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CHAD A. READLER

Acting Assistant Attorney General

BRIAN STRETCH

United States Attorney

JOHN R. TYLER

Assistant Director

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 TO DISMISS; 

MEMORANDUM OF POINT AND 

AUTHORITIES

Date: July 19, 2017

Time: 2:00 p.m.

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TABLE OF CONTENTS

TABLE OF AUTHORITIES...........................................................................................................ii

NOTICE OF MOTION AND MOTION TO DISMISS..................................................................1

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

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

ISSUES PRESENTED....................................................................................................................3

STATUTORY AND ADMINISTRATIVE BACKGROUND .......................................................4

I. Broad Executive Discretion in Enforcement of Immigration Law .........................4

II. Executive Order 13,768...........................................................................................6

III. The AG Memorandum ............................................................................................7

PROCEDURAL BACKGROUND .................................................................................................8

ARGUMENT ..................................................................................................................................8

I. Plaintiff Lacks Standing and Its Claims Are Unripe .............................................10

II. Plaintiff Fails to State a Viable Claim for Declaratory Relief

Regarding Its Compliance with Section 1373.......................................................11

III. Plaintiff Fails to State Any Viable Claim Regarding the

Executive Order, Which Is an Internal Directive and 

Does Not Directly Affect the Plaintiff...................................................................12

IV. Plaintiff Fails to State Any Viable Claim Regarding the Grant

Eligibility Provision, as Elucidated by the AG Memorandum..............................13

A. Plaintiff Fails to State a Viable Claim that the Grant

Eligibility Provision Violates the Separation of Powers...........................14

B. Plaintiff Fails to State a Viable Claim that the Grant

Eligibility Provision Exceeds the Spending Power...................................16

C. Plaintiff Fails to State a Viable Claim that the Grant

Eligibility Provision Violates the Tenth Amendment ...............................21

V. Plaintiff’s Claim that the “Appropriate Enforcement Action” Provision

of Section 9(a) Violates the Tenth Amendment Is Non-Justiciable ......................22

CONCLUSION .............................................................................................................................24

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TABLE OF AUTHORITIES

CONSTITUION

U.S. Const. Art. I, § 8, cl. 1 ......................................................................................................14, 16

U.S. Const., Art. III, § 2 ...................................................................................................................8

U.S. Const. art. III, § 2, cl. 1...........................................................................................................22

CASES

Abbott Labs. v. Gardner, 387 U.S. 136 (1967) ..................................................................10, 23, 24

Aguiar v. Wells Fargo Bank, N.A., No. 12-CV-03653 YGR, 

2012 WL 5915124 (N.D. Cal. Nov. 26, 2012).............................................................................2

Alexander v. Sandoval, 532 U.S. 275 (2001) .................................................................................11

Am. Fed’n of State, Cty. & Mun. Employees v. Scott,

717 F.3d 851 (11th Cir. 2013)..............................................................................................14, 15

Arizona Dream Act Coal. v. Brewer, 855 F.3d 957 (9th Cir. Feb. 2, 2017).....................................4

Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492 (2012) ...............................................4, 24

Ashcroft v. Iqbal, 556 U.S. 662 (2009).............................................................................................9

Ashcroft v. Mattis, 431 U.S. 171 (1977).........................................................................................12

Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161 (D.C. Cir. 2004) ...................18

Bigelow v. Virginia, 421 U.S. 809 (1975)......................................................................................23

Bldg. & Const. Trades Dep’t, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002)...................7, 8

Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288 F.3d 414 (9th Cir. 2002)......................................................................................................22

Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F.3d 1156 (9th Cir. 2016) .............................9

Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal. May 19, 1995)................12

Cty. of Santa Clara v. Trump, No. 17-CV-00485-WHO, 

2017 WL 1459081 (N.D. Cal. Apr. 25, 2017)....................................................................14, 15, 17

DKT Mem’l Fund Ltd. v. AID, 887 F.2d 275 (D.C. Cir. 1989)................................................14, 15

Eagle-Picher Indus., Inc. v. EPA, 759 F.2d 905 (D.C. Cir. 1985).................................................23

Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832 (9th Cir. 2003) ...........................................................21

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FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990) ....................................................................23

Golden v. Zwickler, 394 U.S. 103 (1969).......................................................................................11

Harris Cty. Texas v. MERSCORP Inc., 791 F.3d 545 (5th Cir. 2015)...........................................11

Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198 (D. Haw. 1998)......................................22

In re Apple Iphone Antitrust Litig., 846 F.3d 313 (9th Cir. 2017) ...................................................9

In re ATM Fee Antitrust Litig., No. C 04-2676 CRB, 2010 WL 2557519

(N.D. Cal. June 21, 2010) ............................................................................................................9

Legal Aid Soc’y of Alameda County v. Brennan, 608 F.2d 1319 (9th Cir. 1979)..........................12

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).......................................................................9

Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) .............................................................18

Mir v. Little Co. of Mary Hosp., 844 F.2d 646 (9th Cir. 1988)........................................................2

Muhammad v. Berreth, No. C 12-02407 CRB, 2012 WL 4838427 

(N.D. Cal. Oct. 10, 2012)...........................................................................................................11

N.Y. v. United States, 505 U.S. 144 (1992) ........................................................................10, 18, 21

Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012) .........................................10, 19, 21

Nat’l Inst. of Family & Life Advocates v. Harris, 839 F.3d 823 (9th Cir. 2016)...........................22

Navarro v. Block, 250 F.3d 729 (9th Cir. 2001)...............................................................................9

NTEU v. Bush, 891 F.2d 99 (5th Cir. 1989).............................................................................14, 15

Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 1 (1981)...................................................16

Renne v. Geary, 501 U.S. 312 (1991)...............................................................................................9

Robinson v. United States, 586 F.3d 683 (9th Cir. 2009).................................................................9

South Dakota v. Dole, 483 U.S. 203 (1987)............................................................................passim

Standard Alaska Prod. Co. v. Schaible, 874 F.2d 624 (9th Cir. 1989) ..........................................23

State of Cal. v. United States, 104 F.3d 1086 (9th Cir. 1997)........................................................19

Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83 (1998)................................................9, 23, 24

Strong v. Ford, 108 F.3d 1386 (9th Cir. 1997)...............................................................................11

Tenaska Washington Partners II, L.P. v. United States, 34 Fed. Cl. 434 (1995).............................7

Texas v. United States, 523 U.S. 296 (1998)............................................................................23, 24

U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779 (1995) ..............................................................21

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U.S. W. Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112 (9th Cir. 1999)....................................23

