“We believe that they are coming for San Francisco's funds,” Eisenberg said.
San Francisco receives roughly $2 billion a year in federal funds. Santa Clara County relies on $1.7 billion.
The counties are seeking a nationwide injunction against parts of the Jan. 25 executive order that they say threatens all of that money and puts their fiscal health at risk.
But the government's lawyer, Acting Assistant Attorney General Chad Readler, refuted the claims. He said the counties were interpreting the executive order "in the broadest terms."
Executive Order 13768
The order states that people who enter the United States or overstay visas present “a significant threat to national security and public safety,” a threat the Trump administration asserts is heightened by jurisdictions that shield immigrants from deportation.
The order instructs the U.S. attorney general and the secretary of Homeland Security to identify and penalize any jurisdiction that “prevents or hinders” enforcement of U.S. immigration law.
Readler asserted that the only federal funds that might be cut are grants from the Department of Justice to fund local policing initiatives, and only if jurisdictions violate a federal statute that says no local authority can hinder communication between law enforcement and ICE regarding a person's immigration status.
Readler added that neither San Francisco nor Santa Clara had been found to violate that provision.
San Francisco's laws prohibit law enforcement officers from responding with ICE detainer requests and limit when to give ICE advance notice of a person's release date.
Santa Clara County adopted a "civil detainer policy” in 2011 that included a provision that the county would honor detainers for serious or violent felons only if ICE would agree in writing to reimburse all costs. ICE refused, and the county stopped honoring detainer requests in October 2011.
Attorneys for the counties said the executive order has to be considered in the context of threats by Trump, the White House press secretary and U.S. Attorney General Jeff Sessions to punish local jurisdictions that do not respond to detainer requests from ICE.
ICE issues these administrative warrants to get local law enforcement officials who are holding undocumented inmates in jail or prison to continue to hold them until federal agents can arrive to take them into custody.
Many jurisdictions, including some that do not identify as sanctuaries, refuse to honor these requests because courts have found them unconstitutional.
Attorney John Keker, arguing for Santa Clara County, told Judge Orrick the Trump administration is using the executive order in his own words "as a 'weapon' to deprive jurisdictions of the money they need to operate."
But Readler put that down to the "heated political debate about immigration." He said, “There’s no actual enforcement action on the table or even being threatened.”
Orrick disagreed. The judge labeled the threat to county budgets an indisputable fact.
"Is it true that every day you are owed millions of dollars by the federal government for services provided?" Orrick asked Santa Clara County counsel James Williams.
Williams answered that the county spends on average $4 million to $5 million a day that it relies on the federal government to reimburse.
Orrick said he would issue a ruling as soon as he can.
Constitutionality of Cuts May Come Down to Economic Impact
Both county’s lawsuits cite a U.S. Supreme Court decision striking down part of the Affordable Care Act that would have cut all Medicaid funding for states that refused to expand the program. The move would have cut an average 10 percent of state budgets. The court said that was too coercive.
Justice John Roberts called the cuts “a gun to the head”
But in the case challenging the administration’s crackdown on sanctuary cities, UC Berkeley Law Professor John Yoo thinks the government is well within its rights.
"It’s not unconstitutional for the federal government to place conditions on the use of funds, or to cut off funds altogether," he said.
Yoo served in the Justice Department of President George W. Bush, and says in an earlier case out of South Dakota the Supreme Court ruled that it was OK to withhold highway funds to get state officials to raise the drinking age to 21. In that case the cuts represented a tiny share of the state budget -- less than half a percent.
