Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 1 of 45

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

CITY OF CHELSEA, CITY OF LAWRENCE, )

)

Plaintiffs,

)

)

v.

)

)

DONALD J. TRUMP, President of the United )

States, UNITED STATES OF AMERICA, )

JOHN F. KELLY, Secretary of United States )

Department of Homeland Security, DANA J. )

BOENTE, Acting Attorney General of the )

United States, DOES 1-100,

)

Defendants.

)

)

)

Civil Action No. 17-10214

COMPLAINT FOR DECLARATORY JUDGMENT AND INJUNCTIVE RELIEF

INTRODUCTION

1. On January 25, 2017, Defendant President Donald J. Trump signed Executive Order

No. 13,768 entitled “Enhancing Public Safety in the Interior of the United States.” Executive

Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (“Executive Order”). The Executive Order

is a major affront to basic principles of federalism and the separation of powers. The Executive

Order seeks, without congressional authorization, to commandeer local officials to enforce the

federal government’s immigration policies, and threatens municipalities with crippling losses of

funding, apparently including funding for programs with no connection to law enforcement, if

the municipalities do not come to heel. Particularly for smaller and more impoverished cities

and towns, the impact of this Executive Order is both immediate and chilling.

2. The Executive Order announces that it is the federal executive branch’s policy to

“[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 2 of 45
funds, except as mandated by law.” Executive Order Sec. 2(c). Section 9(a) of the Executive Order directs the U.S. Attorney General and the Secretary of the Department of Homeland Security (“DHS”) to “ensure” that certain “sanctuary jurisdictions,” which are defined as “jurisdictions that willfully refuse to comply with 8 U.S.C. [§] 1373,” are “not eligible to receive Federal grants,” and further orders “enforcement action” against any entity that “violates 8 U.S.C. [§] 1373” or “has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” Executive Order Sec. 9(a).
3. The City of Chelsea (“Chelsea”) and the City of Lawrence (“Lawrence”) (collectively, “Plaintiff Cities” or “Cities”) seek declaratory and injunctive relief against the United States of America and the above-named federal officers and Defendants for violating the Tenth and Fifth Amendments of the U.S. Constitution and principles of federalism and separation of powers. Plaintiff Cities further seek a declaration, under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202 et seq., that they comply with 8 U.S.C. § 1373.
4. Plaintiff Cities face a significant risk of sanctions from Defendants if Defendants implement the Executive Order, which seeks to exact severe measures against so-called “sanctuary jurisdictions.”
5. Chelsea self-identifies as a “sanctuary city” and Lawrence, a “Trust Act City,” is widely labeled as such. The label “sanctuary city” is distinct from the term “sanctuary jurisdiction” under the Executive Order. Plaintiff Cities use the term “sanctuary city” or “Trust Act City” to refer to their policies of deprioritizing local law enforcement participation in federal civil immigration investigations and detentions, in an effort to promote public safety and confidence in local law enforcement. Plaintiff Cities are not “sanctuary jurisdictions” as that term is used in the Executive Order.
2

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 3 of 45
6. Past statements and practices of the President and Executive officers, however, suggest that Plaintiff Cities will be treated as “sanctuary jurisdictions” under the Executive Order.
7. Furthermore, the Executive Order ambiguously directs the Attorney General 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.” Executive Order Sec. 9(a). This presents an immediate threat to Plaintiff Cities, which are now presented with a Hobson’s choice: either repeal policies that they have determined to be necessary to the safety and wellbeing of local residents, or submit to the mercy of the Attorney General’s determination as to whether they have in effect policies or practices that “hinder” the enforcement of federal law.
8. Plaintiff Cities rely on federal funding to fill critical budgetary needs and, particularly as relatively small jurisdictions, cannot afford uncertainty over whether they will lose federal funds or be subjected to undefined “appropriate enforcement action” by the Attorney General if they are found to have policies or practices that “hinder” federal law enforcement.
9. If Plaintiff Cities are found to be “sanctuary jurisdictions,” the Executive Order instructs the Attorney General and the Secretary of DHS to “ensure” that Plaintiff Cities are “not eligible to receive Federal grants.” Executive Order Sec. 9(a). The threat to rescind federal grants in order to coerce Plaintiff Cities to enforce federal immigration law constitutes unconstitutional coercion for three reasons.
a. First, Plaintiff Cities did not have any notice, much less the unambiguous notice required by law, that accepting federal grants would require them to actively enforce federal immigration orders. In enacting § 1373, Congress included no reference to any consequences to federal funding. In fact, § 1373
3

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 4 of 45
includes no language regarding federal grants or funding. The Executive Order attempts to retroactively impose conditions on the receipt of almost all federal funding, making it impossible for affected cities to make informed decisions about whether to participate in federal grant programs. b. Second, the Executive Order conditions the receipt of federal grants by municipalities on their cooperation with Executive interpretations of immigration enforcement, without any limitation as to which federal funds or grants are at stake. The only stated exception for grants which may be denied to municipalities deemed “sanctuary jurisdictions” is for those grants “deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” Executive Order Sec. 9(a). Therefore, potentially all federal grants or pass-through grants to Plaintiff Cities are threatened. The amount of federal grants at stake amount to a “gun to the head” of the Cities. c. Third, there is no nexus between the immigration issues addressed by the Executive Order and the funds threatened to be withheld from “sanctuary jurisdictions.” The Executive Order conditions receipt of federal grants on the execution and enforcement of immigration laws, a condition that is unrelated to the federal interests at stake in most federal grants, and the Executive Order in no way attempts to connect immigration to the purpose for which the threatened funds are expended. 10. Applying the Executive Order against Plaintiff Cities would also violate the Tenth Amendment’s anti-commandeering principle. If § 1373 prohibits Plaintiff Cities’ ordinances and
4

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 5 of 45
policies, then it should be struck down as an unconstitutional restriction on lawful exercises of state sovereignty, in violation of the Tenth Amendment of the U.S. Constitution.
11. Plaintiff Cities derive their legislative and executive authority from the Commonwealth of Massachusetts. Under the Home Rule Amendment, Article 89 of the Massachusetts Constitution, the people of the Commonwealth of Massachusetts exercise the right of self-government as residents of their cities and towns, as they do as residents of Massachusetts. As local governments elected through the “traditional liberties of the people with respect to the conduct of their local government,” Mass. Const. amend. art. LXXXIX, Plaintiff Cities exercise the authority to regulate local law enforcement agencies, including by adopting law enforcement priorities and practices that aim to promote public safety and welfare in the Cities. If § 1373 is interpreted to unlawfully restrict this basic exercise of state sovereignty, then it is unconstitutional.
12. Section 1373 is further unconstitutional on its face, as it purports to restrict how state and local governments can regulate their officers and employees.
13. The Executive Order itself also violates the Tenth Amendment and fundamental principles of federalism, as it purports to grant the Attorney General blanket authority to “take appropriate enforcement action” to force state and local governments to conform local policies and practices to the dictates of the federal government, thus subjugating the policymaking authority of state and local government, and the voices of their electorates, to the regulation of the federal government. Executive Order Sec. 9(a).
14. The Executive Order violates the separation of powers by creating a penalty for § 1373 that Congress did not authorize, without regard to statutory rules on grant programs put in place by Congress. The Executive Order effectively legislates a sanction for violations of § 1373
5

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 6 of 45
by using the statute as a basis to broadly deny federal grants to municipalities that have made a policy decision to focus law enforcement resources on local problems and limit their entanglement with federal immigration enforcement. The President’s unilateral imposition of this new sanction and condition on spending is not supported by any act of Congress, including the Immigration and Nationality Act, 8 U.S.C. § 1101 et seq., or by the Constitution.
15. The Executive Order is unconstitutionally vague because cities cannot reasonably determine whether they fit into its definition of “sanctuary jurisdictions,” whether they are subject to its penalties, or what penalties those might be. As worded, the Executive Order threatens to rescind federal grants to Plaintiff Cities in such broad terms that it would cripple the Cities—and other similarly situated cities—if they are found subject to the penalties imposed on “sanctuary jurisdictions.” The Executive Order also gives discretion to the Secretary of DHS to “designate” a “sanctuary jurisdiction,” but no standards are given for how that designation may be determined.
16. Plaintiff Cities depend on federal grants both to provide necessary daily functions, like the operation of public schools, and to provide critical emergency services, such as fire departments. Therefore, an immediate resolution on the parties’ respective legal rights is necessary. Plaintiff Cities’ vulnerability and uncertainty under the Executive Order paralyzes their ability to budget daily governance needs and implement their law enforcement policies and priorities.
17. Plaintiff Cities accordingly seek a declaration that Executive Order Section 9(a) is unlawful, and an injunction barring Defendants from implementing it.
6

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 7 of 45
JURISDICTION AND VENUE 18. The Court has jurisdiction under 28 U.S.C. §§ 1331 and 1346. This Court has further remedial authority under the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202 et seq. The United States has waived its sovereign immunity pursuant to 5 U.S.C. § 702. 19. Venue properly lies within the District of Massachusetts because Plaintiffs, the City of Chelsea and the City of Lawrence, reside in this judicial district and a substantial part of the events or omissions giving rise to this action occurred in this District. 28 U.S.C. § 1391(e).
PARTIES 20. Plaintiff City of Chelsea is a municipal corporation organized and existing under and by virtue of the laws of the Commonwealth of Massachusetts, and is a charter city. 21. Plaintiff City of Lawrence is a municipal corporation organized and existing under and by virtue of the laws of the Commonwealth of Massachusetts, and is a charter city. 22. Defendant Donald J. Trump is the President of the United States. He is sued in his official capacity. 23. Defendant United States of America is sued under 28 U.S.C. §§ 1331 and 1346. 24. Defendant John F. Kelly is the Secretary of the U.S. Department of Homeland Security. The DHS is a cabinet department of the U.S. federal government with the primary mission of protecting the homeland security of the United States. Secretary Kelly is responsible for executing relevant provisions of the Executive Order. Secretary Kelly is sued in his official capacity. 25. Defendant Dana J. Boente is the Acting Attorney General of the United States. The Attorney General is a cabinet position of the U.S. federal government overseeing the U.S. Department of Justice. Acting Attorney General Boente is responsible for executing relevant
7

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 8 of 45
provisions of the Executive Order. Acting Attorney General Boente is sued in his official capacity.
26. Doe 1 through Doe 100 are sued under fictitious names. Plaintiffs do not now know the true names or capacities of said Defendants, who may or will be responsible for the violations alleged, but pray that the same may be alleged in this Complaint when ascertained.
FACTUAL ALLEGATIONS I. THE PLAINTIFFS
A. The City of Chelsea 27. The City of Chelsea, Massachusetts is located directly across the Mystic River from Boston. It was first settled in 1624, established itself as a town in 1739 and was incorporated as a city in 1857. With a land area of just 1.8 square miles, it is the smallest city in Massachusetts and, as of 2015, had an estimated population of approximately 39,398. 28. Chelsea is a diverse, working-class community that has twice been given the AllAmerica City Award by the National Civic League, in recognition of the ability of its residents to work together to identify and tackle community-wide challenges. Approximately 62.1% of the city’s residents identify as Hispanic or Latino. As of 2010, 44% of the city’s residents were born outside of the United States, the highest percentage in Massachusetts. 29. The per capita income in Chelsea is $21,722. Approximately 20.9% of Chelsea’s residents live below the poverty line. 30. Chelsea has an annual budget of $170 million, of which approximately $13.9 million derives from federal funding. As of 2015, Chelsea employed approximately 1,287 people.
8

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 9 of 45
B. The City of Lawrence 31. The City of Lawrence, Massachusetts was built in the 1840s as the nation’s first planned industrial center, and 35% of its economy is still manufacturing-based. Located 25 miles north of Boston, it had an estimated population of approximately 80,231, as of 2015. 32. Lawrence has long been a multi-ethnic and multicultural gateway city. The successive waves of immigrants coming to Lawrence to work in the mills began with the Irish, followed by other European immigrants and later immigrants from Puerto Rico, the Dominican Republic, Vietnam, and Cambodia. Today, the U.S. Census Bureau estimates that 37.4% of Lawrence’s residents were born outside the United States. As of 2010, 73.8% of the city’s residents identified as Hispanic or Latino. 33. The per capita income in Lawrence is $17,167. Approximately 28.4% of Lawrence’s residents live below the poverty line. 34. Lawrence has an annual budget of $245 million, of which approximately $37.8 million derives from federal funding. Lawrence employs approximately 2,967 people. II. DEFENDANTS’ ACTIONS A. Defendants’ Statements Regarding Sanctuary Cities 35. Targeting sanctuary cities is one of President Trump’s policy priorities. In a recent interview with Bill O’Reilly, President Trump said he is “very much opposed to sanctuary cities,” that sanctuary cities “breed crime,” and that defunding sanctuary cities is “a weapon” he might use. Dan Brekke, Trump: California ‘Out of Control’ and Defunding Could Be in Store (Feb. 6, 2017), KQED News, https://ww2.kqed.org/news/2017/02/06/trump-california-out-ofcontrol-and-defunding-could-be-in-store/. 36. In a statement by White House Press Secretary Sean Spicer on January 25, 2017, announcing the issuance of the Executive Order, Spicer stated: “We are going to strip federal
9

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 10 of 45
grant money from the sanctuary states and cities that harbor illegal immigrants. The American people are no longer going to have to be forced to subsidize this disregard for our laws.” White House, 1/25/17: White House Press Briefing, YouTube (Jan. 25, 2017), available at https://www.youtube.com/watch?v=OaPriMVvtZA.
37. These recent statements about sanctuary cities by the Trump administration are consistent with the stated policy priorities of the Trump campaign. During the campaign, thencandidate Trump and his associates used similarly inflammatory and divisive rhetoric to manufacture fear about sanctuary cities and their residents. These statements were made without regard to the substance of the cities’ policies and priorities. The Executive Order is an attempt to zealously pursue the promises of the Trump campaign.
38. In statements to The Daily Caller on July 7, 2015, Senator Jeff Sessions—now the Attorney General nominee –and Congressman Darrell Issa criticized sanctuary cities for failing to honor detainers issued by U.S. Immigration and Customs Enforcement (“ICE”). An ICE detainer is a request by a federal immigration enforcement agency to obtain information about where an individual in the custody of state or local law enforcement is incarcerated, and may request state or local law enforcement either to hold the person for the agency or to notify the agency when release of the person is imminent. Attorney General nominee Senator Jeff Sessions stated, “This disregarding of detainers and releasing persons that ICE has put a hold on—it goes against all traditions of law enforcement. Laws and courtesies within departments—if you have somebody charged with a crime in one city, you hold them until you complete your business with them . . . . So what was happening was, ICE authorities were filing detainers and sanctuary cities were saying, ‘We’re not gonna honor them. They finished paying for the crime they committed in our city—we’ve released them.’” Kerry Picket, Sen. Sessions: City Officials
10

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 11 of 45
Harboring Illegal Immigrant Felons Could Be Charged With Crime, The Daily Caller (July 7, 2015), http://dailycaller.com/2015/07/07/sen-sessions-city-officials-harboring-illegal-immigrantfelons-could-be-charged-with-crime/.
39. In an interview with Breitbart News in May 2016, then-presidential candidate Trump stated, “Sanctuary cities are a disaster . . . . They’re a safe-haven for criminals and people that should not have a safe-haven in many cases. It’s just unacceptable. We’ll be looking at sanctuary cities very hard.” Matthew Boyle, Exclusive —Donald J. Trump to San Francisco: Sanctuary Cities ‘Unacceptable,’ A ‘Disaster’ Creating ‘Safe-Haven for Criminals’, Breitbart News (May 16, 2016), available at http://www.breitbart.com/2016-presidentialrace/2016/05/16/exclusive-donald-jtrump-to-san-francisco-sanctuary-cities-unacceptable-adisaster-creating-safehaven-for-criminals/.
40. Another Breitbart News article published on November 21, 2016 regarding sanctuary cities quoted Texas Congressman John Culberson as stating: “The law requires cooperation with immigration officials 100 percent of the time.” Bob Price, Sanctuary Cities Risk Losing DOJ Funds In 2017, Texas Congressman Says, Breitbart News (Nov. 21, 2016), http://www.breitbart.com/texas/2016/11/21/sanctuary-cities-risk-losing-doj-funds-2017-texascongressman-says/.
B. The Executive Order 41. The Executive Order defines “sanctuary jurisdictions” as jurisdictions that “willfully violate Federal law in an attempt to shield aliens from removal from the United States.” Executive Order Sec. 1. 42. The Executive Order also defines “sanctuary jurisdictions” as jurisdictions that “willfully refuse to comply with 8 U.S.C. [§] 1373.” Id. Sec. 9(a).
11

