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DENNIS J. HERRERA, State Bar #139669

City Attorney 

JESSE C. SMITH, State Bar #122517 Chief Assistant City Attorney 

RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney 

YVONNE R. MERÉ, State Bar #173594

Chief of Complex and Affirmative Litigation 

CHRISTINE VAN AKEN, State Bar #241755 

TARA M. STEELEY, State Bar #231775

MOLLIE M. LEE, State Bar #251404 SARA J. EISENBERG, State Bar #269303

MATTHEW S. LEE, State Bar #295247 

NEHA GUPTA, State Bar #308864 

Deputy City Attorneys 

City Hall, Room 234 

1 Dr. Carlton B. Goodlett Place 

San Francisco, California 94102-4602 

Telephone: (415) 554-4748 

Facsimile: (415) 554-4715 

E-Mail: brittany.feitelberg@sfgov.org 

Attorneys for Plaintiff 

CITY AND COUNTY OF SAN FRANCISCO 

UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF CALIFORNIA 

CITY AND COUNTY OF SAN 

FRANCISCO, 

 Plaintiff, 

 vs. 

DONALD J. TRUMP, President of the United 

States, UNITED STATES OF AMERICA, 

JOHN F. KELLY, Secretary of United States 

Department of Homeland Security, 

JEFFERSON B. SESSIONS, Attorney General 

of the United States, DOES 1-100, 

 Defendants. 

Case No. 3:17-cv-00485-WHO 

CITY AND COUNTY OF SAN FRANCISCO’S 

NOTICE OF MOTION AND MOTION FOR 

PRELIMINARY INJUNCTION; 

MEMORANDUM OF POINTS AND 

AUTHORITIES IN SUPPORT THEREOF 

Date: April 12, 2017 

Time: 2:00 p.m. 

Judge: Honorable William H. Orrick 

Dept: Courtroom 2 

Date Filed: January 31, 2017 

Trial Date: Not set

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TABLE OF CONTENTS 

TABLE OF AUTHORITIES ......................................................................................................... iii 

NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION ...........................1 

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

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

FACTS .............................................................................................................................................2

A. San Francisco’s Sanctuary City Laws And Policies. ...................................2

B. The Executive Order. ...................................................................................4

C. The Executive Order Creates An Imminent Hobson’s Choice For 

San Francisco. ..............................................................................................6

PRELIMINARY INJUNCTION STANDARD ...............................................................................8

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

I. San Francisco Is Likely To Succeed On The Merits Of Its Claims. ........................8

A. San Francisco Is Likely To Succeed On Its Arguments That 

Section 9(a) Of The Executive Order Is Unconstitutional. ..........................8

1. The Funding Restriction Violates The Separation Of Powers. ........9

2. The Funding Restriction Violates The Spending Clause. ..............10

a. It Imposes New Conditions On Existing 

Federal Funding. ................................................................10

b. It Imposes Conditions Unrelated To The Purpose 

Of The Funding. .................................................................11

c. It Is Unconstitutionally Coercive. ......................................12

d. It Induces San Francisco To Engage In 

Unconstitutional Activity. ..................................................13

3. The Executive Order Violates The Tenth Amendment. ................14

B. San Francisco Is Likely To Succeed On Its Arguments Concerning 

The Unconstitutionality Of—And San Francisco’s Compliance With—

Section 1373...............................................................................................16

1. Section 1373 Is Facially Unconstitutional. ....................................16

2. Section 1373 Is Unconstitutional As Applied 

To San Francisco............................................................................18

3. San Francisco Complies With Section 1373 

As Properly Interpreted. .................................................................19

II. San Francisco Will Suffer Irreparable Harm In The Absence Of 

Preliminary Relief. .................................................................................................21

A. San Francisco Faces Imminent And Irreparable Budgetary Harm. ...........21

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B. San Francisco Faces An Imminent Deprivation Of 

Constitutional Rights. ................................................................................22

C. San Francisco Residents And Employees Face Community Injury. .........24

III. The Balance Of Equities And Public Interest Favor A Preliminary Injunction. ...25

CONCLUSION ..............................................................................................................................25 

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TABLE OF AUTHORITIES 

Federal Cases

Alliance for the Wild Rockies v. Cottrell 

632 F.3d 1127 (9th Cir. 2011) .....................................................................................................8 

Ariz. v. United States 

132 S. Ct. 2492 (2012) .........................................................................................................13, 25 

Bassidji v. Goe 

413 F.3d 928 (9th Cir. 2005) .......................................................................................................6 

Bay Area Addiction Research & Treatment, Inc. v. City of Antioch 

179 F.3d 725 (9th Cir. 1999) .....................................................................................................25 

Califano v. Yamaski 

442 U.S. 682 (1979) .....................................................................................................................8 

Campbell v. Allied Van Lines Inc. 

410 F.3d 618 (9th Cir. 2005) .....................................................................................................16 

City of New York v. United States 

179 F.3d 29 (2d Cir. 1999) ..................................................................................................18, 19 

Clinton v. City of New York 

524 U.S. 417 (1998) .....................................................................................................................9 

Coalition for Econ. Equity v. Wilson 

122 F.3d 718 (9th Cir. 1997) .....................................................................................................24 

Conant v. Walters 

309 F.3d 629 (9th Cir. 2002) .....................................................................................................17 

Davila v. N. Reg’l Joint Police Bd. 

979 F. Supp. 2d 612 (W.D. Pa. 2013) ........................................................................................14 

Decker v. O’Donnell 

661 F.2d 598 (7th Cir. 1980) .......................................................................................................8 

Drakes Bay Oyster Co. v. Jewell 

747 F.3d 1073 (9th Cir. 2014) ...................................................................................................25 

Galarza v. Szalczyk 

745 F.3d 634 (3d Cir. 2014) ................................................................................................14, 15 

Garcia v. San Antonio Metro. Transit Auth. 

469 U.S. 528 (1985) ...................................................................................................................16 

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Gregory v. Ashcroft 

501 U.S. 452 (1991) ...................................................................................................................17 

Int’l Jensen, Inc. v. Metrosound U.S.A., Inc. 

4 F.3d 819 (9th Cir. 1993) .........................................................................................................25 

Mass. v. United States 

435 U.S. 444 (1978) ...................................................................................................................11 

Melendres v. Arpaio

695 F.3d 990, 1000 (9th Cir. 2012) ...............................................................................13, 22, 25 

Mendia v. Garcia 

768 F.3d 1009 (9th Cir. 2014) ...................................................................................................14 

Miranda-Olivares v. Clackamas Cnty. 

2014 WL 1414305 (D. Or. Apr. 11, 2014) ....................................................................14, 15, 16 

Morales v. Chadbourne 

No. CV 12-301-M-LDA, 2017 WL 354292 (D.R.I. Jan. 24, 2017) ..........................................13 

Morales v. Chadbourne 

793 F.3d 208 (1st Cir. 2015) ......................................................................................................14 

Nat’l Fed’n of Indep. Bus. v. Sebelius 

132 S. Ct. 2566 (2012) .........................................................................................................12, 13 

Nelson v. Nat’l Aeronautics & Space Admin. 

530 F.3d 865 (9th Cir. 2008) .....................................................................................................23 

Nevada v. Hicks 

533 U.S. 353 (2001) ...................................................................................................................17 

New York v. United States 

505 U.S. 144 (1992) .................................................................................................11, 14, 16, 17 

Pennhurst State Sch. & Hosp. v. Halderman 

451 U.S. 1 (1981) .................................................................................................................10, 11 

Printz v. United States 

521 U.S. 898 (1997) .......................................................................................................14, 15, 17 

Reno v. Condon 

528 U.S. 141 (2000) ...................................................................................................................17 

Scott v. Roberts 

612 F.3d 1279 (11th Cir. 2010) .................................................................................................25 

Sea-Land Serv., Inc. v. I.C.C. 

738 F.2d 1311 (D.C. Cir. 1984) ...................................................................................................6 

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South Dakota v. Dole 

483 U.S. 203 (1987) .......................................................................................................10, 11, 13 

Steinle v. City & Cty. of San Francisco 

16-CV-02859-JCS, 2017 WL 67064 (N.D. Cal. Jan. 6, 2017) ............................................10, 21 

Texas v. United States 

No. 7:16-cv-00054-O, 2016 WL 4426495 (N.D. Tex. Aug. 21, 2016) .....................................24 

Texas v. United States 

809 F.3d 134 (5th Cir. 2015) .......................................................................................................8 

United States v. North Carolina 

192 F. Supp. 3d 620 (M.D.N.C. 2016) ......................................................................................22 

Utley v. Varian Assocs., Inc. 

811 F.2d 1279 (9th Cir. 1987) .....................................................................................................6 

Valle del Sol Inc. v. Whiting 

732 F.3d 1006 (9th Cir. 2013) ...................................................................................................24 

Winter v. Nat’l Res. Def. Council, Inc. 

