Defs’ Motion for Reconsideration 

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CHAD A. READLER 

Acting Assistant Attorney General 

BRIAN STRETCH 

United States Attorney 

JOHN R. TYLER 

Assistant Director 

STEPHEN J. BUCKINGHAM (Md. Bar) 

Special Counsel 

W. SCOTT SIMPSON (Va. Bar #27487) 

Senior Trial Counsel 

Department of Justice, Room 7210 

Civil Division, Federal Programs Branch 

Post Office Box 883 

Washington, D.C. 20044 

Telephone: (202) 514-3495 

Facsimile: (202) 616-8470 

E-mail: scott.simpson@usdoj.gov 

COUNSEL FOR DEFENDANTS 

DONALD J. TRUMP, President of the 

United States; UNITED STATES OF 

AMERICA; JOHN F. KELLY, Secretary of 

Homeland Security; JEFFERSON B. 

SESSIONS, III, Attorney General of the 

United States 

IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF CALIFORNIA 

SAN FRANCISCO DIVISION 

CITY AND COUNTY OF SAN 

FRANCISCO, 

 Plaintiff, 

 v. 

DONALD J. TRUMP, et al., 

 Defendants. 

 No. 3:17-cv-00485-WHO 

DEFENDANTS’ NOTICE OF MOTION 

AND MOTION FOR RECONSIDERATION OR, IN THE ALTERNATIVE, 

CLARIFICATION OF THE COURT’S 

ORDER OF APRIL 25, 2017; 

MEMORANDUM OF POINTS AND 

AUTHORITIES 

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TABLE OF CONTENTS 

NOTICE OF MOTION ................................................................................................................... 1 

MEMORANDUM OF POINTS AND AUTHORITIES ................................................................ 1 

INTRODUCTION .......................................................................................................................... 1 

ISSUES PRESENTED .................................................................................................................... 2 

BACKGROUND ............................................................................................................................ 3 

ARGUMENT .................................................................................................................................. 7 

 I. The AG Memorandum Provides a Basis for the Court 

 to Reconsider Its Justiciability Determination ........................................................ 8 

 II. The AG Memorandum Provides a Basis for the Court to Reconsider 

 Its Determination that the Plaintiff is Likely to Succeed 

 on the Merits of Its Claims .................................................................................... 12 

 A. The AG Memorandum Alleviates the Court’s Separation 

 of Powers Concerns .................................................................................. 13 

 B. The AG Memorandum Alleviates the Court’s Spending 

 Clause Concerns ........................................................................................ 14 

 C. The AG Memorandum Alleviates the Court’s Tenth 

 Amendment Concerns ............................................................................... 16 

 

 D. The AG Memorandum Alleviates the Court’s Vagueness Concerns ........ 18 

 E. The AG Memorandum Alleviates the Court’s Due Process 

 Clause Concerns ........................................................................................ 19 

 III. The Injunction Should Not Restrict Defendants’ Independent 

 Authority to Impose Conditions on Grant Programming ...................................... 20 

CONCLUSION ............................................................................................................................. 21 

 

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TABLE OF AUTHORITIES 

CASES 

Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28 

(D.C. Cir. 2002) ............................................................................................................... 4, 9, 14, 18 

De La Torre v. CashCall, Inc., 56 F. Supp. 3d 1105 (N.D. Cal. 2014) ........................................... 7 

DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275 (D.C. Cir. 1989) .................................................. 6, 13 

Fernandez-Vargas v. Gonzales, 548 U.S. 30 (2006) ..................................................................... 15 

Gaynard v. City of Rockford, 408 U.S. 104 (1972) ....................................................................... 18 

Morton v. Ruiz, 415 U.S. 199 (1974) ............................................................................................... 6 

Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) ....................................................... 15 

Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, Inc., 5 F.3d 1255 (9th Cir. 1993) ................... 7 

S. Dakota v. Dole, 483 U.S. 203 (1987) ................................................................................... 11, 17 

Thornton v. City of Helens, 425 F.3d 1158 (9th Cir. 2005) ........................................................... 19 

STATUTES 

8 U.S.C. § 1103(c)(1) ....................................................................................................................... 5 

8 U.S.C. § 1373 ....................................................................................................................... passim 

42 U.S.C. § 3712(a) ......................................................................................................................... 7 

42 U.S.C. § 3712(a)(6) ..................................................................................................................... 6 

42 U.S.C. § 3752(a)(5)(D) ............................................................................................................... 6 

REGULATIONS 

2 C.F.R. § 200.207(a) ....................................................................................................................... 7 

2 C.F.R. § 2800.101 ......................................................................................................................... 7 

28 C.F.R. § 0.5(c) ............................................................................................................................. 5 

EXECUTIVE ORDERS 

Exec. Order 13,536, 76 Fed. Reg. 3,821 (Jan. 18, 2011) ............................................................... 10 

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Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (Jan. 30, 2017) ................................................. passim 

Exec. Order No. 13,768, § 9, 82 Fed. Reg. 8,799 (Jan. 30, 2017) .......................................... passim 

Exec. Order No. 13,768, § 10(a), 82 Fed. Reg. 8,799 (Jan. 30, 2017) ............................................. 9 

OTHER AUTHORITIES 

2015 COPS Hiring Program Fact Sheet, DOJ Community Oriented Policing Services .............. 13 

2016 COPS Hiring Program Fact Sheet, DOJ Community Oriented Policing Services .............. 13 

Ltr. from Peter J. Kadzik, Asst. Att’y Gen. U.S. Dep’t of Justice, to Hon.

John A. Culberson, Chairman for the Subcomm. on Commerce, Justice, 

Sci. & Related Agencies (Jul. 7, 2016) ............................................................................................ 7 

Mem. from DHS Sec’y Jeh Johnson to Acting Dir. U.S. Immigration & 

Customs Enforcement Thomas Winkowski, et al. (Nov. 20, 2014) ............................................... 9 

Mem. from the Attorney General for All Department Grant-Making 

Components (May 22, 2017) .................................................................................................. passim 

Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from 

the Office of Legal Counsel, 52 Admin. L. Rev. 1303 (2000) ......................................................... 5 

 

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NOTICE OF MOTION AND MOTION FOR RECONSIDERATION OR, IN THE 

ALTERNATIVE, FOR CLARIFICATION 

 PLEASE TAKE NOTICE that defendants hereby move for reconsideration or, in the 

alternative, for clarification of the Court’s Order of April 25, 2017, granting plaintiff’s motion for 

preliminary injunction (Doc. 82). This motion is based on the following Memorandum of Points 

and Authorities, the evidence and records on file in this action, and any other written or oral 

evidence or argument that may be presented at or before the time this motion is heard. 

MEMORANDUM OF POINTS AND AUTHORITIES 

INTRODUCTION 

 On May 22, 2017, the Attorney General issued a Memorandum (“AG Memorandum”) 

concerning the implementation of Executive Order 13,768. See AG Mem. at 1 (Attachment 1 

hereto); Exec. Order No. 13,768 (“Executive Order”), 82 Fed. Reg. 8,799-8,803 (Jan. 30, 2017). 