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 12 of 45
43. The Executive Order also gives the Secretary of DHS the “authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.” Id.
44. The Executive Order also defines “sanctuary jurisdiction” as “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.
45. The Executive Order demands that “sanctuary jurisdictions” that fail to comply with “applicable Federal law” do not receive Federal funds, “except as mandated by law.” Id. Sec. 2(c).
46. The Executive Order also gives the Attorney General and the Secretary of DHS the discretion to ensure that “sanctuary jurisdictions” “are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” Id. Sec. 9(a).
47. The Executive Order further directs 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.” Id. Sec. 9(a). III. PLAINTIFFS ARE NOT “SANCTUARY JURISDICTIONS” AS SET FORTH IN
THE EXECUTIVE ORDER 48. Plaintiff Cities, as empowered by the Massachusetts Constitution, have the right of self-government regarding local matters. Mass. Const. amend. art. LXXXIX. To that end, they have enacted ordinances to further local law enforcement priorities. Plaintiff Cities, in order to protect all of their residents, have approved ordinances that recognize it is not in their interest or in the interests of their residents to become entangled in federal immigration enforcement.
12

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 13 of 45
49. These ordinances, and subsequent policies, have been enacted to promote effective law enforcement in the Cities, as studies have shown that victims and witnesses of crimes are much less likely to come forward if they fear deportation. See, e.g., Bill O. Hing, Immigration Sanctuary Policies: Constitutional and Representative of Good Policing and Good Public Policy, 2 U.C. Irvine L. Rev. 247, 249-50, 303-08 (2012). Encouraging public confidence in local law enforcement promotes the safety of all residents in Plaintiff Cities, and dispels any paralyzing sense of false immunity that undocumented immigrants may impute to residents who enjoy the protections of U.S. citizenship.
50. Crime is statistically significantly lower in sanctuary counties compared to nonsanctuary counties. Tom K. Wong, The Effects of Sanctuary Policies on Crime and the Economy, Center for American Progress (Jan. 26, 2017), https://www.americanprogress.org/issues/immigration/reports/2017/01/26/297366/the-effects-ofsanctuary-policies-on-crime-and-the-economy/.
A. Chelsea 51. Chelsea declared itself a sanctuary city in a June 4, 2007 Resolution, in order to further its efforts to “promote a community as a safe haven for refugees and immigrants who are currently residing in that community from other countries.” Resolution of the City of Chelsea, Massachusetts, Chelsea City Council (June 4, 2007), available at http://www.bostonmayday.org/ chelsea_resolution.html (“June 4, 2007 Resolution”). 52. Chelsea’s Police Chief and its City Manager routinely speak at public gatherings regarding Chelsea’s commitment to the safety of all of its residents, regardless of documentation status. See, e.g., Al-Huda Society, Chelsea City Manager Supports Local Muslim Community, YOUTUBE (Nov. 18, 2016), https://www.youtube.com/watch?v=BALyWNTgo_Q; City of
13

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 14 of 45
Chelsea Multi-Media, Tom Ambrosino MLK Day Speech, YOUTUBE (Jan. 18, 2017), https://www.youtube.com/watch?v=dZ7Qt0zXzPY.
53. The Chelsea Police Department promulgated “The Specific Role and Impact on the CPD in the Enforcement of Federal Immigration Law By the Department of Homeland Security (DHS-ICE) with the 2015 Priority Enforcement Program effective January 5, 2015.” General Order 2015-01, Chelsea Police Department (Jan. 5, 2015), available at http://chelseapolice.com/wp-content/uploads/sites/31/2016/01/1.33-Role-and-Impact-of-FederalPEP-Program-on-CPD-1.pdf (“Chelsea Police Policy”) The Chelsea Police Policy states that “[t]he City and the Chelsea Police Department are committed to promoting safety and providing proactive community policing services to all who are located in our community.” Chelsea Police Policy at 1.
54. To further local law enforcement objectives, the Chelsea Police Department encourages all members of the community, regardless of documentation status, to seek assistance from the Chelsea Police Department. The Chelsea Police Policy also recognizes that “[t]his type of mutual trust and spirit of cooperation is absolutely crucial in preventing and solving crime incidents, as well as maintaining public order, safety and security in the entire community.” Id. at 1-2.
55. Chelsea’s Police Policy provides a detailed outline of how Chelsea complies with the DHS Priority Enforcement Program (“PEP”). Chelsea Police Policy at 2-5. This includes a commitment to community education regarding the contours of Chelsea’s compliance with PEP and how such compliance does not inhibit local law enforcement goals. Id. at 5.
56. The Chelsea Police Policy states that the Chelsea Police Department “shall not undertake immigration-related investigations and shall not routinely inquire into the specific
14

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 15 of 45
immigration status of any person(s) encountered during normal police operations.” Id. at 5. This policy does not prohibit the Chelsea Police Department from cooperating and assisting with federal immigration officials during criminal investigations or when there is a serious threat to public safety or national security. Id. at 6.
57. Procedurally, under the Chelsea Police Policy officers “shall not question any person about his or her specific citizenship or immigration status unless that person is reasonably believed to be involved in” certain types of enumerated conduct including felonious activity, terrorism, and human trafficking. Id. at 6-7 (emphasis in original). Furthermore, the Chelsea Police Department shall not participate in ICE tactical operations to enforce purely civil immigration violations. Id. at 8.
58. The Chelsea Police Department fingerprints everyone whom they arrest. Those fingerprints are electronically submitted to the Federal Bureau of Investigation, which shares that information with DHS. Additionally, Chelsea has complied with every ICE Detainer Request it has received.
59. Chelsea is not a “sanctuary jurisdiction” within the meaning of the Executive Order because Chelsea is not in willful violation of 8 U.S.C. § 1373. As stated in the June 4, 2007 Resolution and the Chelsea Police Policy, the purpose of Chelsea’s actions are to promote public safety, not to willfully violate federal immigration law. Indeed, the Chelsea Police Policy explicitly outlines Chelsea’s commitment to cooperation with PEP and criminal immigration efforts, in accordance with § 1373.
B. Lawrence 60. Lawrence is a Trust Act Community, and is regularly labeled as a “sanctuary city” by various media outlets. See, e.g., Center for Immigration Studies, Map: Sanctuary Cities, Counties, and States (January 2016), http://cis.org/Sanctuary-Cities-Map; Maria Sacchetti,
15

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 16 of 45
Sanctuary cities say Trump’s plan will hurt residents most in need, Boston Globe (Nov. 30, 2016), available at https://www.bostonglobe.com/metro/2016/11/30/sanctuary-cities-say-trumpplan-will-hurt-neediest-residents/NuZ8WoDCaEyj1bKsnsr9OL/story.html; Caroline May, Massachusetts city moves to enact sanctuary policies, Breitbart (Aug.13, 2015), http://www.breitbart.com/big-government/2015/08/13/massachusetts-city-moves-to-enactsanctuary-policies/.
61. On August 11, 2015, the Lawrence City Council adopted the Lawrence Trust Ordinance, “to increase public confidence in Lawrence Law Enforcement by providing guidelines associated with federal immigration enforcement, arrests, and detentions.” Lawrence Trust Ordinance, § 9.20.010 et seq. The Lawrence Trust Ordinance seeks to promote public confidence in city law enforcement agencies by assuring all residents that their citizenship or immigration status will “have no bearing on an individual’s treatment” by city law enforcement personnel. Lawrence Trust Ordinance, § 9.20.020.
62. During the August 11, 2015 City Council meeting, where the City Council approved the Lawrence Trust Ordinance, many spoke about how undocumented immigrant victims of crime, including those in domestic violence situations, were afraid to seek help out of fear the police would investigate their status. Keith Eddings, ‘Sanctuary City’ policy OK’d, Eagle Tribune (Aug. 12, 2015), available at http://www.eagletribune.com/news/ new_hampshire/sanctuary-city-policy-ok-d/article_f59e88dd-7efe-59ab-be2593161f22773e.html (“Eagle Tribune Article”).
63. In order to achieve its local law enforcement goals, the Lawrence Trust Ordinance generally declares the enforcement of federal immigration law as beyond the purview of the
16

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 17 of 45
City, and prohibits the City’s law enforcement personnel from contacting, detaining, or arresting a person based on immigration status. Lawrence Trust Ordinance, § 9.20.020.
64. Specifically, § 9.20.040(a) prohibits City law enforcement personnel from arresting, detaining, or extending the detention of an individual solely on the basis of requests or civil custody warrants issued by ICE, the enforcement arm of DHS, or other federal immigration administrative officers.
65. Section 9.20.040(b) also prohibits Lawrence law enforcement personnel from responding to “any ICE notification request seeking information about an individual’s incarceration status,” or other personal information about an individual. The notification request, as used in this section, is not a Request for Notification (I-247N), which is defined in § 9.20.030 as an “Immigration Hold.”
66. Section 9.20.040(c) also prohibits City law enforcement personnel from allowing ICE agents “access to or use of facilities, records/databases, booking lists, or individuals in custody either in person or via telephone or videoconference.”
67. Importantly, Section 9.20.040 allows Lawrence officers and employees to comply with ICE requests in cases where ICE “demonstrates a criminal warrant signed by a judge and based on probable cause.” The Lawrence Trust Ordinance contemplates that there may be cases when Lawrence law enforcement acquiesces to an ICE request, in which case it provides that any individual subject to ICE intervention “shall be provided with a copy of the ICE request and any other documentation pertaining to their case that is presented to the law enforcement agency.” Lawrence Trust Ordinance, § 9.20.040(d).
68. Lawrence is not a “sanctuary jurisdiction,” as defined in the Executive Order, because it is not in willful violation of 8 U.S.C. § 1373. As stated in the Lawrence Trust
17

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 18 of 45
Ordinance, the purpose of Lawrence’s ordinance is to promote public safety, not to willfully violate federal immigration law. In fact, the Lawrence Trust Ordinance explicitly outlines procedures for compliance with federal immigration efforts, in accordance with 8 U.S.C. § 1373. IV. DEFENDANTS MIGHT TREAT PLAINTIFFS AS “SANCTUARY
JURISDICTIONS” 69. There is an actual controversy between the parties because there are significant reasons to believe that Defendants will interpret the ordinances, policies, and practices of Plaintiff Cities to be in willful violation of 8 U.S.C. § 1373, and therefore declare Plaintiff Cities “sanctuary jurisdictions,” as defined in the Executive Order. President Trump and the White House have spoken openly about targeting sanctuary cities, and the Executive Order is phrased in a way that creates tremendous uncertainty and therefore chills the policy priorities and activities of sanctuary cities. If Defendants designate Plaintiff Cities as “sanctuary jurisdictions” under the Executive Order, Plaintiff Cities could lose significant federal funding, which they rely upon to meet critical public safety needs, as well as necessary governmental functions. 70. Executive Branch officers have previously adopted a broad construction of 8 U.S.C. § 1373. The Executive Order appears to build on that construction. 71. On May 31, 2016, the Office of the Inspector General (“OIG”) issued a memorandum reporting on its investigation into jurisdictions receiving funds from the Office of Justice Programs and the Office of Violence Against Women. Memorandum from M. Horowitz, Inspector General, to K. Mason, Assistant Atty. Gen., (May 31, 2016), available at https://oig.justice.gov/reports/2016/1607.pdf (the “OIG Memorandum” or “OIG Memo”). 72. The OIG Memorandum asserts that even when local laws and policies do not expressly prohibit entities or officials from disclosing information to ICE, they may nonetheless
18

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 19 of 45
result in de facto “restrictions” on providing such information, which would violate § 1373. OIG Memo at 4-7.
73. The OIG Memorandum notes that certain jurisdictions “go beyond regulating responses to ICE detainers and also address, in some way, the sharing of information with federal immigration authorities,” and states that such ordinances are “inconsistent with the plain language of § 1373 prohibiting a local government from restricting a local official from sending immigration status information to ICE.” OIG Memo at 5.
74. The OIG Memorandum also suggests that even when local laws and policies on their face apply only to ICE detainer requests, they “may have a broader practical impact on the level of cooperation afforded to ICE . . . and may, therefore, be inconsistent with at least the intent of Section 1373.” Id. at 7. The OIG Memorandum goes on to suggest: “A reasonable reading of Section 1373, based on its ‘in any way restrict’ language, would be that it applies not only to the situation where a local law or policy specifically prohibits or restricts an employee from providing citizenship or immigration status information to ICE, but also where the actions of local officials result in prohibitions or restrictions on employees providing such information to ICE.” Id. at n.9.
75. Pursuant to the OIG Memorandum and other statements made by Defendants, there is a significant likelihood that Defendants will declare that Plaintiff Cities are “sanctuary jurisdictions,” under the Executive Order, thus subjecting Plaintiff Cities to a loss of funding. This uncertainty itself chills potential activities by sanctuary cities.
76. Even if Defendants do not declare Plaintiff Cities to be “sanctuary jurisdictions” for the purposes of the Executive Order, the Defendants may deem Plaintiff Cities to be “entit[ies]” that “ha[ve] in effect a statute, policy, or practice that prevents or hinders the enforcement of
19

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 20 of 45
Federal law.” Executive Order Sec. 9(a). If Defendants make such a determination, the Executive Order provides that “the Attorney General shall take appropriate enforcement action against” them. Id. V. PLAINTIFF CITIES COMPLY WITH § 1373
77. The text of 8 U.S.C. § 1373(a) states that “[n]otwithstanding 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.”
78. The text of 8 U.S.C. § 1373(b) states that “[n]otwithstanding 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 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.”
79. The text of 8 U.S.C. § 1373(c) places no additional obligations or penalties on state or local governments.
80. Plaintiff Cities comply with the requirements of 8 U.S.C. § 1373. A. Chelsea Complies with 8 U.S.C. § 1373 81. The June 4, 2007 Resolution passed by Chelsea in no way affects Chelsea’s compliance with 8 U.S.C. § 1373. 82. The Chelsea Police Policy complies with § 1373.
20

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 21 of 45
83. Specifically, the Chelsea Police Policy outlines how the Chelsea Police Department shall comply with PEP and Requests for Notification, as required by 8 U.S.C. § 1373. See Chelsea Police Policy at 2-5.
84. The Chelsea Police Policy also states that it is the policy of the Chelsea Police Department not to inquire routinely about immigration status. Under 8 U.S.C. § 1373, local governments are prohibited from passing laws that “prohibit[] or in any way restrict” the sending or receiving of information related to immigration status, but it does not place an affirmative obligation on municipalities to engage in federal immigration enforcement or to gather information regarding immigration status. As the Chelsea Police Policy does not prohibit or in any way restrict the sending or receiving of such information, Chelsea is in compliance with § 1373.
B. Lawrence Complies with 8 U.S.C. § 1373 85. The Lawrence Trust Ordinance in no way affects Lawrence’s compliance with 8 U.S.C. § 1373. 86. Specifically, § 1373 requires only that local governments do not prohibit the sending and receiving of information regarding immigration status. The plain language of the statute does not address any other form of information. There is no express prohibition regarding immigration status set forth in the Lawrence Trust Ordinance. See Lawrence Trust Ordinance, § 9.20.040(b). 87. The prohibition on physical access set forth in § 9.20.040(c) in no way prohibits the sending or receiving of information addressed in § 1373. 88. Additionally, § 9.20.040(d) of the Lawrence Trust Ordinance contemplates acquiescence to immigration holds, including Requests for Notification, in compliance with 8 U.S.C. § 1373.
21

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 22 of 45
89. As the Lawrence Trust Ordinance does not prohibit or in any way restrict the sending or receiving of information related to immigration status, Lawrence is in compliance with § 1373. VI. PLAINTIFF CITIES’ RECEIPTS OF FEDERAL FUNDING
90. Chelsea received, by conservative estimation, at least $13.9 million in FY 2016 from federal grants and pass-through grants from the federal government in areas including education, community development, and policing. Chelsea is currently applying for a $1 million grant for its fire department. Chelsea had an overall budget of approximately $170 million in FY 2016, meaning the federal funding accounted for nearly 10% of its total budget.
91. Chelsea’s fiscal year begins on July 1, 2017. Chelsea typically begins budget discussions in February, submits a budget proposal on May 1, holds City Council debates on the budget for a month, and finalizes the budget by mid-June, just before the beginning of the fiscal year. It is impossible to create a budget when it is unclear what effect the Executive Order will have on its funding.
92. Lawrence received $37.8 million in Fiscal Year (“FY”) 2016 from federal grants and pass-through grants from the federal government in areas including education, water pollution abatement, and child nutrition. Lawrence had an overall budget of approximately $245 million in FY 2016, meaning the federal funding accounted for over 15% of its total budget.
93. Lawrence’s fiscal year begins on July 1, 2017. As it typically does in other years, Lawrence will begin budget discussions in March, submit a budget proposal in May, hold City Council debate for a month, and finalize the budget by mid-June, just before the beginning of the fiscal year. It is impossible to create a budget when it is unclear what effect the Executive Order will have on its funding.
22

