CCSF’s Opposition to Motion to Dismiss; 

CCSF v. President Trump, et al; Case No. 17-00485

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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 III, Attorney 

General of the United States, DOES 1-100, 

 Defendants. 

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

PLAINTIFF CITY AND COUNTY OF SAN 

FRANCISCO’S OPPOSITION TO 

DEFENDANTS’ NOTICE OF MOTION AND 

MOTION TO DISMISS 

Date: July 12, 2017 

Time: 2:00 p.m. 

Judge: Honorable William H. Orrick 

Dept: Courtroom 2 

Date Filed: January 31, 2017 

Trial Date: April 23, 2018 

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CCSF’s Opposition to Motion to Dismiss; 

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TABLE OF CONTENTS 

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

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

LEGAL STANDARD ......................................................................................................................1

FACTUAL BACKGROUND ..........................................................................................................2

ARGUMENT ...................................................................................................................................5

I. San Francisco’s Claims Are Justiciable. ..................................................................5

A. Claims Challenging The Executive Order Are Justiciable. .........................6

B. The Claim For Declaratory Relief Is Justiciable. .........................................8

II. Count One States A Viable Claim For Declaratory Relief That San Francisco 

Complies with Section 1373. .................................................................................10

III. Count Two States A Viable Claim That The Funding Restriction Violates 

Separation Of Powers Principles, The Spending Clause, And The Tenth 

Amendment. ...........................................................................................................11

A. The Executive Order Is More Than An Internal Directive, 

And It Is Subject To Judicial Review. .......................................................12

B. The Funding Restriction Is Facially Unconstitutional. ..............................14

1. The Court Already Found That The Funding Restriction Likely 

Violates Separation Of Powers, The Spending Clause, 

And The Tenth Amendment. .........................................................14

2. The Court Should Not Rely On The “Elucidations” Offered 

By The AG Memorandum. ............................................................15

a. The AG Memorandum Is Not An Authoritative 

Interpretation Of The Executive Order. .............................16

b. The AG Memorandum Is Not Binding Guidance 

About Implementation Of The Executive Order. ..............17

3. The AG Memorandum Is Not A Constitutional Application 

Of The Executive Order That Defeats A Facial Challenge 

Under Salerno. ...............................................................................20

4. The AG Memorandum Does Not Eliminate The 

Constitutional Violations Identified By The Executive Order. .....21

a. The Funding Restriction Still Violates The Separation 

Of Powers...........................................................................22

b. The Funding Restriction Still Violates The Spending 

Clause. ................................................................................23

c. The Funding Restriction Still Violates The Tenth 

Amendment. .......................................................................24

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IV. Count Three States A Viable Claim That The Enforcement Directive Is 

Unconstitutional. ....................................................................................................25

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

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TABLE OF AUTHORITIES 

Federal Cases

Alexander v. Sandoval 

532 U.S. 275 (2001) ...................................................................................................................11 

Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., Barez 

458 U.S. 592 (1982) ...............................................................................................................6, 12 

Ariz. Right to Life Political Action Comm. v. Bayless 

320 F.3d 1002 (9th Cir. 2003) .....................................................................................................6 

Ashcroft v. Iqbal 

556 U.S. 662 (2009) ...................................................................................................................11 

Bell Atl. Corp. v. Twombly

550 U.S. 544 (2007) ...............................................................................................................2, 11 

Chen v. Schiltgen 

No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal. May 19, 1995) .........................................13 

City of Los Angeles, Calif. v. Patel 

135 S. Ct. 2443 (2015) ...............................................................................................................21 

Clinton v. City of N.Y. 

524 U.S. 417 (1998) ...................................................................................................................14 

Collin County, Tex. v. Homeowners Ass'n for Values Essential to Neighborhoods 

(HAVEN) 915 F.2d 167 (5th Cir. 1990) .....................................................................................10 

Comite de Jornaleros de Redondo Beach v. City of Redondo Beach 

657 F.3d 936 (9th Cir. 2011) .....................................................................................................16 

Cook v. Brewer 

637 F.3d 1002 (9th Cir. 2011) .....................................................................................................1 

Foti v. City of Menlo Park 

146 F.3d 629 (9th Cir. 1998) .....................................................................................................17 

Harris Cty. Texas v. MERSCORP Inc. 

791 F.3d 545 (5th Cir. 2015) .....................................................................................................11 

Knox v. Service Employees Intern. Union 

567 U.S. 298 (2012) ...................................................................................................................15 

Lee v. City of Los Angeles 

250 F.3d 668 (9th Cir. 2001) .......................................................................................................2 

Legal Aid Society of Alameda County v. Brennan 

608 F.2d 1319 (9th Cir. 1979) ...................................................................................................13 

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Libas Ltd. v. Carillo 

329 F.3d 1128 (9th Cir. 2003) .....................................................................................................2 

LSO, Ltd. v. Stroh 

205 F.3d 1146 (9th Cir. 2000) .....................................................................................................6 

Lujan v. Defenders of Wildlife 

504 U.S. 555 (1997) .....................................................................................................................1 

Maya v. Centex Corp. 

658 F.3d 1060 (9th Cir. 2011). ....................................................................................................1 

MedImmune, Inc. v. Genentech, Inc. 

549 U.S. 118 (2007) ...............................................................................................................9, 10 

Medtronic, Inc. v. Mirowski Family Ventures, LLC 

134 S. Ct. 843 (2014) .................................................................................................................10 

Muhammad v. Berreth 

No. C 12-02407 CRB, 2012 WL 4838427 (N.D. Cal. Oct. 10, 2012) .......................................11 

Narenji v. Civiletti 

617 F.2d 745 (D.C. Cir. 1980) ...................................................................................................18 

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

132 S. Ct. 2566 (2012) ...............................................................................................................15 

Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp. 

766 F.2d 228 (6th Cir. 1985) .......................................................................................................6 

Organized Village of Kake v. U.S. Dep’t of Agric. 

795 F.3d 956 (9th Cir. 2015) .......................................................................................................6 

Patel v. City of Los Angeles 

738 F.3d 1058 (9th Cir. 2013) (en banc). ..................................................................................21 

S. Dakota v. Dole 

483 U.S. 203 (1987) .............................................................................................................14, 15 

Savage v. Glendale Union High Sch., Dist. No. 205, Maricopa Cty. 

343 F.3d 1036 (9th Cir. 2003) ....................................................................................................1 

Shell Gulf of Mexico Inc. v. Center for Biological Diversity, Inc. 

771 F.3d 632 (9th Cir. 2014) .....................................................................................................10 

Societe de Conditionnement v. Hunter Engineering Co. 

655 F.2d 938 (9th Cir. 1981) .....................................................................................................11 

Somers v. Apple, Inc. 

729 F.3d 953 (9th Cir. 2013) .......................................................................................................2 

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Stapley v. Pestalozzi 

733 F.3d 804 (9th Cir. 2013) .................................................................................................2, 23 

Strong v. Ford 

108 F.3d 1386 (9th Cir. 1997) (unpublished) ............................................................................11 

Susan B. Anthony List v. Driehaus 

134 S. Ct. 2334 (2014) .................................................................................................................8 

Tenaska Washington Partners II, L.P. v. United States 

34 Fed. Cl. 434 (1995) ...............................................................................................................18 

Texas v. United States 

787 F.3d 733 (5th Cir. 2015) .......................................................................................................6 

United States v. Pickard 

100 F. Supp. 3d 981 (E.D. Cal. 2015) .......................................................................................14 

United States v. Salerno 

481 U.S. 739 (1987) ...................................................................................................................20 

United States v. Stevens 

559 U.S. 460 (2010) ...................................................................................................................16 

Valle del Sol Inc. v. Whiting 

732 F.3d 1006 (9th Cir. 2013) .....................................................................................................6 

Virginia v. American Booksellers 

484 U.S. 383, 392 (1988) .............................................................................................................7 

Virginia ex rel. Cuccinelli v. Sebelius 

656 F.3d 253 (4th Cir. 2011) .......................................................................................................6 

Washington v. Trump 

847 F.3d 1151 (9th Cir. 2017) ...................................................................................................20 

White v. Paulsen 

997 F. Supp. 1380 (E.D. Wash. 1998) .......................................................................................11 

Whitman v. Am. Trucking Associations 

531 U.S. 457 (2001) ...................................................................................................................15 

Williams v. Cty. of Alameda 

26 F. Supp. 3d 925 (N.D. Cal. 2014). ..........................................................................................5 

Wolfson v. Brammer 

616 F.3d 1045 (9th Cir. 2010) .....................................................................................................8 

Youngstown Sheet & Tube Co. v. Sawyer 

343 U.S. 579 (1952) ...................................................................................................................13 

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Federal Constitutional Provisions

U.S. Const. 

art. I, § 8, cl.1 .............................................................................................................................14 

Federal Statutes

2 U.S.C. 

§§ 683 et seq. .............................................................................................................................14 

