Tanvi Misra is a staff writer for CityLab covering immigrant communities, housing, economic inequality, and culture. She also authors Navigator, a weekly newsletter for urban explorers (subscribe here). Her work also appears in The Atlantic, NPR, and BBC.
The city attorney of San Francisco, Dennis Herrera, just filed a lawsuit against the administration, citing a constitutional provision limiting federal power over states and localities.
What you’re looking at below may be the formal beginning of the legal battle between local and federal government in the Trump Era:
San Francisco sues President Trump for unconstitutional executive orders https://t.co/ZTdSjM63EV— Mayor Ed Lee (@mayoredlee) January 31, 2017
On January 25, President Donald Trump signed two executive orders addressing immigration, one of which specifically asked his agencies to withhold funding from local governments that restrict how their local police complies with federal immigration authorities—loosely termed “sanctuary cities.” While cities like Miami caved, many others have pledged to resist. This afternoon, San Francisco announced that it has now sued the Trump administration.
The lawsuit, filed by City Attorney Dennis Herrera, argues that the order violates the 10th amendment of the Constitution, which limits the power of the federal government on states and localities. “In blatant disregard of the law, the President of the United States seeks to coerce local authorities into abandoning what are known as ‘Sanctuary City’ laws and policies,” says the complaint, filed in federal court Tuesday. “The Executive Order is a severe invasion of San Francisco’s sovereignty.”
Trump’s executive order doesn’t lay out exactly which funding streams would be choked and how. But as my colleague Natalie Delgadillo has previously written, cities with such policies could lose anything from 1 percent to 20 percent of their budget. That means San Francisco could lose up to an estimated $416 million, much of which is economic development grants and anti-poverty initiatives.
As that piece mentions, experts have foreseen legal pushback to the executive order. Following its release, Ilya Somin, a law professor at George Mason University, wrote in The Washington Post:
Unless interpreted very narrowly, it is both unconstitutional and a very dangerous precedent. Trump and future presidents could use it to seriously undermine constitutional federalism by forcing dissenting cities and states to obey presidential dictates, even without authorization from Congress. The circumvention of Congress makes the order a threat to separation of powers, as well.
Herrera puts forth a similar argument to Somin’s in the complaint, citing a 2012 Supreme Court ruling regarding former President Barack Obama’s Affordable Care Act, which said that withholding funds from states that don’t expand Medicaid was a constitutional overreach.
In a press conference Tuesday afternoon, Herrera also clarified that sanctuary city policies don’t protect criminals, as they’re often perceived to. They hand them over as long as federal authorities have warrants. (San Francisco, in particular, came under fire in 2015 after the alleged murder by an undocumented man who had previous felony convictions for reentering the country after being deported several times. The trial is still ongoing.) Herrera also mentioned that “sanctuary cities” tend to have lesser crime and better economic conditions, likely because of better trust between law enforcement and local communities.
All of that, he said, would be undermined the executive order. “It’s un-American,” Herrera said, with Mayor Ed Lee by his side. ”The fabric of our communities and billions of dollars are at stake.”