Executive Order 13768

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Executive Order 13768
Enhancing Public Safety in the Interior of the United States
Seal of the President of the United States
Executive Order 13768.pdf.jpg
Executive Order 13768 in the Federal Register
Type Executive order
Executive Order number {{#property:P1555}}
Signed by Donald Trump on January 25, 2017 (2017-01-25)
Federal Register details
Federal Register document number {{#property:P1544}}
Publication date {{#property:P577}}
Document citation {{#property:P1031}}

Executive Order 13768, signed by U.S. President Donald Trump on January 25, 2017,[1][2] is the subject of legal challenges in the federal courts of the United States. The order states "sanctuary jurisdictions" including "sanctuary cities" who refuse to comply will not be "eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary". Legal challenges to the order were brought almost immediately after its issuance. San Francisco, California, is one city challenging the order.[3]

Background

During his campaign, Trump proposed the mass deportation of illegal immigrants as part of his immigration policy.[4][5][6] Jeff Sessions was confirmed on February 7 as Attorney General "after a series of divisive congressional hearings over his record on civil rights". Among his first statements, Sessions claimed that, "We need to end this lawlessness that threatens the public safety, pulls down the wages of working Americans."[7]

On August 31, 2016 Trump laid out a 10-step plan as part of his immigration policy where he reiterated that all illegal immigrants are "subject to deportation" with priority given to illegal immigrants who have committed significant crimes and those who have overstayed visas. He noted that all those seeking legalization would have to go home and re-enter the country legally.[8][9][10][11][12]

On February 8, 2017, Immigration and Customs Enforcement (ICE) agents arrested 36-year-old Guadalupe García de Rayos, when she attended her required annual review at the ICE office in Phoenix, and deported her to Mexico the next day based on a removal order issued in 2013 by the Executive Office for Immigration Review. The arrest prompted protests from her family and a small army of volunteers from Puente, an immigrants’ rights group[13][14][15][16] Immigrant advocates believe that she is one of the first to be deported after the EO was signed and that her deportation "reflects the severity" of the "crackdown" on illegal immigration.[17] ICE officials said that her case went through multiple reviews in the immigration court system and that the "judges held she did not have a legal basis to remain in the US".[18] In 2008, she was working at an amusement park in Mesa, Arizona when then-Sheriff Joe Arpaio ordered a raid that resulted in her arrest and felony identity theft conviction for possessing a false Social Security number.[17][19] As a result, she was required to have an annual ICE review for which she voluntarily at the ICE.[citation needed]

Provisions

Section 5 of the order prioritizes removal of aliens who "have been convicted of any criminal offense; have been charged with any criminal offense, where such charge has not been resolved; have committed acts that constitute a chargeable criminal offense; have engaged in fraud or willful misrepresentation in connection with any official matter or application before a governmental agency; have abused any program related to receipt of public benefits; are subject to a final order of removal, but who have not complied with their legal obligation to depart the United States; or in the judgment of an immigration officer, otherwise pose a risk to public safety or national security."[20]

Legal challenges

Case District Status
City and County of San Francisco v. Trump Northern District of California Complaint filed seeking declaratory relief and an injunction, case is currently pending.[21]
City of Chelsea v. Trump District of Massachusetts Complaint filed seeking declaratory relief and an injunction, case is currently pending.[22]

Legal basis for the challenges

The challenges are based largely on the Tenth Amendment to the United States Constitution, the basis on which the Supreme Court, in an opinion by Justin Antonin Scalia struck down a law in Printz v. United States (1997), held that the Constitution barred the U.S. government from engaging in "federal commandeering of state governments." While an emphasis on the Tenth Amendment has historically been championed by conservative jurists, the states and local governments challenging the executive order in this case reflect the amendment's use by liberals.[23]

A federal statute involved in the cases is section 1373 of title 8 of the United States Code. That section provides that "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," and makes jursidictions with such restrictions ineligible to receive federal grants, "except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary."