8 U.S.C. 

§ 1103(a)(1) ...............................................................................................................................18 

§ 1103(c)(1) ...............................................................................................................................18 

§ 1373 ................................................................................................................................ passim 

28 U.S.C. 

§ 512 ..........................................................................................................................................18 

§ 1331 ........................................................................................................................................10 

§ 1346 ........................................................................................................................................10 

§ 2201(a) ......................................................................................................................................9 

Federal Rules

Federal Rule of Civil Procedure 

12(b)(1) ....................................................................................................................................... 9 

Federal Rules of Evidence 

201 ...............................................................................................................................................2 

Federal Regulations

28 C.F.R. 

§ 0.25 .........................................................................................................................................18 

§ 0.5(c) .......................................................................................................................................18 

San Francisco Administrative Code

S.F. Admin. Code 

§ 12H ........................................................................................................................................3, 4 

§ 12H.2 .........................................................................................................................................3 

§ 12I .....................................................................................................................................3, 4, 7 

§ 12I.3 ..........................................................................................................................................7 

Other References

Black’s Law Dictionary 

634 (10th ed. 2014) ....................................................................................................................13 

Discontinued Official Action 

13C Fed. Prac. & Proc. Juris. § 3533.7 (3d ed. 2017) (collecting cases) ..................................19 

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Peter L. Strauss, Overseer or “The Decider”? The President in Administrative Law 

 75 Geo. Wash. L. Rev. 696, 739 (2007) .............................................................................18, 19 

Randolph Moss’ article, Executive Branch Legal Interpretation: A Perspective from 

the Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1318 (2000) .........................................19 

Trevor W. Morrison, Book Review: Constitutional Alarmism 

124 Harv. L. Rev. 1688 (2011) ..................................................................................................19 

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INTRODUCTION 

The President issued an Executive Order rife with constitutional violations, threatening to strip 

all federal funds from sanctuary jurisdictions and directing unspecified enforcement action against 

them. The Attorney General now attempts to rescue this Order by saying that the Federal Government 

will disregard it. According the Attorney General, the Department of Justice and the Department of 

Homeland Security will merely continue to exercise authority conferred by other laws, and more 

specifically will enforce grant conditions requiring compliance with 8 U.S.C. § 1373 only where 

authorized by statutes independent of the Executive Order. Defendants move to dismiss 

San Francisco’s complaint against the Executive Order based, in large part, on the Attorney General’s 

implicit abandonment of its terms. This rescue attempt must fail. The government cannot keep an 

unconstitutional law on the books by promising, for the time being, not to apply it according to its 

plain text. San Francisco—and other jurisdictions—are entitled to know whether the Executive Order 

is in effect. 

LEGAL STANDARD 

A Rule 12(b)(1) motion to dismiss tests the court’s subject matter jurisdiction, including 

Article III standing and ripeness. Where, as here, a defendant mounts a facial attack arguing that the 

allegations contained in a complaint are insufficient to invoke federal jurisdiction, the motion should 

be granted only if “the complaint, when considered in its entirety, on its face, fails to allege facts 

sufficient to establish subject matter jurisdiction.” See, e.g., Savage v. Glendale Union High Sch., Dist. 

No. 205, Maricopa Cty., 343 F.3d 1036, 1040 n. 2 (9th Cir. 2003). The court “must accept as true all 

material allegations of the complaint and must construe the complaint in favor of the complaining 

party.” Maya v. Centex Corp., 658 F.3d 1060, 1068 (9th Cir. 2011). Moreover, “general factual 

allegations of injury resulting from the defendant’s conduct may suffice,” to establish justiciability 

“for on a motion to dismiss we ‘presum[e] that general allegations embrace those specific facts that are 

necessary to support the claim.’” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561(1997) 

(alteration in original)). 

“A Rule 12(b)(6) motion tests the legal sufficiency of a claim.” Cook v. Brewer, 637 F.3d 

1002, 1004 (9th Cir. 2011) (internal quotations and citation omitted). The court should dismiss a claim 

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only if it “(1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a 

cognizable legal theory.” Somers v. Apple, Inc., 729 F.3d 953, 959 (9th Cir. 2013). When considering 

a Rule 12(b)(6) motion to dismiss a complaint, the court accepts as true all allegations of material fact 

and construes them in the light most favorable to the plaintiff. Stapley v. Pestalozzi, 733 F.3d 804, 809 

(9th Cir. 2013). The court “determine[s] whether, assuming all facts and inferences in favor of the 

nonmoving party, it appears beyond doubt that [the plaintiff] can prove no set of facts to support its 

claims.” Libas Ltd. v. Carillo, 329 F.3d 1128, 1130 (9th Cir. 2003). The motion must be denied if the 

plaintiff alleges “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. 

Twombly, 550 U.S. 544, 547 (2007). 

In both Rule 12(b)(1) and 12(b)(6) motions, the Court may consider—in addition to the 

allegations of the complaint—documents and facts that are proper subjects of judicial notice. See, e.g., 

Lee v. City of Los Angeles, 250 F.3d 668, 688–89 (9th Cir. 2001) (noting that a court reviewing a Rule 

12(b)(6) motion may take judicial notice of “matters of public record” under Fed. R. Evid. 201). In 

addition, a court reviewing a Rule 12(b)(6) motion may consider documents attached to the complaint 

or materials that the complaint necessarily relies upon and are of undisputed authenticity. Lee v. 

City of Los Angeles, 250 F.3d at 688-89. 

FACTUAL BACKGROUND 

During his campaign, Donald Trump repeatedly condemned sanctuary cities, singling out 

San Francisco in particular as a jurisdiction whose policies he believed threatened public safety. 

San Francisco’s Second Amended Complaint (Dkt. No. 105) (“SAC”) ¶¶ 66, 65. Within a week after 

being sworn in as President of the United States, he took action to carry out his threats. 

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

Safety in the Interior of the United States” (“Executive Order”). SAC ¶ 1. The Executive Order directs 

the Attorney General and the Secretary of the Department of Homeland Security (“DHS”) to ensure 

that “sanctuary jurisdictions” are not eligible for federal funds (the “Funding Restriction”) and 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” (the 

“Enforcement Directive”). SAC Exh. 3 (“Executive Order”) § 9(a). 

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The plain language of the Executive Order indicates that it seeks to withhold almost all current 

and future federal funds from “sanctuary jurisdictions,” including any jurisdiction that refuses to 

comply with ICE detainer requests. See SAC ¶¶ 60-61. And concurrent statements by President 

Trump’s press secretary echo this broad sweep. For example, the press statement announcing the 

issuance of the Executive Order stated: “We are going to strip federal grant money from the sanctuary 

states and cities that harbor illegal immigrants. The American people are no longer going to have to be 

forced to subsidize this disregard for our laws.” Id. ¶ 67. 

San Francisco’s annual operating budget for FY16-17 includes over $1.2 billion in federal 

funds. Id. ¶ 102. This accounts for approximately 13% of the total annual operating budget. On top of 

this, San Francisco expects to receive an additional $800 million in federal multi-year grants, largely 

for public infrastructure projects. Id. ¶ 103. San Francisco uses federal funds to pay for critical services 

such as in-home supportive services for about 23,000 low-income elderly, disabled, or blind 

San Franciscans (id. ¶ 106); nursing services for adult residents of San Francisco who are disabled or 

chronically ill, including specialized care for those with wounds, head trauma, stroke, spinal cord and 

orthopedic injuries, HIV/AIDS, and dementia (id. ¶ 112); and the Bay Area Urban Areas Security 

Initiative, which sustains and improves regional capacity to prevent, mitigate, respond to, and recover 

from terrorist attacks and catastrophic disasters (id. ¶ 118). 

And San Francisco has sanctuary laws, which are currently codified in two chapters of 

San Francisco’s Administrative Code: Chapters 12H and 12I. Id. ¶ 21. Chapter 12H prohibits 

San Francisco departments, agencies, officers, and employees from using City funds or resources to 

assist in enforcing federal immigration law or to gather or disseminate information regarding an 

individual’s release status, or other confidential identifying information, unless such assistance is 

required by federal or state law. S.F. Admin. Code § 12H.2; SAC ¶¶ 22-23. 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”). S.F. Admin. Code § 12H.2; SAC ¶ 24. 

Accordingly, and given the severe consequences threatened by the Executive Order (SAC 

¶ 10), San Francisco filed suit on January 31, 2017. San Francisco’s Second Amended Complaint 

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raises three claims. First, the SAC seeks declaratory relief that San Francisco’s sanctuary city laws—

Administrative Code Chapters 12H and 12I—comply with 8 U.S.C. § 1373 (“Section 1373”). SAC ¶¶ 

144-48. Second, the SAC claims that the Executive Order’s Funding Restriction violates the Tenth 

Amendment, the Spending Clause, and separation of powers. SAC ¶¶ 149-53. Third, the SAC claims 

that the Executive Order’s Enforcement Directive violates the Tenth Amendment. SAC ¶¶ 154-57. 

