City & Cnty. of S.F. v. Trump

• Decision Date: 01 August 2018
• Docket Number: No. 17-17480,No. 17-17478,17-17478
• Citation: 897 F.3d 1225
• Parties: CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Appellee, v. Donald J. TRUMP, President of the United States; Jefferson B. Sessions III, Attorney General, Attorney General of the United States; Elaine C. Duke; United States of America, Defendants-Appellants. County of Santa Clara, Plaintiff-Appellee, v. Donald J. Trump, President of the United States; Jefferson B. Sessions III, Attorney General, Attorney General of the United States; Kirstjen Nielsen, Secretary of Homeland Security; Elaine C. Duke; Mick Mulvaney, Director, OMB; United States of America, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

897 F.3d 1225

CITY AND COUNTY OF SAN FRANCISCO, Plaintiff-Appellee,

v.Donald J. TRUMP, President of the United States; Jefferson B. Sessions III, Attorney General, Attorney General of the United States; Elaine C. Duke; United States of America, Defendants-Appellants.

County of Santa Clara, Plaintiff-Appellee,

v.Donald J. Trump, President of the United States; Jefferson B. Sessions III, Attorney General, Attorney General of the United States; Kirstjen Nielsen, Secretary of Homeland Security; Elaine C. Duke; Mick Mulvaney, Director, OMB; United States of America, Defendants-Appellants.

No. 17-17478

No. 17-17480

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 11, 2018 San Francisco, California

Filed August 1, 2018

Chad Readler (argued), Acting Assistant Attorney General; Alex G. Tse, Acting United States Attorney; Mark B. Stern, Daniel Tenny, and Brad Hinshelwood, Appellate Staff; Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

Christine Van Aken (argued), Yvonne R. Meré, Ronald P. Flynn, Jesse C. Smith, Neha Gupta, Matthew S. Lee, Aileen M. McGrath, Sara J. Eisenberg, Mollie M. Lee, Tara M. Steeley, and Dennis J. Herrera, City Attorney; Office of the City Attorney, San Francisco, California; for Plaintiff-Appellee City and County of San Francisco.

Danielle L. Goldstein (argued), Adriana L. Benedict, Laura S. Trice, Julie Wilensky, Kavita Narayan, L. Javier Serrano, Greta S. Hansen, and James R. Williams, County Counsel; Office of the County Counsel, San Jose, California; Tejinder Singh, Sarah E. Harrington, and Kevin K. Russell, Goldstein & Russel P.C., Bethesda, Maryland; for Plaintiff-Appellee County of Santa Clara.

Before: Sidney R. Thomas, Chief Judge, and Ferdinand F. Fernandez and Ronald M. Gould, Circuit Judges.

Dissent by Judge Fernandez

THOMAS, Chief Judge:

This appeal presents the question of whether, in the absence of congressional authorization, the Executive Branch may withhold all federal grants from so-called "sanctuary" cities and counties. We conclude that, under the principle of Separation of Powers and in consideration of the Spending Clause, which vests exclusive power to Congress to impose conditions on federal grants, the Executive Branch may not refuse to disperse the federal grants in question without congressional authorization. Because Congress has not acted, we affirm the district court's grant of summary judgment to the City and County of San Francisco and the County of Santa Clara (collectively, the "Counties"). However, given the absence of specific findings underlying the nationwide application of the injunction, we vacate the nationwide injunction and remand for reconsideration and further findings.

I

A

The United States Constitution exclusively grants the power of the purse to Congress, not the President. U.S. Const. art. I, § 9, cl. 7 (Appropriations Clause)¹ ; U.S. Const. art. I, § 8, cl. 1 (Spending Clause).² As Alexander Hamilton succinctly put it, Congress "commands the purse." THE FEDERALIST, NO. 78. James Madison underscored the significance of that exclusive congressional power, stating, "[t]he power over the purse may [be] the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people." THE FEDERALIST, NO. 58.