Legal scholar Ilya Somin, writing in the Washington Post's The Volokh Conspiracy, wrote:

There are two serious constitutional problems with conditioning federal grants to sanctuary cities on compliance with Section 1373. First, longstanding Supreme Court precedent mandates that the federal government may not impose conditions on grants to states and localities unless the conditions are "unambiguously" stated in the text of the law "so that the States can knowingly decide whether or not to accept those funds." Few if any federal grants to sanctuary cities are explicitly conditioned on compliance with Section 1373. Any such condition must be passed by Congress, and may only apply to new grants, not ones that have already been appropriated. The executive cannot simply make up new conditions on its own and impose them on state and local governments. Doing so undermines both the separation of powers and federalism.

Even aside from Trump’s dubious effort to tie it to federal grants, Section 1373 is itself unconstitutional. The Supreme Court has repeatedly ruled that the federal government may not 'commandeer' state and local officials by compelling them to enforce federal law. Such policies violate the Tenth Amendment.[24]

City and County of San Francisco v. Trump

City and County of San Francisco v. Trump
US DC NorCal.svg
United States District Court for the Northern District of California
Full case name City and County of San Francisco, Plaintiffs, v. Donald J. Trump, in his official capacity as President of the United States of America, et al., Defendants
Citations No. 3:17-cv-00485

City and County of San Francisco v. Trump or San Francisco v. Trump, No. 3:17-cv-00485 (N.D.Cal. 2017), currently pending in the United States District Court for the Northern District of California, challenges Executive Order 13768 on the grounds it violates the Tenth Amendment to the United States Constitution.[21][25][26]

On January 31, 2017 the City and County of San Francisco filed a civil action challenging the executive order on the grounds that it violates the Tenth Amendment of the United States Constitution with regard to State Sovereignty. San Francisco sued the Trump administration over the executive order requiring the federal government to withhold money from so-called sanctuary cities that protect undocumented immigrants from federal prosecution. The lawsuit filed in U.S. District Court in the Northern District of California alleges that Trump's order violates the Tenth Amendment, which states that powers not explicitly given to the federal government by the Constitution are reserved for the states.[27][28]

The civil suit alleges three causes of action (1) Declaratory Relief – San Francisco complies with 8 U.S.C. § 1373, (2) 10th Amendment – 8 U.S.C. § 1373(a) is unconstitutional, and (3) 10th Amendment – Executive Order Section 9(A) enforcement directive is unconstitutional. The suit seeks a Declaratory Judgment and Injunctive Relief holding that, (1) 8 U.S.C. § 1373(a) is unconstitutional and invalid on its face; (2) Enjoin Defendants from enforcing Section 1373(a) or using it as a condition for receiving federal funds; (3) Declare that Section 8 U.S.C. § 1373(a) is invalid as applied to state and local Sanctuary City laws, (4) Enjoin Defendants from enforcing Section 1373(a) against jurisdictions that enact Sanctuary City laws for legitimate local purposes; (5) Declare that San Francisco complies with Section 8 U.S.C. § 1373; (6) Enjoin Defendants from designating San Francisco as a jurisdiction that fails to comply with Section 8 U.S.C. § 1373; (7) Enjoin unconstitutional applications of the Enforcement Directive in Executive Order Section 9(a).[21]

Unlike other suits brought in United States district courts across the United States challenging Executive Order 13769, this suit is the first one to challenge Executive Order 13768 on the basis of the Tenth Amendment to the United States Constitution.[29]

City of Chelsea v. Trump

City of Chelsea v. Trump
150px
United States District Court for the District of Massachusetts
Full case name City of Chelsea, City of Lawrence, Plaintiffs, v. Donald J. Trump, President of the United States, United States of America, John F. Kelly, Secretary of United States Department of Homeland Security, Dana J. Boente, Acting Attorney General of the United States, Does 1-100, Defendants.