555 U.S. 7 (2008) .........................................................................................................................8 

Youngstown Sheet & Tube Co. v. Sawyer 

343 U.S. 579 (1952) ...................................................................................................................10 

Zivotofsky ex rel. Zivotofsky v. Kerry 

135 S. Ct. 2076 (2015) ...............................................................................................................10 

Federal Constitutional Provisions 

U.S. Const. art. I, § 8, cl. 1 ...............................................................................................................9 

U.S. Const. amend. IV .........................................................................................................3, 14, 24 

U.S. Const. amend. X.............................................................................8, 14, 15, 16, 17, 18, 23, 24 

Federal Statutes 

8 U.S.C. 

Section 1373 ...................................................................................................................... passim

Federal Rules 

Federal Rule of Civil Procedure 65 .................................................................................................1 

Federal Regulations

8 C.F.R. 

§ 287.7 .........................................................................................................................................3 

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§ 287.7 (a)-(b) ............................................................................................................................13 

§ 287.7 (e) ....................................................................................................................................4 

State Cases

Bologna v. City & Cty. of San Francisco 

192 Cal. App. 4th 429 (2011) ....................................................................................................10 

Dep’t of Pub. Health v. Super. Ct, 

60 Cal. 4th 940 (2015) ...............................................................................................................20 

LaCroix v. Junior 

Case No. F17-376 (Fla. Cir. Ct. Mar. 3, 2017) ......................................................................3, 15 

State Statutes 

California Civil Code 

§ 56.05(j) ....................................................................................................................................20 

§ 1798.92(c) ...............................................................................................................................20 

California Welf. & Inst. Code 

§ 831 ..........................................................................................................................................19 

San Francisco Codes

San Francisco Administrative Code 

§ 2A.83 .......................................................................................................................................19 

Chapter 12H ...............................................................................................................3, 19, 20, 23 

Chapter 12I ..................................................................................................................3, 4, 19, 20 

San Francisco Ordinances

San Francisco, Cal. Ordinance 

No. 96-16 (June 7, 2016) ...........................................................................................................18 

Other Authorities

Eyder Peralta, You Say You’re An American, But What If You Had To 

Prove It Or Be Deported?, NPR (Dec. 22, 2016, 12:29 PM) ....................................................14 

Senate Report No. 104-249 (1996). ...............................................................................................17 

Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. ..........................................................9 

Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. .............................9, 10 

		

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NOTICE OF MOTION AND MOTION FOR PRELIMINARY INJUNCTION

PLEASE TAKE NOTICE that on Wednesday, April 12, 2017, at 2:00 p.m. or as soon 

thereafter as they may be heard before the Honorable William H. Orrick in Courtroom 2 of the United 

States District Court for the Northern District of California, 450 Golden Gate Avenue, San Francisco, 

CA 94102, Plaintiff City and County of San Francisco (“San Francisco”) will and hereby does move 

the Court pursuant to Federal Rule of Civil Procedure 65 for a preliminary injunction against 

Defendants Donald J. Trump, President of the United States of America; John F. Kelly, in his official 

capacity as Secretary of the United States Department of Homeland Security; Jefferson B. Sessions, in 

his official capacity as Attorney General of the United States; and the United States of America 

(collectively, “Defendants”); and their officers, agents, servants, employees, and attorneys, and any 

other persons who are in active concert or participation with them. 

San Francisco respectfully moves the Court to enter a nationwide preliminary injunction 

prohibiting Defendants from enforcing Section 9(a) of Executive Order 13768, entitled “Enhancing 

Public Safety in the Interior of the United States” (“Executive Order”), and 8 U.S.C. Section 1373 

(“Section 1373”) against any jurisdiction in the United States. In the alternative, because San 

Francisco’s laws comply with Section 1373, San Francisco seeks an order enjoining Defendants from 

taking any action under the Executive Order to declare San Francisco a “sanctuary jurisdiction” that is 

ineligible for federal funds. This motion is based on this Notice of Motion and Motion, the 

accompanying supporting Memorandum of Points and Authorities, the accompanying supporting 

declarations, as well as the papers, evidence and records on file in this action, and any other written or 

oral evidence or argument as may be presented at or before the time this motion is heard by the Court. 

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION 

During his campaign, President Trump pledged to end federal funding to sanctuary cities. 

Once in office, he moved quickly to do so, signing an executive order that directed the Attorney 

General and Secretary of Homeland Security to compile a list of “sanctuary jurisdictions” and ensure 

that they do not receive federal funds. With this stroke of his pen, President Trump purported to seize 

the spending power that the United States Constitution entrusts to Congress. Indeed, he sought to give 

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himself the authority to wield that pen in ways that exceed even the legislative branch’s lawful 

spending power. And he assumed for the federal government the right to commandeer state and local 

governments to do the federal government’s job and dictate how they must conduct their internal 

affairs on matters squarely within the traditional police powers of local government. In so doing, 

President Trump not only violated the Constitution, but also undermined the principles that form the 

bedrock of our democracy: separation of powers, a federal government limited by enumerated powers, 

and independent state sovereignty. 

The consequences of this presidential fiat are potentially catastrophic. Although the Executive 

Order is unclear about which funds are at stake, it appears to direct the withdrawal of all federal 

funding from “sanctuary jurisdictions.” Withdrawing all—or even a substantial amount—of federal 

funding would be devastating to San Francisco: the City would be forced to reduce the number of first 

responders, suspend capital projects, and slash critical service programs. And if the cuts were to come 

mid-fiscal year, the impact would be even more severe as there would be less time to absorb the loss. 

San Francisco cannot stand idly by waiting for the Executive Order’s uncertain process to 

unfold. Accordingly, unless the Court grants the requested relief—or Defendants make clear that the 

Executive Order applies considerably more narrowly than it appears—San Francisco will have to place 

money into a budget reserve to account for the potential loss of significant funds. Money placed in a 

reserve is money that will not be available for other services and programs when the new fiscal year 

begins on July 1, 2017. San Francisco recognizes that Defendants may clarify the scope of the 

Executive Order in the weeks and months to come, but there is no assurance they will, and 

San Francisco must make decisions about a budget reserve by May 15, 2017. San Francisco therefore 

has no choice but to seek this Court’s intervention now.1

FACTS 

A. San Francisco’s Sanctuary City Laws And Policies. 

San Francisco’s body of Sanctuary City law is contained in two chapters of its Administrative 

 1

 If Defendants clarify that the Executive Order is narrower than it appears—e.g., that it applies 

only to a specific subset of federal funds, such as future grants directly related to immigration 

enforcement—San Francisco will reconsider the need for immediate preliminary relief. 

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Code: Chapters 12H and 12I.2

 As set forth in the legislative findings in Chapter 12I, the Board of 

Supervisors enacted these laws to serve a critical local purpose: “to foster respect and trust between 

law enforcement and residents, to protect limited local resources, to encourage cooperation between 

residents and City officials, including especially law enforcement and public health officers and 

employees, and to ensure community security, and due process for all.” S.F. Admin. Code § 12I.1. 

Chapter 12H prohibits San Francisco departments, agencies, commissions, officers, and 

employees from using San Francisco funds or resources to assist in enforcing federal immigration law 

or gathering or disseminating information regarding an individual’s release status, or other confidential 

identifying information, unless such assistance is required by federal or state law. Id. § 12H.2.3 

As relevant here, Chapter 12I prohibits San Francisco law enforcement officials from detaining 

an individual who is otherwise eligible for release from custody solely on the basis of a civil 

immigration detainer request issued by U.S. Immigration and Customs Enforcement (“ICE”). Id.

§ 12I.3. Importantly, an ICE detainer request is distinct from a criminal warrant, which San Francisco 

honors consistent with its Sanctuary City law. Detainer requests are not issued by a judge based on a 

finding of probable cause. They are simply requests by ICE that a state or local law enforcement 

agency voluntarily hold individuals after their release date to provide ICE agents extra time to decide 

whether to take those individuals into federal custody and then deport them. See 8 C.F.R. § 287.7.4 

Complying with such requests would potentially expose San Francisco to civil liability for Fourth 

Amendment violations. See Section I(A)(2)(d), infra. Even if an obligation to comply with detainer 

requests were constitutional, doing so would require San Francisco to commit scarce law enforcement 

personnel and resources to detain individuals in holding cells, to supervise and feed individuals during 

 2

 The full text of Chapters 12H and 12I are attached as Exhibits A and B, respectively, to the 

accompanying Declaration of Sara J. Eisenberg (“Eisenberg Decl.”). 

3

 Chapter 12H previously prohibited the dissemination of information regarding the 

immigration status of any individual, but the Board of Supervisors amended the law in July 2016 to 

delete that prohibition. Nothing in the current version of Chapter 12H or 12I limits communications 

regarding citizenship or immigration status in any way. 

4

 As one judge recently explained: “Such detainers or requests are not evidence that a crime 

has been committed, or that someone is in this country illegally. They are not evidence of anything. 

