Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 1 of 28 1 2 3 4 5 6 7 8 9 10 11 CHAD A. READLER Acting Assistant Attorney General BRIAN STRETCH United States Attorney JOHN R. TYLER Assistant Director W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel Department of Justice, Room 7210 Civil Division, Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov COUNSEL FOR DEFENDANTS (See signature page for parties represented.) IN THE UNITED STATES DISTRICT COURT 12 13 FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION 14 15 16 17 18 CITY AND COUNTY OF SAN FRANCISCO, Plaintiff, v. DONALD J. TRUMP, et al., Defendants. REPLY IN SUPPORT OF DEFENDANTS’ MOTIONS TO DISMISS Date: Time: July 12, 2017 2:00 p.m. No. 3:17-cv-00485-WHO 19 20 21 22 23 24 25 26 27 COUNTY OF SANTA CLARA, Plaintiff, v. DONALD J. TRUMP, et al., Defendants. No. 3:17-cv-00574-WHO CITY OF RICHMOND, Plaintiff, v. DONALD J. TRUMP, et al., Defendants. 28 Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO No. 3:17-cv-01535-WHO Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 2 of 28 1 TABLE OF CONTENTS 2 3 TABLE OF AUTHORITIES ......................................................................................................... iii 4 INTRODUCTION .......................................................................................................................... 1 5 ARGUMENT .................................................................................................................................. 2 6 I. The AG Memorandum Is an Authoritative Statement on the Executive Order within the Executive Branch ........................................................ 2 7 A. The AG Memorandum Is a Formal, Authoritative Statement..................... 2 8 B. The AG Memorandum Is Consistent With the Executive Order .......................................................................................... 3 C. The AG Memorandum Carries Out Rather than Detracts from the Order’s Intended Effect ................................................................ 5 D. The Timing of the AG Memorandum Does Not Undermine Its Authoritativeness................................................................. 6 9 10 11 12 13 II. Plaintiffs Lack Standing and Their Claims Are Unripe .......................................... 6 14 III. Plaintiffs Fail to State Any Viable Claim Regarding the Executive Order, Which Is an Internal Directive and Does Not Necessarily Directly Affect the Plaintiffs ............................................... 9 IV. Plaintiffs Fail to State Any Viable Claim Regarding the Grant Eligibility Provision, as Elucidated by the AG Memorandum ............................. 10 15 16 17 A. Plaintiffs Must Establish that the Grant Eligibility Provision Is Unconstitutional in All Applications .................................................... 11 B. Plaintiffs Fail to State a Viable Claim that the Grant Eligibility Provision Violates the Separation of Powers ........................... 13 C. Plaintiffs Fail to State a Viable Claim that the Grant Eligibility Provision Exceeds the Spending Power................................... 14 D. Richmond and San Francisco Fail to State a Viable Claim that the Grant Eligibility Provision Violates the Tenth Amendment ............... 16 E. Richmond and Santa Clara County Fail to State a Viable Claim of Unconstitutional Vagueness under the Due Process Clause................. 17 F. Santa Clara County Fails to State a Viable Claim Regarding Procedural Due Process ........................................................... 18 G. Richmond Fails to State a Viable Claim Under the Fourth Amendment .................................................................. 19 18 19 20 21 22 23 24 25 26 27 28 Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO i Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 3 of 28 1 V. Richmond and San Francisco Fail to State a Viable Claim for Declaratory Relief Regarding Their Compliance with Section 1373 ................... 20 2 CONCLUSION ............................................................................................................................. 21 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO ii Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 4 of 28 1 TABLE OF AUTHORITIES 2 3 CASES 4 Abel v. United States, 362 U.S. 217 (1960) .................................................................................. 20 5 Alphonsus v. Holder, 705 F.3d 1031 (9th Cir. 2013) ..................................................................... 17 6 Arizona v. United States, 567 U.S. 387 (2012) ................................................................................ 6 7 Bd. of Regents of State Colls. v. Roth, 408 U.S. 564 (1972) .......................................................... 19 8 Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023 (N.D. Cal. May 19, 1995) ................. 9 9 10 11 12 City of Los Angeles v. Patel, 135 S. Ct. 2443 (2015)..................................................................... 12 Cty. of Santa Clara v. Trump, ___ F. Supp. 3d ___, No. 17-CV-00485-WHO, 2017 WL 1459081 (N.D. Cal. Apr. 25, 2017) ............................................................................. 7 Doran v. Houle, 721 F.2d 1182 (9th Cir. 1983)............................................................................. 19 13 14 Fox-Quamme v. Health Net Health Plan of Or., Inc., No. 3:15-CV-01248-BR, 2016 WL 1724358 (D. Or. Apr. 29, 2016) ................................................................................ 20 15 Galarza v. Szalczyk, 745 F.3d 634 (3d Cir. 2014) ........................................................................... 8 16 Gonzales v. Carhart, 550 U.S. 124 (2007) .................................................................................... 13 17 Heggestad v. Dep’t of Justice, 182 F. Supp. 2d 1 (D.D.C. 2000) .................................................... 3 18 19 Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133 (9th Cir. 2009) ..................... 17 20 Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir. 2014) .................................. 13 21 Jim C. v. United States, 235 F.3d 1079 (8th Cir. 2000) ................................................................. 16 22 Lanier v. City of Woodburn, 518 F.3d 1147 (9th Cir. 2008) ................................................... 11, 12 23 24 Legal Aid Soc’y of Alameda Cty. v. Brennan, 608 F.2d 1319 (9th Cir. 1979)................................. 9 Lindsey v. Tacoma-Pierce Cty. Health Dep’t, 195 F.3d 1065 (9th Cir. 1999) ................................ 4 25 26 27 28 La. Mun. Police Employees’ Ret. Sys. v. Wynn, 829 F.3d 1048 (9th Cir. 2016).............................. 7 Mayweathers v. Newland, 314 F.3d 1062 (9th Cir. 2002) ............................................................. 15 Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138 (D.C. Cir. 2015) ..................................... 16 Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO iii Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 5 of 28 1 2 3 Muhammad v. Berreth, No. C 12-02407 CRB, 2012 WL 4838427 (N.D. Cal. Oct. 10, 2012)........................................................................................................... 20 Navarro v. Block, 250 F.3d 729 (9th Cir. 2001) .............................................................................. 7 4 New York v. United States, 505 U.S. 144 (1992) ........................................................................... 15 5 6 Planned Parenthood Ariz., Inc. v. Brnovich, 172 F. Supp. 3d 1075 (D. Ariz. 2016) ...................... 6 7 S. Dakota v. Dole, 483 U.S. 203 (1987)................................................................................... 11, 14 8 Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308 (2007) ................................................. 7 9 United States v. Ehrlichman, 546 F.2d 910 (D.C. Cir. 1976) .......................................................... 3 10 11 United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal. 2015) ..................................................... 9 United States v. Salerno, 481 U.S. 739 (1987) .............................................................. 1, 11, 17, 20 12 13 14 Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013)......................................................... 