SAN FRANCISCO SUES TRUMP TO STOP EXECUTIVE ORDER ABOUT SANCTUARY CITIES
BY WARREN MASS
republished below in full unedited for informational, educational, and research purposes:
A group of attorneys led by San Francisco City Attorney Dennis
Herrera filed a lawsuit on January 31 in the U.S. District Court for the
Northern District of California against President Trump, Secretary of
Homeland Security John Kelly, and Acting Attorney General Dana Boente,
claiming that the “President of the United States seeks to coerce local
authorities into abandoning what are known as ‘Sanctuary City’ laws and
policies.”
The lawsuit objects to an executive order signed by Trump on January
25 (“Enhancing Public Safety in the Interior of the United States”)
proclaiming that “Sanctuary jurisdictions across the United States
willfully violate Federal law in an attempt to shield aliens from
removal from the United States.”
The order continues by stating: “It is the policy of the executive
branch to ensure, to the fullest extent of the law, that a State, or a
political subdivision of a State, shall comply with 8 U.S.C. 1373.”
Title 8, Section 1373 of the U.S. Code pertains to “Communication
between government agencies and the Immigration and Naturalization
Service.” It states:
Notwithstanding any other provision of
Federal, State, or local law, a Federal, State, or local government
entity or official may not prohibit, or in any way restrict, any
government entity or official from sending to, or receiving from, the
Immigration and Naturalization Service information regarding the
citizenship or immigration status, lawful or unlawful, of any
individual.
The Trump executive order goes on to put some teeth into its enforcement by stating:
In furtherance of this policy, the
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. The Attorney General shall take appropriate enforcement
action against any entity that violates 8 U.S.C. 1373, or which has in
effect a statute, policy, or practice that prevents or hinders the
enforcement of Federal law.
Herrera and his co-plaintiffs in the lawsuit (including Chief
Assistant City Attorney Jesse Smith, and Chief Deputy City Attorney
Ronald Flynn) take issue with the Trump administration order, however.
In a statement quoted by the
San Francisco Chronicle, Herrera
questioned the constitutionality of the executive order. “Not only is it
unconstitutional, it’s un-American,” Herrera said at a January 31 City
Hall news conference. “It is necessary to defend the people of this
city, this state and this country from the wild overreach of a president
whose words and actions have thus far shown little respect for our
Constitution or the rule of law.”
“The fabric of our communities and billions of dollars are at stake,” said Herrera, who the
Chronicle
reported was joined by Mayor Ed Lee, San Francisco Supervisor Hillary
Ronen, and several deputy city attorneys at the conference. “President
Trump does not appear to understand the Constitution and the limits it
imposes on executive power.”
The
Chronicle noted that San Francisco receives
approximately $1 billion annually from the federal government, which
accounts for a little more than 10 percent of the city’s budget and that
federal aid is in jeopardy if the Trump administration enforces the
order.
The report quoted Bill Ong Hing, a professor of immigration law at
the University of San Francisco as saying, “I think there is a clear
violation of the 10th Amendment here. The federal government cannot
commandeer nonfederal officials to do its work.”
The language of the lawsuit also argued along those lines, stating:
“The City and County of San Francisco (“San Francisco”) seeks
declaratory and injunctive relief against the United States of America
and the above-named federal officials for violating the Tenth Amendment,
U.S. Const. amend. X.”
Interestingly, one portion of the suit employs language commonly used by strict constitutionalists:
The Constitution establishes a balance of
power between the state and Federal governments, as well as among the
coordinate branches of Federal government, to prevent the excessive
accumulation of power in any single entity and reduce the risk of
tyranny and abuse from any government office. In so doing, the Tenth
Amendment provides that “[t]he powers not delegated to the United States
by the Constitution, nor prohibited by it to the States, are reserved
to the States
That argument made in the above statement is unimpeachable, but does
it apply to the case of “sanctuary cities” — or to the Trump executive
order, “Enhancing Public Safety in the Interior of the United States”?