They simply indicate that ICE believes it has a basis to inquire further as to the status of the person 

sought.” LaCroix v. Junior, Case No. F17-376, slip op. at 2 (Fla. Cir. Ct. Mar. 3, 2017). For the 

Court’s convenience, a copy of this opinion is attached to the Eisenberg Declaration as Exhibit G.

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the prolonged detention, and to invest in additional administration and training. Declaration of 

Vicki Hennessy in Support of CCSF’s Mot. for Prelim. Inj. (“Hennessy Decl.”) ¶ 11.5

 

Chapter 12I also prohibits San Francisco law enforcement officials from responding to a 

federal immigration officer’s request for advance notification of the date and time an individual in San 

Francisco’s custody is being released, unless the individual meets certain criteria. S.F. Admin Code 

§ 12I.3(c), (d). Finally, Chapter 12I provides that “[l]aw enforcement officials shall not arrest or 

detain an individual, or provide any individual’s personal information to a federal immigration officer, 

on the basis of an administrative warrant, prior deportation order, or other civil immigration document 

based solely on alleged violations of the civil provisions of immigration laws.” Id. § 12I.3(e). 

B. The Executive Order. 

On January 25, 2017, President Trump issued Executive Order 13768, entitled “Enhancing 

Public Safety in the Interior of the United States.” See Eisenberg Decl. Exh. C. The Executive Order 

condemns jurisdictions with sanctuary policies as “willfully” violating federal law and asserts that 

“[t]hese jurisdictions have caused immeasurable harm to the American people and to the very fabric of 

our republic.” Executive Order § 1. The Executive Order directs the Attorney General and the 

Secretary of the Department of Homeland Security to strip “sanctuary jurisdictions” of federal funds. 

See id. §§ 1, 2, 9(a). The “Funding Restriction” of Section 9(a) states: 

[T]he Attorney General and the Secretary, in their discretion and to the extent 

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

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

Federal grants, except as deemed necessary for law enforcement purposes by 

the Attorney General or the Secretary. The Secretary has the authority to 

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

as a sanctuary jurisdiction. (Id. § 9(a).) 

This language raises two threshold questions: What jurisdictions will be considered “sanctuary 

jurisdictions” within the meaning of the Executive Order? And what funds will be stripped from 

jurisdictions that are so designated? 

As to the former question, Section 9(a) of the Executive Order defines a “sanctuary 

jurisdiction” as any jurisdiction that “willfully refuse[s] to comply with 8 U.S.C. 1373.” Id. Section 

 5

 The local agency bears the financial burden of the detention: “No detainer issued as a result 

of a determination made under this chapter . . . shall incur any fiscal obligation on the part of the 

Department.” 8 C.F.R. § 287.7(e). 

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1373 in turn provides that a “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 

officials] information regarding the citizenship or immigration status . . . of any individual.” Although 

Section 1373 does not mention compliance with ICE civil detainer requests, the Executive Order 

improperly links the two. See Executive Order § 9(b) (equating “sanctuary jurisdictions” with 

jurisdictions “that ignored or otherwise failed to honor any detainers with respect to such aliens”).6

 It 

is therefore apparent that the Trump administration intends to designate all jurisdictions that fail to 

comply with detainer requests—including San Francisco—as “sanctuary jurisdictions” to be stripped 

of federal funds. If there were any question about whether Defendants deem San Francisco a 

“sanctuary jurisdiction,” that question is answered by Defendants’ own statements, which characterize 

San Francisco as a Sanctuary City. See, e.g., Eisenberg Decl. Exh. D [Donald J. Trump: Address on 

Immigration, Donald J. Trump for President (Aug. 31, 2016) (“Another victim is Kate Steinle, gunned 

down in the Sanctuary City of San Francisco . . . .”)]. 

As to what funds will be stripped from “sanctuary jurisdictions,” the Executive Order is 

similarly vague, and seemingly sweeping. Conceivably, it could refer only to grants, and not to 

entitlement programs like Medicaid that rightfully belong to their recipients and not local 

governments. It could be limited only to funds administered by the Attorney General or the 

Department of Homeland Security. Or it could apply only prospectively and not as a bar to 

reimbursing jurisdictions for services already provided in reliance on previously committed funds. 

But the plain language of the Executive Order, as well as the President’s own statements, 

 6

 This misguided interpretation of Section 1373 is also reflected in a memorandum prepared by 

the Department of Justice, Office of the Inspector General (“OIG”) in May 2016, regarding potential 

violations of Section 1373 by recipients of funding from the Edward Byrne Memorial Justice 

Assistance Grant Program (“OIG Memo”). See Request for Judicial Notice in Support of Mot. for 

Prelim. Inj. (“RJN”) Exh. A. In that memo, OIG expressed concern that local laws concerning 

detainer requests “may have a broader practical impact on the level of cooperation afforded to ICE by 

these jurisdictions and may, therefore, be inconsistent with at least the intent of Section 1373.” Id. at 

7. It went on to state that local laws and policies that “purport to be focused on civil immigration 

detainer requests [and say nothing about sharing immigration status with ICE] . . . may nevertheless be 

affecting ICE’s interactions with the local officials regarding ICE immigration status requests.” Id. 

OIG also stated that such immigration detainer request policies “may be causing local officials to 

believe and apply the policies in a manner that prohibits or restricts cooperation with ICE in all 

respects . . . . [which], of course, would be inconsistent with and prohibited by Section 1373.” Id. at 8. 

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strongly indicate that Defendants intend to interpret and implement it to withdraw all current and 

future federal funds from “sanctuary jurisdictions.” The Executive Order directs the Office of 

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

grant money that currently is received by any sanctuary jurisdiction.” Executive Order § 9(c) 

(emphasis added). And it describes the executive’s policy as “[e]nsur[ing] that jurisdictions that fail to 

comply with applicable Federal law do not receive Federal funds, except as mandated by law.” 

Executive Order § 2(c); see generally Bassidji v. Goe, 413 F.3d 928, 934 (9th Cir. 2005) (explaining 

that the text of an executive order “must be construed consistently with the Order’s ‘object and 

policy’”). And to the extent the Executive Order’s plain language may be ambiguous, statements by 

President Trump and his spokesperson indicate an intent to use defunding as a “weapon” to deprive 

jurisdictions of “the money they need to properly operate as a city or state” (Eisenberg Decl. Exh. E) 

to “end[] sanctuary cities.” Id. Exh. F.7

Finally, as relevant here, the Executive Order includes a far-reaching “Enforcement Directive,” 

ordering 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.” Executive Order § 9(a). 

C. The Executive Order Creates An Imminent Hobson’s Choice For San Francisco. 

San Francisco acknowledges that it is not yet certain when—or precisely which—federal funds 

will be withdrawn under the Executive Order. But if Defendants strip all federal funds from 

San Francisco, the result will be “catastrophic.” Declaration of Ben Rosenfield in Support of CCSF’s 

Mot. for Prelim. Inj. (“Rosenfield Decl.”) ¶ 36; see also Declaration of Melissa Whitehouse in Support 

of CCSF’s Mot. for Prelim. Inj. (“Whitehouse Decl.”) ¶ 16. For FY16-17, San Francisco’s annual 

operating budget is approximately $9.6 billion. Rosenfield Decl. ¶ 9. Of this, approximately $1.2 

billion is money provided by the federal government. Id. On top of the federal funds allocated in the 

annual operating budget, San Francisco expects to receive an additional $800 million in federal multi-

 7

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of the President’s intent. See Utley v. Varian Assocs., Inc., 811 F.2d 1279, 1285 (9th Cir. 1987); SeaLand Serv., Inc. v. I.C.C., 738 F.2d 1311, 1314 (D.C. Cir. 1984). 

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year grants, largely for job-creating public infrastructure projects. Id. ¶ 11. 

San Francisco receives the majority of federal funds on a reimbursement basis, meaning the 

City first spends its own money before being repaid with federal funds. Id. ¶ 30. If federal funds were 

withdrawn, thousands of San Francisco’s most vulnerable residents would lose access to meals, 

medical care, and other lifesaving social services. The City would have to lay off thousands of 

employees and cancel contracts that create thousands of additional jobs. Roads and public 

transportation would fall into disrepair, and seismic upgrades would be postponed, rendering San 

Francisco vulnerable during the next earthquake. Whitehouse Decl. ¶ 16. 

Under this cloud of uncertainty and budgetary sword of Damocles, San Francisco must adopt 

an annual budget for the fiscal year beginning July 1, 2017. San Francisco law requires the Controller 

to submit a consolidated budget proposal to the Mayor by March 1, the Mayor to submit a balanced 

budget to the Board of Supervisors by June 1, and the Board of Supervisors to approve a balanced 

budget by August 1. Id. ¶ 5. To meet the June 1 deadline, the Mayor must make fundamental budget 

decisions by May 15. Id. ¶ 6. One of the fundamental decisions the Mayor must make by May 15 is 

whether to create a budget reserve to account for the potential loss of significant funds in the coming 

fiscal year. Id. ¶ 8. This presents a Hobson’s choice. 

