Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 1 of 30 1 2 3 4 5 6 7 8 9 10 11 12 DENNIS J. HERRERA, State Bar #139669 City Attorney JESSE C. SMITH, State Bar #122517 Chief Assistant City Attorney RONALD P. FLYNN, State Bar #184186 Chief Deputy City Attorney YVONNE R. MERÉ, State Bar #173594 Chief of Complex and Affirmative Litigation CHRISTINE VAN AKEN, State Bar #241755 TARA M. STEELEY, State Bar #231775 MOLLIE M. LEE, State Bar #251404 SARA J. EISENBERG, State Bar #269303 MATTHEW S. LEE, State Bar #295247 NEHA GUPTA, State Bar #308864 Deputy City Attorneys City Hall, Room 234 1 Dr. Carlton B. Goodlett Place San Francisco, California 94102-4602 Telephone: (415) 554-4748 Facsimile: (415) 554-4715 E-Mail: brittany.feitelberg@sfgov.org Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO 13 14 15 UNITED STATES DISTRICT COURT 16 NORTHERN DISTRICT OF CALIFORNIA 17 18 19 20 21 22 23 24 CITY AND COUNTY OF SAN FRANCISCO, Plaintiff, vs. DONALD J. TRUMP, President of the United States, UNITED STATES OF AMERICA, JOHN F. KELLY, Secretary of United States Department of Homeland Security, JEFFERSON B. SESSIONS III, Attorney General of the United States, DOES 1-100, Case No. 3:17-cv-00485-WHO PLAINTIFF CITY AND COUNTY OF SAN FRANCISCO’S OPPOSITION TO DEFENDANTS’ NOTICE OF MOTION AND MOTION FOR RECONSIDERATION, OR IN THE ALTERNATIVE, CLARIFICATION OF THE COURT’S ORDER OF APRIL 25, 2017 Date Filed: January 31, 2017 Trial Date: April 23, 2018 Defendants. 25 26 27 28 Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 2 of 30 TABLE OF CONTENTS 1 2 3 TABLE OF AUTHORITIES .......................................................................................................... ii  INTRODUCTION ...........................................................................................................................1  FACTUAL BACKGROUND ..........................................................................................................2  4 ARGUMENT ...................................................................................................................................4  5 I.  Defendants Have Not Acted With Reasonable Diligence. ......................................5  6 II.  The AG Memorandum Is Not A New Material Fact Or Change In Controlling Law. ..................................................................................................6  7 A.  The Court Has Already Considered—And Rejected—The Representations Of The AG Memorandum. ................................................6  B.  The AG Memorandum Is Not A Material Fact. ...........................................8  8 9 10 11 12 1.  The Government’s Promise to Adopt A Narrow Construction Does Not Save An Unconstitutional Law. .......................................8  2.  The AG Memorandum Is Not Binding On Other Executive Agencies...........................................................................................9  3.  The AG Memorandum Does Not Bind The Attorney General In The Future..................................................................................12  13 C.  14 15 III.  16 17 18 19 The AG Memorandum Is Not A Change In Controlling Law Because It Is Not Entitled To Deference From This Court. .....................................13  The Attorney General’s Representations Do Not Negate The Court’s Decision To Enjoin Section 9(a) Of The Executive Order. ...................................16  A.  The AG Memorandum Does Not Change The Court’s Justiciability Decision. ...............................................................................16  B.  The AG Memorandum Does Not Eliminate The Constitutional Infirmities Identified By The Court. ..........................................................18  1.  The Funding Restriction, As Narrowed By The AG Memorandum, Still Violates The Separation Of Powers. .............19  21 2.  The Funding Restriction, As Narrowed By The AG Memorandum, Still Violates The Spending Clause.......................20  22 3.  The Funding Restriction, As Narrowed By The AG Memorandum, Still Violates The Tenth Amendment....................22  20 23 24 25 26 IV.  San Francisco Is Entitled To A Preliminary Injunction Based On Its Claim That San Francisco Law Complies With Section 1373. ........................................23  V.  There Is No Need For The Court To Clarify The Preliminary Injunction Order. .24  CONCLUSION ..............................................................................................................................25  27 28 Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 i N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 3 of 30 1 2 3 4 5 6 TABLE OF AUTHORITIES Federal Cases   Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel., Barez, 458 U.S. 592 (1982) ..........................................................................................17 Arik v. Astrue, No. C 08-5564 SBA 2010 WL 6490066 (N.D. Cal. Mar. 29, 2010)...........................................................................16 7 8 9 10 11 Auer v. Robbins 519 U.S. 452 (1997) ............................................................................................................14, 15 Building & Construction Trades Department AFL-CIO v. Allbaugh 295 F.3d 28 (D.C. Cir. 2002) .....................................................................................................18 Carroll v. Nakatani 342 F.3d 934 (9th Cir. 2003) .......................................................................................................4 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Christopher v. SmithKline Beecham Corp. 567 U.S. 142 S. Ct. 2156 (2012) ..........................................................................................14, 15 City of Lakewood v. Plain Dealer Publ'g Co. 486 U.S. 750 (1988) .....................................................................................................................9 Cnty. of Santa Cruz v. Ashcroft 314 F. Supp. 2d 1000 (N.D. Cal. 2004) .....................................................................................13 Comite de Jornaleros de Redondo Beach v. City of Redondo Beach 657 F.3d 936 (9th Cir. 2011) .......................................................................................................9 De La Torre v. CashCall, Inc. 56 F. Supp. 3d 1105 (N.D. Cal. 2014) .........................................................................................8 English v. Apple Inc. No. 14-cv-01619-WHO, 2016 WL 1108929 (N.D. Cal. Mar. 22, 2016) .............................4, 18 Frederick S. Wyle Prof'l Corp. v. Texaco, Inc. 764 F.2d 604 (9th Cir. 1985) .......................................................................................................5 Gray v. Golden Gate Nat. Recreational Area 866 F. Supp. 2d 1129 (N.D. Cal. 2011) .......................................................................................8 Kester v. Campbell 652 F.2d 13 (9th Cir. 1981). ......................................................................................................14 Kona Enterprises, Inc. v. Estate of Bishop 229 F.3d 877 (9th Cir. 2000) .....................................................................................................18 Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 ii N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 4 of 30 1 2 3 4 Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co. 71 F.3d 873 (9th Cir. 2009) ......................................................................................................18 May v. Ryan, No. CV-14-00409-PHX-NVW 2017 WL 1152812 (D. Ariz. Mar. 28, 2017) ...............................................................................9 Ohio ex rel. Celebrezze v. U.S. Dep’t of Transp. 766 F.2d 228 (6th Cir. 1985) .....................................................................................................17 5 6 7 8 9 Organized Village of Kake v. U.S. Dep’t of Agric. 795 F.3d 956 (9th Cir. 2015) .....................................................................................................17 Price v. Stevedoring Services of America, Inc. 697 F.3d 820 (9th Cir. 2012) .....................................................................................................15 Sch. Dist. No. 1J, Multnomah Cnty., Or. V. ACandS Inc. 5 F.3d 1255 (9th Cir. 1993) .........................................................................................................4 10 11 12 13 14 Skidmore v. Swift & Co. 323 U.S. 134 (1944) ...................................................................................................................16 Tenaska Washington Partners II, L.P. v. United States 34 Fed. Cl. 434 (1995) ...............................................................................................................10 Texas v. United States 787 F.3d 733 (5th Cir. 2015) .....................................................................................................17 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Trazo v. Nestle USA, Inc. 113 F. Supp. 3d 1047 (N.D. Cal. 2015) .....................................................................................13 U.S. v. Stevens 559 U.S. 460 (2010) .....................................................................................................................7 United States v. Nosal 676 F.3d 854 (9th Cir. 2012) .......................................................................................................9 United States v. Stevens 559 U.S. 460 (2010) ...........................................................................................................7, 9, 13 Vietnam Veterans of America v. Central Intelligence Agency 811 F.3d 1068 (9th Cir. 2016) ...................................................................................................14 Virginia ex rel. Cuccinelli v. Sebelius 656 F.3d 253 (4th Cir. 2011) .....................................................................................................17 Washington v. Trump 847 F.3d 1151 (2017).................................................................................................................13 Western Watersheds Project v. Abbey 719 F.3d 1035 (9th Cir. 