The AG Memorandum sets forth the Attorney General’s conclusive interpretation of the scope of 

the grant-eligibility provision in Section 9(a) of the Executive Order. The Memorandum provides 

(1) that the grant-eligibility provision applies “solely to federal grants administered by the 

Department of Justice or the Department of Homeland Security [“DHS”], and not to other sources 

of federal funding[,]” (2) that the Department of Justice (“DOJ”) will require jurisdictions 

applying for certain DOJ-administered grants “to certify their compliance with federal law, 

including 8 U.S.C. § 1373,” and (3) that only “jurisdiction[s] that fail[] to certify compliance with 

section 1373 will be ineligible to receive [an] award[].” AG Mem. at 1-2. The AG Memorandum 

provides the decisive interpretation of the administration, and it reaffirms the representations 

made by government counsel at oral argument that the grant-eligibility provision applies only to 

federal grant programs administered by DOJ or DHS that contain terms that expressly obligate a 

grant applicant or recipient to certify of compliance with 8 U.S.C. § 1373. See Tr. of Oral Arg. at 

24:4-6, City & Cnty. of San Francisco v. Trump, No. 3:17-cv-00485 (N.D. Cal. Apr. 14, 2017). 

 The authoritative position set forth in the AG Memorandum squarely contradicts the 

Court’s determination, which was based in part on non-binding press statements and public 

speeches, that the grant-eligibility provision “attempts to reach all federal grants[.]” Order of 

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Apr. 25, 2017 at 2-3 (Doc. 82). That finding, in turn, served as the foundation for the Court’s 

analysis of the justiciability of plaintiff’s claims and the Court’s conclusions regarding the 

constitutional infirmity of the Executive Order. However, because the Attorney General has now 

issued binding guidance that undermines many of the factual bases supporting the Court’s 

opinion, including the Court’s interpretation of press statements and public speeches, defendants 

respectfully request that the Court reconsider its holding in light of the recently-issued 

Memorandum. 

 Should the Court determine that an injunction remains appropriate despite the issuance of 

the AG Memorandum, defendants respectfully seek clarification regarding the scope of the 

injunction. The Court’s Order provides that defendants may “use lawful means to enforce 

existing conditions of federal grants or 8 U.S.C. 1373.” Id. at 49 (emphasis added). Defendants 

do not interpret the Court’s Order as prohibiting defendants from imposing additional conditions 

on grant programming for future federal grant awards pursuant to the direction contained in 

Section 9(a), where defendants are legally authorized to do so under authority that exists 

independent of the Executive Order. Nevertheless, out of an abundance of caution, in the event 

the Court determines to maintain the injunction currently in place in this matter, defendants 

respectfully seek confirmation that DOJ and DHS are not enjoined from imposing conditions on 

grant programs administered by those agencies where such conditions are permissible under 

independent legal authority. 

ISSUES PRESENTED 

 1. Whether the Court should reconsider its entry of injunctive relief in light of recently 

issued authority concerning the scope of the Executive Order. 

 2. Whether, in the event the Court determines that injunctive relief remains appropriate, 

the Court should nevertheless clarify the scope of its Order to specify that DOJ and DHS are not 

enjoined from including conditions on DOJ and DHS-administered grant programs pursuant to 

legal authority that exists independent of the Executive Order. 

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BACKGROUND 

 On March 8, 2017, the City and County of San Francisco (“City” or “San Francisco”) 

moved for a preliminary injunction to prevent the implementation of Section 9(a) of the 

Executive Order (Doc. 21). Section 9(a) provides, in relevant part, that the Attorney General and 

the Secretary of Homeland Security (“Secretary”), “in their discretion and to the extent consistent 

with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 . . . are 

not eligible to receive Federal grants[.]” Exec. Order 13,768, § 9(a). Despite the fact that the 

grant-eligibility provision of Section 9(a) is directed solely to the Attorney General and the 

Secretary, San Francisco had urged an expansive reading of that provision, arguing that it applied 

to the entirety of the Executive Branch. Specifically, San Francisco contended that the Order 

purported to “condition eligibility for all federal funds on compliance with Section 1373,” not just 

federal grants administered by DOJ or DHS (Doc. 21 at 11). 

 At oral argument on the motion for preliminary injunction, the government stated that, 

because the grant-eligibility provision of Section 9(a) directs action only by the Department of 

Justice or the Department of Homeland Security, that provision only applied to grants administered by DOJ or DHS. The government further stated that, consistent with governing authority 

and past practice, DHS or DOJ would only take adverse action against a grant recipient for failure 

to comply with Section 1373 where the terms of the grant program expressly required such 

compliance. See Tr. of Oral Arg. at 24:4-6; see also Order of Apr. 25, 2017 at 13 (summarizing 

the government’s position). The government further stated that only three grant programs, all of 

which are administered by DOJ, currently identify Section 1373 as an applicable federal law with 

which grantees are required to comply. See, e.g., Tr. of Oral Arg. at 35:2-9. The government 

acknowledged, however, that “[g]oing forward . . . DOJ and, potentially, DHS” may choose to 

include similar conditions in their grant-eligibility terms, where authorized to do so, and that, in 

all cases, those conditions “will be known to the [grantee]” in advance of the grantee’s decision to 

participate in the grant program. Id. at 25:14-16. 

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 On April 25, 2017, the Court granted San Francisco’s motion and enjoined the defendants 

(other than the President) “from enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions.” Order of Apr. 25, 2017 at 49. The Court made clear, 

however, that defendants may “use lawful means to enforce existing conditions of federal grants 

or 8 U.S.C. 1373.” Id.

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 The Court found injunctive relief appropriate because, like the plaintiff, 

it interpreted the grant-eligibility provision of Section 9(a) as referring to “all federal grants[.]” 

Id. at 3 (emphasis added). In reaching that interpretation, the Court relied heavily on public 

comments by the President, the White House Press Secretary, and the Attorney General to 

conclude that “Section 9(a) is not reasonably susceptible to the new, narrow interpretation offered 

at the hearing.” Id. Based on its broad interpretation of Section 9(a), the Court held that the 

City’s claims were justiciable and that the provisions of Section 9(a) violated a variety of 

constitutional doctrines. See generally id. at 49. 

The AG Memorandum sets forth in a formal, conclusive manner the administration’s 

interpretation of the scope of the grant-eligibility provision of Section 9(a). The Memorandum 

specifies that the Executive Order does not “purport to expand the existing statutory or constitutional authority of the Attorney General and the Secretary of Homeland Security in any respect,” 

but rather instructs those officials to take certain action, “to the extent consistent with the law.” 

AG Mem. at 2; see Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28, 33 (D.C. 

Cir. 2002) (noting that the President is merely wielding his “supervisory authority over the 

Executive Branch” where he “directs his subordinates” to take certain action “but only ‘[t]o the 

extent permitted by law’”). The AG Memorandum further clarifies that the grant-eligibility 

provision is limited “solely to federal grants administered by [DOJ] or [DHS],” and to grants 

requiring the applicant to “certify . . . compliance with federal law, including 8 U.S.C. § 1373, as 

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As mentioned, the Court has only enjoined defendants (other than the President) from 

“enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary 

jurisdictions.” Order of Apr. 25, 2017 at 49. It has not limited defendants’ ability to use “lawful 

means [of] enforc[ing]” federal law, id., and defendants do not understand the Court’s Order as 

precluding their ability to utilize legal authority independent of the Executive Order to initiate 

legal proceedings or advance defendants’ law enforcement priorities. 

