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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

AILEEN M. McGRATH, State Bar #280846

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, 

ELAINE C. DUKE, Acting Secretary of the 

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 NOTICE OF MOTION AND 

MOTION FOR SUMMARY JUDGMENT, OR 

IN THE ALTERNATIVE, PARTIAL 

SUMMARY JUDGMENT

Date: October 4, 2017

Time: 2:00 p.m.

Judge: Honorable William H. Orrick

Department: Courtroom 2, 17th Floor

Date Filed: January 31, 2017

Trial Date: April 23, 2018

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TABLE OF CONTENTS

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

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

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

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

LEGAL STANDARD......................................................................................................................2

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

I. The Executive Order And Section 1373 ..................................................................3

II. San Francisco’s Irreparable Injury...........................................................................5

III. Procedural History ...................................................................................................7

IV. Continued Threats....................................................................................................8

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

I. San Francisco Complies With Section 1373............................................................8

A. Section 1373 Imposes Narrow Obligations About Citizenship Or 

Immigration Status Information...................................................................9

B. San Francisco’s Laws Comply with Section 1373. ...................................10

II. The Executive Order Is Unconstitutional. .............................................................12

A. The Executive Order Violates Separation Of Powers Principles...............12

B. The Executive Order Violates The Spending Clause. ...............................13

1. The Funding Restriction Violates The Unambiguousness 

Requirement...................................................................................13

2. The Funding Restriction Is Not Reasonably Related To 

Congress’s Purpose In Spending The Funds. ................................14

3. The Funding Restriction Is Unduly Coercive. ...............................16

4. The Funding Restriction Seeks To Compel The States To Engage 

In Unconstitutional Conduct..........................................................17

5. Congress Has Not Determined That Defunding Sanctuary 

Jurisdictions Promotes The General Welfare. ...............................17

C. The Executive Order Violates The Tenth Amendment. ............................18

D. The AG Memorandum Does Not Narrow the Executive Order. ...............20

1. The AG Memorandum Is Not Binding Authority About The 

Executive Order. ............................................................................20

2. Even If The AG Memorandum Were Binding, It Would Not 

Alter The Plain Language Of The Executive Order Or Eliminate 

Its Coercive Force..........................................................................22

III. San Francisco Is Entitled To Declaratory And Injunctive Relief. .........................23

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A. Defendants Have Created An “Actual Controversy” That Entitles San 

Francisco To Declaratory Relief On All Counts........................................23

B. Defendants’ Ongoing Threats, Together With The Balance Of Equities 

And Public Interest, Entitle San Francisco To A Permanent Injunction 

Of The Executive Order.............................................................................23

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

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TABLE OF AUTHORITIES

Cases

Aetna Life Ins. Co. v. Haworth

300 U.S. 227 (1937)...................................................................................................................23

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

458 U.S. 592 (1982)...................................................................................................................20

Celotex Corp. v. Catrett

477 U.S. 317 (1986).....................................................................................................................3

Chevron, U.S.A., v. Natural Res. Def. Council, Inc.

467 U.S. 837 (1984).....................................................................................................................9

City of Lakewood v. Plain Dealer Publ’g Co.

486 U.S. 750 (1988)...................................................................................................................22

Clinton v. City of New York

524 U.S. 417 (1998)...................................................................................................................12

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

657 F.3d 936 (9th Cir. 2011) .....................................................................................................22

Delbon Radiology v. Turlock Diagnostic Ctr.

839 F. Supp. 1388 (E.D. Cal. 1993) ............................................................................................3

Doe v. Harris

772 F.3d 563 (9th Cir. 2014) .....................................................................................................22

eBay Inc. v. MercExchange, L.L.C.

547 U.S. 388 (2006)...................................................................................................................24

Env’tl Def. Ctr., Inc. v. U.S. E.P.A.

344 F.3d 832 (9th Cir. 2003) .....................................................................................................18

Galarza v. Szalczyk

745 F.3d 634 (3d Cir. 2014) ......................................................................................................19

Gregory v. Ashcroft

501 U.S. 452 (1991)...................................................................................................................10

Knox v. Serv. Emps. Int'l Union

567 U.S. 298 (2012)...................................................................................................................22

LaCroix v. Junior

Case No. F17-376, 2017 WL 837477 (Fla Cir. Ct. Mar. 3, 2017).......................................18, 19

Lunn v. Commonwealth

78 N.E.3d 1143 (Mass. 2017)......................................................................................................4

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Maryland Casualty Co. v. Pacific Coal & Oil Co.

312 U.S. 270 (1941)...................................................................................................................23

Massachusetts v. U.S.

435 U.S. 444 (1978)...................................................................................................................14

Mayweathers v. Newland

314 F.3d 1062 (9th Cir. 2002) ...................................................................................................15

Melendres v. Arpaio

695 F.3d 990 (9th Cir. 2012) .....................................................................................................25

Miranda–Olivares v. Clackamas Cty.

No. 3:12-cv-02317-ST, 2014 WL 1414305 (D. Or. Apr. 11, 2014)....................................17, 19

Monsanto Co. v. Geertson Seed Farms

561 U.S. 139 (2010)...................................................................................................................24

Morales v. Chadbourne

793 F.3d 208 (1st Cir. 2015)......................................................................................................17

New York v. U.S.

505 U.S. 144 (1992)...........................................................................................14, 15, 18, 19, 20

Pennhurst State Sch. & Hospital v. Halderman

451 U.S. 1 (1981).................................................................................................................10, 14

Printz v. United States

521 U.S. 898 (1997).......................................................................................................18, 19, 20

Reno v. Condon

528 U.S. 141 (2000)...................................................................................................................19

Robinson v. Shell Oil Co.

519 U.S. 337 (1997).....................................................................................................................9

Rosenbaum v. Washoe County

663 F.3d 1071 (9th Cir. 2011) ...................................................................................................17

Rust v. Sullivan

500 U.S. 173 (1991)...................................................................................................................10

South Dakota v. Dole

483 U.S. 203 (1987).................................................................................................12, 13, 14, 17

State Dep’t of Pub. Health v. Superior Court

60 Cal. 4th 940 (2015)...............................................................................................................11

Steinle v. City and Cty. of San Francisco

230 F. Supp. 3d 994 (N.D. Cal. 2017).........................................................................................9

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Sturgeon v. Bratton

174 Cal. App. 4th 1407 (2009) ..................................................................................................10

Train v. City of New York

420 U.S. 35 (1975).....................................................................................................................12

Trujillo-Santoyo v. United States

No. 5:16-CV-855-OLG, 2017 WL 2896021 (W.D. Tex. June 5, 2017)....................................17

United States v. North Carolina

192 F. Supp. 3d 620 (M.D.N.C. 2016) ......................................................................................24

United States v. Nosal

676 F.3d 854 (9th Cir. 2012) .....................................................................................................22

United States v. Stevens

559 U.S. 460 (2010)..................................................................................................................22

Western Watersheds Project v. Abbey

719 F.3d 1035 (9th Cir. 2013) ...................................................................................................21

Whitman v. Am. Trucking Ass’ns

531 U.S. 457 (2001).............................................................................................................22, 23

Winter v. Natural Res. Def. Council, Inc.