2013) ...................................................................................................14 Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 iii N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 5 of 30 1 Youngstown Sheet & Tube Co. v. Sawye 343 U.S. 579 ..............................................................................................................................20 2 Federal Statutes 3 4 5 6 7   28 U.S.C. Section 512 ................................................................................................................................10 8 U.S.C. § 1103(a)(1) ...............................................................................................................................11 § 1103(c)(1) ...............................................................................................................................10 § 1373 ................................................................................................................................ passim Regulations 8   9 28 C.F.R. Section 0.5(c) .............................................................................................................................10 10 Rules 11   12 Civil L.R. 7-9 ................................................................................................................................................5 7-9(b)(1)–(3) ................................................................................................................................4 13 14 15 16 17 18 Federal Rule of Civil Procedure 59(e) .............................................................................................................................................5 Other Authorities   Discontinued Official Action 13C Fed. Prac. & Proc. Juris. § 3533.7 (3d ed. 2017) ...............................................................12 Gabrielle Levy, Trump Criticizes Justice Department Over His Travel Ban, US News & World Report (June 5, 2017) .....................................................................................................13 19 20 21 22 23 Trevor W. Morrison, Book Review: Constitutional Alarmism the Decline and Fall of the American Preambles As Guidance, Republic, 124 Harv. L. Rev. 1688, 1711 n.90 (2011) ......11 Randolph Moss, Executive Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, 52 Admin. L. Rev. 1303, 1318 (2000) .........................................................11 Kevin M. Stack, Preambles As Guidance 84 Geo. Wash. L. Rev. 1252 (2016) ..........................................................................................16 24 25 Peter L. Strauss, Overseer, or “The Decider”? The President in Administrative Law 75 Geo. Wash. L. Rev. 696 (2007) ............................................................................................11 26 27 28 Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 iv N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 6 of 30 INTRODUCTION 1 Within a week after being sworn in as President of the United States, Donald Trump issued a 2 3 patently unconstitutional Executive Order that makes good on his campaign promise to “cancel all 4 federal funding to sanctuary cities.” See Donald Trump’s Contract with the American Voter (available 5 at https://assets.donaldjtrump.com/_landings/contract/O-TRU-102316-Contractv02.pdf). President 6 Trump intended the Order to be a “weapon” to coerce state and local governments into enforcing 7 federal immigration law. And—to some extent—it worked. Miami-Dade County, for example, 8 quickly revoked its sanctuary policies to avoid losing federal funds. Other jurisdictions, like 9 San Francisco, fought back—filing this action to challenge the constitutionality of the President’s 10 11 action. Following the lawsuits, Defendants continued to threaten sanctuary jurisdictions with the loss 12 of all federal funds, and chose to defend the Order on the purely procedural grounds presented in their 13 brief in opposition to Plaintiffs’ preliminary injunction motion. It was not until the eve of the hearing 14 on San Francisco’s motion for preliminary injunction that Defendants’ lawyers offered a new, narrow 15 interpretation of the Executive Order. The Court rejected that belated and implausible interpretation, 16 concluding that the Executive Order was unconstitutional as written and not reasonably susceptible to 17 Defendants’ newly-announced construction. 18 Then again, Defendants did nothing until the last possible moment. They could have amended 19 the Executive Order, or rescinded it and replaced it with a new one that reflected the interpretation 20 they had urged in court or addressed the constitutional problems identified in this Court’s Order. They 21 did no such thing. Instead, on the eve of their deadline to file a motion for reconsideration, the 22 Attorney General issued a “memorandum” purporting to be guidance concerning implementation of 23 the existing Executive Order. 24 Defendants’ delay in issuing this memorandum maintained the full coercive force of the 25 Executive Order for as long as possible. And indeed the memorandum does little—if anything—to 26 alleviate that force. It says nothing new, just repeats counsel’s prior oral assertions that this Court 27 already rejected as inconsistent with the plain text of the Executive Order. Most importantly, it leaves 28 the facially unconstitutional Executive Order to stand, without alteration. And, even on its own terms, Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 1 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 7 of 30 1 by saying that the Executive Order merely requires compliance with Section 1373 without any 2 explanation about what that means, the memorandum leaves in place the threat that the Government 3 will withhold federal funds from—and take other unspecified action against—jurisdictions that fail to 4 comply with detainer requests. From the public statements and actions of the administration, that 5 seems to be exactly what the President intends. 6 Accordingly, and for the reasons explained below, the memorandum is not a new material fact 7 or change in law that justifies reconsideration. The Court should reject Defendants’ attempt to save 8 this unsalvageable and unconstitutional Executive Order. FACTUAL BACKGROUND 9 10 On January 25, 2017, the President issued Executive Order 13768, entitled “Enhancing Public 11 Safety in the Interior of the United States.” The Executive Order directs the Attorney General and the 12 Secretary of the Department of Homeland Security (“DHS”) to strip “sanctuary jurisdictions” of 13 federal funds (the “Funding Restriction”) and to “take appropriate enforcement action against any 14 entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or 15 hinders the enforcement of Federal law” (the “Enforcement Directive”). Executive Order §§ 1, 2, 9(a). 16 For weeks thereafter, the country heard nothing that would suggest the Executive Order has modest 17 aims or a narrow reach. 18 Quite the opposite. A week after signing the Executive Order “President Trump confirmed that 19 he was willing and able to use ‘defunding’ as a ‘weapon’ so that sanctuary cities would change their 20 policies.” Order Granting the County of Santa Clara’s and City of San Francisco’s Motions to Enjoin 21 Section 9(a) of Executive Order 13768 (Dkt. No. 82) (“PI Order”) at 23 (quoting transcript of Feb. 5, 22 2017 Bill O’Reilly Interview with President Trump). The President’s Press Secretary informed the 23 nation that the President intended to ensure that “counties and other institutions that remain sanctuary 24 cities don’t get federal government funding,” and praised Miami-Dade County, which had swiftly 25 reformulated its sanctuary policies, for “understand[ing] the importance of this order.” Id. at 23-24 26 (quoting transcript of Feb. 8, 2017 White House press briefing). And Attorney General Jefferson 27 Sessions stated at a press conference that failure to comply with Section 1373 would result in 28 “withholding grants, termination of grants, and disbarment or ineligibility for future grants,” and that Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 2 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 8 of 30 1 the Government would even seek to “claw back” funds awarded to a non-compliant jurisdiction. Id. at 2 24 (quoting AG Sessions’ Mar. 27, 2017 press conference). 3 Then, in a last-minute about-face, Defendants orally proposed a new, narrowed interpretation 4 of the Executive Order during the hearing on Plaintiffs’ motion for a preliminary injunction. See PI 5 Order at 2. This Court rejected that interpretation as “not legally plausible” (id. at 3), and 6 preliminarily enjoined Section 9(a) (id. at 49). In the weeks following the issuance of the Preliminary 7 Injunction, Defendants remained silent. Defendants’ counsel indicated at the May 2, 2017 case 8 management conference in this case that Defendants intended to issue “formal guidance” 9 memorializing “what [they] said in the oral argument” in a manner “more persuasive than simply 10 counsel’s statement at oral argument.” Declaration of Sara J. Eisenberg in Support of CCSF’s 11 Opposition to Defendants’ Motion for Reconsideration (“Eisenberg Decl.”) Exh. B at 16. But 12 Defendants did nothing for several more weeks. On May 22—nearly a full month after the 13 preliminary injunction order was issued—the Attorney General published an “implementation” 14 memorandum purporting to narrow the Executive Order’s reach consistent with defense counsel’s 15 statements at the hearing. See Defendants’ Motion for Reconsideration (Dkt. No. 107) (“Motion” or 16 “Mot.”) Attachment A (“AG Memorandum” or “Memorandum”).1 17 The evening of May 22, Defendants filed a request for leave to file a motion for 18 reconsideration and asked the Court to rule on the request by the following day. See Defendants’ 19 Motion for Leave to File a Motion for Reconsideration (Dkt. No. 102) (“Motion for Leave”) at n.1. In 20 the short time it had, San Francisco opposed the request, asserting that Defendants were not diligent in 21 bringing the motion and failed to demonstrate the material change in facts or law necessary to justify 22 filing a motion for reconsideration. See Plaintiff CCSF’s Opposition to Defendants’ Motion for Leave 23 to File a Motion for Reconsideration (Dkt. No. 103) at 1-4. The Court agreed that this was largely an 24 emergency of Defendants’ own making, but granted Defendants leave to file their motion for 25 26 27 28 1 Meanwhile, the very next day, the President released his budget proposal to Congress, which included a troubling reformulation of 8 U.S.C. § 1373. The proposed revisions would expand Section 1373 to do what the Executive Order does on its face: require jurisdictions to comply with detainer requests and prohibit them from withholding broad swaths of information from ICE. See Request for Judicial Notice in Support of CCSF’s Opposition to Defendants’ Motion for Reconsideration (“RJN”) Exh. A. Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 3 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 9 of 30 1 reconsideration in order to avoid creating a procedural ambiguity concerning their time to appeal the 2 PI Order. See Order Granting Motion for Leave to File Motion For Reconsideration (Dkt. No. 106) 3 (“Reconsideration Order”) at 1-2. The Court stated, however, that it would “consider the issues raised 4 in the Counties’ short oppositions regarding diligence and material change of fact when evaluating the 5 merits of the government’s motion.” Id. at 2. 6 ARGUMENT 7 “Reconsideration ‘offers an extraordinary remedy, to be used sparingly in the interests of 8 finality and conservation of judicial resources.’” English v. Apple Inc., No. 14-cv-01619-WHO, 2016 9 WL 1108929, at *2 (N.D. Cal. Mar. 22, 2016) (Orrick, J.) (quoting Carroll v. Nakatani, 342 F.3d 934, 10 945 (9th Cir. 2003)). It is appropriate to be used “if the district court (1) is presented with newly 11 discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if 12 there is an intervening change in controlling law.” Sch. Dist. No. 1J, Multnomah Cnty., Or. V. 13 ACandS Inc., 5 F.3d 1255, 1263 (9th Cir. 1993). Moreover, under the governing local rules, a party 14 seeking leave to file a motion for reconsideration must “specifically show” that (1) they acted with 15 reasonable diligence and (2) one of the following three grounds for reconsideration applies: (1) That at the time of the motion for leave, a material difference in fact or law exists from that which was presented to the Court before entry of the interlocutory order for which reconsideration is sought. The party also must show that in the exercise of reasonable diligence the party applying for reconsideration did not know such fact or law at the time of the interlocutory order; or (2) The emergence of new material facts or a change of law occurring after the time of such order; or (3) A manifest failure by the Court to consider material facts or dispositive legal arguments which were presented to the Court before such interlocutory order. 16 17 18 19 20 21 22 Civil L.R. 7-9(b)(1)–(3).2 Defendants do not specify which of these circumstances they believe apply 23 to justify the “extraordinary remedy” of reconsider here. Nor could they. In fact, Defendants cannot 24 meet any aspect of this high standard. 25 // 26 27 28 2 Although these factors technically relate to the question of whether leave to file a motion for reconsideration should be granted, the Court’s order granting Defendants leave to file their Motion stated that the Court would “consider . . . diligence and material change of fact when evaluating the merits of the government’s motion.” Reconsideration Order at 2. Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 4 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 10 of 30 1 2 I. Defendants Have Not Acted With Reasonable Diligence. The Court should deny Defendants’ Motion because they have not met the threshold 3 requirement of acting with reasonable diligence. Defendants’ Motion is based on the AG 4 Memorandum, which was not issued until May 22. Defendants did not issue it promptly after the 5 Executive Order issued on January 25, 2017. They did not issue it after San Francisco filed its 6 complaint in this matter on January 31, 2017, or moved for a preliminary injunction on March 8, 2017. 7 And they did not issue it before the preliminary injunction hearing on April 14, 2017. Instead, 8 Defendants waited until the last possible moment—the deadline to file for reconsideration of the Order 9 granting San Francisco’s motion for a preliminary injunction—before finally issuing the AG 10 Memorandum and using it as the basis of their Motion. In other words, although the timing of this 11 Memorandum was wholly within Defendants’ control, Defendants waited to issue it until 117 days 12 after the President issued the Executive Order, and a full 27 days after the Court issued its Order 13 granting Plaintiffs’ motion for a preliminary injunction. Defendants nowhere explain their 14 unreasonable delay in issuing the AG Memorandum. 15 Defendants’ lack of diligence is—on its own—sufficient reason to deny the Motion under 16 Local Rule 7-9, and it is also grounds to reject any attempt to characterize the AG Memorandum as 17 “newly discovered evidence” warranting reconsideration under Federal Rule of Civil Procedure 59(e). 18 “[T]o support a motion for reconsideration. . . based upon newly discovered evidence, the movant is 19 obliged to show not only that this evidence was newly discovered or unknown to it until after the 20 hearing, but also that it could not with reasonable diligence have discovered and produced such 21 evidence at the hearing.” Frederick S. Wyle Prof'l Corp. v. Texaco, Inc., 764 F.2d 604, 609 (9th Cir. 22 1985) (internal quotation marks and emphasis omitted, other emphasis added). Defendants do not 23 explain why the Attorney General could not have issued a memorandum before the preliminary 24 injunction hearing, so that the Court could have considered it in its original Order. Instead, they have 25 used the slow rollout of the Attorney General’s views about the Executive Order to take three bites at 26 the apple: first defending the Executive Order on the purely procedural grounds presented in their brief 27 in opposition to Plaintiffs’ preliminary injunction motion, then offering a narrower interpretation of 28 the Executive Order through the argument of counsel at the preliminary injunction hearing, and only Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 5 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 11 of 30 1 when all else failed, presenting the Attorney General’s views in the form of a written memorandum 2 that they now characterize as binding and conclusive. Defendants’ delay tactics maintained the full coercive force of the Executive Order for as long 3 4 as possible, until the eve of their deadline to file a motion for reconsideration. Their belated effort to 5 save the Executive Order through the narrowing construction offered in the AG Memorandum shows a 6 profound lack of diligence. The Motion can—and should—be denied for this reason alone. 7 II. The AG Memorandum Is Not A New Material Fact Or Change In Controlling Law. 8 At the hearing on San Francisco’s motion for a preliminary injunction, the Acting Assistant 9 Attorney General argued that the “plain terms” of the Executive Order made clear that Section 9(a) 10 had a significantly narrower scope than the City feared. Eisenberg Decl. Exh. A at 21. The Court 11 rejected this argument, explaining in its order granting the preliminary injunction that the text of the 12 Executive Order was “not readily susceptible” to this narrow interpretation. PI Order at 14. Having 13 received this ruling from the Court, Defendants could have amended the text of the Executive Order, 14 or rescinded it and replaced it with a new one that reflected the interpretation urged in court. They did 15 neither. Instead, the Attorney General simply issued a memorandum concerning the existing 16 Executive Order. It is unclear whether the AG Memorandum purports to set forth a narrowing 17 construction of the Executive Order or just a promise to implement a facially broad Order in a 18 particular narrow manner. But regardless of whether it contains the Attorney General’s interpretation 19 of the Executive Order or just his plans to implement it, the AG Memorandum is not a new material 20 fact or change in controlling law that warrants reconsideration of the Court’s PI Order. 21 A. 22 The Court Has Already Considered—And Rejected—The Representations Of The AG Memorandum. 23 There is nothing substantively new in the AG Memorandum, and Defendants do not claim 24 otherwise. To the contrary, they acknowledge—even emphasize—that the Memorandum merely 25 “reaffirms the representations made by government counsel at oral argument” (Mot. at 5)— 26 // 27 // 28 // Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 6 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 12 of 30 1 representations the Court already considered while evaluating San Francisco’s request for a 2 preliminary injunction.3 3 As summarized by Defendants, the AG Memorandum does two things: [1] it specifies that the 4 Executive Order does not expand the constitutional or statutory authority of the Attorney General or 5 the Secretary of DHS in any respect (Mot. at 4 (citing AG Memorandum at 2)) and [2] it clarifies that 6 the Funding Restriction applies only to grants administered by DOJ or DHS and “with respect to DOJ 7 grants, only to those programs where explicit terms condition eligibility on certification of compliance 8 with 8 U.S.C. Section 1373” (Mot. at 8 (citing AG Memorandum at 1-2)). This is almost exactly what 9 the Acting Assistant Attorney General said in court.4 See, e.g., Eisenberg Decl. Exh. A at 22:22-25 10 (“So now the . . . financial impact of Section 9(a) is with respect to federal grants issued by the 11 Department of Homeland Security and the Department of Justice.”); id. at 25:4-7 (“[T]he Executive 12 Order is directed to only grants issued by DHS and DOJ. And it’s . . . expressly to grants. It would 13 have to be grants where there is notification to the grantee that they have to require 1373.”); see also 14 Defendants’ Opposition to San Francisco’s Motion for Preliminary Injunction (Dkt. No. 35) (“PI 15 Opposition”) at 1 (stating that the Executive Order “does not purport to . . . expand the legal authority 16 of the Secretary or the Attorney General”). 