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a condition for receiving an award.” AG Mem. at 1, 2. Only “jurisdiction[s] that fail[] to certify 

compliance with [8 U.S.C. § 1373] will be ineligible to receive [an] award[]” pursuant to the 

grant-eligibility provision. Id. In other words, the provision applies only in instances in which an 

applicant or grant recipient has had the choice either to certify compliance with 8 U.S.C. § 1373 

as an express condition of eligibility to participate in a certain grant program, or to refuse to 

certify compliance and thereby render itself ineligible to participate in the grant program. The 

AG Memorandum also makes clear that, with respect to Section 1373 compliance conditions, 

DOJ and DHS may impose such conditions only pursuant to the exercise of “existing statutory or 

constitutional authority,” and only where “grantees will receive notice of their obligation to 

comply with section 1373.” AG Mem. at 2. 

 The interpretation set forth in the AG Memorandum is conclusive here. Section 9(a) of 

the Executive Order directs only two officials, the Attorney General and the Secretary of 

Homeland Security, to implement its provisions, and the Attorney General has now clarified that 

he does not interpret the challenged portion of the Executive Order as applying to grant programs 

administered by agencies other than DOJ and DHS. Moreover, by longstanding tradition and 

practice, the Attorney General’s legal opinions are treated as authoritative by the heads of 

executive agencies. See, e.g., Tenaska Washington Partners II, L.P. v. United States, 34 Fed. Cl. 

434, 439 (1995); Randolph D. Moss, Executive Branch Legal Interpretation: A Perspective from 

the Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1319-20 (2000). The Attorney General has 

a statutory duty to advise executive department heads on “questions of law,” 28 U.S.C. § 512, and 

furnishes formal legal opinions to executive agencies, 28 C.F.R. § 0.5(c). And although the 

Secretary of Homeland Security principally administers the immigration laws, the Immigration 

and Nationality Act provides that a “determination and ruling by the Attorney General with 

respect to all questions of law shall be controlling.” 8 U.S.C. § 1103(c)(1). The AG Memorandum thus conclusively establishes that section 9(a) is limited to grant programs administered by 

DOJ or DHS. Moreover, the AG Memorandum sets forth clear and consistent guidance for the 

applicable components of DOJ as to the parameters of the grant-eligibility provision. 

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 In addition to setting forth the authoritative interpretation of the grant-eligibility provision 

of section 9(a), the Attorney General also recognized that, “[s]eparate and apart from the 

Executive Order, statutes may authorize the Department to tailor grants or to impose additional 

conditions on grantees to advance the Department’s law enforcement priorities.” AG Mem. at 2. 

Pursuant to those authorities, administrations have historically focused federal resources on 

addressing concerns of high priority, such as homeland security, violent crime, domestic violence, 

or immigration. As this Court recognized in its Order, “Congress can delegate some discretion to 

the President to decide how to spend appropriated funds” so long as any such “delegation and 

discretion is cabined” by relevant constitutional boundaries. See Order of Apr. 25, 2017 at 36; 

see Tr. of Oral Arg. at 34:4-8; see also DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275, 280-81 (D.C. 

Cir. 1989) (upholding conditions on spending imposed by the Executive where the underlying 

statute unambiguously authorized the Executive to set certain “terms and conditions as he may 

determine”). 

 Many of the spending statutes governing DOJ or DHS, including those that authorize 

particular grant programs or that otherwise govern the spending powers of the agency, allow for 

those agencies to impose certain conditions on certain federal grant programs they administer. 

See, e.g., 42 U.S.C. § 3712(a)(6) (authorizing certain DOJ officials to place “special conditions” 

on particular grants); Morton v. Ruiz, 415 U.S. 199, 230 (1974) (finding that, in certain instances, 

such as where a congressional appropriation is insufficient to carry out its purpose, the agency 

administering the program is deemed authorized “to create reasonable classifications and 

eligibility requirements in order to allocate the limited funds available”). For example, the statute 

authorizing the Edward Byrne Memorial Justice Assistance Grant program (“JAG”), which is 

administered by DOJ’s Office of Justice Programs (“OJP”), requires grant applicants to certify to 

the Attorney General that they “comply with all provisions of this part and all other applicable 

Federal laws.” 42 U.S.C. § 3752(a)(5)(D). That statutory provision allows the Attorney General 

the discretion to determine whether a particular federal law is “applicable” to the receipt of a JAG 

award. Additionally, a provision of OJP’s organic statute authorizes the head of OJP to “exercise 

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such other powers and functions as may be vested in [him or her] pursuant to this chapter or by 

delegation of the Attorney General, including placing special conditions on all grants, and 

determining priority purposes for formula grants.” Id. § 3712(a) (emphasis added).2 Pursuant to 

those statutory authorities, since 2016, DOJ has identified Section 1373 as federal law applicable 

to the JAG program. See generally Order of Apr. 25, 2017 at 6 (citing Ltr. from Peter J. Kadzik, 

Asst. Att’y Gen. U.S. Dep’t of Justice, to Hon. John A. Culberson, Chairman for the Subcomm. 

on Commerce, Justice, Sci. & Related Agencies (Jul. 7, 2016)); see also Declaration of Ralph 

Martin ¶ 17 (Attachment 2 hereto). Thus, consistent with the Court’s Order, the AG 

Memorandum acknowledges, as defendants’ counsel did at oral argument, that going forward, 

where legally authorized, defendants “may seek to tailor grants to promote a lawful system of 

immigration.” AG Mem. at 2. 

ARGUMENT 

 “A district court has inherent jurisdiction to modify, alter, or revoke a prior order.” De La 

Torre v. CashCall, Inc., 56 F. Supp. 3d 1105, 1107 (N.D. Cal. 2014). The Ninth Circuit has held 

that “[r]econsideration is appropriate if the district court (1) is presented with newly discovered 

evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is 

an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cty., Or. v. ACandS, 

Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Under this Court’s Civil Local Rule 7-9(b), a motion for 

reconsideration may be proper where, for example, “a material difference in fact or law exists 

from that which was presented to the Court before entry of the interlocutory order for which 

reconsideration is sought.” The AG Memorandum constitutes a material difference in controlling 

authority. As explained in more detail below, that Memorandum eliminates many of the 

conclusions that served as the foundation for the Court’s decision to grant plaintiff’s motion for 

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 Similarly, DOJ regulations provide for the imposition of “additional specific award 

conditions” under certain circumstances, such as where “an applicant or recipient has a history of 

failure to comply with the general or specific terms and conditions of a Federal award.” See 2 

C.F.R. § 2800.101 (adopting, inter alia, 2 C.F.R. § 200.207(a)). 

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preliminary injunction. Accordingly, defendants respectfully request that the Court reconsider its 

decision in light of the guidance contained in the AG Memorandum. 