18 Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489 (1982) ........................ 17 15 Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442 (2008) ................................ 12 16 Williams v. Cty. of Alameda, 26 F. Supp. 3d 925 (N.D. Cal. 2014) ................................................ 6 17 Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ................................................... 10 18 19 STATUTES 20 8 U.S.C. § 1103(a)(1) ................................................................................................................. 3, 14 21 8 U.S.C. § 1226 .............................................................................................................................. 20 22 23 8 U.S.C. § 1231 .............................................................................................................................. 20 28 U.S.C. § 512 ............................................................................................................................ 2, 3 24 25 26 27 28 U.S.C. § 516 ................................................................................................................................ 3 REGULATIONS 2 C.F.R. § 200.341 ......................................................................................................................... 19 28 Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO iv Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 6 of 28 1 28 C.F.R. § 0.5(c) ............................................................................................................... 1, 2, 3, 14 2 28 C.F.R. pt. 18 .............................................................................................................................. 19 3 4 EXECUTIVE ORDERS 5 Exec. Order No. 10,340, 17 Fed. Reg. 3139 (1952) ...................................................................... 10 6 Exec. Order No. 13,129, 64 Fed. Reg. 36,759 (1999) ................................................................... 10 7 Exec. Order No. 13,466, 73 Fed. Reg. 36,787 (2008) ................................................................... 10 8 Exec. Order No. 13,768, 82 Fed. Reg. 8,799 (2017) ................................................. 4, 5, 11, 13, 15 9 10 OTHER AUTHORITIES 11 Mem. from Att’y Gen. for All Dep’t Grant-Making Components (May 22, 2017) ............... passim 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO v Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 7 of 28 1 2 INTRODUCTION Plaintiffs devote much of their opposition briefs to attempting to undermine the Attorney 3 General’s Memorandum of May 22, 2017 (“AG Memorandum”). This is perhaps unsurprising 4 given the Memorandum’s conclusive effect. As an authoritative statement on the key provisions 5 of Executive Order 13,768, the AG Memorandum eliminates the supposed “budgetary uncer- 6 tainty” on which Plaintiffs primarily base their assertions of standing and ripeness. The AG 7 Memorandum also bolsters the conclusion that the Executive Order is consistent with the 8 Constitution. 9 Indeed, the AG Memorandum is authoritative because it is a formal statement by the 10 Cabinet official responsible for “[f]urnish[ing] advice and opinions . . . on legal matters to the 11 President and the Cabinet and to the heads of the executive departments and agencies of the 12 Government.”1 Every aspect of the AG Memorandum is supported by language in the Executive 13 Order, the goal of which is to establish a policy of faithful enforcement of federal immigration 14 law. Consistent with that purpose, the AG Memorandum clarifies that the grant eligibility 15 provision in Section 9(a) of the Order will be applied only where the Department of Justice and 16 the Department of Homeland Security are statutorily authorized to do so. In short, the Executive 17 Order and the AG Memorandum simply apply existing law. 18 Especially in light of the AG Memorandum, the Executive Order is consistent with the 19 constitutional Separation of Powers, the Spending Clause, the Tenth Amendment, and the other 20 constitutional provisions cited in Plaintiffs’ complaints. This is especially true given that Plain- 21 tiffs challenge the Order on its face, “the most difficult challenge to mount successfully.” In this 22 context, plaintiffs “must establish that no set of circumstances exists under which the [challenged 23 enactment] would be valid.”2 Plaintiffs cannot, however, show that the grant eligibility provision 24 would violate the Constitution in all of its applications. Nor have San Francisco or Richmond 25 identified a right of action to seek a judicial declaration that they comply with 8 U.S.C. § 1373. 26 Finally, there is no live controversy regarding whether they comply with that statute. 27 28 1 28 C.F.R. § 0.5(c). United States v. Salerno, 481 U.S. 739, 745 (1987). Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO 2 Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 8 of 28 1 Accordingly, Plaintiffs’ claims should be dismissed. 2 3 ARGUMENT 4 I. The AG Memorandum Is an Authoritative Statement on the Executive Order within the Executive Branch 5 A. 6 Plaintiffs attempt to equate the AG Memorandum with the representations of Defendants’ The AG Memorandum Is a Formal, Authoritative Statement 7 counsel at oral argument on the motions for preliminary injunction, asserting that the Memoran- 8 dum “merely reduces that same . . . argument to writing” (SC Opp. at 9; see Richmond Opp. at 9; 9 SF Opp. at 16). They also argue that the Court has already rejected the “reading” of the Execu- 10 11 tive Order conveyed in the AG Memorandum (SF Opp. at 16; Richmond Opp. at 8). Plaintiffs fail to acknowledge, however, that the AG Memorandum and the representations 12 of counsel are fundamentally different. Counsel for Santa Clara County made this very point at 13 oral argument: “[W]ith all deference, what a Justice Department lawyer down the food chain 14 says, without a declaration, without an affidavit, without any binding effect, is not something that 15 you should consider . . . . I didn’t hear that Attorney General Sessions had signed off to this new 16 interpretation.” Tr. of Oral Arg. at 11:9-12, 46:1-3, City & Cnty. of San Francisco v. Trump, No. 17 3:17-cv-00485 (N.D. Cal. Apr. 14, 2017). 18 The AG Memorandum is far more than the representation of “a Justice Department lawyer 19 down the food chain.” Nor does it merely “repeat” counsel’s representations “in a written form,” 20 as might a letter from counsel (SC Opp. at 1; Richmond Opp. at 9).3 Rather, the AG Memoran- 21 dum is a formal, authoritative statement by a member of the President’s Cabinet, and the single 22 official ultimately responsible for “[f]urnish[ing] advice and opinions, formal and informal, on 23 legal matters to the President and the Cabinet and to the heads of the executive departments and 24 agencies of the Government.” 28 C.F.R. § 0.5(c); see 28 U.S.C. § 512 (Attorney General’s duty 25 26 27 28 3 Even if the AG Memorandum adopted the arguments of counsel in their entirety, its independent legal authority would be unaffected. The fact that counsel have interpreted the Executive Order consistent with subsequent formal guidance from the Attorney General does not in any way undermine the legitimacy or authority of that guidance. In other words, the fact that the Department of Justice has spoken consistently about the meaning and effect of Executive Order 13,768 is not a credible argument against the AG Memorandum. Reply: Motions to Dismiss 2 No. 3:17-cv-00485/00574/01535-WHO Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 9 of 28 1 to advise executive department heads on “questions of law”). The Attorney General is the “chief 2 legal advisor” to the President, United States v. Ehrlichman, 546 F.2d 910, 925 (D.C. Cir. 1976), 3 and one of the two officials charged with implementing Section 9 of the Executive Order. 4 Moreover, the statute that sets forth the “powers and duties” of the Secretary of Homeland 5 Security – the other official charged with implementing Section 9 – provides that a 6 “determination and ruling by the Attorney General with respect to all questions of law shall be 7 controlling.” 