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 23 of 45
VII. THE EXECUTIVE ORDER UNCONSTITUTIONALLY COERCES PLAINTIFF CITIES TO IMPLEMENT FEDERAL IMMIGRATION POLICY 94. Plaintiff Cities received no notice that the continued offering of federal grants was
contingent on their cooperation in carrying out federal immigration enforcement programs. 95. The Executive Order conditions the receipt of federal grants on complying “with
applicable Federal law.” Executive Order Sec. 2(c). 96. The Executive Order also conditions the receipt of federal grants or funds on
complying with “applicable Federal law” and complying with § 1373. Id. Sec. 9(a). 97. In enacting § 1373, Congress included no language conditioning any federal
funding on cooperation by municipalities. Consistent with the plain language of the statute, the federal government has never used § 1373 as a vehicle to impose conditions on the receipt of any federal funding, including grant programs with no connection to law enforcement.
98. The federal grants that Lawrence and Chelsea currently receive similarly do not clearly condition funding on compliance with § 1373 or federal immigration policy.
99. The Executive Order is ambiguous about the extent to which Plaintiff Cities must execute and enforce immigration law under § 1373, and the extent to which Plaintiff Cities must comply “with applicable Federal law.” Id. Sec. 2(c). The Executive Order is also ambiguous as to whether “applicable Federal law” is limited to compliance with § 1373 or whether it refers to a broader scope of federal laws. Id.
100. The Executive Order is ambiguous about how Plaintiff Cities must fulfill the conditions for their continued receipt of federal funds, making it impossible for Plaintiff Cities to exercise their choice of whether to participate in grant programs with full knowledge of their conditions and cognizant of any consequences to their policymaking discretion. Plaintiff Cities are unable to ascertain what is expected of them.
23

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 24 of 45
101. The Executive Order penalizes Plaintiff Cities for not participating in its new mandate by threatening to take away their existing funding even though those funds were not clearly conditioned on compliance with § 1373.
102. The Executive Order is ambiguous about what federal grants are threatened, only excepting from the threat funds “deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” Id. Sec. 9(a). The Executive Order appears to strike broadly at all federal grants. If no federal grants are deemed necessary for law enforcement purposes by the Attorney General or the Secretary, Plaintiff Cities stand to lose all grants or pass-through grants from the federal government.
103. The Executive Order threatens Lawrence with the possibility of losing $37.8 million of federal grants and pass-through grants (as of FY 2016), except as deemed necessary for law enforcement purposes. The Executive Order therefore threatens over 15% of Lawrence’s annual budget.
104. The Executive Order threatens Chelsea with the possibility of losing at least $13.9 million of federal grants and pass-through grants (as of FY 2016), except as deemed necessary for law enforcement purposes. The Executive Order therefore threatens nearly 10% of Chelsea’s annual budget.
105. The threat against such large percentages of Plaintiff Cities’ annual budgets is an attempt to coerce the Cities into complying with the demands of the Executive Order.
106. There is no connection or nexus between the majority of the funds threatened by the Executive Order and the condition being imposed on Plaintiff Cities. For example, the condition of enforcing immigration laws has nothing to do with funds marked for education, which make
24

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 25 of 45
up the majority of federal grants to Plaintiff Cities. The Executive Order in no way attempts to connect immigration to the purposes for which the threatened funds were granted or expended. VIII. AS APPLIED AGAINST PLAINTIFF CITIES, 8 U.S.C. § 1373 IS
UNCONSTITUTIONAL 107. As described above, supra ¶¶ 77-89, Plaintiff Cities are not “sanctuary jurisdictions” as that term is defined in the Executive Order, because they comply with 8 U.S.C. § 1373. 108. Plaintiff Cities do not “prohibit” or “restrict” government entities or officials from sending or receiving immigration-status information with federal immigration agencies. Rather, Plaintiff Cities have adopted policies and guidelines that prohibit local law enforcement personnel from being immigration-conscious in their policing activities, and thus prohibit City officers from treating individuals differently based on their citizenship or immigration status (whether known or unknown). 109. Under these policies, local law enforcement personnel will not even be placed in a position in which they might be restricted from sending or receiving immigration-status information with federal agencies, because they are instructed not to collect or consider immigration-related information in the first place in their capacities as City officers and employees. 110. If Defendants apply § 1373 against Plaintiff Cities to designate them as “sanctuary jurisdictions,” i.e., as entities that violate § 1373, that application of § 1373 would be unconstitutional. 111. As applied to Plaintiff Cities, § 1373 would be unconstitutional because it would intrude upon local governments’ exercise of powers conferred upon them by the state, and would
25

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 26 of 45
unlawfully restrict their ability to shape local governance according to the needs and policy mandates of their electorates.
A. The Tenth Amendment Prohibits Federal Commandeering of State and Local Governments
112. Amendment Article 89 of the Massachusetts Constitution “reaffirm[s] the customary and traditional liberties of the people with respect to the conduct of their local government,” and “grant[s] and confirm[s] to the people of every city and town the right of selfgovernment in local matters.” Mass. Const. amend. art. LXXXIX. Specifically, under Article 89, cities and towns in the Commonwealth of Massachusetts “may, by the adoption, amendment, or repeal of local ordinances or by-laws, exercise any power or function which the general court has power to confer upon it.” Id. Pursuant to Article 89 and Massachusetts General Law Chapter 43B, the “general court” of Massachusetts (i.e., the Massachusetts state legislature) has conferred upon Massachusetts cities and towns the Commonwealth’s sovereign legislative powers, reserving to the state legislature only limited enumerated powers (such as the power to regulate elections, levy and assess taxes, and define crimes), and the power to impose uniform state laws that apply generally across cities and towns.
113. Under the Tenth Amendment, the federal government cannot compel or coerce Plaintiff Cities to repeal, alter, or not enforce the policies that they have adopted with regard to local law enforcement practices as set forth above. Nor can the federal government compel Plaintiff Cities to collect immigration-related information so as to enable City government personnel to share information regarding the immigration status of individuals with federal agencies.
114. If § 1373 is applied to prohibit Plaintiff Cities from adopting local law enforcement policies such as those described above, it is unconstitutional because Congress may
26

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 27 of 45
not “directly compel[]” states, or local governments exercising the sovereign powers of a state, to “enact and enforce a federal regulatory program” or to “enact a legislative program.” New York v. U.S., 505 U.S. 144, 161-62 (1992).
115. Section 1373 cannot lawfully be applied to prohibit Plaintiff Cities from adopting local law enforcement policies such as those described above. To require Plaintiff Cities to collect, consider, and/or permit federal access to immigration-related information concerning their residents would deny Plaintiffs any “‘policymaking’ discretion” regarding the treatment of immigration-related information, and would amount to a severe “intrusion upon state sovereignty.” Printz v. U.S., 521 U.S. 898, 928 (1997).
116. Through their local law enforcement policies, Plaintiff Cities have sought to distinguish local law enforcement personnel from federal immigration enforcement personnel in order to encourage public confidence in local law enforcement and local government accountability to all City residents.
117. As applied against these local governance efforts, § 1373 would violate a core principle underlying the Tenth Amendment, namely, the accountability of state and federal government officials to their electorates.
118. The Tenth Amendment prohibits the federal government from commandeering state officials to execute federal policy, in order to ensure that “state governments remain responsive to the local electorate’s preferences” and “state officials remain accountable to the people.” New York, 505 U.S. at 168.
119. The application of § 1373 against Plaintiff Cities would place Plaintiff Cities “in the position of taking the blame for [the] burdensomeness and … defects” of a federal program,
27

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 28 of 45
thus blurring the lines of accountability that the Tenth Amendment is intended to preserve. Printz, 521 U.S. at 929-30.
120. The federal government also cannot force Plaintiff Cities to share access to, or use of, City law enforcement “facilities, records/databases, booking lists,” or access to individuals in the Cities’ custody, without “a criminal warrant signed by a judge and based on probable cause.” Lawrence Trust Ordinance 9.020.040.
121. The Tenth Amendment protects states, and entities exercising the powers reserved to the states, from such commandeering of state and local resources and personnel: the federal government cannot “force[] participation of the States’ executive in the actual administration of a federal program.” Printz, 521 U.S. at 918; see also City of New York v. U.S., 179 F.3d 29, 34-35 (2d Cir. 1999) (the federal government may not “shift to the states enforcement and administrative responsibilities allocated to the federal government by the Constitution,” nor may it “affirmatively conscript[] states, localities, or their employees in the federal government’s service”); Galarza v. Szalczyk, 745 F.3d 634, 644 (3d Cir. 2014) (“[I]mmigration officials may not compel state and local agencies to expend funds and resources to effectuate a federal regulatory scheme.”).
122. For the same reasons, the federal government cannot compel state and local government entities to detain or continue the detention of any individual solely on the basis of immigration status, and absent a warrant or probable cause. See Morales v. Chadbourne, 793 F.3d 208, 214-220 (1st Cir. 2015) (holding that local law enforcement officials’ decision to hold a person on an ICE detainer without probable case violated the Fourth Amendment).
123. Federal regulation makes it clear that if a state or local agency grants a federal request to detain an individual for immigration purposes, the costs of such detention accrue to the
28

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 29 of 45
state or local government. See 8 C.F.R. § 287.7(e) (“No detainer issued as a result of a determination made under this chapter . . . shall incur any fiscal obligation on the part of the Department.”).
124. Courts have held that requiring state and local agencies to grant federal immigration detainer requests is unconstitutional: “Under the Tenth Amendment, immigration officials may not order state and local officials to imprison suspected aliens subject to removal at the request of the federal government. Essentially, the federal government cannot command the government agencies of the states to imprison persons of interest to federal officials.” Galarza, 745 F.3d at 643; see also Miranda-Olivares v. Clackamas Cnty., No. 3:12-CV-2317, 2014 WL 1414305, at *6 (D. Or. Apr. 11, 2014) (“[A] conclusion that Congress intended detainers as orders for municipalities to enforce a federal regulatory scheme on behalf of INS would raise potential violations of the anti-commandeering principle.”)
B. The Tenth Amendment Protects the Policy Choices Plaintiff Cities Have Made Regarding the Treatment of an Individual’s Immigration Status in Their Cities
125. As described above, supra ¶¶ 48-68, Chelsea and Lawrence have exercised the sovereign state power conferred upon them by the Commonwealth of Massachusetts to adopt policies and ordinances that they have determined to be in the best interests of their residents and local law enforcement mandates.
126. Plaintiff Cities have exercised their right of self-governance under state law to prohibit local law enforcement from considering immigration status as a factor in their policing practices. A central purpose of these policies is to promote public confidence in the Cities’ police departments, and to ensure that residents and voters do not misattribute federal immigration policies to the Cities or hold City officials accountable for federal immigration enforcement actions. See Chelsea Police Policy at 5 (“[I]t is imperative that the local community
29

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 30 of 45
is informed and educated…as to the specifics of the local law enforcement agencies’ actual role in [the federal immigration Priority Enforcement Program] so as not to jeopardize the trust, confidence and spirit of cooperation that the police department and the community at large have formed” (emphasis removed); Lawrence Trust Ordinance, § 9.020.010 (“The purpose of this LAWRENCE TRUST Policy and Order is to increase public confidence in Lawrence Law Enforcement by providing guidelines associated with federal immigration enforcement, arrests, and detentions.”).
127. As described above, the Cities’ policies and ordinances prohibit local law enforcement from considering immigration status as a relevant factor in policing practices. This general policy enables the Cities to assure all their residents that factors such as an individual’s race, ethnicity, national origin, or immigration status, which are unrelated to local law enforcement mandates, “shall have no bearing on an individual’s treatment” by local police. Lawrence Trust Ordinance, § 9.20.010.
128. Studies have shown that members of immigrant communities are often afraid to contact local law enforcement, fearing that interaction with local police may lead to deportation for themselves or their loved ones. Hing, at 249-50, 303-08. Open communication and good relationships with local communities are critical in preventing and investigating crime. Id. Crime is significantly lower in sanctuary counties compared with non-sanctuary counties. See Wong.
129. Absent the promise of sanctuary cities to avoid local entanglement with federal immigration investigations and enforcement, undocumented immigrants would likely avoid interacting with local law enforcement even when they are victims of, or witnesses to, crimes, for
30

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 31 of 45
fear of risking deportation as a result of engaging local police. Dispelling this fear benefits all residents of the community, as it facilitates more effective reporting and prosecution of crime.
130. For example, the Chelsea Police Policy explains: “The Chelsea Police Department relies upon the cooperation of all persons, documented citizens and residents as well as those without a specific documentation status, to achieve our important goals of protecting life and property, investigating and preventing crime as well as resolving recurring neighborhood issues. Assistance from the many various immigrant populations is especially important when an immigrant, whether documented or not, is the victim or witness to a crime. It is absolutely essential that these individuals do not feel apprehensive or intimidated in coming forward with the requisite information and general firsthand knowledge to aid in investigating a particular crime. This type of mutual trust and spirit of cooperation is absolutely crucial in preventing and solving crime incidents, as well as maintaining public order, safety and security in the entire community.” Chelsea Police Policy at 1-2.
131. Similarly, the Lawrence Trust Ordinance declares that the purpose of its policy against aiding federal immigration actions is “to increase public confidence in Lawrence Law enforcement,” to encourage all residents, regardless of immigration or citizenship status, to report crimes and aid local law enforcement efforts if and when they are witnesses to crimes. Lawrence Trust Ordinance, § 9.20.010.
132. Without guarantees such as those provided by Plaintiff Cities’ policies against entanglement in federal immigration investigations and detentions, undocumented immigrants who are victims of a crime or who witness a crime face a perilous choice: either report the crime and risk deportation, or suffer as a silent victim or witness to crime. The first option risks being removed from one’s life and family in the U.S., in many cases to a country where one could face
31

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 32 of 45
life-threatening conditions or even persecution. The second option enables criminal actors to prey on a victim with impunity, or may effectively ensure that persistent crime goes unreported and unpunished in the community.
133. Without the protection of sanctuary city policies, this Hobson’s choice between risking deportation to a country from which one has escaped, and suffering silently under dangerous conditions in a City in which one has sought refuge, particularly affects, among others, victims of domestic violence. See Eagle Tribune Article. Out of fear of deportation, these particularly vulnerable populations of undocumented immigrants may avoid seeking the protection of police and public safety services, and may avoid reporting crimes that they would otherwise report in a sanctuary city.
134. Additionally, when witnesses of criminal activity feel that they can come forward without fearing deportation, it increases the safety of the entire community.
135. Encouraging residents to come forward with information regarding criminal activity is especially important in cities such as Chelsea and Lawrence, where more than a third of the Cities’ populations were born outside of the United States. See supra ¶¶ 28, 32. Assuring residents that race, ethnicity, nationality, and immigration status—whether known or unknown— will have no bearing on an individual’s treatment by local police is also of great importance in cities such as Chelsea and Lawrence, where over 60% of residents identify as Hispanic or Latino. See supra ¶¶ 28, 32.
136. In consideration of their residents’ interests and particular needs, Chelsea and Lawrence have made the policy choice to treat immigration status as an irrelevant factor in the routine operations of local law enforcement, absent certain exceptions for individuals arrested
32