I. The AG Memorandum Provides a Basis for the Court to 

 Reconsider Its Justiciability Determination 

 The AG Memorandum expressly contradicts many of the conclusions underlying the 

Court’s decision regarding the justiciability of San Francisco’s claims. Contrary to those 

conclusions, the Memorandum makes clear that the grant-eligibility provision in Section 9(a) of 

the Executive Order applies only to grant programs administered by DOJ or DHS and, with 

respect to DOJ grants, only to those programs where explicit terms condition eligibility on 

certification of compliance with 8 U.S.C. § 1373. See AG Mem. at 1-2. Because the AG 

Memorandum’s clarification of the scope of the grant-eligibility provision conflicts with several 

bases essential to the Court’s justiciability determination, the Court should reconsider that 

determination in light of the position set forth in the Memorandum, which are binding on the 

relevant Executive Branch officials. 

 In determining that the City had established the justiciability of its claims, the Court first 

found that the grant-eligibility provision of Section 9(a) improperly attempted to effectuate a 

change in the law because that provision “purport[ed] to delegate to the Attorney General and the 

Secretary the authority to place a new condition on federal grants,” in contravention of the 

Constitution, and because the Order did not explicitly limit its scope to grants administered by 

DHS or DOJ. Order of Apr. 25, 2017 at 14-15. The Court reasoned that a contrary reading of the 

Executive Order – one that simply required the Attorney General and the Secretary to use their 

existing statutory authority to enforce the President’s policies – rendered the Order “legally 

meaningless” and was thus “clearly inconsistent with the Order’s broad intent.” Id. at 15. 

 The AG Memorandum contradicts those determinations. As the Memorandum makes 

clear, for example, the purpose of the Executive Order was to “establish[] immigration enforcement as a priority for this Administration,” not to direct the Attorney General or the Secretary to 

act ultra vires. See AG Mem. at 1. Far from being “legally meaningless,” the Executive Order 

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represents a dramatic departure from the prior administration’s policy of non-enforcement of 

certain immigration programs. Compare, e.g., Mem. from DHS Sec’y Jeh Johnson to Acting Dir. 

U.S. Immigration & Customs Enforcement Thomas Winkowski, et al. (Nov. 20, 2014) 

(explaining that the “Secure Communities” program will be discontinued), available at 

https://www.dhs.gov/ sites/ default/ files/ publications/14_1120_memo_secure_communities.pdf, 

with Exec. Order 13,768, § 10(a) (“The Secretary shall immediately take all appropriate action to 

terminate the Priority Enforcement Program (PEP) described in the memorandum issued by the 

Secretary on November 20, 2014, and to reinstitute the immigration program known as “Secure 

Communities.”). The Executive Order thus “ensure[s] that our Nation’s immigration laws are 

faithfully executed,” see Exec. Order 13,768 at 1, and directs the appropriate executive officials 

to prioritize, to the fullest extent of the law, means for achieving that priority. Those means may 

include, for example, more aggressive enforcement of existing grant conditions, or, as the AG 

Memorandum suggests, tailoring future grant awards in a manner that promotes the 

administration’s law enforcement priorities. See AG Mem. at 2. 

 What is more, as the AG Memorandum recognizes, the Executive Order itself provides 

that the Attorney General and the Secretary are only to enforce the Order “to the extent permitted 

by law.” Exec. Order 13,768, § 9(a). In this respect, the Order is analogous to orders issued by 

past administrations that set forth specific executive priorities and directed the manner in which 

federal agencies might implement those priorities, “to the extent permitted by law.” In Building 

& Construction Trades Department, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002), for 

example, the President had issued an executive order providing that, “[t]o the extent permitted by 

law,” no federal agency or entity receiving federal assistance for a construction project could 

require contractors to enter into a project labor agreement or prohibit them from doing so. Id. at 

30. Plaintiffs challenged the facial validity of the order. The district court enjoined its 

enforcement, finding that it was beyond the President’s authority and violated the National Labor 

Relations Act. Id. at 31. The D.C. Circuit reversed, holding that, in the “faithful execution of the 

laws,” the President may “provide guidance and supervision to his subordinates” and may instruct 

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his subordinates to follow that guidance only “to the extent permitted by law.” Id. at 32-33. 

“Thus,” the court observed, “if an executive agency ... may lawfully implement the Executive 

Order, then it must do so; if the agency is prohibited, by statute or other law, from implementing 

the Executive Order, then the Executive Order itself instructs the agency to follow the law.” Id. 

at 33; see Exec. Order 13,536, 76 Fed. Reg. 3,821-3,823 (Jan. 18, 2011) (reaffirming as a policy 

priority certain principles of contemporary regulatory review and directing agencies “to the extent 

permitted by law” to take steps to promote those principles). 

 Consistent with this framework, the AG Memorandum makes clear that the granteligibility provision of Section 9(a) “applie[s] solely to federal grants administered by [DOJ] or 

[DHS], and not to other sources of federal funding.” See AG Mem. at 1 (emphasis added). It 

further clarifies that, where DOJ imposes obligations on a grant program, such as the requirement 

that an applicant certify compliance with 8 U.S.C. § 1373, those obligations have been or will be 

imposed where legally authorized and only where grantees are given “notice of their 

obligation[s].” Id. at 2. Thus, the AG Memorandum provides a basis for the Court to reconsider 

its conclusion that the grant-eligibility provision of the Executive Order extends beyond DOJ and 

DHS grants, and that the provision purports to delegate new authority from the President to 

agency heads regarding the imposition of conditions on federal grants. 

 In its justiciability analysis, the Court also determined that the grant-eligibility provision 

of the Executive Order attempted to render state and local jurisdictions that declined to comply 

with federal civil detainer requests ineligible to receive federal grants. Order of Apr. 25, 2017 at 

23-27. The Court reached this determination by relying on public comments made by the 

President, the White House Press Secretary, and the Attorney General. Id. That determination 

served as the primary basis for the Court’s conclusion that San Francisco, which had adopted a 

policy of noncompliance with federal civil detainer requests, showed a likelihood of enforcement 

under the grant-eligibility provision of Section 9(a). Id. 

 Unlike public comments, however, the AG Memorandum constitutes formal and binding 

guidance. The Memorandum clarifies that the grant-eligibility provision applies only to grant 

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programs administered by DOJ or DHS that have grant terms explicitly requiring certification of 

compliance with Section 1373 as a condition on the receipt of funding. See, e.g., AG Mem. at 1-

2. Contrary to this Court’s findings, the AG Memorandum concludes that “jurisdiction[s] that 

fail[] to certify compliance with section 1373 will be ineligible to receive [an] award[].” AG 

Mem. at 2. The Memorandum does not mention detainer requests. Rather, it confirms that 

defendants may impose conditions on grant programming only under “existing statutory or 

constitutional authority” and only where “grantees . . . receive notice of their obligation to 

comply” with specific eligibility conditions. AG Mem. at 2. Because one of the primary bases 

for this Court’s ruling – namely, non-binding press statements – has been supplanted, the Court 

should reconsider its holding. 