17 Moreover, there is no question that the Court considered Defendants’ representations 18 concerning the meaning and effect of the Executive Order and found that the Order was “not readily 19 susceptible to the Government’s narrow interpretation,” and that reading it as the Government 20 proposed would “‘require[] rewriting, not just reinterpretation.’” PI Order at 14 (quoting U.S. v. 21 Stevens, 559 U.S. 460, 481 (2010)). Specifically, the Court concluded that reading the Executive 22 Order as Defendants proposed—i.e., as not giving the Attorney General or the Secretary of DHS any 23 24 25 26 27 28 3 See also Motion for Leave at 2 (explaining that the AG Memorandum “reflect[s] statements by defendants’ counsel at oral argument.”); id. at 6 (“The AG Memorandum specifies that – as defendants’ counsel represented at oral argument – the grant-eligibility provision is limited to ‘federal grants administered by [DOJ] or [DHS],’ and to grants that have eligibility terms requiring applicants to ‘certify their compliance with federal law, including 8 U.S.C. § 1373, as a condition for receiving an award.’”) (emphasis added). 4 The only difference is that at the preliminary injunction hearing, counsel indicated that the requirement of explicit terms conditioning eligibility on certification of compliance Section 1373 applied to both DOJ and DHS grants. Thus, the AG Memorandum actually sets forth a broader interpretation of the Executive Order than the Acting Assistant Attorney General did in court. Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 7 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 13 of 30 1 new authority and applying only to limited grants administered by DOJ or DHS—was inconsistent 2 with the plain text of Section 9(a) as well as the “structure and language” of other provisions of the 3 Executive Order. Id. at 15; see also id. at 14 (“While the Government urges that the Order ‘does not 4 purport to give the Secretary or Attorney General the unilateral authority’ to impose new conditions on 5 federal grants, that is exactly what the Order purports to do.”); id. at 15 (“At the hearing, Government 6 counsel argued that the Order applies only to grants issued by the Department of Justice and the 7 Department of Homeland Security because it is directed only at the Attorney General and Secretary of 8 Homeland Security. This reading is similarly implausible.”). Nothing about the fact that Defendants’ prior representations are now set forth in a written 9 10 memorandum affects this conclusion. Since the Court has already fully considered Defendants’ 11 arguments based on these representations, there is no reason to consider them again. A “motion for 12 reconsideration may not be used to relitigate old matters.” De La Torre v. CashCall, Inc., 56 F. Supp. 13 3d 1105, 1107 (N.D. Cal. 2014) (internal quotation marks omitted). Nor may it “be used to ask the 14 Court to rethink what it has already thought.” Gray v. Golden Gate Nat. Recreational Area, 866 F. 15 Supp. 2d 1129, 1132 (N.D. Cal. 2011). In short, where the issue has already been presented to—and 16 decided by—the Court, reconsideration is not appropriate. 17 B. 18 The AG Memorandum Is Not A Material Fact. 1. 19 The Government’s Promise to Adopt A Narrow Construction Does Not Save An Unconstitutional Law. The AG Memorandum cannot be a new material fact because it does not say anything new. 20 21 But moreover, even if the Court considered the AG Memorandum as a promise to implement the 22 Executive Order narrowly, this fact would not be material to the Court’s analysis of the Executive 23 Order because, as this Court previously explained, the Government’s narrow interpretation or 24 application of a facially unconstitutional law does not cure the constitutional infirmities or eliminate 25 the need for injunctive relief. See PI Order at 16 (“[A]pplying a narrow construction to an 26 unconstitutionally overbroad statute does not address the confusion and potential deterrent effect 27 caused by the language of the law itself.”). 28 // Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 8 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 14 of 30 1 This principle is well established. In Doe v. Harris, 772 F.3d 563 (9th Cir. 2014), for example, 2 plaintiffs sought to preliminarily enjoin a provision of California law that required registered sex 3 offenders to provide the state with a list of all internet identifiers (e.g., user names or screen names) 4 established or used by the person. Id. at 568-69. The plaintiffs argued, inter alia, that the provision 5 burdened registered sex offenders’ ability to engage in anonymous online speech because it permitted 6 the information about their internet identifiers to be disclosed to members of the public “when 7 necessary to ensure the public safety.” Id. at 579-80. The state argued that the challenged statute, 8 when “construed with existing constraints on law enforcement activities, cabin[ed] the discretion of 9 law enforcement” and therefore could not lead to constitutional violations. Id. at 581. The Ninth 10 Circuit rejected this argument and upheld the grant of a preliminary injunction, stating that a “promise 11 from the State that it will use the power appropriately is not sufficient” to save an unconstitutional law. 12 Id. at 580-81; see also United States v. Stevens, 559 U.S. 460, 480 (2010) (“We would not uphold an 13 unconstitutional statute merely because the Government promised to use it responsibly.”). 14 The reasons for this rule are apparent. It leaves a facially unconstitutional mandate to stand 15 without alteration. And as the Supreme Court has explained, the Constitution “protects against the 16 Government; it does not leave us at the mercy of noblesse oblige.” Stevens, 559 U.S. at 480; see also 17 United States v. Nosal, 676 F.3d 854, 862 (9th Cir. 2012) (“The government assures us that, whatever 18 the scope of the CFAA, it won’t prosecute minor violations. But we shouldn’t have to live at the 19 mercy of our local prosecutor.”); Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 20 657 F.3d 936, 946–47 (9th Cir. 2011) (“We cannot simply ‘presume[ ] the [City] will act in good faith 21 and adhere to standards absent from the ordinance’s face.’”) (quoting City of Lakewood v. Plain 22 Dealer Publ'g Co., 486 U.S. 750, 770 (1988)); May v. Ryan, No. CV-14-00409-PHX-NVW, 2017 WL 23 1152812, at *13 (D. Ariz. Mar. 28, 2017) (“Just trusting the government to do the right thing is poor 24 dressing for constitutional wounds.”). 25 2. The AG Memorandum Is Not Binding On Other Executive Agencies. 26 In an attempt to avoid the consequences of this common-sense rule against “[j]ust trusting the 27 government,” Defendants repeatedly characterize the AG Memorandum as is “formal,” “conclusive” 28 and “binding.” Mot. at 4, 5, 6, 10. It is not. In fact, the issuance of the AG Memorandum provides no Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 9 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 15 of 30 1 assurance that other Executive Branch agencies and officials—or indeed, the Attorney General 2 himself, as we address in the next subsection—will refrain from interpreting and applying the 3 Executive Order more broadly in accordance with its plain language. 4 Defendants argue that tradition, as well as federal law and regulation, transform the AG 5 Memorandum into “conclusive” guidance that is binding the Executive Branch. Mot. at 5. But all of 6 the authorities Defendants rely upon to support this assertion relate to the Attorney General’s reasoned 7 opinions on questions of law. The AG Memorandum is not legal analysis, but instead—as its title 8 indicates—an implementation document. It does nothing more than summarize the relevant terms of 9 the Executive Order and set forth the Attorney General’s determination of how he intends to carry out 10 the responsibilities it assigns to him. It offers no legal analysis or opinion regarding, for example, the 11 constitutional limits of the Executive Order’s broad language or the legal reasons requiring or dictating 12 his espoused narrowed interpretation. 13 Accordingly, none of the authority Defendants cite is relevant to whether and to what extent 14 the AG Memorandum binds other Executive Branch agencies and officials. 28 U.S.C. Section 512 and 15 28 C.F.R. Section 0.5(c), for example, merely describe the role and function of the Attorney General. 16 The former permits a department head to request and obtain an Attorney General opinion on a 17 “question of law arising in the administration of his department.” The latter requires the Attorney 18 General to provide “formal and informal” advice and opinions “on legal matters.” Both sections refer 19 to the authority of the Attorney General to issue legal opinions on questions of law, but neither 20 addresses whether those legal opinions—much less a non-legal implementation memorandum of the 21 type of at issue here—are binding on federal officials. 22 The other authorities cited by Defendants are similarly inapposite. Tenaska Washington 23 Partners II, L.P. v. United States, 34 Fed. Cl. 434, 439 (1995), involved a formal memorandum issued 24 by the Office of Legal Counsel (“OLC”) concerning a matter of law, namely the “Constitutional 25 Limitations on Federal Government Participation in Binding Arbitration.” There is no indication here 26 that the AG’s Memorandum is the product of deliberation by OLC. Section 1103(a)(1)5 of title 8 of 27 28 5 Defendants cite to 8 U.S.C. § 1103(c)(1), but that appears to be a typo. 8 U.S.C. § 1103(c)(1) concerns the definition of a “child.” Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 10 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 16 of 30 1 the U.S. Code provides that the “Secretary of Homeland Security shall be charged with the 2 administration and enforcement of this chapter and all other laws relating to the immigration and 3 naturalization of aliens,” but that a “determination and ruling by the Attorney General with respect to 4 all questions of law shall be controlling.” (Emphasis added.) And Randolph Moss’ article, Executive 5 Branch Legal Interpretation: A Perspective from the Office of Legal Counsel, in fact concludes that, 6 “the question of whether (and in what sense) the opinions of the Attorney General, and, more recently, 7 the Office of Legal Counsel, are legally binding within the executive branch remains somewhat 8 unsettled.” 