Shortly after filing its complaint, San Francisco filed a motion for a preliminary injunction seeking to 

have section 9(a) of the Executive Order enjoined. Dkt. No. 21. 

In the weeks and months following issuance of the Executive Order—and the filing of 

San Francisco’s lawsuit—Defendants continued to threaten severe consequences for sanctuary cities: 

 President Trump confirmed that he intended to use “defunding” as a “weapon” to get 

sanctuary cities to change their policies. Request for Judicial Notice In Support Of 

San Francisco’s Opposition to Motion to Dismiss (“RJN”) Exh. A at 4. 

 The President’s press secretary informed the nation that President Trump intended to 

ensure that “counties and other institutions that remain sanctuary cities don’t get federal 

government funding,” and praised Miami-Dade County, which had swiftly abandoned its 

policy of not complying with detainers unless reimbursed by the federal government, for 

“understand[ing] the importance of this order.” Id. Exh. B at 4. 

 Attorney General Jefferson Sessions stated at a press conference that failure to comply with 

Section 1373 would result in “withholding grants, termination of grants, and disbarment or 

ineligibility for future grants,” and that the Government would even seek to “claw back” 

funds awarded to sanctuary jurisdictions. RJN Exh. C at 3. In these remarks, he 

specifically classified San Francisco as a “sanctuary city.” Id at 2; see also RJN Exh. D. 

But during the hearing on Plaintiffs’ motion for a preliminary injunction, Defendants executed 

a last-minute about-face, orally proposing a new and narrow interpretation of the Executive Order. See 

Order Granting Motion to Enjoin Section 9(a) of Executive Order 13768 (Dkt. No. 82) (“PI Order”) at 

2. This Court rejected that interpretation as “not legally plausible” (id. at 3), and preliminarily enjoined 

Section 9(a) on April 25, 2017, after concluding that San Francisco was likely to succeed on the merits 

// 

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of its separation of powers, Spending Clause, and Tenth Amendment challenges to the Order (id. at 

35-49). 

On May 22—approximately four months after President Trump signed the Executive Order—

the Attorney General published an “implementation” memorandum purporting to narrow the 

Executive Order’s reach consistent with defense counsel’s statements at the hearing. See Defendants’ 

Motion to Dismiss (Dkt. No. 111) (“Mot.”) at Attachment 1 (“AG Memorandum”). Notably, however, 

the AG Memorandum does not address several critical issues. It repeats that “sanctuary jurisdictions” 

will be defined as those jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373” (id. at 2), 

but does not provide any guidance on what Defendants believe Section 1373 requires, and in 

particular, whether Defendants believe it requires compliance with ICE detainer requests. It does not 

state how DHS will implement the Executive Order. And it does not indicate how the Attorney 

General will implement the Enforcement Directive. 

Shortly after issuing the AG Memorandum, Defendants filed a motion for reconsideration 

arguing that the Memorandum undermined several aspects of the Court’s PI Order. See Defendants’ 

Motion for Leave to File a Motion for Reconsideration (Dkt. No. 102). This motion has been fully 

briefed and remains pending. 

ARGUMENT 

I. San Francisco’s Claims Are Justiciable. 

In Part I of their Motion, Defendants perfunctorily assert that all three of San Francisco’s 

claims should be dismissed because San Francisco lacks standing and its claims are unripe.1

 Mot. at 

10. In subsequent sections, Defendants repackage and restate their justiciability argument concerning 

Counts One (San Francisco law complies with 8 U.S.C. § 1373) and Three (the Enforcement Directive 

is unconstitutional). Mot. at 11-12, 22-24. Defendants’ argument fails on all fronts. 

// 

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 Defendants’ entire “argument” in this regard consists of two sentences stating the standing 

and ripeness requirements, and a third sentence directing the Court to the arguments made in 

Defendants’ Motion for Reconsideration. Mot. at 10. But “[i]t is wholly improper for Plaintiff to 

incorporate by reference legal arguments made in a brief filed in connection with a motion that is not 

before the Court” as it would allow for circumvention of page limits imposed by the local rules. 

Williams v. Cty. of Alameda, 26 F. Supp. 3d 925, 947 (N.D. Cal. 2014). 

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A. Claims Challenging The Executive Order Are Justiciable. 

With respect to San Francisco’s counts concerning the constitutionality of the Executive Order 

(Counts Two and Three), the Court has already rejected Defendants’ justiciability argument in its 

order granting San Francisco’s motion for a preliminary injunction. PI Order at 11-34. And for good 

reason. The Executive Order threatens San Francisco with the loss of at least some federal grant funds 

(SAC ¶¶ 58-61) and, as the Court correctly held, this “‘loss of funds promised under federal law 

[]satisfies Article III’s standing requirement.’” PI Order at 29 (quoting Organized Village of Kake v. 

U.S. Dep’t of Agric., 795 F.3d 956, 965 (9th Cir. 2015)). Moreover, there can be no dispute that the 

purpose of the Executive Order is to pressure jurisdictions to change their laws (see, e.g., SAC ¶ 68)—

and that this, too, constitutes an injury sufficient to satisfy the Article III case or controversy 

requirement. See PI Order at 27-28 (concluding that the “Counties’ claims implicate a constitutional 

interest” because the “Executive Order seeks to compel them to change their policies and enforce the 

Federal government’s immigration laws”); see also Alfred L. Snapp & Son, Inc. v. Puerto Rico, ex rel., 

Barez, 458 U.S. 592, 601 (1982) (states have a sovereign interest in “the power to create and enforce a 

legal code”); Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 253, 269 (4th Cir. 2011) (“when a 

federal law interferes with a state’s exercise of its sovereign ‘power to create and enforce a legal code’ 

[] it inflict[s] on the state the requisite injury-in-fact.”); Ohio ex rel. Celebrezze v. U.S. Dep’t of 

Transp., 766 F.2d 228, 233 (6th Cir. 1985); Texas v. United States, 787 F.3d 733, 749 (5th Cir. 2015). 

And although Defendants have not yet officially declared San Francisco a “sanctuary 

jurisdiction,” withheld any funds pursuant to the Funding Restriction, or initiated other enforcement 

action against San Francisco, this does not defeat the Court’s jurisdiction. A plaintiff “does not have to 

await the consummation of threatened injury to obtain preventive relief.” Valle del Sol Inc. v. Whiting, 

732 F.3d 1006, 1015 (9th Cir. 2013) (internal quotation omitted). Rather, “it is ‘sufficient for standing 

purposes that the plaintiff intends to engage in a ‘course of conduct arguably affected with a 

constitutional interest’ and that there is a credible threat that the provision will be invoked against the 

plaintiff.’ ” Id. (citing Ariz. Right to Life Political Action Comm. v. Bayless, 320 F.3d 1002, 1006 (9th 

Cir. 2003) (quoting LSO, Ltd. v. Stroh, 205 F.3d 1146, 1154-55 (9th Cir. 2000). As this Court 

previously explained, San Francisco has standing to bring a pre-enforcement challenge to Section 9(a) 

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of the Executive Order because it has a well-founded fear of enforcement. PI Order at 19-33. Three 

sets of facts alleged in the Complaint—and supported by exhibits in the RJN—support this conclusion. 

First, it is beyond dispute that San Francisco law generally restricts employees from assisting 

in the enforcement of federal immigration law and specifically prohibits law enforcement officials 

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

an ICE detainer request. S.F. Admin. Code § 12I.3; SAC ¶¶ 22-24.2 As the Court recognized, “the 

rights of states and local governments to determine their own local policies and enforcement 

priorities” implicates a constitutional interest under the Tenth Amendment. PI Order at 27. 

Second, the Executive Order appears to require jurisdictions to comply with detainer requests 

or face loss of federal funds and other enforcement action. The Executive Order—and the AG 

Memorandum—define “sanctuary jurisdictions” as jurisdictions that “willfully refuse to comply with 

8 U.S.C. 1373.” Section 9(b) equates “sanctuary jurisdictions” with jurisdictions that refuse to comply 

with detainers. And Attorney General Sessions has suggested that a policy prohibiting compliance 

with detainers would violate Section 1373 as well as “hinder the enforcement of federal law.” PI Order 

at 20-21 (citing Sessions Press Conference at 2). San Francisco thus has a reasonable belief that its 

laws will trigger defunding and enforcement action under the Executive Order.3

Third, Defendants have indicated a specific intent to enforce the Executive Order against 

San Francisco. In a recent joint letter to Chief Justice Cantil-Sakauye of the California Supreme Court, 

Attorney General Sessions and Secretary Kelly stated: “Some jurisdictions, including the State of 

California and many of its largest counties and cities, have enacted statutes and ordinances designed to 

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honors consistent with its Sanctuary City laws. See SAC ¶ 25. 