 The Court also relied on its conclusion regarding forced compliance with federal civil 

detainer requests in holding that San Francisco could show justiciable harm. Specifically, the 

Court held that the purported requirement to comply with detainer requests compromised the 

City’s Tenth Amendment rights by effectively forcing the City “to enforce the Federal 

government’s immigration laws[.]” Order of Apr. 25, 2017 at 28. The Court should reconsider 

that position for two reasons. First, conditioning the receipt of federal funds on whether a State 

takes a particular action does not alone raise Tenth Amendment concerns, so long as the “State 

could . . . adopt the simple expedient of not yielding to what she urges is federal coercion.” See S. 

Dakota v. Dole, 483 U.S. 203, 210 (1987) (internal quotation marks omitted). But in any event, 

as explained above, the AG Memorandum clarifies that the grant-eligibility provision does not 

create a retroactive grant condition requiring compliance with federal civil detainer requests. AG 

Mem. at 2. Accordingly, the Court should reconsider its holding that the grant-eligibility 

provision forces local jurisdictions “to enforce the Federal government’s immigration laws” in a 

manner that violates the Tenth Amendment. Order of Apr. 25, 2017 at 23-28. 

 In addressing the justiciability of San Francisco’s claims, the Court also held – based on 

its broad interpretation of the grant-eligibility provision – that the City had established justiciable 

harm because the provision purportedly jeopardized all federal grant funding received by the 

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City, not just grants administered by DOJ and DHS. Order of Apr. 25, 2017 at 29-32. Based on 

the presumption that the grant-eligibility provision encompassed all federal grant programs, 

including those funded through reimbursement structures, the Court concluded that the City faced 

budgetary uncertainty and potentially grave financial harm. Id. at 30. 

 Again, the AG Memorandum contradicts the Court’s interpretation of the scope of the 

grant-eligibility provision, and consequently undermines plaintiff’s ability to establish justiciable 

harm. As noted, the AG Memorandum confirms the limited scope of the grant-eligibility 

provision: that provision applies only to grants administered by DHS or DOJ, and, with respect 

to DOJ grants, only where the recipient fails to comply with an express obligation to certify 

compliance with 8 U.S.C. § 1373. See AG Mem. at 1-2. Only with respect to three grant 

programs, all of which are administered by DOJ, have defendants identified Section 1373 as an 

applicable federal law with which grantees are required to comply. See, e.g., Tr. of Oral Arg. at 

35:2-9. At no point has San Francisco averred that this limited construction of the granteligibility provision would cause the severe, concrete financial harm contemplated in the Court’s 

Order. Moreover, the AG Memorandum mitigates the City’s claims of budgetary uncertainty by 

clarifying the specific grant programs currently subject to the provision, and by confirming that 

grant applicants or recipients will have prior notice of any conditions that might be placed in the 

future on DOJ or DHS-administered grant programs. AG Mem. at 1-2. 

 Because the AG Memorandum’s clarification of the scope of the grant-eligibility 

provision of Section 9(a) supplants many of the fundamental bases underlying the Court’s 

determinations regarding justiciability, defendants respectfully request that the Court reconsider 

those determinations in light of the conclusive position articulated in the Memorandum. 

II. The AG Memorandum Provides a Basis for the Court to 

 Reconsider Its Determination that the Plaintiff is Likely to 

 Succeed on the Merits of Its Claims 

 Many of the Court’s determinations regarding plaintiff’s likelihood of success on the 

merits are based on a reading of the Executive Order that is inconsistent with the position set forth 

in the AG Memorandum. Under the conclusive interpretation of the Executive Order set forth in 

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the Memorandum, plaintiff cannot establish a likelihood of success on any of its claims. 

Accordingly, the Court should reconsider its previous determinations with respect to the merits of 

plaintiff’s constitutional claims. 

 A. The AG Memorandum Alleviates the Court’s Separation of Powers Concerns 

 The AG Memorandum provides grounds for the Court to reconsider its conclusion that 

“Section 9 [of the Executive Order] purports to give the Attorney General and the Secretary the 

power to place a new condition on federal funds . . . not provided for by Congress.” Order of 

Apr. 25, 2017 at 36. Based on that interpretation of the grant-eligibility provision, the Court 

reasoned that the provision constituted an attempt by the President to “wield Congress’s exclusive 

spending power,” in a manner that violated the constitutional separation of powers. Id. at 37. 

 The AG Memorandum, however, refutes the Court’s interpretation of the grant-eligibility 

provision, and consequently undermines the Court’s separation of powers analysis. As the Court 

recognized, “Congress can delegate some discretion to the President to decide how to spend 

appropriated funds” so long as “any delegation and discretion is cabined by [relevant] constitutional boundaries.” Id. at 36; see DKT Mem’l Fund Ltd., 887 F.2d at 280-81. Indeed, executive 

agencies like DOJ have frequently utilized their congressionally delegated authority to tailor 

grants to advance agency priorities. See, e.g., 2016 COPS Hiring Program Fact Sheet, DOJ 

Community Oriented Policing Services, https://cops.usdoj.gov/ pdf/ 2016AwardDocs/ chp/ 

2016_CHP_FactSheet_v3.pdf (last visited May 22, 2017) (“Applicants that choose ‘Homicide’ 

and ‘Gun Violence’ as a problem area in their 2016 [COPS Hiring Program] application will 

receive additional consideration for funding.”); 2015 COPS Hiring Program Fact Sheet, DOJ 

Community Oriented Policing Services, https://cops.usdoj.gov/ pdf/ 2015AwardDocs/ 

chp/2015_CHP_PostAward_FactSheet.pdf (last visited May 22, 2017) (noting priority for 

applicants whose applications focused on “school-based policing through School Resource 

Officers”). 

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 The AG Memorandum makes clear that the grant-eligibility provision is not an attempt by 

the President to unilaterally impose new conditions on federal grants. Rather, just as administrations have in the past, the Executive Order “declare[s] the policy of the executive branch.” Exec. 

Order 13,768 at 1. The grant-eligibility provision furthers the implementation of that policy by 

directing the Secretary and the Attorney General to use lawful means to ensure compliance with 

Section 1373. With respect to the imposition of conditions on federal grant programming, the AG 

Memorandum confirms that such conditions would not be imposed pursuant to a purported 

unilateral executive authority, but rather where “existing statutory or constitutional authority” 

permits the imposition of such conditions. See AG Mem. at 2; see also Allbaugh, 295 F.3d at 33. 

 B. The AG Memorandum Alleviates the Court’s Spending Clause Concerns 

 The AG Memorandum also provides grounds for the Court to reconsider its conclusion 

that the grant-eligibility provision violates constitutional Spending Clause restrictions. See Order 

of Apr. 25, 2017 at 37-39. The Court relied on its broad interpretation of the grant-eligibility 

provision in concluding that plaintiff established a likely violation of three specific Spending 

Clause limitations: “(1) conditions must be unambiguous and cannot be imposed after funds have 

already been accepted; (2) there must be a nexus between the federal funds at issue and the 

federal program’s purpose; and (3) the financial inducement cannot be coercive.” Id. at 37. 