San Francisco could place funds into reserve at the beginning of the fiscal year (i.e., July 1) or 

could budget based on the continued receipt of federal and state funds, knowing that potentially 

devastating cuts could come suddenly at any time. But if unanticipated cuts come mid-fiscal year, the 

impact will be even more severe, as there will be less time to absorb the loss of funds. Id. ¶ 9. 

Depending on the nature of the cuts, they could lead to immediate service cuts, layoffs, or cancellation 

of contracts and associated penalties. Id. Accordingly, given the uncertainty the Executive Order 

creates, in the absence of action by this Court or clarification from Defendants the Mayor will have no 

real choice but to place millions of dollars into a federal and state budget reserve. Id. ¶¶ 10, 15. 

Because there is a finite amount of money available in San Francisco’s budget, any money used to 

fund the reserve will dollar-for-dollar decrease the funds available for programs and services in the 

coming fiscal year. Id. ¶ 10. 

The amount of money to be placed in the reserve will depend on the Mayor’s assessment of the 

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likelihood, and likely extent, of potential funding cuts. Id. ¶¶ 10-11. The reserve amount will 

therefore be affected by direction from Defendants or the Court about the intended or permissible 

scope of the Executive Order. Id. ¶ 12. A preliminary injunction enjoining Defendants from enforcing 

Section 9(a) (or guidance from Defendants indicating that the potential cuts to San Francisco are much 

less severe than the Executive Order indicates) would lead to a lower reserve and allow the City to 

have more money in its General Fund to fund critical programs and services. Id. 

PRELIMINARY INJUNCTION STANDARD 

To obtain a preliminary injunction, a plaintiff “must establish that he is likely to succeed on the 

merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance 

of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat’l Res. Def. 

Council, Inc., 555 U.S. 7, 20 (2008). Alternatively, a plaintiff may obtain an injunction if it shows that 

it has raised “serious questions going to the merits” and that the balance of hardships “tips sharply” in 

its favor, so long as it also shows that the other two Winter factors are satisfied, i.e., that there is a 

likelihood of irreparable injury and that the injunction is in the public interest. See Alliance for the 

Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011). 

San Francisco seeks a nationwide injunction. This court has discretion to issue a nationwide 

injunction in the circumstances presented here. See Texas v. United States, 809 F.3d 134, 188 (5th Cir. 

2015), aff’d by an equally divided Court, 136 S. Ct. 2271 (2016). An injunction’s scope “is dictated 

by the extent of the violation established, not by the geographical extent of the plaintiff class.” 

Califano v. Yamaski, 442 U.S. 682, 702 (1979). Nationwide relief is appropriate when, as here, the 

challenged rule is invalid on its face. See Decker v. O’Donnell, 661 F.2d 598, 604 (7th Cir. 1980). 

ARGUMENT 

I. San Francisco Is Likely To Succeed On The Merits Of Its Claims. 

A. San Francisco Is Likely To Succeed On Its Arguments That Section 9(a) Of The 

Executive Order Is Unconstitutional. 

Section 9(a) of the Executive Order is unconstitutional for three independent reasons. It 

purports to assert legislative power that the Constitution vests exclusively in Congress (see Part 

I(A)(1), infra)—and exercises that spending power in ways that even Congress may not (see Part 

I(A)(2), infra). It commandeers local jurisdictions, violating the Tenth Amendment by requiring them 

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to comply with ICE detainer requests. See Part I(A)(3), infra. And it is inextricably intertwined with 

Section 1373, which is unconstitutional even when read narrowly according to its plain text. See id.

8

 

As explained below, San Francisco is likely to succeed on the merits of each of these arguments. 

1. The Funding Restriction Violates The Separation Of Powers. 

In directing that sanctuary jurisdictions are not eligible to receive federal funds, the Executive 

Order asserts legislative power that the Constitution vests exclusively in Congress. The Constitution 

empowers Congress, not the President, to appropriate funding as part of the charge to “provide for the 

. . . general Welfare of the United States.” U.S. Const. art. I, § 8, cl. 1. The President may veto a bill 

passed by Congress under its Appropriations authority, but the President may not amend or repeal only 

a portion of an appropriation. Clinton v. City of New York, 524 U.S. 417, 438 (1998) (holding that the 

line-item veto violates the separation of powers principle). 

The defunding “weapon” that President Trump wields in the Executive Order is strikingly 

similar to the line item veto declared unconstitutional in Clinton. While Congress may give the 

Executive Branch discretion about how to spend appropriated funds, this discretion cannot be so 

expansive that it “gives the President the unilateral power to change the text of duly enacted statutes.” 

Id. at 447. The Funding Restriction does precisely that, by imposing a new eligibility condition on 

some, or potentially all, congressional spending legislation. Put differently, the funding restriction is 

“a new mechanism which gives the President the sole ability to hurt a group that is a visible target, in 

order to disfavor the group.” Id. at 451 (Kennedy, J., concurring). It thus functions as “a line item 

veto and enhances the President’s powers beyond what the Framers would have endorsed.” Id. 

Further, Defendants cannot argue that there has been any delegation of the spending power 

here. Congress has repeatedly considered and rejected legislation to defund sanctuary cities or require 

them to cooperate with federal immigration authorities, including proposals by the Senate in July of 

2016 and October of 2015. See Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. (as 

rejected by Senate, Jul. 6, 2016); Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th 

 8

 Notably, at least two United States Senators have publicly expressed many of these concerns. 

In recent letters to the heads of several federal agencies, Senators Elizabeth Warren and Edward 

Markey explained their view that the Executive Order is unconstitutional and requested more 

information about whether and how the agency heads intend to comply with it. See RJN Exh. B. 

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Cong. (as rejected by Senate, Oct. 20, 2015). “When the President takes measures incompatible with 

the expressed or implied will of Congress, his power is at its lowest ebb . . . .” Youngstown Sheet & 

Tube Co. v. Sawyer, 343 U.S. 579, 637 (1952) (Jackson, J., concurring). In these situations, the 

President can act only when the executive’s power is “exclusive” and “conclusive.” Zivotofsky ex rel. 

Zivotofsky v. Kerry, 135 S. Ct. 2076, 2084 (2015). Executive power over federal spending is neither, 

and the Executive Order’s attempt to control such spending must fail. 

2. The Funding Restriction Violates The Spending Clause. 

The Funding Restriction exercises the spending power in ways that even Congress could not.9

 

a. It Imposes New Conditions On Existing Federal Funding. 

The plain text of the Executive Order indicates that it applies to existing awards of federal 

funds.10 It therefore violates the Spending Clause by imposing a new condition not included in the 

statutory language of the appropriations. “[I]f Congress intends to impose a condition on the grant of 

federal moneys, it must do so unambiguously.” Pennhurst State Sch. & Hosp. v. Halderman, 451 U.S. 

1, 17 (1981); see also South Dakota v. Dole, 483 U.S. 203, 207 (1987). “The legitimacy of Congress’ 

power to legislate under the spending power . . . rests on whether the State voluntarily and knowingly 

accepts” Congress’s terms. Pennhurst, 451 U.S. at 17. “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.” Id. 

The Executive Order establishes a new condition for receiving federal funds—namely, that a 

jurisdiction must comply with Section 1373, as interpreted by Defendants.11 This new condition is 

 9

 If Defendants clarify that the scope of the Executive Order is narrower than it appears—e.g., 

if it applies only to a limited subset of government funds, such as only future grants or funds directly 

related to immigration—some of these arguments may no longer be applicable. 

10 Section 9(a) uses the present tense to state that sanctuary jurisdictions “are not eligible to 

receive Federal grants.” Executive Order § 9(a). Section 9(c) reiterates this focus on existing awards 

by directing the Office of Management and Budget to obtain “information on all Federal grant money 

that currently is received by any sanctuary jurisdiction.” Id. (emphasis added). 

11 This condition is ambiguous in multiple respects. As a threshold matter, courts disagree 

about what is required to comply with Section 1373. Compare, e.g., Bologna v. City & Cty. of 

San Francisco, 192 Cal. App. 4th 429, 438-39 (2011), with Steinle v. City & Cty. of San Francisco, No. 16-cv-02859, 2017 WL 67064, at *11 (N.D. Cal. Jan. 6, 2017) (disagreeing “with the Bologna

court’s characterization of the scope of § 1373(a)”). The Executive Order goes a step further than any 

judicial interpretation of Section 1373, reading the statute to require compliance with ICE detainer 

requests. See p. 5, supra. Ultimately, the Executive Order vests the Secretary of Homeland Security 

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unlawful for at least two reasons. First, as discussed in Part I(A)(1), supra, it violates separation of 

powers by adding a new condition that amends appropriations made by Congress. Second, this new 

condition was not and could not have been agreed to by San Francisco because it did not exist when 

San Francisco accepted the $2 billion in federal funds that it is currently receiving. The statutory 

language governing these appropriations does not reference Section 1373, ICE detainer requests, or 

sanctuary jurisdictions. Even as the Executive Order describes it, the condition is at best unclear and 

ambiguous. San Francisco could not have knowingly accepted this condition when it was “unaware of 

the condition[]”—and had no reason to be aware of it—when it accepted federal funds and to this day 

remains “unable to ascertain what is expected of it.” Pennhurst, 451 U.S. at 17. 

b. It Imposes Conditions Unrelated To The Purpose Of The Funding. 

