SAN FRANCISCO ― A Trump administration lawyer said in federal court Friday that the president’s executive order targeting so-called “sanctuary jurisdictions” wouldn’t actually affect San Francisco, one of the cities he has been most intent on punishing for its lack of help with deportation efforts.
The high-profile hearing highlighted a central problem with President Donald Trump’s executive order on sanctuary cities: The president and top officials have attempted to pressure local jurisdictions into cooperating with Immigration and Customs Enforcement by making threats they may not be legally able to carry out.
The city of San Francisco and the sprawling county of Santa Clara — the most populous in the San Francisco Bay Area — were in court aiming to prevent the Trump administration from enforcing the president’s January executive order to take away federal funds from “sanctuary cities” that don’t cooperate with ICE. Both jurisdictions sued the administration days after the president signed his anti-sanctuary order.
Lawyers for San Francisco and Santa Clara County asked U.S. District Judge William Orrick to put Trump’s order on hold, on the grounds that not doing so could cause “irreparable harm” to their local programs and services. They said their clients are at risk of losing billions in vital congressional funding that was never explicitly conditioned on cooperating with the federal government on immigration enforcement.
“It’s a gun to your head,” said noted trial attorney John Keker, who is representing Santa Clara County. “It exists right now in Santa Clara and in San Francisco and, we think, all around the country.”
But Chad Readler, a top lawyer with the Department of Justice, accused the California jurisdictions of interpreting the executive order “as broadly as possible.” He instead offered a narrow interpretation of the order, arguing that only grants tied to DOJ and the Department of Homeland Security would be at risk of revocation. San Francisco, he asserted, doesn’t get any funds from DOJ or DHS grants, while Santa Clara, by his estimation, receives only $1 million annually from those sources. (Attorneys representing San Francisco later questioned those figures.)
That interpretation directly contradicts how the order has been touted by Trump and Attorney General Jeff Sessions, who just last month vowed to “claw back” funds from sanctuary cities.
Orrick appeared skeptical of the narrow interpretation, asking Readler what the “purpose” of the order was if it would barely affect the jurisdictions in question.
“It highlights to the country — in a perfectly permissible use of the bully pulpit — that this is a priority,” Readler responded.
Readler also said the administration could not say definitively how the order would be enforced by DHS, where officials have acknowledged they are still working on a definition for “sanctuary city.” He also claimed that San Francisco and Santa Clara County weren’t directly targeted by the order because it doesn’t specifically define what constitutes a sanctuary jurisdiction.
The language of the order targets jurisdictions that “willfully refuse to comply with” a provision of federal law that addresses how states and localities share immigrant information with the federal government ― something nearly every city and county already does.
There isn’t a clear-cut, widely accepted definition of what constitutes a sanctuary city. The label can be merely aspirational and apply to immigrant-rich communities, or it can denote localities with policies on the books that give benefits to undocumented immigrants. Most often, it’s applied to jurisdictions that don’t cooperate fully with immigration authorities, either because of concerns that would hurt other policing efforts or because of concerns about the constitutionality of detaining individuals they’d otherwise release.
San Francisco is not going to be bullied by President Trump. San Francisco city attorney Mollie Lee
San Francisco and Santa Clara County, like many other jurisdictions labeled “sanctuary cities,” contend that they’re already in compliance with the law and that the Trump administration’s threats to withhold funds that they rely on for health care, social services and other local priorities would violate the Constitution if carried out.
Trump and Sessions have both nonetheless made repeated public statements implying or outright stating that jurisdictions are breaking the law if they don’t fully cooperate with ICE. Just last week, Sessions authored an op-ed for the San Francisco Chronicle in which he called on “San Francisco and other cities to re-evaluate” their immigration enforcement policies. The president, meanwhile, has called California “out of control.”
Readler instead characterized those comments as “encouraging” communities to comply with federal immigration policy, but claimed there’s “no other enforcement action on the table, or even been formally threatened to [the jurisdictions].”
In his rebuttal, Keker said that interpretation didn’t square with the reasons Trump’s administration has publicly given for issuing the order in the first place.
“The government’s argument boils down to the hope that President Trump and Attorney General Sessions won’t do what they say they are doing with this executive order,” Keker said.
He also was skeptical of whether Trump would agree with the DOJ’s newfound, no-enforcement assessment.
“I didn’t hear that the president had signed off on this interpretation,” Keker said.
At a press conference following the hearing, San Francisco city attorney Mollie Lee said the interpretation of the order presented in court Friday constituted a “significant backing down” by the Trump administration, but added she is “not confident that will stick.”
“San Francisco is not going to be bullied by President Trump,” Lee said.
James Williams, an attorney representing Santa Clara, said it was “laughable” and “not credible” for the DOJ to argue that the California counties hadn’t been specifically targeted by Trump’s administration. He also questioned DOJ’s novel, narrower interpretation that only few Santa Clara funds would be impacted by the order.
“That stands contrary to everything the president has said,” Williams said.
This was a developing story and has been updated. Mollie Reilly reported from San Francisco; Elise Foley reported from Washington; Cristian Farias reported from New York.