8 U.S.C. § 1103(a)(1).4 Finally, the Attorney General is responsible for 8 representing almost all federal agencies in litigation, 28 U.S.C. § 516, such that any position 9 taken by an agency contrary to the Attorney General’s guidance may not be defended in 10 litigation. 11 Plaintiffs argue that 28 U.S.C. § 512 and 28 C.F.R. § 0.5(c) cannot apply here because the 12 Attorney General has delegated his authority thereunder to the Office of Legal Counsel (SF Opp. 13 at 18; Richmond Opp. at 11). But “it is well established that the head of an agency retains the 14 authority to make final decisions for the agency even if he or she delegates the authority to make 15 these decisions to his or her subordinates.” Heggestad v. Dep’t of Justice, 182 F. Supp. 2d 1, 9 16 (D.D.C. 2000). Plaintiffs also argue that these statutory and regulatory provisions do not apply 17 here because the AG Memorandum does not contain “legal analysis” (SF Opp. at 17; Richmond 18 Opp. at 11), but there is no indication in 28 U.S.C. § 512 or 28 C.F.R. § 0.5(c) that an opinion 19 thereunder must contain any particular kind of “analysis.” 20 B. 21 Next, Plaintiffs argue that the AG Memorandum sets forth an “implausible interpretation” The AG Memorandum Is Consistent With the Executive Order 22 or “reading” of the Executive Order (SC Opp. at 8; SF Opp. at 16) that “contradicts” the Order’s 23 “plain language” (Richmond Opp. at 2). To the contrary, the Attorney General’s statements on 24 the meaning and implementation of Section 9(a) are fully supported by the language of the Order. 25 26 4 27 28 The fact that 8 U.S.C. § 1103 is the statute that generally sets forth the Secretary’s powers and duties belies plaintiffs’ assertion that the Attorney General’s authority relates only to “interpreting the INA” or ruling on “a question of immigration law” (SC Opp. at 10; SF Opp. at 18). Reply: Motions to Dismiss 3 No. 3:17-cv-00485/00574/01535-WHO Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 10 of 28 1 First, the AG Memorandum provides that the grant eligibility provision applies “solely to 2 federal grants administered by the Department of Justice or the Department of Homeland 3 Security, and not to other sources of federal funding.” AG Mem. at 1. This is based on the 4 President’s instruction that “the Attorney General and the Secretary, in their discretion and to the 5 extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 6 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants.” Exec. Order No. 7 13,768, § 9(a), 82 Fed. Reg. 8,799 (Jan. 30, 2017) (emphasis added). If the President had 8 intended to apply that provision to all federal agencies or to all federal grants, he would have said 9 “all federal agencies, in their discretion and to the extent consistent with law,” or “not eligible to 10 receive any Federal grants,” respectively. Nor can it be assumed that the President intended the 11 Attorney General to enforce such a prohibition across all federal agencies; if that had been the 12 intent, there would have been no need to include the Secretary in the same sentence. 13 Further, the fact that Section 2(c) of the Order refers more generally to “Federal funds,” 14 whereas Section 9(a) refers to “Federal grants,” supports the Attorney General’s conclusion that 15 the grant eligibility provision applies only to the latter (SC Opp. at 9; Richmond Opp. at 16). If 16 the President had intended Section 9(a) to apply to all types of federal funding rather than only 17 grants, he would have repeated the term “Federal funds” in Section 9 rather than changing it to 18 “grants.” Cf. Lindsey v. Tacoma-Pierce Cty. Health Dep’t, 195 F.3d 1065, 1074 (9th Cir. 1999) 19 (referring to “basic principle of statutory construction that different words in the same statute 20 must be given different meanings”). 21 Second, the AG Memorandum provides that the Department of Justice (“DOJ”) will 22 require jurisdictions applying for certain DOJ-administered grants “to certify their compliance 23 with federal law, including 8 U.S.C. § 1373,” but only where the agency is “statutorily authorized 24 to impose such a condition.” AG Mem. at 2. This is based on the President’s instruction that 25 compliance with Section 1373 be imposed as a grant condition “to the extent consistent with 26 law.” Exec. Order No. 13,768, § 9(a). That phrase would have been unnecessary – and self- 27 defeating – if the President had intended to impose a grant condition without regard to existing 28 law. Moreover, although the Order does not expressly authorize the Attorney General and the Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO 4 Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 11 of 28 1 Secretary to require certification of compliance, that method of “ensuring” non-payment of grant 2 funds to non-compliant jurisdictions is logical and certainly within the “discretion” conferred by 3 the Order.5 4 Third, the AG Memorandum states that “[a]ll grantees will receive notice of their 5 obligation to comply with section 1373.” AG Mem. at 2. This language, too, is based on the 6 instruction to impose this grant condition “to the extent consistent with law.” Exec. Order No. 7 13,768, § 9(a). That phrase would have been superfluous if the President had wanted the 8 Attorney General and the Secretary to disregard the well-established procedures of federal grant- 9 making.6 10 C. 11 12 The AG Memorandum Carries Out Rather than Detracts from the Order’s Intended Effect Further, Plaintiffs contend that the Court must not credit the AG Memorandum because a 13 directive “merely . . . to exercise authority conferred by other laws” would be without “legal 14 force” (SF Opp. at 1, 17; see Richmond Opp. at 8). In Plaintiffs’ view, an Executive Order that 15 instructs federal agencies to carry out their responsibilities under existing law would be 16 “meaningless” (SC Opp. at 9). 17 Far from it. Executive Order 13,768 was necessary precisely because the Federal 18 Government previously had failed to “exercise authority conferred by other laws.” As stated in 19 the Order itself, federal agencies had “failed to discharge” their responsibilities under the 20 immigration laws “to ensure the removal of aliens who have no right to be in the United States.” 21 Exec. Order No. 13,768, § 1. Thus, the express purpose of the Order is to “direct executive 22 departments and agencies . . . to employ all lawful means to enforce the immigration laws of the 23 24 25 26 27 28 5 Santa Clara County asserts that the AG Memorandum is contradicted by the Attorney General’s statement that DOJ will “take all lawful steps to claw back any funds awarded to a jurisdiction that willfully violates 1373” (SC Opp. at 10; SF Dkt. No. 116-3 at 3). But a grantee’s false certification of compliance with Section 1373 would constitute violation of the grant conditions, potentially requiring a return of funds. 6 Nor does the AG Memorandum contradict Section 9(c) of the Order (SC Opp. at 9). The President can direct the Office of Management and Budget to gather and disseminate information regarding recipients of all federal grants for possible later attention or to affect public perception and opinion, while directing specific agencies to use their discretion to impose conditions on certain federal grants, where statutorily authorized. Reply: Motions to Dismiss 5 No. 3:17-cv-00485/00574/01535-WHO Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 12 of 28 1 United States.” Id. In other words, the Order reversed the policy of prior administrations and, 2 among other things, established a policy of “ensur[ing], to the fullest extent of the law, that a 3 State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373” and other federal 4 statutes. Id. § 9; see Arizona v. United States, 567 U.S. 387, 446 (2012) (noting that 5 “immigration enforcement priorities . . . change from administration to administration”). 6 Accordingly, the AG Memorandum effectuates the intent of the Executive Order – that is, 7 to direct agencies to exercise existing legal authorities – rather than “abandon[ing]” the Order (SF 8 Opp. at 1). 