United States v. Alabama, 691 F.3d 1269 (11th Cir. 2012) ...........................................................24

United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal. 2015) ...................................................12

United States v. Salerno, 481 U.S. 739 (1987)........................................................................passim

United States v. South Carolina, 720 F.3d 518 (4th Cir. 2013) .....................................................24

Washington State Grange v. Washington State Republican Party, 552 U.S. 442 (2008)..............14

White v. Paulsen, 997 F. Supp. 1380 (E.D. Wash. 1998)...............................................................11

Whitmore v. Arkansas, 495 U.S. 149 (1990)......................................................................10, 23, 24

Winter v. California Med. Review, Inc., 900 F.2d 1322 (9th Cir. 1989)........................................24

STATUTES

8 U.S.C. §§ 1101 et seq. ...................................................................................................................4

8 U.S.C. § 1103(c)(1) .......................................................................................................................7

8 U.S.C. § 1357(g)(1).......................................................................................................................5

8 U.S.C. § 1357(g)(10)(B)................................................................................................................5

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

28 U.S.C. § 512 ............................................................................................................................2, 7

28 U.S.C. § 1331 ............................................................................................................................11

28 U.S.C. § 1346 ............................................................................................................................11

28 U.S.C. §§ 2201-2202.................................................................................................................11

42 U.S.C. § 3712(a)........................................................................................................................15

42 U.S.C. § 3752(a)(5)(D)..............................................................................................................15

Pub. L. No. 104-208, Div. C, Title VI, § 642, 110 Stat. 3009 (1996)..............................................5

REGULATIONS

28 C.F.R. § 0.5(c).........................................................................................................................2, 7

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EXECUTIVE ORDERS

Exec. Order No. 13,608, 77 Fed. Reg. 26,409 (2012)......................................................................4

Exec. Order No. 13,726, 81 Fed. Reg. 23,559 (2016)......................................................................4

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

OTHER AUTHORITIES

Mem. from Att’y Gen. for All Dep’t Grant-Making Components (May 22, 2017)................passim

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)...............5

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).................................................................................................5

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

Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1319-20 (2000)............................................7

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NOTICE OF MOTION AND MOTION TO DISMISS

PLEASE TAKE NOTICE that on Wednesday, July 19, 2017, at 2:00 p.m., or as soon 

thereafter as counsel may be heard, before The Honorable William H. Orrick, in Courtroom 2, 

17th Floor, of the United States Courthouse, 450 Golden Gate Avenue, San Francisco, California, 

the defendants will move, and hereby do move, for dismissal of this action under Rules 12(b)(1) 

and 12(b)(6) of the Federal Rules of Civil Procedure. 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 by the Court.1

MEMORANDUM OF POINTS AND AUTHORITIES

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, directs 

the Attorney General and the Secretary of Homeland Security (“Secretary”), “in their discretion 

and to the extent consistent with law, [to] ensure that jurisdictions that willfully refuse to comply 

with 8 U.S.C. 1373 . . . are not eligible to receive Federal grants, except as deemed necessary for 

law enforcement purposes . . . .” Id. § 9(a). Section 9 also instructs the Attorney General to take 

“appropriate enforcement action” against any entity that violates Section 1373 or has a statute or 

policy that “prevents or hinders the enforcement of Federal law.” Id. Section 1373 provides, 

among other things, 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(a). 

 1 Plaintiff names “DOES 1-100” as defendants in this matter but does not identify those 

individuals or specify the capacity in which they are being sued (Doc. 105 ¶ 18). Undersigned 

counsel does not purport to represent those individuals, and claims against them 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.

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The Order is a presidential directive, directed to the Attorney General, the Secretary, and 

other federal officials. It does not purport to alter the existing requirements of Section 1373 (or 

any other federal law), to impose new burdens on state or local jurisdictions, or to expand the 

legal authority of the Attorney General or the Secretary. Rather, it simply announces the policy 

of the Executive Branch and directs the Attorney General and the Secretary, 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 and to take enforcement 

action as appropriate. Id. 

The Attorney General, in the exercise of his discretion under Section 9(a) of the Order and 

his overall responsibility to advise executive department heads, see 28 U.S.C. § 512; 28 C.F.R. 

§ 0.5(c), has issued authoritative, binding guidance regarding the implementation of Section 9(a). 

See Mem. from Att’y Gen. for All Dep’t Grant-Making Components (May 22, 2017) (Attachment 

1 hereto) (hereinafter AG Mem.).2 Among other things, the AG Memorandum provides (1) that 

the grant eligibility provision in Section 9(a) 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,” (3) that the certification will be required only where the agency is 

“statutorily authorized to impose such a condition,” (4) that “[a]ll grantees will receive notice of 

their obligation to comply with section 1373,” and (5) that only “jurisdiction[s] that fail[] to 

certify compliance with section 1373 will be ineligible to receive [an] award[].” AG Mem. at 1-2. 

 2 This Court can freely consider the AG Memorandum on this motion to dismiss without 

affecting the nature of the motion. See Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 649 (9th 

Cir. 1988) (“[I]t is proper for the district court to take judicial notice of matters of public record 

outside the pleadings and consider them for purposes of the motion to dismiss.”) (internal 

quotation marks omitted); Aguiar v. Wells Fargo Bank, N.A., No. 12-CV-03653 YGR, 2012 WL 

5915124, at *2 (N.D. Cal. Nov. 26, 2012) (stating that court “may consider matter that is properly 

the subject of judicial notice, such as court filings and other public records, without converting a 

motion to dismiss into one for summary judgment”).

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The AG Memorandum further establishes that San Francisco lacks standing in this case 

and that its claims are unripe; thus, all of plaintiff’s claims herein should be dismissed for lack of 

jurisdiction. To the extent the Court addresses plaintiff’s individual claims, each claim must be 

dismissed under either Rule 12(b)(6) or 12(b)(1) of the Federal Rules of Civil Procedure, 

particularly in light of the AG Memorandum. Given that the grant eligibility provision in Section 

9(a) will apply only to certain grants administered by DOJ and DHS and only where the imposition of such a condition is statutorily authorized, and given that grantees will be asked to certify 

their compliance with 8 U.S.C. § 1373 as part of the grant process, the City cannot state viable 

claims that the grant eligibility provision violates the Separation of Powers, the Spending Clause, 

or the Tenth Amendment (Doc. 105 ¶¶ 149-153). This is especially true given that these claims 

are facial challenges to an Executive Order, and plaintiff cannot show that “no set of circumstances exists under which the [Order] would be valid.” United States v. Salerno, 481 U.S. 739, 

745 (1987). 