The Funding Restriction also violates the requirement that conditions imposed on federal funds 

must relate to Congress’s purpose in spending the funds. New York v. United States, 505 U.S. 144, 

167 (1992); see also Dole, 483 U.S. at 208-09 & n.3. More specifically, a nexus must exist between 

“the federal interest in particular national projects or programs” and any funding conditions. Dole, 

483 U.S. at 207 (quoting Massachusetts v. United States, 435 U.S. 444, 461 (1978)). 

Here, the Funding Restriction appears to condition eligibility for all federal funds on 

compliance with Section 1373. But this condition is “unrelated to the federal interest” in the vast 

majority of federal funding flowing to San Francisco. Of the $1.2 billion in federal funds that 

San Francisco receives for its annual operating budget, 92% goes to entitlement programs such as 

Medicare, Medicaid, Temporary Assistance to Needy Families, and Supplemental Nutrition Assistance 

Programs (Rosenfield Decl. ¶ 10). For those programs the true beneficiaries are the individuals who 

receive benefits under the program—not the City, which acts solely as a pass-through for its eligible 

residents. These programs are unrelated to immigration or to Section 1373. Indeed, undocumented 

immigrants are not even eligible to participate in most of these programs. Id. ¶ 29. Of the $800 

million that San Francisco receives in multi-year grants, the vast majority goes to capital projects such 

as building bridges and public transportation that create jobs. Again, there is no relationship between 

 

with the discretion to designate sanctuary jurisdictions, requiring jurisdictions to avoid doing anything 

that might lead the Secretary to put them on this list. 

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Section 1373 and these projects. 

Only a small percentage of federal funds received by San Francisco goes to local law 

enforcement (id. ¶ 10), and the Executive Order contemplates that these are the only federal funds that 

San Francisco might continue to receive. See Executive Order § 9(a) (directing the AG and the 

Secretary to ensure that “sanctuary jurisdictions” are not eligible for federal grants “except as deemed 

necessary for law enforcement purposes by the Attorney General or the Secretary”). San Francisco 

does not concede that any or all of these funds are germane to the conditions the Executive Order 

imposes. But even if they were, allowing San Francisco to receive these funds—while eliminating all 

other federal funding—would turn the germaneness requirement on its head. 

c. It Is Unconstitutionally Coercive. 

By threatening all federal funds received by sanctuary jurisdictions, the President through the 

Funding Restriction seeks to coerce these jurisdictions into governing according to federal dictates. 

While the federal government “may use its spending power to create incentives for States,” it may not 

use them to “indirectly coerce[] a State to adopt a federal regulatory system as its own.” Nat’l Fed’n 

of Indep. Bus. v. Sebelius (“Sebelius”), 132 S. Ct. 2566, 2602 (2012) (opinion of Roberts, C.J.). 

The Funding Restriction threatens a substantial percentage of San Francisco’s budget, and the 

entire funding stream for certain programs and services. Federal funds constitute approximately 13% 

of the City’s total annual operating budget, and an additional $800 million in federal multi-year grants. 

Rosenfield Decl. ¶¶ 9, 11. In total, the Funding Restriction could implicate $2 billion in funds that San 

Francisco expects to receive—and in many cases, has already spent. Id. ¶¶ 11, 34. 

It would be catastrophic for San Francisco to lose all—or a substantial amount of—federal 

funds. Id. ¶ 36; Whitehouse Decl. ¶ 16-17. Threatened funds include 100% of funding for certain 

programs, such as Medicare, that are critical to the lives of San Francisco’s residents. Rosenfield 

Decl. ¶ 29. Federal funds constitute approximately 30% of the budget for San Francisco’s Department 

of Emergency Management (id. ¶¶ 25-27), 33% of the budget for San Francisco’s Human Services 

Agency (id. ¶¶ 13-18), and nearly 40% of the budget for San Francisco’s Department of Public Health 

(“DPH”) (id. ¶¶ 19-24), to name just a few examples. There is no way for San Francisco to make up 

for this loss with local revenue sources. Id. ¶¶ 36-37.

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A threat of this magnitude “crosse[s] the line distinguishing encouragement from coercion.” 

Sebelius, 132 S. Ct. at 2603 (opinion of Roberts, C.J.). Indeed, at least one jurisdiction has already 

changed its policy about immigration detainers in response to the Executive Order. The day after the 

President issued the Executive Order, Miami-Dade County Mayor Carlos Giménez instructed the 

county’s interim corrections director to “fully cooperate” with the federal government and comply 

with all immigration detainer requests. See RJN Exh. C. 

In Sebelius, seven justices agreed that the federal government had unconstitutionally coerced 

states by conditioning all future Medicaid funds upon state expansion of Medicaid. Id. at 2604 

(opinion of Roberts, C.J.), id. at 2666-67 (opinion of Scalia, Kennedy, Thomas, and Alito, JJ.). The 

federal coercion here is even more severe. While the proposed condition in Sebelius threatened only 

Medicaid funding, the Funding Restriction threatens San Francisco’s eligibility for Medicaid funding 

and all other federal funds. Further, in Sebelius the impending loss of over ten percent of a state’s 

budget was deemed “economic dragooning that leaves the States with no real option but to acquiesce.” 

Id. at 2605. Here, the Funding Restriction threatens over 13% of San Francisco’s budget, plus an 

additional $800 million in off-budget grants. As in Sebelius, the Funding Restriction “is much more 

than ‘relatively mild encouragement’—it is a gun to the head.” Id. at 2604. 

d. It Induces San Francisco To Engage In Unconstitutional Activity. 

Finally, Congress’s spending power “may not be used to induce the States to engage in 

activities that would themselves be unconstitutional.” Dole, 483 U.S. at 210. Yet the Funding 

Restriction does just that by threatening to withdraw federal funds from “sanctuary jurisdictions,” 

which it equates with jurisdictions that refuse to comply with ICE detainer requests. See p. 5, supra. 

ICE detainer requests are distinct from criminal warrants. They are not issued by a judge, but by 

individual ICE agents. See 8 C.F.R. § 287.7 (a)-(b). They need not be (and often are not) based on 

any individualized determination of probable cause that a crime has been committed.12 And, in an 

alarming number of cases, they are erroneously issued against United States citizens. See, e.g., 

Morales v. Chadbourne, No. CV 12-301-M-LDA, 2017 WL 354292, at *8 (D.R.I. Jan. 24, 2017) 

 12 Notably, “mere unauthorized presence in the United States is not a crime.” Melendres v. 

Arpaio, 695 F.3d 990, 1000 (9th Cir. 2012) (emphasis added); see also Ariz. v. United States, 132 S. 

Ct. 2492, 2505 (2012) (“[I]t is not a crime for a removable alien to remain present in the [U.S.].”). 

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(noting that 50% of the detainer requests issued by the ICE agent involved in that case were later 

cancelled, indicating that the individual subject to the detainer was either a United States citizen or a 

lawful permanent resident).13 

In the absence of probable cause, detaining individuals for up to 48 hours after they would 

otherwise have been released from custody violates the Fourth Amendment. See Morales, 793 F.3d 

208, 215-17 (1st Cit. 2015); Miranda-Olivares v. Clackamas Cnty., 2014 WL 1414305, at *9-11 (D. 

Or. Apr. 11, 2014) (unpublished). Accordingly, by threatening to withdraw federal funds unless 

jurisdictions adopt blanket policies of compliance with immigration detainer requests, the Funding 

Restriction induces—indeed coerces (see Part I(A)(2)(c), supra)—jurisdictions to engage in conduct 

that will violate individuals’ Fourth Amendment rights. This is an unlawful use of the spending power 

and could expose local jurisdictions like San Francisco to significant civil liability. 

3. The Executive Order Violates The Tenth Amendment. 

The Tenth Amendment 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 provision prohibits the federal government from “commandeering” state and local 

officials to help enforce federal law. See Printz v. United States, 521 U.S. 898 (1997); New York, 505 

U.S. 144.14 But the Executive Order does precisely this, in three ways. 

First, as discussed above, the Executive Order commandeers state and local governments by 

attempting to use the spending power to dragoon them into acting as arms of the federal government. 