52 Admin. L. Rev. 1303, 1318 (2000); see also Trevor W. Morrison, Book Review: 9 Constitutional Alarmism the Decline and Fall of the American Republic, 124 Harv. L. Rev. 1688, 10 1711 n.90 (2011) (“[T]here has long been some uncertainty about the technical legal bindingness of 11 Attorney General and OLC legal advice.”); Peter L. Strauss, Overseer, or “The Decider”? The 12 President in Administrative Law, 75 Geo. Wash. L. Rev. 696, 739 (2007) (noting that “strikingly 13 limited statutory or even executive authority supports the proposition that the Attorney General’s 14 opinions on legal matters are entitled to controlling status”). 15 Notably, in the AG Memorandum, the Attorney General states: “After consultation with the 16 Secretary of Homeland Security, I have determined that, for purposes of enforcing the Executive 17 Order, the term ‘sanctuary jurisdiction’ will refer only to jurisdictions that ‘willfully refuse to comply 18 with 8 U.S.C. 1373.’” AG Memorandum at 2 (emphasis added). But the Secretary of DHS—not the 19 Attorney General—is expressly charged with “designat[ing], in his discretion and to the extent 20 consistent with law,” which jurisdictions qualify as “sanctuary jurisdictions.” Executive Order § 9(a). 21 Defendants nowhere explain how or why the Attorney General would have the authority to make this 22 determination at all—let alone bind the Secretary to it. 23 Moreover, the Memorandum is only directed to grant-making components of the Department 24 of Justice, not to DHS or any other federal agency. As its title states, it is a “Memorandum for All 25 Department Grant-Making Components.” This limited class of recipients does not include all of the 26 Department of Justice, much less all federal agencies. This contrasts with memoranda that are, in fact, 27 directed to all Executive Departments and Agencies. See, e.g., RJN Exh. I (“Memorandum for Heads 28 of All Federal Departments and Agencies” re Section 508 of the Rehabilitation Act). Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 11 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 17 of 30 1 In short, Defendants cite no authority indicating that the Attorney General controls other 2 Executive Branch agencies or officials—including the secretary of DHS, who is expressly charged 3 with coextensive and concurrent functions under the Executive Order—in their implementation of 4 statutes or Executive Orders, as the AG Memorandum purports to do. This would be a significant, 5 unprecedented, and unauthorized expansion of the Attorney General’s powers. 6 7 8 9 3. The AG Memorandum Does Not Bind The Attorney General In The Future. Defendants do not even argue that the issuance of the AG Memorandum binds the Attorney General’s hands going forward. Nor could they. In the absence of a court order, nothing at all 10 prevents the Attorney General from interpreting or applying the Executive Order more broadly in the 11 future. And there is particular reason to be concerned about the possibility here. 12 First, the current narrow construction appears to have been formulated in response to this 13 lawsuit and the Court’s ruling. The Executive Order issued on January 25, 2017. But Defendants did 14 not articulate any narrowing principles until the hearing on the preliminary injunction, and the 15 Attorney General did not issue the AG Memorandum until the eve of the deadline to file a motion for 16 reconsideration of the Court’s PI Order. In similar circumstances, courts have looked askance at 17 changes in conduct adopted in response to litigation and judicial scrutiny. See Discontinued Official 18 Action, 13C Fed. Prac. & Proc. Juris. § 3533.7 (3d ed. 2017) (collecting cases). 19 Moreover, the Attorney General has not disavowed the constitutionality of a broader 20 construction or even repeated counsel’s prior assertion that the narrow construction is the only fair 21 reading of the text. The AG Memorandum simply states how he has “determined Section 9(a) of the 22 Executive Order . . . will be applied” (AG Memorandum at 1)—leaving him free to embrace a 23 different construction in the future. And there is good reason to think that the Attorney General will 24 later change course. Defendants’ current assertion that the Executive Order applies to only limited 25 funds is inconsistent with their prior statements indicating that the Order was significantly more far 26 reaching. See pp. 2-3, supra; PI Order at 3 (noting that “if there was doubt about the [broad] scope of 27 the Order, the President and the Attorney General have erased it with their public comments”). And 28 on the same day that Attorney General Sessions stated in public remarks that failure to comply with Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 12 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 18 of 30 1 detainer requests violates federal law and will render jurisdictions ineligible for Department of Justice 2 (“DOJ”) grants under Section 1373 (Supplemental Request for Judicial Notice in Support of CCSF’s 3 Motion for Preliminary Injunction (Dkt. No. 61) Exh. C), he also filed a brief in the Supreme Court of 4 Massachusetts stating that “detainers are voluntary.” Id., Exh. F at 22; see also id. at 22-23. As the 5 Ninth Circuit recently held in Washington v. Trump, 847 F.3d 1151 (2017), such “shifting 6 interpretations” of an Executive Order render it impossible to conclude that “the current interpretation 7 . . . even if authoritative and binding, will persist past the immediate stage of these proceedings.” Id. 8 at 1166.6 9 In sum, because the AG Memorandum does not prevent Executive Branch or the Attorney 10 General from interpreting and applying the Executive Order more broadly going forward, the Attorney 11 General’s presently-stated “promise[] to use it responsibly” cannot save the facially unconstitutional 12 Executive Order. Stevens, 559 U.S. at 480. 13 C. 14 The AG Memorandum Is Not A Change In Controlling Law Because It Is Not Entitled To Deference From This Court. 15 Although a change in law justifying reconsideration is usually a change in controlling case law 16 or perhaps the amendment of a relevant statute,7 the AG Memorandum could potentially be considered 17 a “change in law” if it set forth an interpretation of the Executive Order to which this Court were 18 required to defer under principles of administrative law. But it does not. To the extent the 19 Memorandum purports to set forth a narrower interpretation of the Executive Order than the plain text 20 6 21 22 23 24 25 26 27 Notably, President Trump’s recent tweets concerning the “travel ban” at issue in Washington v. Trump highlight the frequency with which Defendants change position with respect to executive orders. Although President Trump issued an amended order in March 2017, he declared in a June 5th Twitter post that “‘[t]he Justice Dept. should have stayed with the original Travel Ban, not the watered down, politically correct version they submitted to S.C.’” He continued by stating that “[t] he Justice Dept. should ask for an expedited hearing of the watered down Travel Ban before the Supreme Court & seek much tougher version!’” Gabrielle Levy, Trump Criticizes Justice Department Over His Travel Ban, US News & World Report (June 5, 2017) (quoting President Trump’s June 5, 2017 Tweets”). 7 See, e.g., Trazo v. Nestle USA, Inc., 113 F. Supp. 3d 1047, 1049 (N.D. Cal. 2015) (granting motion for reconsideration based on a change in controlling case law effectuated by a Ninth Circuit opinion issued subsequent to the court’s initial order); Cnty. of Santa Cruz v. Ashcroft, 314 F. Supp. 2d 1000, 1005-07 (N.D. Cal. 2004) (granting motion for reconsideration based on a Supreme Court decision “expressly represent[ing] a change in the law applicable to th[e] case”). 28 Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 13 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 19 of 30 1 suggests, it is not an interpretation that can or should be credited by this Court under any applicable 2 theory of deference to an administrative agency. 3 Under Ninth Circuit precedent, courts are required to give deference to an 4 agency’s “reasonable” interpretation of an executive order it is charged with administering. See 5 Western Watersheds Project v. Abbey, 719 F.3d 1035, 1042-43 (9th Cir. 2013); see also Kester v. 6 Campbell, 652 F.2d 13, 15 (9th Cir. 1981).8 “To determine reasonableness, [the Ninth Circuit has] 7 adopted the standard applied for reviewing an agency’s interpretation of its own regulations.” Western 8 Watersheds Project, 719 F.3d at 1043. Pursuant to that standard—articulated by the Supreme Court in 9 Auer v. Robbins, 519 U.S. 452 (1997)—deference to the agency’s position is not absolute. Rather, 10 under Auer, an agency’s interpretation is not entitled to deference if is it “plainly erroneous or 11 inconsistent with the [order].” Id. at 461. And deference is “unwarranted when there is reason to 12 suspect that the agency’s interpretation ‘does not reflect the agency’s fair and considered judgment on 13 the matter in question.’” Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 132 S. Ct. 2156, 14 2166 (2012) (quoting Auer, 519 U.S. at 462). 15 Ninth Circuit cases applying Auer confirm the limits of Auer deference. In Vietnam Veterans 16 of America v. Central Intelligence Agency, 811 F.3d 1068 (9th Cir. 2016), for example, the Ninth 17 Circuit considered the Army’s interpretation of Army Regulation 70–25 (“AR 70-25”). AR 70-25 was 18 originally enacted in 1962, creating policies and procedures to govern the use of human subjects in 19 Army research. Id. at 1072. Veterans’ organizations and individuals subject to those experiments 20 challenged the Army’s compliance with the 1988 and 1990 amendments to AR 70-25, contending that 21 the Army had failed to notify former test subjects of relevant new health information as it became 22 available. Id. at 1071. The Army offered a narrowed application and interpretation of AR 70-25 23 during the pendency of the litigation, arguing that the 1988 amendment applied prospectively only. Id. 24 at 1076-77. After noting that “Auer deference is not warranted in all circumstances,” the Ninth Circuit 25 26 27 28 8 Here, although the Executive Order charges both the Attorney General and the Secretary of DHS with implementing the terms of the Order, the Memorandum was written by the Attorney General. There is no indication that the Secretary of Homeland Security participated in the creation of the AG Memorandum let alone whether he agrees with the Attorney General’s narrowed view of its implementation. Giving deference to the AG Memorandum and binding the Secretary DHS to the Attorney General’s interpretation would extend deference beyond its current precedential bounds. Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 14 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 20 of 30 1 declined to extend Auer deference to the Army’s proposed interpretation because it did not “reflect the 2 agency’s fair and considered judgment on the matter in question.” Id. at 1078. The court held that the 3 Army’s narrowed interpretation was a “convenient litigating position” developed “only in the context 4 of this litigation” and thus not entitled to deference. Id. 5 Similarly, in Price v. Stevedoring Services of America, Inc., 697 F.3d 820 (9th Cir. 2012) (en 6 banc), the Ninth Circuit elucidated some circumstances in which a court might suspect that an agency 7 interpretation “does not reflect the agency’s fair and considered judgment on the matter in question”: 8 9 10 Indicia of inadequate consideration include conflicts between the agency’s current and previous interpretations; signs that the agency’s interpretation amounts to no more than a convenient litigating position; or an appearance that the agency’s interpretation is no more than a post hoc rationalization advanced by an agency seeking to defend past agency action against attack. 11 Id. at 830 n.4 (internal quotation marks and citations omitted). Under these precedents, the AG 12 Memorandum is not entitled to any deference for two independent and adequate reasons. 13 First, as discussed above, this Court has already determined that the Attorney General’s 14 representations are inconsistent with the plain text of the Executive Order. See pp. 7-8, supra. 15 Deference under Auer—or any other doctrine—is clearly not appropriate to views that contradict the 16 superior law being interpreted. See Auer v. Robbins 519 U.S. at 461; SmithKline, 132 S. Ct. at 2166. 17 Second, the circumstances surrounding the issuance of the AG Memorandum are replete with 18 “[i]ndicia of inadequate consideration.” Price, 697 F.3d at 830 n.4. Defendants’ statements about the 19 meaning and application of the Executive Order and the underlying law have been inconsistent. See 20 pp. 12-13, supra. There are significant signs that the Attorney General’s interpretation—which was 21 first articulated at the preliminary injunction hearing and then reiterated in the AG Memorandum— 22 amounts to no more than a convenient litigating position. Certainly, there is no indication that the AG 23 Memorandum reflects “considered judgment” or a deliberation of any kind that is unmoored to 24 enhancing Defendants’ litigation position. And Defendants’ delay in voicing and codifying this 25 narrowed interpretation creates an appearance that the AG Memorandum is a “‘post hoc 26 rationalizatio[n]’ advanced by an agency seeking to defend [the Executive Order] action against 27 attack” rather than a “fair and considered judgment.” Auer, 519 U.S. at 462. 28 To ascribe Auer deference to the AG Memorandum would be to reward a defendant for Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 15 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 21 of 30 1 manufacturing a hollow writing to gain a litigation advantage. This undermines the principal and 2 purpose of Auer, which is to give controlling deference to positions agencies take on regulatory 3 matters within their expertise which reflect deliberate, well-reasoned views rather than “strategic 4 positions taken post hoc.” Kevin M. Stack, Preambles As Guidance, 84 Geo. Wash. L. Rev. 1252, 5 1280 (2016).9 6 III. 7 8 9 The Attorney General’s Representations Do Not Negate The Court’s Decision To Enjoin Section 9(a) Of The Executive Order. If, despite the above, the Court concludes that the AG Memorandum is a change in law or fact that warrants reconsideration of San Francisco’s request for preliminary relief, Defendants’ Motion 10 should still be denied. Even if the Court fully credited all of the representations in the AG 11 Memorandum, they would not dictate a different result. Defendants do not argue that the AG 12 Memorandum impacts the Court’s analysis of irreparable harm, the balance of the equities or the 13 public interest. As a result, they have waived any argument in this regard. See e.g., Arik v. Astrue, 14 No. C 08-5564 SBA, 2010 WL 6490066, at *8 (N.D. Cal. Mar. 29, 2010) (“[B]ecause Plaintiff failed 15 to raise this issue in her opening brief, it is deemed waived and is not properly before the Court.”). 16 Defendants argue only that the Memorandum undermines the Court’s justiciability determination and 17 eliminates the Court’s constitutional concerns. It does neither. 18 A. The AG Memorandum Does Not Change The Court’s Justiciability Decision. 19 In its opposition to San Francisco’s motion for a preliminary injunction, Defendants argued 20 that the case was not justiciable. PI Opposition at 17. The Court rejected this argument. PI Order at 21 11-34. Contrary to Defendants’ assertion (Mot. at 8), even if the AG Memorandum’s attempt to 22 narrow the Executive Order could be credited, it would not change the Court’s decision. 23 24 25 26 27 28 Even as rewritten by the AG Memorandum, the Executive Order threatens San Francisco with 9 If the Court applied a lesser level of deference to the AG Memorandum, the result would remain unchanged. “The weight of [an agency’s interpretive decision] in a particular case will depend upon the thoroughness evident in its consideration, the validity of its reasoning, its consistency with earlier and later pronouncements, and all those factors which give it power to persuade, if lacking power to control.” Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944). Here, as argued above, the AG Memorandum was hastily considered, is inconsistent with the Executive Order, and was created to gain a strategic litigation advantage. Thus, even applying Skidmore deference, the AG Memorandum should not be credited such that it would persuade this Court to vacate or alter its PI Order. Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 16 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 22 of 30 1 the loss of at least some federal grant funds. As the Court previously held, this “‘loss of funds 2 promised under federal law []satisfies Article III’s standing requirement.’” PI Order at 29 (quoting 3 Organized Village of Kake v. U.S. Dep’t of Agric., 795 F.3d 956, 965 (9th Cir. 2015). Moreover, there 4 can still be no dispute that the purpose of the Executive Order is to pressure jurisdictions to change 5 their laws—and that this, too, constitutes an injury sufficient to satisfy the Article III case or 6 controversy requirement. See PI Order at 27-28 (concluding that the “Counties’ claims implicate a 7 constitutional interest” because the “Executive Order seeks to compel them to change their policies 8 and enforce the Federal government’s immigration laws”); see also Alfred L. Snapp & Son, Inc. v. 9 Puerto Rico, ex rel., Barez, 458 U.S. 592, 601 (1982) (explaining that states have a sovereign interest 10 in “the power to create and enforce a legal code”); Virginia ex rel. Cuccinelli v. Sebelius, 656 F.3d 11 253, 269 (4th Cir. 2011) (“when a federal law interferes with a state’s exercise of its sovereign ‘power 12 to create and enforce a legal code’ [] it inflict[s] on the state the requisite injury-in-fact.”); Ohio ex rel. 13 Celebrezze v. U.S. Dep’t of Transp., 766 F.2d 228, 233 (6th Cir. 1985); Texas v. United States, 787 14 F.3d 733, 749 (5th Cir. 2015). 15 And although San Francisco has not yet been officially designated a “sanctuary jurisdiction” 16 under the Executive Order, this does not defeat the Court’s jurisdiction. The Court concluded that San 17 Francisco has standing to bring a pre-enforcement challenge to the Executive Order because the facts 18 demonstrate that the City has a “well-founded fear of enforcement under the Executive Order.” PI 19 Order at 32. Nothing in the AG Memorandum undercuts this conclusion. 20 Defendants argue that the Court’s conclusion is undermined because the Court relied on public 21 statements by the President, the White House Press Secretary and the Attorney General indicating that 22 San Francisco would be targeted for enforcement because it has adopted a policy of noncompliance 23 with federal civil detainer requests—and these statements have been “supplanted” by the AG 24 Memorandum. Mot. 10-11. This argument fails in both of its premises. First, the majority of the 25 public statements that the Court relied upon to inform its determination that Defendants had indicated 26 an intent to target San Francisco were not directly related to detainer requests. See PI Order at 25-26. 27 Second, as Defendants acknowledge, “[t]he Memorandum does not mention detainer requests” 28 (Mot. at 11)—much less clarify that federal funds will not be denied to jurisdictions that fail to comply Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 17 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 23 of 30 1 with such requests. Defendants dance carefully around this issue in their Motion—implying, but never 2 stating, that the AG Memorandum somehow removes this threat. For example, the Motion says that 3 the AG Memorandum “provides a definition of ‘sanctuary jurisdiction’ that is untethered to 4 compliance with federal civil detainer requests.” Mot. at 17. But the Memorandum simply repeats the 5 Executive Order’s statement that “the term ‘sanctuary jurisdiction’ will refer only to jurisdictions that 6 ‘willfully refuse to comply with Section 1373.’” AG Memorandum at 2. And it does not indicate 7 what Defendants believe Section 1373 requires, leaving in place the threat that jurisdictions will be 8 deemed to willfully violate Section 1373 if they have a policy of not complying with detainer requests. 