2/10/2017) (Entered: 02/23/2017)
17 CERTIFICATE OF SERVICE by County of Santa Clara (Harris, Cody) (Filed on 2/13/2017) (Entered: 02/13/2017)
Electronic filing error. Incorrect event used. [err101]. Correct event is: Summons Service Executed. Please re−file in its entirety. Re: 17 Certificate of Service filed by County of Santa Clara (srnS, COURT STAFF) (Filed on 2/13/2017) (Entered: 02/13/2017)

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 27 of 42

02/13/2017 02/17/2017 02/17/2017 02/17/2017 02/17/2017 02/17/2017 02/17/2017 02/17/2017 02/23/2017
02/23/2017 02/23/2017 02/23/2017
02/23/2017 02/23/2017 02/23/2017 02/23/2017 02/23/2017 02/23/2017

18 SUMMONS Returned Executed by County of Santa Clara. All Defendants. (Harris, Cody) (Filed on 2/13/2017) (Entered: 02/13/2017)
19 NOTICE of Appearance by James Robyzad Williams (Williams, James) (Filed on 2/17/2017) (Entered: 02/17/2017)
20 NOTICE of Appearance by Greta Suzanne Hansen (Hansen, Greta) (Filed on 2/17/2017) (Entered: 02/17/2017)
21 NOTICE of Appearance by Danielle Luce Goldstein (Goldstein, Danielle) (Filed on 2/17/2017) (Entered: 02/17/2017)
22 NOTICE of Appearance by Kavita Kandala Narayan (Narayan, Kavita) (Filed on 2/17/2017) (Entered: 02/17/2017)
23 NOTICE of Appearance by Lawrence Javier Serrano (Serrano, Lawrence) (Filed on 2/17/2017) (Entered: 02/17/2017)
24 NOTICE of Appearance by Julia Blau Spiegel (Spiegel, Julia) (Filed on 2/17/2017) (Entered: 02/17/2017)
25 NOTICE of Appearance by Adriana Lee Benedict (Benedict, Adriana) (Filed on 2/17/2017) (Entered: 02/17/2017)
26 MOTION for Preliminary Injunction filed by County of Santa Clara. Motion Hearing set for 4/5/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Responses due by 3/9/2017. Replies due by 3/16/2017. (Attachments: # 1 Proposed Order, # 2 Certificate/Proof of Service)(Keker, John) (Filed on 2/23/2017) (Entered: 02/23/2017)
27 Declaration of Sara H. Cody, M.D. in Support of 26 MOTION for Preliminary Injunction filed byCounty of Santa Clara. (Related document(s) 26 ) (Keker, John) (Filed on 2/23/2017) (Entered: 02/23/2017)
28 Declaration of Paul E. Lorenz in Support of 26 MOTION for Preliminary Injunction filed byCounty of Santa Clara. (Related document(s) 26 ) (Keker, John) (Filed on 2/23/2017) (Entered: 02/23/2017)
29 Declaration of Miguel Marquez in Support of 26 MOTION for Preliminary Injunction filed byCounty of Santa Clara. (Attachments: # 1 Exhibit A to Declaration of Miguel Marquez, # 2 Exhibit B to Declaration of Miguel Marquez, # 3 Exhibit C to Declaration of Miguel Marquez, # 4 Exhibit D to Declaration of Miguel Marquez, # 5 Exhibit E to Declaration of Miguel Marquez, # 6 Exhibit F to Declaration of Miguel Marquez, # 7 Exhibit G to Declaration of Miguel Marquez, # 8 Exhibit H to Declaration of Miguel Marquez)(Related document(s) 26 ) (Keker, John) (Filed on 2/23/2017) (Entered: 02/23/2017)
30 Declaration of Robert Menicocci in Support of 26 MOTION for Preliminary Injunction filed byCounty of Santa Clara. (Related document(s) 26 ) (Keker, John) (Filed on 2/23/2017) (Entered: 02/23/2017)
31 Declaration of Carl Neusel in Support of 26 MOTION for Preliminary Injunction filed byCounty of Santa Clara. (Related document(s) 26 ) (Keker, John) (Filed on 2/23/2017) (Entered: 02/23/2017)
32 Declaration of Dana Reed in Support of 26 MOTION for Preliminary Injunction filed byCounty of Santa Clara. (Related document(s) 26 ) (Keker, John) (Filed on 2/23/2017) (Entered: 02/23/2017)
33 Declaration of Jeffrey F. Rosen in Support of 26 MOTION for Preliminary Injunction filed byCounty of Santa Clara. (Related document(s) 26 ) (Keker, John) (Filed on 2/23/2017) (Entered: 02/23/2017)
34 Declaration of Jeffrey V. Smith in Support of 26 MOTION for Preliminary Injunction filed byCounty of Santa Clara. (Related document(s) 26 ) (Keker, John) (Filed on 2/23/2017) (Entered: 02/23/2017)
35 Declaration of Laurie Smith in Support of 26 MOTION for Preliminary Injunction filed byCounty of Santa Clara. (Related document(s) 26 ) (Keker, John) (Filed on 2/23/2017) (Entered: 02/23/2017)

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 28 of 42

02/23/2017
02/23/2017 02/24/2017 02/24/2017 03/01/2017 03/01/2017 03/01/2017
03/06/2017
03/07/2017 03/09/2017 03/10/2017 03/13/2017 03/14/2017 03/15/2017 03/16/2017 03/16/2017

36 Declaration of Cody S. Harris in Support of 26 MOTION for Preliminary Injunction filed byCounty of Santa Clara. (Attachments: # 1 Exhibit A to Declaration of Cody S. Harris, # 2 Exhibit B to Declaration of Cody S. Harris, # 3 Exhibit C to Declaration of Cody S. Harris, # 4 Exhibit D to Declaration of Cody S. Harris)(Related document(s) 26 ) (Keker, John) (Filed on 2/23/2017) (Entered: 02/23/2017)
38 Case reassigned to Judge William H. Orrick. Judge Lucy H. Koh no longer assigned to the case. This case is assigned to a judge who participates in the Cameras in the Courtroom Pilot Project. See General Order 65 and http://cand.uscourts.gov/cameras (haS, COURT STAFF) (Filed on 2/23/2017) (Entered: 02/23/2017)
39 NOTICE of Appearance by W. Scott Simpson Counsel for Defendants (Simpson, W.) (Filed on 2/24/2017) (Entered: 02/24/2017)
40 ORDER REGARDING AMICUS BRIEFING. Signed by Judge William H. Orrick on 02/24/2017. (jmdS, COURT STAFF) (Filed on 2/24/2017) (Entered: 02/24/2017)
41 NOTICE of Appearance by William S. Freeman of ACLU Foundation of Northern California, Inc. as Counsel for Plaintiff−Intervenor Young Women's Christian Association of Silicon Valley (Freeman, William) (Filed on 3/1/2017) (Entered: 03/01/2017)
42 NOTICE of Appearance by Catherine Eugenia Moreno of Wilson Sonsini Goodrich & Rosati, PC as Counsel for Plaintiff−Intervenor Young Women's Christian Association of Silicon Valley (Moreno, Catherine) (Filed on 3/1/2017) (Entered: 03/01/2017)
43 MOTION to Intervene filed by Young Women's Christian Association of Silicon Valley. Motion Hearing set for 4/5/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Responses due by 3/15/2017. Replies due by 3/22/2017. (Attachments: # 1 Proposed Order, # 2 Complaint, # 3 Joinder, # 4 Declaration, # 5 Certificate/Proof of Service)(Freeman, William) (Filed on 3/1/2017) (Entered: 03/01/2017)
44 CASE MANAGEMENT CONFERENCE ORDER − Case Management Conference set for 5/2/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco. Case Management Statement due by 4/25/2017. Signed by Judge William H. Orrick on 03/06/2017. (jmdS, COURT STAFF) (Filed on 3/6/2017) (Entered: 03/06/2017)
45 CERTIFICATE OF SERVICE by County of Santa Clara re 44 Case Management Scheduling Order, (Harris, Cody) (Filed on 3/7/2017) (Entered: 03/07/2017)
46 OPPOSITION/RESPONSE (re 26 MOTION for Preliminary Injunction ) filed byJohn F. Kelly, Mick Mulvaney, Jefferson B. Sessions III, Donald J. Trump. (Attachments: # 1 Ltr. from Samuel R. Ramer, Acting Asst Atty Gen., Office of Legis. Affairs)(Simpson, W.) (Filed on 3/9/2017) (Entered: 03/09/2017)
47 NOTICE of Appearance by John David Loy of ACLU Foundation of San Diego & Imperial Counties as Counsel for Plaintiff−Intervenor Young Women's Christian Association of Silicon Valley (Loy, John) (Filed on 3/10/2017) (Entered: 03/10/2017)
48 NOTICE of Appearance by Julie Wilensky (Wilensky, Julie) (Filed on 3/13/2017) (Entered: 03/13/2017)
49 NOTICE of Appearance by Cody H. Wofsy (Wofsy, Cody) (Filed on 3/14/2017) (Entered: 03/14/2017)
50 OPPOSITION/RESPONSE (re 43 MOTION to Intervene ) filed byJohn F. Kelly, Mick Mulvaney, Jefferson B. Sessions III, Donald J. Trump. (Simpson, W.) (Filed on 3/15/2017) (Entered: 03/15/2017)
51 NOTICE by County of Santa Clara of Firm Name and Email Address Change (Keker, John) (Filed on 3/16/2017) (Entered: 03/16/2017)
52 REPLY (re 26 MOTION for Preliminary Injunction ) filed byCounty of Santa Clara. (Keker, John) (Filed on 3/16/2017) (Entered: 03/16/2017)

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 29 of 42

03/20/2017 03/20/2017 03/21/2017 03/21/2017 03/21/2017 03/22/2017 03/22/2017 03/22/2017 03/22/2017 03/22/2017 03/22/2017 03/22/2017
03/22/2017
03/22/2017 03/22/2017 03/22/2017