San Francisco has also failed to state a claim on which relief can be granted regarding its

compliance with Section 1373 (Doc. 105 ¶¶ 144-148) because the City identifies no cause of 

action authorizing such relief and a ruling on that subject would constitute a prohibited advisory 

opinion. And finally, given that no action has been taken against San Francisco pursuant to the 

provision in the Executive Order instructing the Attorney General to take “appropriate 

enforcement action” against certain entities, the Court lacks subject matter jurisdiction over 

plaintiff’s challenge to that provision under the Tenth Amendment (id. ¶¶ 154-157).

Accordingly, the Court should dismiss plaintiff’s Second Amended Complaint for failure 

to state a claim on which relief can be granted and for lack of subject matter jurisdiction.

ISSUES PRESENTED

1. Whether the plaintiff has established its standing and the ripeness of its claims.

2. Whether the plaintiff has stated a viable claim for declaratory relief regarding its 

compliance with 8 U.S.C. § 1373.

3. Whether the plaintiff can challenge an Executive Order that constitutes only an internal 

Executive Branch directive and has no direct effect on the plaintiff.

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4. Whether the plaintiff has stated a viable claim that the grant eligibility provision in 

Section 9(a) of the Executive Order violates the Separation of Powers.

5. Whether the plaintiff has stated a viable claim that the grant eligibility provision 

exceeds the Spending Power.

6. Whether the plaintiff has stated a viable claim that the grant eligibility provision 

violates the Tenth Amendment.

7. Whether the Court has subject matter jurisdiction over plaintiff’s claim that the 

“appropriate enforcement action” provision in Section 9(a) violates the Tenth Amendment.

STATUTORY AND ADMINISTRATIVE BACKGROUND

I. Broad Executive 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, 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, 855 F.3d 957, 967 (9th Cir. Feb. 2, 2017) (“By necessity, the 

federal statutory and regulatory 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 

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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).3 

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.

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 plaintiff notes (Doc. 105 ¶ 43), 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

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 This memorandum is available at https://www.dhs.gov/ sites/ default/ files/ 

publications/ 17_0220_S1_Enforcement-of-the-Immigration-Laws-to-Serve-the-NationalInterest.pdf.

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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 

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 

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jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for 

law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent 

with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall 

take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, 

or which has in effect a statute, policy, or practice that prevents or hinders the 

enforcement of Federal law.

Id. § 9(a), 82 Fed. Reg. at 8,801. Section 9 also instructs the Director of the Office of 

Management and Budget to “obtain and provide relevant and responsive information on all 

Federal grant money that currently is received by any sanctuary jurisdiction.” Id. § 9(c), 82 Fed. 

Reg. at 8,801. 

III. The AG Memorandum

On May 22, 2017, the Attorney General issued a Memorandum regarding the 

implementation of Executive Order 13,768. See AG Mem. at 1. The Attorney General has a 

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

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

Secretary principally administers the immigration laws, the INA provides that “the determination 

and ruling by the Attorney General with respect to all questions of law shall be controlling.” 

8 U.S.C. § 1103(c)(1). 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 AG Memorandum sets forth in a formal, conclusive manner the administration’s 

interpretation of Section 9(a) of the Executive Order. The Memorandum specifies that the 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 

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“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 in Section 9(a) 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 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 where 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 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. 

Lastly, the Attorney General states that, “[a]fter consultation with the Secretary of Homeland 

Security, [he has] 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.’” Id.

PROCEDURAL BACKGROUND

San Francisco filed this action on January 31, 2017, followed by its Second Amended 

Complaint on May 23 (Doc. 105). Plaintiff filed a motion for preliminary injunction against the

implementation of Section 9 of the Executive Order, which the Court granted on April 25, 2017 

(Doc. 82). Defendants filed a motion for reconsideration or clarification of the preliminary 

injunction on May 23, 2017 (Doc. 107), which remains pending.

ARGUMENT 

A claim should be dismissed under Rule 12(b)(1) if the court lacks subject matter 

jurisdiction to consider it. The jurisdiction of the federal courts 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 

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dismissing the cause.” Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998). Courts 

should “presume that [they] lack jurisdiction unless the contrary appears affirmatively from the 

record,” Renne v. Geary, 501 U.S. 312, 316 (1991), and “the party asserting subject matter 

jurisdiction has the burden of proving its existence,” Robinson v. United States, 586 F.3d 683, 

685 (9th Cir. 2009); see Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992). 

Additionally, a claim should be dismissed under Rule 12(b)(6) of the Federal Rules of 

Civil Procedure if it “fail[s] to state a claim upon which relief can be granted.” A motion under 

Rule 12(b)(6) “tests the legal sufficiency” of a complaint. Navarro v. Block, 250 F.3d 729, 732 

(9th Cir. 2001). On such a motion, the district court accepts all “plausible,” “well-pleaded” 

factual allegations as true, In re Apple Iphone Antitrust Litig., 846 F.3d 313, 315 (9th Cir. 2017); 

Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F.3d 1156, 1159 (9th Cir. 2016), but need not 

accept “a legal conclusion couched as a factual allegation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 

(2009). The complaint is subject to dismissal if it fails to “state a claim to relief that is plausible 

on its face.” Id. “A complaint may be dismissed for failure to state a claim where the factual 

allegations do not raise the right to relief above the speculative level.” In re ATM Fee Antitrust 

Litig., No. C 04-2676 CRB, 2010 WL 2557519, at *4 (N.D. Cal. June 21, 2010).

Plaintiff’s Second Amended Complaint contains five claims: Count One alleges that San 

Francisco’s laws comply with 8 U.S.C. § 1373; Count Two alleges that the grant eligibility 

provision in Section 9(a) of the Executive Order violates the constitutional Separation of Powers, 

the Spending Clause of Article I, and the Tenth Amendment; and Count Three alleges that the 

provision in the Order requiring the Attorney General to take “appropriate enforcement action” 

against certain entities also violates the Tenth Amendment. All of these claims should be 

dismissed for lack of standing and ripeness under Rule 12(b)(1), as made even clearer by the AG 

Memorandum. Also, all of plaintiff’s claims against the Executive Order should be dismissed 

under Rule 12(b)(6) because the Order is only an internal Executive Branch directive with no 

direct effect on the City. 