Second, the Executive Order effectively requires state and local jurisdictions to comply with 

 13 See also, e.g., Mendia v. Garcia, 768 F.3d 1009, 1010 (9th Cir. 2014) (U.S. citizen spent two 

years in pre-trial detention as a result of the detainer); Galarza v. Szalczyk, 745 F.3d 634, 636-38 (3d 

Cir. 2014) (U.S. citizen held in jail for three days pursuant to erroneous detainer); Davila v. N. Reg’l 

Joint Police Bd., 979 F. Supp. 2d 612, 622-23 (W.D. Pa. 2013), opinion vacated in part on 

reconsideration, No. 2:13-CV-00070, 2014 WL 3735631 (W.D. Pa. July 28, 2014) (U.S. citizen held 

in jail overnight pursuant to erroneous detainer); Eyder Peralta, You Say You’re An American, But 

What If You Had To Prove It Or Be Deported?, NPR (Dec. 22, 2016, 12:29 PM), available at 

http://www.npr.org/sections/thetwo-way/2016/12/22/504031635/you-say-you-re-an-american-butwhat-if-you-had-to-prove-it-or-be-deported#foot1 (Data obtained through a Freedom of Information 

Act Request showed that from October 2007 through July 2015, 693 detainers issued to local law 

enforcement agencies were lifted or resolved, with the outcome “United States Citizen Interviewed.”). 

14 Local governments are treated the same as state governments for purposes of the Tenth 

Amendment. Printz, 521 U.S. at 931 n.15.

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ICE detainer requests. It does so by threatening to withhold federal funds from jurisdictions that 

refuse to comply with such requests. See generally LaCroix v. Junior, Case No. F17-376, slip op. at 

10 (Fla. Cir. Ct. Mar. 3, 2017) (exhibit G to Eisenberg Decl.) (“[C]oercion achieved by financial 

starvation is no less effective than coercion achieved at sword’s point. The former may take a little 

longer than the latter; but it may be more painful, too.”). And it does so by threatening “enforcement 

action” against any jurisdiction that the Attorney General deems to be in violation of Section 1373—

which the federal government reads overly broadly to require compliance with detainer requests (see 

p. 5 & n.6, supra)—or that “has in effect a statute, policy, or practice that prevents or hinders the 

enforcement of Federal law.” Executive Order § 9(a). This runs afoul of the Tenth Amendment. 

In Printz, the Supreme Court considered the constitutionality of interim provisions of the 

Brady Handgun Violence Prevention Act, which required state and local law enforcement officers to 

make “reasonable efforts” to determine whether a prospective purchaser was barred from purchasing a 

handgun. 521 U.S. at 904. The Court found Congress lacked the authority to impose this forced 

participation, holding that under the Tenth Amendment, “[t]he Federal Government may . . . no[t] 

command the States’ officers, or those of their political subdivisions, to administer or enforce a federal 

regulatory program.” Id. at 935. Requiring state and local officials to hold an individual in their 

custody at the behest of the federal government is an even more flagrant violation of the Constitution. 

Compliance with ICE detainer requests would require far more of state and local officials than the 

provision at issue in Printz. Whereas the Brady Act provision required no affirmative action by state 

and local officials beyond making “reasonable efforts” to determine the legality of a handgun sale, 

compliance with ICE detainer requests would require local personnel to commit significant resources 

to jail their own residents—in their own facilities and at their own cost—on civil immigration grounds 

at the federal government’s direct order. Hennessy Decl. ¶ 11.

It is therefore unsurprising that several courts and a number of state and local governments 

have concluded that the anti-commandeering principle of the Tenth Amendment ensures that ICE 

detainer requests cannot be mandatory and create no obligation on the part of state or local officials to 

take any action. See, e.g., Galarza v. Szalczyk, 745 F.3d 634, 643-45 (3d Cir. 2014); LaCroix v. 

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Olivares, 2014 WL 1414305, at *6; RJN Exh. D at 2. This Court should conclude the same. 

Third, the Executive Order is inextricably intertwined with Section 1373. Putting aside the 

federal government’s overly-broad interpretation of the Section, even Section 1373’s plain-text 

mandate constitutes unlawful commandeering for the reasons discussed below. See Part I(B), infra. 

Because both the Funding Restriction and Enforcement Directive mandate compliance with Section 

1373, Section 9(a) of the Executive Order violates the Tenth Amendment for this reason as well. 

B. San Francisco Is Likely To Succeed On Its Arguments Concerning The 

Unconstitutionality Of—And San Francisco’s Compliance With—Section 1373. 

Section 1373 provides that a “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 officials] information regarding the citizenship or immigration status . . . of any 

individual.” 8 U.S.C. § 1373(a). Where, as here, the statutory language is clear, the law should be 

interpreted and applied according to its plain meaning. See, e.g., Campbell v. Allied Van Lines Inc., 

410 F.3d 618, 620–21 (9th Cir. 2005). Accordingly, and because Section 1373 says nothing at all 

about compliance with ICE detainer requests, Defendants’ interpretation of the section as requiring 

jurisdictions to comply with such requests is not just unconstitutional, but is also incorrect. 

But even interpreted narrowly, Section 1373 still violates the Tenth Amendment by 

impermissibly directing how state and local governments function. See Part I(B)(1)-(2), infra. And 

even it were constitutional, Defendants should be enjoined from cutting funds from San Francisco on 

the ground that it “willfully refuse[s] to comply with [Section] 1373” (Executive Order § 9(a)) because 

San Francisco, in fact, complies with the Section as properly interpreted. See Part I(B)(3), infra. 

1. Section 1373 Is Facially Unconstitutional. 

By regulating state and local governments in their capacities as sovereign governments, 

Section 1373(a) engages in unconstitutional commandeering. Congress may not target state 

governments in their capacities as governments. Congress may “subject state governments to 

generally applicable laws”—“the same legislation applicable to private parties.” New York, 505 U.S. 

at 160; see also, e.g., Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 554 (1985). But 

Congress must not “require the States to govern according to Congress’ instructions” (New York, 505 

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U.S. at 162), and thus must not regulate states “in their sovereign capacity” (Reno v. Condon, 528 U.S. 

141, 151 (2000)). Although “a federal law of general applicability” may sometimes be permissible 

even if it “excessively interfere[s] with the functioning of state governments,” the Tenth Amendment 

flatly forbids federal laws where “the whole object . . . is to direct the functioning” of state 

governments. Printz, 521 U.S. at 932 (emphasis in original). 

The “whole object” of Section 1373(a) is to direct the functioning of state and local 

governments. By its terms, Section 1373(a) specifically targets only “Federal, State, or local 

government entit[ies] or official[s].” This is no accident: Section 1373(a) is meant to ensure that the 

federal government may rely on state resources to enforce federal immigration law. Congress enacted 

Section 1373(a) on the belief that “[e]ffective immigration law enforcement requires a cooperative 

effort between all levels of government” (S. Rep. No. 104-249, at 19 (1996))—whether or not state 

and local governments want to cooperate. Congress specifically sought to ensure that “[t]he 

acquisition, maintenance, and exchange of immigration-related information by State and local 

agencies” could be used to enforce federal law. Id. at 19-20. In seeking to conscript “information that 

belongs to the State and is available to [state officials] only in their official capacity” from “databases 

and records that only state officials have access to,” Congress engaged in impermissible 

commandeering. Printz, 521 U.S. at 932 n.17. 

The commandeering inherent in Section 1373(a) is especially grave because it targets an 

authority basic to how a government functions—the authority to control its own officials. “[A] State 

‘can act only through its officers and agents.’” Nevada v. Hicks, 533 U.S. 353, 365 (2001); see also

Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). The authority to control state officials is the predicate 

for all other exercises of state power. A state cannot maintain its sovereignty if it cannot control its 

officials. 

It does not matter that Section 1373(a) purports to prohibit certain actions, rather than to 

impose affirmative duties. The Tenth Amendment does not turn on artificial distinctions between 

negative prohibitions and affirmative obligations: laws may “direct the functioning” of state 

governments (Printz, 521 U.S. at 932), without explicitly stating affirmative obligations. See Conant 

v. Walters, 309 F.3d 629, 646 (9th Cir. 2002) (Kozinski, J., concurring); Gregory, 501 U.S. at 457–64 

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(acknowledging possible Tenth Amendment problems in a statute framed in prohibitory terms). Any 

distinction between negative prohibitions and affirmative obligations is especially unworkable here. 

Section 1373(a) affirmatively requires that state governments allow their officials to spend state 

resources—including time and money—to communicate with the federal government, even when the 

State would otherwise prohibit these communications. This affirmative obligation is underscored by 

Defendants’ own interpretation of Section 1373(a) affirmatively to require state governments to 

instruct their personnel about Section 1373 (Whitehouse Decl. Exh. A at 1)—and even, arguably, to 

comply with civil detainer requests (RJN Exh. A at 7-8).

This concern is not merely theoretical. Section 1373(a) has, in fact, compelled San Francisco 

to take affirmative action. San Francisco was forced to amend its Sanctuary City law to remove a 

prohibition that once restricted its officials from using City resources to share information about 

immigration status. San Francisco, Cal. Ordinance No. 96-16 (June 7, 2016). It was forced to add 

language about Section 1373 to pending legislation that would prohibit using City resources to help 

the federal government develop a registry based on religion or national origin. See RJN Exh. E at 8, 

10. And San Francisco has been forced to expend resources to educate City personnel about the 

contents of Section 1373(a)—as the federal government has declared it must. See, e.g., Eisenberg 

Decl. Exh. H; Whitehouse Decl. Exh. A at 1. 

