Executive Order 13768
Executive Order 13768 titled Enhancing Public Safety in the Interior of the United States was signed by U.S. President Donald Trump on January 25, 2017. The order stated that "sanctuary jurisdictions" including sanctuary cities that refused to comply with immigration enforcement measures would not be "eligible to receive Federal grants, except as deemed necessary for law enforcement purposes" by the U.S. Attorney General or Secretary of Homeland Security.
Legal challenges to the order were brought almost immediately after its issuance by San Francisco and a number of other cities and counties. In late April 2017, a federal court issued a nationwide preliminary injunction halting enforcement of the executive order, determining that the localities were likely to succeed on the merits of their challenge.
On November 21, 2017, section 9 of the executive order was declared unconstitutional by Judge William Orrick III, who issued a nationwide permanent injunction against its implementation.
Background
During his campaign, Trump proposed the mass deportation of illegal immigrants as part of his immigration policy. Jeff Sessions was confirmed on February 7 as Attorney General. Among his first statements, Sessions claimed that, "We need to end this lawlessness that threatens the public safety, pulls down the wages of working Americans."On August 31, 2016 Trump laid out a 10-step plan as part of his immigration policy where he reiterated that all illegal immigrants are subject to deportation with priority given to illegal immigrants who have committed significant crimes and those who have overstayed visas. He noted that all those seeking legalization would have to go home and re-enter the country legally.
On February 8, 2017, Immigration and Customs Enforcement agents arrested 36-year-old Guadalupe García de Rayos, when she attended her required annual review at the ICE office in Phoenix, and deported her to Mexico the next day based on a removal order issued in 2013 by the Executive Office for Immigration Review. The arrest prompted protests from her family and others Immigrant advocates believe that she is one of the first to be deported after the EO was signed and that her case reflects the severity of the crackdown on illegal immigration. ICE officials said that proceedings in Immigration Court had resulted in a finding that she did not have a legal basis to remain in the US. In 2008, she was working at an amusement park in Mesa, Arizona when then-Sheriff Joe Arpaio ordered a raid that resulted in her arrest and felony identity theft conviction for possessing a false Social Security number.
Provisions
Section 5 - Priorities for removal
Section 5 of the order prioritizes removal of aliens who "have been convicted of any criminal offense; have been charged with any criminal offense, where such charge has not been resolved; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; have abused any program related to receipt of public benefits; are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or in the judgment of an immigration officer, otherwise pose a risk to public safety or national security."This provision of the executive order greatly expands the category of people classified as "priorities for removal," making all aliens who have been charged with a crime, or believed could have been charged with a crime, priorities for deportation. The order expands to even those convicted of minor crimes, such as traffic offenses. This marks a change from the Obama administration, which placed the highest priority for deportation on aliens who had been convicted of serious crimes.
Section 9(a) - Disqualification of sanctuary cities from federal grants
Section 9 deals with disqualification of sanctuary cities from receiving U.S. federal grants. Section 9 states:It has been successfully challenged in the following cases, where it has been declared unconstitutional:
- City and County of San Francisco v. Trump
- City of Chelsea v. Trump
Section 9(b) - Publication of list of crimes by immigrants
Section 9states:
Criticism of Section 9(b)
While there is evidence that immigrants commit fewer crimes and are incarcerated at a lower rate than native-born Americans, there are very few studies of crime specific to illegal immigrants who are the targets of the order. Critics say that the effort to publicize immigrant crime is an effort to skew public perceptions about crimes committed by undocumented migrants.Some historians have compared Trump's proposed list of crimes committed by immigrants to the Nazi Germany-era policy of publishing lists of crimes supposedly committed by Jews. Historian Claudia Koonz of Duke University, an expert on Nazi Germany, said that the proposal was deeply troubling and that: "It's tough to make parallels when the scapegoat is so different. But the process is the same. The process was to exaggerate every piece of evidence showing the criminality of the targeted group. So even though it was atypical and not representative, by the media blitz that accompanied it, people began to see it as normal." A number of commentators, including Amanda Erickson of The Washington Post, Christopher Hooton of The Independent, and Tessa Stuart of Rolling Stone also compared the policy of distributing list of criminal actions committed by undocumented immigrants to antisemitic Nazi propaganda that focused on crime in order to stir up anger and hatred toward Jews.
Section 13 - VOICE office
Section 13 creates the Office of Victims of Immigration Crime Engagement, which operates to assist victims of immigrant crime.Legal challenges
Legal basis for the challenges
The challenges are based largely on the Tenth Amendment to the United States Constitution. This amendment was the basis for the U.S. Supreme Court's decision in Printz v. United States, in which the Court, in an opinion by Justice Antonin Scalia, struck down a law, held that the U.S. government cannot engage in "federal commandeering of state governments." While an emphasis on the Tenth Amendment has historically been championed by conservative jurists, the states and local governments challenging the executive order in this case reflect the amendment's use by liberals.A federal statute involved in the cases is section 1373 of title 8 of the United States Code. That section provides that "a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual".