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the Supreme Court of Massachusetts stating that detainers “are voluntary . . . rather than mandatory 

commands.” Reply ISO Motion for Reconsideration (Dkt. No. 113) at 11. But on the same day that 

Attorney General Sessions filed that brief, he also stated in public remarks that failure to comply with 

detainer requests violates federal law and will render jurisdictions ineligible for DOJ grants under 

Section 1373. RJN Exh. C. The AG Memorandum, meanwhile, does not even mention detainers—

much less clarify that federal funds will not be denied to jurisdictions that fail to comply with such 

requests. But even if it did, it would not defeat San Francisco’s standing to bring a pre-enforcement 

challenge. A well-founded fear of enforcement may be based on a reasonable interpretation of what 

conduct is proscribed—even if a narrower interpretation of the statute is also available. See PI Order at 

19 (citing Virginia v. American Booksellers, 484 U.S. 383, 392 (1988)). 

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specifically prohibit or hinder ICE from enforcing immigration law by prohibiting communication 

with ICE, and denying requests by ICE officers and agents to enter prisons and jails to make arrests.” 

RJN Exh. T. ICE has specifically identified San Francisco as a jurisdiction with policies that “Restrict 

Cooperation with ICE.” RJN Exh. S. A memo by the Office of the Inspector General “notes that 

San Francisco’s policy . . . could run afoul of Section 1373 unless San Francisco employees are aware 

that they are permitted to share immigration status information with ICE.” PI Order at 20-21 (citing 

OIG Memo [RJN Exh. F]). During a March 27, 2017 press conference, Attorney General Sessions 

described San Francisco as a “sanctuary city.” RJN Exh. C at 1. In an op-ed recently published in the 

San Francisco Chronicle, the Attorney General again characterized San Francisco as a “sanctuary city” 

and implored “San Francisco and other cities to reevaluate [their] policies.” RJN Exh. U. As this Court 

explained, “[t]hese statements indicate not only the [Government’s] belief that San Francisco is a 

‘sanctuary jurisdiction’ but that its policies are particularly dangerous and in need of change.” PI 

Order at 26. 

Accordingly, San Francisco has established a well-founded fear of enforcement sufficient to 

demonstrate Article III standing. And because “[t]he constitutional component of ripeness overlaps 

with the ‘injury in fact’ analysis for Article III standing” (Wolfson v. Brammer, 616 F.3d 1045, 1058 

(9th Cir. 2010)), San Francisco has established constitutional ripeness as well. With respect to the 

prudential component of ripeness, the Supreme Court has questioned the “continuing vitality of the 

prudential ripeness doctrine” in light of courts’ “virtually unflagging” obligation to “decide cases 

within [their] jurisdiction.” Susan B. Anthony List v. Driehaus, 134 S. Ct. 2334, 2347 (2014). 

Nonetheless, as this Court has already held, San Francisco’s claims are prudentially ripe: 

“[San Francisco] challenge[s] the Executive Order as written; a decision to enforce it sparingly cannot 

impact whether it is unconstitutional on its face. [San Francisco’s] claims do not require further factual 

development, are legal in nature, and are brought against a final Executive Order. They are fit for 

review.” PI Order at 34. 

B. The Claim For Declaratory Relief Is Justiciable. 

San Francisco has also demonstrated a well-founded fear that Defendants will take 

enforcement action against it based on alleged violations of Section 1373. See generally PI Order at 

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11, 20-21. For example, Attorney General Sessions’ March 27 statement urging jurisdictions to 

comply with Section 1373—or face consequences—singled out San Francisco and its “sanctuary 

policies.” RJN Exh. D. Representative John Culberson—the self-proclaimed “CFO of the Department 

of Justice,” who chairs the House of Representatives subcommittee that controls DOJ spending—

stated that Section 1373 “bars state and local officials from interfering ‘in any way’ with requests for 

personal immigration information by federal authorities” and that “starting this year” San Francisco 

and other jurisdictions deemed out of compliance with Section 1373 are “in for a very unpleasant 

surprise.” RJN Exh. E at 3-4. The OIG Memo discussed above (see p. 8, supra) specifically calls out 

San Francisco as having laws that could run afoul of Section 1373. RJN Exh. F at 6 n.7. The Supreme 

Court has made clear that this type of threatened action is sufficient to satisfy Article III. See 

MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 128-29 (2007) (“[W]here threatened action by 

government is concerned, we do not require a plaintiff to expose himself to liability before bringing 

suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be 

enforced.”). To the extent that Defendants’ Motion challenges Count One based on standing and 

ripeness, Mot. at 10, the Court should therefore reject this challenge. 

Defendants’ statements also belie their argument that there is “no live, concrete controversy 

regarding whether San Francisco complies with Section 1373,” and thus any ruling on this issue would 

“constitute a prohibited advisory opinion.” Mot. at 11. As pled in the SAC, San Francisco believes—

and seeks a judicial determination—that its laws comply with Section 1373. SAC ¶ 125. Defendants, 

meanwhile, take the position that San Francisco does not comply with Section 1373. SAC ¶ 146. And 

as noted above, they have repeatedly threatened enforcement action on this basis. 

These facts establish both Article III jurisdiction and an actual controversy within the meaning 

of the Declaratory Judgment Act (“Act”), 28 U.S.C. § 2201(a). The term “actual controversy” in the 

Act refers to “‘Cases’ and ‘Controversies’ that are justiciable under Article III.” MedImmune, 549 U.S. 

at 127. As required by Article III, the dispute over whether San Francisco complies with Section 1373 

is “real and substantial,” and not merely “an opinion advising what the law would be upon a 

hypothetical set of facts.” Id. Defendants’ request to dismiss San Francisco’s claims under Federal 

Rule of Civil Procedure 12(b)(1) should be denied. 

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II. Count One States A Viable Claim For Declaratory Relief That San Francisco Complies 

with Section 1373. 

Count One of San Francisco’s Second Amended Complaint requests a declaration from this 

Court that its laws comply with 8 U.S.C. § 1373 (“Count One”). In moving to discuss Count One, 

Defendants conflate three separate concepts: Article III jurisdiction, federal subject matter jurisdiction, 

and the existence of a private right of action. But San Francisco has established Article III jurisdiction 

and federal subject matter jurisdiction, and the Declaratory Judgment Act does not require plaintiffs to 

invoke a right of action separate from the cause of action a defendant would have against the plaintiff. 

First, as described in Section I(B), supra, San Francisco has demonstrated that there is an 

“actual controversy” about whether its laws comply with Section 1373. This establishes Article III 

jurisdiction and defeats Defendants’ argument that judicial resolution of Count One would be a 

prohibited advisory opinion. See MedImmune, 549 U.S. at 127. 

Second, the Court has subject matter jurisdiction under 28 U.S.C. § 1331. To determine federal 

question jurisdiction in a declaratory relief action, courts “look to the ‘character of the threatened 

action’. . .[t]hat is to say. . . whether ‘a coercive action’ brought by ‘the declaratory judgment 

defendant’. . . ‘would necessarily present a federal question.’” Medtronic, Inc. v. Mirowski Family 

Ventures, LLC, 134 S. Ct. 843, 848 (2014) (internal citations omitted). Here, if Defendants brought an 

action against San Francisco to secure compliance with 8 U.S.C. § 1373, it would be an action “arising 

under the Constitution, laws, or treaties of the United States” and by definition would present a federal 

question that this Court has jurisdiction to adjudicate. See 28 U.S.C § 1331.4

 

Third, “‘it is the underlying cause of action of the defendant against the plaintiff that is actually 

litigated in a declaratory judgment action.’” Shell Gulf of Mexico Inc. v. Center for Biological 

Diversity, Inc., 771 F.3d 632, 636 (9th Cir. 2014) (quoting Collin County, Tex. v. Homeowners Ass'n 

for Values Essential to Neighborhoods, (HAVEN) 915 F.2d 167 (5th Cir. 1990). As Defendants have 

repeatedly noted, they could bring civil preemption actions against jurisdictions to enforce Section 

1373. See, e.g., RJN Exh. G at 8. Accordingly, San Francisco does not need a separate cause of action 

 4

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U.S.C. §§ 1331 and 1346 [], do not create independent causes of action.” Mot. at 11. This is correct, 

but irrelevant. San Francisco does not argue that they create an independent cause of action, simply 

that they confer subject matter jurisdiction. 

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to litigate its declaratory judgment claim. Defendants’ argument that a plaintiff must assert an 

independent cause of action to bring a claim for declaratory relief ignores the purpose of the 

Declaratory Judgment Act and attempts to create an obligation that does not exist. See generally 

Societe de Conditionnement v. Hunter Engineering Co., 655 F.2d 938, 943 (9th Cir. 1981) (noting that 

the purpose of the Declaratory Judgment Act is “to relieve potential defendants from the Damoclean 

threat of impending litigation which a harassing adversary might brandish, while initiating suit at his 

leisure—or never”). 