53 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−11245757.) filed by Young Women's Christian Association of Silicon Valley. (Amdur, Spencer) (Filed on 3/20/2017) Modified on 3/21/2017 (aaaS, COURT STAFF). (Entered: 03/20/2017)
54 MOTION & [PROPOSED] ORDER for leave to appear in Pro Hac Vice ( Filing fee $ 310, receipt number 0971−11245902.) filed by Young Women's Christian Association of Silicon Valley. (Jadwat, Omar) (Filed on 3/20/2017) Modified on 3/21/2017 (aaaS, COURT STAFF). (Entered: 03/20/2017)
55 NOTICE of Appearance by Andre Ivan Segura (Segura, Andre) (Filed on 3/21/2017) (Entered: 03/21/2017)
56 Order by Hon. William H. Orrick granting 53 Motion for Pro Hac Vice by Spencer Amdur. (jmdS, COURT STAFF) (Filed on 3/21/2017) (Entered: 03/21/2017)
57 Order by Hon. William H. Orrick granting 54 Motion for Pro Hac Vice by Omar C. Jadwat. (jmdS, COURT STAFF) (Filed on 3/21/2017) (Entered: 03/21/2017)
58 NOTICE of Appearance by Claire P. Prestel (Prestel, Claire) (Filed on 3/22/2017) (Entered: 03/22/2017)
59 ADMINISTRATIVE MOTION Leave to File Amicus Brief filed by Service Employees International Union, Unite Here Local 19, Working Partnerships USA. Responses due by 3/28/2017. (Attachments: # 1 Proposed Brief Amici Curiae, # 2 Proposed Order)(Prestel, Claire) (Filed on 3/22/2017) (Entered: 03/22/2017)
60 STIPULATION WITH PROPOSED ORDER re 1 Complaint, filed by John F. Kelly, Mick Mulvaney, Jefferson B. Sessions III, Donald J. Trump. (Simpson, W.) (Filed on 3/22/2017) (Entered: 03/22/2017)
61 MOTION for Leave to File Amicus Brief of 34 Cities and Counties in Support of County of Santa Clara's Motion for Preliminary Injunction filed by City of Menlo Park, City of New Orleans. (Attachments: # 1 Amicus Brief, # 2 Proposed Order Proposed Order)(Dermody, Kelly) (Filed on 3/22/2017) (Entered: 03/22/2017)
62 REPLY (re 43 MOTION to Intervene ) filed byYoung Women's Christian Association of Silicon Valley. (Freeman, William) (Filed on 3/22/2017) (Entered: 03/22/2017)
63 NOTICE of Appearance by Jayashri Srikantiah for Amici Curiae SIREN et al. (Srikantiah, Jayashri) (Filed on 3/22/2017) (Entered: 03/22/2017)
64 ADMINISTRATIVE MOTION leave to file brief amici curiae of SIREN et al. filed by Asian Law Alliance, Community Legal Services in East Palo Alto, Pangea Legal Services, Services, Immigrants' Rights, and Education Network, Silicon Valley De−Bug. Responses due by 3/27/2017. (Attachments: # 1 Proposed Brief of Amici Curiae SIREN et al., # 2 Proposed Order Granting Administrative Motion for Leave to File Brief Amici Curiae of SIREN et al.)(Srikantiah, Jayashri) (Filed on 3/22/2017) (Entered: 03/22/2017)
65 ADMINISTRATIVE MOTION for Leave to File Amici Curiae Brief filed by Individual Sheriffs and Police Chiefs. Responses due by 3/27/2017. (Attachments: # 1 Exhibit Amici Curiae Brief of Individual Sheriffs and Police Chiefs, # 2 Proposed Order Granting Leave to File Amici Curiae Brief)(Piers, Matthew) (Filed on 3/22/2017) (Entered: 03/22/2017)
66 NOTICE of Appearance by Nathan M McClellan (McClellan, Nathan) (Filed on 3/22/2017) (Entered: 03/22/2017)
67 MOTION for Leave to File Brief of Amicus Curiae filed by Southern Poverty Law Center. (Attachments: # 1 Exhibit 1 − Additional Amici, # 2 Exhibit 2 − Amicus Curiae Brief)(McClellan, Nathan) (Filed on 3/22/2017) (Entered: 03/22/2017)
68 ADMINISTRATIVE MOTION FOR LEAVE TO FILE AN AMICUS CURIAE BRIEF filed by Professors of Constitutional Law, Administrative Law, and Immigration Law. Responses due by 3/28/2017. (Attachments: # 1 Exhibit 1 Proposed Amicus Brief, # 2 Proposed Order)(Winner, Sonya) (Filed on 3/22/2017) (Entered: 03/22/2017)

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 30 of 42

03/22/2017 03/22/2017 03/22/2017 03/22/2017 03/22/2017 03/22/2017
03/22/2017 03/22/2017 03/22/2017
03/22/2017

69 MOTION for Leave to File An Amicus Curiae Brief In Support of Plaintiff's Motion for Preliminary Injunction filed by Constitutional Law Scholars. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Gewertz, Nevin) (Filed on 3/22/2017) (Entered: 03/22/2017)
70 Amicus Curiae APPEARANCE entered by Lisa Catherine Ehrlich on behalf of State of California. (Ehrlich, Lisa) (Filed on 3/22/2017) (Entered: 03/22/2017)
71 ADMINISTRATIVE MOTION Leave to file an Amicus Curiae Brief filed by State of California. Responses due by 3/27/2017. (Attachments: # 1 STATE OF CALIFORNIA'S AMICUS CURIAE BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR PRELIMINARY INJUNCTION, # 2 Proposed Order GRANTING STATE OF CALIFORNIA'S ADMINISTRATIVE MOTION FOR LEAVE TO FILE AN AMICUS BRIEF)(Ehrlich, Lisa) (Filed on 3/22/2017) (Entered: 03/22/2017)
72 MOTION to File Amicus Curiae Brief Motion for Leave to File Brief of Amicus Curiae Anti−Defamation League in Support of Plaintiff's Motion for Preliminary Injunction filed by Anti−Defamation League. Responses due by 4/5/2017. (Attachments: # 1 Brief of Amicus Curiae, # 2 Proposed Order)(Perrin, Robert) (Filed on 3/22/2017) (Entered: 03/22/2017)
73 ADMINISTRATIVE MOTION Motion for Administrative Relief to File Brief of Amici Curiae filed by Ampush Media, Inc., Appboy Inc., Azavea, Checkr, Inc., Chegg Inc., Eventbrite, General Assembly, IDEO, Knotel, Managed by Q Inc., Mapbox, Marin Software, Minted LLC, SugarCRM Inc., Work & Co. Responses due by 3/27/2017. (Attachments: # 1 Proposed Order, # 2 Exhibit A, # 3 Exhibit B)(Fritz, Kathryn) (Filed on 3/22/2017) (Entered: 03/22/2017)
74 MOTION to File Amicus Curiae Brief in Support of Motion(s) for Preliminary Injunction filed by County of Alameda, City of Berkeley, City of Davis, City of East Palo Alto, City of Fremont, County of Marin, County of Monterey, City of Mountain View, City of Oakland, City of Richmond, City of Salinas, City Of San Jose, City of Santa Cruz, City of Santa Rosa. Responses due by 4/5/2017. Replies due by 4/12/2017. (Attachments: # 1 Exhibit A (Brief of Amici Curiae California Cities and Counties), # 2 Proposed Order Granting Motion for Leave to File as Amici Curiae)(Ross, Linda) (Filed on 3/22/2017) (Entered: 03/22/2017)
75 Brief Amicus Curiae filed byThe Superintendent of Public Instruction. (Smith, Todd) (Filed on 3/22/2017) (Entered: 03/22/2017)
76 MOTION to File Amicus Curiae Brief filed by Tahirih Justice Center, et al.. Responses due by 4/5/2017. Replies due by 4/12/2017. (Attachments: # 1 Proposed Brief, Amici Curiae in Support of Petitioners, # 2 Proposed Order)(Gorelick, Jamie) (Filed on 3/22/2017) (Entered: 03/22/2017)
77 ADMINISTRATIVE MOTION , MOTION for Leave to File Amicus Curiae Brief filed by Public Schools, Public School Districts, and Associations of Educators. Responses due by 3/27/2017. (Attachments: # 1 Exhibit A: [Proposed] Brief of Amici Curiae, # 2 Declaration of Ralph G. Porras, # 3 Declaration of Erika Torres, # 4 Declaration of Ricardo Mireles, # 5 Declaration of Sonia Picos, # 6 [Proposed] Order Granting Motion to Leave)(Teshima, Darren) (Filed on 3/22/2017) (Entered: 03/22/2017)
78 MOTION to File Amicus Curiae Brief filed by API Council of San Francisco, California Association of Nonprofits, Coalition of Agencies Serving the Elderly, HIV/AIDS Provider Network, Homeless Emergency Service Providers Association, San Francisco Human Services Network, San Francisco Latino Parity and Equity Coalition, San Francisco Mental Health Contractors Association, Silicon Valley Council of Nonprofits, Abode Services, Asian Americans for Community Involvement, Caminar, Catholic Charities of Santa Clara County, Community Solutions, Destination: Home, Fresh Lifelines for Youth, HealthRIGHT 360, The Health Trust, LifeMoves, Second Harvest Food Bank of Santa Clara and San Mateo Counties, Silicon Valley Independent Living Center of Santa Clara, Inc., West Valley Community Services, Yu−Ai Kai Japanese American Community Senior Service. Motion Hearing set for 4/5/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Responses due by 4/5/2017. Replies due by 4/12/2017. (Attachments: # 1 Exhibit Brief of Silicon Valley Councel of Nonprofits, Nonprofit

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 31 of 42

03/23/2017 03/24/2017 03/24/2017 03/28/2017 03/28/2017 03/29/2017 04/03/2017
04/05/2017 04/06/2017
04/06/2017 04/07/2017