Further, plaintiff’s first four claims should be dismissed for failure to state a claim on 

which relief can be granted under Rule 12(b)(6), and the last claim should be dismissed for 

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independent reasons under Rule 12(b)(1). In relation to the merits of Count One, Section 1373

contains no right of action to seek a declaration regarding a jurisdiction’s compliance with the 

statute, and plaintiff has cited no other source for such a cause of action. Also, since the 

Secretary of Homeland Security has not designated or threatened to designate San Francisco as a 

“sanctuary jurisdiction” under Section 9(a), any judicial ruling on the City’s compliance with 

Section 1373 would be an advisory opinion.

In relation to Count Two, the AG Memorandum makes clear that the grant eligibility 

provision will be applied only where authorized by statute; that the limitations on the spending 

power described in South Dakota v. Dole, 483 U.S. 203 (1987), will be followed; and that the 

grant eligibility provision will not be used to “compel the States to enact or administer a federal 

regulatory program” or to “act on the Federal Government’s behalf” in violation of the Tenth 

Amendment. See N.Y. v. United States, 505 U.S. 144, 188 (1992); Nat’l Fed’n of Indep. Bus. v. 

Sebelius, 132 S. Ct. 2566, 2627 (2012).

And in relation to Count Three, defendants have taken no “enforcement action” against 

San Francisco under Section 9(a) and there is no indication that any such action is imminent, such 

that the City lacks standing to challenge that provision in the Order and its challenge is not ripe.

I. Plaintiff Lacks Standing and Its Claims Are Unripe

Article III of the Constitution requires that a plaintiff have standing and that its claims be 

ripe for judicial consideration. To have standing, the plaintiff must show that it has suffered

“concrete,” “palpable” injury, see Whitmore v. Arkansas, 495 U.S. 149, 155 (1990), and, for the

claims to be ripe, the challenged enactment must have been “formalized and its effects felt in a 

concrete way.” See Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). As discussed in 

Defendants’ Motion for Reconsideration or, in the Alternative, Clarification of the Court’s Order 

of April 25, 2017, the AG Memorandum makes even clearer that these requirements are not 

satisfied here and that, therefore, all of San Francisco’s claims must be dismissed for lack of 

standing and ripeness (Doc. 107 at 8-12).

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II. Plaintiff Fails to State a Viable Claim for Declaratory Relief

Regarding Its Compliance with Section 1373 

Count One in the Second Amended Complaint seeks a judicial declaration that San 

Francisco’s laws comply with 8 U.S.C. § 1373 (Doc. 105 ¶¶ 144-148). The City does not, 

however, identify a right of action, in Section 1373 or elsewhere, that would allow it to pursue 

such declaratory relief, and, in any event, the declaration that plaintiff seeks would constitute a 

prohibited advisory opinion. Thus, Count One does not plead a claim on which relief can be 

granted, and the Court would lack jurisdiction to grant the declaration sought.

“To raise a claim in federal court, plaintiffs must demonstrate both that a federal court will 

have jurisdiction over their claim, and also that they (the plaintiffs) have a right of action to 

initiate that claim. In other words, establishing the court’s jurisdiction and the litigants’ right of 

action are two requirements that must be satisfied independently.” Harris Cty. Texas v. 

MERSCORP Inc., 791 F.3d 545, 552 (5th Cir. 2015); 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”). The general 

jurisdictional statutes that plaintiff cites, 28 U.S.C. §§ 1331 and 1346 (Doc. 105 ¶ 11), do not 

create independent causes of action. See Strong v. Ford, 108 F.3d 1386 (9th Cir. 1997)

(unpublished); White v. Paulsen, 997 F. Supp. 1380, 1382 (E.D. Wash. 1998). Similarly, the 

Declaratory Judgment Act, 28 U.S.C. §§ 2201-2202 (Doc. 105 ¶ 11), creates a certain remedy that 

may be available to litigants, but does not itself create a cause of action. See, e.g., Muhammad v. 

Berreth, No. C 12-02407 CRB, 2012 WL 4838427, at *5 (N.D. Cal. Oct. 10, 2012) (“Declaratory 

relief is not an independent cause of action or theory of recovery, only a remedy. The [Declaratory Judgment Act] does not itself confer federal subject-matter jurisdiction.”) (citation and 

internal quotation marks omitted).

Moreover, because there is no live, concrete controversy regarding whether San Francisco 

complies with Section 1373, any judicial ruling on that subject would constitute a prohibited 

advisory opinion. See 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.”). 

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Plaintiff’s contention that an “actual controversy exists between San Francisco and Defendants 

about whether [the City’s] laws comply with Section 1373” (Doc. 105 ¶ 147) is conclusory and 

inaccurate. San Francisco does not allege that the Secretary has designated it or threatened to 

designate it as a “sanctuary jurisdiction” pursuant to Section 9(a), nor that DOJ or DHS has 

deprived it or threatened to deprive it of any federal funds thereunder. “For a declaratory 

judgment to issue, there must be a dispute which calls, not for an advisory opinion upon a 

hypothetical basis, but for an adjudication of present right upon established facts.” Ashcroft v. 

Mattis, 431 U.S. 171, 172 (1977) (internal quotation marks omitted).

III. Plaintiff Fails to State Any Viable Claim Regarding the Executive Order,

Which Is an Internal Directive and Does Not Directly Affect the Plaintiff

The Court should dismiss all of San Francisco’s challenges to Executive Order 13,768 –

counts two and three of the Second Amended Complaint – because the Order only directs internal

Executive Branch policy and does not directly affect the plaintiff. Courts in this Circuit have 

distinguished between Executive Orders that only “implement policy as a product of executive

authority,” and those that effectuate an authority explicitly vested in the President through an act 

of Congress. See Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023, at *5 (N.D. Cal. 

May 19, 1995), aff’d sub nom. Chen v. INS, 95 F.3d 801 (9th Cir. 1996); Legal Aid Soc’y of 

Alameda County v. Brennan, 608 F.2d 1319, 1330 n.14 (9th Cir. 1979). 

The former type of Executive Order does not carry the independent force of law; rather, it

serves only as an internal Executive Branch directive. The Executive Order in this action falls 

into that category. This is even clearer in light of the AG Memorandum, which indicates that the 

challenged provisions of the Order are directives to the Attorney General and the Secretary of 

Homeland Security regarding their exercise of existing statutory and constitutional authority. AG 

Mem. at 1-2. Because the Order is an internal Executive Branch policy directive, San Francisco

cannot plead viable challenges against it. Cf. United States v. Pickard, 100 F. Supp. 3d 981, 1011

(E.D. Cal. 2015) (rejecting a Tenth Amendment challenge to a statement of agency policy on the

grounds that a policy statement “is a very different creature from a statute” in that it does not bind

States as would a statute).