555 U.S. 7 (2008).......................................................................................................................24

Yates v. United States

135 S. Ct. 1074 (2015)...............................................................................................................11

Youngstown Sheet & Tube Co. v. Sawyer

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

Zivotofsky ex rel. Zivotofsky v. Kerry

135 S. Ct. 2076 (2015)..............................................................................................................13

Federal Statutes

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

28 U.S.C. § 512..............................................................................................................................21

28 U.S.C. § 2201............................................................................................................................23

42 U.S.C. § 10602..........................................................................................................................15

42 U.S.C. § 10603..........................................................................................................................15

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

Federal Rules

Fed. R. Civ. P. 25.............................................................................................................................2

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Fed. R. Civ. P. 56.............................................................................................................................2

Federal Regulations

28 C.F.R. § .25...............................................................................................................................21

8 C.F.R. § 287.7.........................................................................................................................4, 19

Constitutional Provisions

U.S. Const. art. I, § 8, cl. 1.............................................................................................................12

State Statutes

Cal. Civ. Code § 1798.92....................................................................................................................... 11

Cal. Civ. Code § 56.05........................................................................................................................... 11

San Francisco Administrative Code

S.F. Admin. Code § 12H........................................................................................................ 5, 10, 11, 12

S.F. Admin Code § 12H.2................................................................................................................ 10, 11

S.F. Admin. Code § 12I............................................................................................................... 5, 10, 12

S.F. Admin. Code § 12I.3 ............................................................................................................ 5, 10, 12

Other References

Randolph Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal 

Counsel

52 Admin. L. Rev. 1303 (2000).................................................................................................21

Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong. (2016) (as rejected by Senate, Jul. 6, 

2016)..........................................................................................................................................13

Stop Sanctuary Policies and Protect Americans Act, S. 2146, 114th Cong. (2015) (as rejected by 

Senate, Oct. 20, 2015)................................................................................................................13

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NOTICE OF MOTION AND MOTION

PLEASE TAKE NOTICE that on Wednesday, October 4, 2017, at 2:00 p.m., or as soon 

thereafter as the matter can be heard, in Courtroom 2 on the 17th Floor of the United States District 

Court for the Northern District of California, in San Francisco, California, the Honorable William H. 

Orrick presiding, Plaintiff City and County of San Francisco will move for summary judgment or, in 

the alternative, partial summary judgment. San Francisco bases this motion on this Notice of Motion 

and Motion; the accompanying memorandum of points and authorities; the declarations and request 

for judicial notice, and the exhibits thereto; the 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.

San Francisco respectfully requests that the Court enter judgment in its favor as to each of its 

claims for relief on the grounds that the undisputed evidence shows that: (1) San Francisco’s laws 

comply with 8 U.S.C. § 1373, (2) the funding restriction in Executive Order 13,768 violates the United 

States Constitution’s separation of powers principles, Spending Clause, and Tenth Amendment, and 

(3) the enforcement directive in Executive Order 13,768 violates the Tenth Amendment to the United 

States Constitution. In the alternative, San Francisco respectfully requests that the Court enter 

judgment as to those claims that the Court sees as fit for resolution at this time.

MEMORANDUM OF POINTS AND AUTHORITIES

INTRODUCTION

San Francisco’s lawmakers have determined that San Francisco is safer, healthier, and stronger 

when all of its residents—including undocumented immigrants—can use city services like public 

health programs and schools, and can report crimes and aid the police as witnesses, without fearing 

deportation. Accordingly, San Francisco’s sanctuary laws limit its employees’ assistance with federal 

immigration enforcement, leaving it to the federal government to implement its immigration laws.

This local policy choice offends President Trump and his Administration, which has 

persistently and perniciously sought to coerce San Francisco and other jurisdictions into abandoning 

their sanctuary laws. On his fifth day in office President Trump issued an Executive Order that directs 

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withholding federal funds from sanctuary cities and bringing enforcement actions against them, 

specifically targeting cities that the federal government determines do not comply with 8 U.S.C. 

§ 1373 (“Section 1373”). And the threats have not abated. Throughout this litigation President Trump 

and his Administration have continued to threaten action under the Executive Order to coerce

compliance with their demands—notwithstanding the Court’s preliminary injunction order and an 

Attorney General memorandum purporting to limit implementation of the Executive Order. 

The Trump Administration and Defendants have also tried to coerce local jurisdictions to 

enforce federal immigration policy by asserting an overly broad interpretation of Section 1373 that is 

unmoored from its text. This limited statute concerns only how local jurisdictions may regulate 

communications with ICE about individuals’ immigration status, and says nothing at all about other 

kinds of local assistance with immigration enforcement. While the Court has not yet had the 

opportunity to consider San Francisco’s claim that its laws comport with Section 1373, a definitive 

interpretation of Section 1373 as applied to San Francisco’s sanctuary laws is an essential bulwark 

against the Administration’s continued coercive efforts. So long as President Trump and his 

Administration perpetuate uncertainty about what Section 1373 requires—by, for example, suggesting 

that jurisdictions violate Section 1373 by not complying with immigration detainers or otherwise

actively assisting ICE agents—then they can use threats to try to bully jurisdictions into submission.

To put an end to these unconstitutional threats and protect its legitimate local policy decisions, 

San Francisco moves for summary judgment and seeks declaratory relief and a permanent injunction 

against all Defendants.

1

LEGAL STANDARD

Summary judgment is proper “if the pleadings, the discovery and disclosure materials on file 

and any affidavits show that there is no genuine issue as to any material fact and that the moving party 

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). The purpose of summary judgment 

“is to isolate and dispose of factually unsupported claims or defenses.” Celotex Corp. v. Catrett, 477 

 1 Elaine C. Duke became Acting Secretary of the Department of Homeland Security on July 

31, 2017, thereby replacing former Secretary of the Department of Homeland Security John F. Kelly 

as a Defendant, pursuant to Fed. R. Civ. P. 25(d).

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U.S. 317, 323–24 (1986). Here, there are no disputed facts related to San Francisco’s claims, and those 

claims present pure questions of law that are appropriate and ripe for the entry of judgment. See

Delbon Radiology v. Turlock Diagnostic Ctr., 839 F. Supp. 1388, 1391 (E.D. Cal. 1993).

BACKGROUND

I. The Executive Order And Section 1373

On January 25, 2017, President Trump issued Executive Order 13,768, titled “Enhancing 

Public Safety in the Interior of the United States.” See Request for Judicial Notice in Support of Mot. 

for Summary Judgment, or in the Alternative, Partial Summary Judgment (“RJN”) Exh. A (“Executive 

Order”). The Executive Order carried out President Trump’s longstanding vow to put an “end” to 

sanctuary cities by ensuring that “[c]ities that refuse to cooperate with federal authorities will not 

receive taxpayer dollars.” RJN Exh. B at 3; see also RJN Exh. C at 2. The Executive Order states that 

“[s]anctuary jurisdictions across the United States willfully violate Federal law,” Executive Order § 1, 

and announces an Executive Branch policy to “[e]nsure that jurisdictions that fail to comply with 

applicable Federal law do not receive Federal funds, except as mandated by law,” id. § 2. To that end, 

Section 9(a) of the Executive Order contains a Funding Restriction stating:

[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.

Section 9(a) also contains an Enforcement Directive instructing that “[t]he Attorney General shall take 

appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a 

statute, policy, or practice that prevents or hinders the enforcement of Federal law.”

President Trump tethered his Executive Order to Section 1373, which 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,” or from “maintaining such information.” In 

the Executive Order and elsewhere, Defendants have indicated an expansive view of Section 1373. 

Section 9(a) of the Executive Order defines “sanctuary jurisdictions” as those that “willfully refuse to 

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comply with 8 U.S.C. 1373,” and Section 9(b) equates sanctuary jurisdictions with those listed on

Immigration and Customs Enforcement (“ICE”) Declined Detainer Outcome Reports.2 The White 

House has characterized sanctuary cities as violating Section 1373 and criticized “[s]anctuary cities, 

like San Francisco” for “block[ing] their jails from turning over criminal aliens to Federal authorities 

for deportation.” RJN Exh. E at 1. The Department of Justice specifically linked Section 1373 to ICE 

detainers in a 2016 Office of the Inspector General memorandum that analyzed ten jurisdictions’

compliance with Section 1373 and stated that detainer 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.” RJN Exh. 

F at 8. And in recent congressional hearings, ICE Director Thomas Homan testified that over 100 

additional jurisdictions violated Section 1373 under the Executive Order because they “have some sort 

of policy where they don’t honor detainers or allow us access to the jails.”3 RJN Exh. G at 34.