 With respect to its ambiguity concerns, the Court found that because the Executive Order 

purported to “retroactively condition all ‘federal grants’ on compliance with Section 1373,” and 

because the grant-eligibility provision lacked clarity as to the specific “Federal grants” that fell 

within its scope, the Executive Order deprived plaintiff of the ability to “voluntarily and 

knowingly choose to accept conditions on those funds.” Id. at 38 (emphasis added). The AG 

Memorandum makes clear, however, that the grant-eligibility provision applies only to grant 

programs administered by DOJ or DHS; that, in relation to DOJ grants, any conditions imposed 

pursuant to the directives contained in the Executive Order will apply “to future grants”; and that 

grant recipients or applicants “will receive notice” of their obligations. AG Mem. at 2 (emphasis 

added). In other words, the grant-eligibility provision does not create retroactive conditions on 

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federal grants. The position set forth in the AG Memorandum is thus consistent with the Supreme 

Court’s oft-repeated presumption against retroactivity. See generally Fernandez-Vargas v. 

Gonzales, 548 U.S. 30, 37 (2006). 

 The interpretation of the scope of the Executive Order provided in the AG Memorandum 

also alleviates the Court’s concerns regarding the existence of a nexus between the federal funds 

at issue and the federal program’s purpose. Relying on its interpretation of the term “Federal 

grants” as applying to all federal funding, the Court found that a sufficient nexus could not exist 

between compliance with Section 1373 and federal programs unrelated to law enforcement, such 

as child welfare programs or vaccination programs. See Order of Apr. 25, 2017 at 38. But, as the 

AG Memorandum establishes, the term “Federal grants” is not so broad. AG Mem. at 2. Rather, 

it applies only to DHS or DOJ administered grant programs, and, with respect to DOJ grants, only 

those programs that contain grant-eligibility terms that explicitly require compliance with Section 

1373 as a condition of grant-eligibility. Id. Indeed, as the AG Memorandum explicitly 

acknowledges, because “Section 9(a) expressly requires enforcement ‘to the extent consistent 

with law,’ [it] does not call for the imposition of grant conditions that would violate any 

applicable constitutional or statutory limitation,” id. at 1-2, which would include the “nexus” 

requirement. 

 The position set forth in the AG Memorandum also mitigates the Court’s concern that the 

grant-eligibility provision creates an unconstitutionally coercive financial inducement. As the 

Court acknowledged, recent Supreme Court precedent on the Spending Clause’s coercion 

limitation has held that the threat of denying federal funding that amounts to ten percent of a 

state’s overall budget may be sufficiently severe to constitute unconstitutional coercion. Order of 

Apr. 25, 2017 at 39 (citing Nat’l Fed. of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2604 (2012)). 

Because the Court determined that the grant-eligibility provision of Section 9(a) threatens 

defunding of “all federal grants” to San Francisco, amounting in the “hundreds of millions of 

dollars,” it held that the provision was unconstitutionally coercive. Id. 

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 Again, the AG Memorandum contravenes this determination. In confirming that the term 

“Federal grants” is limited to grant programs administered by DHS or DOJ that have grant terms 

requiring compliance with Section 1373, the AG Memorandum drastically reduces the potential 

coercive effect of the grant-eligibility provision. As mentioned, only three grant programs 

currently fall within the scope of the provision, and plaintiff has put forth no evidence demonstrating that the funding levels encompassed by those programs are so significant as to constitute 

unconstitutional coercion. 

 Accordingly, because the AG Memorandum directly addresses and alleviates the 

Spending Clause concerns that the Court articulated, defendants respectfully request that the 

Court reconsider its analysis on those points. 

 C. The AG Memorandum Alleviates the Court’s Tenth Amendment Concerns 

 In analyzing San Francisco’s likelihood of success on the merits of its Tenth Amendment 

claims, the Court held that the Executive Order “equates ‘sanctuary jurisdictions’ with ‘any 

jurisdiction that ignored or otherwise failed to honor any [federal civil] detainer[] [requests]’ and 

therefore places such jurisdictions at risk of losing all federal grants.” Order of Apr. 25, 2017 at 

40. As a result of that interpretation, the Court found that the grant-eligibility provision of 

Section 9(a) was likely unconstitutional under the Tenth Amendment because it effectively 

sought “to compel the states and local jurisdictions to enforce a federal regulatory program 

through coercion.” Id. The Court also found that the separate provision of Section 9(a) 

instructing the Attorney General to “take appropriate enforcement action against any entity that 

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

the enforcement of Federal law,” should be interpreted as an attempt to force state and local 

jurisdictions to comply with civil detainer requests. Id. The Court relied on that interpretation as 

additional support for the conclusion that San Francisco was likely to succeed in its Tenth 

Amendment challenge. 

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 The AG Memorandum, however, undermines this conclusion.3 As an initial matter, the 

Memorandum provides a definition of “sanctuary jurisdiction” that is untethered to compliance 

with federal civil detainer requests. See AG Mem. at 2 (stating that, “for purposes of enforcing 

the Executive Order, the term ‘sanctuary jurisdiction’ will refer only to jurisdictions that 

‘willfully refuse to comply with 8 U.S.C. 1373’”). The AG Memorandum further clarifies that 

Section 1373 compliance obligations (as well as any other grant programming obligations) may 

be imposed only pursuant to “existing statutory or constitutional authority,” and that “grantees 

will receive notice of their obligation to comply with section 1373.” AG Mem. at 2. 

 The Court also held that mandating compliance with federal civil detainer requests in a 

coercive manner or compelling compliance through enforcement actions “violates the Tenth 

Amendment’s provisions against conscription.” Order of Apr. 25, 2017 at 40. Despite acknowledging that noncompliance with federal civil detainer requests frustrates federal enforcement of 

immigration laws, the Attorney General has not, to date, taken any enforcement action against 

any jurisdiction for noncompliance with such requests, and the Attorney General is prohibited 

from compelling compliance with federal civil detainer requests in a constitutionally impermissible manner. Moreover, the government has recently confirmed its position that federal civil 

detainer requests “are voluntary . . . rather than mandatory commands.” See Br. of the United 

States as Amicus Curiae at 22, Mass. v. Lunn, No. SJC-12276, 2017 WL 1240651 at *22 (Mass. 

Mar. 27, 2017). To the extent the plaintiff is concerned that the Attorney General might one day 

engage in an enforcement action that the City believes is unconstitutional, it will undoubtedly 

have an opportunity to assert its challenges in response to that hypothetical action, if it occurs. 

 Accordingly, because the AG Memorandum establishes that compliance with federal civil 

detainer requests is not a precondition to the receipt of all federal grant funding, defendants 

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 Indeed, even if compliance with federal civil detainer requests were an explicit condition 

on the receipt of a federal grant award, the mere existence of such a condition would not alone 

violate Spending Clause or Tenth Amendment principles. See Dole, 483 U.S. at 210 (holding that 

a condition that might otherwise be deemed as infringing on State sovereignty does not violate 

that sovereignty where the State can “adopt the simple expedient” of rejecting the funding). 