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Moreover, consistent with its internal nature, the Executive Order does not directly affect 

the plaintiff. It does not impose conditions on federal grants or any requirements on state or local

jurisdictions. Rather, the Order “establish[es] immigration enforcement as a priority for this

Administration,” AG Mem. at 1, in an effort to “ensure that our Nation’s immigration laws are 

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

prioritize means for achieving that priority. 

At no point, however, does the Order purport to directly impose affirmative obligations on

state or local jurisdictions. Rather, the Attorney General and the Secretary are to enforce the

Order’s directives “to the extent permitted by law.” Exec. Order 13,768, § 9(a). Consistent with

that directive, the Executive Order “does not call for the imposition of grant conditions that would

violate any applicable constitutional or statutory limitation . . . [n]or does the Executive Order

purport to expand the existing statutory or constitutional authority of the Attorney General and

the Secretary . . . in any respect.” AG Mem. at 1-2. Rather, in the event the Secretary or the 

Attorney General determines to impose obligations on a grant program pursuant to the directives

contained the Order, such as certification of compliance with 8 U.S.C. § 1373, that obligation 

may be imposed only where existing legal authority allows, and only where grantees are given 

“notice of their obligation[s].” Id. at 2. 

IV. Plaintiff Fails to State Any Viable Claim Regarding the Grant 

Eligibility Provision, as Elucidated by the AG Memorandum 

Regarding the merits, Count Two of plaintiff’s Second Amended Complaint alleges that 

the grant eligibility provision in Section 9(a) of the Executive Order violates the constitutional 

Separation of Powers, the Spending Clause, and the Tenth Amendment. Especially as elucidated 

by the AG Memorandum, this provision of the Order is consistent with all of those constitutional 

provisions.

Plaintiff’s claims regarding the grant eligibility provision are all the more difficult to 

sustain because these are facial challenges to an Executive Order. The Supreme Court has held 

that a facial challenge is “the most difficult challenge to mount successfully.” United States v. 

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Salerno, 481 U.S. 739, 745 (1987). In this context, “the challenger must establish that no set of 

circumstances exists under which the [challenged enactment] would be valid.” Id. 

As the Supreme Court has observed, “[f]acial challenges are disfavored for several 

reasons.” Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450 

(2008). First, “[c]laims of facial invalidity often rest on speculation. As a consequence, they 

raise the risk of premature interpretation of [enactments] on the basis of factually barebones 

records.” Id. (internal quotation marks omitted). Additionally, such challenges “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.” These rules apply to 

Executive Orders as much as to statutes and regulations. See Am. Fed’n of State, Cty. & Mun. 

Employees v. Scott, 717 F.3d 851, 862-63 (11th Cir. 2013); NTEU v. Bush, 891 F.2d 99, 101 (5th 

Cir. 1989). As further discussed below, San Francisco’s Second Amended Complaint fails to 

establish that Section 9 of the Executive Order would be invalid under all circumstances. 

A. Plaintiff Fails to State a Viable Claim that the Grant 

Eligibility Provision Violates the Separation of Powers

Count Two alleges that the grant eligibility provision violates the Separation of Powers by 

“[e]xercising Spending Power that the Constitution grants to Congress” (Doc. 105 ¶ 153). Article 

I of the Constitution confers on Congress the authority to “lay and collect Taxes, Duties, Imposts 

and Excises, to pay the Debts and provide for the common Defence and general Welfare of the 

United States.” U.S. Const. Art. I, § 8, cl. 1. As this Court has said, Congress may, “[i]ncident 

to” its spending power, “attach conditions on the receipt of federal funds,” Cty. of Santa Clara v. 

Trump, No. 17-CV-00485-WHO, 2017 WL 1459081, at *21 (N.D. Cal. Apr. 25, 2017) (quoting

Dole, 483 U.S. at 206), and “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.” 2017 WL 1459081, at *21; see DKT Mem’l Fund Ltd. v. 

AID, 887 F.2d 275, 280-81 (D.C. Cir. 1989) (upholding conditions on spending imposed by 

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President where statute authorized President to set certain “terms and conditions as he may 

determine”).

Especially as elucidated by the AG Memorandum, the grant eligibility provision in 

Section 9(a) is consistent with this division of constitutional responsibilities. The Executive 

Order requires the Attorney General and Secretary of Homeland Security to condition grant 

eligibility on compliance with 8 U.S.C. § 1373 “to the extent consistent with law.” The AG 

Memorandum makes clear that the Order does not “purport to expand the existing statutory or

constitutional authority of the Attorney General and the Secretary . . . in any respect” and “does 

not call for the imposition of grant conditions that would violate any applicable constitutional or

statutory limitation.” AG Mem. at 1-2. Even more specifically, the Memorandum confirms that 

compliance with Section 1373 will be imposed as a condition of grant eligibility only where the 

agency “is statutorily authorized to impose such a condition.” Id. 

In fact, Congress has frequently authorized agencies administering certain grant programs 

to impose discretionary conditions on the receipt of funds. Those statutory authorizations have 

taken a variety of forms, including authorizing an agency to ensure that a grant recipient complies 

“with all provisions of . . . applicable Federal laws,” see 42 U.S.C. § 3752(a)(5)(D) (governing

DOJ grant program), or allowing an agency to “plac[e] special conditions” on certain grants under 

appropriate circumstances. See id. § 3712(a). Pursuant to these types of statutory authorizations, 

DOJ has already conditioned eligibility for participation in three DOJ-administered grant 

programs on the applicant’s certification of compliance with Section 1373. See generally Tr. of 

Oral Arg. at 35:4-6, City & Cnty. of San Francisco v. Trump, No. 3:17-cv-00485 (N.D. Cal. Apr. 

14, 2017) (identifying the three programs); 2017 WL 1459081, at *4 (same).

Further, as noted above, a party challenging the facial constitutionality of an Executive 

Order must establish that the Order would be unconstitutional in all its applications. See Salerno, 

481 U.S. at 745 (facial challenge must establish that “no set of circumstances exists under which 

[the enactment] would be valid”); see also Am. Fed’n of State, Cty. & Mun. Employees, 717 F.3d 

at 862-63; NTEU v. Bush, 891 F.2d at 101. That standard is necessarily impossible to meet in 

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relation to plaintiff’s Separation of Powers claim, since Congress frequently authorizes the 

Executive to impose discretionary conditions on the receipt of federal grants.