Associations, and Nonprofit Organizations as Amici Curiae in Support of Plaintiff's Motion for Preliminary Injunction, # 2 Appendix Appendix A to Motion for Leave to File Brief as Amici Curiae and Brief of Amici Curiae, # 3 Proposed Order [Proposed] Order Granting Silicon Valley Council of Nonprofits, Nonprofit Associations, and Nonprofit Organizations' Motion for Leave to File Brief as Amici Curiae)(Alger, Maureen) (Filed on 3/22/2017) (Entered: 03/22/2017)
79 ADMINISTRATIVE MOTION to Combine Oral Arguments on Preliminary Injunction Motions filed by John F. Kelly, Mick Mulvaney, Jefferson B. Sessions III, Donald J. Trump. Responses due by 3/27/2017. (Attachments: # 1 Declaration of W. Scott Simpson)(Simpson, W.) (Filed on 3/23/2017) (Entered: 03/23/2017)
80 NOTICE by John F. Kelly, Mick Mulvaney, Jefferson B. Sessions III, Donald J. Trump re 79 ADMINISTRATIVE MOTION to Combine Oral Arguments on Preliminary Injunction Motions Notice of Filing (Attachments: # 1 Proposed Order)(Simpson, W.) (Filed on 3/24/2017) (Entered: 03/24/2017)
81 OPPOSITION/RESPONSE (re 79 ADMINISTRATIVE MOTION to Combine Oral Arguments on Preliminary Injunction Motions ) filed byCounty of Santa Clara. (Keker, John) (Filed on 3/24/2017) (Entered: 03/24/2017)
82 MOTION for Leave to File Supplement Record under Local Rule 7−3(D) filed by County of Santa Clara. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Keker, John) (Filed on 3/28/2017) (Entered: 03/28/2017)
83 ORDER RESETTING HEARING DATES − Motion Hearing reset for 4/14/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Signed by Judge William H. Orrick on 03/28/2017. (jmdS, COURT STAFF) (Filed on 3/28/2017) (Entered: 03/28/2017)
84 DEFENDANT−INTERVENOR APPLICANT'S NOTICE OF MOTION AND MOTION TO INTERVENE AND MOTION TO DISQUALIFY JUDGES; filed by Kuang−Bao P. Ou−Young. Motion Hearing set for 5/3/2017 02:00 PM before Hon. William H. Orrick. Responses due by 4/12/2017. Replies due by 4/19/2017. (aaa, COURT STAFF) (Filed on 3/29/2017) (Entered: 03/29/2017)
85 Order by Hon. William H. Orrick denying 84 Motion to Intervene. Because there is no legal basis for Ou−Young's motion to intervene, and because this motion appears to be part of an effort to circumvent the pre−filing requirements to which he is subject, the Court STRIKES Ou−Youngs Motion to Disqualify Judges. Ou−Young shall file no further motions or other filings within or directed at this case or its related cases, Case No. 17−CV−00574−WHO; Case No. 17−00485−WHO; Case No. 17−CV−01535−WHO. (jmdS, COURT STAFF) (Filed on 4/3/2017) (Additional attachment(s) added on 4/3/2017: # 1 Certificate/Proof of Service) (jmdS, COURT STAFF). (Entered: 04/03/2017)
86 Letter from Fenwick & West LLP re Joinder of San Jose/Silicon Valley NAACP in Motion for Leave to File an Amicus Brief and the Proposed Brief of Amici Curiae Southern Poverty Law Center. (Ghassemi−Vanni, Sheeva) (Filed on 4/5/2017) (Entered: 04/05/2017)
87 CLERK'S NOTICE of time change as to 26 MOTION for Preliminary Injunction. Motion Hearing reset for 4/14/2017 09:00 AM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Hearing inadvertently set for motion to file amicus brief is VACATED. No oral argument is needed as to this motion. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 4/6/2017) Modified on 4/6/2017 to remove reference to hearing Motion to Intervene which had been vacated by previous order (jmdS, COURT STAFF). (Entered: 04/06/2017)
88 NOTICE of Appearance by Annasara Guzzo Purcell for Amici Curiae Technology Companies (Purcell, Annasara) (Filed on 4/6/2017) (Entered: 04/06/2017)
89 Order by Hon. William H. Orrick granting 60 Stipulation. Defendants' response to the plaintiff's complaint shall be filed no later than May 1, 2017. (jmdS, COURT STAFF) (Filed on 4/7/2017) (Entered: 04/07/2017)

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 32 of 42

04/11/2017 04/11/2017 04/13/2017 04/14/2017
04/14/2017 04/17/2017
04/17/2017 04/25/2017 04/25/2017
04/25/2017 04/28/2017 05/01/2017

90 Second MOTION for Leave to File Supplement Record Under Local Rule 7−3(D) filed by County of Santa Clara. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E)(Keker, John) (Filed on 4/11/2017) (Entered: 04/11/2017)
91 NOTICE of Appearance by W. Scott Simpson Additional Counsel for Defendants (Simpson, W.) (Filed on 4/11/2017) (Entered: 04/11/2017)
92 NOTICE of Appearance by Michael Roland Petrocelli as Counsel for Plaintiff−Intervenor Young Women's Christian Association of Silicon Valley (Petrocelli, Michael) (Filed on 4/13/2017) (Entered: 04/13/2017)
93 Minute Entry for proceedings held before Hon. William H. Orrick: Motion Hearing held on 4/14/2017 re Motions for Preliminary Injunction. Hearing conducted to the constitutionality of the Executive Order regarding sanctuary jurisdictions. A case management conference is set for April 25, 2017 at 1:30 p.m. in Case No. 3:17cv485 to discuss litigation of the Section 1373 issues, which would benefit from a more comprehensive record. Argument of counsel heard. Motions taken under submission; written order to follow. Total Time in Court 1 hour, 9 minutes. Court Reporter Name Katherine Sullivan. (jmdS, COURT STAFF) (Date Filed: 4/14/2017) (Entered: 04/14/2017)
94 TRANSCRIPT ORDER for proceedings held on April 14, 2017 before Hon. William H. Orrick by County of Santa Clara, for Court Reporter Katherine Sullivan. (Harris, Cody) (Filed on 4/14/2017) (Entered: 04/14/2017)
95 Transcript of Proceedings held on 4/14/17, before Judge William H. Orrick. Court Reporter/Transcriber Katherine Powell Sullivan, telephone number 415−794−6659. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (76 in 3:17−cv−00485−WHO) Transcript Order, (94 in 3:17−cv−00574−WHO) Transcript Order, (78 in 3:17−cv−00485−WHO) Transcript Order, (77 in 3:17−cv−00485−WHO) Transcript Order ) Redaction Request due 5/8/2017. Redacted Transcript Deadline set for 5/18/2017. Release of Transcript Restriction set for 7/17/2017. (Sullivan, Katherine) (Filed on 4/17/2017) (Entered: 04/17/2017)
96 TRANSCRIPT ORDER for proceedings held on 4/14/2017 before Hon. William H. Orrick by Young Women's Christian Association of Silicon Valley, for Court Reporter Katherine Sullivan. (Moreno, Catherine) (Filed on 4/17/2017) (Entered: 04/17/2017)
97 CLERK'S NOTICE − The start time of the Case Management Conference set for 5/2/2017 is advanced to 01:30 PM in Courtroom 2, 17th Floor, San Francisco. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 4/25/2017) (Entered: 04/25/2017)
98 ORDER GRANTING THE COUNTY OF SANTA CLARA'S AND CITY AND COUNTY OF SAN FRANCISCO'S MOTIONS TO ENJOIN SECTION 9(a) OF EXECUTIVE ORDER 13768 by Judge William H. Orrick re: (21) Motion for Preliminary Injunction in case 3:17−cv−00485−WHO and (26) Motion for Preliminary Injunction in case 3:17−cv−00574−WHO. All pending administrative motions for leave to file Amicus Briefs are also GRANTED. (jmdS, COURT STAFF) (Filed on 4/25/2017) (Entered: 04/25/2017)
99 JOINT CASE MANAGEMENT STATEMENT filed by County of Santa Clara. (Harris, Cody) (Filed on 4/25/2017) (Entered: 04/25/2017)
100 STIPULATION WITH PROPOSED ORDER re 89 Order on Stipulation filed by John F. Kelly, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump. (Simpson, W.) (Filed on 4/28/2017) (Entered: 04/28/2017)
101 Order by Hon. William H. Orrick granting 100 Stipulation. Defendants response to the plaintiffs Complaint shall be filed no later than May 8, 2017. (jmdS, COURT STAFF) (Filed on 5/1/2017) (Entered: 05/01/2017)

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 33 of 42

05/02/2017
05/03/2017 05/03/2017 05/05/2017 05/08/2017
05/09/2017 05/22/2017
05/22/2017 05/23/2017 05/23/2017 05/23/2017 05/23/2017