9 D. 10 The Timing of the AG Memorandum Does Not Undermine Its Authoritativeness Lastly, Plaintiffs attack the authoritativeness of the AG Memorandum on the basis that it 11 12 was issued in the course of litigation and allegedly at the “last minute” (SF Opp. at 4, 19; SC 13 Opp. at 4, 12). But the timing of the Memorandum is irrelevant. The fact that it was issued 14 during the course of litigation is attributable to the premature timing of this litigation, not to the 15 Attorney General’s timing. The President signed the Executive Order on January 25, 2017, and 16 the first plaintiff – San Francisco – filed its original complaint six days later, on January 31. The 17 Order required the Attorney General to take various actions to implement Section 9(a), and, as 18 Defendants indicated in response to Plaintiffs’ motions for preliminary injunctions and in the 19 hearing on those motions, those actions had not yet been completed at the time of the hearing. 20 The fact that the Attorney General took action during the course of this ongoing litigation, in the 21 form of the AG Memorandum, does nothing to detract from the authoritativeness of the 22 Memorandum. 23 II. 24 25 26 27 28 Plaintiffs Lack Standing and Their Claims Are Unripe Especially in light of the AG Memorandum, Plaintiffs have not satisfied their burden to establish the justiciability of their claims.7 See Planned Parenthood Ariz., Inc. v. Brnovich, 172 7 San Francisco faults the Defendants (SF Opp. at 5 n.1) for incorporating arguments made in Defendants’ Motion for Reconsideration or, in the Alternative, Clarification of the Court’s Order of April 25, 2017, which is currently pending before the Court (SF Dkt. No. 107). The authority on which the City relies, which criticizes the incorporation of arguments made in connection with “a motion that is not before the Court,” Williams v. Cty. of Alameda, 26 Reply: Motions to Dismiss 6 No. 3:17-cv-00485/00574/01535-WHO Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 13 of 28 1 F. Supp. 3d 1075, 1085 (D. Ariz. 2016) (“The plaintiff bears the burden of establishing the 2 existence of a justiciable case or controversy, and must demonstrate standing for each claim he 3 seeks to press and for each form of relief that is sought.”) (internal quotation marks omitted). As 4 San Francisco concedes, “Defendants have not . . . officially declared San Francisco a ‘sanctuary 5 jurisdiction,’ withheld any funds pursuant to the [grant eligibility provision], or initiated other 6 enforcement action against San Francisco” (SF Opp. at 6). Those concessions are fatal, and they 7 are true of all three plaintiffs in these cases. 8 9 The AG Memorandum confirms that Plaintiffs’ claims are non-justiciable under these circumstances. The alleged “budgetary uncertainty” on which Plaintiffs primarily base their 10 assertions of present concrete injury, Cty. of Santa Clara v. Trump, ___ F. Supp. 3d ___, No. 17- 11 CV-00485-WHO, 2017 WL 1459081, at *17-19 (N.D. Cal. Apr. 25, 2017), evaporates because 12 (1) the grant eligibility provision will be applied only to grants administered by DOJ and the 13 Department of Homeland Security (“DHS”) where the agency has authority to require compliance 14 with 8 U.S.C. § 1373, and (2) grant applicants will receive notice of their obligation to comply 15 with the statute. See AG Mem. at 1-2. These facts also eliminate any concern that Plaintiffs will 16 be “force[d] to change [their] policies” (Richmond Opp. at 6; see SC Opp. at 11, 15; SF Opp. at 17 6).8 18 19 Further, the Executive Order – especially as elucidated by the AG Memorandum – does not “require jurisdictions to comply with detainer requests or face loss of federal funds and other 20 21 22 23 24 25 26 27 28 F. Supp. 3d 925, 947 (N.D. Cal. 2014), does not apply here, since the motion for reconsideration is “before the Court.” 8 Although Richmond implies that the Court need only consider the allegations in its complaint (Richmond Opp. at 14-20), the AG Memorandum should be considered in relation to both lack of jurisdiction and failure to state a claim. For example, since a motion under Rule 12(b)(6) “tests the legal sufficiency” of a complaint, Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001), the Court should consider outside legal authorities, such as case law, regulations, and the AG Memorandum, that bear upon that issue. The Court should also consider the AG Memorandum under judicial notice, if necessary. See La. Mun. Police Employees' Ret. Sys. v. Wynn, 829 F.3d 1048, 1063 (9th Cir. 2016) (“The Supreme Court has instructed that courts ruling on a motion to dismiss ‘must consider the complaint in its entirety, as well as other sources courts ordinarily examine when ruling on Rule 12(b)(6) motions to dismiss, in particular, documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.’”) (quoting Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). Reply: Motions to Dismiss 7 No. 3:17-cv-00485/00574/01535-WHO Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 14 of 28 1 enforcement action” (SF Opp. at 7). The AG Memorandum specifies that application of the grant 2 eligibility provision will turn on compliance with 8 U.S.C. § 1373, which relates only to the 3 sharing of information. See AG Mem. at 2. In any event, the Government recently confirmed its 4 position that immigration detainer requests are “voluntary.” See Br. of the United States as 5 Amicus Curiae at 22, Mass. v. Lunn, No. SJC-12276, 2017 WL 1240651, at *22 (D. Mass. Mar. 6 27, 2017); see also Galarza v. Szalczyk, 745 F.3d 634, 639-42 (3d Cir. 2014) (rejecting contention 7 that immigration detainers are mandatory). San Francisco and San Clara County argue that that 8 confirmation is contradicted by a statement in which they claim the Attorney General said that 9 “failure to comply with detainer requests violates federal law and will render jurisdictions 10 ineligible for DOJ grants under Section 1373” (SF Opp. at 7 n.3). But that is an inaccurate 11 characterization of the Attorney General’s remarks. Although he said that refusing to comply 12 with detainer requests “frustrate[s] [the] enforcement of immigration laws” and that “jurisdictions 13 seeking or applying for Department of Justice grants [would be required] to certify compliance 14 with 1373,” he did not say that non-compliance with detainer requests would constitute non- 15 compliance with Section 1373 (Dkt. 116-3, Ex. C). 16 Finally, San Francisco and Santa Clara County have not established the justiciability of 17 their challenge to the “appropriate enforcement action” provision in Section 9(a). The Defen- 18 dants have taken no enforcement action against the Plaintiffs under that provision, and there is no 19 indication that any such action is imminent. In response, San Francisco cites a few general state- 20 ments about sanctuary policies in general and the City’s policies in particular – including a 21 statement by a member of Congress (SF Opp. at 8-9). But those statements do not indicate that 22 any “enforcement action” against the City under Section 9(a) is imminent. In any event, if the 23 United States were to initiate any judicial action against one of the Plaintiffs outside of Section 24 9(a), the defendant municipality would have an opportunity at that time to challenge the propriety 25 and merits of the action. 26 27 28 Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO 8 Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 15 of 28 1 2 Plaintiffs Fail to State Any Viable Claim Regarding the Executive Order, Which Is an Internal Directive and Does Not Necessarily Directly Affect the Plaintiffs 3 Assuming Plaintiffs could show the justiciability of their claims, all of the claims 4 challenging Executive Order 13,768 should be dismissed because the Order only directs internal 5 Executive Branch policy and does not directly affect the Plaintiffs absent a finding that they have 6 violated Section 1373. See Chen v. Schiltgen, No. C-94-4094 MHP, 1995 WL 317023, at *5 7 (N.D. Cal. May 19, 1995), aff’d sub nom. Chen v. INS, 95 F.3d 801 (9th Cir. 1996); Legal Aid 8 Soc’y of Alameda Cty. v. Brennan, 608 F.2d 1319, 1330 n.14 (9th Cir. 1979); see also United 9 States v. Pickard, 100 F. Supp. 3d 981, 1011 (E.D. Cal. 2015). San Francisco and Santa Clara 10 County attempt to distinguish Chen and Legal Aid Society of Alameda County on the basis that 11 those cases dealt with whether certain executive orders “create[d] [a] private right of action that 12 can be enforced in court,” whereas the Plaintiffs here challenge an executive order (SF Opp. at 13 13-14; see SC Opp. at 16). But both conclusions proceed from the same rationale: In each 14 situation, the order is “merely an internal directive from the President to [certain Cabinet 15 officials], instructing them to exercise their statutory authority.” Chen, 1995 WL 317023, at *6. 