FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT CITY AND COUNTY OF SAN No. 17-17478 FRANCISCO, Plaintiff-Appellee, D.C. No. 3:17-cv-00485-WHO v. DONALD J. TRUMP, President of the United States; JEFFERSON B. SESSIONS III, Attorney General, Attorney General of the United States; ELAINE C. DUKE; UNITED STATES OF AMERICA, Defendants-Appellants. 2 SAN FRANCISCO V. TRUMP COUNTY OF SANTA CLARA, No. 17-17480 Plaintiff-Appellee, D.C. No. v. 3:17-cv-00574-WHO DONALD J. TRUMP, President of the United States; JEFFERSON B. OPINION SESSIONS III, Attorney General, Attorney General of the United States; KIRSTJEN NIELSEN, Secretary of Homeland Security; ELAINE C. DUKE; MICK MULVANEY, Director, OMB; UNITED STATES OF AMERICA, Defendants-Appellants. Appeal from the United States District Court for the Northern District of California William Horsley Orrick, District Judge, Presiding Argued and Submitted April 11, 2018 San Francisco, California Filed August 1, 2018 Before: Sidney R. Thomas, Chief Judge, and Ferdinand F. Fernandez and Ronald M. Gould, Circuit Judges. Opinion by Chief Judge Thomas; Dissent by Judge Fernandez SAN FRANCISCO V. TRUMP 3 SUMMARY* Separation of Powers/Executive Authority/Immigration The panel (1) affirmed the district court’s grant of summary judgment in favor of the City and County of San Francisco and the County of Santa Clara in an action challenging Executive Order 13,768, “Enhancing Public Safety in the Interior of the United States,” which directed the withholding of federal grants to so-called sanctuary jurisdictions; (2) vacated a nationwide injunction; and (3) remanded. The Executive Order cross-references 8 U.S.C. § 1373, which prohibits government entities from themselves prohibiting the sharing of “information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a). Section 9 of the Executive Order provides that the Attorney General and the Secretary of the Department of Homeland Security, “in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.” As a preliminary matter, the panel concluded that the Counties demonstrated standing to bring their action, and that the case was ripe for review. * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. 4 SAN FRANCISCO V. TRUMP The panel held that, under the principle of Separation of Powers and in consideration of the Spending Clause, which vests exclusive power to Congress to impose conditions on federal grants, the Executive Branch may not refuse to disperse the federal grants in question without congressional authorization. Because Congress has not acted, the panel affirmed the district court’s grant of summary judgment to the City and County of San Francisco and the County of Santa Clara. However, given the absence of specific findings underlying the nationwide application of the injunction, the panel vacated the nationwide injunction and remanded for reconsideration and further findings. Dissenting, Judge Fernandez concluded that ...
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