None of Defendants’ authority is to the contrary. Most of the cited cases do not concern 

declaratory relief at all. See Alexander v. Sandoval, 532 U.S. 275, 286-87 (2001); Strong v. Ford, 108 

F.3d 1386 (9th Cir. 1997) (unpublished); White v. Paulsen, 997 F. Supp. 1380, 1382 (E.D. Wash. 

1998). In one Fifth Circuit case, the plaintiff did not contend that the underlying state statute created a 

cause of action that could be enforced by anyone, plaintiff or defendant. Harris Cty. Texas v. 

MERSCORP Inc., 791 F.3d 545, 552 (5th Cir. 2015). And in a district court case, the court simply 

observed that “[d]eclaratory relief is not an independent cause of action” and the Declaratory 

Judgment Act “does not itself confer federal subject-matter jurisdiction.” Muhammad v. Berreth, No. 

C 12-02407 CRB, 2012 WL 4838427, at *5 (N.D. Cal. Oct. 10, 2012). No one disagrees with this 

straightforward proposition. It is simply irrelevant. As noted above, there is federal question 

jurisdiction here and a cause of action exists because Defendants could sue San Francisco to ensure 

compliance with Section 1373. 

III. Count Two States A Viable Claim That The Funding Restriction Violates Separation Of 

Powers Principles, The Spending Clause, And The Tenth Amendment. 

Count Two states that the Executive Order’s funding restriction violates the United States 

Constitution’s separation of powers principles, Spending Clause, and Tenth Amendment. To survive 

Defendants’ motion to dismiss, San Francisco need only show that this claim is “‘plausible on its 

face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 570). The claims 

alleged in the SAC more than meet this burden. Indeed, the Court has already reviewed these claims 

under the more exacting preliminary injunction standard and held that San Francisco is likely to 

succeed on merits of each claim. See PI Order at 35-44. Defendants nonetheless argue that 

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San Francisco cannot plead viable challenges against the Executive Order because it “is an internal 

Executive Branch policy directive.” Mot. at 12-13. Defendants also argue that San Francisco’s 

challenge to the Funding Restriction should be dismissed because the Funding Restriction—“as 

elucidated by the AG Memorandum”—is not facially unconstitutional. Mot. at 13-22. They are wrong. 

The Executive Order is more than an internal policy directive and has a direct impact on 

San Francisco. The AG Memorandum does not “elucidate” the Executive Order because it is not an 

authoritative interpretation, a binding statement about implementation, or even a conceivable 

constitutional application of the Executive Order. Instead, the AG Memorandum simply indicates that 

the DOJ will not implement the plain text of the Executive Order and says nothing about how other 

agencies will implement it. This does not cure the constitutional infirmities identified by the Court. 

A. The Executive Order Is More Than An Internal Directive, And It Is Subject To 

Judicial Review. 

Defendants argue that the Court should dismiss both of San Francisco’s counts concerning the 

constitutionality of the Executive Order (Counts Two and Three) because the Order is merely an 

internal policy directive concerning implementation of existing law and does not directly affect 

San Francisco. This argument is both factually and legally flawed. 

Defendants’ argument is factually flawed because it fails in its underlying premises. As an 

initial matter, the notion that the Executive Order does not affect San Francisco is spurious. The Order 

seeks to “undermine [local policy] judgment by attempting to compel [jurisdictions] to change their 

policies and enforce the Federal government’s immigration laws” (PI Order at 28) by threatening to 

withhold federal funds and initiate unspecified enforcement action. As the Court has already 

concluded, this directly harms San Francisco by impairing its sovereign interest in creating and 

enforcing its own legal code (id. at 27 (citing Alfred L. Snapp & Son, 458 U.S. at 601)) and by creating 

budgetary uncertainty that impacts the City’s ability to budget and plan for the future (id. at 29-30). 

Moreover, the plain text of the Executive Order makes clear that it does more than just provide 

the Attorney General and Secretary of DHS direction “regarding their exercise of existing statutory 

and constitutional authority.” Mot. at 12 (emphasis on original). As this Court explained, Section 9(a) 

// 

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directs the Attorney General and the Secretary to ensure that “sanctuary 

jurisdictions” are “not eligible to receive” federal grants. EO §9(a)(emphasis 

added). Whether a jurisdiction is eligible to receive federal grants is determined 

by the conditions on those grants and the characteristics, acts, and choices of the 

jurisdiction. See BLACK’S LAW DICTIONARY 634 (10th ed. 2014) (defining 

“eligible” as “Fit and proper to be selected or to receive a benefit.”). Section 

9(a)’s language directing the Attorney General and Secretary to ensure that 

jurisdictions that “willfully refuse to comply” with Section 1373 are “not 

eligible” for federal grants therefore purports to delegate to the Attorney 

General and the Secretary the authority to place a new condition on federal 

grants, compliance with Section 1373. 

PI Order at 14. The ability to place new conditions on federal grants is an (unconstitutional) expansion 

of the authority of the Attorney General and Secretary. Thus, the Executive Order—which purports to 

hand them this authority—is more than an internal policy directive concerning implementation of 

existing law. Defendants’ attempt to characterize it as such fails. See generally PI Order at 14-15 (“If 

Section 9(a) does not direct the Attorney General and Secretary to place new conditions on federal 

funds then it only authorizes them to do something they already have the power to do, enforce existing 

grant requirements. . . But a construction so narrow that it renders a legal action legally meaningless 

cannot possibly be reasonable and is clearly inconsistent with the Order’s broad intent.”). 

Defendants’ argument is legally flawed as well. To the extent Defendants argue that the fact 

the Executive Order is framed as a direction to other officers of the U.S. federal government precludes 

judicial review, they are wrong. Indeed, the executive order at issue in the seminal case of Youngstown 

Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), was similarly framed as a directive to an Executive 

Branch official, yet the Supreme Court reviewed—and ultimately struck down—the order. And 

Defendants’ reliance on Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal. 

May 19, 1995), and Legal Aid Society of Alameda County v. Brennan, 608 F.2d 1319 (9th Cir. 1979), 

is perplexing. See Mot. at 12. Those cases state that executive orders lacking specific statutory or 

congressional authorization do not have the full force of law—meaning they create no private right of 

action that can be enforced in court. Chen, 1995 WL 317023, at *5; Legal Aid Society of Alameda 

County, 608 F.2d at 1330 & n.14. But this is irrelevant. San Francisco’s complaint does not seek to 

// 

// 

// 

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enforce the Executive Order; it challenges the Executive Order. Defendants cite no authority 

supporting the proposition that the validity of such orders cannot be challenged in court.5

 

For all of these reasons, the Court should reject Defendants’ argument that San Francisco fails 

to state a viable claim challenging the Executive Order because the order is an internal directive. 

B. The Funding Restriction Is Facially Unconstitutional. 

1. The Court Already Found That The Funding Restriction Likely Violates 

Separation of Powers, The Spending Clause, And The Tenth Amendment. 

As the Court recognized in its PI Order, “Section 9 purports to give the Attorney General and 

the Secretary the power to place a new condition on federal funds (compliance with Section 1373) not 

provided for by Congress.” Id. at 36. But the federal spending power belongs to Congress, not the 

President. U.S. Const. art. I, § 8, cl.1. The President cannot amend funding statutes (Clinton v. City of 

N.Y., 524 U.S. 417, 438 (1998)), and cannot withhold appropriated funds without Congress’s approval, 

Impoundment Control Act of 1974, 2 U.S.C. §§ 683 et seq. Section 9’s attempt to impose a new 

funding condition “is an improper attempt to wield Congress’s exclusive spending power and is a 

violation of the Constitution’s separation of powers principles.” PI Order at 37. 

Even if the President did have the Spending Power, Section 9 would exceed the scope of that 

power and therefore violate the Tenth Amendment. Id. at 37. As the Court held, Section 9 violates the 

Spending Clause in at least three different ways. First, it imposes a new funding condition without 

stating that condition unambiguously and in advance “so that states and local jurisdictions 

contemplating whether to accept such funds can ‘exercise their choice knowingly, cognizant of their 

participation.’” Id. (quoting S. Dakota v. Dole, 483 U.S. 203, 203 (1987)). Second, “its attempt to 

condition all federal grants on compliance with Section 1373 clearly runs afoul of the nexus 

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Cal. 2015)—is entirely inapposite. There, several individuals who had been indicted for conspiracy to 

manufacture marijuana sought to dismiss their indictments. Id. at 988-89. They argued, inter alia, that 

a memorandum to United States Attorneys from the Deputy Attorney General, which described eight 

enforcement priorities to guide enforcement of the Controlled Substances Act (“CSA”), violated the 

Tenth Amendment by imposing a disparate impact on states depending on the legal status of marijuana 

within the jurisdiction. Id. at 1011. The court concluded that it did not, noting that the memorandum 

did “not circumscribe the DOJ’s ability to prosecute drug offenses under the CSA in any state,” that it 

was not binding and was instead “‘intended solely as a guide’ for prosecutors in their exercise of 

discretion,” and that “federal prosecutors retain[ed] exclusive authority and absolute discretion to 

decide whether to prosecute a case.” Id. (internal quotation marks omitted). This says nothing about 

whether a viable claim can be raised challenging the Executive Order at issue here. 