16 If there is no private right of action to enforce an internal directive, then there cannot possibly be 17 a private right of action to challenge it, either.9 18 III. Richmond argues that Executive Order 13,768 “contains no language suggesting it was 19 intended to be merely an internal directive” (Richmond Opp. at 11). Yet all of the Order’s 20 mandates are directed at federal officials. Section 4 – the first section after the provisions on 21 policy and definitions – “direct[s] agencies to employ all lawful means to ensure the faithful 22 execution of the immigration laws of the United States against all removable aliens.” Section 9 23 sets forth instructions to the Attorney General, the Secretary of Homeland Security, and the 24 Director of the Office of Management and Budget. Except for statements of purpose, policy, and 25 the general construction of the Order (Sections 3 and 18), every section and subsection sets forth 26 9 27 28 San Francisco also seeks to distinguish United States v. Pickard, 100 F. Supp. 3d 981 (E.D. Cal. 2015). Plaintiff recognizes, however, that the court in Pickard rejected a challenge to an internal memorandum that “described . . . enforcement priorities” (SF Opp. at 14 n.5). Like that memorandum, the Executive Order here sets forth “enforcement priorities.” Reply: Motions to Dismiss 9 No. 3:17-cv-00485/00574/01535-WHO Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 16 of 28 1 instructions to one or more federal officials. In sharp contrast to Executive Order 13,768, other 2 orders have contained more than internal directives. One example is Executive Order 13,129, 3 which prohibited “any transaction or dealing by United States persons . . . in property or interests 4 in property” of the Taliban. 64 Fed. Reg. 36,759, § 2(a) (1999). Another example is Executive 5 Order 13,466, which provided that “United States persons may not register a vessel in North 6 Korea . . . or own, lease, operate, or insure any vessel flagged by North Korea.” 73 Fed. Reg. 7 36,787, § 2 (2008). Unlike the Executive Order involved here, those Orders were not merely 8 internal directives. 9 Finally, San Francisco argues that Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 10 (1952), supports this challenge to Executive Order 13,768 because the order struck down there 11 “was similarly framed as a directive to an Executive Branch official” (SF Opp. at 13). But the 12 executive order involved in Youngstown necessarily affected the plaintiffs in that case very 13 directly, in contrast to the Order involved here. There, the President directed the Secretary of 14 Commerce to seize the facilities of certain named companies, including those of the plaintiffs. 15 See Exec. Order No. 10,340, § 1, 17 Fed. Reg. 3139 (1952). Here, in contrast, the Order only 16 directs the Attorney General and the Secretary to focus on certain aspects of their existing 17 authorities. 18 IV. 19 20 Plaintiffs Fail to State Any Viable Claim Regarding the Grant Eligibility Provision, as Elucidated by the AG Memorandum All three of the Plaintiffs challenge the grant eligibility provision under the Separation of 21 Powers and the Spending Clause (although Santa Clara County argues Spending Clause 22 principles only in the context of its Separation of Powers claim). San Francisco and Richmond 23 allege that the grant eligibility provision violates the Tenth Amendment. Santa Clara County and 24 Richmond allege that the provision is unconstitutionally vague under the Due Process Clause. 25 Finally, the County also makes a procedural due process claim, and Richmond also makes a 26 Fourth Amendment claim. All of these challenges are without merit, especially in light of the AG 27 Memorandum and the high standard for facial challenges. 28 Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO 10 Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 17 of 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 A. Plaintiffs Must Establish that the Grant Eligibility Provision Is Unconstitutional in All Applications All of Plaintiffs’ claims against the grant eligibility provision challenge its facial constitutionality. As the Supreme Court has said, a facial challenge is “the most difficult challenge to mount successfully”; in this context, “the challenger must establish that no set of circumstances exists under which the [challenged enactment] would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987). Plaintiffs argue that the Salerno principle does not apply here (SF Opp. at 20-21; SC Opp. at 18-19), but this case fits comfortably within Salerno. In Salerno itself, for example, the plaintiffs alleged, among other things, that the Bail Reform Act’s procedures for determining whether to impose pretrial detention violated the Due Process Clause on their face. 481 U.S. at 742, 751-52. The Court rejected that challenge, noting that “to sustain [the procedures] against such a challenge, we need only find them adequate to authorize the pretrial detention of at least some persons charged with crimes, whether or not they might be insufficient in some particular circumstances.” Id. at 751 (citation and internal quotation marks omitted). Applying that standard here, this Court should reject Plaintiffs’ facial challenges because the grant eligibility provision can be applied constitutionally to “at least some [jurisdictions]” that “willfully refuse to comply with 8 U.S.C. 1373,” Exec. Order No. 13,768, § 9(a). For example, especially in light of the AG Memorandum, there will be “at least some” instances in which the agency has statutory authority to require certification of compliance with Section 1373, the applicant or grantee is aware of the certification requirement beforehand, compliance with Section 1373 is germane to the purposes of the particular grant, and requiring such certification does not violate any “independent [constitutional] bar.” See S. Dakota v. Dole, 483 U.S. 203, 207-08 (1987). The Court of Appeals applied Salerno to reject a facial challenge in Lanier v. City of Woodburn, 518 F.3d 1147 (9th Cir. 2008). There, an applicant for a position at a public library alleged that defendant’s policy requiring pre-employment drug testing violated the Fourth Amendment on its face. Id. at 1149. Plaintiff argued “that there [was] no set of circumstances under which the City’s policy would be constitutional as applied to every applicant for all jobs.” Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO 11 Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 18 of 28 1 Id. at 1150. The court rejected that argument, holding that “a policy of general applicability is 2 facially valid unless it can never be applied in a constitutional manner. . . . As [there is] no 3 concrete reason why [defendant’s] policy could not constitutionally be applied to jobs that, for 4 example, require the operation of dangerous equipment,” the court continued, “we cannot say that 5 the policy is invalid on its face.” Id. Lanier reflects that Salerno means exactly what it says: A 6 plaintiff challenging the facial constitutionality of an enactment must establish that no set of 7 circumstances exists under which the enactment could be applied constitutionally. 8 San Francisco and Santa Clara County argue that City of Los Angeles v. Patel, 135 S. Ct. 9 2443 (2015), forecloses applying Salerno here (SF Opp. at 21; SC Opp. at 19). Patel, however, 10 involved a situation different from this case. The plaintiffs there brought a facial Fourth Amend- 11 ment challenge to a city ordinance that required hotel operators to allow law enforcement officers 12 to examine information about their guests on demand. 135 S. Ct. at 2447-48. The City argued 13 that plaintiffs’ challenge necessarily failed Salerno because some of the examinations (i.e., Fourth 14 Amendment searches) would be supported by consent, presentation of a warrant, or exigent 15 circumstances. Id. at 2450-51. The Court rejected that argument, holding that Salerno asks 16 whether the challenged enactment “’is unconstitutional in all of its applications’” – that is, in 17 those situations where the enactment must actually be applied. Id. at 2451 (quoting Wash. State 18 Grange v. Wash. State Republican Party, 552 U.S. 442, 449 (2008)) (emphasis added). 