The Executive Order threatens enforcement action and massive funding cuts for jurisdictions 

that do not comply with Section 1373. The plain language of the Executive Order, as well as 

Defendants’ own statements, indicate that the Funding Restriction applies to all current and future 

federal funds, or at least to all current and future federal grants. See Executive Order § 2(c) (referring 

to “Federal funds”); id. § 9(c) (referring to “all Federal grant money that currently is received by any 

sanctuary jurisdiction”). The press statement announcing the Executive Order declared: “We are going 

to strip federal grant money from the sanctuary states and cities that harbor illegal immigrants. The 

 2 ICE detainers are 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. ICE’s Declined 

Detainer Outcome Report lists jurisdictions that “Restrict Cooperation with ICE,” RJN Exh. D at 10, 

and identifies detention centers with the “highest volume of detainers issued” that “do not comply with 

detainers on a routine basis,” id. at 2. 

3 This contrasts with Defendants’ representation in certain court papers, where they appear to 

concede that “8 U.S.C. § 1373 relates only to the sharing of information,” Reply ISO Defs’ Motion to 

Dismiss at p. 8 (internal punctuation omitted), and “that compliance by State authorities with 

immigration detainers is voluntary, not mandatory,” Lunn v. Commonwealth, 78 N.E.3d 1143, 1152 

(Mass. 2017). These shifting interpretations in court and outside court—coupled with Defendants’ 

steadfast refusal to admit that San Francisco complies with Section 1373—leave San Francisco in need 

of a court order clarifying the scope of Section 1373. 

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American people are no longer going to have to be forced to subsidize this disregard for our laws.”

RJN ¶ 8. President Trump described “defunding” as a “weapon” that could deprive sanctuary cities of 

“the money they need to properly operate as a city or a state.” RJN Exh. H at 4. And Attorney General 

Sessions stated that the Department of Justice would “take all lawful steps to claw-back any funds 

awarded to a jurisdiction that willfully violates Section 1373.” RJN Exh. I at 2.

4

Through these threats, President Trump used the Executive Order to coerce some jurisdictions 

into abandoning their sanctuary policies and complying with detainer requests. For instance, 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, changing its previous policy of not complying with detainers 

unless reimbursed by the federal government. See RJN Exh. J. The White House responded by 

praising Miami-Dade County for “understanding the importance of this order,” RJN Exh. K at 4, and 

the Attorney General held a press conference there announcing “that Miami-Dade is now in full 

compliance and eligible for federal law enforcement grant dollars.” RJN Exh. L at 1.

II. San Francisco’s Irreparable Injury

San Francisco has had sanctuary laws in place for nearly three decades. Those laws were most 

recently amended in July 2016, and are currently codified in two chapters of the Administrative Code: 

Chapters 12H and 12I. Chapter 12H prohibits San Francisco departments, agencies, officers, and 

employees from using San Francisco 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. Chapter 12I 

prohibits San Francisco law enforcement officials from detaining an individual, otherwise eligible for 

release from custody, solely on the basis of a civil detainer request. S.F. Admin. Code § 12I.3. It 

further provides that law enforcement officers shall not provide ICE with advance notice that an 

individual will be released from custody, unless the individual meets certain criteria. Id.

 4 As the Court is aware, Defendants offered a narrower construction of the Executive Order in 

an Attorney General Memorandum issued during the course of this litigation. RJN Exh. S. As 

discussed further in Section III, infra, this construction should not be credited. 

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San Francisco relies on federal funds for critical programs and services. In the 2016–17 fiscal 

year, San Francisco’s annual operating budget included $1.2 billion in federal funds, or 13 percent of 

the total budget. See Declaration of Ben Rosenfield in Support of CCSF’s Mot. for Summary 

Judgment (“Rosenfield Decl.”) ¶ 10. San Francisco also receives approximately $800 million in 

federal multi-year grants that are not reflected in the annual budget. Id. ¶ 13. In total, San Francisco 

expects to receive approximately one billion dollars in federal grants ($200 million in annual federal 

grants plus $800 million in multi-year federal grants) and another one billion dollars in annual

entitlement payments from the federal government. Rosenfield Decl. ¶ 51. San Francisco uses these 

federal funds to pay for core services including medical care and social services for its most vulnerable 

residents, id. ¶ 11; public infrastructure projects such as bridges, roads, and public transportation, id. 

¶ 13; and public safety programs, id. ¶ 33–35. Losing substantial federal funding would have 

catastrophic effects on critical programs: Federal funding accounts for 100 percent of the City’s 

Medicare funding, id. ¶ 42; almost 40 percent of the budget for the City’s Department of Public 

Health, id. ¶ 26; approximately 33 percent of the budget for San Francisco’s Human Services Agency,

id. ¶ 20; and nearly 30 percent of the budget for San Francisco’s Department of Emergency 

Management, id. ¶ 31. The Executive Order thus creates extreme pressure for San Francisco to change 

its laws in order to remain eligible for federal funds. 

Additionally, as a recipient of certain federal grants, San Francisco must certify under penalty 

of perjury that it complies with Section 1373.

5 San Francisco has taken steps to ensure compliance 

with Section 1373, and believes that it complies, but Defendants’ shifting interpretations of Section 

1373 give San Francisco pause in making this certification. The Executive Order defines sanctuary 

jurisdictions as those that willfully violate Section 1373, and Defendants “hold up San Francisco as an 

exemplar of a sanctuary jurisdiction.” Order Granting Motion to Enjoin Section 9(a) of Executive 

 5 For instance, San Francisco receives funding under the Edward Byrne Memorial Justice 

Assistance Grant Program (“JAG”). Rosenfield Decl. ¶ 33. JAG grant recipients are required to certify 

compliance with applicable federal statutes, see 42 U.S.C. § 3752(5)(D), and in 2016, DOJ issued 

guidance stating that Section 1373 is an applicable federal law. RJN Exh. M and N. In 2017, DOJ 

announced a specific 1373 compliance condition, with detailed requirements and an additional 

certification of compliance with Section 1373 that must be signed under penalty of perjury by a 

jurisdiction’s chief legal officer (e.g., the Attorney General or City Attorney). RJN Exh. O and P.

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Order 13768 (Dkt. No. 82) (“PI Order”) at 26, see generally id. at 22-27. The Attorney General has 

specifically criticized San Francisco for its “sanctuary policies,” suggested that these policies “violate 

federal law,” and argued that “this disregard for the law must end.” RJN Exh. I at 2. Representative 

John Culberson—the self-proclaimed “CFO of the Department of Justice,” RJN Exh. Q at 6, who 

chairs the House of Representatives subcommittee that controls DOJ spending—classifies San 

Francisco as a sanctuary city and claims that sanctuary cities “violate a federal law enacted in 1996 [8 

U.S.C. § 1373] to ensure total cooperation between local, state and federal agencies.” RJN Exh. R at 5.

The Department of Justice itself issued a memorandum that identifies San Francisco as having laws 

that could run afoul of Section 1373. RJN Exh. F at 6 n.7. 

III. Procedural History

The Executive Order poses a grave threat to San Francisco, whose sanctuary city policies 

comply with Section 1373, but not with Defendants’ strained interpretation of this section. In response 

to this threat, San Francisco filed suit on January 31, 2017. San Francisco’s Second Amended 

Complaint (“SAC”) raises three claims. First, the SAC seeks declaratory relief that San Francisco’s 

sanctuary laws comply with Section 1373. SAC ¶¶ 144-48. Second, the SAC claims that the Executive 

Order’s Funding Restriction violates the U.S. Constitution’s Tenth Amendment, Spending Clause, and 

separation of powers structure. SAC ¶¶ 149-53. Third, the SAC alleges that the Executive Order’s 

Enforcement Directive violates the Tenth Amendment. SAC ¶¶ 154-57.