102 Minute Entry for proceedings held before Hon. William H. Orrick: Case Management Conference held on 5/2/2017. The hearing set for May 9, 2017 on the City of Richmond's Motion for Preliminary Injunction is VACATED. Close of Fact Discovery: 10/31/2017. Dispositive Motions to be heard by 1/10/2018. Pretrial Conference set for 4/2/2018 02:00 PM and Bench Trial set for 4/23/2018 08:00 AM before Hon. William H. Orrick, both in Courtroom 2, 17th Floor, San Francisco. FTR Time 1:32−2:01. (jmdS, COURT STAFF) (Date Filed: 5/2/2017) Modified on 5/3/2017: Matter transcribed by Leo Mankiewicz. (rjdS, COURT STAFF). (Entered: 05/03/2017)
103 TRANSCRIPT ORDER for proceedings held on 05/02/2017 before Hon. William H. Orrick by County of Santa Clara, for Court Reporter FTR − San Francisco. (Harris, Cody) (Filed on 5/3/2017) (Entered: 05/03/2017)
104 TRANSCRIPT ORDER for proceedings held on May 2, 2017 before Hon. William H. Orrick by Young Women's Christian Association of Silicon Valley, for Court Reporter FTR − San Francisco. (Moreno, Catherine) (Filed on 5/3/2017) (Entered: 05/03/2017)
105 STIPULATION WITH PROPOSED ORDER re 101 Order on Stipulation filed by John F. Kelly, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump. (Simpson, W.) (Filed on 5/5/2017) (Entered: 05/05/2017)
106 Transcript of Proceedings held on 05/02/2017, before Judge William H. Orrick. Court Reporter/Transcriber Leo T. Mankiewicz, CSR, RMR, CRR, telephone number (415) 722−7045; leomank@gmail.com. FTR 1:32 p.m. − 2:02 p.m. = 30 minutes. Per General Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (103 in 3:17−cv−00574−WHO) Transcript Order ) Redaction Request due 5/30/2017. Redacted Transcript Deadline set for 6/8/2017. Release of Transcript Restriction set for 8/7/2017. (Mankiewicz, Leo) (Filed on 5/8/2017) (Entered: 05/08/2017)
107 STIPULATION AND ORDER. Signed by Judge William H. Orrick on 05/09/2017. (jmdS, COURT STAFF) (Filed on 5/9/2017) (Entered: 05/09/2017)
108 MOTION FOR LEAVE TO FILE A MOTION FOR RECONSIDERATION OF THE COURT'S 98 ORDER OF APRIL 25, 2017; filed by John F. Kelly, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump. (Attachments: # 1 Memorandum from the Attorney General for All Department Grant−Making Components (May 22, 2017), # 2 Defendants Motion for Reconsideration or, in the Alternative, for Clarification)(Simpson, W.) (Filed on 5/22/2017) Modified on 5/24/2017 (aaaS, COURT STAFF). (Entered: 05/22/2017)
109 ORDER DENYING 43 MOTION TO INTERVENE by Hon. William H. Orrick. (jmdS, COURT STAFF) (Filed on 5/22/2017) (Entered: 05/22/2017)
110 NOTICE by John F. Kelly, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump re 108 MOTION for Leave to File Motion for Reconsideration or, in the Alternative, for Clarification (Notice of Filing) (Attachments: # 1 Proposed Order, # 2 Proposed Order)(Simpson, W.) (Filed on 5/23/2017) (Entered: 05/23/2017)
111 OPPOSITION/RESPONSE (re 108 MOTION for Leave to File Motion for Reconsideration or, in the Alternative, for Clarification ) filed byCounty of Santa Clara. (Keker, John) (Filed on 5/23/2017) (Entered: 05/23/2017)
112 ORDER GRANTING MOTION FOR LEAVE TO FILE MOTION FOR RECONSIDERATION by Judge William H. Orrick re (102) Motion for Leave to File in case 3:17−cv−00485−WHO and (108) Motion for Leave to File in case 3:17−cv−00574−WHO. (jmdS, COURT STAFF) (Filed on 5/23/2017) (Entered: 05/23/2017)
113 NOTICE OF MOTION OF MOTION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, CLARIFICATION OF THE COURT'S 98 ORDER OF APRIL 25, 2017; MEMORANDUM OF POINTS AND AUTHORITIES; filed by John F. Kelly, Mick Mulvaney, Jefferson B. Sessions, and Donald J. Trump. Motion deemed filed on 5/23/2017 per 112 Order on Motion for Leave to File. Oppositions due 6/6/2017.

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 34 of 42

06/06/2017 06/07/2017
06/09/2017
06/13/2017 06/16/2017 06/21/2017 06/23/2017 06/26/2017 06/28/2017 06/28/2017
06/28/2017
06/28/2017

(jmdS, COURT STAFF) (Filed on 5/23/2017) Modified on 5/24/2017 (aaaS, COURT STAFF). (Entered: 05/23/2017)
114 OPPOSITION/RESPONSE (re 113 MOTION for Reconsideration re 112 Order on Motion for Leave to File,,, ) filed byCounty of Santa Clara. (Keker, John) (Filed on 6/6/2017) (Entered: 06/06/2017)
115 MOTION to Dismiss filed by John F. Kelly, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump. Motion Hearing set for 7/19/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Responses due by 6/21/2017. Replies due by 6/28/2017. (Attachments: # 1 Mem. from Atty Gen. for All Dept Grant−Making Components (May 22, 2017), # 2 Proposed Order)(Simpson, W.) (Filed on 6/7/2017) (Entered: 06/07/2017)
116 CLERK'S NOTICE − Motion Hearing reset for 7/12/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick (to comply with 102 minute order). Re: 115 Motion to Dismiss in 3:17−cv−00574−WHO, 111 Motion to Dismiss in 3:17−cv−00485−WHO, and 26 MOTION to Dismiss in 3:17−cv−01535−WHO. (This is a text−only entry generated by the court. There is no document associated with this entry.) (jmdS, COURT STAFF) (Filed on 6/9/2017) (Entered: 06/09/2017)
117 REPLY (re 113 MOTION for Reconsideration re 112 Order on Motion for Leave to File,,, ) filed byJohn F. Kelly, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump. (Simpson, W.) (Filed on 6/13/2017) (Entered: 06/13/2017)
118 Joint MOTION to File Amicus Curiae Brief In Support of United States' Motion to Dismiss filed by States of West Virginia, Louisiana, et al.. Responses due by 6/30/2017. Replies due by 7/7/2017. (Attachments: # 1 Exhibit, # 2 Proposed Order)(Johnson, Thomas) (Filed on 6/16/2017) (Entered: 06/16/2017)
119 OPPOSITION/RESPONSE (re 115 MOTION to Dismiss ) filed byCounty of Santa Clara. (Keker, John) (Filed on 6/21/2017) (Entered: 06/21/2017)
120 STIPULATION WITH PROPOSED ORDER re 119 Opposition/Response to Motion filed by John F. Kelly, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump. (Simpson, W.) (Filed on 6/23/2017) (Entered: 06/23/2017)
121 ORDER continuing reply deadline re: Motions to Dismiss. Replies due by 6/29/2017. Signed by Judge William H. Orrick on 06/26/2017. (jmdS, COURT STAFF) (Filed on 6/26/2017) (Entered: 06/26/2017)
122 ADMINISTRATIVE MOTION Leave to File Amicus Brief Supporting Plaintiffs filed by Service Employees International Union, Working Partnerships USA. Responses due by 7/5/2017. (Attachments: # 1 Supplemental Amicus Brief, # 2 Proposed Order)(Prestel, Claire) (Filed on 6/28/2017) (Entered: 06/28/2017)
123 ADMINISTRATIVE MOTION for Leave to File Brief as Amicus Curiae in Support of Plaintiff's 119 Opposition to Defendants' 115 Motion to Dismiss filed by Tahirih Justice Center, et al.. Responses due by 7/3/2017. (Attachments: # 1 Exhibit 1: Proposed Brief, # 2 Exhibit 2: Proposed Order)(Gorelick, Jamie) (Filed on 6/28/2017) (Entered: 06/28/2017)
124 MOTION for Leave to File An Amicus Curiae Brief In Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss filed by Constitutional Law Scholars, Professors of Constitutional Law, Administrative Law, and Immigration Law. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Gewertz, Nevin) (Filed on 6/28/2017) (Entered: 06/28/2017)
125 ADMINISTRATIVE MOTION for Leave to File Amicus Curiae Brief filed by Adelante Alabama Worker Center, Alabama Coalition for Immigrant Justice, American Federation of Teachers, Americans for Immigrant Justice, Asian American Legal Defense and Education Fund, Asian Americans Advancing Justice − AAJC, Asian Americans Advancing Justice − Asian Law Caucus, Asian Americans Advancing Justice − Los Angeles, Asian Americans Advancing Justice−Atlanta, Coalition for Humane Immigrant Rights, Equal Rights Advocates, Florida Immigrant Coaltion, Inc, Florida Legal Services, Inc, Greater Birmingham Ministries, Greater Rochester Coalition for Immigration Justice, Illinois Coalition for Immigrant and Refugee Rights, Immigrant Legal Resource Center, Jobs With Justice, Justice in

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06/28/2017 06/28/2017 06/28/2017 06/28/2017
06/28/2017
06/28/2017 06/28/2017 06/28/2017