19 The Plaintiffs here argue that Patel forecloses applying Salerno given “the existence of 20 other laws that might allow Defendants to condition specific grants on compliance with Section 21 1373” (SF Opp. at 21; see SC Opp. at 19). But this is fundamentally different from the facts in 22 Patel. Here, the challenged Order, especially as elucidated by the AG Memorandum, directs the 23 Attorney General and the Secretary to condition grants on compliance with Section 1373 only 24 where authorized by statute. In Patel, however, the ordinance required hotel operators to make 25 their records available under all circumstances, not only where independent legal bases existed to 26 require their availability. Plaintiffs’ argument would foreclose applying Salerno to any enactment 27 directing officials to apply existing law. 28 Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO 12 Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 19 of 28 1 Santa Clara County also argues that applying Salerno here would be inconsistent with the 2 Court of Appeals’ decision in Jackson v. City & County of San Francisco, 746 F.3d 953 (9th Cir. 3 2014). Jackson, also, is readily distinguishable from this case. There, plaintiffs brought a facial 4 Second Amendment challenge to an ordinance that required handguns in a residence to be either 5 stored in a locked container, disabled with a trigger lock, or carried by an adult. Id. at 958. 6 Defendant argued that the facial challenge was inappropriate because plaintiffs had conceded that 7 “locked storage is appropriate in some circumstances, such as when it is foreseeable that a child 8 would otherwise gain possession of a firearm.” Id. at 961. The court rejected that argument 9 because the case did not fall within the rationales for the Supreme Court’s jurisprudence on facial 10 challenges: Specifically, the challenged ordinance was “not an example of ‘complex and 11 comprehensive legislation’ which may be constitutional in a broad swath of cases”; and the 12 constitutionality of the ordinance would not “turn on how San Francisco chooses to enforce it.” 13 Id. at 962 (quoting Gonzales v. Carhart, 550 U.S. 124, 168 (2007)). 14 In contrast, Executive Order 13,768 does fall within those rationales. The Order requires 15 DOJ and DHS to require certification of compliance with Section 1373 where it has authority to 16 do so. Such authority may exist in relation to a “broad swath” of grant programs, and any 17 disappointed applicant or grantee could bring an as-applied challenge in any particular case where 18 one of the agencies applies the grant eligibility provision. Thus, the Ninth Circuit’s decision in 19 Jackson does not undercut the application of Salerno here. 20 21 B. Plaintiffs Fail to State a Viable Claim that the Grant Eligibility Provision Violates the Separation of Powers As noted earlier, all three plaintiffs allege that the grant eligibility provision violates the 22 constitutional Separation of Powers. However, the Executive Order requires the Attorney 23 General and the Secretary to condition grant eligibility on compliance with 8 U.S.C. § 1373 “to 24 the extent consistent with law,” Exec. Order No. 13,768, § 9(a), and the AG Memorandum 25 confirms that compliance with Section 1373 will be imposed as a condition of grant eligibility 26 only where the agency “is statutorily authorized to impose such a condition.” AG Mem. at 2. 27 This should eliminate any facial Separation of Powers concerns, especially under Salerno. 28 Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO 13 Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 20 of 28 1 In response to these points, Santa Clara County asserts that the AG Memorandum does not 2 apply to the Department of Homeland Security’s application of the grant eligibility provision (SC 3 Opp. at 22).10 As discussed above, however, the Attorney General is responsible for “[f]urnish- 4 [ing] advice and opinions, formal and informal, on legal matters to the President and the Cabinet 5 and to the heads of the executive departments and agencies of the Government” – including the 6 Secretary of Homeland Security. 28 C.F.R. § 0.5(c). Also, the statute establishing the Secre- 7 tary’s “powers and duties” related to immigration enforcement provides that a “determination and 8 ruling by the Attorney General with respect to all questions of law shall be controlling.” 8 U.S.C. 9 § 1103(a)(1). In any event, the Executive Order itself provides that compliance with Section 10 1373 shall be imposed as a grant condition only “to the extent consistent with law,” and an action 11 taken without authority would not be “consistent with law.” 12 C. 13 14 Plaintiffs Fail to State a Viable Claim that the Grant Eligibility Provision Exceeds the Spending Power All three plaintiffs also allege that the grant eligibility provision violates the Spending 15 Clause, or that it would violate the Spending Clause if enacted by Congress. Especially in light of 16 the AG Memorandum, the grant eligibility provision states its requirements “unambiguously”; 17 applicants and grantees will “exercise their choice knowingly, cognizant of the consequences of 18 their participation” by choosing whether to certify compliance with Section 1373, which is related 19 to at least some grant programs; the provision’s “financial inducement” is not “so coercive” as to 20 constitute “compulsion”; and “other constitutional provisions” do not provide an “independent 21 bar.” S. Dakota v. Dole, 483 U.S. 203, 207-8, 211 (1987). The fact that these are facial chal- 22 lenges is especially relevant to this claim, as Plaintiffs cannot show that the condition imposed 23 pursuant to the grant eligibility provision is unrelated to all DOJ and DHS grants, that imposition 24 25 26 27 28 10 Richmond quotes at length from this Court’s discussion of the Separation of Powers claims in ruling on the motions for preliminary injunction (Richmond Opp. a 16-17). But that ruling was made before issuance of the AG Memorandum, and, in any event, a court’s finding on the probability of success under a motion for preliminary injunction is not a final ruling on the merits. Also, Defendants have asked the Court to reconsider its ruling on the motions for preliminary injunction. Reply: Motions to Dismiss 14 No. 3:17-cv-00485/00574/01535-WHO Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 21 of 28 1 of that condition will necessarily constitute compulsion, or that all potential applications of the 2 condition will be constitutionally barred. 3 In response, San Francisco argues that the AG Memorandum does not settle the meaning 4 of “sanctuary jurisdictions” because “the Executive Order gives the Secretary – not the Attorney 5 General – the authority and discretion to designate sanctuary jurisdictions” (SF Opp. at 23). 6 However, this argument confuses the elucidation of that term with the responsibility to designate 7 individual jurisdictions. The Order gives the Secretary “the authority to designate, in his discre- 8 tion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.” Exec. Order 9 No. 13,768, § 9(a). But the AG Memorandum does not “designate” any sanctuary jurisdictions; it 10 only clarifies what the Order says about the meaning of the term – that is, that it “will refer only 11 to jurisdictions that ‘willfully refuse to comply with 8 U.S.C. 1373.’” AG Mem. at 2. And the 12 Memorandum makes clear that the Secretary was consulted on that issue. 