During Donald Trump’s first term, federal courts repeatedly struck down his efforts to pressure immigration “sanctuary” jurisdictions by pulling federal grants, and other coercive measures. Last November, I predicted we would see a repeat of this pattern under Trump 2.0.
That prediction (which was not a hard one to make) began to be vindicated today, as federal district Judge William Orrick issued a ruling blocking the federal government from withholding federal funds from San Francisco and fifteen other sanctuary jurisdictions which had filed suit challenging a Trump executive order to that effect.
As Judge Orrick notes in his ruling, the new anti-sanctuary executive order is similar to an earlier 2017 Trump EO, and is unconstitutional for the same reasons:
In 2017, President Donald Trump issued Executive Order 13,768 (“EO 13,768”), titled
“Enhancing Public Safety in the Interior of the United States,” which was directed at so-called “sanctuary jurisdictions.” The City and County of San Francisco and County of Santa Clara sued, arguing that Section 9 of EO 13,768 was unconstitutional. I found that they had pre-enforcement standing, that they were likely to succeed on the merits because Section 9(a) of EO 13,768 was unconstitutional, and that they faced irreparable harm absent an injunction. I enjoined Section 9(a) of EO 13,768. The Ninth Circuit affirmed. Cnty. of Santa Clara v. Trump, et al., 250 F. Supp. 3d 497 (N.D. Cal. Apr. 25, 2017) (Preliminary Injunction Order), aff’d, 897 F.3d 1225 (9th Cir. 2018).Here we are again. Shortly after taking office in 2025, President Trump issued Executive Orders 14,159 (“Protecting the American People Against Invasion”) (“EO 14,159”) and 14,218 (“Ending Taxpayer Subsidization of Open Borders”) (“EO 14,218”) (together, the “2025 Executive Orders”), the language and purpose of which mirror EO 13,768. Like EO 13,768, EO 14,159 directs the United States Attorney General and the United States Department of Homeland Security (“DHS”) Secretary to withhold federal funds from “sanctuary jurisdictions,” cities and counties that limit the use of local resources to enforce federal immigration law. EO 14,218 directs every federal agency to ensure that “federal payments” to localities do not “by design or effect” “abet so-called ‘sanctuary’ policies that seek to shield illegal aliens from deportation….
Precedent in the Ninth Circuit and the orders of this court show why the Cities and
Counties have established that they are likely to prevail on the merits of at least their separation of powers, Spending Clause, and Fifth and Tenth Amendment claims. The challenged sections in the 2025 Executive Orders and the Bondi Directive that order executive agencies to withhold, freeze, or condition federal funding apportioned to localities by Congress, violate the Constitution’s separation of powers principles and the Spending Clause, as explained by the Ninth Circuit in the earlier iteration of this case in 2018; they also violate the Fifth Amendment to the extent they are unconstitutionally vague and violate due process. See City & Cnty. of S.F. v. Trump, 897 F.3d 1225, 1234– 35 (9th Cir. 2018); Cnty. of Santa Clara v. Trump, et al., 250 F. Supp. 3d 497, 530–32, 534–36 (N.D. Cal. Apr. 25, 2017). The 2025 Executive Orders’ directives to withhold or freeze federal funding to sanctuary jurisdictions also violate the Tenth Amendment because they impose coercive condition intended to commandeer local officials into enforcing federal immigration practices and law. See Cnty. of Santa Clara, 250 F. Supp. 3d at 533. And as the order that will follow this one makes plain, the Cities and Counties have also shown a likelihood of success on the merits of their Administrative Procedure Act (“APA”) claim: the Bondi Directive’s order to freeze all DOJ funds is likely arbitrary and capricious, contrary to the Constitution and an ultra vires final agency action under the APA. 5 U.S.C. § 706(2).
As explained in detail in my Texas Law Review article on litigation arising from Trump’s first-term actions targeting sanctuary jurisdictions, executive orders like this one violating constitutional rules on both federalism and separation of powers, because they seek to “commandeer” state and local governments and impose conditions on federal grants that were not authorized by Congress. That article includes discussion of the rulings cited in Judge Orrick’s opinion today (including his own earlier decisions).
This is just a ruling on a preliminary injunction. We don’t yet have a final ruling on the merits, by Judge Orrick. And any such ruling is likely to be appealed. But the combination of today’s decision and precedents from Trump’s first term – issued by both liberal and conservative judges – make it highly likely that Trump’s new anti-sanctuary executive orders will ultimately meet the same fate as the old ones.
For more on the constitutional issues involved, see my Texas Law Review article and this shorter 2018 article I wrote for The Hill. In a recent article for the NYU Brennan Center, I explained how sanctuary jurisdictions can help constrain Trump’s efforts at mass deportation, but also noted possible ways Trump could try to circumvent them.
