Part of President Donald Trump's campaign law-and-order platform was a promise to crack down on illegal immigration.
As cities, counties and even entire states, including California, have taken action declaring themselves sanctuaries, the Trump administration has pushed back by threatening to withhold federal funds—including, ironically, funds that go toward law enforcement—from sanctuary jurisdictions.
The administration cannot do that, a federal judge ruled on Nov. 20.
"Because Section 9(a) [of Trump's executive order] is unconstitutional on its face, and not simply in its application to the plaintiffs here, a nationwide injunction against the defendants other than President Trump is appropriate," U.S. District Court Judge William Orrick wrote in his decision.
He identifies several elements of the executive order that are unconstitutional:
"It is so overbroad and coercive that even if the president had spending powers, the executive order would clearly exceed them and violate the Tenth Amendment’s prohibition against commandeering local jurisdictions.
"It is so vague and standardless that it violates the Fifth Amendment’s Due Process Clause and is void for vagueness.
"And because it seeks to deprive local jurisdictions of congressionally allocated funds without any notice or opportunity to be heard, it violates the procedural due process requirements of the Fifth Amendment."
It's a more thorough constitutional analysis than Orrick delivered seven months ago when he also sided with the plaintiffs, and issued a preliminary injunction against the administration.
"The Constitution vests the spending powers in Congress, not the president, so the executive order cannot constitutionally place new conditions on federal funds," Orrick wrote.
Santa Clara County and the city of San Francisco filed the suit, and dozens of other jurisdictions—including Monterey County and the city of Salinas—signed on.
Salinas officials in particular felt backed into a corner by Trump's executive order: Constituents in the city pressed for City Council to take a stand and show support for a largely immigrant population, but officials worried the feds would cut off some $13 million a year.
The court victory comes just a week after the county and the city find themselves in the crosshairs of a related threat from the DOJ to withhold funding.
A Nov. 15 letter to Monterey County—along with 28 other jurisdictions, including the state of Illinois, Burlington, Vermont and Los Angeles—asks the county, along with the city of Salinas, to prove compliance with federal statute in order to keep federal funding.
"It’s hard to figure out why those entities were selected, as opposed to many others that probably have similar policies," says Monterey County Counsel Charles McKee. "It’s hard to tell why."
The DOJ's letter cites Government Code section 1373: "Notwithstanding any other provision of federal, state, or local law, 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."
The DOJ's concern is whether the county sheriff's policy follows this rule.
McKee says it does.
"The obvious response is, we’re complying now, and we don’t see any reason why in the future we wouldn’t be complying," he says. "[The DOJ letter] fails to recognize the rest of the policy."
The Sheriff's Office policy—General Order No: 14-01—is titled "Detention of Undocumented Persons," and has been in effect since 2014.
"Detentions and arrests shall be based on reasonable suspicion, probable or consensual cause in a manner prescribed by law," the policy reads. "Staff shall not initiate law enforcement action based solely on observations related to a subject’s immigration status."
The DOJ's take:
"The Department is concerned that this appears to restrict the sending of information regarding immigration status, in violation of section 1373."
The county and Salinas have until Dec. 8 to write back, making their case that they are in compliance.