13 San Francisco also argues that the AG Memorandum “does not limit application of the 14 Executive Order to funds related to immigration enforcement, as required to satisfy the nexus 15 requirement” (SF Opp. at 24). The “relatedness” factor of Dole cannot fairly be called a nexus 16 “requirement,” however. As the Court of Appeals has said, “This possible ground for invalidat- 17 ing a Spending Clause statute, which only suggests that the legislation might be illegitimate 18 without demonstrating a nexus between the conditions and a specified national interest, is a far 19 cry from imposing an exacting standard for relatedness.” Mayweathers v. Newland, 314 F.3d 20 1062, 1067 (9th Cir. 2002).11 Thus, conditions on federal funding must only “bear some rela- 21 tionship to the purpose of the federal spending.” Id. (quoting New York v. United States, 505 U.S. 22 144, 167 (1992)). Especially in light of Salerno and the AG Memorandum, the grant eligibility 23 provision easily meets this standard. The provision will be applied, “to the extent consistent with 24 law,” only to certain grants administered by DOJ and DHS, which are, respectively, the primary 25 federal law enforcement agency and the agency responsible for the admission and removal of 26 non-citizens (and the very agency whose communication with state and local government 27 11 28 Defendants’ motions to dismiss quoted Mayweathers, but the parties’ opposition briefs ignore it. Reply: Motions to Dismiss 15 No. 3:17-cv-00485/00574/01535-WHO Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 22 of 28 1 officials is protected by Section 1373). Any alleged departure from this aspect of Dole could be 2 raised in an as-applied challenge. 3 Lastly, Santa Clara County argues that the AG Memorandum does not eliminate 4 coerciveness concerns because it “fails to identify which DHS grants are at issue, and the County 5 relies on DHS grants for [almost] two-thirds of its Office of Emergency Services budget,” 6 amounting to “more than $5 million” for Fiscal Year 2016 (SC Opp. at 21; SC Complaint ¶ 42). 7 This, however, does not state a viable claim for violation of the Spending Clause, especially on a 8 facial challenge. The County alleges that its annual budget is approximately $6 billion (id. ¶ 27), 9 so the alleged DHS grants for the Office of Emergency Services amount to approximately .083 10 percent of the County’s overall budget. By contrast, the Eighth Circuit has held that a State’s 11 potential loss of “approximately $250 million or 12 per cent. of the annual state education 12 budget” would not constitute coercion under Dole, see Jim C. v. United States, 235 F.3d 1079, 13 1082 (8th Cir. 2000), and the D.C. Circuit has held that a State’s risk of losing something less 14 than 4% of its overall budget in the form of federal highway funds would not be unconstitu- 15 tionally coercive, see Miss. Comm’n on Envtl. Quality v. EPA, 790 F.3d 138, 178 (D.C. Cir. 16 2015). Either of those potential losses may have amounted to a large proportion of one office’s 17 budget. 18 19 D. Richmond and San Francisco Fail to State a Viable Claim that the Grant Eligibility Provision Violates the Tenth Amendment San Francisco and Richmond allege that the grant eligibility provision violates the Tenth 20 Amendment. This provision should cause no concern under the Tenth Amendment, since a 21 grantee’s obligation to comply with Section 1373 would arise only because of its voluntary 22 acceptance of a grant that includes the condition, and a jurisdiction can simply decline to apply 23 for such a grant. San Francisco argues that the AG Memorandum does not eliminate this concern 24 because there is still a threat that the grant eligibility provision might be used to require jurisdic- 25 tions to comply with immigration detainer requests (SF Opp. at 24-25). As noted earlier, 26 however, the AG Memorandum makes clear that application of the grant eligibility provision will 27 turn on compliance with 8 U.S.C. § 1373, which relates only to the sharing of information. See 28 Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO 16 Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 23 of 28 1 AG Mem. at 2. Even if that were not the case, a jurisdiction could avoid any concern about being 2 “commandeered” by declining to apply for a covered grant. 3 Moreover, even if the grant eligibility provision were somehow seen as related to detainer 4 requests, the claim would also fail under Salerno. Some jurisdictions believe that federal detainer 5 requests are appropriate and voluntarily choose to comply with them. Those jurisdictions are 6 obviously not being “commandeered” in violation of the Tenth Amendment. Therefore, if the 7 potential for being compelled to comply with such requests is the basis of Plaintiffs’ facial Tenth 8 Amendment claim, the claim must be dismissed because they cannot establish that the grant 9 eligibility provision would violate the Tenth Amendment in all its applications. See Salerno, 481 10 U.S. at 745 (facial challenge must establish that “no set of circumstances exists under which [the 11 enactment] would be valid”). 12 E. 13 14 15 Richmond and Santa Clara County Fail to State a Viable Claim of Unconstitutional Vagueness under the Due Process Clause Richmond and Santa Clara County allege that the grant eligibility provision is unconstitutionally vague under the Due Process Clause of the Fifth Amendment.12 This is an 16 especially difficult challenge to mount facially. “Outside the First Amendment context, a plaintiff 17 alleging facial vagueness must show that the enactment is impermissibly vague in all its 18 applications.” Humanitarian Law Project v. U.S. Treasury Dep’t, 578 F.3d 1133, 1146 (9th Cir. 19 2009) (internal quotation marks omitted). The plaintiff “’must prove that the enactment is vague 20 not in the sense that it requires a person to conform his conduct to an imprecise but comprehen- 21 sible normative standard, but rather in the sense that no standard of conduct is specified at all.’ 22 Put another way, [the challenger] must demonstrate that the ‘provision simply has no core.’” 23 Alphonsus v. Holder, 705 F.3d 1031, 1042 (9th Cir. 2013) (quoting Vill. of Hoffman Estates v. 24 Flipside, Hoffman Estates, Inc., 455 U.S. 489, 495 n.7 (1982)). The AG Memorandum should 25 eliminate any concern under these standards. Furthermore, as discussed in Part III above, the 26 12 27 28 Santa Clara County’s complaint also alleges that Section 6 of the Executive Order is unconstitutionally vague (SC Dkt. No. 1 ¶ 141). For the reasons stated in Defendants’ motion, any such claim should be dismissed (SC Dkt. No. 115 at 19-21 & n.6). The County’s opposition does not mention Section 6. Reply: Motions to Dismiss 17 No. 3:17-cv-00485/00574/01535-WHO Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 24 of 28 1 Executive Order is an internal directive to Executive Branch officials; thus, there can be no 2 legitimate question as to whether it provides a “standard of conduct” for the plaintiffs. 3 Relying on Valle del Sol Inc. v. Whiting, 732 F.3d 1006 (9th Cir. 2013), Plaintiffs argue 4 that Defendants cannot “cure a facially unconstitutional statute by adopting an unreasonable 5 narrowing interpretation” (SC Opp. at 23; see Richmond Opp. at 20). As discussed above, 6 however, the AG Memorandum is fully consistent with the Executive Order. For example, the 7 limitation to federal grants rather than other types of funding is reflected in the President’s use of 8 “Federal funds” in Section 2 of the Order but “Federal grants” in Section 9(a); the limitation to 9 DOJ and DHS grants is reflected in the President’s references to the Attorney General and the 10 Secretary in Section 9(a); and implementing Section 9(a) by requiring grantees to certify 11 compliance with Section 1373 is based on the President’s conferral of “discretion” on the 12 Attorney General and Secretary regarding the means of implementing the grant eligibility 13 provision and his instruction to do so “consistent with law.” 14 Further, in any event, Valle del Sol is very different from this case. There, a state criminal 15 law prohibited anyone “who is in violation of a criminal offense” from taking certain action, and 16 plaintiffs brought a vagueness challenge focused on the phrase “in violation of a criminal 17 offense.” 732 F.3d at 1019. The State asserted that the phrase should be understood as meaning 18 “in violation of a law or statute,” but the court rejected that assertion, finding that the State was 19 proposing “not to adopt a narrowing construction, but rather to replace a nonsensical statutory 20 element with a different element.” Id. at 1021. That is far from the situation here. No one could 21 argue that the grant eligibility provision is “nonsensical.” The AG Memorandum merely clarifies 22 certain elements that could be understood variously – and in ways that perfectly accord with the 23 Order itself, as discussed above. Thus, Valle del Sol does not support Plaintiffs’ vagueness claim. 