The court rejected the weight the Department of Justice tried to place on the recent memo from Attorney General Jeff Sessions, concluding it is not likely a binding legal opinion. So, is the executive order currently enforceable?
In April, a federal district court issued a nationwide preliminary injunction preventing the Trump Administration from enforcing the sanctuary jurisdictions portion of the Enhancing Public Safety in the Interior of the United States executive order (EO). The Department of Justice (DOJ) asked the court to reconsider its ruling in light of a May memo from Attorney General Jeff Sessions interpreting the EO very narrowly. The court recently refused.
Per the EO, so-called sanctuary jurisdictions are afraid the federal government is going to take away all federal grant funding if, among other things, they do not comply with warrantless, voluntary Immigration and Customs Enforcement (ICE) detainers, which instruct jails to detain undocumented persons after they may be otherwise free to go so that ICE may pick them up and deport them.
The Sessions memo says that the executive order only applies to DOJ or Department of Homeland Security (DHS) grants, and that the term “sanctuary jurisdiction” only refers to jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373.” Section 1373 is very narrow; it only prohibits local governments from restricting employee communication of immigration status information to ICE. In its motion to reconsider, DOJ explicitly confirmed that it is not interpreting Section 1373 to require compliance with ICE detainer requests.
When litigating this case before the Sessions memo came out, DOJ tried to convince the court that it interpreted the EO as the Sessions memo would later describe. But the judge concluded that the “interpretation was not legally plausible in light of the order’s plain language and the government’s many statements indicating the order’s expansive scope.”
In trying to convince the court to reconsider its initial ruling that the sanctuary jurisdictions executive order is likely unconstitutional, DOJ claimed the memo is a material change in evidence because “it is formal guidance from the Attorney General regarding the scope and meaning of the executive order that binds DOJ and other federal agencies.”
The district court rejected the weight DOJ tried to place on the memo, concluding it is not likely a binding legal opinion. And even if it is, the court concluded, it is not clearly binding on other executive agencies, including DHS and DOJ, and the attorney general himself. As the court noted, “the AG memorandum is directed only to grant-making components within DOJ, is labeled as an ‘implementation’ memorandum, is only two pages long, does not engage in substantive legal analysis, and primarily outlines plans to enforce the order rather than an opinion on its meaning or scope.”
The result of the court’s decision in this case is that the EO is still currently unenforceable nationwide. What’s next in this litigation? DOJ will probably appeal to the Ninth Circuit.
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Featured image: New York City is among the many cities that threatened to sue the Trump Administration in response to its sanctuary cities executive order, which in its original form called for the removal of immigrants who (according to an immigration officer) are deemed to pose a risk to public safety. (Getty Images)
About the author: Lisa Soronen is the executive director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.