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respectfully request that the Court reconsider its holding that San Francisco has established a 

likelihood of success on the merits of its Tenth Amendment claims. 

 D. The AG Memorandum Alleviates the Court’s Vagueness Concerns 

Much of the Court’s vagueness analysis is predicated on the presumption that Section 9(a) 

of the Executive Order effectively renders state and local jurisdictions that fail to comply with 

Section 1373 automatically ineligible to receive any federal grants. See Order of Apr. 25, 2017 at 

41-43. The Court found that, because the Order does not define the terms “sanctuary jurisdiction” 

or “compliance with Section 1373,” federal grant recipients “do not know how to avoid the 

Order’s defunding penalty,” thereby implicating constitutional vagueness concerns. Id. at 42. 

Contrary to the Court’s interpretation, however, the AG Memorandum specifies that the 

grant-eligibility provision does not create a self-effectuating defunding penalty. See, e.g., 

Allbaugh, 295 F.3d at 33 (noting that an executive order that required action “to the extent 

consistent with law” was “not selfexecuting”). Section 9(a) of the Executive Order does not 

impose retroactive conditions on all federal grants, nor does it attempt to alter the existing 

requirements of Section 1373 (or any other federal law). See AG Mem. at 1-2. Rather, the AG 

Memorandum specifies that the grant-eligibility provision applies only to DOJ or DHS grants 

and, with respect to DOJ grants, only to those that contain grant terms requiring certification of 

compliance with Section 1373. Id. Moreover, the Memorandum confirms that jurisdictions will 

have notice of Section 1373 compliance obligations prior to the imposition of those obligations. 

Id. Thus, the AG Memorandum “provide[s] explicit standards” governing the scope of the granteligibility provision, thereby mitigating the Court’s vagueness concerns with that provision. See

Gaynard v. City of Rockford, 408 U.S. 104, 108 (1972). 

The Court also identified vagueness concerns regarding the separate provision of Section 

9(a) that directs the Attorney General to take appropriate enforcement action against jurisdictions 

that hinder enforcement of federal law (the “appropriate enforcement provision”). Although the 

AG Memorandum does not directly address the appropriate enforcement provision of Section 

9(a), the provision itself limits the Attorney General to taking “appropriate” action; the Attorney 

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General has taken no action whatsoever against San Francisco pursuant to the provision; and, in 

any event, any jurisdiction subject to an enforcement action under that provision would 

undoubtedly have the opportunity to challenge such action once it occurs. More importantly, 

because the AG Memorandum sets forth the parameters of the grant-eligibility provision, and 

because the harm identified by the City consists primarily of the potential loss of federal funding 

and resultant budgetary uncertainty, the AG Memorandum mitigates any harm that the plaintiff 

might assert as a result of the alleged vagueness contained in the appropriate enforcement 

provision of Section 9(a). 

Accordingly, defendants respectfully request that the Court reconsider its conclusion 

under the Fifth Amendment vagueness doctrine in light of the guidance provided in the AG 

Memorandum. 

E. The AG Memorandum Alleviates the Court’s Due Process Concerns 

The position set forth in the AG Memorandum also contradicts the Court’s procedural due 

process analysis. As the Court explained, to state a procedural due process claim, a litigant must 

identify “a legally protectable property interest and that he has suffered or will suffer a depravation of that property without adequate process.” Order of Apr. 25, 2017 at 43 (citing Thornton v. 

City of Helens, 425 F.3d 1158, 1164 (9th Cir. 2005)). Here, the Court found that San Francisco 

has a legally protectable property interest “in federal funds that Congress has already appropriated 

and that the [plaintiffs] have accepted.” Order of Apr. 25, 2017 at 43. The Court further held that 

the grant-eligibility provision of Section 9(a) purported to render the City ineligible to receive 

those funds without appropriate process. Id.

The AG Memorandum undermines those determinations. As an initial matter, the AG 

Memorandum makes clear that the grant-eligibility provision does not encompass all “funds that 

Congress has already appropriated and that the [plaintiffs] have accepted.” Id. Rather, the 

provision encompasses only grant programs administered by DHS or DOJ and only where the 

grant-eligibility terms explicitly require compliance with Section 1373. See AG Mem. at 1-2. 

Moreover, the grant-eligibility provision does not purport to create an automatic defunding 

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mechanism that would effectively terminate federal funding to San Francisco with no process of 

law. Rather, only those jurisdictions “that fail[] to certify compliance with section 1373 will be 

ineligible receive [an] award[]” under the specific grant programs that fall within the scope of the 

provision. See AG Mem. at 2. Thus, based on the conclusive guidance contained in the AG 

Memorandum, the City cannot establish that it is likely to succeed on its claim that the Executive 

Order deprives it of a legally protected property interest without sufficient process of law. 

Accordingly, defendants respectfully request that the Court reconsider its Fifth 

Amendment procedural due process analysis. 

III. The Injunction Should Not Restrict Defendants’ Independent 

 Authority to Impose Conditions on Grant Programming 

Although defendants believe the Court should lift the injunction in this matter for the 

above-stated reasons, should the Court determine that an injunction remains appropriate, 

defendants respectfully seek clarification regarding the scope of the injunction’s prohibitions. 

The Court has made clear that defendants may “use lawful means to enforce existing conditions 

of federal grants or 8 U.S.C. 1373.” Order of Apr. 25, 2017 at 49. Defendants respectfully 

request confirmation, however, that DOJ or DHS are not enjoined from exercising legal authority 

independent of the Executive Order to impose conditions on grant programming for future DOJ 

or DHS-administered grants. 

As detailed above and in the accompanying declaration from the Office of Justice 

Programs, with respect to certain grant programs, DOJ and DHS are legally authorized, 

independent of Section 9(a) of the Executive Order, to impose certain conditions in grant 

programming. See Declaration of Ralph Martin ¶¶ 5-11 (Attachment 2 hereto); see also Order of 

Apr. 25, 2017 at 36 (acknowledging that executive agencies may have “some discretion . . . to 

decide how to spend appropriated funds”). For example, prior to the issuance of the Executive 

Order, DOJ had identified Section 1373 as an applicable federal law with which grantees are 

required to comply in the JAG program, as well as under two other DOJ-administered grant 

programs. See, e.g., Tr. of Oral Arg. at 35:2-9; Martin Decl. ¶ 17. Moreover, as the government 

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indicated at oral argument, “[g]oing forward . . . DOJ and, potentially, DHS” may choose to 

impose similar conditions, where authorized to do so. See Tr. of Oral Arg. at 25:14-16; see also 

AG Mem. at 2 (providing that, where legally authorized, defendants “may seek to tailor grants to 

promote a lawful system of immigration”). To ensure that DHS and DOJ retain their ability to 

exercise that previously existing authority, which is independent of the Executive Order, 

defendants respectfully request that, should the Court decline to lift the injunction in this matter, it 

clarify that the injunction does not prohibit defendants from utilizing grant-related legal 

authorities that exist independent of the Executive Order. 