Shortly after filing its complaint, San Francisco moved for a preliminary injunction, which the 

Court granted on April 25, 2017. See PI Order (Dkt. 82). One month later, the Attorney General

published a two-page Memorandum to Grant-Making Components of the Department of Justice (“AG 

Memorandum”), which purported to narrow application of the Executive Order. See RJN Exh. S. 

Defendants moved for reconsideration of the PI Order and for dismissal of the case based in large part 

on the AG Memorandum. See Dkt. Nos. 107, 111. The Court rejected this effort and denied both 

motions. See Order Denying the Government’s Motions for Reconsideration and to Dismiss with 

Regards to the City and County of San Francisco and County of Santa Clara (Dkt. No. 146) (“Recon.

Order”). While Defendants characterized the AG Memorandum as “binding” and “authoritative,” 

Defs’ Motion to Dismiss (Dkt. No. 111) at 2, this Court found it to be nothing of the sort. The Court 

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“conclude[d] that the AG Memorandum is functionally an ‘illusory promise’ to enforce the Executive 

Order narrowly and, as such, does not resolve the constitutional claims that the Counties have brought 

based on the Order’s language.” Recon. Order at 13-14. Ultimately, as the Court recognized, the AG 

Memorandum leaves Defendants perfectly free to continue to implement the Executive Order 

according to its plain language, and to strip federal funding from jurisdictions like San Francisco. 

IV. Continued Threats

Indeed, the Administration’s recent statements confirm that it will continue to threaten San 

Francisco and other sanctuary cities with exactly these consequences. On June 28, 2017, President 

Trump reiterated his plan to “end[] the practice of sanctuary cities that refuse to turn over criminal 

illegal aliens to Federal authorities.” RJN Exh. B at 2. On July 12, 2017, the Attorney General once 

again criticized San Francisco for having sanctuary city policies, which he described as a “refus[al] to 

cooperate with federal immigration authorities regarding illegal aliens who commit crimes.” RJN Exh. 

T at 2. And on August 16, 2017, the White House issued a “Fact Sheet” titled “Donald J. Trump and 

Attorney General Sessions Stand Up Against Lawless Sanctuary Cities.” RJN Exh. U. The Fact Sheet 

characterizes sanctuary cities as “lawless” and states that “[o]ne of President Trump’s first Executive 

Orders informed sanctuary cities that failure to fully abide by Federal immigration laws would 

jeopardize their access to certain Federal grant money.” Id. at 2. The “Fact Sheet” fails to mention that 

this part of the Executive Order is enjoined, and instead suggests that the Attorney General is 

enforcing the Executive Order, with a sub-bullet point stating that “[l]ast month, DOJ laid out new 

guidelines requiring jurisdictions to cooperate with Federal immigration authorities in order to receive 

Edward Byrne Memorial Justice Assistance Grants, a leading source of Federal law enforcement 

funding.” Id. These statements maintain the coercive threat of the Executive Order—and Defendants’ 

broad interpretation of Section 1373—notwithstanding the narrower interpretations Defendants have at 

times expressed in court and in the AG Memorandum.

ARGUMENT 

I. San Francisco Complies With Section 1373.

Defendants seek to compel assistance with federal immigration enforcement by imposing

Section 1373 compliance conditions on an increasing number of federal grants, while maintaining a 

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cloud of uncertainty about Section 1373’s scope. This puts San Francisco and other jurisdictions in an 

untenable position. Defendants concede that whether San Francisco complies with Section 1373 is a 

purely legal question, but steadfastly refuse to admit what is clear from the text of San Francisco’s 

sanctuary city laws: these laws comply with Section 1373. Defs. Answer (Dkt. No. 152) ¶ 38. 

A. Section 1373 Imposes Narrow Obligations About Citizenship Or Immigration 

Status Information.

The plain text of Section 1373 imposes specific and narrow obligations. It requires that San 

Francisco “not prohibit, or in any way restrict” any of its departments or officials from “sending to, or 

receiving from, the Immigration and Naturalization Service information regarding the citizenship or 

immigration status, lawful or unlawful, of any individual,” 8 U.S.C. § 1373(a), “maintaining such 

information,” id. § 1373(b), or “exchanging such information with any other Federal, State, or local 

government entity,” id. Because San Francisco’s laws create no such prohibitions or restrictions, they 

are consistent with Section 1373.

By its plain terms, Section 1373 does not address any information other than citizenship or 

immigration status, nor does it impose any other obligations. It does not require state or local 

governments to collect citizenship or immigration status information. RJN Exh. M at 1. It does not 

require them to take any action when they receive such information. Id. And it does not require them 

to comply with detainer requests. See Reply ISO Defs’ Motion to Dismiss at 7-8.

Because Section 1373’s text shows that it addresses only prohibitions or restrictions on

exchanging citizenship or immigration status information, or maintaining this information, this Court 

need look no further in interpreting Section 1373. Chevron, U.S.A., v. Natural Res. Def. Council, Inc.,

467 U.S. 837, 842-44 (1984); see also Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997) (“Our 

inquiry must cease if the statutory language is unambiguous . . . .”). Indeed, other cases construing 

Section 1373 have found that its plain text cabins its reach. For instance, Steinle v. City and County of 

San Francisco, 230 F. Supp. 3d 994 (N.D. Cal. 2017), held that “no plausible reading of ‘information 

regarding . . . citizenship or immigration status’ encompasses the release date of an undocumented 

inmate.” Id. at 1015. Further, if Congress “had intended to bar all restriction of communication 

between local law enforcement and federal immigration authorities . . . it could have included such 

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language in the statute.” Id. Similarly, the California Court of Appeal held that Section 1373 governs 

“only communications with ICE.” Sturgeon v. Bratton, 174 Cal. App. 4th 1407, 1421 (2009). The 

court rejected the argument that Section 1373 imposes additional prohibitions, namely, “restrictions on 

local entities obtaining . . . [immigration] information.” Id. (emphasis in original).

Although Section 1373’s statutory language contains no ambiguity, Defendants have at times 

advanced a broader construction that would require local jurisdictions to respond to ICE detainer or 

notification requests. See pp. 3–4, supra. But to read Section 1373 so broadly would raise serious 

constitutional concerns. As this Court has observed, treating detainer requests as mandatory “violates 

the Tenth Amendment’s provisions against conscription.” PI Order at 40. And as described more fully 

below, the Tenth Amendment precludes the federal government from compelling state and local 

government agencies to enforce federal law. See pp. 18–20, infra. Accordingly, even if Section 1373 

were ambiguous as to whether it imposes affirmative obligations on localities—and it is not—the 

established principle of constitutional avoidance would require that Section 1373 be construed 

narrowly, in accordance with its plain text, to avoid these concerns. See Rust v. Sullivan, 500 U.S. 173, 

191 (1991). Because a broader interpretation would raise serious constitutional questions, at a 

minimum, the constitutional avoidance doctrine must apply. Id.; see also Gregory v. Ashcroft, 501 

U.S. 452, 469 (1991) (declining to interpret statute in a way that might “intrude[] on traditional state 

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

B. San Francisco’s Laws Comply with Section 1373.

The plain text of San Francisco’s sanctuary laws imposes other restrictions, but allows the 

communications that Section 1373 addresses. 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 

information.” S.F. Admin. Code § 12H.2. Chapter 12I prohibits responding to civil immigration 

detainer requests from federal immigration officials and provides that San Francisco employees may 

only respond to requests for notification of release status in certain circumstances. Id. § 12I.3.

These terms comply with Section 1373 because they do not prohibit, or in any way restrict, San 

Francisco employees from communicating information related to citizenship or immigration status. 

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Nor do they prohibit maintaining this information. Rather, Chapter 12H restricts San Francisco 

employees from “disseminat[ing] information regarding release status of any individual or any other 

such personal information” unless required to do so by federal law. S.F. Admin. Code § 12H.2

(emphases added).