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 33 of 45
for, convicted of, or suspected (based on probable cause) of participating in certain enumerated crimes.
137. In accordance with Plaintiff Cities’ commitment to enforcing the law without regard to characteristics of individual residents that are irrelevant to the Cities’ criminal investigation and prosecution mandates, the Cities specifically prohibit local law enforcement from inquiring into an individual’s immigration status, collecting or maintaining immigrationrelated information, or detaining (or extending the detention of) an individual solely on the basis of immigration status.
138. Plaintiff Cities have determined, as a matter of local governance and law enforcement, that matters of federal immigration are properly left to the federal government, and that participation by local officers in federal immigration programs would be detrimental to the Cities’ governance and law enforcement purposes. That choice is protected by the Tenth Amendment of the U.S. Constitution and cannot be restricted by 8 U.S.C. § 1373 or the President’s Executive Order.
139. The application of 8 U.S.C. § 1373 to prohibit Plaintiff Cities from adopting the local law enforcement policies and ordinances discussed above would be unconstitutional as a violation of the Tenth Amendment.
C. Section 1373 is Unconstitutional Under the Tenth Amendment 140. On its face, § 1373 restricts the authority of state and local governments to regulate their officers and employees with regard to the treatment of information regarding an individual’s immigration status. 141. Section 1373’s restriction on how state and local governments may regulate the treatment of information regarding an individual’s immigration status is an unconstitutional federal restriction on state and local policy choices.
33

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 34 of 45
142. States, and local governments exercising powers granted by the states, like Chelsea and Lawrence, have the protected authority under the Tenth Amendment to determine how to regulate internal affairs, including how to guide local law enforcement to effectuate the will of their local electorates.
143. Section 1373’s prohibition against the exercise of policymaking discretion by state and local governments with regard to the treatment of information regarding immigrationstatus is unconstitutional under the Tenth Amendment as an unlawful federal intrusion on powers reserved to the states.
D. The Executive Order’s Directive Against Policies and Practices that “Prevent or Hinder the Enforcement of Federal Law” is Unconstitutional Under the Tenth Amendment
144. The Executive Order purports to give 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.” Executive Order Sec. 9(a). This blanket authority, asserted in the vague terms used in the Order, is an assault on fundamental principles of federalism undergirding the U.S. Constitution and the Tenth Amendment.
145. The Tenth Amendment, and the federalist system under which state and federal governments coexist, protect state and local governments from federal intrusion on powers reserved to the states, and prohibit the federal government from forcing state and local governments to implement legislation according to federal directives or “to regulate in a particular field or a particular way.” New York, 505 U.S. at 161.
146. The Executive Order purports to grant federal officers and agencies unfettered discretion to determine whether a governmental entity has in effect statutes, policies, or practices that “prevent[] or hinder[] the enforcement of Federal law,” and grants the Federal Executive
34

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 35 of 45
power to “take appropriate enforcement action” against such entities. Executive Order Sec. 9(a). On its face, this provision of the Executive Order is an unconstitutional attempt to force state and local governments to fall in line with—or regulate under the directive of—the federal government.
147. If Plaintiff Cities are subject to penalties under the Executive Order as entities that have “in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law,” then the Executive Order as applied to Plaintiffs is unconstitutional for violating the Tenth Amendment. Id. IX. THE EXECUTIVE ORDER VIOLATES BEDROCK SEPARATION OF POWERS
PRINCIPLES 148. The Executive Order entrusts Executive branch officials with the power to interpret 8 U.S.C. § 1373 in order to determine whether an entity “willfully refuse[s] to comply with the statutory provision” or what entities have “in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” Id. 149. On its face, the Executive Order instructs the Attorney General and Secretary of DHS to deny funds because of § 1373 violations without any regard to whether the applicable funding programs condition funding on compliance with § 1373. 150. The Executive Order therefore legislates a remedy for executively determined violations of § 1373 by creating a penalty that Congress did not authorize. Specifically, the Executive Order compels the withholding of federal funds without regard to whether compliance with § 1373 is a permissible condition on grant money allocated by Congress. 151. The Executive Order effectively imposes new conditions on federal grants that Congress did not establish. Congress, not the Executive, is granted the power of the purse under Article I of the U.S. Constitution. The attempt in the Executive Order to place conditions on
35

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 36 of 45
federal grants that Congress did not authorize exceeds the boundaries of executive power set by the U.S. Constitution.
152. The Executive Order therefore violates the constitutional separation of powers because it imposes conditions on existing federal grant programs without either statutory or constitutional authority. X. THE EXECUTIVE ORDER IS UNCONSTITUTIONALLY VAGUE
153. The Executive Order provides four potential definitions of “sanctuary jurisdictions.” It is unclear what statutes, policies, or practices “prevent[] or hinder[] the enforcement of Federal law,” what “willfully refus[ing] to comply with 8 U.S.C [§] 1373” entails, or what delineates the scope of “willfully violat[ing] Federal law.” Executive Order Sec. 1, Sec. 9(a). Some of the definitions of “sanctuary jurisdiction” use the word “willful,” suggesting a specific intent to violate the law is necessary to be a “sanctuary jurisdiction.” Other definitions, like those referencing a statute, policy or practice “that prevents or hinders the enforcement of Federal law” suggest more of a negligence standard. Id. Sec. 9(a). Plaintiff Cities have no reliable way to determine which definition of “sanctuary jurisdiction” applies and whether they fit into the operative definitions.
154. Because the significant financial penalties at stake in the Executive Order are conditioned on whether Plaintiff Cities are deemed “sanctuary jurisdictions,” the Executive Order is also vague about whether Plaintiff Cities are subject to its penalties.
155. The Executive Order is also vague as to the sanctions for “sanctuary jurisdictions.” On its face, the Executive Order threatens receipt of all federal grants or all federal funds, whether or not they are connected with immigration policies, except as “deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” Id. Sec. 9(a). The
36

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 37 of 45
Executive Order provides no guidance on what grants are “necessary for law enforcement purposes.”
156. The vagueness of the Executive Order imposes a chilling effect on all cities, as it is impossible to determine if Plaintiff Cities and others are subject to its terms, or what the potential consequences may be if they are subject to its terms.
157. The Executive Order’s proscriptions and sanctions are unconstitutionally vague in their applications, in violation of the Due Process Clause of the Fifth Amendment of the U.S. Constitution. The Executive Order does not provide meaningful guidance as to what municipalities must do to continue to receive funding, and it encourages arbitrary enforcement of penalties by the Executive branch.
CAUSES OF ACTION COUNT ONE
DECLARATORY RELIEF – THE CITY OF CHELSEA COMPLIES WITH 8 U.S.C. § 1373
158. Plaintiff City of Chelsea repeats and incorporates by reference each allegation of the prior paragraphs, as fully set forth herein.
159. Chelsea is a self-proclaimed sanctuary city. 160. Defendants contend that “sanctuary jurisdictions” do not comply with 8 U.S.C. § 1373. 161. Chelsea complies with 8 U.S.C. § 1373. Neither the June 4, 2007 Resolution nor the Chelsea Police Policy prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, federal immigration agencies information regarding citizenship or immigration status, whether lawful or unlawful, of any individual.
37

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 38 of 45
162. An actual controversy presently exists between Chelsea and Defendants about whether Chelsea complies with 8 U.S.C. § 1373.
163. A judicial determination resolving this controversy is necessary and appropriate at this time.
COUNT TWO DECLARATORY RELIEF – THE CITY OF LAWRENCE COMPLIES WITH
8 U.S.C. § 1373 164. Plaintiff City of Lawrence repeats and incorporates by reference each allegation of the prior paragraphs, as fully set forth herein. 165. Lawrence has taken actions that subject it to the title of sanctuary city. 166. Defendants contend that “sanctuary jurisdictions” do not comply with 8 U.S.C. § 1373. 167. Lawrence complies with 8 U.S.C. § 1373. The Lawrence Trust Ordinance does not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, federal immigration agencies information regarding citizenship or immigration status, whether lawful or unlawful, of any individual. 168. An actual controversy presently exists between Lawrence and Defendants about whether Lawrence complies with 8 U.S.C. § 1373. 169. A judicial determination resolving this controversy is necessary and appropriate at this time.
COUNT THREE TENTH AMENDMENT - EXECUTIVE ORDER SECTION 9(A)’S ENFORCEMENT
DIRECTIVE IS UNCONSTITUIONALLY COERCIVE 170. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein.
38

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 39 of 45
171. The Executive Order is unconstitutionally coercive of Plaintiff Cities, in violation of the Tenth Amendment to the United States Constitution, as the Executive Branch does not have “authority to require the States to regulate.” Nat’l Fed’n of Indep. Bus v. Sebelius, 132 S. Ct. 2566, 2602 (2012).
172. The conditions that the Executive Order Section 9(a) places on federal grants are constitutionally improper because they were not established unambiguously prior to the funds being granted, and did not allow Plaintiff Cities to make knowing, cognizant decisions about whether to accept federal grants. Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1, 24-25 (1981).
173. The amount of federal funds being threatened is unconstitutionally coercive. Sebelius, 132 S. Ct. at 2604-05 (finding the threatened loss of 10% of a state’s overall budget to be so coercive as to be a “gun to the head”).
174. There is no connection between the conditions imposed in the Executive Order mandating compliance with federal immigration laws, specifically 8 U.S.C. § 1373, and the federal funds being threatened, as is constitutionally required. South Dakota v. Dole, 483 U.S. 203, 211 (1987).
175. As applied to Plaintiff Cities, the retroactive conditions placed on federal grants in the Executive Order, the threatened loss of federal funds, and the lack of nexus between the Executive Order and the federal funds being threatened constitute unconstitutional coercion in violation of the Tenth Amendment of the United States Constitution.
COUNT FOUR TENTH AMENDMENT – THE EXECUTIVE ORDER IS UNCONSTITUTIONAL
176. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein.
39

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 40 of 45
177. On its face, the Executive Order is unconstitutional as a violation of the Tenth Amendment because it purports to grant Executive officers the authority to penalize state and local governments that are deemed to “prevent or hinder” the enforcement of federal law, and thus purports to enable the federal government to force state and local governments to adopt policies and practices that support or align with federal policies, to the subordination of state and local government interests.
COUNT FIVE TENTH AMENDMENT – 8 U.S.C. § 1373(a) IS UNCONSTITUTIONAL AS APPLIED TO
PLAINTIFF CITIES 178. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 179. As applied against Plaintiff Cities, 8 U.S.C. § 1373(a) is unconstitutional as a violation of the Tenth Amendment by, inter alia, restricting Plaintiffs from exercising powers conferred upon them by the state in the regulation of Plaintiffs’ internal affairs and policymaking decisions regarding effective law enforcement priorities and the regulation of local resources.
COUNT SIX TENTH AMENDMENT - 8 U.S.C. § 1373(a) IS UNCONSTITUTIONAL 180. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 181. On its face, 8 U.S.C. § 1373 is unconstitutional as a violation of the Tenth Amendment because it seeks to limit state and local governments’ authority to regulate their internal affairs and to exercise their powers of self-government. Section 1373 is invalid in all its applications because its terms leave no room for an application of the statute that does not restrict
40

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 41 of 45
state and local governments’ policy choices. The restriction imposed by any possible application of § 1373 would violate principles of federalism and the Tenth Amendment.
COUNT SEVEN THE EXECUTIVE ORDER VIOLATES THE SEPARATION OF POWERS
RECOGNIZED BY THE UNITED STATES CONSTITUTION 182. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 183. The Executive Order violates the separation of powers recognized by the U.S. Constitution. 184. The Executive Order creates a penalty for § 1373 violations that Congress did not authorize. Moreover, the Executive Order imposes the penalties without any regard to whether Congress authorized the Secretary or the Attorney General to impose such conditions on funds in the underlying statute.
COUNT EIGHT FIFTH AMENDMENT – THE EXECUTIVE ORDER IS UNCONSTITUIONALLY
VAGUE, IN VIOLATION OF THE DUE PROCESS CLAUSE 185. Plaintiffs repeat and incorporate by reference each allegation of the prior paragraphs as if fully set forth herein. 186. The Executive Order is unconstitutionally vague. It is impossible for Plaintiff Cities to determine if they fit into its definition(s) of “sanctuary jurisdictions,” whether they are subject to its penalties, or what penalties might be imposed if they are determined to be “sanctuary jurisdictions.” 187. As applied against Plaintiff Cities, the Executive Order is unconstitutionally vague within the meaning of the Due Process Clause of the Fifth Amendment because it fails to clarify
41

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 42 of 45
what is required of Plaintiff Cities and thus encourages arbitrary enforcement by failing to describe with sufficient particularity what a city must do in order to satisfy its mandates.
PRAYER FOR RELIEF Wherefore, Plaintiffs pray for the following relief:
A. Declare that Plaintiff Cities are not “sanctuary jurisdictions” as defined by the Executive Order and thus not subject to its directives;
B. Declare that Plaintiff Cities comply with 8 U.S.C. § 1373; C. Declare that the City of Chelsea currently complies with 8 U.S.C. § 1373, and that its June 4, 2007 Resolution and Chelsea Police Policy do not violate 8 U.S.C. § 1373; D. Declare that the City of Lawrence currently complies with 8 U.S.C. § 1373, and that the Lawrence Trust Ordinance does not violate 8 U.S.C. § 1373; E. Enjoin Defendants from enforcing 8 U.S.C. § 1373(a) or using it as a condition for receiving federal funds; F. Declare that 8 U.S.C. § 1373(a) is invalid as applied to Plaintiff Cities and their sanctuary-city laws and policies, which were enacted for legitimate local purposes related to public health and safety; G. Declare that 8 U.S.C. § 1373(a) is unconstitutional on its face; H. Declare that the Executive Order’s directive 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,” is unconstitutional on its face; I. Declare that the Executive Order’s directive that “the Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. [§] 1373, or which has in
42

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 43 of 45

effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law,” is unconstitutional as applied to Plaintiffs;
J. Enjoin Defendants from designating Plaintiff Cities as jurisdictions that fail to comply with 8 U.S.C. § 1373;
K. Enjoin unconstitutional applications of the enforcement directive in Executive Order Sec. 2(c);
L. Enjoin unconstitutional applications of the enforcement directive in Executive Order Section 9(a);
M. In the alternative, enjoin Defendants to provide further clarity on the vague definitions of “sanctuary jurisdictions,” which municipalities are subject to its penalties, and what those penalties might be;
N. Award Plaintiffs reasonable costs and attorneys’ fees; and O. Grant any other further relief that the Court deems fit and proper.

Dated: February 8, 2017

Respectfully submitted,
/s/ Inez H. Friedman-Boyce
Inez H. Friedman-Boyce (BBO# 630910) IFriedmanBoyce@goodwinlaw.com Daryl Wiesen (BBO# 634872) DWiesen@goodwinlaw.com Elaine Herrmann Blais (BBO # 656142) EBlais@goodwinlaw.com Jennifer Burns Luz (BBO # 657739) JLuz@goodwinlaw.com Sarah J. Fischer (BBO # 688878) SFischer@goodwinlaw.com Alexandra Lu (BBO # 691114) ALu@goodwinlaw.com
43

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 44 of 45
Louis Lobel (BBO # 693292) LLobel@goodwinlaw.com
Goodwin Procter LLP 100 Northern Ave. Boston, MA 02210 (617) 570-1000
Elizabeth Holland (pro hac vice pending) EHolland@goodwinlaw.com
Goodwin Procter LLP The New York Times Building 620 Eighth Avenue New York, NY 10018-1405 (212) 813-8800
Brian Burgess (pro hac vice pending) BBurgess@goodwinlaw.com
Goodwin Procter LLP 901 New York Avenue, N.W. Washington, DC 20001-4432 (202) 346-4000
David Zimmer (pro hac vice pending) DZimmer@goodwinlaw.com
Goodwin Procter LLP Three Embarcadero Center San Francisco, CA 94111-4017 (415) 733-6000
Iván Espinoza-Madrigal (pro hac vice pending) iespinoza@lawyerscom.org Oren Sellstrom (BBO # 569045) osellstrom@lawyerscom.org Sophia Hall (BBO # 684541) SHall@lawyerscom.org
Lawyers’ Committee for Civil Rights and Economic Justice
44

Case 1:17-cv-10214-GAO Document 1 Filed 02/08/17 Page 45 of 45 61 Batterymarch St., 5th Floor Boston, MA 02110 (617) 482-1145 Attorneys for Plaintiffs City of Chelsea and City of Lawrence
45

 
 Case 1:17-cv-10214-GAO Document 21 Filed 04/10/17 Page 1 of 3

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

CITY OF CHELSEA; CITY OF

)

LAWRENCE

)

)

Plaintiffs,

)

v.

)

Civil Action No. 17-10214-GAO

)

DONALD J. TRUMP, President of the )

United States of America; UNITED

)

STATES OF AMERICA; JOHN F.

)

KELLEY, Secretary of the United States )

Department of Homeland Security;

)

JEFFERSON B. SESSIONS, III,1 Attorney )

General of the United States; DOES 1-100,2 )

)

Defendants.