If the San Francisco attorneys want to challenge the executive order on
constitutional grounds, shouldn’t they first challenge the federal law
(8 U.S.C. 1373) it attempts to enforce? If 8 U.S.C. 1373 is
constitutional, then the executive order demanding its enforcement
should also be constitutional. If the San Francisco attorneys think 8
U.S.C. 1373 is unconstitutional, then their fight should be with those
who passed that section of the U.S. code, which was part of Public Law
104-208 (H.R. 3610 and S. 1894), passed by the 104th Congress and signed
by President Bill Clinton on September 30, 1996.
The lawsuit complains: “The Executive Branch may not commandeer state
and local officials to enforce federal law"; however, the Trump
executive order attempts to do no such thing. It does not propose to
“commandeer” local officials, but merely have them comply with 8 U.S.C.
1373 (which, as noted, was signed into law by President Clinton) which
specifies that “a Federal, State, or local government entity or official
may not prohibit, or in any way restrict, any government entity or
official from sending to, or receiving from, the Immigration and
Naturalization Service information regarding the citizenship or
immigration status, lawful or unlawful, of any individual.”
Expecting a local government official to send information to (or
receive information from) the INS about the lawful or unlawful
immigration status of an individual hardly constitutes “commandeering”
that official — it merely expects him or her to perform as a good
citizen.
As we
noted in a recent article
about an illegal alien from El Salvador who filed a lawsuit on January
17 against the city and county of San Francisco for violating San
Francisco’s sanctuary city law by arresting and detaining him, sharing
information with federal immigration authorities is not the same as
taking personal responsibility for enforcing federal immigration
statutes.
In that article, we stated that a law passed by San Francisco in
1989, and signed by then-mayor Art Agnos, the City of Refuge Ordinance,
also known as the “Sanctuary Ordinance,” included a prohibition on San
Francisco employees assisting or cooperating with any investigation,
detention, or arrest conducted by the federal agency charged with
enforcement of federal immigration law. However, we wrote:
Therein lies the crux of the matter. In
most circumstances, even an ordinary citizen, not to mention a city
official, can be charged under federal law with “misprision of felony”
for failing to inform authorities about the commission of a crime.
Therefore, so-called sanctuary city laws create a dilemma for city
officials, who must decide which of two conflicting laws they will obey.
However, this point has not, to our knowledge, been addressed by any
court, probably because “misprision of felony” charges are difficult to
prove and are rarely brought.
The Trump executive order does not go so far as to attempt to bring
“misprision of felony” charges against local officials who fail to
comply with 8 U.S.C. 1373, probably because that would be a difficult
legal case to make. Instead, it relies on a tool that is based on more
solid constitutional grounds — the “carrot and stick” approach. A
municipality that insists on being a “sanctuary city” and refuses to
cooperate with federal immigration authorities is not eligible to
receive federal grants.
This also raises an interesting constitutional point. The strict
constitutionalist would say that most federal grants are not
constitutional anyway, because according to the 10th Amendment that the
city attorneys for San Francisco so nicely quoted for us, they provide
funding for areas not delegated to the United States (federal
government) by the Constitution.
However, the San Francisco city attorneys cannot have it both ways.
They cannot logically cite the 10th Amendment to stop the federal
government from withholding billions for dollars from the city on the
grounds that the Trump administration is intruding into areas not
authorized by the Constitution when the funds they so jealously covet
are going to pay for programs not authorized by the Constitution,
either.
And as we noted, if the San Francisco city officials have a problem
with the constitutionality of Trump’s executive order, which merely
serves to enforce existing law, then they should ask their
representatives in Congress to introduce legislation to change that law,
which was passed by the 104th Congress and signed into law by President
Bill Clinton. In the 20 years since that law was passed, no federal
court has ruled that it is unconstitutional.
Related articles:
California Advances Bills to Become Sanctuary State
Illegal Alien Sues San Francisco for Violating Sanctuary City Law
“Sanctuary Cities” Make a Mockery of Our Laws
U.S.
District Court Judge James Robart made his 
Robart
then scolded the police officers' union during an August 2016 hearing.
“The court and the citizens of Seattle will not be held hostage
for increased payments and benefits,” he said. “I’m
sure the entire city of Seattle would march behind me.”
February 2, 2017