6 Neither “release status” nor “personal information” is information about 

“immigration” or “citizenship status” under Section 1373. “Release status” refers to whether an 

individual is in law enforcement custody—a status unrelated to immigration status. And “personal 

information” means “any confidential, identifying information about an individual, including, but not 

limited to, home or work contact information, and family emergency contact information.” This does 

not include more general descriptors such as citizenship or immigration status, which cannot be used 

to identify or contact an individual. See Yates v. United States, 135 S. Ct. 1074, 1085 (2015) (relying 

“on the principle of noscitur a sociis—a word is known by the company it keeps”).

7

To the extent there could be any ambiguity about the meaning of “release status or any other 

such personal information,” the legislative history of Chapter 12H confirms that this phrase does not 

mean an individual’s immigration status. Chapter 12H previously prohibited sharing information about 

“immigration status,” but that prohibition was amended in July 2016 to, inter alia, ensure compliance 

with Section 1373. The 2016 amendments replaced “immigration status” with “release status and other 

such personal information,” and the current text allows employees to share information about an 

individual’s citizenship or immigration status. Indeed, San Francisco explicitly advised all employees

about their ability to share information about an individual’s citizenship or immigration status 

information in a January 2017 memorandum from the Director of the San Francisco Department of 

 6 Chapter 12H’s general prohibition 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., State Dep’t of Pub. Health v. Superior 

Court, 60 Cal. 4th 940, 960 (2015). And even if the language were ambiguous, the Board of 

Supervisors’ 2016 amendments, discussed below, show a clear intent to allow the communications 

Section 1373 requires. See pp. 11–12, infra.

7 Similar definitions of “personal” and “confidential, identifying information” in other laws 

confirm that these terms do not include an individual’s citizenship or immigration status. For instance, 

California law uses these terms to refer to information that should 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).

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Human Resources. RJN Exh. V. The memorandum summarized the requirements of Chapters 12H and 

12I but also reminded San Francisco employees that “federal law states 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, the Immigration and Naturalization Service information regarding the citizenship or 

immigration status, lawful or unlawful, of any individual (8 U.S.C. § 1373).” Id. at 1.

Chapter 12I, similarly, does not restrict or prohibit sharing immigration-related information 

with the federal government. Rather, Chapter 12I is directed to ICE detainer and notification requests, 

and limits the circumstances in which San Francisco officials may respond to these requests. S.F. 

Admin. Code § 12I.3. This Chapter reflects San Francisco’s considered judgment that these requests 

threaten community stability and strain San Francisco’s resources. See pp. 19–20, infra. But the 

provision does not prohibit any San Francisco officer or employee from communicating an 

individual’s immigration or citizenship status. And under the only permissible reading of Section 

1373, see p. 10, supra, San Francisco’s restrictions on carrying out detainer requests do not “in any 

way restrict” the sharing of immigration-related information with ICE.

II. The Executive Order Is Unconstitutional.

A. The Executive Order Violates Separation Of Powers Principles.

By declaring “sanctuary jurisdictions” ineligible to receive federal grants, the Executive Order 

violates fundamental separation of powers principles. The Constitution grants Congress—not the 

President—the federal spending power, including the power to impose conditions on federal funds. 

See U.S. Const. art. I, § 8, cl. 1; see also South Dakota v. Dole, 483 U.S. 203, 206 (1987) (“Incident to 

[the spending power], Congress may attach conditions on the receipt of federal funds . . . .”) (emphasis 

added). While the President may veto an appropriations bill in its entirety, the President may not 

amend, repeal, or alter the terms of Congressional appropriations. Clinton v. City of New York, 524 

U.S. 417, 438 (1998). Nor may the President withhold funds that Congress has appropriated. Indeed, 

“[w]here Congress has failed to give the President discretion in allocating funds, the President has no 

constitutional authority to withhold such funds and violates his obligations to faithfully execute the 

laws duly enacted by Congress if he does so.” PI Order at 36 (citing City of New York, 524 U.S. at 

439; U.S. Const. art. I, § 8, cl. 1.); see also Train v. City of New York, 420 U.S. 35, 41 (1975) (holding 

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Administrator of Environmental Protection Agency violated the Constitution by declining to allot to 

the states the entire amount Congress appropriated).

Here, there can be no question that the Executive Order violates these constitutional principles 

by purporting to give the Attorney General and the Secretary the power to condition receipt of federal 

funds on compliance with Section 1373. Executive Order § 9(a). Congress has not specifically 

conditioned the receipt of any federal funds on compliance with Section 1373, or delegated to the 

Executive Branch the authority to impose an eligibility requirement based on Section 1373. To the 

contrary, Congress has repeatedly rejected legislation that would defund or impose funding restrictions 

on sanctuary jurisdictions. See, e.g., Stop Dangerous Sanctuary Cities Act, S. 3100, 114th Cong.

(2016) (as rejected by Senate, Jul. 6, 2016); Stop Sanctuary Policies and Protect Americans Act, S. 

2146, 114th Cong. (2015) (as rejected by Senate, Oct. 20, 2015). Thus, the Executive Order seeks to 

take measures “incompatible with the expressed or implied will of Congress,” leaving the President’s 

power “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).

Because the President does not have the spending power—let alone any “exclusive” or “conclusive” 

power over federal spending – the Executive Order’s Funding Restriction is unconstitutional.

B. The Executive Order Violates The Spending Clause.

The Executive Order is also unconstitutional because it purports to exercise the spending 

power in ways that even Congress could not. Congress’s spending power is not unlimited. Dole, 483 

U.S. at 207. Rather, the Constitution provides that Congress may enact spending conditions that (1) are

unambiguous and clearly stated in advance, (2) relate to Congress’s purpose in spending the funds, (3) 

are not unduly coercive, (4) do not compel local governments to engage in unconstitutional conduct, 

and (5) promote the general welfare. Id. at 207–08. Violating any one of these requirements would 

render the Funding Restriction unconstitutional. Id. Here, the Funding Restriction violates all of them.

1. The Funding Restriction Violates The Unambiguousness Requirement.

The Funding Restriction fails because it imposes a new funding condition without stating that 

condition unambiguously and in advance so that states and local jurisdictions can “exercise their 

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choice” about whether to accept the funds “knowingly, cognizant of their participation.” Dole, 483 

U.S. at 203 (internal quotation marks omitted); see also Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. 

Ct. 2566, 2602-04 (2012) (“Sebelius”); Pennhurst, 451 U.S. at 17 (“[I]f Congress intends to impose a 

condition on the grant of federal moneys, it must do so unambiguously.”) “[L]egislation enacted 

pursuant to the spending power is much in the nature of a contract.” Pennhurst, 451 U.S. at 17. Thus, 

“[t]he legitimacy of Congress’ power to legislate under the spending power . . . rests on whether the 

State voluntarily and knowingly accepts” Congress’s terms. Id.

Here, San Francisco could not “voluntarily and knowingly” accept the terms set forth in the 

Executive Order for two reasons. First, the Funding Restriction is far from unambiguous. As this Court 

recognized, “because the Order does not clearly define ‘sanctuary jurisdictions,’ the conduct that will 

subject a jurisdiction to defunding under the Order is not fully outlined.” PI Order at 42. Even the 

government officials charged with enforcing the Executive Order cannot explain what jurisdictions 

need to do to avoid defunding. See RJN Exh. W at 17 (former DHS Secretary Kelly stating, with 

respect to the meaning of “sanctuary cities,” “[f]rankly, I don’t really know what it means. I don’t 

think anyone out there knows what it means . . .”); PI Order at 42 (noting that former DHS Secretary 

Kelly “stated that he does not ‘have a clue’ how to define ‘sanctuary city’”).