Therefore, especially in light of the AG Memorandum, plaintiff cannot state a viable claim 

for violation of the constitutional Separation of Powers.

B. Plaintiff Fails to State a Viable Claim that the Grant 

Eligibility Provision Exceeds the Spending Power 

Count Two in plaintiff’s Second Amended Complaint also alleges that the grant eligibility 

provision exceeds the federal power under the Spending Clause (Doc. 105 ¶¶ 78-84). This Clause 

provides that Congress may “lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts 

and provide for the common Defence and general Welfare of the United States.” U.S. Const. art. 

I, § 8, cl. 1. As the Supreme Court has held, “Congress may attach conditions on the receipt of 

federal funds, and has repeatedly employed the power to further broad policy objectives by 

conditioning receipt of federal moneys upon compliance by the recipient with federal statutory 

and administrative directives.” S. Dakota v. Dole, 483 U.S. 203, 206 (1987) (internal quotation 

marks omitted). 

The Court in Dole described certain limitations or potential limitations on the spending 

power. Most basically, “the exercise of the spending power must be in pursuit of ‘the general 

welfare’” – as stated in the Spending Clause itself, id. at 207 – and conditions on the receipt of 

federal funds must be stated “unambiguously” so that recipients can “exercise their choice 

knowingly, cognizant of the consequences of their participation.” Id. (citing Pennhurst State Sch. 

& Hosp. v. Halderman, 451 U.S. 1, 17 (1981) (“The legitimacy of Congress’ power to legislate 

under the spending power thus rests on whether the State voluntarily and knowingly accepts the 

terms of the ‘contract.’ There can, of course, be no knowing acceptance if a State is unaware of 

the conditions or is unable to ascertain what is expected of it.”) (citations omitted) (hereinafter 

Pennhurst). Additionally, the Court observed in Dole, “our cases have suggested (without 

significant elaboration) that conditions on federal grants might be illegitimate if they are unrelated 

to the federal interest in particular national projects or programs,” and that “in some 

circumstances the financial inducement offered by Congress might be so coercive as to pass the 

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point at which pressure turns into compulsion.” 483 U.S. at 207-08, 211 (internal quotation 

marks omitted). And finally, the Court said that “other constitutional provisions may provide an 

independent bar to the conditional grant of federal funds.” Id. at 207-08. 

Although these are limitations on congressional power, the plaintiff herein alleges that the 

grant eligibility provision in the Executive Order “purports to exercise Spending Power in ways 

that even Congress could not” (Doc. 105 ¶ 78). Specifically, the City alleges that the provision 

imposes “new funding conditions on existing federal funds”; that it imposes “conditions not 

germane to the purpose of the funds”; that it imposes conditions “so severe as to coerce 

compliance”; and that it imposes conditions that “require jurisdictions to act unconstitutionally” 

(id. ¶ 153). Particularly in light of the AG Memorandum, each of these assertions is without 

merit.

Focusing on the “knowing acceptance” aspect of Dole and Pennhurst, San Francisco 

asserts, first, that the grant eligibility provision unconstitutionally imposes “new funding 

conditions on existing federal funds” rather than imposing such conditions “in advance” (id. 

¶¶ 79, 153).4 See 2017 WL 1459081, at *22 (“Because states must opt-in to a federal program 

willingly, fully aware of the associated conditions, Congress cannot implement new conditions 

after-the-fact.”). As described above, however, the AG Memorandum makes clear that the grant 

eligibility provision will be implemented by “requiring jurisdictions applying for certain [DOJ] 

grants to certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for 

receiving an award.” AG Mem. at 2. Thus, the AG Memorandum continues, “[a]ll grantees will 

receive notice of their obligation to comply with section 1373” ahead of time, and the grant 

eligibility provision will be applied to “[a]ny jurisdiction that fails to certify compliance.” Id. 

Necessarily, therefore, potential grantees will be able to “exercise their choice knowingly, 

cognizant of the consequences of their participation” in grant programs that include this 

condition. Dole, 483 U.S. at 207. The plaintiff cannot show that the grant eligibility provision 

 4 Plaintiff does not allege that the grant eligibility provision violates the requirement that 

federal grant conditions be stated “unambiguously.” Dole, 483 U.S. at 207. In any event, for the 

reasons stated herein, any such claim would be without merit in light of the AG Memorandum.

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will fail this aspect of Dole in all its applications, as necessary in this facial challenge. See

Salerno, 481 U.S. at 745.

Second, plaintiff alleges that the grant eligibility provision imposes conditions that are 

“not germane to the purpose of the funds” (Doc. 105 ¶ 153). As the Court of Appeals has 

observed, however, this aspect of Dole suggests only a “possible ground” for invalidating an 

enactment, and does not impose an “exacting standard”:

The Supreme Court has suggested that federal grants conditioned on compliance 

with federal directives might be illegitimate if the conditions share no relationship 

to the federal interest in particular national projects or programs. This possible 

ground for invalidating a Spending Clause statute, which only suggests that the 

legislation might be illegitimate without demonstrating a nexus between the 

conditions and a specified national interest, is a far cry from imposing an exacting 

standard for relatedness.

Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002) (citing Dole, 483 U.S. at 207). 

Thus, conditions on federal funding must only “bear some relationship to the purpose of the 

federal spending.” 314 F.3d at 1067 (quoting New York v. United States, 505 U.S. 144, 167 

(1992)); see Barbour v. Washington Metro. Area Transit Auth., 374 F.3d 1161, 1168 (D.C. Cir. 

2004) (noting that Supreme Court has never “overturned Spending Clause legislation on 

relatedness grounds”).

Especially as implemented by the AG Memorandum, the grant eligibility provision easily 

meets this standard. The provision will be applied only to grants administered by the Department 

of Justice and the Department of Homeland Security – that is, the primary law enforcement 

agency of the United States and the agency responsible for the admission and removal of noncitizens. AG Mem. at 1. DHS is the very agency whose communication with state and local 

government officials is protected by Section 1373. Moreover, the grant eligibility provision will 

be applied only to “certain . . . grants” as to which the agency “is statutorily authorized to impose 

such a condition.” Id. at 2. Plaintiff alleges that the grant eligibility provision “threatens funds 

that support vital services,” including health care, social services, public transportation, and 

housing (Doc. 105 ¶¶ 10, 104-126). The AG Memorandum has eliminated any possibility that the 

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grant eligibility provision could be applied in relation to any of those categories of federal 

funding.