These facts illustrate why the Second Circuit wrongly decided this issue in rejecting a facial 

challenge to Section 1373. In City of New York v. United States, 179 F.3d 29 (2d Cir. 1999), “the 

City . . . chose[] to litigate this issue in a way that fails to demonstrate an impermissible intrusion on 

state and local power to control information obtained in the course of official business or to regulate 

the duties and responsibilities of state and local governmental employees.” Id. at 36. This Court is not 

bound by the Second Circuit’s determination, and should reject it. The facts that were missing in City 

of New York are fully evident here, and establish that Section 1373 does constitute “an impermissible 

intrusion” on state sovereignty. It both imposes an affirmative obligation on states and impermissibly 

interferes with the operation of state government. 

2. Section 1373 Is Unconstitutional As Applied To San Francisco. 

Even if Section 1373 could be constitutionally applied to a jurisdiction that acted solely to 

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“frustrate[] federal programs” (City of New York, 179 F.3d at 35), it cannot be constitutionally applied 

to a jurisdiction such as San Francisco, which has enacted confidentiality requirements in its Sanctuary 

City law and elsewhere in order to further legitimate—and compelling—municipal interests. San 

Francisco’s Sanctuary City law is designed to promote the local interest in maintaining the health and 

safety of the community, not to prevent the federal government from pursuing federal objectives. As 

San Francisco has long recognized, confidentiality is the bedrock of mutual trust between government 

and community—trust that is necessary for the effective delivery of City services. For instance, DPH 

generally protects identifying health information from disclosure, with only narrow exceptions not at 

issue here. See Eisenberg Decl. Exh. I. The San Francisco Police Department (“SFPD”) recognizes 

the importance of community policing, and the mutual trust and respect on which it depends. See S.F. 

Admin Code § 2A.83; Eisenberg Decl. Exh. J. City agencies also comply with a host of other 

confidentiality requirements—regarding, for example, the confidentiality of juvenile court records 

regardless of immigration status. See Welf. & Inst. Code § 831. Such policies protect the privacy, and 

earn the trust, of all City residents, promoting the health and safety of the City as a whole. 

San Francisco’s broad commitment to confidentiality of personal information—embodied in 

Chapters 12H and 12I—distinguishes its laws from the local law considered in City of New York, 

which “single[d] out a particular federal policy for non-cooperation while allowing City employees to 

share freely the information in question with the rest of the world.” 179 F.3d at 37. Unlike that local 

law, San Francisco has “general polic[ies]” limiting “the disclosure of confidential information.” Id. at 

36. These policies reflect local determinations about the best way to promote public health and safety. 

They are not designed to frustrate federal officials from taking action in their own sovereign sphere. 

Accordingly, the Court should enjoin Defendants from enforcing Section 1373 against, or 

using it as the basis for withholding funds from, San Francisco. 

3. San Francisco Complies With Section 1373 As Properly Interpreted. 

Even if Section were 1373 constitutional, San Francisco complies with it under a proper 

interpretation of the law. Chapter 12H generally forbids use of City resources to “assist in the 

enforcement of Federal immigration law” and specifically prohibits using City resources to “gather or 

disseminate information regarding release status of individuals or any other such personal 

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information.” S.F. Admin. Code § 12H.2. “Personal information” is defined as “any confidential, 

identifying information about an individual, including, but not limited to, home or work contact 

information, and family or emergency contact information.” Id. § 12I.2. Neither “release status” nor 

“personal information” includes citizenship or immigration status.15 

Chapter 12I prohibits responding to federal immigration officials’ civil immigration detainer 

requests and limits responses to requests for notification of release status. Id. § 12I.3. Neither Chapter 

12H nor Chapter 12I makes mention of—let alone restricts—communicating about, maintaining, or 

exchanging with other government entities “information regarding . . . citizenship or immigration 

status . . . .” 8 U.S.C. § 1373(a), (b) (emphasis added). No further analysis is needed to conclude that 

San Francisco complies with Section 1373. 

But if there were a need to look beyond the plain text of the statutes, the legislative intent is 

clear. Chapter 12H previously prohibited sharing information about “immigration status,” but that 

prohibition was deleted in July 2016 to, inter alia, ensure compliance with Section 1373. The current 

prohibition against sharing information about “release status” and “other such personal information” 

allows employees to share information about an individual’s citizenship or immigration status.16 Thus, 

there is no conflict with Section 1373. 

Nor do Chapters 12H and 12I run afoul of Section 1373’s prohibition against “in any way 

restrict[ing]” communications about citizenship or immigration status. 8 U.S.C. § 1373(a). Congress 

chose to itemize in Section 1373 the specific activities it sought to prevent governments from 

restricting: “sending to, or receiving from” federal immigration officials, the citizenship or 

 15 To the extent Chapter 12I’s definition of “personal,” “confidential, identifying information” 

is not exhaustive, California laws ascribe this term to information that ought to be protected because it 

can reveal a person’s identity. See, e.g., Cal. Civ. Code § 56.05(j) (defining “personal identifying 

information” to include a “patient’s name, address, electronic mail address, telephone number, or 

social security number, or other information that, alone or in combination with other publicly available 

information, reveals the individual’s identity”), id. § 1798.92(c) (providing a similar definition). This 

does not include an individual’s citizenship or immigration status. 

16 The general prohibition in Chapter 12H against “using City funds or resources to assist in the 

enforcement of Federal immigration law” does not prohibit employees from sharing immigration 

information with ICE. The more specific language about “release status” and other “personal 

information” controls over this general language (see, e.g., Dep’t of Pub. Health v. Super. Ct., 60 Cal. 

4th 940, 960 (2015)), and the 2016 amendments indicate a clear legislative intent to allow the 

communications required by Section 1373. 

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immigration status information of any individual. Id. Had Congress “intended to bar all restriction of 

communication between local law enforcement and federal immigration authorities . . . it could have,” 

but the “plain language of the statute is clear” that “[i]t did not.” Steinle, Case No. 16-CV-02859-JCS, 

2017 WL 67064, at *11-12. 

In short, because San Francisco’s Sanctuary City law does not prohibit or restrict officials from 

communicating with ICE about citizenship or immigration status, San Francisco complies with Section 

1373. Accordingly, Defendants should not be able to declare San Francisco ineligible for federal 

funds under the Executive Order. 

II. San Francisco Will Suffer Irreparable Harm In The Absence Of Preliminary Relief. 

A. San Francisco Faces Imminent And Irreparable Budgetary Harm. 

San Francisco acknowledges that the withdrawal of federal funds called for by the Executive 

Order may or may not be imminent. Defendants could announce tomorrow that all federal funds are 

being cut from San Francisco immediately and that the City will not be reimbursed for costs already 

incurred in reliance on federal commitments to repay San Francisco for these projects and programs. 

But they could also take no affirmative steps to implement the Executive Order for weeks or even 

months. In short, the timing and extent of funding cuts under the Executive Order is not yet certain. 

Nonetheless, San Francisco faces imminent and irreparable harm as a direct result of the uncertainty 

created by Executive Order Section 9(a). 

San Francisco does not know when federal funding cuts will take effect under the Executive 

Order, or how severe those cuts will be. But if all federal funds are withdrawn, the result will be 

devastating. Rosenfield Decl. ¶ 36; Whitehouse Decl. ¶ 16. And the impact of any cuts will be much 

worse if they come mid-fiscal year since there will be less time to absorb the loss of funds. 

Whitehouse Decl. ¶ 9. For example, a $1 billion cut that must be absorbed over six months would feel 

like a $2 billion cut spread out over 12 months. Id. Also, sudden and unanticipated cuts create 

additional harm because there is no time to plan how to manage the loss of funds. Id. Depending on 

the nature of the cuts, they could lead to immediate service cuts, layoffs, or cancellation of contracts 

and associated penalties. Id. To mitigate the risk inherent in this state of fiscal uncertainty, in the 

absence of action by this Court or clarification from Defendants, the Mayor will have no real choice 

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but to allocate millions of dollars to a budget reserve on May 15, 2017, to account for the potential loss 

of significant funds in the coming fiscal year. Id. ¶¶ 8, 10, 15. 

The money that is placed in reserve will not be available to fund other General Fund programs 

and services when the new fiscal year begins on July 1, 2017. Id. ¶ 10. Thus, putting money into 

reserve will make it impossible for San Francisco to fund other budget priorities in the coming year 

such as reducing homelessness in San Francisco through family shelter expansions, youth housing 

subsidies, a resource center, and homeless shelter maintenance and security. Id. ¶ 14. And once these 

millions of dollars are taken out of play by being placed in the budget reserve, they must remain there 

for the entire fiscal year unless and until they are needed to backfill funding cuts. Id. ¶ 13. 

Even if San Francisco were to prevail in this lawsuit mid-fiscal year, the funds could not be 

reallocated for other purposes until the following fiscal year. Id. Thus, even if San Francisco 

ultimately prevails, the City and its residents will have been irreparably harmed by having been 

deprived of these critical funds—and the programs and services they would have funded—for a 

significant period of time. See United States v. North Carolina, 192 F. Supp. 3d 620, 629 (M.D.N.C. 