Second, the Executive Order seeks to impose a retroactive funding restriction that did not exist 

when San Francisco agreed to accept the federal funds it is currently slated to receive. San Francisco 

could not have knowingly accepted the Executive Order’s funding condition when it was “unaware of 

the condition[]” when it accepted the grants and to this day remains “unable to ascertain what is 

expected of it.” Pennhurst, 451 U.S. at 17. The “unclear and untimely conditions in the Executive 

Order” violate the Constitution’s limits on the spending power. PI Order at 38.

2. The Funding Restriction Is Not Reasonably Related To Congress’s Purpose 

In Spending The Funds.

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

grants must be “reasonably related to the purpose of the expenditure.” New York v. United States, 505 

U.S. 144, 172 (1992); see also Massachusetts v. United States, 435 U.S. 444, 461 (1978) (holding that 

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the “Federal Government . . . may require that state instrumentalities comply with conditions that are 

reasonably related to the federal interest in particular national projects or programs”).

8

Here there is no reasonable relationship between funds threatened by the Executive Order and 

San Francisco’s compliance with Section 1373. The vast majority of federal funds received by San 

Francisco each year are used to provide critical benefits and services to some of San Francisco’s most 

needy residents through programs such as Medicare, Medicaid, Temporary Assistance to Needy 

Families, and Supplemental Nutrition Assistance Programs. See Rosenfield Decl. ¶ 42. There is no 

conceivable relationship between these entitlement programs and immigration enforcement. Indeed, 

undocumented persons are not even eligible to participate in most of these programs. Id. Similarly, of 

the approximately $800 million that San Francisco receives in multi-year grants, most goes to capital 

projects such as building bridges and public transportation, see Rosenfield Decl. ¶ 13—projects that 

have no relationship to the immigration enforcement goals of Section 1373. 

Even grants administered by DHS and the Department of Justice (“DOJ”) usually have no 

relationship to immigration enforcement. For instance, under the authority of DHS, the Federal 

Emergency Management Agency (“FEMA”) provides billions of dollars in funding to provide relief 

from disasters such as earthquakes and fires, and to help local governments develop emergency 

preparedness systems. See RJN Exh. X. DOJ’s Office on Violence Against Women provides grant 

funding “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.”

RJN Exh. Y at 1. Likewise, DOJ administers billions of dollars in grant funding under the Victims of 

Crime Act to help local governments provide compensation and services to victims of child abuse, 

sexual assault, domestic violence, or other crimes. See 42 U.S.C. §§ 10602(b), 10603(b). None of 

these programs is “reasonably related” to the funding restriction the Executive Order seeks to impose.

 8 Relying on Mayweathers v. Newland, 314 F.3d 1062, 1067 (9th Cir. 2002), Defendants have 

asserted that the nexus factor is not a “requirement.” But the Supreme Court itself has noted that the 

“reasonable relationship” standard exists “among other requirements” that limit Congress’s ability to 

exercise its spending power. New York v. United States, 505 U.S. 144, 167 (1992) (emphasis added). 

Indeed, the nexus requirement is particularly important because, without it, “the spending power could 

render academic the Constitution's other grants and limits of federal authority.” Id.

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3. The Funding Restriction Is Unduly Coercive.

While the federal government “may use its spending power to create incentives for States,” the 

spending power may not be used to “exert a power akin to undue influence.” Sebelius, 132 S. Ct. at

2602 (opinion of Roberts, C.J.) (internal quotation marks omitted). Thus, when “pressure turns into 

compulsion, the legislation runs contrary to our system of federalism.” Id.

The Funding Restriction crosses that line by threatening a substantial percentage of San 

Francisco’s budget, and a large portion of the funding stream for certain programs and services. 

Federal funds constitute approximately 13 percent of the City’s total annual operating budget, and an 

additional $800 million in federal multi-year grants. Rosenfield Decl. ¶¶ 10, 13. Threatened funds 

include 100 percent 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 percent of 

the budget for San Francisco’s Department of Emergency Management, id. ¶¶ 25–27, 33 percent of the 

budget for San Francisco’s Human Services Agency, id. ¶¶ 13–18, and nearly 40 percent of the budget 

for San Francisco’s Department of Public Health (“DPH”), id. ¶¶ 19–24, to name just a few examples. 

San Francisco simply cannot make up for this loss with local revenue sources. Id. ¶¶ 36–37. Indeed, 

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 threatened by the Executive Order. Id. ¶ 36; Declaration of Melissa Whitehouse in Support of 

CCSF’s Mot. for Summary Judgement (“Whitehouse Decl.”) ¶ 16-17. Thus, a threat of this magnitude 

“crosse[s] the line distinguishing encouragement from coercion.” Sebelius, 132 S. Ct. at 2603 (opinion 

of Roberts, C.J.). In Sebelius, the impending loss of over 10 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 percent 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.

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4. The Funding Restriction Seeks To Compel The States To Engage In 

Unconstitutional Conduct.

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. The Executive Order does exactly that 

by threatening to withdraw federal funds from “sanctuary jurisdictions,” which the Attorney General 

equates with jurisdictions that refuse to comply with all ICE detainer requests. See pp. 3–4, supra.

“It is well established that an arrest without probable cause violates the Fourth Amendment and 

gives rise to a claim for damages under § 1983.” Rosenbaum v. Washoe Cty., 663 F.3d 1071, 1076 (9th 

Cir. 2011) (internal quotation marks omitted). Because ICE detainer requests need not—and often do 

not—establish probable cause for a local jurisdiction to detain an individual, to “blindly honor” these 

requests risk violating the Fourth Amendment rights of detainees. Morales v. Chadbourne, 793 F.3d 

208, 215–217 (1st Cir. 2015); see also Miranda-Olivares v. Clackamas Cty., No. 3:12-cv-02317-ST, 

2014 WL 1414305, at *9–11 (D. Or. Apr. 11, 2014). Thus, the Funding Restriction seeks to compel 

jurisdictions to adopt policies that violate—or at least show deliberate indifference to—Fourth 

Amendment rights. See Trujillo-Santoyo v. United States, No. 5:16-cv-855-OLG, 2017 WL 2896021, 

at *13 (W.D. Tex. June 5, 2017) (holding county’s policy of “honoring ICE detainer requests and of 

assuming the existence of probable cause based on the existence of a detainer request” constitutes 

“deliberate indifference” to constitutional rights sufficient to establish municipal liability).

5. Congress Has Not Determined That Defunding Sanctuary Jurisdictions 

Promotes The General Welfare.

Finally, the Funding Restriction fails because Defendants cannot establish that the Funding 

Restriction promotes the General Welfare. “In considering whether a particular expenditure is intended 

to serve general public purposes, courts should defer substantially to the judgment of Congress.” Dole, 

483 U.S. at 207. Congress has repeatedly rejected attempts to defund sanctuary jurisdictions or 

condition receipt of federal funds on compliance with Section 1373. See p. 13, supra. The President 

cannot impose funding restrictions that are contrary to the will of Congress. Although the President 

disagrees with Congress’s policy choice, decisions about whether spending promotes the general 

welfare appropriately rest with Congress—not the President. Dole, 483 U.S. at 207.

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C. The Executive Order Violates The Tenth Amendment.

The Executive Order also offends the Tenth Amendment’s guarantee 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.”9 The Tenth Amendment embodies the basic principle that the 

“Federal Government may not compel the States to enact or administer a federal regulatory program.”

New York, 505 U.S. at 188. But that is the very purpose of the Executive Order. As described above, 

the Funding Restriction puts a “gun to the head” of state governments by threatening to withhold 

billions of dollars in federal funding. See p. 16, supra.; see also LaCroix v. Junior, Case No. F17-376, 

2017 WL 837477, at *5 (Fla. Cir. Ct. Mar. 3, 2017) (“[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.”). The Enforcement Provision is similarly coercive, threatening 

unspecified “enforcement action” against any jurisdiction that the Attorney General deems to be in 

violation of Section 1373, or which “has in effect a statute, policy, or practice that prevents or hinders 

the enforcement of federal law.” Executive Order § 9(a). Through these threats of defunding and 

enforcement action, the Executive Order coerces state and local governments to change their sanctuary 

policies, thereby impermissibly “forcing the States to submit to another federal instruction,” New York, 

505 U.S. at 176, and commandeering local officials to administer federal immigration law, see Printz

v. United States, 521 U.S. 898, 935 (1997).