Third, plaintiff alleges that the grant eligibility provision imposes conditions “so severe as 

to coerce compliance” (Doc. 105 ¶ 153). As the Court of Appeals has observed, however, the 

Supreme Court in Dole concluded that it would find a violation of this potential limitation, “if 

ever, [only] in the most extraordinary circumstances.” State of Cal. v. United States, 104 F.3d 

1086, 1092 (9th Cir. 1997) (citing Dole, 483 U.S. at 210-11). Thus, for example, the Court in 

Dole found no constitutional violation where a State risked losing 5% of its highway funds for 

refusing to implement a federal minimum drinking age. Dole, 483 U.S. at 211. Conversely, the 

Court held more recently that Congress violated anti-coercion principles by subjecting States to a 

risk of losing “all federal Medicaid funding,” which constituted “over 10 percent of a State’s 

overall budget,” if they declined to adopt certain Medicaid expansion actions. See Nat’l Fed’n of 

Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2664 (2012) (hereinafter NFIB). In that case, “the sheer 

size of this federal spending program in relation to state expenditures” rendered the condition 

coercive. Id. at 2663. As the Court held, however, “courts should not conclude that [an enactment] is unconstitutional on this ground unless the coercive nature of an offer is unmistakably 

clear.” Id. at 2662.

Under this precedent, plaintiff’s “coerciveness” claim must fail, especially in light of the 

AG Memorandum. As noted already, the grant eligibility provision of the Executive Order “will 

be applied solely to [certain] federal grants administered by the Department of Justice or the 

Department of Homeland Security, and not to other sources of federal funding.” AG Mem. at 1. 

Moreover, DOJ has so far identified only three grant programs whose eligibility will be conditioned on compliance with Section 1373. See Tr. of Oral Arg. at 35:2-9. Plaintiff’s complaint 

alleges that it receives funds under one of those programs, but does not allege the amount of 

funding involved (Doc. 105 ¶ 53). In these circumstances, San Francisco has fallen far short of 

stating a viable claim that the “coercive nature” of the grant eligibility provision is “unmistakably 

clear.” See NFIB, 132 S. Ct. at 2662.

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Fourth and finally, plaintiff alleges that the grant eligibility provision exceeds the 

spending power by requiring the City to “act unconstitutionally” (Doc. 105 ¶ 153). The Court in 

Dole emphasized the narrowness on this limitation on the federal spending power, noting that 

“the ‘independent constitutional bar’ limitation . . . is not . . . a prohibition on the indirect 

achievement of objectives which Congress is not empowered to achieve directly.” 483 U.S. at 

210. Rather, the Court said, this limitation “stands for the unexceptionable proposition that the 

power may not be used to induce the States to engage in activities that would themselves be 

unconstitutional. Thus, for example, a grant of federal funds conditioned on invidiously 

discriminatory state action or the infliction of cruel and unusual punishment would be an 

illegitimate exercise of the Congress’ broad spending power.” Id. at 210-11. 

The grant eligibility provision does not “induce” San Francisco to violate any such 

constitutional prohibition. As stated in the AG Memorandum, that provision merely requires 

grantees to certify compliance with 8 U.S.C. § 1373, which proscribes prohibiting or restricting 

the sharing of information with federal immigration authorities. See AG Mem. at 2. That is not, 

however, the kind of “independent [constitutional] bar to the conditional grant of federal funds” 

that the Supreme Court contemplated in Dole. 483 U.S. at 207-08. Plaintiff alleges that the grant 

eligibility provision will require it to comply with federal immigration detainer requests in

violation of the Fourth Amendment to the Constitution (Doc. 105 ¶ 82), but the AG Memorandum says nothing about such requests, and, in any event, cooperating with such requests is fully 

consistent with the Fourth Amendment. Moreover, the AG Memorandum states affirmatively 

that the grant eligibility provision “does not call for the imposition of grant conditions that would 

violate any applicable constitutional or statutory limitation.” AG Mem. at 1-2. San Francisco 

cannot show that the grant eligibility provision will require the City to “act unconstitutionally” in 

all circumstances. Cf. Salerno, 481 U.S. at 745.

In short, particularly as elucidated by the AG Memorandum, the grant eligibility provision 

in the Executive Order is only a “relatively mild encouragement” to comply with Section 1373. 

483 U.S. at 211.

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C. Plaintiff Fails to State a Viable Claim that the Grant 

Eligibility Provision Violates the Tenth Amendment

Further, Count Two in the Second Amended Complaint also alleges that the grant 

eligibility provision of Section 9(a) violates the Tenth Amendment, which provides that “[t]he 

powers not delegated to the United States by the Constitution, nor prohibited by it to the States, 

are reserved to the States respectively, or to the people.” This amendment embodies the principle 

that the “pre-existing sovereign States” (and their subdivisions) retain their sovereignty under the 

Constitution and that the federal government may not encroach upon that sovereignty. See U.S. 

Term Limits, Inc. v. Thornton, 514 U.S. 779, 801 (1995); N.Y. v. United States, 505 U.S. 144, 156 

(1992). San Francisco alleges that the grant eligibility provision violates this principle by 

“commandeer[ing] state and local officials to enforce federal law” (Doc. 105 ¶ 8). 

Although “[t]he Federal Government may not compel the States to enact or administer a 

federal regulatory program” or to “act on the Federal Government’s behalf.” N.Y. v. United 

States, 505 U.S. 144, 188 (1992); Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2627 

(2012), San Francisco does not explain how the grant eligibility provision could be said to violate 

this principle. Moreover, the circumstances here belie any such conclusion. As noted already, 

this provision of the Executive Order will be implemented by requiring applicants for certain 

grants to “certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for 

receiving an award. See AG Mem. at 2. And that condition will be imposed only where authorized by existing legal authority and only where grantees receive “notice of their obligation.” Id. 

Thus, where, as here, plaintiff’s obligation would arise only because of its voluntary acceptance 

of grants that included the condition, the Federal Government has not commandeered the City, 

because the City may decline to apply for the specific DOJ or DHS grants to which this condition 

is attached. See Envtl. Def. Ctr., Inc. v. EPA, 344 F.3d 832, 847 (9th Cir. 2003) (“[A]s long as the 

alternative to implementing a federal regulatory program does not offend the Constitution’s 

guarantees of federalism, the fact that the alternative is difficult, expensive or otherwise unappealing is insufficient to establish a Tenth Amendment violation.”) (internal quotation marks 

omitted).

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Accordingly, San Francisco has not pled a viable claim that the grant eligibility provision 

violates the Tenth Amendment.