2016) (finding irreparable harm where the unavailability of federal funds was “likely to have an 

immediate impact on [the state’s] ability to provide critical resources to the public, causing damage 

that would persist regardless of whether funding [was] subsequently reinstated”). 

Importantly, the amount of money to be tied up in the reserve will depend on the Mayor’s 

assessment of the likelihood, and likely extent, of potential funding cuts. Whitehouse Decl. ¶¶ 10-11. 

That assessment will be affected by direction from Defendants or the Court about the Executive 

Order’s intended or permissible scope. Id. ¶ 12. A preliminary injunction enjoining Defendants from 

enforcing Section 9(a) (or guidance from Defendants indicating that the potential cuts to San Francisco 

are much more limited than the Executive Order indicates) would thus lead to a lower reserve and 

allow the City to have more money to fund critical programs and services. Id. 

B. San Francisco Faces An Imminent Deprivation Of Constitutional Rights. 

The Ninth Circuit has repeatedly held that where a plaintiff seeking a preliminary injunction 

demonstrates a likelihood of establishing injury to its constitutional rights, such injury, standing alone, 

generally constitutes irreparable harm. See, e.g., Melendres, 695 F.3d at 1002 (holding that “the 

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deprivation of constitutional rights unquestionably constitutes irreparable injury”) (internal quotation 

marks and citation omitted); Nelson v. Nat’l Aeronautics & Space Admin., 530 F.3d 865, 882 (9th Cir. 

2008), rev'd on other grounds, 562 U.S. 134 (2011). Such is the case here. 

As shown above, San Francisco is likely to succeed on the merits of its claim that Section 1373 

is unconstitutional because it deprives San Francisco of its sovereign rights under the Tenth 

Amendment. But unless and until this Court grants an injunction, San Francisco will be forced—

against its will—to continue complying with Section 1373. This is not an abstract issue for the City. 

Last year, the Board of Supervisors amended San Francisco’s Sanctuary City law to ensure 

compliance with Section 1373. Right now, the Board of Supervisors is considering a proposed 

ordinance that would prohibit San Francisco officers and employees from using City resources to 

assist with the creation or enforcement of any registry of individuals on the basis of religious 

affiliation, national origin, or ethnicity. See RJN Exh. E. The proposed ordinance specifically 

exempts from its scope communications about citizenship or immigration status authorized by Section 

1373, and allows those communications until a court of competent jurisdiction declares Section 1373 

unconstitutional. Id. at 10. Findings for the proposed ordinance explain that it is San Francisco’s 

position that Section 1373 is unconstitutional, but that San Francisco will continue to comply with 

Section 1373 until it obtains court relief. Id. at 8. And within the next few months, San Francisco will 

have to certify its compliance with Section 1373 to continue receiving funding from the Edward Byrne 

Memorial Justice Assistance Grant Program. Whitehouse Decl. ¶ 20; id. at Exh. B. 

In the absence of Section 1373, San Francisco would not do any of these things. And it would 

direct its departments, agencies, commissions, officers, and employees that—as set forth in Chapter 

12H—they may never use City funds or resources to assist in the enforcement of federal immigration 

law. But Section 1373 prevents San Francisco from giving that clear direction and instead requires the 

City to give a different and more confusing directive, namely, that San Francisco employees cannot 

use City resources to assist in the enforcement of federal immigration law unless they voluntarily 

choose to share immigration information with ICE. This exception threatens to swallow the rule and 

make it impossible to provide clear direction to employees about when they may and may not share 

immigration information. 

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San Francisco has also demonstrated that it is likely to succeed on the merits of its claim that 

Section 9(a) of the Executive Order is unconstitutional under the Separation of Powers, the Spending 

Clause, and the Tenth Amendment. Although San Francisco has not yet been subjected to funding 

cuts or enforcement action under the Executive Order, the City need not wait until concrete action is 

taken to seek a preliminary injunction to prevent the constitutional harm it will suffer when that action 

comes. To the contrary, injunctive relief is appropriate once a party has shown a “credible threat of 

prosecution” under an unconstitutional law. Valle del Sol Inc. v. Whiting, 732 F.3d 1006, 1029 (9th 

Cir. 2013) (granting a preliminary injunction based on a “a credible threat of prosecution” in a case 

challenging a state law under the Supremacy Clause). 

The fact that San Francisco law prohibits compliance with ICE detainers, paired with President 

Trump’s statements singling San Francisco out as a target of his anti-Sanctuary City policies, leaves 

no doubt that San Francisco has a credible fear of being targeted under the Executive Order. 

Moreover, where, as here, a federal mandate would prevent a state from “‘effectuating statutes enacted 

by representatives of its people,’” irreparable harm exists regardless of whether any direct enforcement 

action has yet been initiated. See Tex. v. U.S., No. 7:16-cv-00054-O, 2016 WL 4426495, at *16 (N.D. 

Tex. Aug. 21, 2016) (quoting Coal. for Econ. Equity v. Wilson, 122 F.3d 718, 719 (9th Cir. 1997)). 

C. San Francisco Residents And Employees Face Community Injury. 

The Executive Order is a threat: comply with its terms or reap catastrophic consequences. This 

has created an uncertainty that is harming both San Francisco residents and public employees. San 

Francisco’s Police Department reports that witnesses and victims of crime are increasingly concerned 

about contacting law enforcement due to confusion surrounding SFPD’s relationship with ICE. 

Declaration of Peter Walsh in Support of CCSF’s Mot. for Prelim. Inj. ¶ 8. Patients of 

San Francisco’s Department of Public Health are frightened to access local health clinics for fear that 

their personal information will be shared with immigration officials. Declaration of Colleen Chawla in 

Support of CCSF’s Mot. for Prelim. Inj. ¶ 7. The Executive Order puts San Francisco Sheriff 

Department employees in a position to either comply with ICE detainer requests and violate the Fourth 

Amendment or violate the Executive Order’s terms. Hennessy Decl. ¶ 10. 

The Executive Order is thus preventing San Francisco from meeting an essential municipal 

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function, protecting its residents. When victims and witnesses of crime feel unsafe contacting law 

enforcement, all San Franciscans are less safe. When patients do not access health care, public health 

departments are unable to treat, contain, and address public health crises. These harms are tangible, 

ongoing, and irreparable. See Bay Area Addiction Research & Treatment, Inc. v. City of Antioch, 179 

F.3d 725, 737 (9th Cir. 1999). 

III. The Balance Of Equities And Public Interest Favor A Preliminary Injunction. 

It is neither equitable nor in the public’s interest to allow the President to violate the U.S. 

Constitution. In a case against the government, the third and fourth preliminary injunction factors 

merge. Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073, 1092 (9th Cir. 2014). “[B]y establishing a 

likelihood” of a constitutional violation, “Plaintiffs have also established that both the public interest 

and the balance of the equities favor a preliminary injunction.” Ariz. Dream Act Coal. v. Brewer, 757 

F.3d 1053, 1069 (9th Cir. 2014); see also Melendres, 695 F.3d at 1002 (finding that “it is always in the 

public interest to prevent the violation of a party’s constitutional rights.”) (internal quotation marks 

and citation omitted). 

While the inquiry should end there, courts have also advised that “[i]n evaluating the balance 

of hardships a court must consider the impact granting or denying a motion for a preliminary 

injunction will have on the respective enterprises.” Int’l Jensen, Inc. v. Metrosound U.S.A., 

Inc., 4 F.3d 819, 827 (9th Cir. 1993). There can be no harm in enjoining an unconstitutional act. 

Scott v. Roberts, 612 F.3d 1279, 1297 (11th Cir. 2010). But even apart from the constitutional 

impermissibility of Section 1373 and the Executive Order, granting a preliminary injunction would 

cause no actual harm to the President, the Attorney General or the Director of Homeland Security, 

who retain the ability to enforce federal immigration law through federal agents. In contrast, 

San Francisco faces immediate budget and planning consequences, the resolution of which could 

impact students, seniors, bus riders, hospital patients, individuals lacking stable housing, and more, as 

well as the general health and welfare of San Francisco as a city and county. 

CONCLUSION 

For the foregoing reasons, San Francisco requests that this Court grant the relief requested. 

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Dated: March 8, 2017 

DENNIS J. HERRERA 

City Attorney 

RONALD FLYNN 

JESSE C. SMITH 

YVONNE R. MERÉ 

CHRISTINE VAN AKEN 

TARA M. STEELEY 

MOLLIE M. LEE 

SARA J. EISENBERG 

MATTHEW S. LEE 

NEHA GUPTA 

By: /s/ Sara J. Eisenberg 

SARA J. EISENBERG 

 Deputy City Attorney 

Attorneys for Plaintiff 

CITY AND COUNTY OF SAN FRANCISCO 

Case 3:17-cv-00485-WHO Document 21 Filed 03/08/17 Page 33 of 33