This commandeering is particularly stark in the context of detainers, although it also exists in 

other applications of the Executive Order.

10 The Executive Order coerces local jurisdictions to comply 

with civil detainer requests by threatening the withdrawal of federal funding or another unspecified 

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

Amendment. Printz v. United States, 521 U.S. 898, 931 n.15 (1997); Envtl. Def. Ctr., Inc. v. EPA, 344 

F.3d 832, 847 (9th Cir. 2003).

10 The Administration has suggested that local governments must take other steps to administer 

federal immigration law, such as providing ICE access to jails and informing personnel about the 

content of Section 1373. See pp. 3–4, supra; see also RJN Exh. M at 1 (“Your personnel must be 

informed that . . . federal law does not allow any government entity or official to prohibit the sending

or receiving of information about an individual’s citizenship or immigration status with any federal, 

state or local government entity and officials.”).

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form of punishment if they do not comply. See pp. 3–4, supra; see also RJN Exh. I at 1 (providing that 

the failure to honor civil detainer requests is a policy that “frustrate[s] th[e] enforcement of 

immigration laws”). Put simply, the Executive Order seeks to turn detainer “requests” into detainer 

demands, in violation of the Tenth Amendment. Galarza v. Szalczyk, 745 F.3d 634, 643-45 (3d Cir. 

2014) (holding that ICE detainer requests cannot be mandatory and create no obligation on the part of 

state or local officials to take any action); Miranda-Olivares, 2014 WL 1414305, at *9–11 (same); 

LaCroix, 2017 WL 837477, at *10 (Fla. Cir. Ct. Mar. 3, 2017) (same). “The Federal Government 

may . . . no[t] command the States’ officers, or those of their political subdivisions, to administer or 

enforce a federal regulatory program.” Printz, 521 U.S. at 935. Compliance with detainers would 

demand far more of state and local officials than the background checks 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 residents—in their 

own facilities and at their own cost—on civil immigration grounds at the federal government’s 

direction. See Declaration of Sheriff Vicki Hennessy in Support of CCSF’s Mot. for Summary 

Judgment and Declaration of Lieutenant James Quanico in Support of CCSF’s Mot. for Summary 

Judgment; see also 8 C.F.R. § 287.7(e) (providing that “[n]o detainer issued as a result of a 

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

Department”).

But even if the Executive Order did not conscript local officials to serve federal interests, it 

would still violate the Tenth Amendment. The Tenth Amendment not only prohibits circumstances 

like that at issue in Printz, where local officials are enlisted into the service of a federal regulatory 

scheme; it also forbids the federal government from “requir[ing] the States to govern according to 

Congress’ instructions.” New York, 505 U.S. at 162. Under the Tenth Amendment, the federal 

government may require states to comply with generally applicable laws, but it may not regulate states 

“in their sovereign capacity” by compelling them to legislate in a particular manner. Reno v. Condon, 

528 U.S. 141, 151 (2000). Thus, where the “whole object of [a] law [is] to direct the functioning of the 

state executive” or the state legislative program, it will intrude on state sovereignty in the very way the 

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Tenth Amendment aims to prevent. Printz, 521 U.S. at 932; New York, 505 U.S. at 176. The “whole 

object” of the Executive Order is to direct the functioning of state and local governments. By 

threatening “enforcement action” of unspecified nature against any “entity . . . which has in effect a 

statute, policy, or practice that prevents or hinders the enforcement of Federal law,” and by threatening

wholesale defunding against entities deemed to be sanctuary jurisdictions, the Enforcement Directive 

attempts to interfere with local governments’ autonomy to legislate for themselves. 

The Tenth Amendment prevents the Executive Order from accomplishing this end. San 

Francisco’s sanctuary city laws lie at the heart of San Francisco’s core governmental interests. See 

Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982). The federal 

government may no more coerce San Francisco to change these policies than it could directly order it 

to do so. New York, 505 U.S. at 176 (providing that where “an instruction to state governments . . . 

standing alone, would be beyond the authority of Congress,” it “follows that Congress lacks the 

power” to coerce States to enact the instruction themselves). Because the Executive Order attempts to 

do exactly this, it is unconstitutional.

D. The AG Memorandum Does Not Narrow the Executive Order.

Defendants acknowledge the constitutional limitations discussed above, RJN Exh. Z at 33–34, 

but rely on the narrowing construction offered in the AG Memorandum to argue that the Executive 

Order has a dramatically narrower scope at odds with its plain text. See Dkt. Nos. 107, 111. As this 

Court has already determined, however, the AG Memorandum fails to save the Executive Order.

1. The AG Memorandum Is Not Binding Authority About The Executive 

Order.

Contrary to Defendants’ repeated assertions, the AG Memorandum is not conclusive guidance 

binding on all Executive Branch agencies. Indeed, the AG Memorandum is not binding even on the 

Attorney General. “[T]he Attorney General could, at any time, revoke the AG Memorandum and issue 

new guidance. Or the President could replace the Attorney General to revoke it.” Recon. Order at 13. 

Here, the Attorney General has not disavowed the constitutionality of a broader construction, leaving 

him—or a future Attorney General—free to embrace a different construction in the future.

Further, there is no reason for other agencies to act as if the AG Memorandum is directed at 

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them, when it is addressed only to components within 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 Branch agencies. See, e.g., RJN Exh. AA. 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,” Defs’Mot. to Dismiss at 7, it 

would fail at the outset by not being directed to those department heads. 

Additionally, the AG Memorandum bears none of the traditional hallmarks of a formal legal 

opinion by the Attorney General. It “is labeled as an ‘implementation’ memorandum, is only two 

pages long, does not engage in substantive legal analysis, and primarily outlines plans to enforce the 

order, rather than an opinion on its meaning or scope.” Recon. Order at 11. It was not requested by an 

executive department head pursuant to 28 U.S.C. § 512, nor issued by the Office of Legal Counsel 

pursuant to 28 C.F.R. § 0.25. In short, there is nothing on the face of the memo suggesting that it is a 

formal legal opinion of the Attorney General.

Even if the AG Memorandum were a formal legal opinion—which it is not—that would not 

establish that it is binding or controlling on Executive Branch agencies. Indeed, “the question of 

whether (and in what sense) the opinions of the Attorney General, and, more recently, the Office of 

Legal Counsel, are legally binding within the executive branch remains somewhat unsettled.” 

Randolph Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal 

Counsel, 52 Admin. L. Rev. 1303, 1318 (2000).

Nor is the AG Memorandum binding or persuasive authority for this Court. Defendants have 

acknowledged that “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.” Recon. Reply at 5 n.6. Thus, according to Defendants, “the rules of 

judicial deference are inapplicable.” Id. This is a wise concession, as courts give deference only to an 

agency’s “reasonable” interpretation of an executive order it is charged with administering. See 

Western Watersheds Project v. Abbey, 719 F.3d 1035, 1042–43 (9th Cir. 2013). But here, the Court 

has already rejected Defendants’ narrow interpretation as unreasonable. PI Order at 14–15; Recon. 

Order at 7. In sum, even construed in the light most favorable to Defendants, the AG Memorandum

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is—as it says—an implementation document within the DOJ. It is not a legal opinion that binds other 

Executive Branch agencies.

2. Even If The AG Memorandum Were Binding, It Would Not Alter The 

Plain Language Of The Executive Order Or Eliminate Its Coercive Force.