9 Similarly, Defendants state that the “AG Memorandum establishes that compliance with federal civil 10 detainer requests is not a precondition to receipt of all federal funds.” Mot. at 17 (emphasis added). 11 But they nowhere say that it is not a precondition to receipt of the DOJ and DHS grants they 12 acknowledge to be subject to the Executive Order. To the extent the Court relied on Defendants’ 13 statements implying that San Francisco would be targeted for enforcement because of its policy of 14 noncompliance with detainer requests, those statements cannot be “supplant[ed]” by the Attorney 15 General’s silence in the AG Memorandum or Defendants’ ambiguous assertions in their Motion. 16 Accordingly, the AG Memorandum provides no basis for the Court to change its justiciability 17 determination.10 18 B. The AG Memorandum Does Not Eliminate The Constitutional Infirmities Identified By The Court. 19 Even if the AG Memorandum’s attempt to narrow the Executive Order could be credited, the 20 21 22 23 24 25 26 27 28 10 Defendants also argue that Building & Construction Trades Department, AFL-CIO v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002), in which the D.C. Circuit evaluated the constitutionality of an executive order providing that federal agencies could neither require nor prohibit contractors from entering into project labor agreements “to the extent permitted by law,” should guide the Court’s consideration of justiciability. But Allbaugh is not a new case. Defendants could have raised this argument in their opposition to San Francisco’s motion for a preliminary injunction. Because they did not, it cannot serve as a basis for reconsideration, and the court may properly deem the argument waived. Kona Enterprises, Inc. v. Estate of Bishop, 229 F.3d 877, 890 (9th Cir. 2000); Glavor v. Shearson Lehman Hutton, Inc., 879 F.Supp. 1028, 1033 (N.D.Cal.1994) (recognizing that if a party simply inadvertently failed to raise the arguments earlier, the arguments are deemed waived); English v. Apple Inc., 2016 WL 1108929, at *2 (N.D. Cal. Mar. 22, 2016) (Orrick, J.) (“[A] motion for reconsideration may not be used to raise evidence or argument for the first time that ‘could reasonably have been raised earlier in the litigation.’”) (quoting Marlyn Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 880 (9th Cir. 2009)). Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 18 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 24 of 30 1 constitutional problems identified in the PI Order would remain. While the Memorandum purports to 2 limit application of the funding restriction to DOJ and DHS funds, and further limits the DOJ funds at 3 issue, it does not constrain DHS’s implementation of the Executive Order. See pp. 9-12, supra. 4 Additionally, the Memorandum does not limit the Executive Order’s enforcement provision, which 5 constitutes an independent Tenth Amendment violation. Finally, the Memorandum does not clarify 6 whether Section 1373 requires compliance with detainer requests. Thus, as described below, the 7 Executive Order as rewritten by the Memorandum would still violate Separation of Powers, the 8 Spending Clause, and the Tenth Amendment. 9 1. 10 The Funding Restriction, As Narrowed By The AG Memorandum, Still Violates The Separation Of Powers. 11 This Court previously held that “[t]he [Executive] Order’s attempt to place new conditions on 12 federal funds is an improper attempt to wield Congress’s exclusive spending power and is a violation 13 of the Constitution’s separation of powers principles.” PI Order at 37. The AG Memorandum does 14 not eliminate this concern. 15 The Memorandum states that Section 9(a) will apply to DOJ and DHS grants, and it limits 16 application to DOJ grants to those that currently have express Section 1373 certification conditions 17 and “to future grants for which the Department is statutorily authorized to impose such a condition.” 18 AG Memorandum at 2.11 The Memorandum does not, however, include any such limitation for DHS 19 grants. See Mot. at 8 (lines 7-10), 14 (lines 6-9), 15 (9-13). Thus, even as purportedly narrowed by 20 the Memorandum, the Executive Order still directs DHS to withhold funds from sanctuary 21 jurisdictions, regardless of whether Congress has authorized this as a funding condition. This attempt 22 to impose a new funding condition violates the separation of powers principles identified in the 23 Court’s Order. See PI Order at 35-37. 24 25 This separation of powers violation is only underscored by events since the Court issued its Order. On May 23, 2017—the day after the Attorney General issued his Memorandum—the President 26 27 28 11 Notably, the Section 1373 certification conditions in existing grants were imposed by DOJ, not by Congress. See Mot. Attachment 2 (Declaration of Ralph Martin) ¶ 15. San Francisco does not concede that DOJ is statutorily authorized to impose such a condition. Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 19 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 25 of 30 1 released his Fiscal Year 2018 budget request. This request proposes amending Section 1373 by, inter 2 alia, adding a new subsection (d) that would authorize the Secretary of Homeland Security and the 3 Attorney General to condition grants issued by their agencies on compliance with detainer requests 4 and other DHS requests. RJN Exh. A.12 5 This proposal is similar to other Section 1373 funding conditions that have been considered, 6 and rejected, by Congress. See PI Order at 37. The President may ask Congress to take up this issue 7 again, but he may not make an end run around Congress by acting where Congress has refused to act. 8 As the Court held, the President’s power is “at its lowest ebb” in this circumstance, and “[t]he 9 [Executive] Order’s attempt to place new conditions on federal funds is an improper attempt to wield 10 Congress’s exclusive spending power and is a violation of the Constitution’s separation of powers 11 principles.” Id. (citing Youngstown Sheet & Tube Co. v. Sawye, 343 U.S. 579, 637.) 12 2. 13 14 The Funding Restriction, As Narrowed By The AG Memorandum, Still Violates The Spending Clause. The Court’s PI Order recognized that the Executive Order violates the Spending Clause in at 15 least three ways. The Executive Order imposes Section 1373 compliance (1) as a vague and 16 retroactive funding condition, (2) on funds that have nothing to do with immigration enforcement, and 17 (3) on such a large quantity of federal funds that it is unconstitutionally coercive. While the AG 18 Memorandum may lessen the third concern by narrowing the federal funds at risk, it does not diminish 19 the first and second concerns. 20 Like the Executive Order, the AG Memorandum’s “vague language does not make clear what 21 conduct it proscribes,” leaving jurisdictions unable to “exercise their choice knowingly.” PI Order at 22 37-38. As the Court recognized, it is not clear what conduct will lead a jurisdiction to be deemed a 23 “sanctuary jurisdiction” that “willfully refuses to comply with Section 1373.” Id. at 19-22, 41-43. 24 The Memorandum offers scant guidance on this point, merely parroting the language of the Executive 25 Order and stating that after consulting with the Secretary of Homeland Security, the Attorney General 26 has “determined that the term ‘sanctuary jurisdiction’ will refer only to jurisdictions that ‘willfully 27 28 12 It also proposes amending Section 1373 to significantly expand the scope of information that local governments must allow their employees to provide to DHS. Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 20 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 26 of 30 1 refuse to comply with Section 1373.’” AG Memorandum at 2. As a threshold matter, jurisdictions 2 cannot rely on the Attorney General’s definition because the Executive Order gives the Secretary—not 3 the Attorney General—the authority and discretion to designate sanctuary jurisdictions. See p. 11, 4 supra. Further, the Memorandum nowhere indicates what Section 1373 requires, leaving in place the 5 threat that jurisdictions will be deemed to willfully violate Section 1373 if they have a policy of not 6 complying with detainer requests. See PI Order at 19-22. The Attorney General stated in prior 7 briefing that he and the Secretary still needed to “determine exactly what constitutes ‘willful refusal to 8 comply with 8 U.S.C. 1373’” (id. at 20), but the AG Memorandum does not provide this guidance. 9 Additionally, the AG Memorandum does not eliminate the concern that DHS will apply the 10 Executive Order retroactively. The plain language of the Executive Order suggests it applies to past 11 and future funds, and unlike DOJ, DHS has not offered to limit its application of the Executive Order 12 in any way. See Mot. at 14 (“The AG Memorandum makes clear . . . that, in relation to DOJ grants, 13 any conditions imposed pursuant to the directives contained in the Executive Order will apply ‘to 14 future grants . . . .’”) (first emphasis added, second emphasis in original). 15 Finally, the Memorandum does not limit application of the Executive Order to funds related to 16 immigration enforcement, as required to satisfy the nexus requirement. See PI Order at 38. For DHS 17 funds, the Memorandum does not limit the scope of funds in any way, and for DOJ funds, the 18 Memorandum offers only vague assurances that conditions must be authorized by Congress. Yet both 19 DHS and DOJ make grants unrelated to immigration enforcement.13 Indeed, even some of the grants 20 specifically identified by the AG Memorandum have nothing to do with immigration enforcement.14 21 22 23 24 25 26 13 For instance, DHS, via the Federal Emergency Management Agency (“FEMA”), administers grants to prepare against and provide relief from natural disasters such as earthquakes and fires. See, e.g., FEMA, “Earthquake Grants,” https://www.fema.gov/earthquake-grants (RJN Exh. C); FEMA, “Welcome to the Assistance to Firefighters Grant Program,” https://www.fema.gov/welcomeassistance-firefighters-grant-program (RJN Exh. D); FEMA, “California Rim Fire (DR-4158),” https://www.fema.gov/disaster/4158 (RJN Exh. E). In another example, DOJ’s Office on Violence Against Women (“OVW”) administers grants “designed to develop the nation’s capacity to reduce domestic violence, dating violence, sexual assault, and stalking by strengthening services to victims and holding offenders accountable.” See Department of Justice Office on Violence Against Women, “Grant Programs,” https://www.justice.gov/ovw/grant-programs#tsev (RJN Exh. F). 