Media sources are all breathlessly reporting that the Trump administration’s proposed termination of federal funding to sanctuary cities has been enjoined by a federal judge.
But that is misleading, and the media is misinterpreting the injunction order in the same way the federal judge misinterpreted President Donald Trump’s executive order.
At issue in the lawsuit filed in San Francisco federal court by Santa Clara County and San Francisco was Section 9 of Executive Order 13768, “Enhancing Public Safety in the Interior of the United States.”
If you read all of the news accounts, as well as the order of Judge William Orrick (an Obama appointee), you would think that Trump ordered the cutoff of all federal funding to sanctuary cities, from basic federal entitlement payments like Medicaid to discretionary grants.
Orrick even recites, for example, the $1.7 billion in “federal and federally dependent funds” Santa Clara County got in 2015-2016, which he acknowledges “includes federal funds provided through entitlement programs.”
But Section 9 does not affect federal entitlement programs. It is very narrowly focused. It states that it is the policy of the executive branch to ensure compliance “to the fullest extent of the law … with 8 U.S.C. 1373.”
Section 1373 law prohibits local jurisdictions from, according to Orrick, “restricting government officials or entities from communicating immigration status information to [Immigration and Customs Enforcement].”
In other words, the policies that Santa Clara and San Francisco have in place that prevent their local police from notifying ICE when they arrest or detain an illegal alien clearly and unambiguously violate federal law.
Section 9(a) of the executive order directs the attorney general and the secretary of the homeland security “in their discretion and to the extent consistent with the law” to “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.”
First of all, as the government argued, the plain language of this provision is limited to “grants” and does not affect entitlement funding at all.
There is no threat here, direct or implied, to cut off federal entitlement funding and access to programs like Medicaid or the Highway Trust Fund.
So an injunction that prohibits the government from denying entitlement funding to sanctuary jurisdictions is essentially meaningless (although Congress could certainly act to try and do this).
Second, Section 9(a) is directed to the attorney general and the secretary of homeland security. So again, it clearly only affects discretionary grants within the Justice Department and the Department of Homeland Security, not grants given out by other executive departments and agencies.
Why This Judge’s Ruling Won’t Block Federal Action on Sanctuary Cities
But that is misleading, and the media is misinterpreting the injunction order in the same way the federal judge misinterpreted President Donald Trump’s executive order.
At issue in the lawsuit filed in San Francisco federal court by Santa Clara County and San Francisco was Section 9 of Executive Order 13768, “Enhancing Public Safety in the Interior of the United States.”
If you read all of the news accounts, as well as the order of Judge William Orrick (an Obama appointee), you would think that Trump ordered the cutoff of all federal funding to sanctuary cities, from basic federal entitlement payments like Medicaid to discretionary grants.
Orrick even recites, for example, the $1.7 billion in “federal and federally dependent funds” Santa Clara County got in 2015-2016, which he acknowledges “includes federal funds provided through entitlement programs.”
But Section 9 does not affect federal entitlement programs. It is very narrowly focused. It states that it is the policy of the executive branch to ensure compliance “to the fullest extent of the law … with 8 U.S.C. 1373.”
Section 1373 law prohibits local jurisdictions from, according to Orrick, “restricting government officials or entities from communicating immigration status information to [Immigration and Customs Enforcement].”
In other words, the policies that Santa Clara and San Francisco have in place that prevent their local police from notifying ICE when they arrest or detain an illegal alien clearly and unambiguously violate federal law.
Section 9(a) of the executive order directs the attorney general and the secretary of the homeland security “in their discretion and to the extent consistent with the law” to “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.”
First of all, as the government argued, the plain language of this provision is limited to “grants” and does not affect entitlement funding at all.
There is no threat here, direct or implied, to cut off federal entitlement funding and access to programs like Medicaid or the Highway Trust Fund.
So an injunction that prohibits the government from denying entitlement funding to sanctuary jurisdictions is essentially meaningless (although Congress could certainly act to try and do this).
Second, Section 9(a) is directed to the attorney general and the secretary of homeland security. So again, it clearly only affects discretionary grants within the Justice Department and the Department of Homeland Security, not grants given out by other executive departments and agencies.
Why This Judge’s Ruling Won’t Block Federal Action on Sanctuary Cities
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