Release Date:  April 11, 2018
Contact:  Michael Rushford
(916) 446-0345

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Oral Argument in San Francisco v. Sessions Today

A panel of the Ninth Circuit Court of Appeals will hear the U. S. Department of Justice appeal of a November 20, 2017, ruling by Federal District Judge William Orrick III in a suit by the “sanctuary” jurisdictions of San Francisco and Santa Clara County. Judge Orrick issued a permanent injunction blocking enforcement of a portion of the President’s Executive Order titled “Enhancing Public Safety in the Interior of the United States.” That order directed the Attorney General and the Secretary of Homeland Security to begin enforcing existing federal law regarding illegal immigrants.

The Sacramento-based Criminal Justice Legal Foundation has joined the Department of Justice’s appeal by filing an amicus curiae (friend of the court) brief to encourage a decision overturning Judge Orrick’s ruling.

The President’s Executive Order directed government agencies under his control to enforce a federal law, adopted by Congress over 20 years ago, which forbids government entities to restrict the sharing of information regarding the immigration status of any person with federal immigration authorities. In July 2016, during the Obama Administration, the Department of Justice determined that compliance with this law was a requirement for cities and counties to receive certain federal law enforcement grants. The Obama Administration gave them time to comply before withholding grants, however, and did not actually withhold any before leaving office. The Trump Administration’s Executive Order announced its intention to begin withholding grants for “sanctuary cities,” but, to date, no grants have been withheld.

There are several issues at play in the case of City and County of San Francisco, et al., v. Jeff Sessions, et al. The initial question is whether a federal judge can block the enforcement of an executive order when no party in the case has yet been subjected to the enforcement or suffered any injury. At this stage, the judge has determined that just the threat of withholding grant funds from San Francisco and Santa Clara has subjected them to injury. The court may also consider upon what legal basis a judge can block an Executive Order directing cabinet officers to exercise their existing authority to enforce an existing law. Finally, CJLF argues that Judge Orrick improperly gave the order an excessively expansive interpretation and that when properly interpreted it is clearly constitutional.

“It is difficult to imagine a greater intrusion into the constitutional power of the executive by the judiciary,” said CJLF Legal Director Kent Scheidegger. “The Constitution requires that executive officers be under the direction of the President, but Judge Orrick has effectively placed them under his direction. We expect a higher court to make this clear in its decision to overturn his ruling,” he added.

CJLF Legal Director Kent Scheidegger is available for comment at (916) 446-0345.