CONCLUSION 

For the foregoing reasons, defendants respectfully request that the Court reconsider its 

entry of preliminary injunctive relief in light of the binding guidance articulated in the AG 

Memorandum. Alternatively, defendants request that the Court clarify the scope of its Order to 

specify that defendants are not enjoined from exercising their independent, constitutionally 

permissible authority to impose conditions on certain grant programs they administer. 

Dated: May 22, 2017 

 Respectfully submitted, 

 CHAD A. READLER 

 Acting Assistant Attorney General 

 BRIAN STRETCH 

 United States Attorney 

 JOHN R. TYLER 

 Assistant Director 

 STEPHEN J. BUCKINGHAM 

 Special Counsel 

 /s/ W. Scott Simpson 

 

 W. SCOTT SIMPSON (Va. Bar #27487) 

 Senior Trial Counsel 

Case 3:17-cv-00485-WHO Document 107 Filed 05/23/17 Page 25 of 37
Defs’ Motion for Reconsideration

No. 3:17-cv-00485-WHO

22

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 Attorneys, Department of Justice 

 Civil Division, Room 7210 

 Federal Programs Branch 

 Post Office Box 883 

 Washington, D.C. 20044 

 Telephone: (202) 514-3330 

 Facsimile: (202) 616-8470 

 E-mail: scott.simpson@usdoj.gov 

 COUNSEL FOR DEFENDANTS 

 DONALD J. TRUMP, President of the 

 United States; UNITED STATES OF 

 AMERICA; JOHN F. KELLY, Secretary of 

 Homeland Security; JEFFERSON B. 

 SESSIONS, III, Attorney General of the 

 United States 

Case 3:17-cv-00485-WHO Document 107 Filed 05/23/17 Page 26 of 37
City & County of San Francisco v. Donald J. Trump, 

et al., 

No. 3:17-cv-00485-WHO (N.D. Cal.) 

Defendants’ Motion for Reconsideration or, in the 

Alternative, Clarification of the Court’s 

Order of April 25, 2017 

Attachment 1 

Memorandum from the Attorney General 

for All Department Grant-Making 

Components (May 22, 2017) 

Case 3:17-cv-00485-WHO Document 107 Filed 05/23/17 Page 27 of 37
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May 22, 2017 

MEMORANDUM FOR ALL DEPARTMENT GRANT-M ING COMPONENTS 

FROM: 

SUBJECT: 

THE ATTORNEY GENERA 

I 

Implementation of Executive ,L er 13768, 

"Enhancing Public Safety in tU Interior of the United States" 

Federal law provides a process for foreign citizens to lawfully enter the country. 

Circumventing that process and crossing our borders unlawfully is a federal crime. It is the role 

of federal agencies, including the Department of Justice, to enforce our immigration laws, 

prosecute violations, and secure our borders. 

The President has established immigration enforcement as a priority for this 

Administration and, in furtherance of that priority, issued Executive Order 13768, "Enhancing 

Public Safety in the Interior of the United States," on January 25, 2017. The Executive Order 

makes clear that "[i]t is the policy of the executive branch to ensure, to the fullest extent of the 

law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373." To 

accomplish this policy, section 9(a) of the Executive Order provides, in part: 

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

to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to

comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal

grants, except as deemed necessary for law enforcement purposes by the Attorney

General or the Secretary. The Secretary has the authority to designate, in his discretion

and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.

Section 13 73 provides in part that state and local jurisdictions "may not prohibit, or in any way 

restrict, any government entity or official from sending to, or receiving from, [federal 

immigration officers] information regarding the citizenship or immigration status, lawful or 

unlawful, of any individual." 8 U.S.C. § 1373(a). 

In accordance with my duties as Attorney General, I have determined that section 9(a) of 

the Executive Order, which is directed to the Attorney General and the Secretary of Homeland 

Security, will be applied solely to federal grants administered by the Department of Justice or the 

Department of Homeland Security, and not to other sources of federal funding. Section 9(a) 

expressly requires enforcement "to the extent consistent with law," and therefore does not call 

for the imposition of grant conditions that would violate any applicable constitutional or 

Case 3:17-cv-00485-WHO Document 107 Filed 05/23/17 Page 28 of 37
Memorandum for All Department Grant-Making Components 

Subject: Implementation of Executive Order 13 768, 

"Enhancing Public Safety in the Interior of the United States" 

Page2 

statutory limitation. Nor does the Executive Order purport to expand the existing statutory or 

constitutional authority of the Attorney General and the Secretary of Homeland Security in any 

respect. Indeed, apart from the Executive Order, the Department of Justice and the Department 

of Homeland Security, in certain circumstances, may lawfully exercise discretion over grants that 

they administer. Section 9(a) directs the Attorney General and the Secretary of Homeland 

Security to exercise, as appropriate, their lawful discretion to ensure that jurisdictions that 

willfully refuse to comply with section 1373 are not eligible to receive Department of Justice or 

Department of Homeland Security grants. 

Consistent with the Executive Order, statutory authority, and past practice, the 

Department of Justice will require jurisdictions applying for certain Department grants to certify 

their compliance with federal law, including 8 U.S.C. § 1373, as a condition for receiving an 

award. Any jurisdiction that fails to certify compliance with section 1373 will be ineligible to 

receive such awards. This certification requirement will apply to any existing grant administered 

by the Office of Justice Programs and the Office of Community Oriented Policing Services that 

expressly contains this certification condition and to future grants for which the Department is 

statutorily authorized to impose such a condition. All grantees will receive notice of their 

obligation to comply with section 1373. The Department will administer this certification 

requirement in accordance with the law and will comply with any binding court order. 

After consultation with the Secretary of Homeland Security, I have determined that, for 

purposes of enforcing the Executive Order, the term "sanctuary jurisdiction" will refer only to 

jurisdictions that "willfully refuse to comply with 8 U.S.C. 1373." A jurisdiction that does not 

willfully refuse to comply with section 1373 is not a "sanctuary jurisdiction" as that term is used 

in section 9(a). While the Executive Order's definition of "sanctuary jurisdiction" is narrow, 

nothing in the Executive Order limits the Department's ability to point out ways that state and 

local jurisdictions are undermining our lawful system of immigration or to take enforcement 

action where state or local practices violate federal laws, regulations, or grant conditions. 

The provisions of the Executive Order quoted above address only 8 U.S.C. § 1373. 

Separate and apart from the Executive Order, statutes may authorize the Department to tailor 

grants or to impose additional conditions on grantees to advance the Department's law 

enforcement priorities. Consistent with this authority, over the years, the Department has 

tailored grants to focus on, among other things, homeland security, violent crime (including drug 

and gang activity), and domestic violence. Going forward, the Department, where authorized, 

may seek to tailor grants to promote a lawful system of immigration. 

Case 3:17-cv-00485-WHO Document 107 Filed 05/23/17 Page 29 of 37
City & County of San Francisco v. Donald J. Trump, 

et al., 

No. 3:17-cv-00485-WHO (N.D. Cal.) 

Defendants’ Motion for Reconsideration or, in the 

Alternative, Clarification of the Court’s 

Order of April 25, 2017 

Attachment 2 

Declaration of Ralph Martin 

Office of Justice Programs 

U.S. Department of Justice 

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