Legal scholar Ilya Somin, writing in the Washington Posts The Volokh Conspiracy, wrote:
California legal cases: ''City and County of San Francisco v. Trump'', ''County of Santa Clara v. Trump'', and ''City of Richmond v. Trump''
City and County of San Francisco v. Trump or San Francisco v. Trump, No. 3:17-cv-00485, were resolved by the United States District Court for the Northern District of California, finding that Executive Order 13768 is unconstitutional on the grounds it violates the Fifth and Tenth Amendments to the United States Constitution, as well as the doctrine on the separation of powers, in line with claims made by the petitioners.On January 31, 2017 the City and County of San Francisco filed a civil action challenging the executive order on the grounds that it violates the Tenth Amendment of the United States Constitution with regard to State Sovereignty. San Francisco sued the Trump administration over the executive order requiring the federal government to withhold money from so-called sanctuary cities that protect criminal aliens from federal prosecution. The lawsuit filed in U.S. District Court in the Northern District of California alleges that Trump's order violates the Tenth Amendment, which states that powers not explicitly given to the federal government by the Constitution are reserved for the states.
The civil suit alleges three causes of action Declaratory Relief – San Francisco complies with, 10th Amendment – is unconstitutional, and 10th Amendment – Executive Order Section 9 enforcement directive is unconstitutional. The suit seeks a Declaratory Judgment and Injunctive Relief holding that, is unconstitutional and invalid on its face; Enjoin Defendants from enforcing Section 1373 or using it as a condition for receiving federal funds; Declare that Section is invalid as applied to state and local Sanctuary City laws, Enjoin Defendants from enforcing Section 1373 against jurisdictions that enact Sanctuary City laws for legitimate local purposes; Declare that San Francisco complies with Section ; Enjoin Defendants from designating San Francisco as a jurisdiction that fails to comply with Section ; Enjoin unconstitutional applications of the Enforcement Directive in Executive Order Section 9.
Unlike other suits brought in United States district courts across the United States challenging Executive Order 13769, this suit is the first one to challenge Executive Order 13768 on the basis of the Tenth Amendment to the United States Constitution.
On February 3, 2017, Santa Clara County, California filed a separate lawsuit challenging the order on the same grounds. For reasons of "judicial efficiency," both cases were assigned to District Court Judge William Orrick III. The State of California, represented by California Attorney General Xavier Becerra, filed an amicus brief in support of the two counties' challenge. Judge Orrick issued a preliminary injunction with nationwide effect halting implementation of the order on April 25, 2017, ruling that the plaintiffs were likely to succeed on the merits of their challenge.
On November 20, 2017, Judge Orrick issued a summary judgment that ruled Section 9 of the Executive Order was unconstitutional on its face and issued a permanent nationwide injunction against its implementation. The judgment concluded:
The city of Richmond, California filed a similar lawsuit on March 21, 2017. This lawsuit was also assigned to Judge Orrick.
''City of Chelsea v. Trump''
On February 8, 2017, the cities of Chelsea, Massachusetts and Lawrence, Massachusetts filed a lawsuit in the U.S. District Court in Boston, challenging the validity of the executive order. The Lawyers' Committee for Civil Rights and Economic Justice and the law firm Goodwin Procter are representing the cities pro bono in the suit.The civil suit alleges eight causes of action: declaratory relief that the City of Chelsea complies with ; declaratory relief that the City of Lawrence complies with ; the Section 9 of the executive order is unconstitutionally coercive under the Tenth Amendment; the executive order is facially unconstitutional under the Tenth Amendment; the executive order is unconstitutional under the Tenth Amendment as applied to plaintiff cities, is unconstitutional under the Tenth Amendment; the executive order violates the separation of powers recognized by the United States Constitution, and the executive order as unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment.
''Gonzalez v. ICE''
While the EO had been ruled unconstitutional in 2017, ICE established the practice of arresting immigrants while they were at courthouses via the 2018 directive, "Directive Number 11072.1, Civil Immigration Enforcement Actions Inside Courthouses", based on the practice established in the EO. The directive asserted that "law enforcement officials routinely engage in enforcement activity in courthouses throughout the country because many individuals appearing in courthouses for one matter are wanted for unrelated criminal or civil violations" and believed this was consistent with long-standing law enforcement policies.The state of New York, under its Attorney General Letitia James, and the Brooklyn District Attorney Eric Gonzalez filed suit in September 2019 against ICE in the United States District Court for the Southern District of New York related to its execution of the EO. The plaintiffs challenged ICE's on two counts: that civil arrests made at a courthouse violated a common law practice embedded in the Immigration and Nationality Act of 1952, and that the arrest policy was adopted in an "arbitrary and capricious manner" that violated the Administrative Procedure Act, and sought injunctive and declaratory relief from the ICE's practices. Judge Jed Rakoff rejected ICE's request to dismiss the lawsuit in November 2019, stating that the plaintiffs had a valid claim; "Courts cannot be expected to function properly if third parties feel free to disrupt the proceedings and intimidate the parties and witnesses by staging arrests for unrelated civil violations in the courthouse." Judge Rakoff issued his summary judgement on June 10, 2020, affirming both counts that the ICE policy was illegal and enjoining the agency from performing any more arrests in such a manner in any courtroom in the state of New York. Rakoff agreed with the plaintiffs that the actions had chilling effects for reporting other civil and criminal issues even for immigrants who were not under ICE suspicions; "Evidence proffered by the plaintiffs indicates that substantial numbers of non-citizen litigants, even those who were not themselves subject to these actions, now feared any kind of participation in the legal system, including reporting domestic violence, litigating family court actions, and pursuing meritorious defenses to criminal charges."