Motion, Latin American Legal Defense and Education Fund, LatinoJustice PRLDEF, National Employment Law Project, National Immigration Law Center, New Orleans Workers' Center for Racial Justice, Northwest Forest Worker Center, Refugee and Immigrant Center for Education and Legal Services, Safe Horizon, Southeast Immigrant Rights Network, Southern Poverty Law Center, St. Louis Workers Education Society, We Belong Together, Worker Justice Center of New York, Inc, Workers Defense Project, Worksafe, National Center for Lesbian Rights, Tennessee Immigrant and Refugee Rights Coalition. Responses due by 7/3/2017. (Attachments: # 1 Exhibit 1 − Additional Amici, # 2 Exhibit 2 − Proposed Amicus Brief)(McClellan, Nathan) (Filed on 6/28/2017) (Entered: 06/28/2017)
126 ADMINISTRATIVE MOTION leave to file brief amici curiae filed by Asian Law Alliance, Community Legal Services in East Palo Alto, Pangea Legal Services, Services, Immigrants' Rights, and Education Network, Silicon Valley De−Bug. Responses due by 7/3/2017. (Attachments: # 1 Proposed Brief of Amici Curiae, # 2 Proposed Order)(Srikantiah, Jayashri) (Filed on 6/28/2017) (Entered: 06/28/2017)
127 MOTION to File Amicus Curiae Brief Motion for Leave to File Statement of Amicus Curiae Anti−Defamation League in Support of Plaintiffs' Opposition to Defendants' Motion to Dismiss filed by Anti−Defamation League. Responses due by 7/12/2017. Replies due by 7/19/2017. (Attachments: # 1 Proposed Statement, # 2 Proposed Order)(Perrin, Robert) (Filed on 6/28/2017) (Entered: 06/28/2017)
128 ADMINISTRATIVE MOTION for Leave to File Amicus Brief re 115 MOTION to Dismiss filed by 48 Cities and Counties. Responses due by 7/3/2017. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Dermody, Kelly) (Filed on 6/28/2017) (Entered: 06/28/2017)
129 ADMINISTRATIVE MOTION for Leave to File as Amici Curiae in Opposition to Defendants' Motion to Dismiss re 115 MOTION to Dismiss filed by City Of San Jose, City of Berkeley, City of Davis, City of East Palo Alto, City of Fremont, City of Mountain View, City of Oakland, City of Richmond, City of Salinas, City of Santa Cruz, City of Santa Rosa, County of Alameda, County of Marin, County of Monterey. Responses due by 7/3/2017. (Attachments: # 1 Proposed Order)(Ross, Linda) (Filed on 6/28/2017) (Entered: 06/28/2017)
130 ADMINISTRATIVE MOTION Administrative Motion By California, Connecticut, Delaware, District Of Columbia, Illinois, Maryland, Massachusetts, New Mexico, New York, Oregon, And Washington For Leave To File An Amicus Curiae Brief In Support Of Plaintiffs Oppositions To Defendants Motions To Dismiss filed by State of California. Responses due by 7/3/2017. (Attachments: # 1 Exhibit Multi−state Amicus Curiae Brief of California et al., # 2 Proposed Order)(Ehrlich, Lisa) (Filed on 6/28/2017) (Entered: 06/28/2017)
131 ADMINISTRATIVE MOTION for Leave to File Amicus Brief filed by The Superintendent of Public Instruction. Responses due by 7/3/2017. (Attachments: # 1 Amicus Brief, # 2 Proposed Order)(Prouty, Thomas) (Filed on 6/28/2017) (Entered: 06/28/2017)
132 ADMINISTRATIVE MOTION Leave to File Amicus Brief filed by Appboy Inc., Azavea, Checkr, Inc., Chegg Inc., General Assembly, IDEO, Knotel, Mapbox, Marin Software, Minted LLC, Work & Co. Responses due by 7/3/2017. (Attachments: # 1 Exhibit 1 − Amicus Brief, # 2 Exhibit 2 − Proposed Order)(Premo, Patrick) (Filed on 6/28/2017) (Entered: 06/28/2017)
133 MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE IN SUPPORT OF PLAINTIFF'S 119 OPPOSITION TO DEFENDANTS' MOTION TO DISMISS; filed by API Council of San Francisco, Abode Services, Asian Americans for Community Involvement, California Association of Nonprofits, Caminar, Catholic Charities of Santa Clara County, Coalition of Agencies Serving the Elderly, Community Solutions, Destination: Home, Fresh Lifelines for Youth, HIV/AIDS Provider Network, HealthRIGHT 360, Homeless Emergency Service Providers Association, LifeMoves, San Francisco Human Services Network, San Francisco Latino Parity and Equity Coalition, San Francisco Mental Health Contractors Association, San Jose/Silicon Valley NAACP, Second Harvest Food Bank of Santa Clara and San Mateo Counties, Silicon Valley Independent Living Center of Santa Clara, Inc., The Health Trust, West Valley Community Services, Yu−Ai Kai Japanese American Community Senior

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06/28/2017 06/28/2017 06/29/2017 07/03/2017 07/06/2017
07/07/2017
07/07/2017 07/12/2017 07/12/2017
07/13/2017 07/14/2017

Service. (Attachments: # 1 Exhibit Brief of Silicon Valley Council of Nonprofits, Nonprofit Associations, and Nonprofit Organizations as Amici Curiae in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss, # 2 Appendix Appendix A, # 3 Proposed Order Proposed Order Granting Silicon Valley Council of Nonprofits, Nonprofit Associations, and NonProfit Organizations' Motion for Leave to File Brief as Amici Curiae)(Alger, Maureen) (Filed on 6/28/2017) Modified on 6/30/2017 (aaaS, COURT STAFF). (Entered: 06/28/2017)
134 ADMINISTRATIVE MOTION Leave to File Amicus Brief filed by Individual Sheriffs and Police Chiefs. Responses due by 7/3/2017. (Attachments: # 1 Proposed Brief, # 2 Proposed Order)(Piers, Matthew) (Filed on 6/28/2017) (Entered: 06/28/2017)
135 MOTION for Leave to File Supplemental Brief of Amici Curiae filed by Public Schools, Public School Districts, and Associations of Educators. (Attachments: # 1 Exhibit A: [Proposed] Supplemental Brief of Amici Curiae, # 2 [Proposed] Order Granting Motion Leave)(Teshima, Darren) (Filed on 6/28/2017) (Entered: 06/28/2017)
136 REPLY (re 115 MOTION to Dismiss ) filed byJohn F. Kelly, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump. (Simpson, W.) (Filed on 6/29/2017) (Entered: 06/29/2017)
137 STIPULATION WITH PROPOSED ORDER re 116 Clerk's Notice,, Set Motion and Deadlines/Hearings, filed by John F. Kelly, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump. (Simpson, W.) (Filed on 7/3/2017) (Entered: 07/03/2017)
138 MOTION for Leave to File A SURREPLY IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS filed by County of Santa Clara. (Attachments: # 1 Exhibit 1 − SURREPLY IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS, # 2 Exhibit A TO SURREPLY, # 3 Exhibit B TO SURREPLY, # 4 Exhibit C TO SURREPLY, # 5 Exhibit C TO SURREPLY, # 6 Proposed Order)(Keker, John) (Filed on 7/6/2017) (Entered: 07/06/2017)
139 Joinder re 138 MOTION for Leave to File A SURREPLY IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS by City of Richmond. (Attachments: # 1 Proposed Order GRANTING PLAINTIFF CITY OF RICHMOND'S NOTICE OF JOINDER AND JOINDER IN PLAINTIFF COUNTY OF SANTA CLARA'S (1) MOTION FOR LEAVE TO FILE A SURREPLY AND (2) SURREPLY IN OPPOSITION TO DEFENDANTS' MOTION TO DISMISS AND PLAINTIFF RICHMOND'S JOINDER IN CITY AND COUNTY OF SAN FRANCISCO'S SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF OPPOSITION TO DEFENDANTS' MOTION TO DISMISS)(Fineman, Nancy) (Filed on 7/7/2017) (Entered: 07/07/2017)
140 NOTICE of Appearance by W. Scott Simpson Additional Counsel for Defendants (Simpson, W.) (Filed on 7/7/2017) (Entered: 07/07/2017)
141 TRANSCRIPT ORDER for proceedings held on 7/12/2017 before Hon. William H. Orrick by John F. Kelly, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump, for Court Reporter Katherine Sullivan. (Simpson, W.) (Filed on 7/12/2017) (Entered: 07/12/2017)
142 Minute Entry for proceedings held before Hon. William H. Orrick: Motion Hearing held on 7/12/2017 re (26 in 3:17−cv−01535−WHO) MOTION to Dismiss, (115 in 3:17−cv−00574−WHO) MOTION to Dismiss, (107 in 3:17−cv−00485−WHO) MOTION for Reconsideration (111 in 3:17−cv−00485−WHO). Motions taken under submission; written order(s) to follow. Total Time in Court 34 minutes. Court Reporter Name Katherine Sullivan. (jmdS, COURT STAFF) (Date Filed: 7/12/2017) (Entered: 07/12/2017)
143 TRANSCRIPT ORDER for proceedings held on 7/12/2017 before Hon. William H. Orrick by County of Santa Clara, for Court Reporter Katherine Sullivan. (Harris, Cody) (Filed on 7/13/2017) (Entered: 07/13/2017)
144 Transcript of Proceedings held on 7/12/17, before Judge William H. Orrick. Court Reporter/Transcriber Katherine Powell Sullivan, telephone number 415−794−6659. Per General Order No. 59 and Judicial Conference policy, this transcript may be

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 37 of 42

07/20/2017
08/03/2017 08/04/2017 08/16/2017
08/23/2017 08/25/2017 08/30/2017 08/30/2017 08/30/2017 08/30/2017 08/30/2017 08/30/2017

viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (38 in 3:17−cv−01535−WHO) Transcript Order, (141 in 3:17−cv−00485−WHO) Transcript Order, (141 in 3:17−cv−00574−WHO) Transcript Order, (140 in 3:17−cv−00485−WHO) Transcript Order ) Redaction Request due 8/4/2017. Redacted Transcript Deadline set for 8/14/2017. Release of Transcript Restriction set for 10/12/2017. (Sullivan, Katherine) (Filed on 7/14/2017) (Entered: 07/14/2017)
145 ORDER DENYING THE GOVERNMENT'S MOTIONS FOR RECONSIDERATION AND TO DISMISS WITH REGARDS TO THE CITY AND COUNTY OF SAN FRANCISCO AND THE COUNTY OF SANTA CLARA by Judge William H. Orrick denying (107) Motion for Reconsideration and (111) Motion to Dismiss in case 3:17−cv−00485−WHO and denying (113) Motion for Reconsideration and (115) Motion to Dismiss in case 3:17−cv−00574−WHO. (jmdS, COURT STAFF) (Filed on 7/20/2017) (Entered: 07/20/2017)
146 STIPULATION WITH PROPOSED ORDER re 145 Order on Motion for Reconsideration,, Order on Motion to Dismiss,,,,, filed by John F. Kelly, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump. (Simpson, W.) (Filed on 8/3/2017) (Entered: 08/03/2017)
147 ORDER REGARDING DEADLINE TO ANSWER by Hon. William H. Orrick granting 147 Stipulation in case 3:17−cv−00485−WHO. Associated Cases: 3:17−cv−00485−WHO, 3:17−cv−00574−WHO. (jmdS, COURT STAFF) (Filed on 8/4/2017) (Entered: 08/04/2017)
148 ANSWER to 1 Complaint ; by John F. Kelly, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump. (Attachments: # 1 Department of Homeland Security, Immigration Detainer − Notice Of Action, DHS Form I−247A (3/17), # 2 Office of Justice Programs Guidance Regarding Compliance with 8 U.S.C. § 1373, # 3 Office of Justice Programs, Additional Guidance Regarding Compliance with 8 U.S.C. § 1373)(Simpson, W.) (Filed on 8/16/2017) Modified on 8/17/2017 (aaaS, COURT STAFF). (Entered: 08/16/2017)
149 NOTICE of Appearance by Jennifer Lori Stark for Amici Curiae SIREN, et al. (Stark, Jennifer) (Filed on 8/23/2017) (Entered: 08/23/2017)
150 RELATED CASE ORDER. Case No. 3:17cv4701 will be reassigned and related. Signed by Judge William H. Orrick on 08/25/2017. (jmdS, COURT STAFF) (Filed on 8/25/2017) (Entered: 08/25/2017)
151 MOTION for Summary Judgment filed by County of Santa Clara. Motion Hearing set for 10/4/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. Responses due by 9/13/2017. Replies due by 9/20/2017. (Attachments: # 1 Proposed Order)(Keker, John) (Filed on 8/30/2017) (Entered: 08/30/2017)
152 Declaration of JEFFREY ROSEN in Support of 151 MOTION for Summary Judgment filed byCounty of Santa Clara. (Related document(s) 151 ) (Keker, John) (Filed on 8/30/2017) (Entered: 08/30/2017)
153 Declaration of CARL NEUSEL in Support of 151 MOTION for Summary Judgment filed byCounty of Santa Clara. (Related document(s) 151 ) (Keker, John) (Filed on 8/30/2017) (Entered: 08/30/2017)
154 Declaration of DANA REED in Support of 151 MOTION for Summary Judgment filed byCounty of Santa Clara. (Related document(s) 151 ) (Keker, John) (Filed on 8/30/2017) (Entered: 08/30/2017)
155 Declaration of JEFFREY SMITH in Support of 151 MOTION for Summary Judgment filed byCounty of Santa Clara. (Related document(s) 151 ) (Keker, John) (Filed on 8/30/2017) (Entered: 08/30/2017)
156 Declaration of LAURIE SMITH in Support of 151 MOTION for Summary Judgment filed byCounty of Santa Clara. (Related document(s) 151 ) (Keker, John) (Filed on

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 38 of 42

08/30/2017 08/30/2017 08/30/2017 08/30/2017 08/30/2017
09/07/2017 09/11/2017 09/11/2017
09/18/2017
09/20/2017 09/21/2017

8/30/2017) (Entered: 08/30/2017)
157 Declaration of PAUL LORENZ in Support of 151 MOTION for Summary Judgment filed byCounty of Santa Clara. (Related document(s) 151 ) (Keker, John) (Filed on 8/30/2017) (Entered: 08/30/2017)
158 Declaration of ROBERT MENICOCCI in Support of 151 MOTION for Summary Judgment filed byCounty of Santa Clara. (Related document(s) 151 ) (Keker, John) (Filed on 8/30/2017) (Entered: 08/30/2017)
159 Declaration of SARA CODY, M.D. in Support of 151 MOTION for Summary Judgment filed byCounty of Santa Clara. (Related document(s) 151 ) (Keker, John) (Filed on 8/30/2017) (Entered: 08/30/2017)
160 Declaration of MIGUEL MARQUEZ in Support of 151 MOTION for Summary Judgment filed byCounty of Santa Clara. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Related document(s) 151 ) (Keker, John) (Filed on 8/30/2017) (Entered: 08/30/2017)
161 Request for Judicial Notice re 151 MOTION for Summary Judgment filed byCounty of Santa Clara. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X, # 25 Exhibit Y, # 26 Exhibit Z, # 27 Exhibit AA)(Related document(s) 151 ) (Keker, John) (Filed on 8/30/2017) (Entered: 08/30/2017)
162 MOTION for Extension of Time to File Response/Reply as to 151 MOTION for Summary Judgment filed by Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump, Elaine C. Duke. (Attachments: # 1 Declaration of W. Scott Simpson)(Simpson, W.) (Filed on 9/7/2017) (Entered: 09/07/2017)
163 OPPOSITION/RESPONSE (re 162 MOTION for Extension of Time to File Response/Reply as to 151 MOTION for Summary Judgment ) filed byCounty of Santa Clara. (Attachments: # 1 Declaration of Danielle L. Goldstein In Support of Opposition)(Keker, John) (Filed on 9/11/2017) (Entered: 09/11/2017)
164 ORDER CONDITIONALLY GRANTING DEFENDANTS' MOTION FOR ENLARGEMENT OF TIME re (Dkt. 164 in 3:17−cv−00485−WHO and Dkt. 162 in 3:17−cv−00574−WHO). Deadlines and hearings continued as to (158) MOTION for Summary Judgment and (151) MOTION for Summary Judgment. Responses due by 9/27/2017. Replies due by 10/4/2017. Motion Hearing reset for 10/18/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Hon. William H. Orrick. If defendants do not wish to delay their stay request, they should file their opposition as scheduled and the current dates for the reply (September 20) and hearing (October 4) will remain. Signed by Judge William H. Orrick on 09/11/2017. (jmdS, COURT STAFF) (Filed on 9/11/2017) (Entered: 09/11/2017)
165 NOTICE OF APPEAL to the 9th Circuit Court of Appeals filed by Elaine C. Duke, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump. Appeal of Order on Motion for Preliminary Injunction,, Order on Administrative Motion per Civil Local Rule 7−11,,,, Order on Motion for Leave to File,,,, Order on Motion to File Amicus Curiae Brief,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 98 , Order on Motion for Reconsideration,, Order on Motion to Dismiss,,,,, 145 (Appeal fee FEE WAIVED.) (Simpson, W.) (Filed on 9/18/2017) (Additional attachment(s) added on 9/20/2017: # 1 USCA NUMBER 17−16887) (aaaS, COURT STAFF). (Entered: 09/18/2017)
166 USCA Case Number 17−16887 for 165 Notice of Appeal, filed by Jefferson B. Sessions, Elaine C. Duke, Mick Mulvaney, Donald J. Trump. (aaaS, COURT STAFF) (Filed on 9/20/2017) (Entered: 09/20/2017)
167 NOTICE of Change In Counsel by Maureen P. Alger (Alger, Maureen) (Filed on 9/21/2017) (Entered: 09/21/2017)

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09/27/2017 10/02/2017 10/04/2017 10/04/2017 10/04/2017 10/04/2017
10/04/2017 10/04/2017
10/11/2017 10/11/2017
10/13/2017 10/23/2017 10/30/2017

168 OPPOSITION/RESPONSE (re 151 MOTION for Summary Judgment ) filed byElaine C. Duke, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump. (Attachments: # 1 Mem. from Atty Gen. for All Dept Grant−Making Components (May 22, 2017), # 2 Brief for Amici Curiae, United States v. Texas, 136 S. Ct. 2271 (2016) (No. 15−674), 2016 WL 891345)(Simpson, W.) (Filed on 9/27/2017) (Entered: 09/27/2017)
169 ADMINISTRATIVE MOTION for Leave to File Amicus Brief re 151 MOTION for Summary Judgment filed by Political Science Scholars. Responses due by 10/6/2017. (Attachments: # 1 Exhibit (Proposed Amicus Brief), # 2 Proposed Order)(Shih, Daniel) (Filed on 10/2/2017) (Entered: 10/02/2017)
170 REPLY (re 151 MOTION for Summary Judgment ) filed byCounty of Santa Clara. (Keker, John) (Filed on 10/4/2017) (Entered: 10/04/2017)
171 Request for Judicial Notice re 170 Reply to Opposition/Response Re Plaintiff's Motion for Summary Judgment filed byCounty of Santa Clara. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Related document(s) 170 ) (Keker, John) (Filed on 10/4/2017) (Entered: 10/04/2017)
172 MOTION to File Amicus Curiae Brief of National Center for Lesbian Rights, et al. filed by National Center for Lesbian Rights. Motion Hearing set for 10/18/2017 02:00 PM before Judge William H. Orrick. Responses due by 10/18/2017. Replies due by 10/25/2017. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Whelan, Amy) (Filed on 10/4/2017) (Entered: 10/04/2017)
173 MOTION to File Amicus Curiae Brief in Support of Plaintiffs' Motions for Summary Judgment filed by California Community Colleges. Motion Hearing set for 10/18/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Judge William H. Orrick. Responses due by 10/18/2017. Replies due by 10/25/2017. (Attachments: # 1 Proposed Amicus Curiae Brief, # 2 Proposed Order)(Johansen, Robin) (Filed on 10/4/2017) (Entered: 10/04/2017)
174 ADMINISTRATIVE MOTION for Leave to File Brief as Amici Curiae In Support of Plaintiffs' Motions for Summary Judgment filed by County of Santa Clara. Responses due by 10/10/2017. (Attachments: # 1 Appendix A, # 2 Exhibit A, # 3 Proposed Order)(Taylor, Jennifer) (Filed on 10/4/2017) (Entered: 10/04/2017)
175 MOTION for Leave to File AMICI CURIAE BRIEF OF ADMINISTRATIVE LAW PROFESSORS IN SUPPORT OF PLAINTIFFS MOTIONS FOR SUMMARY JUDGMENT filed by Administrative Law Professors. (Attachments: # 1 AMICI CURIAE BRIEF OF ADMINISTRATIVE LAW PROFESSORS IN SUPPORT OF PLAINTIFFS MOTIONS FOR SUMMARY JUDGMENT, # 2 Proposed Order)(O'Leary, Ann) (Filed on 10/4/2017) (Entered: 10/04/2017)
176 STIPULATION WITH PROPOSED ORDER re 164 Order,,, Terminate Motions,,, Set Motion and Deadlines/Hearings,, filed by Elaine C. Duke, Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump. (Simpson, W.) (Filed on 10/11/2017) (Entered: 10/11/2017)
177 STIPULATION AND ORDER REGARDING ORAL ARGUMENT − Reset Hearing as to (158 in 3:17−cv−00485−WHO) MOTION for Summary Judgment and (151 in 3:17−cv−00574−WHO) MOTION for Summary Judgment. Motion Hearing set for 10/23/2017 02:00 PM in Courtroom 2, 17th Floor, San Francisco before Judge William H. Orrick. Signed by Judge William H. Orrick on 10/11/2017. (jmdS, COURT STAFF) (Filed on 10/11/2017) (Entered: 10/11/2017)
178 NOTICE of Change of Address by Nathan M McClellan , Fred Magaziner, and Christopher S Burrichter (McClellan, Nathan) (Filed on 10/13/2017) (Entered: 10/13/2017)
179 Minute Entry for proceedings held before Judge William H. Orrick: Motion Hearing held on 10/23/2017 re Motions for Summary Judgment. Argument of counsel heard. Written order to follow. Total Time in Court: 49 minutes. Court Reporter: Pamela Batalo. (jmdS, COURT STAFF) (Date Filed: 10/23/2017) (Entered: 10/25/2017)
180 Transcript of Proceedings held on 10/23/17, before Judge Orrick. Court Reporter Pamela A. Batalo, telephone number pamela_batalo@cand.uscourts.gov. Per General

