- The Washington Times - Thursday, February 23, 2017

The California county that sued President Trump over his executive order targeting “sanctuary” cities asked a federal judge on Thursday to suspend nationwide implementation of the order, saying it is overbroad and has thrown the county’s budget planning process “into immediate and ongoing disarray.”

Santa Clara County officials worry that the executive order, which would ban federal funds from jurisdictions that hamper enforcement of immigration laws, could cost the county $1.7 billion annually — about 35 percent of the $4.8 billion in revenue it received last year.

Questioning whether the president’s order is constitutional and unwilling to alter their immigration policies, county officials say they are in a precarious position.

“The County could continue to provide services to its residents without any assurance that it will be reimbursed by the federal government for those services, or it can discontinue essential and mandatory services to its residents. Either course would result in devastating consequences or the County and substantial, irreparable harm to its residents,” County Executive Jeffrey Smith wrote in a declaration filed in U.S. District Court for the Northern District of California. “Indeed, any action by the County to reduce programs supported by federal funds to a level sustainable in the absence of federal funding would be so dramatic that it would quickly put the community in a crisis.”

Trump administration officials have yet to move forward with enforcement of portions of the order that would cut off federal funding for sanctuary cities. The order does not explicitly say which jurisdictions are considered sanctuaries, give a timeline for when those out of compliance could stand to lose federal funding or lay out which funds would be on the line.

“Sanctuary cities” has become a term often used to describe jurisdictions that have adopted policies either discouraging law enforcement from inquiring about immigration status or from cooperating with U.S. Immigration and Customs Enforcement as they attempt to take custody of illegal immigrants in local jails. More than 300 jurisdictions have adopted a range of policies meant to protect from deportation the estimated 11 million people in the United States illegally.

Believing Santa Clara County, which has more than 1.9 million residents and is home to Silicon Valley, would likely be counted as a sanctuary jurisdiction on account of its policies, officials there filed suit over the order this month alleging that it is unconstitutional.

“This broadly and carelessly worded directive requires our nation’s top law enforcement officer to take reprisals against any state, city, county or other municipality that he may decide, in his sole and unreviewable discretion, has taken any act that he believes ‘hinders’ any interest set forth in the vast body of federal law,” wrote attorneys for Santa Clara County in the lawsuit. “An aggrandizement of executive power of this magnitude has rarely been attempted in the history of the Republic.”

In the court documents filed Thursday, the county attorneys argue that a federal judge should issue a preliminary injunction blocking enforcement of the order nationwide while the lawsuit is considered. They said the injunction is necessary because the order applies to state and local governments across the country, and a “partial geographic implementation would lead to inconsistent enforcement.”

“Sitting squarely in the president’s crosshairs, the county cannot wait and see what will become of the federal funding Congress has allocated to it, or what ‘enforcement actions’ await it,” county attorneys wrote.

A temporary restraining order has prevented Mr. Trump’s executive order on travel and refugees from being enforced for the past three weeks. Rather than defend the travel order in court, the Trump administration is working to draft an order to replace the original.

The Justice Department is reviewing the county’s motion for the preliminary injunction, said spokeswoman Nicole Navas. She said the department declined to comment on the litigation and noted that a response to the motion would be made in court.

The Justice Department has until March 9 to file a response to the preliminary injunction request.

U.S. District Judge William Orrick has scheduled a hearing on the motion for April 5.

While the Santa Clara County complaint outlines federal funding that could be in jeopardy under the order — which ranges from money used to keep a 574-bed Santa Clara Valley Medical Center running to money for social services programming — it remains unclear exactly what types of federal grants could be targeted under Mr. Trump’s order.

The order exempts funding intended for “law enforcement purposes” from being cut, but some immigration and constitutional law analysts say that is the exact type of funding that would likely have to be targeted under the order for it to remain constitutional.

“If the grant is not germane to law enforce issues at all, I don’t think he would have the authority to withhold those funds,” said Phil Torrey, the supervising attorney at the Harvard Immigration Project. “What he cannot do is withhold large sums of federal grants to localities in which the grants are not related to law enforcement or immigration enforcement at all.”

But others say there is room to make the connection between cutting funding for a broad swath of programs, not just those related to law enforcement.

David Rivkin, a constitutional law professor, said that “there has to be some connection between what you are withholding and policy goals, the policy strings you are trying to attach.”

But as sanctuary cities essentially serve as “a magnet for illegal aliens,” Mr. Rivkin, who served at the Department of Justice and the White House counsel’s office during the Ronald Reagan and George H.W. Bush administrations, said federal spending supporting a variety of other government functions or programs could also come into question.

The argument goes that because Congress put forth money to benefit U.S. citizens, the sanctuary cities “are misspending precious taxpayers resources that Congress appropriated” and therefore could be subject to having them suspended.

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