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requirement” that “‘Congress may condition grants under the spending power only in ways 

reasonabl[y] related to the purpose of the federal program.’” Id. at 38 (quoting Dole, 483 U.S. at 213). 

Third, threatening to withhold all federal grants is an unconstitutionally coercive “gun to the head.” Id. 

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

Finally, the court held that San Francisco was likely to succeed on its claim that the Executive 

Order violates the Tenth Amendment by seeking to compel state and local jurisdictions to comply with 

detainer requests, under threat of losing federal grants or facing enforcement action. Id. at 40. As the 

Court recognized, this is an unconstitutional attempt to force state and local jurisdictions to administer 

federal immigration law. Id. at 39. 

2. The Court Should Not Rely On The “Elucidations” Offered By The AG 

Memorandum. 

Defendants make no attempt to defend this plain text reading of the Executive Order or 

respond to the Court’s analysis. Instead, they argue that “as elucidated by the AG Memorandum,” the 

Funding Restriction is constitutional. Yet the AG Memorandum does not and cannot rewrite the 

Executive Order, which is what would be required to cure the constitutional infirmities identified by 

the Court. When the Administration has recognized constitutional problems with an Executive Order 

in similar cases, it has withdrawn the offending Order or issued a clarifying memorandum from the 

President himself to attempt to address the issue. See RJN Exhs. H at Section 1(i), I. Defendants’ 

failure to follow those procedures here underscore the limited import of the AG Memorandum. 

Instead of rewriting the Executive Order, the AG Memorandum effectively states that DOJ will 

not implement the Executive Order as required by its text and will instead implement other statutes—

namely, existing funding statutes that permit 1373 funding conditions. Yet an agency’s “voluntary 

self-denial” of powers granted by an unconstitutional law does not save that law. Whitman v. Am. 

Trucking Associations, 531 U.S. 457, 472–73 (2001); see also Knox v. Service Employees Intern. 

Union, 567 U.S. 298, 307 (2012) (“The voluntary cessation of challenged conduct does not ordinarily 

render a case moot because a dismissal for mootness would permit a resumption of the challenged 

conduct as soon as the case is dismissed.”). As Supreme Court has explained, it “would not uphold an 

unconstitutional statute merely because the Government promised to use it responsibly.” United States 

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v. Stevens, 559 U.S. 460, 480 (2010). The Constitution “protects against the Government; it does not 

leave us at the mercy of noblesse oblige.” Id.; see also Comite de Jornaleros de Redondo Beach v. City 

of Redondo Beach, 657 F.3d 936, 946–47 (9th Cir. 2011) (“We cannot simply ‘presume[] the [City] 

will act in good faith and adhere to standards absent from the ordinance’s face.’”). 

Defendants attempt to characterize the AG Memorandum as something other than a promise 

not to implement the Executive Order, but none of their characterizations are persuasive. It is unclear 

whether Defendants rely on the AG Memorandum as a narrowing construction of the Executive Order 

or a binding directive about implementation of the Executive Order, but the AG Memorandum cannot 

do the work Defendants would have it do under any of these theories. 

a. The AG Memorandum Is Not An Authoritative Interpretation Of 

The Executive Order. 

For the most part, the AG Memo simply repeats the arguments Defendants made at the PI 

Hearing. The Court has already determined that the Executive Order is “not readily susceptible to the 

Government’s narrow interpretation,” and that reading it as the Government proposed would 

“‘require[] rewriting, not just reinterpretation.’” PI Order at 14 (quoting U.S. v. Stevens, 559 U.S. 460, 

481 (2010)). Specifically, the Court concluded that reading the Executive Order as Defendants 

proposed—i.e., as not giving the Attorney General or the Secretary of DHS any new authority and 

applying only to limited grants administered by DOJ or DHS—is inconsistent with the plain text of 

Section 9(a) as well as the “structure and language” of other provisions of the Executive Order. Id. at 

15; see also id. at 14 (“While the Government urges that the Order ‘does not purport to give the 

Secretary or Attorney General the unilateral authority’ to impose new conditions on federal grants, that 

is exactly what the Order purports to do.”); id. at 15 (“At the hearing, Government counsel argued that 

the Order applies only to grants issued by the Department of Justice and the Department of Homeland 

Security because it is directed only at the Attorney General and Secretary of Homeland Security. This 

reading is similarly implausible.”). 

The Court therefore rejected the narrowing construction proposed by the Attorney General at 

the preliminary injunction hearing, and reiterated in the AG Memorandum. As the Court recognized, 

“[i]t is not the job of the courts ‘to insert missing terms into the statute or adopt an interpretation 

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precluded by [its] plain language.’” PI Order at 13 (quoting Foti v. City of Menlo Park, 146 F.3d 629, 

639 (9th Cir. 1998)). And to what end? Adopting the Attorney General’s construction would so narrow 

the Executive Order that it would deprive it of any legal force. Id. at 15-16. It would also “transform 

an Order that purports to create real legal obligations into a mere policy statement and would work to 

mislead individuals who are not able to conclude, by reading Section 9(a) itself, that it is fully self 

cancelling and carries no legal weight.” Id. at 16. 

Defendants offer no reason for the Court to reconsider this analysis, and do not argue that the 

Court must defer to the AG Memo as an agency interpretation. See Reply ISO Motion for 

Reconsideration at 5 fn. 6 (“[T]he rules of judicial deference are inapplicable.”). Instead, they argue 

that the AG memorandum is relevant because it purportedly binds other agencies. Id. (“[T]the issue 

here is not whether this Court is bound by the Attorney General’s determination as to the scope and 

meaning of the grant eligibility provision, but rather whether other federal agencies are bound by it.) 

Yet as discussed below, the AG Memorandum does not bind anyone. 

b. The AG Memorandum Is Not Binding Guidance About 

Implementation Of The Executive Order. 

Defendants characterize the AG Memorandum as “authoritative, binding guidance” for all 

executive agencies (Mot. at 2), but it is neither authoritative nor binding. As a threshold matter, the 

Memorandum is not guidance for anyone outside DOJ because it is not directed to anyone outside the 

DOJ. As its title states, it is a “Memorandum for All Department Grant-Making Components.” This 

stands in stark contrast with memoranda that are, in fact, addressed to all Executive Departments and 

Agencies. See, e.g., RJN Exh. J (“Memorandum for Heads of All Federal Departments and Agencies” 

regarding Section 508 of the Rehabilitation Act). If the Memorandum were truly intended to “advise 

executive department heads” in a “formal, conclusive manner [about] the administration’s 

interpretation of Section 9(a) of the Executive Order” (Mot. at 7), it would fail at the outset by not 

being directed to these department heads. 

Even if the Memorandum were addressed more broadly, it would still be an implementation 

memorandum, not a formal opinion. It does little more than summarize the relevant terms of the 

Executive Order and direct the DOJ how to implement it. It offers no legal analysis or opinion 

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regarding, for example, the scope of 1373 or constitutional limits of the Executive Order. 

Accordingly, none of the authority Defendants cite is relevant to whether and to what extent 

the AG Memorandum binds other Executive Branch agencies and officials. Defendants rely on 28 

U.S.C. § 512, which permits a department head to request and obtain an AG opinion on a “question of 

law arising in the administration of his department,” but they do not suggest that the AG Memorandum 

issued in response to such a request. See Mot. at 7. Nor is the memo a controlling ruling about a 

question of immigration law, as described by the INA.6 See 8 U.S.C. § 1103(a)(1); see, e.g., Narenji v. 

Civiletti, 617 F.2d 745 (D.C. Cir. 1980). Defendants also cite 28 C.F.R. Section 0.5(c), which 

describes the AG’s role in providing “formal and informal” advice and opinions “on legal matters.” 

At best, these statutes and regulations raise the question of what it looks like when the Attorney 

General issues formal opinions and advice. That question is answered by 28 C.F.R. Section .25—not 

cited by Defendants—which delegates to the Office of Legal Counsel responsibility for the duties 

described in 28 U.S.C. § 512 and 28 C.F.R. Section 0.5(c).7 Indeed, the one case cited by Defendants 

to demonstrate that “the Attorney General’s legal opinions are treated as authoritative by the heads of 

executive agencies” involved a formal memorandum issued by the Office of Legal Counsel (“OLC”) 

concerning a matter of law, namely the “Constitutional Limitations on Federal Government 

Participation in Binding Arbitration.” Tenaska Washington Partners II, L.P. v. United States, 34 Fed. 