14 27 28 See, e.g., Office of Justice Programs, Bureau of Justice Assistance, “Edward Byrne Memorial Justice Assistance Grant Program,” https://www.bja.gov/jag/ (“The JAG Program provides states, tribes, and local governments with critical funding necessary to support a range of program Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 21 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 27 of 30 1 2 3 4 5 In short, the AG’s proposed rewrite of the Executive Order still violates the Spending Clause requirements that funding conditions be clearly stated in advance and related to the funds at issue. 3. The Funding Restriction, As Narrowed By The AG Memorandum, Still Violates The Tenth Amendment. In the PI Order, the Court held that “[t]he Executive Order’s threat to pull all federal grants 6 from jurisdictions that refuse to honor detainer requests or to bring ‘enforcement action’ against them 7 violates the Tenth Amendment’s prohibitions against commandeering.” PI Order at 41. The AG 8 Memorandum purports to limit the funds at risk, but otherwise leaves fully in place this threat to 9 jurisdictions that do not comply with detainers. 10 As discussed above (see pp. 17-18, supra) Defendants acknowledge that “[t]he Memorandum 11 does not mention detainer requests.” Mot. at 11. Accordingly, it does not—and indeed cannot— 12 clarify that federal funds will not be withheld from jurisdictions that fail to comply with such requests. 13 This is a significant step back from oral argument, where counsel suggested that the federal 14 government would “prefer that the cities comply with the detainer requests,” but “that had nothing to 15 do with whether something is a sanctuary jurisdiction under Section 9(a) of the Order.” Eisenberg 16 Decl. Exh. A at 51:7-16. 17 Similarly, the AG Memorandum does not address Section 9(a)’s Enforcement Directive, which 18 states: “The Attorney General shall take appropriate enforcement action against any entity that violates 19 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the 20 enforcement of Federal law.” Executive Order § 9(a) (emphasis added). As the Court noted, the 21 Attorney General takes the position that the failure to comply with detainer requests “frustrate[s] th[e] 22 enforcement of immigration law.” PI Order at 40 (quoting Sessions Mar. 27, 2017 Press Conference). 23 Read in conjunction with the Attorney General’s statements, the Executive Order “seek[s] to compel 24 25 26 27 28 areas including law enforcement, prosecution, indigent defense, courts, crime prevention and education, corrections and community corrections, drug treatment and enforcement, planning, evaluation, technology improvement, and crime victim and witness initiatives.”) (RJN Exh. G); Community Oriented Policing Services, “About,” https://cops.usdoj.gov/about (“The COPS Office awards grants to hire community policing professionals, develop and test innovative policing strategies, and provide training and technical assistance to community members, local government leaders, and all levels of law enforcement.”) (RJN Exh. H). Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 22 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 28 of 30 1 states and local jurisdictions to honor civil detainer requests by threatening enforcement action.” Id.15 2 The Court properly held that this violates the Tenth Amendment. The Memorandum does not cure this infirmity—and in fact makes it worse. In prior argument 3 4 and briefing, Defendants argued that “enforcement action” under the Executive Order would be 5 limited to civil preemption suits. See, e.g., Eisenberg Decl. Exh. A at 26:17-19 (“The first part of 9(a) 6 talks about federal grants, and the last part talks about potential preemption enforcement actions if 7 there's a dispute.”); id. at 29:11-12 (“[T]his would be your standard preemption suit that the federal 8 government brings all the time.”); see also RJN Exh. B [Richmond v. Trump et. al., Case No. 3:17-cv- 9 01535-WHO, Defendants’ Opposition to Plaintiff’s Motion for Preliminary Injunction] at 8 10 (“Additionally, in the exercise of his authority to ‘take appropriate enforcement action’ under Section 11 9(a), the Attorney General has determined that any such action would take the form of civil litigation 12 asserting that a jurisdiction’s law or policy is preempted by federal law.”). The AG Memorandum 13 does not adopt this narrowing construction, and instead emphasizes that “nothing in the Executive 14 Order limits the Department’s ability . . . to take enforcement action where state or local practices 15 violate federal laws, regulations, or grant conditions.” AG Memorandum at 2. In sum, even as interpreted by the AG Memorandum, the Executive Order continues to violate 16 17 the Tenth Amendment by coercing state and local jurisdictions to comply with detainer requests. 18 IV. 19 20 San Francisco Is Entitled To A Preliminary Injunction Based On Its Claim That San Francisco Law Complies With Section 1373. If the Court is nonetheless inclined to reconsider its prior PI Order, San Francisco respectfully 21 requests that the Court also reconsider San Francisco’s request for a preliminary injunction finding 22 that San Francisco laws comply with Section 1373 and prohibiting Defendants from taking any action 23 based on a contrary determination. At the preliminary injunction hearing, the Court deferred argument 24 on San Francisco’s Section 1373 claims, and the Court’s April 25 Order focused on the claims directly 25 challenging the Executive Order. In light of this Order, San Francisco determined there was no 26 27 28 15 In their Motion, Defendants state that “the Attorney General has not, to date, taken any enforcement action against any jurisdiction for noncompliance with [detainer] requests.” Mot. at 17. That the Attorney General has not yet undertaken such enforcement action provides no assurance about what he will do in the future. Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 23 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 29 of 30 1 immediate need to pursue a preliminary injunction on its Section 1373 claims. Eisenberg Decl. Exh. B 2 at 9:7-9 (“[G]iven the Court’s order, San Francisco is willing to not pursue its request for preliminary 3 injunction on the 1373 claims at this time.”). This calculus would change, however, if the Court 4 modified or lifted the existing PI Order. As previously briefed, San Francisco law complies with 8 U.S.C. Section 1373 because it does 5 6 not restrict San Francisco employees or officials from sharing information regarding “citizenship or 7 immigration status.” See CCSF’s Motion for Preliminary Injunction (Dkt. No. 21) at 19-21; CCSF’s 8 Reply to Opposition to Motion for Preliminary Injunction (Dkt. No. 60) (“PI Reply”) at 4. While San 9 Francisco Administrative Code Chapters 12H and 12I restrict local officials from assisting with federal 10 immigration enforcement in enumerated and specific ways, there is no conflict between the plain text 11 of these chapters and Section 1373, which provides only that a “local government entity or official 12 may not prohibit, or in any way restrict, any government entity or official from sending to, or 13 receiving from, [federal immigration officials] information regarding the citizenship or immigration 14 status . . . of any individual.” 8 U.S.C. § 1373(a). Nonetheless the President and the Attorney General 15 have both unlawfully singled out San Francisco as a likely target of retribution for its sanctuary city 16 law. PI Reply at 8. Thus, if the Court were to revisit its Order, it should consider anew whether 17 Defendants should be enjoined from taking action against San Francisco because San Francisco’s laws 18 comply with Section 1373. 19 V. 20 There Is No Need For The Court To Clarify The Preliminary Injunction Order. Defendants request clarification “that DOJ or DHS are not enjoined from exercising legal 21 authority independent of the Executive Order to impose conditions on grant programming for future 22 DOJ or DHS-administered grants.” Mot. at 20 (emphasis added). It is not apparent—and Defendants 23 do not explain—how actions “independent of the Executive Order” could conceivably be enjoined by 24 an order enjoining enforcement of Section 9(a) of the Executive Order. If, in the future, Defendants 25 invoke independent authority “to impose conditions on grant programming for future DOJ or DHS- 26 administered grants” (id.), these new conditions might be subject to challenge on constitutional or 27 statutory grounds. They would not be subject to the present injunction, however, unless they were 28 imposed pursuant to the Executive Order. Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 24 N:\CXLIT\LI2017\171027\01197272.docx Case 3:17-cv-00485-WHO Document 108 Filed 06/06/17 Page 30 of 30 1 Defendants acknowledge that “[t]he Court has made clear that defendants ‘may use lawful 2 means to enforce existing conditions of federal grants or 8 U.S.C. 1373.’” Mot. at 20 (quoting Order 3 at 49). It is hard to imagine how the Court could be more clear. Accordingly, further clarification is 4 unnecessary and the Request for Clarification should be denied. CONCLUSION 5 6 For the foregoing reasons, Defendants’ Motion should be denied. 7 8 Dated: June 6, 2017 9 14 DENNIS J. HERRERA City Attorney RONALD FLYNN JESSE C. SMITH YVONNE R. MERÉ CHRISTINE VAN AKEN TARA STEELEY MOLLIE M. LEE SARA J. EISENBERG MATTHEW S. LEE NEHA GUPTA 15 Deputy City Attorneys 10 11 12 13 16 17 18 By: /s/ Sara J. Eisenberg SARA J. EISENBERG Deputy City Attorney Attorneys for Plaintiff CITY AND COUNTY OF SAN FRANCISCO 19 20 21 22 23 24 25 26 27 28 Opposition to Motion for Reconsideration; CCSF v. President Trump, et al; Case No. 17-00485 25 N:\CXLIT\LI2017\171027\01197272.docx