)

)

DEFENDANTS’ MOTION TO DISMISS

Pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure, Defendants the United States of America, and Donald J. Trump, John F. Kelley, and Jefferson B. Sessions, III, in their official capacities, hereby move to dismiss the Complaint in the abovecaptioned matter. A memorandum of points and authorities and a proposed order accompany this motion.

1 Attorney General Sessions is automatically substituted for former Acting Attorney General Dana J. Boente, pursuant to Rule 25(d) of the Federal Rules of Civil Procedure.
2 Plaintiffs name “DOES 1-100” as defendants in this matter but do not identify those individuals or specify the capacity in which those individuals are being sued. See Compl. ¶ 26 (ECF No. 1). Undersigned counsel does not purport to represent those individuals, and claims against those individuals are not at issue in this Motion to Dismiss. Moreover, because those individuals have not been named or served, granting this Motion would resolve this litigation in its entirety.

Case 1:17-cv-10214-GAO Document 21 Filed 04/10/17 Page 2 of 3

April 10, 2017

Respectfully Submitted,
CHAD A. READLER Acting Assistant Attorney General
WILLIAM D. WEINREB Acting United States Attorney
JOHN R. TYLER Assistant Branch Director
/s/ Stephen J. Buckingham STEPHEN J. BUCKINGHAM (MD Bar) U.S. Department of Justice, Civil Division Tel: (202) 514-3330 Fax: (202) 616-8470 Email: stephen.buckingham@usdoj.gov P.O. Box 883 Ben Franklin Station Washington, DC 20530
Attorneys for Federal Defendants

Case 1:17-cv-10214-GAO Document 21 Filed 04/10/17 Page 3 of 3
CERTIFICATE OF SERVICE I certify that on April 10, 2017, I caused a copy of this Motion to Dismiss, a Memorandum of Points and Authorities, and a Proposed Order to be filed electronically and that these documents are available for viewing and downloading from the ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system.
/s/ Stephen J. Buckingham STEPHEN J. BUCKINGHAM
LOCAL RULE 7.1 CERTIFICATION Pursuant to Local Civil Rule 7.1(a)(2), undersigned counsel has conferred with plaintiffs’ counsel and attempted in good faith to resolve or narrow the issues in this matter.
/s/ Stephen J. Buckingham STEPHEN J. BUCKINGHAM

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 1 of 28

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

CITY OF CHELSEA; CITY OF

)

LAWRENCE

)

)

Plaintiffs,

)

v.

)

Civil Action No. 17-10214-GAO

)

DONALD J. TRUMP, President of the )

United States of America; JOHN F.

)

KELLEY, Secretary of the United States )

Department of Homeland Security;

)

JEFFERSON B. SESSIONS, III, Attorney )

General of the United States; DOES 1-100, )

)

Defendants.

)

)

MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 2 of 28
TABLE OF CONTENTS
INTRODUCTION .......................................................................................................................... 1 LEGAL OVERVIEW ..................................................................................................................... 3
I. The Executive Enjoys Broad Discretion in Enforcement of Immigration Law................... 3 II. Executive Order 13,768 ....................................................................................................... 5 PROCEDURAL BACKGROUND................................................................................................. 7 LEGAL STANDARD..................................................................................................................... 8 ARGUMENT .................................................................................................................................. 9 I. The Court Lacks Jurisdiction to Consider the Cities’ Claims.............................................. 9
A. The Cities’ Claims Are Not Ripe for Judicial Review................................................... 10 1. The Cities’ Claims Are Not Fit for Judicial Review Because Those Claims are Based on Contingent Future Events. ............................................................................................ 11 2. The Cities Fail to Establish Sufficient Harm from Delay of Judicial Review. .......... 13
B. The Cities Lack Standing Because They Have Failed to Demonstrate They Have Suffered Concrete and Immediate Injury In Fact. ................................................................. 14 II. The Cities Fail to State a Claim that Section 1373 Violates the Tenth Amendment......... 16 IV. The Cities Fail to State a Claim Under the Fifth Amendment Vagueness Doctrine...... 17 V. The Cities Fail to State a Claim for Declaratory Relief Regarding Their Compliance with Section 1373. ............................................................................................................................. 19 VI. Injunctive or Declaratory Relief Against the President is Inappropriate. ...................... 20 CONCLUSION............................................................................................................................. 20
i

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 3 of 28
TABLE OF AUTHORITIES Cases Abbott Labs. v. Gardner,
387 U.S. 136 (1967) ........................................................................................................... passim Alexander v. Sandoval,
532 U.S. 275 (2001) .................................................................................................................. 19 Arizona Dream Act Coal. v. Brewer,
___ F.3d ___, No. 15-15307, 2017 WL 461503 (9th Cir. Feb. 2, 2017) .................................... 3 Arizona v. United States,
567 U.S. 387, 132 S. Ct. 2492 (2012) ......................................................................................... 3 Ashcroft v. Iqbal,
556 U.S. 662 (2009) .................................................................................................................... 9 Berner v. Delahanty,
129 F.3d 20 (1st Cir. 1997) ......................................................................................................... 9 Bigelow v. Virginia,
421 U.S. 809 (1975) .................................................................................................................. 15 Boston Teachers Union, Local 66, AFT, AFL-CIO v. Edgar,
787 F.2d 12 (1st Cir. 1986) ....................................................................................................... 20 Buck v. Am. Airlines, Inc.,
476 F.3d 29 (1st Cir. 2007) ....................................................................................................... 20 City of Fall River v. FERC,
507 F.3d 1 (1st Cir. 2007) ........................................................................................................... 9 City of N.Y. v. United States,
179 F.3d 29 (2d Cir. 1999) ........................................................................................................ 17 Doe v. Bush,
323 F.3d 133 (1st Cir. 2003) ..................................................................................................... 10 Eagle-Picher Indus., Inc. v. EPA,
759 F.2d 905 (D.C. Cir. 1985) .................................................................................................. 13
ii

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 4 of 28
Ernst & Young v. Depositors Economic Protection Corp., 45 F.3d 530 (1st Cir. 1995) ....................................................................................................... 11
Foley v. Wells Fargo Bank, N.A., 772 F.3d 63 (1st Cir. 2014) ......................................................................................................... 9
Golden v. Zwickler, 394 U.S. 103 (1969) .................................................................................................................. 19
Hightower v. City of Boston, 693 F.3d 61 (1st Cir. 2012) ....................................................................................................... 17
Humanitarian Law Project v. Dep’t of the Treasury, 578 F.3d 1133 (9th Cir. 2009)................................................................................................... 18
Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) .............................................................................................................. 8, 16
Mass. Ass’n of Afro–American Police, Inc. v. Boston Police Dep’t, 973 F.2d 18 (1st Cir. 1992) ................................................................................................. 11, 12
Mississippi v. Johnson, 71 U.S. 475 (1866) .................................................................................................................... 20
Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803 (2003) .................................................................................................................. 12
Newdow v. Bush, 391 F. Supp. 2d 95 (D.D.C. 2005) ............................................................................................ 20
Renne v. Geary, 501 U.S. 312 (1991) .................................................................................................................... 8
Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993) .................................................................................................................... 10
Rhode Island Ass’n of Realtors, Inc. v. Whitehouse, 199 F.3d 26 (1st Cir. 1999) ....................................................................................................... 14
Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78 (1st Cir. 2013) ................................................................................................. 11, 13
Sampson v. Murray, 415 U.S. 61 (1974) .................................................................................................................... 14
iii

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 5 of 28
Skilling v. United States, 561 U.S. 358 (2010) .............................................................................................................. 3, 18
Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998) ................................................................................................................ 8, 14
Swan v. Clinton, 100 F.3d 973 (D.C. Cir. 1996) .................................................................................................. 20
Texas Indus. v. Radcliff Materials, Inc., 451 U.S. 630 (1981) .................................................................................................................. 19
Texas v. United States, 523 U.S. 296 (1998) .............................................................................................................. 9, 10
Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158 (1967) .................................................................................................................. 13
United States ex rel. Ondis v. City of Woonsocket, 587 F.3d 49 (1st Cir. 2009) ......................................................................................................... 8
United States v. Barnes, 890 F.2d 545 (1st Cir. 1989) ..................................................................................................... 18
United States v. Mazurie, 419 U.S. 544 (1975) ........................................................................................................ 3, 18, 19
United States v. Salerno, 481 U.S. 739 (1987) ........................................................................................................ 2, 16, 17
Warth v. Seldin, 422 U.S. 490 (1975) .................................................................................................................. 10
Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) ............................................................................................................ 16, 17
Welch v. United States, 136 S. Ct. 1257 (2016) .............................................................................................................. 18
Whitmore v. Arkansas, 495 U.S. 149 (1990) .................................................................................................... 2, 9, 14, 15
iv

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 6 of 28
Statutes 8 U.S.C. §§ 1101 et seq................................................................................................................... 3 8 U.S.C. § 1373...................................................................................................................... passim 8 U.S.C. § 1357............................................................................................................................... 4 28 U.S.C. § 1331........................................................................................................................... 19 28 U.S.C. § 1346........................................................................................................................... 19 28 U.S.C. § 2201........................................................................................................................... 20 28 U.S.C. § 2202........................................................................................................................... 20 U.S. Const. art. II § 3 ...................................................................................................................... 3 U.S. Const. art. III § 2 ..................................................................................................................... 8 Other Authorities Exec. Order No. 13,768,
82 Fed. Reg. 8799 (Jan. 30, 2017) ..................................................................................... passim Exec. Order No. 13,726,
81 Fed. Reg. 23,559 (2016)......................................................................................................... 4 Exec. Order No. 13,608,
77 Fed. Reg. 26,409 (2012)......................................................................................................... 4 ICE Declined Detainer Outcome Report FAQs,
available at https://www.ice.gov/declined-detainer-outcome-report.................................... 6, 12 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).................................................. 1 Mem. from John Kelly, Sec’y of Homeland Sec., to Kevin McAleenan, Acting
Comm’r, U.S. Customs and Border Protection, et al., Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017).............................................. 4 Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason, 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 Recipients (May 31, 2016), available at https://oig.justice.gov/reports/2016/1607.pdf ......................................................... 5
v

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 7 of 28 Pub. L. No. 104-208, 110 Stat. 3009 (1996)................................................................................... 5
vi

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 8 of 28
INTRODUCTION On January 25, 2017, the President signed Executive Order 13,768 for the declared purpose of “direct[ing] executive departments and agencies . . . to employ all lawful means to enforce the immigration laws of the United States.” See Exec. Order No. 13,768, § 1, 82 Fed. Reg. 8,799 (Jan. 30, 2017). Section 9 of the Order, which is the subject of this litigation, establishes a policy of ensuring that state and local jurisdictions comply with 8 U.S.C. § 1373. Id. § 9, 82 Fed. Reg. at 8,801. Section 1373 provides, inter alia, that no government entity or official may prohibit or restrict the sending or receiving of information regarding the citizenship or immigration status of any individual to federal immigration authorities. 8 U.S.C. § 1373. The Order is a presidential directive, directed to the Attorney General, the Secretary of Homeland Security (the “Secretary”), and other federal officials. It does not purport to alter the existing requirements of Section 1373 (or any other federal law), impose new burdens on state or local jurisdictions, or expand the legal authority of the Secretary or the Attorney General. Rather, it simply announces the policy of the Executive Branch and directs the Secretary and Attorney General, in their discretion and consistent with their existing legal authority, to ensure that jurisdictions that willfully refuse to comply with Section 1373 not be eligible to receive federal grants, except as deemed necessary for law enforcement purposes. Id. Section 9 of the Executive Order is not self-executing, and the Secretary and Attorney General have not yet taken the several steps necessary to execute the directives contained in that section.1 Defendants have taken no action against the Cities of Chelsea and Lawrence, Massachusetts (the “Cities”) under Section 1373 or under Section 9 of the Executive Order. Nevertheless, the Cities filed the instant lawsuit seeking declaratory and injunctive relief to prevent defendants from taking hypothetical future actions pursuant to those authorities. The
1 In this regard, the Department of Justice sent a letter to members of Congress, on March 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 with federal law.” See 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) (Attachment 1 hereto).
1

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 9 of 28
Cities’ lawsuit is premature. The Cities concede that they have not been the subject of any adverse action, and they fail to allege that such action has even been threatened. Indeed, the Secretary has not designated (or even indicated an intent to designate) the Cities as “sanctuary jurisdictions” in accordance with the process contemplated in Section 9, and the Cities affirmatively state that they comply with the requirements of Section 1373.
The Cities cannot show any injury due to the mere existence of Section 1373 or the Executive Order, much less establish the “concrete,” “palpable” injury needed to meet the constitutional requirement of standing. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). Moreover, because the Executive Order has not been “formalized and its effects felt in a concrete way,” the Cities’ pre-enforcement challenge to the Order should be rejected under the ripeness doctrine. See Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967) abrogated on other grounds, Califano v. Sanders, 430 U.S. 99, 97 (1977). The Cities’ Complaint is based on speculation concerning the Order’s scope, assumptions about the manner in which the Secretary and Attorney General might interpret and implement the Order’s provisions, and conjecture concerning the possibility that the Cities might one day be designated as “sanctuary jurisdictions” pursuant to the Order and might lose certain, unidentified federal grants as a result. Such speculative assertions fall short of demonstrating concrete injury, and the Supreme Court has made clear that the ripeness doctrine exists to prevent courts from issuing decisions based on hypothetical circumstances like those alleged in the Complaint.
Additionally, the Cities have failed to state claims upon which relief can be granted for general declaratory relief or under the Tenth Amendment and Fifth Amendment to the Constitution. The Cities’ request for a declaration regarding their compliance with Section 1373 fails because the Cities identify no cause of action authorizing such relief, and because the relief they seek would require the Court to render an advisory opinion, which is forbidden under Article III. Their facial Tenth Amendment challenge to Section 1373 fails because the Complaint fails to establish that “no set of circumstances exists under which [Section 1373] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). Similarly, their Fifth
2

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 10 of 28
Amendment pre-enforcement challenge under the vagueness doctrine fails because such challenges are precluded in matters in which First Amendment freedoms are not at stake, see United States v. Mazurie, 419 U.S. 544, 550 (1975), or where the challenged provision is amenable to a limiting construction. See Skilling v. United States, 561 U.S. 358, 405 (2010).
The Executive Order does not alter or expand the existing law that governs when the Federal Government may revoke a federal grant where the grantee violates legal requirements. Instead, the President – pursuant to his express constitutional authority to ensure that federal agencies “take Care that the Laws be faithfully executed,” U.S. Const. art. II, § 3 – has directed agency heads to utilize their existing legal authorities “to the extent consistent with law,” see Exec. Order No. 13,768, § 9, in connection with local violations of Section 1373. In other words, the Executive Order does nothing more than direct enforcement of preexisting duties under federal law. The Cities’ conjecture to the contrary does not satisfy their burden of establishing the justiciability or viability of their claims; accordingly, the Court should dismiss the Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure.
LEGAL OVERVIEW I. The Executive Enjoys Broad Discretion in Enforcement of Immigration Law.
“The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens.” Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492, 2497 (2012). Through the Immigration and Nationality Act (“INA”), 8 U.S.C. §§ 1101 et seq., Congress granted the Executive Branch significant authority to control the entry, movement, and other conduct of foreign nationals in the United States. Under the INA, the Department of Homeland Security (“DHS”), the Department of Justice, and other agencies of the Executive Branch administer and enforce the immigration laws. Likewise, the INA permits the Executive Branch to exercise considerable executive discretion to direct enforcement pursuant to federal policy objectives. See Arizona Dream Act Coal. v. Brewer, ___ F.3d ___, No. 15-15307, 2017 WL 461503, at *9-10 (9th Cir. Feb. 2, 2017) (“By necessity, the federal statutory and regulatory
3

