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City & Cty. of S.F. v. Trump - 897 F.3d 1225 (9th Cir. 2018)


Congress's power to spend is directly linked to its power to legislate. Incident to the spending power, Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives. On the other hand, there is no provision in the Constitution that authorizes the President to enact, to amend, or to repeal statutes. Aside from the power of veto, the President is without authority to thwart congressional will by canceling appropriations passed by Congress. Simply put, the President does not have unilateral authority to refuse to spend the funds. And, the President may not decline to follow a statutory mandate or prohibition simply because of policy objections.


President Trumpt issued 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. The  questioned Executive Order cross-references 8 U.S.C. § 1373, prohibiting 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." The City and County of San Francisco and the County of Santa Clara brought suit challenging Executive Order 13,768.


Did questioned Executive Order violate the separation of powers doctrine because it improperly seeks to wield congressional spending powers?




The district court properly entered summary judgment in favor of the counties because Congress did not authorize withholding of funds and the Executive Order violated the constitutional principle of the Separation of Powers, when the Executive Order directed Executive Branch administrative agencies to withhold funding that Congress had not tied to compliance with 8 U.S.C.S. § 1373; absent congressional authorization, the Administration could not redistribute or withhold properly appropriated funds in order to effectuate its own policy goals.

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