City & Cty.of San Francisco v. Trump, 2018 U.S. App. LEXIS 21318, 2018 WL 3637911 (9th Cir. Aug. 1, 2018)

The Circuit Court of Appeals for the Ninth Circuit declared unconstitutional the Trump administration's executive order withholding federal funds from sanctuary cities and counties. The AAUP joined an amicus brief opposing the executive order and supporting a permanent injunction preventing its enforcement. The appeals court held 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, the panel affirmed the district court’s decision finding that the Executive Order was unconstitutional. The appeals court upheld the permanent injunction preventing enforcement of the order against the city and county of San Francisco and in California, but lifted the nationwide injunction and sent the case back to the lower court for a more searching inquiry into the need for such relief.  

On January 25, 2017, the Trump administration issued Executive Order 13768 which declares that “(i)t is the policy of the executive branch to . . . (e)nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” Section 9 implements that policy by commanding executive branch officials to strip state and local governments deemed to be “sanctuary jurisdictions” of their eligibility “to receive grants.” The City and County of San Francisco and the County of Santa Clara filed suit in the US District Court for the Northern District of California against President Trump and other federal officials, alleging that the executive order violated the separation of powers doctrine, the Tenth Amendment, and due process guarantees.

On April 25, 2017, the district court determined that the city and county of San Francisco and county of Santa Clara had pre-enforcement standing to protect hundreds of millions of dollars of federal grants from the unconstitutionally broad sweep of the Executive Order. The district court entered a nationwide preliminary injunction against the executive order and enjoined the defendants-appellants from enforcing Section 9(a) of the executive order as such enforcement would continue to cause constitutional injury by violating the Separation of Powers doctrine and depriving plaintiffs-appellees of their Tenth and Fifth Amendment rights.

In February 2018, the AAUP joined with other groups, including members of the California Community College System, in filing an amicus brief opposing the executive order and supporting a permanent injunction preventing its enforcement. The AAUP’s interest in the case stemmed from the potential application of the executive order to colleges and universities. The amicus brief argues that such an extension would negatively impact colleges’ and universities’ ability to carry out their public mission and their interests in developing a diverse student body. The brief also emphasizes the harms caused by the Executive Order—undermining the critical interest that our society has in the education of all its residents regardless of immigration status; threatening higher education’s constitutional interest in educational independence to create the sort of diverse student body that is critical to the intellectual and academic life of the community; devastating university research opportunities by withdrawing federal funding for failure to participate in federal immigration enforcement; and penalizing students’ opportunities for higher education by withdrawing federal student scholarship funding.

The Ninth Circuit concluded that the Executive Order violates the Separation of Powers, and that the Administration has not even attempted to show that Congress authorized it to withdraw federal grant money from jurisdictions that do not agree with the current Administration’s immigration strategies. “Not only has the Administration claimed for itself Congress’s exclusive spending power, it has also attempted to coopt Congress’s power to legislate.” Moreover, the president’s authority to act must stem from either an act of Congress or from the Constitution itself. Neither of which happened in this case.  

From the start of the current administration, AAUP has supported the nationwide sanctuary movement in states, cities, and other localities and across college and university campuses.  While the court did not directly address college and universities as sanctuary jurisdictions, the decision reinforces the argument that the administration cannot cut off federal funding to colleges and universities because they are sanctuary campuses.