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 11 of 28
scheme, as well as federal case law, vest the Executive with very broad discretion to determine enforcement priorities.”). Several Presidents have exercised this discretion by Executive Order, and they have done so in differing ways, reflecting their individual judgments as to how best to take care that the laws of the United States be faithfully executed. See, e.g., Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (2016) (“Suspending Entry Into the United States of Persons Contributing to the Situation in Libya”); Exec. Order No. 13,608, 77 Fed. Reg. 26,409 (2012) (“Suspending Entry Into the United States of Foreign Sanctions Evaders With Respect to Iran and Syria”). The Secretary has also consistently exercised similar executive discretion in the enforcement of federal immigration law. See, e.g., Mem. from John Kelly, Sec’y of Homeland Sec., to Kevin McAleenan, Acting Comm’r, U.S. Customs and Border Protection, et al., Enforcement of the Immigration Laws to Serve the National Interest (Feb. 20, 2017).2
The INA contains a number of provisions regarding the involvement of state and local authorities in the enforcement of immigration law. For example, Section 287(g) of the INA authorizes the Secretary to enter into written agreements with a state or local government under which officers of such government may “perform a function of an immigration officer in relation to the investigation, apprehension, or detention of aliens in the United States.” 8 U.S.C. § 1357(g)(1). Likewise, the INA provides for cooperation with DHS in the “identification, apprehension, detention, or removal of aliens not lawfully present in the United States[,]” even without a formal cooperation agreement. Id. § 1357(g)(10)(B). Another provision, 8 U.S.C. § 1373, ensures the sharing of information between federal and state actors:
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, [federal immigration authorities] information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
2 The memorandum is available at https://www.dhs.gov/ sites/ default/ files/ publications/ 17_0220_S1_Enforcement-of-the-Immigration-Laws-to-Serve-the-National-Interest.pdf.
4

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 12 of 28
Id. § 1373(a); see Pub. L. No. 104-208, Div. C, Title VI, § 642, 110 Stat. 3009, 3009-707 (1996). Section 1373 also proscribes prohibiting or restricting any government entity from “maintaining” information regarding the immigration status of any individual. 8 U.S.C. § 1373(b).
Well before the issuance of Executive Order 13,768, the compliance of state and local governments with Section 1373 has been of interest to federal agencies because such governments are recipients of federal grants. For example, the Inspector General of the Department of Justice issued a memorandum on May 31, 2016, as plaintiffs note (Compl. ¶¶ 71-74), describing a concern that several state and local governments receiving federal grants were not complying with 8 U.S.C. § 1373. See Mem. from Michael E. Horowitz, Inspector Gen., to Karol V. Mason, 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 Recipients (May 31, 2016), available at https://oig.justice.gov/reports/2016/1607.pdf. Although the Inspector General observed that some applications of certain local ordinances might be inconsistent with Section 1373, id. at 4-8, the report nevertheless noted that “no one at DHS . . . has made a formal legal determination whether certain state and local laws or policies violate Section 1373, and we are unaware of any Department of Justice decision in that regard.” Id. at 8 n.12. II. Executive Order 13,768
The President signed Executive Order 13,768, Enhancing Public Safety in the Interior of the United States, on January 25, 2017. 82 Fed. Reg. 8,799 (Jan. 30, 2017). The Order seeks to “[e]nsure the faithful execution of the immigration laws,” including the INA. See id. § 2(a), 82 Fed. Reg. at 8,799. It sets forth several policies and priorities regarding enforcement of federal immigration law within the United States, and it instructs certain federal officials to use “all lawful means” to enforce those laws. See id. §§ 1, 4, 82 Fed. Reg. at 8,799-800.
As permitted by the INA, Executive Order 13,768 establishes priorities regarding aliens who are subject to removal from the United States under the immigration laws. Id. § 5, 82 Fed. Reg. at 8,800. Several provisions of the Order instruct officials to take actions directing future conduct, including instructions to promulgate certain regulations within one year, to take “all
5

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 13 of 28
appropriate action” to hire additional immigration officers, to seek agreements with state and local officials under Section 287(g) of the INA (referred to above), to develop a program to ensure adequate prosecution of criminal immigration offenses, and to establish an office to provide certain services to victims of crimes committed by removable aliens. Id. §§ 6, 7, 8, 11, 13, 82 Fed. Reg. at 8,799-802. Throughout, the Order specifies that federal officials are to take these actions as “permitted by law” or as “consistent with law.” Id. §§ 7, 8, 9(a), 10(b), 12, 14, 17, 18(b), 82 Fed. Reg. at 8,799-802.
Section 9 of the Executive Order provides 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.” Section 9(a) directs federal agencies to achieve that policy:
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 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.
Id. § 9(a), 82 Fed. Reg. at 8,801. Section 9 further directs the Secretary to publicize, each week,
“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.” Id. § 9(b), 82 Fed. Reg. at
8,801.3 It also instructs the Director of OMB to “obtain and provide relevant and responsive
3 U.S. Immigration and Customs Enforcement (“ICE”) published the first weekly report pursuant to this directive on March 20, 2017, and made clear that publication of that report did not constitute a designation of “sanctuary jurisdictions” under Section 9. See, e.g., ICE Declined Detainer Outcome Report FAQs, available at https://www.ice.gov/declined-detainer-outcomereport (“Are the jurisdictions or agencies on this list considered sanctuary locations? . . . As set forth in Executive Order 13768, . . . the Secretary has authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. [DHS] continues to
6

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 14 of 28
information on all Federal grant money that currently is received by any sanctuary jurisdiction.” Id. § 9(c), 82 Fed. Reg. at 8,801.
Finally, the Executive Order directs the Secretary and the Attorney General to report on their progress in implementing the Order, first “within 90 days of the date of [the] order and again within 180 days of the date of [the] order.” Id. § 15, 82 Fed. Reg. at 8,802.
PROCEDURAL BACKGROUND The Cities filed the Complaint in this matter on February 8, 2017, seeking declaratory and injunctive relief to prohibit the enforcement of Section 1373 and the implementation of the Order. See generally Compl., Prayer for Relief ¶¶ A–O (ECF No. 1). The Cities do not allege that the Secretary has designated them as “sanctuary jurisdictions” in accordance with the process contemplated in Section 9. See, e.g., id. ¶¶ 69, 110. They also do not allege that any federal funding has been withheld or revoked pursuant to the Order, or that any federal agency has threatened them with any adverse action. Rather, they allege only that there are “reasons to believe” that, at some point in the future, defendants “will interpret the ordinances, policies, and practices” of the Cities in a certain manner, and, as a result, the defendants might designate the Cities as sanctuary jurisdictions. Id. ¶ 69. The Cities further allege that, following this hypothetical future designation, defendants might decide to withhold an indeterminate amount of federal funding from the Cities, or take other, unspecified action against them. Id. The Cities also contend that they “comply with the requirements of 8 U.S.C. § 1373,” id. ¶ 80, and they seek a declaration from this Court confirming their compliance with that
evaluate the appropriate criteria for such designation.”); id. (“My jurisdiction is on the Declined Detainer Outcome Report. Will we lose our federal funding? . . . ICE does not administer grants, and inclusion on the DDOR will not automatically result in ineligibility for grants. . . . DHS is currently working to develop a process, in coordination with the Department of Justice and other interagency partners, to address” the grant eligibility provisions of E.O. 13,768.).
7

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 15 of 28
provision, id., Prayer for Relief ¶ B. They nevertheless contend that the defendants might one day construe the requirements of Section 1373 in a manner that would render that provision unconstitutional, and that defendants might rely on that unconstitutional interpretation to take adverse action against them. See, e.g., id. ¶ 139 (alleging that if the defendants were to apply or interpret Section 1373 in certain ways, those interpretations or applications “would be” unconstitutional). Importantly, the Cities do not allege that any adverse action has been taken against them pursuant to Section 1373.
LEGAL STANDARD Defendants seek dismissal of the Complaint pursuant to Rule 12(b)(1) the Federal Rules of Civil Procedure on the grounds that the Court lacks subject-matter jurisdiction to entertain the complaint. The jurisdiction of a federal court is limited to “cases” and “controversies.” U.S. Const., Art. III, § 2. “Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). The party asserting federal court jurisdiction has the burden of demonstrating its existence. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992); United States ex rel. Ondis v. City of Woonsocket, 587 F.3d 49, 54 (1st Cir. 2009). Courts should “presume that [they] lack jurisdiction unless the contrary appears affirmatively from the record.” Renne v. Geary, 501 U.S. 312, 316 (1991). Defendants also seek dismissal of several of the claims alleged in the Complaint pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. In evaluating a Rule 12(b)(6) argument, the Court accepts the factual allegations in the complaint as true, construes reasonable inferences in the complainant’s favor, and “determine[s] whether the factual allegations in the plaintiff’s complaint set forth a plausible claim upon which relief may
8

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 16 of 28
be granted.” Foley v. Wells Fargo Bank, N.A., 772 F.3d 63, 71 (1st Cir. 2014). To survive a Rule 12(b)(6) motion, the factual allegations in a complaint must “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. Dismissal for failure to state a claim is appropriate when the complaint fails to set forth “factual allegations, either direct or inferential, respecting each material element necessary to sustain recovery under some actionable legal theory.” Berner v. Delahanty, 129 F.3d 20, 25 (1st Cir. 1997).
ARGUMENT I. The Court Lacks Jurisdiction to Consider the Cities’ Claims.
Executive Order 13,768 is not self-executing and no adverse action has been taken against the Cities under the Order. Nor has the government interpreted or implemented Section 1373 in the manner that the Cities fear, or taken any action whatsoever against the Cities pursuant to that provision of law. Accordingly, because the Cities’ claims “rest[] upon contingent future events that may not occur as anticipated, or indeed may not occur at all,” those claims are not ripe for adjudication. Texas v. United States, 523 U.S. 296, 300 (1998); City of Fall River v. FERC, 507 F.3d 1, 7 (1st Cir. 2007). Similarly, because defendants have not taken or threatened to take any adverse action against the Cities under the challenged authorities, the Cities cannot meet their burden of establishing a “concrete,” “objective,” and “palpable,” injury necessary to satisfy the constitutional requirement of standing. Whitmore, 495 U.S. at 155. Thus, the Cities’ claims are non-justiciable under both the ripeness doctrine and the standing doctrine, and the Court lacks jurisdiction to entertain those claims.
9

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 17 of 28
A. The Cities’ Claims Are Not Ripe for Judicial Review. Article III of the United States Constitution requires that a dispute must be ripe for judicial consideration—that is, a controversy must have “matured sufficiently to warrant judicial intervention.” Warth v. Seldin, 422 U.S. 490, 499 n.10 (1975). “A claim is not ripe for adjudication [under the Constitution] if it rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.” Texas, 523 U.S. at 300; see also Abbott Labs., 387 U.S. at 148 (“[I]njunctive and declaratory judgment remedies are discretionary, and courts traditionally have been reluctant to apply them to administrative determinations unless these arise in the context of a controversy ‘ripe’ for judicial resolution.”). The ripeness doctrine, like other justiciability doctrines, “is drawn both from Article III limitations on judicial power and from prudential reasons for refusing to exercise jurisdiction.” Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43, 58 n.18 (1993). The doctrine “prevent[s] the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and . . . protect[s] the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties.” Abbott Labs., 387 U.S. at 148-49. The doctrine also allows courts to “avoid unnecessary constitutional decisions,” and it is animated by “the recognition that, by waiting until a case is fully developed . . . courts benefit from a focus sharpened by particular facts.” Doe v. Bush, 323 F.3d 133, 138 (1st Cir. 2003). In assessing constitutional ripeness in the context of a pre-enforcement challenge to a statutory or administrative enactment, courts consider “both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Abbott Labs. at 149; Roman Catholic Bishop of Springfield v. City of Springfield, 724 F.3d 78, 89–90 (1st Cir.
10

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 18 of 28
2013) (“We generally require both prongs to be satisfied in order for a claim to be considered ripe.”). “The fitness prong of the ripeness test has both jurisdictional and prudential components.” Roman Catholic Bishop of Springfield, 724 F.3d at 89–90. The jurisdictional component “is one of timing[;]” it “concerns whether there is a sufficiently live case or controversy, at the time of the proceedings, to create jurisdiction in the federal courts.” Id. “The prudential component asks whether resolution of the dispute should be postponed in the name of judicial restraint from unnecessary decision of constitutional issues; if elements of the case are uncertain, delay may see the dissipation of the legal dispute without need for decision.” Id.; see also Ernst & Young v. Depositors Economic Protection Corp., 45 F.3d 530, 535 (1st Cir. 1995) (“This [fitness] branch of the test typically involves subsidiary queries concerning finality, definiteness, and the extent to which resolution of the challenge depends upon facts that may not yet be sufficiently developed.”).
The hardship prong of the ripeness test “looks at whether the challenged action creates a direct and immediate dilemma for the parties.” Roman Catholic Bishop of Springfield, 724 F.3d at 89–90. The “mere possibility of future injury, unless it is the cause of some present detriment, does not constitute hardship.” Id.
1. The Cities’ Claims Are Not Fit for Judicial Review Because Those Claims are Based on Contingent Future Events.
“[T]he critical question concerning fitness for review is whether the claim involves uncertain and contingent events that may not occur as anticipated or may not occur at all.” Mass. Ass’n of Afro–American Police, Inc. v. Boston Police Dep’t, 973 F.2d 18, 20 (1st Cir. 1992) (per curiam). Here, the Cities do not allege to have been penalized in any manner pursuant to Section 1373 or Section 9 of the Executive Order, and the administration has not yet implemented the enforcement provisions of Section 9. Implementation of those provisions rests upon several
11

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 19 of 28
“contingent events that may not occur as anticipated.” Id. For example, the administration may clarify some of the terms used in that Section and must take steps to designate jurisdictions as “sanctuary jurisdictions.” The administration has stated that these predicate steps are yet to occur. See, e.g., ICE Declined Detainer Outcome Report FAQs, available at https://www.ice.gov/declined-detainer-outcome-report (acknowledging that the Secretary is “evaluat[ing] the appropriate criteria for [sanctuary jurisdiction] designation” and that “DHS is currently working to develop a process, in coordination with the Department of Justice and other interagency partners, to address” the grant eligibility provisions of E.O. 13,768.).
The string of hypothetical events upon which the allegations in the Complaint rest provides evidence that the Cities’ claims are not fit for review. The speculation in which the Court would be required to engage in entertaining those claims would include having to assume that the administration will interpret the requirements of Section 1373 in an unconstitutional manner, that the administration will make a factual determination that the Cities are subject to designation as sanctuary jurisdictions, and that the Secretary or the Attorney General or both will rely on those findings to take some form of adverse action against the Cities. Those events may not transpire as the Cities anticipate, or may not transpire at all. For example, the administration may ultimately define certain terms in a manner that excludes the Cities or the grants they receive or otherwise diminishes the Order’s anticipated impact.
Delaying judicial review until there has been some concrete application of the Executive Order or some specific enforcement of Section 1373 would allow an opportunity for factual development of the Cities’ claims and would avoid judicial speculation. See Nat’l Park Hosp. Ass’n v. Dep’t of Interior, 538 U.S. 803, 812 (2003) (finding that, even where “the question presented . . . is a purely legal one[,]” the issue may not be fit for review if the court “believe[s]
12

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 20 of 28
that further factual development would significantly advance [its] ability to deal with the legal issues presented”). Thus, because the challenged provisions of Section 9 have not yet been implemented, and the administration must take several actions before that can occur, this Court would greatly benefit from deferring review until the parameters of the Order’s implementation “have crystallized and the question arises in some more concrete and final form” that is “fit” for judicial decision. Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985).
2. The Cities Fail to Establish Sufficient Harm from Delay of Judicial Review. The Cities also fail to allege harm sufficient to justify pre-enforcement review. To satisfy the hardship prong of the ripeness inquiry in the pre-enforcement review context, a plaintiff must demonstrate that “irremediable adverse consequences” will result from postponing review. Toilet Goods Ass’n, Inc. v. Gardner, 387 U.S. 158, 164 (1967). Generally, the alleged harm must be “direct and immediate[;] . . . a mere possibility of future injury, unless it is the cause of some present detriment, does not constitute hardship.” Roman Catholic Bishop of Springfield, 724 F.3d at 90. Moreover, “mere financial expense . . . is not a justification for pre-enforcement judicial review.” Abbott Labs., 387 U.S. at 153. The Cities cannot satisfy the immediacy requirement of the hardship inquiry because, as mentioned already, several steps must be taken before Section 9 can be implemented, including a determination as to what constitutes a “sanctuary jurisdiction,” what federal grants are subject to the enforcement provisions of the Order, and what actions the administration might take in limiting those grants in a manner that is “consistent with law.” Those determinations will have a bearing on the particular federal grants to which Section 9 might apply, and whether that Section is applied to the Cities at all. Thus, any “hardship” the Cities face is far from “immediate.”
13