Cl. 434, 439 (1995). Yet despite Defendants’ insistence that the AG Memorandum is a “formal” and 

“conclusive” legal opinion, there is no indication here that it was prepared or rendered by OLC. 

Further, even if this were a formal opinion, that would not establish that it is binding or 

controlling on other executive branch agencies. Defendants rely on Randolph Moss’ article, Executive 

Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, but this article 

concludes that, “the question of whether (and in what sense) the opinions of the Attorney General, and, 

 6

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concerns the definition of a “child.” 

7

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“delegated to the Office of Legal Counsel responsibility for preparing the formal opinions of the 

Attorney General, rendering opinions and legal advice to the various Executive Branch agencies, 

assisting the Attorney General in the performance of his function as legal adviser to the President, and 

rendering opinions to the Attorney General and the heads of the various organizational units of the 

Department of Justice.” RJN Exh. K (citing 28 C.F.R. § 0.25). 

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more recently, the Office of Legal Counsel, are legally binding within the executive branch remains 

somewhat unsettled.” 52 Admin. L. Rev. 1303, 1318 (2000); see also Trevor W. Morrison, Book 

Review: Constitutional Alarmism, 124 Harv. L. Rev. 1688, 1711 n.90 (2011) (“[T]here has long been 

some uncertainty about the technical legal bindingness of Attorney General and OLC legal advice.”); 

Peter L. Strauss, Overseer, or “The Decider”? The President in Administrative Law, 75 Geo. Wash. L. 

Rev. 696, 739 (2007) (noting that “strikingly limited statutory or even executive authority supports the 

proposition that the Attorney General’s opinions on legal matters are entitled to controlling status”). 

Defendants do not even argue that the issuance of the AG Memorandum binds the Attorney 

General’s hands going forward. Nor could they. In the absence of a court order, nothing at all prevents 

the Attorney General from interpreting or applying the Executive Order more broadly in the future. 

And there is particular reason to be concerned about the possibility here. The current narrow 

construction appears to have been formulated in response to this lawsuit and the Court’s ruling. The 

Executive Order issued on January 25, 2017. But Defendants did not articulate any narrowing 

principles until the hearing on the preliminary injunction, and the Attorney General did not issue the 

AG Memorandum until the eve of the deadline to file a motion for reconsideration of the Court’s PI 

Order. In similar circumstances, courts have looked askance at changes in conduct adopted in response 

to litigation and judicial scrutiny. See Discontinued Official Action, 13C Fed. Prac. & Proc. Juris. § 

3533.7 (3d ed. 2017) (collecting cases). 

Moreover, the Attorney General has not disavowed the constitutionality of a broader 

construction or even repeated counsel’s prior assertion that the narrow construction is the only fair 

reading of the text. The AG Memorandum simply states how he has “determined Section 9(a) of the 

Executive Order . . . will be applied” (AG Memorandum at 1)—leaving him free to embrace a 

different construction in the future. And there is good reason to think that the Attorney General will 

later change course. Defendants’ current assertion that the Executive Order applies to only limited 

funds is inconsistent with their prior statements indicating that the Order was significantly more far 

reaching. See p. 3, supra; PI Order at 3 (noting that “if there was doubt about the [broad] scope of the 

Order, the President and the Attorney General have erased it with their public comments”). And on the 

same day that Attorney General Sessions stated in public remarks that failure to comply with detainer 

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requests violates federal law and will render jurisdictions ineligible for Department of Justice (“DOJ”) 

grants under Section 1373 (RJN Exh. C at 2-3), he also filed a brief in the Supreme Court of 

Massachusetts stating that detainers are “voluntary.” See Br. of the United States as Amicus Curiae at 

22, Mass. v. Lunn, No. SJC-12276, 2017 WL 1240651 at *22 (Mass. Mar. 27, 2017). As the Ninth 

Circuit recently held in Washington v. Trump, 847 F.3d 1151 (2017), such “shifting interpretations” of 

an Executive Order render it impossible to conclude that “the current interpretation . . . even if 

authoritative and binding, will persist past the immediate stage of these proceedings.” Id. at 1166.8

 

As discussed above, Defendants could have amended or reissued the Executive Order, but they 

did not. Defendants could have offered a formal Attorney General opinion through OLC or 

authoritative guidance in a Presidential memorandum, but they did not. If Defendants were truly 

willing to be bound by the AG Memorandum’s proposed implementation, they could have proposed 

incorporating these terms into a stipulated injunction, but they have not. The failure to take such 

actions leaves Defendants completely free to change their implementation at any time. 

3. The AG Memorandum Is Not A Constitutional Application Of The 

Executive Order That Defeats A Facial Challenge Under Salerno. 

Finally, Defendants rely on United States v. Salerno, 481 U.S. 739 (1987), to argue that the 

SAC “fails to establish that Section 9 of the Executive Order would be invalid under all 

circumstances,” Mot. at 14, but Defendants do not identify a single circumstance under which 

application of the Executive Order itself would be valid. Instead, they point to the AG Memorandum’s 

proposed application of Congressional funding statutes that exist independently of the Executive 

Order. See, e.g., Mot. at 15. The validity of these statutes is not at issue in this litigation, and 

application of these statutes is not an application of the Executive Order. 

 8

 Notably, President Trump’s recent tweets concerning the “travel ban” at issue in Washington 

v. Trump highlight the frequency with which Defendants change position with respect to Executive 

Orders. Although President Trump issued an amended order in March 2017, he declared in a June 5th 

Twitter post that “‘[t]he Justice Dept. should have stayed with the original Travel Ban, not the watered 

down, politically correct version they submitted to S.C.’” He continued by stating that “[t]he Justice 

Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court - 

& seek much tougher version!’” Gabrielle Levy, Trump Criticizes Justice Department Over His Travel 

Ban, US News & World Report (June 5, 2017), https://www.usnews.com/news/nationalnews/articles/2017-06-05/trump-criticizes-justice-department-over-his-travel-ban (quoting President 

Trump’s June 5, 2017 tweets”). 

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The Ninth Circuit and Supreme Court rejected an almost identical argument in Patel v. City of 

Los Angeles, 738 F.3d 1058, 1065 (9th Cir. 2013) (en banc), aff'd sub nom. City of Los Angeles, Calif. 

v. Patel, 135 S. Ct. 2443 (2015). There, Plaintiffs brought a Fourth Amendment facial challenge to a 

municipal law that provided that hotel guest records “shall be made available to any officer of the 

Los Angeles Police Department for inspection.” The City argued the law could be constitutionally 

applied if, for example, there were exigent circumstances, the hotel consented to the search, or the 

police acted pursuant to a valid warrant. Id. at 2450-51. The Court observed this “misunderstands how 

courts analyze facial challenges.” Id. at 2451. It explained that when assessing whether a law can be 

applied constitutionally the Court considers only applications where the challenged law itself 

authorizes or prohibits the conduct at issue. Actions authorized by other statutes are irrelevant to this 

analysis: 

[W]hen addressing a facial challenge to a statute authorizing warrantless 

searches, the proper focus of the constitutional inquiry is searches that the law 

actually authorizes, not those for which it is irrelevant. If exigency or a warrant 

justifies an officer’s search, the subject of the search must permit it to proceed 

irrespective of whether it is authorized by statute. Statutes authorizing 

warrantless searches also do no work where the subject of a search has 

consented. Accordingly, the constitutional “applications” that petitioner claims 

prevent facial relief here are irrelevant to our analysis because they do not 

involve actual applications of the statute. 

Id. 

Similarly, here, the existence of other laws that might allow Defendants to condition specific 

grants on compliance with Section 1373 does not mean that the Executive Order is immune from a 

facial challenge. Defendants can continue to do whatever other provisions of law allow them to do 

whether the Executive Order exists or not.9

 San Francisco is not challenging those applications of the 

law. San Francisco challenges only the Executive Order and the actions specifically authorized by that 

Order, which the Court can resolve on a facial challenge. 

4. The AG Memorandum Does Not Eliminate The Constitutional Violations 

Identified By The Executive Order. 

The AG Memorandum is, at its core, simply a statement by DOJ that it will not enforce the 

plain terms of the Executive Order. As discussed above, the Memorandum does not and cannot rewrite 

 9

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while they are enjoined from enforcing the Executive Order. See RJN Exh. L. 

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the Executive Order, which is what would be required to save it. Yet even if the Court did view the 

AG Memorandum as successfully editing—or, as Defendants put it, “elucidating”— the Executive 

Order, the Executive Order would still violate the Constitution. 

Despite Defendants’ representations to the contrary, the AG Memorandum elucidates less than 

it obscures. It does not describe how DHS will apply the Funding Restriction. It does not describe how 

DOJ will apply the Enforcement Provision. And it says nothing about detainers, maintaining the threat 

that jurisdictions must comply with them in order to avoid sanctions under the Executive Order. Thus, 

as described below, the Executive Order—even as “elucidated” by the AG Memorandum—would still 

violate constitutional separation of powers, the Spending Clause, and the Tenth Amendment. 

a. The Funding Restriction Still Violates The Separation Of Powers. 

