April 27, 2017

HAMSTRUNG BY THE CONSTITUTION, CONGRESS AND THE COURT:

Case Summary: Federal District Court Issues Nationwide Injunction Against Trump's Sanctuary City Executive Order (Russell Spivak, April 26, 2017, Lawfare)


For the Counties to obtain the injunction, they not only have to demonstrate standing before; they have to "show that they are likely to face immediate and irreparable harm absent an injunction, that they are likely to succeed on the merits, and that the balance of harms and public interest weighs in their favor." This is undoubtedly a tall order, but the Counties clear it, in Judge Orrick's view. 

The Counties challenge the order on four separate charges: (1) that it violates separation of powers principles by exceeding Congress's spending authority; (2) that violates the Tenth Amendment; (3) that it is void for vagueness under the Fifth Amendment's Due Process Clause; and (4) that its immediacy violates the procedural due process for states.

In interpreting the Counties' causes of actions as five claims, the court found that the Counties were likely to succeed on the merits in all five.

Separation of Powers

As alluded to above, the court sides with the Counties, ruling "that the Executive Order is unconstitutional because it seeks to wield powers that belong exclusively to Congress, the spending powers." Judge Orrick rests primarily on South Dakota v. Dole and Clinton v. City of New York. Though Dole stands for the proposition that, "to further broad policy objectives . . . [Congress may] condition receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives," Clinton holds that the President cannot "repeal[] or amend[] parts of duly enacted statutes" to create conditional funding. More, Congress has purposefully barred the President from withholding or impounding appropriated funds to fashion such a condition. By granting authority to the Attorney General and Secretary of Homeland Security to determine jurisdictions' eligibility for grants, the Order, the court rules, "runs afoul of these basic and fundamental constitutional structures." Thus, the Counties are likely to succeed on the merits on this claim.

Spending Clause Violations

The Counties argue that even if the President has the power to condition spending, the Order violates the Tenth Amendment. Recognizing that the Supreme Court has permitted Congress to place conditions on state funding, provided that certain requirements are met, the court finds the Order "likely violates at least three of these restrictions: (1) conditions must be unambiguous and cannot be imposed after funds have already been accepted; (2) there must be a nexus between the federal funds at issue and the federal program's purpose; and (3) the financial inducement cannot be coercive."

On the first prong, Judge Orrick concludes that, because states did not know of this requirement, let alone voluntarily accept it, when Congress appropriated the funds, the Order cannot impose the conditions retroactively. Moreover, the uncertainty regarding which funds are at issue only muddies the already opaque understanding of what was at stake.

On the second prong, the court returns to Dole: "Congress may condition grants under the spending power only in ways reasonable related to the purpose of the federal program." But the court concludes, "there is no nexus between Section 1373 and most categories of federal funding, including without limitation funding related to Medicare, Medicaid, transportation, child welfare services, immunization and vaccination programs, and emergency preparedness." In fact, the only grants immune to the Attorney General's and Homeland Security Secretary's discretion are grants expressly for immigration and law enforcement, "invert[ing] the nexus requirement." Thus, the court finds this requirement unmet.

On the final prong, the court rests on NFIB v. Sebelius to conclude that the severe funding at risk is unduly strong-arming the municipalities. In NFIB, when 10 percent of a state's Medicaid funds were at risk, the court found the condition "unconstitutionally coercive and represent[ing] a 'gun to the head.'" The court here states that the hundreds of millions of dollars at stake is similarly "unconstitutionally coercive," again suggesting the Counties' are likely to win on the merits.

Tenth Amendment Violations

In the Counties' third cause, the court finds the Counties likely to succeed on the merits because the Order violates Supreme Court precedent from New York: "The Federal Government may not compel the States to enact or administer a federal regulatory program." As shown in the standing analysis, Judge Orrick writes,

The Counties have shown that losing all of their federal grant funding would have significant effects on their ability to provide services to their residents and that they may have no legitimate choice regarding whether to accept the government's conditions in exchange for those funds. To the extent the Executive Order 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.

Attorney General Sessions' comments "equating failure to honor civil detainer requests with policies that 'frustrate th[e] enforcement of immigration laws,'" the court found, added additional pressure by threatening further "enforcement actions"--undefined as they are--against jurisdictions who violate ยง 1373.

Fifth Amendment Void for Vagueness

Looking to Grayned v. City of Rockford, the court puts forward two conditions upon which a law is unconstitutionally void for vagueness under the Fifth Amendment: "if it fails to make clear what conduct it prohibits and if it fails to lay out clear standards for enforcement." The current Order, Judge Orrick finds, does not describe "what conduct might subject a state or local jurisdiction to defunding or enforcement action, making it impossible for jurisdictions to determine how to modify their conduct, if at all, to avoid the Order's penalties." Without such guidance, let alone guidance as to what constitutes a "sanctuary jurisdiction," municipalities "have no hope of deciphering what conduct might result in an unfavorable 'sanctuary jurisdiction' designation." Adding fuel to the fire, the court takes issue with the potential for arbitrary and discriminatory application of the Order's "expansive, standardless language." In sum, the court found that the uncertainty surrounding how the Counties could proceed to avoid this distinction made them likely to succeed on the merits.

Fifth Amendment Procedural Due Process Violations

Lastly, the court looks to the Counties' procedural due process claims. For such a claim, the Supreme Court has said, a person must have a "legitimate claim of entitlement" to a property interest. This plainly includes money. Though simply expecting funding like a spoiled child on Christmas morning would fall short of the legitimate entitlement bar, the fact that the money had already been appropriated by Congress and accepted by the Counties satisfies the standard, the court rules. Because the Executive Order would jeopardize the Counties' eligibility to receive the money they are rightly entitled to without any administrative or judicial procedure, the court concluded that the Counties were likely to succeed on the merits in demonstrating that the Order violates the Due Process requirements.


MORE: 
Plan to Restrict Federal Grants to "Sanctuary Jurisdictions" Raises Legal Questions (CRS, 02/14/2017)

https://fas.org/sgp/crs/homesec/restrict.pdf


Posted by at April 27, 2017 7:11 AM

  

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