Congress's power to spend is directly linked to its power to legislate. "Incident to [the spending] power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power ‘to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.’ " South Dakota v. Dole , 483 U.S. 203, 206–07, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) (quoting Fullilove v. Klutznick , 448 U.S. 448, 474, 100 S.Ct. 2758, 65 L.Ed.2d 902 (1980) ).

On the other hand, as the Supreme Court has observed, "[t]here is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes." Clinton v. City of New York , 524 U.S. 417, 438, 118 S.Ct. 2091, 141 L.Ed.2d 393 (1998). Aside from the power of veto, the President is without authority to thwart congressional will by canceling appropriations passed by Congress. Simply put, "the President does not have unilateral authority to refuse to spend the funds." In re Aiken County , 725 F.3d 255, 261 n.1 (D.C. Cir. 2013). And, "the President may not decline to follow a statutory mandate or prohibition simply because of policy objections." Id. at 259.

The Separation of Powers was an integral part of the Founders' design. The Constitution and its history evidence the "unmistakable expression of a determination that legislation by the national Congress be a step-by-step, deliberate and deliberative process." I.N.S. v. Chadha , 462 U.S. 919, 959, 103 S.Ct. 2764, 77 L.Ed.2d 317 (1983). "The power to enact statutes may only ‘be exercised in accord with a single, finely wrought and exhaustively considered, procedure.’ " Clinton , 524 U.S. at 439–40, 118 S.Ct. 2091 (quoting Chadha , 462 U.S. at 951, 103 S.Ct. 2764 ). Indeed, even when Congress specifically authorized the President's action, the President's attempt to exercise authority through a line-item veto was deemed unconstitutional as antithetical to that "finely wrought" legislative process committed to Congress by the Constitution. Id. at 439, 118 S.Ct. 2091. As Justice Kennedy has observed, if "the decision to spend [is] determined by the Executive alone, without adequate control by the citizen's Representatives in Congress, liberty is threatened." Id. at 451, 118 S.Ct. 2091 (Kennedy, J., concurring).

B

With these Separation of Powers principles in mind, we turn to the question at hand. At issue in this appeal is Executive Order 13,768, "Enhancing Public Safety in the Interior of the United States," which was signed by the President on January 25, 2017—five days after his inauguration. Exec. Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (hereinafter "Executive Order" or "EO"). The Executive Order's primary concern is "sanctuary jurisdictions," which, in the President's view, "willfully violate Federal law in an attempt to shield aliens from removal from the United States." EO § 1. "The purpose of this order is to direct executive departments and agencies ... to employ all lawful means to enforce the immigration laws of the United States." EO § 1.

Most relevant for our consideration is § 9(a) of the Executive Order, which specifically addresses the federal government's potential recourses against sanctuary jurisdictions. In its entirety, § 9 reads:

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.

(a) In furtherance of this policy, the Attorney General and the Secretary [of the Department of Homeland Security ("DHS") ], 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.

(b) To better inform the public regarding the public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens.

(c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.

Below, under the heading "General Provisions," the Executive Order provides that it "shall be implemented consistent with applicable law and subject to the availability of appropriations." EO § 18(b). The Executive Order cross-references 8 U.S.C. § 1373, which prohibits government entities from themselves prohibiting the sharing of "information regarding the citizenship or immigration status, lawful or unlawful, of any individual." 8 U.S.C. § 1373(a).

In sum, by its plain terms, the Executive Order directs the agencies of the Executive Branch to withhold funds appropriated by Congress in order to further the Administration's policy objective of punishing cities and counties that adopt so-called "sanctuary" policies.

C

For us, then, the question is whether the Executive Order violates the Separation of Powers, pursuant to which the Constitution committed the Spending power to Congress.

The President's authority to act "must stem either from an act of Congress or from the Constitution itself." Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 585, 72 S.Ct. 863, 96 L.Ed. 1153 (1952). Justice Jackson's Youngstown concurrence provides the operative test in this context:

When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. Courts can sustain exclusive presidential control in such a case only by disabling the Congress from acting upon the subject. Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.

Youngstown , 343...