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 21 of 28
Moreover, the primary harm the Cities allege—the potential loss of federal grant funding—is monetary in nature. The Supreme Court has held that the potential of monetary loss typically is not “a sufficient interest to sustain a judicial challenge” to agency action. Abbott Labs., 387 U.S. at 153; Sampson v. Murray, 415 U.S. 61, 90 (1974) (finding that “[m]ere injuries, however substantial, in terms of money, time and energy necessarily expended . . . are not enough” to justify injunctive relief). At this point, the Cities have suffered no harm— monetary or otherwise—because the administration has taken no enforcement action against them under the Executive Order or Section 1373. Accordingly, because the Cities cannot show that they face immediate and irremediable adverse consequences from delaying review until the Order has been applied, the Court should dismiss their claims under the ripeness doctrine.
B. The Cities Lack Standing Because They Have Failed to Demonstrate They Have Suffered Concrete and Immediate Injury In Fact.
Related to the ripeness requirement is the constitutional requirement of standing. See Rhode Island Ass’n of Realtors, Inc. v. Whitehouse, 199 F.3d 26, 33 (1st Cir. 1999) (“[S]tanding and ripeness may substantially overlap. The imbrication is nowhere more apparent than in preenforcement challenges.”). To satisfy the “irreducible constitutional minimum” of standing, a plaintiff must demonstrate an “injury in fact,” a “fairly traceable” causal connection between the injury and defendant’s conduct, and redressability. Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102-03 (1998). The injury needed for constitutional standing must be “concrete,” “objective,” and “palpable,” not merely “abstract” or “subjective.” See Whitmore, 495 U.S. at 155. The injury also must be “certainly impending” rather than “speculative.” Id. at 158.
Applying these standards here, the Cities’ alleged injuries are too speculative to meet the constitutional standing requirement. The administration has taken no action against the Cities pursuant to Section 9 of the Executive Order or Section 1373. Thus, the Cities cannot assert any
14

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 22 of 28
actual “concrete,” “objective,” and “palpable” injury. See Whitmore, 495 U.S. at 155; Bigelow, 421 U.S. at 816-17. Rather, the Cities allege the Order has created “uncertainty,” which “chills the policy priorities” of the Cities. See Compl. ¶ 69. These allegations of alleged uncertainty are “abstract” and “subjective” rather than “concrete.” See Whitmore, 495 U.S. at 155; Bigelow, 421 U.S. at 816-17. The Cities also contend that there are “reasons to believe” that the defendants will interpret Section 1373 in a manner the Cities believe would render that provision unconstitutional, that the Secretary will rely on that interpretation to designate the Cities as “sanctuary jurisdictions” pursuant to Section 9 of the Order, and that the Cities “could lose significant federal funding” as a result. See Compl. ¶ 69. Until several predicate questions are resolved, however, it is unknown what impact, if any, the Executive Order will have on the Cities. For example, the administration could interpret Section 1373 and Section 9 of the Executive Order in a manner that allays the Cities’ constitutional concerns, could decline to designate the Cities as “sanctuary jurisdictions” pursuant to the Order, or could determine that the federal grants the Cities receive are exempt from the Order’s reach. Finally, the Cities assert that, if the Order is applied in the manner the Cities fear, such an application may erode public confidence in local law enforcement. See, e.g., id. ¶ 126. The Order, however, reflects a judgment that public safety is best served by identifying and removing aliens who are unlawfully present, and the Cities’ assertions to the contrary are entirely speculative.
As alleged, the Cities’ claimed injuries are conjectural and, thus, not sufficiently concrete to constitute an actual or imminent injury-in-fact under the standing doctrine. The Cities’ failure to meet the requirement of constitutional standing deprives the Court of jurisdiction to entertain the complaint. Lujan, 504 U.S. at 559-60. Accordingly, the complaint should be dismissed.
15

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 23 of 28
II. The Cities Fail to State a Claim that Section 1373 Violates the Tenth Amendment. Beyond the lack of justiciability of all of the Cities’ claims, the Cities fail to state a claim
that 8 U.S.C. § 1373 on its face violates the Tenth Amendment. The Supreme Court has held that “[a] facial challenge to a legislative Act is, of course, the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” Salerno, 481 U.S. at 745. Facial challenges to federal statutes are disfavored because they “often rest on speculation[;]” “they raise the risk of premature interpretation of statutes on the basis of factually barebones records[;]” they “run contrary to the fundamental principle of judicial restraint that courts should neither anticipate a question of constitutional law in advance of the necessity of deciding it nor formulate a rule of constitutional law broader than is required by the precise facts to which it is to be applied[;]” and they “threaten to short circuit the democratic process by preventing laws embodying the will of the people from being implemented in a manner consistent with the Constitution.” Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442, 450-51 (2008). Thus, the mere possibility that Section 1373 could be interpreted or applied in an unconstitutional manner is insufficient to sustain a facial challenge to that provision. See Salerno, 481 U.S. at 745 (“The fact that the . . . Act might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid”).
Here, the Cities’ Complaint fails to establish that Section 1373 would be invalid under all circumstances. In enacting Section 1373, Congress determined that a state or local government policy barring voluntary cooperation with federal immigration officials is incompatible with the effective implementation of federal law. As the Second Circuit has held in rejecting a Tenth Amendment challenge to Section 1373, a contrary interpretation would “turn the Tenth
16

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 24 of 28
Amendment’s shield against the federal government’s using state and local governments to enact and administer federal programs into a sword allowing states and localities to engage in passive resistance that frustrates federal programs.” City of N.Y. v. United States, 179 F.3d 29, 35 (2d Cir. 1999). “A system of dual sovereignties cannot work without informed, extensive, and cooperative interaction of a voluntary nature,” and the Supremacy Clause resolves any conflicts by “bar[ring] [States] from taking actions that frustrate federal laws.” Id. The Tenth Amendment does not, therefore, give States and their subdivisions “an untrammeled right to forbid all voluntary cooperation by state or local officials with particular federal programs.” Id. Accordingly, because the Cities fail to establish that “no set of circumstances exists under which [Section 1373] would be valid,” their facial challenge to that provision must fail. Salerno, 481 U.S. at 745; see also Hightower v. City of Boston, 693 F.3d 61, 77 (1st Cir. 2012) (For a facial challenge to the constitutionality of a statute to succeed, the plaintiff “would have to establish . . . that the statute lacks any plainly legitimate sweep.”). IV. The Cities Fail to State a Claim Under the Fifth Amendment Vagueness Doctrine.
The Cities allege generally that the Executive Order is facially deficient under the Fifth Amendment vagueness doctrine because it provides no express definition of the term “sanctuary jurisdiction,” and because it fails to specify the exact sanctions that might be levied against a “sanctuary jurisdiction.” Compl. ¶¶ 153-157. Facial vagueness challenges, however, are not favored, particularly with respect to statutes that do not explicitly inhibit First Amendment freedoms. Wash. State Grange, 552 U.S. at 450 (facial vagueness challenges are “disfavored for several reasons,” including because such claims often “rest on speculation”). For statutes that do not explicitly inhibit First Amendment freedoms, vagueness challenges “must be examined in the light of the facts of the case at hand.” United States v. Mazurie, 419 U.S. 544, 550 (1975). And
17

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 25 of 28
the Supreme Court has recently reaffirmed that, “before striking a federal statute as impermissibly vague,” courts must consider “whether the prescription is amenable to a limiting construction.” Welch v. United States, 136 S. Ct. 1257, 1268 (2016).
Here, the Cities are challenging as vague the terms of an Executive Order, not a statute, and, as mentioned above, that Order has not been applied to the Cities, and it does not purport to alter the existing requirements of Section 1373 (or any other federal law), impose new burdens on state or local jurisdictions, or create any other new legal authority. It is thus unlikely that the Supreme Court’s vagueness jurisprudence even applies to this type of Executive action. Cf. Humanitarian Law Project v. Dep’t of the Treasury, 578 F.3d 1133, 1145 (9th Cir. 2009) (applying vagueness principles to review an Executive Order issued pursuant to an express statutory authorization and applied in a manner that adversely affected a third party).
But even assuming the vagueness doctrine is applicable here, the Cities’ vagueness arguments fail for two reasons. First, the Cities do not allege that the Order inhibits their First Amendment freedoms. Accordingly, the Court is proscribed from considering their preenforcement vagueness challenge until such time as the Order is applied against the Cities. Mazurie, 419 U.S. at 550; United States v. Barnes, 890 F.2d 545, 552 (1st Cir. 1989) (“[W]here the first amendment is not implicated, a ‘void for vagueness’ challenge must be unconstitutional as applied . . . and must be examined in light of the facts of the case at hand.”).
The Cities’ vagueness claim fails for the additional reason that the challenged provisions of the Executive Order may be “amenable to a limiting construction.” Skilling, 561 U.S. at 405. As mentioned above, the administration has announced that it is currently considering guidance and procedures that would clarify the exact terms that the Cities challenge. Accordingly, despite their claims to the contrary, the Cities do not face an immediate “Hobson’s choice” of repealing
18

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 26 of 28
existing policies or “submit[ing] to the mercy of the Attorney General.” Compl. ¶ 7. Rather, Supreme Court precedent requires a third course: the Cities wait until such time as the specific terms of the Order are clarified, the administration decides to designate the Cities pursuant to the terms of the Order, and the Secretary or Attorney General attempts to implement the policy priorities announced in the Order by enforcing existing federal law against the Cities. At that time, if it ever occurs, the Cities can exercise whatever legal options might be available to them, and the courts will be able to review those challenges “in the light of the facts of the case at hand.” Mazurie, 419 U.S. at 550. V. The Cities Fail to State a Claim for Declaratory Relief Regarding Their Compliance
with Section 1373. The first two counts of the Complaint seek declaratory relief that the Cities’ policies comply with the provisions of Section 1373. See Compl. ¶¶ 158-169. Those counts are subject to dismissal because the Cities have not identified a cause of action that would allow them to pursue such relief and because that relief would amount to an advisory opinion. See Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001) (absent statutory intent to create a cause of action, one “does not exist and courts might not create one, no matter how desirable that may be as a policy matter”); Golden v. Zwickler, 394 U.S. 103, 108 (1969) (“[T]he federal courts . . . do not render advisory opinions. . . . This is as true of declaratory judgments as any other field.”). The general jurisdictional statutes that the Cities cite, 28 U.S.C. §§ 1331 and 1346, see Compl. ¶ 18, do not create independent causes of action, and whether a court has subject-matter jurisdiction is a distinct question from whether a plaintiff has a cause of action. See, e.g., Texas Indus. v. Radcliff Materials, Inc., 451 U.S. 630, 640 (1981) (“vesting of jurisdiction in the federal courts” does not create a cause of action). Similarly, the Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202, which creates a certain remedy that may be available to litigants, does not
19

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 27 of 28
itself create a cause of action. See, e.g., Buck v. Am. Airlines, Inc., 476 F.3d 29, 33 n.3 (1st Cir. 2007) (“Although the plaintiffs style ‘declaratory judgment’ as a cause of action, the provision that they cite, 28 U.S.C. § 2201(a), creates a remedy, not a cause of action.”) (emphasis added).
Moreover, that Cities’ contention that an “actual controversy exists between [the Cities] and Defendants about whether [the Cities] compl[y] with [Section 1373],” is conclusory and inaccurate. Compl. ¶¶ 162, 168. As detailed above, the defendants have not designated the Cities as “sanctuary jurisdictions” or as otherwise being in violation of Section 1373. Thus, “rather than adjudicating present rights on established facts,” rendering a declaratory judgment regarding the Cities’ compliance with Section 1373 would be tantamount to issuing an advisory opinion, which is “forbidden by Article III.” Boston Teachers Union, Local 66, AFT, AFL-CIO v. Edgar, 787 F.2d 12, 16 (1st Cir. 1986). VI. Injunctive or Declaratory Relief Against the President is Inappropriate.
Even if injunctive or declaratory relief were otherwise appropriate, which it is not, no such relief should issue against the President of the United States, whom the Cities have chosen to name as a defendant. A request to enjoin the President “draws the Court into serious separation-of-powers issues. . . . [T]he Supreme Court has sent a clear message that an injunction should not be issued against the President for official acts.” Newdow v. Bush, 391 F. Supp. 2d 95, 105, 106 (D.D.C. 2005) (citing Mississippi v. Johnson, 71 U.S. 475, 500 (1866); Swan v. Clinton, 100 F.3d 973, 978 (D.C. Cir. 1996) (noting that the Supreme Court has issued a “stern admonition” that injunctive relief against the President personally is an “extraordinary measure not lightly to be undertaken”). Accordingly, the Court should dismiss any claim of injunctive or declaratory relief against the President.
CONCLUSION For the reasons stated herein, this Court should dismiss the Cities’ Complaint.
20

Case 1:17-cv-10214-GAO Document 21-1 Filed 04/10/17 Page 28 of 28

Date: April 10, 2017

Respectfully submitted,
CHAD A. READLER Acting Assistant Attorney General
WILLIAM D. WEINREB Acting United States Attorney
JOHN R. TYLER Assistant Director
/s/ Stephen J. Buckingham STEPHEN J. BUCKINGHAM (MD Bar) Special Counsel U.S. Department of Justice, Civil Division Tel: (202) 514-3330 Fax: (202) 616-8470 Email: stephen.buckingham@usdoj.gov P.O. Box 883 Ben Franklin Station Washington, DC 20530
Attorneys for Defendants

Case 1:17-cv-10214-GAO Document 21-2 Filed 04/10/17 Page 1 of 2
Attachment 1 Chelsea v. Trump, Civil Action No. 17-10214-GAO

Case 1:17-cv-10214-GAO Document 21-2 Filed 04/10/17 Page 2 of 2

Case 1:17-cv-10214-GAO Document 21-3 Filed 04/10/17 Page 1 of 1

UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

____________________________________

)

CITY OF CHELSEA; CITY OF

)

LAWRENCE

)

)

Plaintiffs,

)

v.

)

Civil Action No. 17-10214-GAO

)

DONALD J. TRUMP, President of the )

United States of America; JOHN F.

)

KELLEY, Secretary of the United States )

Department of Homeland Security;

)

JEFFERSON B. SESSIONS, III, Attorney )

General of the United States; DOES 1-100, )

)

Defendants.

)

)

[PROPOSED] ORDER

For the reasons set forth in Defendants’ Motion to Dismiss and the accompanying Memorandum of Points and Authorities, it is hereby ORDERED that the Motion is GRANTED, and all claims asserted against Defendants United States of America, Donald J. Trump, John F. Kelley, and Jefferson B. Sessions, III, are hereby DISMISSED.

So ordered this _____ day of _____, 2017

_________________________ GEORGE A. O’TOOLE, JR. United States District Judge

 
 Case 1:17-cv-10214-GAO Document 25 Filed 05/02/17 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

)

CITY OF CHELSEA AND CITY OF

)

LAWRENCE

)

)

Plaintiffs,

)

)

v.

)

)

DONALD J. TRUMP, President of the United )

States, UNITED STATES OF AMERICA, )

JOHN F. KELLY, Secretary of United States )

Department of Homeland Security,

)

JEFFERSON B. SESSIONS, Attorney General )

of the United States, and DOES 1-100,

)

Defendants.

)

)

)

Civil Action No. 17-10214-GAO

PLAINTIFFS’ UNOPPOSED MOTION TO STAY PROCEEDINGS

Plaintiffs City of Chelsea and City of Lawrence, by their undersigned counsel,

respectfully move to stay proceedings, including briefing on the motion to dismiss filed by the

Named Federal Defendants, until further motion by Plaintiffs. Plaintiffs have conferred with

counsel for the Named Federal Defendants, and they do not oppose this motion.

Plaintiffs’ motion is prompted by the recent issuance of nationwide preliminary

injunction by the U.S. District Court for the Northern District of California in parallel litigation

challenging the same Executive Order that is at issue in this case, Executive Order 13768.

See Cnty. of Santa Clara v. Trump, No. 3:17-cv-00574, ECF No. 82 (N.D. Cal. Apr. 25, 2017).

Given the order’s nationwide scope, it currently provides Plaintiffs with much of the relief that

they are seeking in this litigation by restricting the Named Federal Defendants’ ability to

withhold federal funds from the Plaintiffs pursuant to Section 9(a) of the Executive Order.