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11/17/2017
11/20/2017 11/22/2017 12/14/2017
02/28/2018
02/28/2018 08/07/2018 09/26/2018
11/08/2018
11/29/2018 12/03/2018
01/08/2019

Order No. 59 and Judicial Conference policy, this transcript may be viewed only at the Clerk's Office public terminal or may be purchased through the Court Reporter/Transcriber until the deadline for the Release of Transcript Restriction. After that date it may be obtained through PACER. Any Notice of Intent to Request Redaction, if required, is due no later than 5 business days from date of this filing. (Re (189 in 3:17−cv−00485−WHO) Transcript Order ) Redaction Request due 11/20/2017. Redacted Transcript Deadline set for 11/30/2017. Release of Transcript Restriction set for 1/29/2018. (Batalo, Pam) (Filed on 10/30/2017) (Entered: 10/30/2017)
181 Request for Judicial Notice re 151 MOTION for Summary Judgment SECOND SUPPLEMENTAL REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF THE COUNTY OF SANTA CLARA'S MOTION FOR SUMMARY JUDGMENT filed byCounty of Santa Clara. (Related document(s) 151 ) (Keker, John) (Filed on 11/17/2017) (Entered: 11/17/2017)
182 Order by Judge William H. Orrick granting 151 Motion for Summary Judgment. The defendants are permanently enjoined from enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions. (jmdS, COURT STAFF) (Filed on 11/20/2017) (Entered: 11/20/2017)
183 JUDGMENT. Signed by Judge William H. Orrick on 11/22/2017. (jmdS, COURT STAFF) (Filed on 11/22/2017) (Entered: 11/22/2017)
184 NOTICE OF APPEAL to the 9th Circuit Court of Appeals; filed by Mick Mulvaney, Jefferson B. Sessions, Donald J. Trump, Kirstjen Nielsen. Appeal of 182 Order & Judgment, Terminated Case 183 ; (Appeal fee FEE WAIVED.) (Simpson, W.) (Filed on 12/14/2017) Modified on 12/15/2017 (aaaS, COURT STAFF). (Entered: 12/14/2017)
185 MANDATE of USCA The judgment of this Court, entered January 04,2018, takes effect this date. This constitutes the formal mandate of this Court. FOR THE COURT; as to 165 Notice of Appeal,, filed by Jefferson B. Sessions, Elaine C. Duke, Mick Mulvaney, Donald J. Trump (aaaS, COURT STAFF) (Filed on 2/28/2018) (Entered: 02/28/2018)
186 CLERK'S Letter Spreading Mandate to Counsel re 185 USCA Mandate (aaaS, COURT STAFF) (Filed on 2/28/2018) (Entered: 02/28/2018)
187 USCA Opinion; as to 165 Notice of Appeal, filed by Jefferson B. Sessions, Elaine C. Duke, Mick Mulvaney, Donald J. Trump (aaaS, COURT STAFF) (Filed on 8/7/2018) (Entered: 08/07/2018)
188 MANDATE of USCA The judgment of this Court, entered August 01,2018, takes effect this date. This constitutes the formal mandate of this Court. FOR THE COURT; as to 184 Notice of Appeal, filed by Jefferson B. Sessions, Mick Mulvaney, Kirstjen Nielsen, Donald J. Trump, 165 Notice of Appeal, filed by Jefferson B. Sessions, Elaine C. Duke, Mick Mulvaney, Donald J. Trump Re USCA Number 17−17480 (aaaS, COURT STAFF) (Filed on 9/26/2018) (Entered: 09/26/2018)
189 ORDER SETTING CASE MANAGEMENT CONFERENCE − Case Management Statement due by 12/4/2018. Case Management Conference set for 12/11/2018 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Signed by Judge William H. Orrick on 11/8/2018. (jmdS, COURT STAFF) (Filed on 11/8/2018) (Entered: 11/08/2018)
190 NOTICE of Change In Counsel by Danielle Luce Goldstein (Goldstein, Danielle) (Filed on 11/29/2018) (Entered: 11/29/2018)
191 ORDER REGARDING SCHEDULING OF CASE MANAGEMENT CONFERENCE − Case Management Statement due by 1/15/2019. Further Case Management Conference set for 1/22/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Signed by Judge William H. Orrick on 12/3/2018. (jmdS, COURT STAFF) (Filed on 12/3/2018) (Entered: 12/03/2018)
192 STIPULATION WITH PROPOSED ORDER Regarding Scheduling of Case Management Conference filed by County of Santa Clara. (Goldstein, Danielle) (Filed on 1/8/2019) (Entered: 01/08/2019)

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01/09/2019 03/18/2019 03/21/2019
04/11/2019 04/16/2019
04/25/2019 05/03/2019 05/10/2019 05/14/2019 05/17/2019
06/04/2019 07/30/2019 08/02/2019

193 Order by Judge William H. Orrick granting 192 Stipulation. Case Management Conference continued to 3/26/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Case Management Statement due by 3/19/2019. (jmdS, COURT STAFF) (Filed on 1/9/2019) (Entered: 01/09/2019)
194 STIPULATION WITH PROPOSED ORDER filed by County of Santa Clara. (Goldstein, Danielle) (Filed on 3/18/2019) (Entered: 03/18/2019)
195 STIPULATION AND ORDER REGARDING SCHEDULING OF CASE MANAGEMENT CONFERENCE Motions terminated: (194 in 3:17−cv−00574−WHO) STIPULATION and (223 in 3:17−cv−00485−WHO) STIPULATION. Case Management Statement due by 4/16/2019. Further Case Management Conference set for 4/23/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Signed by Judge William H. Orrick on 03/21/2019. (jmdS, COURT STAFF) (Filed on 3/21/2019) (Entered: 03/21/2019)
196 STIPULATION WITH PROPOSED ORDER re 195 Stipulation and Order,, Set Deadlines/Hearings,, Terminate Motions,, Terminate Deadlines and Hearings, Regarding Scheduling of Case Management Conference filed by Mick Mulvaney, Donald J. Trump, Kevin K. McAleenan, William P. Barr. (Simpson, W.) (Filed on 4/11/2019) (Entered: 04/11/2019)
197 Order Regarding Scheduling of Case Management Conference by Judge William H. Orrick granting 196 Stipulation. Case Management Statement due by 5/14/2019. Further Case Management Conference set for 5/21/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. (jmdS, COURT STAFF) (Filed on 4/16/2019) Modified on 5/10/2019 to correct CMC date. (jmdS, COURT STAFF). (Entered: 04/16/2019)
198 NOTICE of Substitution of Counsel by Daniel D. Mauler and withdrawal of W. Scott Simpson as counsel for Defendants (Mauler, Daniel) (Filed on 4/25/2019) (Entered: 04/25/2019)
199 NOTICE of Change In Counsel by Danielle Luce Goldstein (Goldstein, Danielle) (Filed on 5/3/2019) (Entered: 05/03/2019)
Reset Hearing − Case Management Conference date corrected to 5/21/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. (jmdS, COURT STAFF) (Filed on 5/10/2019) (Entered: 05/10/2019)
200 CASE MANAGEMENT STATEMENT (Joint Statement, Stipulation, and Proposed Order, on behalf of Plaintiffs and Defendants) filed by William P. Barr, Kevin K. McAleenan, Mick Mulvaney, Donald J. Trump. (Mauler, Daniel) (Filed on 5/14/2019) (Entered: 05/14/2019)
201 STIPULATION AND ORDER REGARDING SCHEDULING OF CASE MANAGEMENT CONFERENCE. Further Case Management Conference continued to 8/6/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Case Management Statement due by 7/30/2019. Signed by Judge William H. Orrick on 05/17/2019. (jmdS, COURT STAFF) (Filed on 5/17/2019) (Entered: 05/17/2019)
202 NOTICE by Ampush Media, Inc., Appboy Inc., Azavea, Checkr, Inc., Chegg Inc., Eventbrite, General Assembly, IDEO, Knotel, Managed by Q Inc., Mapbox, Marin Software, Minted LLC, SugarCRM Inc., Work & Co Notice of Disassociation of Counsel (Fritz, Kathryn) (Filed on 6/4/2019) (Entered: 06/04/2019)
203 CASE MANAGEMENT STATEMENT (Joint Statement on behalf of Plaintiffs and Defendants) filed by William P. Barr, Dana J. Boente, Elaine C. Duke, John F. Kelly, Kevin K. McAleenan, Mick Mulvaney, Kirstjen Nielsen, Jefferson B. Sessions, Donald J. Trump. (Mauler, Daniel) (Filed on 7/30/2019) (Entered: 07/30/2019)
204 ORDER re (232 in 3:17−cv−00485−WHO) Continuing Case Management Conference and related deadlines. Case Management Statement or proposed judgment due by 8/13/2019. Case Management Conference continued to 8/20/2019 02:00 PM in San Francisco, Courtroom 02, 17th Floor. Signed by Judge Wi on 08/02/2019. (jmdS, COURT STAFF) (Filed on 8/2/2019) (Entered: 08/02/2019)