V. Plaintiff’s Claim that the “Appropriate Enforcement Action” Provision

of Section 9(a) Violates the Tenth Amendment Is Non-Justiciable 

Lastly, Count Three of plaintiff’s Second Amended Complaint alleges that the Tenth 

Amendment is violated by the provision in Section 9(a) that instructs 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.” 

San Francisco characterizes various statements by public officials as meaning that “Defendants 

interpret a state or local government’s decision not to comply with [federal immigration] detainer 

requests as a ‘statute, policy, or practice that prevents or hinders the enforcement of Federal law’”

(Doc. 105 ¶ 87). From this, the City leaps to the conclusion that this provision in Section 9(a) 

“commandeers state and local governments” in violation of the Tenth Amendment, “compelling 

them to enforce a federal program by imprisoning individuals subject to removal at the request of 

the Federal government” (id. ¶ 157). Plaintiff does not allege, however, that the defendants have 

taken any “enforcement action” against it or have indicated that any such action is imminent. 

Accordingly, this claim is non-justiciable and must be dismissed under principles of standing and 

ripeness.

Under Article III of the Constitution, the jurisdiction of the federal courts extends only to 

“Cases” and “Controversies.” U.S. Const. art. III, § 2, cl. 1. Matters outside this rubric are “nonjusticiable.” Ore. Bureau of Labor & Indus. ex rel. Richardson v. U.S. W. Commc’ns, Inc., 288 

F.3d 414, 416 (9th Cir. 2002). Two principles of justiciability bar jurisdiction over plaintiff’s 

Count Three: standing and ripeness. “While standing is concerned with who is a proper party to 

litigate a particular matter, the doctrines of mootness and ripeness determine when that litigation 

may occur.” Haw. Cty. Green Party v. Clinton, 14 F. Supp. 2d 1198, 1201 (D. Haw. 1998). 

Where a plaintiff lacks standing or its claims are unripe, the court lacks jurisdiction. See Nat’l 

Inst. of Family & Life Advocates v. Harris, 839 F.3d 823, 832 (9th Cir. 2016).

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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 v. Arkansas, 495 U.S. 149, 

155 (1990); Bigelow v. Virginia, 421 U.S. 809, 816-17 (1975). Additionally, the injury must be 

“certainly impending” rather than “speculative.” Whitmore, 495 U.S. at 157, 158. “[S]tanding is 

perhaps the most important of [the jurisdictional] doctrines.” FW/PBS, Inc. v. City of Dallas, 493 

U.S. 215, 231 (1990) (internal quotation marks omitted).

Constitutional justiciability also requires that a dispute be ripe for judicial consideration –

that is, that the challenged action “has been formalized and its effects felt in a concrete way by the 

challenging parties.” Abbott Labs. v. Gardner, 387 U.S. 136, 148-49 (1967). In other words, “[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 v. United States, 523 

U.S. 296, 300 (1998) (internal quotation marks omitted). 

In assessing constitutional ripeness in the context of a “pre-enforcement challenge” to a 

statutory or administrative enactment, the courts consider “both the fitness of the issues for 

judicial decision and the hardship to the parties of withholding court consideration.” Abbott 

Labs., 387 U.S. at 149. “A claim is fit for decision if the issues raised are primarily legal, do not 

require further factual development, and the challenged action is final.” Standard Alaska Prod. 

Co. v. Schaible, 874 F.2d 624, 627 (9th Cir. 1989). In other words, a court considers whether the 

court and the parties would “benefit from deferring review until the agency’s policies have 

crystallized and the question arises in some more concrete and final form.” Eagle-Picher Indus., 

Inc. v. EPA, 759 F.2d 905, 915 (D.C. Cir. 1985) (internal quotation marks omitted); see U.S. W. 

Commc’ns v. MFS Intelenet, Inc., 193 F.3d 1112, 1119 (9th Cir. 1999) (finding that claim was not 

fit for decision where administrative proceedings had not concluded and court would “benefit” 

from outcome of those proceedings). Finally, “[t]o meet the hardship requirement, a litigant must 

show that withholding review would result in direct and immediate hardship and would entail 

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more than possible financial loss.” Winter v. California Med. Review, Inc., 900 F.2d 1322, 1325 

(9th Cir. 1989) (internal quotation marks omitted). 

Applying these standards here, the plaintiff cannot show the “injury in fact” needed for 

constitutional standing to challenge the “appropriate enforcement action” provision, Steel Co., 

523 U.S. at 102-03, and this claim is not constitutionally ripe for judicial review, Abbott Labs., 

387 U.S. at 148-49. The defendants have taken no enforcement action against San Francisco 

under Section 9(a) of the Executive Order, and there is no indication that any such action is 

imminent. Thus, the plaintiff has not suffered any “concrete” injury due to this provision, and no 

such injury is “certainly impending.” See Whitmore, 495 U.S. at 155, 158. Similarly, since the 

federal government might never take enforcement action against San Francisco under Section 

9(a), this claim rests on “contingent future events that . . . may not occur at all,” see Texas, 523 

U.S. at 300, and the City cannot show any “direct and immediate hardship” from withholding 

review, see Winter, 900 F.2d at 1325.

Nor could the plaintiff allege that the mere possibility of enforcement action has inflicted

any cognizable injury. Indeed, there is always a possibility that the Federal Government may sue 

a State or local government alleging that the defendant’s laws or policies are constitutionally 

preempted. See Arizona v. United States, 567 U.S. 387, 132 S. Ct. 2492 (2012); United States v. 

South Carolina, 720 F.3d 518 (4th Cir. 2013); United States v. Alabama, 691 F.3d 1269 (11th 

Cir. 2012). This authority exists entirely independent of the Executive Order. Id. Further, if 

such action were to occur, the City would have an opportunity at that time to challenge its 

propriety and merits.

Accordingly, Count Three of the Second Amended Complaint should be dismissed for 

lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure.

CONCLUSION

For the reasons discussed above, all of plaintiff’s claims should be dismissed with 

prejudice. 

Dated: June 6, 2017

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Respectfully submitted,

CHAD A. READLER

Acting Assistant Attorney General

BRIAN STRETCH

United States Attorney

JOHN R. TYLER

Assistant Director

/s/ W. Scott Simpson

 

W. SCOTT SIMPSON (Va. Bar #27487)

Senior Trial Counsel

Attorneys, Department of Justice

Civil Division, Room 7210

Federal Programs Branch

Post Office Box 883

Washington, D.C. 20044

Telephone: (202) 514-3495

Facsimile: (202) 616-8470

E-mail: scott.simpson@usdoj.gov

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

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