This Court previously held that “[t]he [Executive] Order’s attempt to place new conditions on 

federal funds is an improper attempt to wield Congress’s exclusive spending power and is a violation 

of the Constitution’s separation of powers principles.” PI Order at 37. The AG Memorandum does not 

eliminate this concern. 

The SAC alleges that the Executive Order violates the separation of powers by imposing a new 

condition on jurisdictions’ eligibility to receive federal funds and creating a penalty for Section 1373 

violations, both without Congressional authorization. SAC ¶¶ 73-74. The Memorandum states that 

Section 9(a) will apply to DOJ and DHS grants, and it limits application to DOJ grants to those that 

currently have express Section 1373 certification conditions and “to future grants for which the 

Department is statutorily authorized to impose such a condition.” AG Memorandum at 2.10 The 

Memorandum does not, however, include any such limitation for DHS grants. See Mot. at 8 (lines 7-

10), 14 (lines 6-9), 15 (9-13). Thus, even as purportedly narrowed by the Memorandum, the Executive 

Order still directs DHS to withhold funds from sanctuary jurisdictions, regardless of whether Congress 

has authorized this as a funding condition. This attempt to impose a new funding condition violates the 

separation of powers principles identified in the Court’s Order. See PI Order at 35-37. 

// 

 10 San Francisco does not concede that DOJ is statutorily authorized to impose such a condition 

on any grants. 

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b. The Funding Restriction Still Violates The Spending Clause. 

The Court’s PI Order recognized that the Executive Order violates the Spending Clause in at 

least three ways. The Court found that the Executive Order imposes Section 1373 compliance (1) as a 

vague and retroactive funding condition, (2) on funds that have nothing to do with immigration 

enforcement, and (3) on such a large quantity of federal funds that it is unconstitutionally coercive. 

While the AG Memorandum purports to narrow the federal funds at risk, it does not diminish the first 

and second concerns. Nor does it address the allegations in the Complaint that the Funding Restriction 

induces state and local jurisdictions to violate the Fourth Amendment by requiring them to comply 

with detainers, which often lack probable cause. See SAC ¶¶ 48, 82. 

The SAC alleges that the Funding Restriction violates the Spending Clause by imposing a new 

funding condition, without stating that condition unambiguously and in advance so that a State could 

voluntarily and knowingly decide whether to accept the condition. See SAC ¶ 79.11 Like the Executive 

Order, however, the AG Memorandum’s “vague language does not make clear what conduct it 

proscribes,” leaving jurisdictions unable to “exercise their choice knowingly.” PI Order at 37-38. As 

the Court recognized, it is not clear what conduct will lead a jurisdiction to be deemed a “sanctuary 

jurisdiction” that “willfully refuses to comply with Section 1373.” Id. at 19-22, 41-43. The 

Memorandum offers scant guidance on this point, merely parroting the language of the Executive 

Order and stating that after consulting with the Secretary of Homeland Security, the Attorney General 

has “determined that the term ‘sanctuary jurisdiction’ will refer only to jurisdictions that ‘willfully 

refuse to comply with Section 1373.’” AG Memorandum at 2. As a threshold matter, jurisdictions 

cannot rely on the Attorney General’s definition because the Executive Order gives the Secretary—not 

the Attorney General—the authority and discretion to designate sanctuary jurisdictions. See Executive 

Order § 9(a). Further, the Memorandum nowhere indicates what Section 1373 requires, leaving in 

place the threat that jurisdictions will be deemed to willfully violate Section 1373 if they have a policy 

 11 Defendants misread the SAC in arguing that San Francisco did not allege that the Executive 

Order failed to state conditions “unambiguously.” Mot. at 17 fn. 4. San Francisco used that exact word 

in paragraph 79 of the SAC, and even if there were doubts about how to construe the allegations of 

that paragraph, the Court must resolve them in favor of San Francisco, the plaintiff. See Stapley v. 

Pestalozzi, 733 F.3d 804, 809 (9th Cir. 2013).

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of not complying with detainer requests. See PI Order at 19-22. Additionally, the AG Memorandum 

does not eliminate the concern that DHS will apply the Executive Order retroactively. The plain 

language of the Executive Order suggests it applies to past and future funds, and unlike DOJ, DHS has 

not offered to limit its application of the Executive Order in any way. See generally AG Memorandum 

at 1-2. 

 The Memorandum also does not limit application of the Executive Order to funds related to 

immigration enforcement, as required to satisfy the nexus requirement. See PI Order at 38. The SAC 

alleges that the Funding Restriction imposes funding conditions that are not germane to the purpose of 

the funds. SAC ¶ 80. For DHS funds, the AG Memorandum does not limit the scope of funds in any 

way, and for DOJ funds, the Memorandum offers only vague assurances that conditions must be 

authorized by Congress. Yet both DHS and DOJ make grants unrelated to immigration enforcement.12

Indeed, even some of the grants specifically identified by the AG Memorandum have nothing to do 

with immigration enforcement.13

Finally, the SAC alleges that the Funding Restriction induces state and local jurisdictions to 

violate the Fourth Amendment by requiring them to comply with detainers, which often lack probable 

cause. See SAC ¶¶ 48, 82. Yet the AG Memorandum offers no clarity on this point. 

c. The Funding Restriction Still Violates The Tenth Amendment. 

In the PI Order, the Court held that “[t]he Executive Order’s threat to pull all federal grants 

from jurisdictions that refuse to honor detainer requests or to bring ‘enforcement action’ against them 

 12 For instance, DHS, via the Federal Emergency Management Agency (“FEMA”), administers 

grants to prepare against and provide relief from natural disasters such as earthquakes and fires. See, 

e.g., RJN Exhs. M-O. In another example, DOJ’s Office on Violence Against Women (“OVW”) 

administers grants “designed to develop the nation’s capacity to reduce domestic violence, dating 

violence, sexual assault, and stalking by strengthening services to victims and holding offenders 

accountable.” See RJN Exh. P. 

13 See, e.g., Office of Justice Programs, Bureau of Justice Assistance, “Edward Byrne 

Memorial Justice Assistance Grant Program,” https://www.bja.gov/jag/ (“The JAG Program provides . 

. . critical funding necessary to support a range of program areas including law enforcement, 

prosecution, indigent defense, courts, crime prevention and education, corrections and community 

corrections, drug treatment and enforcement, planning, evaluation, technology improvement, and 

crime victim and witness initiatives.”) (RJN Exh. Q); Community Oriented Policing Services, 

“About,” https://cops.usdoj.gov/about (“The COPS Office awards grants to hire community policing 

professionals, develop and test innovative policing strategies, and provide training and technical 

assistance . . . .”) (RJN Exh. R). 

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violates the Tenth Amendment’s prohibitions against commandeering.” PI Order at 41. The AG 

Memorandum purports to limit the funds at risk, but otherwise leaves fully in place this threat to 

jurisdictions that do not comply with detainers. Because the AG Memorandum is silent with respect to 

detainer requests it does not—and indeed cannot—clarify that federal funds will not be withheld from 

jurisdictions that fail to comply with such requests. Accordingly, even as interpreted by the AG 

Memorandum, the Executive Order continues to violate the Tenth Amendment by coercing state and 

local jurisdictions to comply with detainer requests. 

IV. Count Three States A Viable Claim That The Enforcement Directive Is Unconstitutional. 

Defendants’ arguments regarding the enforcement provision are both addressed above. First, 

the court has jurisdiction to hear San Francisco’s claims as a pre-enforcement challenge, and 

Defendants’ 12(b)(1) argument to the contrary fails. See Section I(A), supra. Second, the Enforcement 

Provision can be challenged even though it is an “internal directive,” and Defendants’ 12(b)(6) 

argument to the contrary fails. See Section III(A), supra. Defendants offer no substantive challenge to 

this Count, and have waived any other arguments to dismiss Count Three. 

CONCLUSION 

For the foregoing reasons, Defendants’ Motion to Dismiss should be denied. 

Dated: June 20, 2017 DENNIS J. HERRERA 

City Attorney 

RONALD FLYNN 

JESSE C. SMITH 

YVONNE R. MERÉ 

CHRISTINE VAN AKEN 

TARA STEELEY 

MOLLIE M. LEE 

SARA J. EISENBERG 

MATTHEW S. LEE 

NEHA GUPTA

Deputy City Attorneys 

By: /s/ Mollie M. Lee 

MOLLIE M. LEE 

 Deputy City Attorney 

Attorneys for Plaintiff 

CITY AND COUNTY OF SAN FRANCISCO

Case 3:17-cv-00485-WHO Document 115 Filed 06/20/17 Page 33 of 33