Case: 3:17-cv-00574-WHO As of: 02/17/2020 10:07 PM PST 42 of 42

08/13/2019 08/23/2019

205 STIPULATION WITH PROPOSED ORDER re Final Judgment filed by County of Santa Clara. (Serrano, Lawrence) (Filed on 8/13/2019) (Entered: 08/13/2019)
206 FINAL JUDGMENT AND ORDER by Judge William H. Orrick granting 205 Stipulation. (jmdS, COURT STAFF) (Filed on 8/23/2019) (Entered: 08/23/2019)

 
 OFFICE OF THE COUNTY COUNSEL COUNTY OF SANTA CLARA

James R. Williams COUNTY COUNSEL

County Government Center 70 West Hedding Street East Wing, 9th Floor San Jose, California 95110-1770
(408) 299-5900 (408) 292-7240 (FAX)

Greta S. Hansen
CHIEF ASSISTANT COUNTY COUNSEL
Winifred Botha Danny Y. Chou Robert M. Coelho
Steve Mitra
ASSISTANT COUNTY COUNSEL

Updated on February 23, 2017
FAQs ON COUNTY OF SANTA CLARA LAWSUIT CHALLENGING EXECUTIVE ORDER ON “SANCTUARY JURISDICTIONS”
On February 3, 2017, the County filed a federal lawsuit against President Donald Trump and members of his administration challenging his January 25, 2017 Executive Order through which he intends to deny all federal funding to any state or local government that he deems fails to comply with his aggressive immigration enforcement plan. The lawsuit challenges the President’s authority to unilaterally impose conditions on federal funds—a power the Constitution places exclusively in the hands of Congress—as well as the blanket denial of all federal funds, the vast majority of which have no connection to immigration or law enforcement.
On February 23, 2017, the County moved for a preliminary injunction to prevent the Trump Administration from enforcing the Executive Order.
Q: Which Executive Order does the lawsuit challenge?
A: The lawsuit challenges Executive Order 13768, issued on January 25, 2017, entitled “Enhancing Public Safety in the Interior of the United States.” This Executive Order targets socalled “sanctuary jurisdictions,” and is distinct from an executive order issued two days later regarding travel restrictions for refugees, visa-holders, and other individuals entering the United States from certain Muslim-majority countries.
Q: What does the Executive Order do?
A: The Executive Order declares that it is the policy of the Trump Administration to ensure that “sanctuary jurisdictions” are stripped of all federal funds. The Executive Order does not define what entities are “sanctuary jurisdictions.” Instead, it seeks to grant executive branch officials unlimited discretion to deny federal funds to states, cities, counties, and other local governments they deem to be “sanctuary jurisdictions,” and to also take unspecified enforcement actions against them.
Q: Why is the County bringing a lawsuit now?
A: The County is suing to prevent the Trump Administration from stripping the County of all federal funding, and to enable the County to continue to provide uninterrupted healthcare, public safety and other critical services to its residents. The Executive Order violates the United States

FAQs On County of Santa Clara Lawsuit Challenging Executive Order on “Sanctuary Jurisdictions”
Constitution, directly harms the County’s rights as a political subdivision of the State of California, and threatens the loss of nearly $1.7 billion in federal and federally dependent funds that are used to provide essential services. Because the vast majority of the County’s federal funding is provided on a reimbursement basis, the County is required to spend its own money first and make fiscal decisions far in advance of receiving federal dollars. President Trump has threatened to withhold federal funds from jurisdictions that do not agree to comply with this illegal Order. Under the Constitution, the President does not have the authority to take away federal funding as a weapon to coerce state and local governments to undertake federal responsibilities. For these reasons, the County Board of Supervisors voted unanimously to bring a lawsuit to protect the County and its residents from this unconstitutional Executive Order.
Q: Who are the parties in the lawsuit?
A: The County is the Plaintiff in the lawsuit. The Defendants are President Trump and his senior officials, including the Secretary of Homeland Security, the Attorney General, and the Director of the Office of Management and Budget (OMB). The lawsuit is being litigated by the Office of the County Counsel in partnership with the law firm of Keker, Van Nest & Peters LLP, which is representing the County pro bono (free of charge).
Q: What is at stake in the lawsuit?
A: Cutting all federal funds currently provided to the County would not only adversely affect all County residents who rely on County medical services, including trauma care, emergency medical services, law enforcement services, but would also have a devastating impact on infants, children, families, and seniors in need of health care, nutritious food, and housing support. The purpose of the lawsuit is to stop the Trump Administration’s unconstitutional effort to coerce the County to act as an enforcer of the Trump Administration’s federal immigration policy priorities or be stripped of all federal funds.
Q: What federal funds does the County receive?
A: The County receives about $1.7 billion in federal and federally contingent funds each year. These federal funds support a diverse array of essential services and programs for all County residents, including: Santa Clara Valley Medical Center, the only safety net hospital in Santa Clara County; administration of key federal entitlement programs such as Medicaid, Temporary Assistance for Needy Families, and the Supplemental Nutrition Assistance Program; foster care, adoption assistance, and guardianship placements; basic food and nutrition needs for infants, children, families and seniors; housing and community development; highway planning and construction; and security, intelligence, and counter-terrorism efforts.
Q: What are the causes of action in the lawsuit?
A: The lawsuit asserts four causes of action: a violation of the Separation of Powers; two violations of Due Process under the Fifth Amendment; and a violation of the Tenth Amendment.
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FAQs On County of Santa Clara Lawsuit Challenging Executive Order on “Sanctuary Jurisdictions”
Q: What remedy is the County seeking in the lawsuit?
A: The County is seeking two forms of relief: (1) a declaration by a federal court that the Executive Order on “Sanctuary Jurisdictions” is unconstitutional; and (2) an injunction prohibiting the Trump Administration from stripping the County of federal funds.
Q: What is a “sanctuary jurisdiction” under the law?
A: There is no clear definition of “sanctuary jurisdiction” in the Executive Order or in any federal statute. In common parlance, “sanctuary jurisdictions” are broadly defined as jurisdictions that do not use local taxpayer funded resources to perform the federal government’s function of enforcing federal immigration laws and deportation efforts. Importantly, the term “sanctuary” is a misnomer, however, because no local government can prevent the federal government from using its own resources to enforce federal immigration laws. The County has never sought to do so.
Q: Is Santa Clara County a “sanctuary jurisdiction”?
A: The Executive Order does not clearly define what it means by “sanctuary jurisdiction.” And the County certainly does not and cannot prevent federal agents from operating within its borders to enforce federal immigration laws. The U.S. Immigration & Customs Enforcement (ICE) sometimes requests local governments, like the County, to hold immigrants in County jail after their scheduled release dates (ICE detainer requests). The County has a policy of only honoring such requests for individuals with certain serious or violent criminal convictions, and only if ICE will enter into a prior written agreement agreeing to reimburse the County for the costs it incurs in holding immigrants beyond their usual release dates. Currently, the County’s jails operate at or near capacity. ICE has refused to enter into a reimbursement agreement with the County.
Q: Why doesn’t the County just comply with ICE civil detainer requests and other requests for assistance in apprehending immigrants?
A: Law enforcement agencies in the County believe that participating in federal immigration enforcement makes it much more difficult for them to fulfill their role in protecting the safety of our community. Local law enforcement agencies rely on the trust and respect of the community—including immigrant community members—who provide critical information needed to investigate and solve crimes. That trust and cooperation is seriously compromised when local law enforcement are perceived as federal immigration enforcers. This makes it much more difficult for local law enforcement to do their jobs and undermines public safety.
In addition, several courts around the nation have held that compliance with ICE detainer requests violates the Fourth Amendment of the U.S. Constitution, and may also violate other constitutional provisions. Thus, even if the County complied with ICE detainer requests in an attempt to avoid the Executive Order’s provision to strip “sanctuary jurisdictions” of federal funds, the County would expose the taxpayers of Santa Clara County to substantial financial liability.
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FAQs On County of Santa Clara Lawsuit Challenging Executive Order on “Sanctuary Jurisdictions”
Q: What is a preliminary injunction? A: preliminary injunction is a court order, issued in the early stages of a lawsuit, that prevents certain actions from being taken until the court can decide the case. A preliminary injunction is usually granted when the requesting party is likely to succeed at trial and is also likely to be irreparably harmed if the motion is not granted. In effect, a preliminary injunction preserves the status quo until the court has sufficient time to reach a final decision. Q: Why is the County seeking a preliminary injunction? A: The County is seeking a preliminary injunction against the Trump Administration because the Executive Order is unconstitutional and is already causing harm to the County and its residents. The Executive Order threatens to withdraw all federal funding to the County—including reimbursement for services currently being delivered. This threat forces the County to make an impossible choice: (1) continuing to incur hundreds of millions of dollars in service costs that may never be reimbursed by the federal government; (2) slashing these critical health, safety, and welfare services on which all County residents depend; or (3) submitting to the Executive Order’s unconstitutional directives to participate in federal immigration enforcement. The County seeks a preliminary injunction that would block the Trump Administration from stripping the County of federal funds, including those funds that the County is entitled to under existing agreements, until there is sufficient time for a trial on the merits.
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