Even if the AG Memorandum were binding on all Executive Branch agencies, it would simply 

constitute a promise to enforce the Executive Order more narrowly than it is written. Yet as the Court 

recognized, “similar promises are routinely rejected by the courts as illusory and should not impact the 

analysis here.” Recon. Order at 8 (citing City of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 

770 (1988); United States v. Stevens, 559 U.S. 460, 480 (2010); Doe v. Harris, 772 F.3d 563, 579–80 

(9th Cir. 2014); United States v. Nosal, 676 F.3d 854, 862 (9th Cir. 2012)). An en banc panel of the

Ninth Circuit, for example, rejected a similar attempt to adopt a narrowing construction in order to 

save an unconstitutional law in Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 

657 F.3d 936, 946–47 (9th Cir. 2011) (en banc). There, the Redondo Beach City Attorney submitted a 

sworn affidavit stating the City had only applied a challenged ordinance to conduct, not speech, and 

had no intention of applying it more broadly. The Court rejected this promise, holding that a 

narrowing construction can save a statute only where the text is “readily susceptible” to such a 

construction. Id. Similarly, here, the Court has declined to adopt the AG Memorandum’s narrowing 

construction because the Executive Order’s text is not “readily susceptible” to that construction. PI 

Order at 14. The text has not changed since the PI Order issued, and the Court’s determination holds 

true.

In a related line of cases, the Supreme Court has held that an agency’s “voluntary self-denial” 

of powers granted by an unconstitutional law does not save that law. See Whitman v. Am. Trucking 

Ass’ns, 531 U.S. 457, 472-73 (2001); see also Knox v. Serv. Emps. Int’l 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.”). In American Trucking Associations, for instance, the D.C. Circuit held that the 

Clean Air Act made an unconstitutional delegation of authority to the Environmental Protection 

Agency, but remanded on the theory that this delegation could be fixed by the agency adopting a 

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narrow construction of the Act. 531 U.S. at 472–73. The Supreme Court rejected this approach, stating 

“[w]e have never suggested that an agency can cure an unlawful delegation of legislative power by 

adopting in its discretion a limiting construction of the statute.” Id. at 472. It explained, “[w]hether the 

statute delegates legislative power is a question for the courts, and an agency's voluntary self-denial 

has no bearing upon the answer.” Id. at 473. 

The same reasoning applies here. One of the central legal defects of the Executive Order is that 

it delegates to DOJ and DHS powers that the President himself lacks, and this delegation cannot be 

fixed by DOJ declining to exercise those powers. The AG Memorandum is not akin to a statutory 

amendment that might in theory fix constitutional problems or render a case moot. It is, at best, an 

implementation document that leaves the offending Order in place.

III. San Francisco Is Entitled To Declaratory And Injunctive Relief.

A. Defendants Have Created An “Actual Controversy” That Entitles San Francisco 

To Declaratory Relief On All Counts.

This Court may issue declaratory relief “[i]n a case of actual controversy within its 

jurisdiction.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 240 (1937); 28 U.S.C. § 2201(a).

“Basically, the question in each case is whether the facts alleged, under all the circumstances, show 

that there is a substantial controversy, between parties having adverse legal interests, of sufficient 

immediacy and reality to warrant the issuance of a declaratory judgment.” Maryland Cas. Co. v. Pac.

Coal & Oil Co., 312 U.S. 270, 273 (1941). This standard is satisfied here, where an actual controversy 

exists about both Section 1373 and the Executive Order. See Defs. Answer ¶ 38 (denying that San 

Francisco complies with Section 1373); Recon. Order at 17–19 (finding San Francisco has 

demonstrated an actual controversy regarding its compliance with Section 1373); PI Order at 11–35 

(concluding San Francisco has ripe claims against the Executive Order).

B. Defendants’ Ongoing Threats, Together With The Balance Of Equities And Public 

Interest, Entitle San Francisco To A Permanent Injunction Of The Executive 

Order.

Just four months ago, this Court granted a preliminary injunction of the Executive Order. 

Specifically, the Court held that San Francisco and Santa Clara County were

currently suffering irreparable harm, not only because the Order has caused and 

will cause them constitutional injuries by violating the separation of powers 

doctrine and depriving them of their Tenth and Fifth Amendment rights, but 

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also because the Order has caused budget uncertainty by threatening to deprive 

the Counties of hundreds of millions of dollars in federal grants that support 

core services in their jurisdictions. They have established that they are likely to 

succeed on the merits of their claims and that the balance of harms and public 

interest decisively weigh in favor of an injunction. 

PI Order at 3-4.

Nothing has changed since the Court issued the preliminary injunction,

11 and the standard for a 

permanent injunction is the same except that a plaintiff must show actual success on the merits instead 

of a likelihood of success.

12 Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 32 (2008). The 

Executive Order remains extant, leaving San Francisco to suffer from the same uncertainty and duress 

that necessitated the preliminary injunction. And San Francisco’s budgetary and constitutional injury 

continues to be irreparable and ongoing.

As detailed in the Whitehouse Declaration, the uncertainty of the Executive Order factored into 

San Francisco’s decision to set aside a special budget reserve of $10 million, making those funds 

unavailable for any non-reserve purpose for the entire fiscal year. Whitehouse Decl. ¶ 7. San Francisco 

continues to be unable to use these monies to fund other budgetary priorities such as housing and 

social services. San Francisco’s budgetary harm is not purely monetary. It impacts San Francisco’s 

ability to provide programs and services to its residents. 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”).

Similarly, San Francisco continues to suffer constitutional harm. Defendants’ statements 

continue to make clear not only that the Executive Order requires compliance with Section 1373, but 

also that compliance with Section 1373 means honoring civil immigration detainer requests. See pp. 

3–4, supra. As long as the Executive Order remains outstanding, San Francisco faces an impossible 

 11 Recon. Order at 14. 

12 A party seeking a permanent injunction must “must demonstrate: (1) that it has suffered an 

irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to 

compensate for that injury; . . . (3) that, considering the balance of hardships between the plaintiff and 

defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a 

permanent injunction.” Monsanto Co. v. Geertson Seed Farms 561 U.S. 139, 156–57 (2010) (citing 

eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)).

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choice: either comply with detainer requests and hold individuals without probable cause in violation 

of the Fourth Amendment, or risk violating the terms of the Executive Order. This, coupled with the 

Executive Order’s other constitutional infirmities—violation of the separation of powers doctrine, the 

Spending Clause, and the Tenth Amendment—constitutes irreparable harm. See Melendres v. Arpaio, 

695 F.3d 990, 1002 (9th Cir. 2012) (holding that “the deprivation of constitutional rights 

unquestionably constitutes irreparable injury”) (internal quotation marks and citation omitted).

Lastly, the public interest and the balance of the equities favor the entry of a permanent 

injunction against all Defendants. As long as the Executive Order remains in place, San Francisco 

cannot escape Defendants’ threats. San Francisco will continue to face the possibility that its budget 

could be crippled at any time and that it will be coerced into choosing to violate the Constitution or 

maintain its federal funds. Since this case was filed, almost eight months ago, Defendants have failed 

to take any decisive steps to eliminate or mitigate the uncertainty caused by the Executive Order.

Defendants have taken no effective action to rescind, modify or amend the Executive Order. Without a 

permanent injunction, there will be no end to the threat, and the budgetary sword of Damocles will 

continue to hover ominously over San Francisco’s head.

CONCLUSION

For the foregoing reasons, San Francisco asks that the Court grant its Motion for Summary 

Judgment, or, in the Alternative, Partial Summary Judgment, and order declaratory and injunctive 

relief. 

Dated: August 30, 2017 DENNIS J. HERRERA

City Attorney

By: /s/ Mollie M. Lee

MOLLIE M. LEE

Deputy City Attorney

Attorneys for Plaintiff

CITY AND COUNTY OF SAN FRANCISCO

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