Immigration: Constitutionality of Executive Order 13768

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The Constitutionality of Executive Order 13768 Generally

On April 25, 2017, in County of Santa Clara v. Trump, 2017 WL 1459081 (N.D.Cal., 2017), a district court issued a preliminary nationwide injunction (pdf) against enforcing section 9 of executive order 13768, which seeks to withhold Federal grants from sanctuary jurisdictions. The court found that enforcement of section 9 of the order violated the Constitution’s separation of powers, the Tenth Amendment, and the Fifth Amendment’s due process requirements.

In addition to punishing sanctuary jurisdictions and LEAs for following the law and not violating the Fourth Amendment, the Executive Order is unconstitutional on other grounds. As stated in Santa Clara, at *2, “[t]he Constitution vests the spending powers in Congress, not the President, so the Order cannot constitutionally place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that the total financial incentive not be coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves.”

A. Separation of Powers

In Santa Clara, the court observed that “Section 9 [of the Order] purports to give the Attorney General and the Secretary the power to place a new condition on federal funds (compliance with Section 1373) not provided for by Congress. But the President does not have the power to place conditions on federal funds and so cannot delegate this power. …Congress has repeatedly, and frequently, declined to broadly condition federal funds or grants on compliance with Section 1373 or other federal immigration laws as the Executive Order purports to do… The Order’s attempt to place new conditions on federal funds is an improper attempt to wield Congress’s exclusive spending power and is a violation of the Constitution’s separation of powers principles.” Id. at *22. The court also found that the Order runs afoul of the Spending Clause (id. at *22-23).

B. Tenth Amendment

Under the Tenth Amendment, which outlines the division of authorities provided to States and the Federal Government, “[t]he Federal Government may not compel the States to enact or administer a federal regulatory program.” New York v. United States, 505 U.S. 144, 188 (1992). Therefore, since “the Order equates ‘sanctuary jurisdictions’ with ‘any jurisdiction that ignored or otherwise failed to honor any detainers’ and …seeks to condition all federal grants on honoring civil detainer requests, it is likely unconstitutional under the Tenth Amendment because it seeks to compel the states and local jurisdictions to enforce a federal regulatory program through coercion.” Santa Clara at *24.

C. Fifth Amendment

According to the Fifth Amendment, a law is unconstitutionally vague and void if it fails to make clear what conduct it prohibits and if it fails to lay out clear standards for enforcement. See Grayned v. City of Rockford, 408 U.S. 104, 108 (1972). The executive order falls short of this standard as it provides “no clear guidance on how to comply with its provisions or what penalties will result from non-compliance. Its standardless guidance and enforcement provisions are also likely to result in arbitrary and discriminatory enforcement.” Santa Clara at *24.

The Fifth Amendment also protects violations of property interests without due process. For such a claim, there must be a legally protectable property interest and an actual or future deprivation of that property without adequate process. See Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005). Given the executive order’s failure to provide notice or any procedure by which the sanctuary jurisdictions can appeal a withdrawal of funding, the order amounts to a “complete lack of process [that] violates the Fifth Amendment’s due process requirements.” Santa Clara at *26.

D. Three Important Aspects of the County of Santa Clara v. Trump Federal Court Decision

The decision reaffirmed that ICE detainers are not binding on local law enforcement agencies or local governments, stating: “ICE civil detainer requests are voluntary and local governments are not required to honor them.” Santa Clara at *4 (citing Galarza v. Szalczyk, 745 F.3d 634, 643 (3rd. Cir. 2014)).

The decision explains that under the Federal Rules of Evidence the court can take judicial notice of statements made by government officials, including President Trump and Attorney General Sessions, and of information contained in official government websites. Rule 201(b)(2) of the Federal Rules of Evidence provides that “[t]he court may judicially notice a fact that is not subject to reasonable dispute because it . . . can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”

The decision is another example of federal court judges upholding constitutional principles against executive orders signed by President Trump.

Note: This analysis was added May 1, 2017, in response to developing policies, proposals and events. This analysis was not part of the original Declaration 17 document signed February 23, 2017. From time to time, we may add new commentary and analysis in response to developing events.

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