Case 1:17-cv-10214-GAO Document 25 Filed 05/02/17 Page 2 of 4

In light of this development, Plaintiffs believe it would best conserve the resources of the Court and the parties to stay the litigation at this time, while a nationwide preliminary injunction is in effect. See Acton Corp. v. Borden, Inc., 670 F.2d 377, 382 (1st Cir. 1982) (Breyer, J.) (recognizing that a stay may be appropriate to “avoid duplication of effort”). If the nationwide injunction is lifted or modified, Plaintiffs will immediately notify the Court and may request that the stay be lifted. Plaintiffs will also provide a status report to the Court within 60 days of the entry of a stay, in order to apprise the Court of relevant developments to this proceeding. See MBTA v. Nat’l R. Passenger Corp., No. 16-cv-10120-MLW, ECF. No. 45 (D. Mass. Dec. 9, 2016) (granting stay request, with parties providing status report on settlement discussions).

Dated: May 2, 2017

Respectfully submitted,
/s/ Inez H. Friedman-Boyce
Inez H. Friedman-Boyce (BBO# 630910) IFriedmanBoyce@goodwinlaw.com Daryl Wiesen (BBO# 634872) DWiesen@goodwinlaw.com Elaine Herrmann Blais (BBO # 656142) EBlais@goodwinlaw.com Jennifer Burns Luz (BBO # 657739) JLuz@goodwinlaw.com Sarah J. Fischer (BBO # 688878) SFischer@goodwinlaw.com Alexandra Lu (BBO # 691114) ALu@goodwinlaw.com Louis Lobel (BBO # 693292) LLobel@goodwinlaw.com
Goodwin Procter LLP 100 Northern Ave. Boston, MA 02210 (617) 570-1000

2

Case 1:17-cv-10214-GAO Document 25 Filed 05/02/17 Page 3 of 4
Elizabeth Holland (pro hac vice) EHolland@goodwinlaw.com
Goodwin Procter LLP The New York Times Building 620 Eighth Avenue New York, NY 10018-1405 (212) 813-8800
Brian Burgess (pro hac vice) BBurgess@goodwinlaw.com
Goodwin Procter LLP 901 New York Avenue, N.W. Washington, DC 20001-4432 (202) 346-4000
David Zimmer (pro hac vice) DZimmer@goodwinlaw.com
Goodwin Procter LLP Three Embarcadero Center San Francisco, CA 94111-4017 (415) 733-6000
Iván Espinoza-Madrigal (pro hac vice) iespinoza@lawyerscom.org Oren Sellstrom (BBO # 569045) osellstrom@lawyerscom.org Sophia Hall (BBO # 684541) SHall@lawyerscom.org
Lawyers’ Committee for Civil Rights and Economic Justice 61 Batterymarch St., 5th Floor Boston, MA 02110 (617) 482-1145
Attorneys for Plaintiffs City of Chelsea and City of Lawrence
3

Case 1:17-cv-10214-GAO Document 25 Filed 05/02/17 Page 4 of 4 LOCAL RULE 7.1(A)(2) CERTIFICATION AND CERTIFICATE OF SERVICE
I, Inez H. Friedman-Boyce, counsel for Plaintiffs, do hereby certify that, pursuant to Local Rule 7.1, counsel for Plaintiffs conferred with counsel for the named Defendants regarding the relief sought in this motion. The named Defendants do not oppose this motion.
I further certify that this document filed through the ECF system will be sent electronically to the registered participants as identified on the Notice of Electronic Filing (NEF) via the ECF system on May 2, 2017.
/s/ Inez H. Friedman-Boyce Inez H. Friedman-Boyce
4

 
 Case: 1:17-cv-10214 As of: 05/08/2017 05:50 PM EDT 1 of 6
United States District Court District of Massachusetts (Boston) CIVIL DOCKET FOR CASE #: 1:17−cv−10214−GAO

STAYED

City of Chelsea et al v. Trump, President of the United States et al Assigned to: Judge George A. OToole, Jr Cause: 28:2201 Constitutionality of State Statute(s)
Plaintiff

Date Filed: 02/08/2017 Jury Demand: None Nature of Suit: 890 Other Statutory Actions Jurisdiction: Federal Question

City of Chelsea

represented by Brian T. Burgess Goodwin Procter LLP 901 New York Avenue, N.W. Washington, DC 20001 (202) 346−4215 Email: bburgess@goodwinlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David J. Zimmer Goodwin Procter LLP Three Embarcadero Center 24th Floor San Francisco, CA 94111 415−733−6000 Fax: 415−677−9041 Email: dzimmer@goodwinprocter.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Elizabeth J. Holland Goodwin Proctor LLP The New York Times Building 620 Eighth Avenue New York, NY 10018 212−813−8800 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ivan Espinoza−Madrigal Lawyers Committee for Civil Rights and Economic Justice 61 Batterymarch St, 5th Floor Boston, MA 02210 (617) 482−1145 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alexandra Lu Goodwin Procter LLP 100 Northern Avenue Boston, MA 02210 617−570−1000 Email: alu@goodwinprocter.com ATTORNEY TO BE NOTICED

Daryl L. Wiesen

Case: 1:17-cv-10214 As of: 05/08/2017 05:50 PM EDT 2 of 6
Goodwin Procter, LLP 100 Northern Avenue Boston, MA 02210 617−570−1000 Fax: 617−523−1231 Email: dwiesen@goodwinprocter.com ATTORNEY TO BE NOTICED
Elaine Herrmann Blais Goodwin Procter, LLP 100 Northern Avenue Boston, MA 02210 617−570−1205 Fax: 617−523−1231 Email: eblais@goodwinprocter.com ATTORNEY TO BE NOTICED
Inez H. Friedman−Boyce Goodwin Procter, LLP 100 Northern Avenue Boston, MA 02210 617−570−1334 Fax: 617−523−1231 Email: ifriedmanboyce@goodwinprocter.com ATTORNEY TO BE NOTICED
Jennifer B. Luz Goodwin Procter, LLP 100 Northern Avenue Boston, MA 02210 617−570−1764 Fax: 617−523−1231 Email: jluz@goodwinprocter.com ATTORNEY TO BE NOTICED
Louis L. Lobel Goodwin Procter, LLP 100 Northern Avenue Boston, MA 02210 617−570−1000 Email: llobel@goodwinprocter.com ATTORNEY TO BE NOTICED
Michelle Sohn Goodwin Procter LLP 100 Northern Avenue Boston, MA 02210 617−570−1000 Email: msohn@goodwinlaw.com ATTORNEY TO BE NOTICED
Oren M. Sellstrom Lawyers' Committee for Civil Rights and Economic Justic Fifth Floor 61 Batterymarch Street Boston, MA 02110 617−988−0608 Email: osellstrom@lawyerscom.org ATTORNEY TO BE NOTICED
Sarah J. Fischer Goodwin Procter, LLP 100 Northern Avenue Boston, MA 02210

Case: 1:17-cv-10214 As of: 05/08/2017 05:50 PM EDT 3 of 6

617−570−1000 Email: sfischer@goodwinprocter.com ATTORNEY TO BE NOTICED

Sophia L. Hall AIDS Action Committee of Massachusetts 75 Amory Street Boston, MA 02119 617−450−1037 Email: shall@lawyerscom.org ATTORNEY TO BE NOTICED

Plaintiff City of Lawrence

represented by Brian T. Burgess (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

David J. Zimmer (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Elizabeth J. Holland (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Ivan Espinoza−Madrigal (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Alexandra Lu (See above for address) ATTORNEY TO BE NOTICED

Daryl L. Wiesen (See above for address) ATTORNEY TO BE NOTICED

Elaine Herrmann Blais (See above for address) ATTORNEY TO BE NOTICED

Inez H. Friedman−Boyce (See above for address) ATTORNEY TO BE NOTICED

Jennifer B. Luz (See above for address) ATTORNEY TO BE NOTICED

Louis L. Lobel (See above for address) ATTORNEY TO BE NOTICED

Michelle Sohn (See above for address) ATTORNEY TO BE NOTICED

Case: 1:17-cv-10214 As of: 05/08/2017 05:50 PM EDT 4 of 6

Oren M. Sellstrom (See above for address) ATTORNEY TO BE NOTICED
Sarah J. Fischer (See above for address) ATTORNEY TO BE NOTICED
Sophia L. Hall (See above for address) ATTORNEY TO BE NOTICED

V. Defendant Donald J. Trump, President of the United States
Defendant United States of America
Defendant John F. Kelly, Secretary of the United States Department of Homeland Security
Defendant Dana J. Boente, Acting Attorney General of the United States

represented by Stephen J. Buckingham United States Department of Justice 20 Massachusetts Ave. NW Washington, DC 20530 (202) 514−3330 Email: stephen.buckingham@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael P. Sady United States Attorney's Office John Joseph Moakley Federal Courthouse 1 Courthouse Way Suite 9200 Boston, MA 02210 617−748−3362 Fax: 617−748−3971 Email: michael.sady@usdoj.gov ATTORNEY TO BE NOTICED
represented by Stephen J. Buckingham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael P. Sady (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen J. Buckingham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael P. Sady (See above for address) ATTORNEY TO BE NOTICED
represented by Stephen J. Buckingham (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 1:17-cv-10214 As of: 05/08/2017 05:50 PM EDT 5 of 6

Michael P. Sady (See above for address) ATTORNEY TO BE NOTICED

Defendant Does 1−100

represented by Michael P. Sady (See above for address) ATTORNEY TO BE NOTICED

Date Filed 02/08/2017
02/08/2017
02/08/2017 02/08/2017 02/08/2017 02/08/2017 02/08/2017 02/08/2017 02/08/2017 02/08/2017 02/08/2017 02/08/2017
02/08/2017
02/08/2017

# Docket Text
1 COMPLAINT against All Defendants Filing fee: $ 400, receipt number 0101−6487845 (Fee Status: Filing Fee paid), filed by City of Chelsea, City of Lawrence. (Attachments: # 1 Civil Cover Sheet, # 2 Civil Category Sheet)(Friedman−Boyce, Inez) (Entered: 02/08/2017)
2 MOTION for Leave to Appear Pro Hac Vice for admission of Elizabeth J. Holland, Brian T. Burgess, David J. Zimmer, and Ivan Espinoza−Madrigal Filing fee: $ 400, receipt number 0101−6487863 by City of Chelsea, City of Lawrence. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Friedman−Boyce, Inez) (Entered: 02/08/2017)
3 NOTICE of Appearance by Daryl L. Wiesen on behalf of City of Chelsea, City of Lawrence (Wiesen, Daryl) (Entered: 02/08/2017)
4 NOTICE of Appearance by Elaine Herrmann Blais on behalf of City of Chelsea, City of Lawrence (Blais, Elaine) (Entered: 02/08/2017)
5 NOTICE of Appearance by Jennifer B. Luz on behalf of City of Chelsea, City of Lawrence (Luz, Jennifer) (Entered: 02/08/2017)
6 NOTICE of Appearance by Sarah J. Fischer on behalf of City of Chelsea, City of Lawrence (Fischer, Sarah) (Entered: 02/08/2017)
7 NOTICE of Appearance by Alexandra Lu on behalf of City of Chelsea, City of Lawrence (Lu, Alexandra) (Entered: 02/08/2017)
8 NOTICE of Appearance by Louis L. Lobel on behalf of City of Chelsea, City of Lawrence (Lobel, Louis) (Entered: 02/08/2017)
9 NOTICE of Appearance by Michelle Sohn on behalf of City of Chelsea, City of Lawrence (Sohn, Michelle) (Entered: 02/08/2017)
10 NOTICE of Appearance by Oren M. Sellstrom on behalf of City of Chelsea, City of Lawrence (Sellstrom, Oren) (Entered: 02/08/2017)
11 NOTICE of Appearance by Sophia L. Hall on behalf of City of Chelsea, City of Lawrence (Hall, Sophia) (Entered: 02/08/2017)
12 ELECTRONIC NOTICE of Case Assignment. Judge George A. OToole, Jr assigned to case. If the trial Judge issues an Order of Reference of any matter in this case to a Magistrate Judge, the matter will be transmitted to Magistrate Judge Marianne B. Bowler. (Abaid, Kimberly) (Entered: 02/08/2017)
13 Summons Issued as to All Defendants. Counsel receiving this notice electronically should download this summons, complete one for each defendant and serve it in accordance with Fed.R.Civ.P. 4 and LR 4.1. Summons will be mailed to plaintiff(s) not receiving notice electronically for completion of service. (Jones, Sherry) (Entered: 02/08/2017)
14 EXHIBIT re 2 MOTION for Leave to Appear Pro Hac Vice for admission of Elizabeth J. Holland, Brian T. Burgess, David J. Zimmer, and Ivan Espinoza−Madrigal Filing fee: $ 400, receipt number 0101−6487863 Exhibit D − Executed Declaration of Ivan Espinoza−Madrigal by City of Chelsea, City of Lawrence. (Friedman−Boyce, Inez) (Entered: 02/08/2017)

Case: 1:17-cv-10214 As of: 05/08/2017 05:50 PM EDT 6 of 6

02/10/2017
03/31/2017
03/31/2017 03/31/2017 03/31/2017 04/06/2017 04/10/2017
04/18/2017 04/19/2017 04/20/2017 05/02/2017 05/04/2017

15 Judge George A. OToole, Jr: ELECTRONIC ORDER entered granting 2 Motion for Leave to Appear Pro Hac Vice Added Elizabeth J. Holland, Brian T. Burgess, David J. Zimmer, and Ivan Espinoza−Madrigal. Attorneys admitted Pro Hac Vice must register for electronic filing if the attorney does not already have an ECF account in this district. To register go to the Court website at www.mad.uscourts.gov. Select Case Information, then Electronic Filing (CM/ECF) and go to the CM/ECF Registration Form. (Halley, Taylor) (Entered: 02/10/2017)
16 SUMMONS Returned Executed as to US Attorney by City of Chelsea, City of Lawrence. Dana J. Boente, Acting Attorney General of the United States served on 2/8/2017, answer due 4/10/2017; John F. Kelly, Secretary of the United States Department of Homeland Security served on 2/8/2017, answer due 4/10/2017; Donald J. Trump, President of the United States served on 2/8/2017, answer due 4/10/2017; United States of America served on 2/8/2017, answer due 4/10/2017. (Friedman−Boyce, Inez) (Entered: 03/31/2017)
17 SUMMONS Returned Executed Dana J. Boente, Acting Attorney General of the United States served on 2/13/2017, answer due 4/10/2017. (Friedman−Boyce, Inez) (Entered: 03/31/2017)
18 SUMMONS Returned Executed John F. Kelly, Secretary of the United States Department of Homeland Security served on 2/13/2017, answer due 4/10/2017. (Friedman−Boyce, Inez) (Entered: 03/31/2017)
19 SUMMONS Returned Executed Donald J. Trump, President of the United States served on 2/13/2017, answer due 4/10/2017. (Friedman−Boyce, Inez) (Entered: 03/31/2017)
20 NOTICE of Appearance by Stephen J. Buckingham on behalf of Dana J. Boente, Acting Attorney General of the United States, John F. Kelly, Secretary of the United States Department of Homeland Security, Donald J. Trump, President of the United States, United States of America (Buckingham, Stephen) (Entered: 04/06/2017)
21 MOTION to Dismiss by Dana J. Boente, Acting Attorney General of the United States, John F. Kelly, Secretary of the United States Department of Homeland Security, Donald J. Trump, President of the United States, United States of America. (Attachments: # 1 Memorandum of Points and Authorities, # 2 Exhibit, # 3 Text of Proposed Order)(Buckingham, Stephen) (Entered: 04/10/2017)
22 Assented to MOTION for Extension of Time to May 8, 2017 to File Response to Defendants' Motion to Dismiss and to file excess pages by City of Chelsea, City of Lawrence.(Friedman−Boyce, Inez) (Entered: 04/18/2017)
23 Judge George A. O'Toole, Jr: ELECTRONIC ORDER entered granting 22 Motion for Extension of Time to File to May 8, 2017 to File Response to Defendants' Motion to Dismiss and to file excess pages (Halley, Taylor) (Entered: 04/19/2017)
24 NOTICE of Appearance by Michael P. Sady on behalf of Dana J. Boente, Acting Attorney General of the United States, Does 1−100, John F. Kelly, Secretary of the United States Department of Homeland Security, Donald J. Trump, President of the United States, United States of America (Sady, Michael) (Entered: 04/20/2017)
25 MOTION to Stay Proceedings (Unopposed) by City of Chelsea, City of Lawrence.(Friedman−Boyce, Inez) (Entered: 05/02/2017)
26 Judge George A. O'Toole, Jr: ORDER entered granting 25 Motion to Stay (Halley, Taylor) (Entered: 05/04/2017)