24 25 26 F. Santa Clara County Fails to State a Viable Claim Regarding Procedural Due Process Santa Clara County also alleges that the grant eligibility provision violates procedural due 27 process under the Fifth Amendment. Especially in light of the AG Memorandum, the County 28 does not have a protectable property interest in any grant funds to which the eligibility provision Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO 18 Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 25 of 28 1 might apply, and, in any event, the applicable grant-making procedures would provide any 2 “process” that is due. Aside from whether the County might have a “legitimate claim of 3 entitlement” to certain kinds of federal funding, such as Medicaid reimbursements, the County 4 certainly does not have such a claim to discretionary grant funds provided by DOJ and DHS. See 5 Bd. of Regents of State Colls. v. Roth, 408 U.S. 564, 577 (1972). In any event, by specifying that 6 the grant eligibility provision be implemented “consistent with law,” Section 9(a) incorporates the 7 applicable procedural requirements for making or revoking federal grants. See, e.g., 2 C.F.R. 8 § 200.341 (hearings and appeals in federal grant-making); 28 C.F.R. pt. 18 (DOJ Office of Justice 9 Programs Hearing and Appeal Procedures). 10 In response, the County relies primarily on this Court’s ruling on Plaintiff’s motion for 11 preliminary injunction (SC Opp. at 24-25). But that ruling was made without the benefit of the 12 AG Memorandum, and Defendants have asked the Court to reconsider it. The County also cites 13 Doran v. Houle, 721 F.2d 1182 (9th Cir. 1983), for the proposition that it has a legitimate claim 14 of entitlement to “federal funds that Congress has already appropriated and directed to local 15 entities” (SC Opp. at 25). But that case addressed whether veterinarians had a property interest in 16 permits to perform a certain diagnostic test, 721 F.2d at 1183-84, not whether a jurisdiction might 17 have a property interest in “federal funds that Congress has already appropriated and directed to 18 local entities.” 19 G. 20 The final claim regarding the grant eligibility provision is Richmond’s claim that the Richmond Fails to State a Viable Claim under the Fourth Amendment 21 provision violates the Fourth Amendment. Again, however, application of the grant eligibility 22 provision will turn on compliance with 8 U.S.C. § 1373, which involves the sharing of informa- 23 tion and thus does not create any issue under the Fourth Amendment. See AG Mem. at 2. 24 Moreover, the AG Memorandum also states that the grant eligibility provision “does not call for 25 the imposition of grant conditions that would violate any applicable constitutional or statutory 26 limitation.” Id. at 1-2. 27 28 Further, even aside from those considerations, this claim fails the Salerno test. First, as of April 2, 2017, every detainer request issued by U.S. Immigration and Customs Enforcement Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO 19 Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 26 of 28 1 (“ICE”) is supported not only by a probable cause finding as to removability in the detainer form 2 itself, but also by an administrative warrant issued pursuant to 8 U.S.C. §§ 1226 or 1231, which 3 contains a probable cause finding made by ICE. See ICE, “Detainer Policy” (Mar. 24, 2017), 4 available at https://www.ice.gov/ detainer-policy. By definition, then, all such detainer requests 5 will satisfy the Fourth Amendment, see, e.g., Abel v. United States, 362 U.S. 217, 233 (1960), 6 such that a facial challenge cannot succeed. See Salerno, 481 U.S. at 745. And even without this 7 policy, because detainer requests are generally supported by probable cause findings, Richmond 8 cannot establish that complying with such requests would always violate the Fourth Amendment, 9 as necessary to sustain a facial challenge. See id. Richmond contends that the Court must accept 10 as true its allegation that the Order “requires Richmond to keep people in custody who would 11 otherwise be released” (Richmond Opp. at 19), but the Plaintiff does not – and cannot – allege 12 that such detention would always violate the Fourth Amendment. 13 V. 14 Richmond and San Francisco Fail to State a Viable Claim for Declaratory Relief Regarding Their Compliance with Section 1373 15 Aside from Plaintiffs’ challenges to the grant eligibility provision in Section 9(a), 16 Richmond and San Francisco seek a judicial declaration that they comply with 8 U.S.C. § 1373. 17 Plaintiffs do not, however, identify a right of action to seek such a declaration, and there is no live 18 controversy regarding whether they comply with Section 1373. 19 Plaintiffs argue that the Declaratory Judgment Act allows them to seek this relief (Rich- 20 mond Opp. at 21; SF Opp. at 10). “It is well-settled, however, that the Declaratory Judgment Act 21 does not create a stand-alone cause of action.” Fox-Quamme v. Health Net Health Plan of Or., 22 Inc., No. 3:15-CV-01248-BR, 2016 WL 1724358, at *1 (D. Or. Apr. 29, 2016); see Muhammad v. 23 Berreth, No. C 12-02407 CRB, 2012 WL 4838427, at *5 (N.D. Cal. Oct. 10, 2012) (“Declaratory 24 relief is not an independent cause of action or theory of recovery, only a remedy.”). Plaintiffs 25 have not pointed to any statute that provides a right of action to seek a declaration regarding their 26 compliance with Section 1373. 27 28 Nevertheless, San Francisco asserts that it can seek such a declaration because the United States “could bring civil preemption actions against jurisdictions to enforce Section 1373” (SF Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO 20 Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 27 of 28 1 Opp. at 10). The right of the United States to bring a preemption suit, however, is based on the 2 Supremacy Clause of the Constitution. San Francisco has no such right. Furthermore, the issue 3 involved in a federal preemption suit is fundamentally different from the cause of action that 4 Plaintiffs seek to assert: In a federal preemption action brought by the United States, the issue is 5 whether a State or local government’s law or action is constitutionally preempted by federal law. 6 If the court finds that the law or action is preempted, it is enjoined. In Plaintiff’s proposed action, 7 by contrast, the issue would be whether a local government’s law violates a federal law. The 8 Constitution requires the existence of the first kind of action, but not the second. 9 Lastly, there is no live controversy regarding whether Richmond or San Francisco 10 complies with Section 1373. Plaintiffs allege that they do not comply with immigration detainer 11 requests or otherwise cooperate with federal immigration authorities. But the Defendants have 12 not taken a position on whether Richmond or San Francisco complies with Section 1373. 13 14 CONCLUSION For the reasons discussed above and in Defendants’ motions to dismiss, all of Plaintiffs’ 15 claims should be dismissed. 16 Dated: June 29, 2017 17 Respectfully submitted, 18 CHAD A. READLER Acting Assistant Attorney General 19 20 BRIAN STRETCH United States Attorney 21 22 JOHN R. TYLER Assistant Director 23 24 /s/ W. Scott Simpson 25 W. SCOTT SIMPSON (Va. Bar #27487) Senior Trial Counsel 26 27 28 Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO 21 Case 3:17-cv-00485-WHO Document 133 Filed 06/29/17 Page 28 of 28 1 5 Attorneys, Department of Justice Civil Division, Room 7210 Federal Programs Branch Post Office Box 883 Washington, D.C. 20044 Telephone: (202) 514-3495 Facsimile: (202) 616-8470 E-mail: scott.simpson@usdoj.gov 6 COUNSEL FOR DEFENDANTS 2 3 4 7 DONALD J. TRUMP, President of the United States; UNITED STATES OF AMERICA; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States in City & County of San Francisco v. Trump, et al., No. 3:17-cv-00485-WHO 8 9 10 11 12 DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; MICK MULVANEY, Director of the Office of Management and Budget in County of Santa Clara v. Trump, et al., No. 3:17-cv-00574-WHO 13 14 15 16 17 DONALD J. TRUMP, President of the United States; JOHN F. KELLY, Secretary of Homeland Security; JEFFERSON B. SESSIONS, III, Attorney General of the United States; and UNITED STATES OF AMERICA in City of Richmond v. Trump, et al., No. No. 3:17-cv-01535-WHO 18 19 20 21 22 23 24 25 26 27 28 Reply: Motions to Dismiss No. 3:17-cv-00485/00574/01535-WHO 22