On February 8, 2017, the cities of Chelsea, Massachusetts and Lawrence, Massachusetts filed a lawsuit in the U.S. District Court in Boston, challenging the validity of the executive order.[30][22] The Lawyers' Committee for Civil Rights and Economic Justice and the law firm Goodwin Procter are representing the cities pro bono in the suit.[30]

The civil suit alleges eight causes of action: (1) declaratory relief that the City of Chelsea complies with 8 U.S.C. § 1373; (2) declaratory relief that the City of Lawrence complies with 8 U.S.C. § 1373; (3) the Section 9(A) of the executive order (the "enforcement directive") is unconstitutionally coercive under the Tenth Amendment; (4) the executive order is facially unconstitutional under the Tenth Amendment; (5) the executive order is unconstitutional under the Tenth Amendment as applied to plaintiff cities, (6) 8 U.S.C. § 1373(a) is unconstitutional under the Tenth Amendment; (7) the executive order violates the separation of powers recognized by the United States Constitution, and (8) the executive order as unconstitutionally vague in violation of the Due Process Clause of the Fifth Amendment.[22]

See also

References

  1. Office of the Press Secretary (January 25, 2017). "Executive Order: Enhancing Public Safety in the Interior of the United States". whitehouse.gov. Washington, D.C.: White House. Retrieved January 25, 2017.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  2. Martin, David A. (January 28, 2017). "Trump's order on the deportation of undocumented residents, annotated by an immigration law expert". Vox. United States: Vox Media. Retrieved January 30, 2017.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  3. Fuller, Thomas (January 31, 2017). "San Francisco Sues Trump Over 'Sanctuary Cities" Order". New York Times. Retrieved 10 February 2017.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  4. Nick Gass, "Trump's immigration plan: Mass deportation", Politico (August 17, 2015).
  5. Kelley Beaucar Vlahos, "Messy legal process could challenge Trump's mass deportation plan", Fox News (November 27, 2015).
  6. Kate Linthicum, "The dark, complex history of Trump's model for his mass deportation plan", Los Angeles Times (November 13, 2015).
  7. Attorney General Jeff Sessions: End migrant lawlessness, BBC, February 8, 2017, retrieved February 8, 2017<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  8. Lua error in Module:Citation/CS1/Identifiers at line 47: attempt to index field 'wikibase' (a nil value).
  9. "Donald Trump Pivots Back to Hard-Line Immigration Stance". Time. August 31, 2016. Retrieved September 1, 2016.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  10. Lua error in Module:Citation/CS1/Identifiers at line 47: attempt to index field 'wikibase' (a nil value).
  11. Miller, Zeke J. (August 23, 2016). "Donald Trump Signals 'Softening' of Immigration Position". Time. Retrieved September 1, 2016.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  12. Bradner, Eric (August 28, 2016). "Trump to give immigration speech amid major questions". CNN. Retrieved September 1, 2016.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  13. Arizona woman deported to Mexico despite complying with immigration officials, retrieved February 9, 2017<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  14. CNN, Steve Almasy, Emanuella Grinberg and Ray Sanchez. "Deported mother: 'I did it for love'".<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  15. Increase in US Immigration Enforcement Likely to Mean Jump in Deportations, VOA News, February 3, 2017, retrieved February 9, 2017<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  16. Fernanda Santos (February 9, 2017), She Showed Up Yearly to Meet Immigration Agents. Now They're Deporting Her, Phoenix, Arizona: The New York Times, retrieved February 9, 2017<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  17. 17.0 17.1 Longtime Phoenix resident in U.S. illegally detained in early display of Trump executive order's reach, February 9, 2017, retrieved February 9, 2017<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  18. CNN, Ray Sanchez. "Guadalupe Garcia de Rayos has become the focus of a national debate over the Trump administration's crackdown on illegal immigration".<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  19. "Case Information". Judicial Branch of Arizona: Maricopa County. Retrieved 10 February 2017.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  20. CNN, Tal Kopan and Catherine E. Shoichet. "Key points in Trump's immigration executive orders".<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  21. 21.0 21.1 21.2 3:17-cv-00485 Complaint For Declaratory and Injunctive Relief
  22. 22.0 22.1 22.2 Complaint, City of Chelsea v. Trump (D. Mass.).
  23. Damon Root, Will Liberals Learn to Love the 10th Amendment? It's Trump vs. Scalia when cities offer sanctuary to immigrants, Reason (March 2017).
  24. Ilya Somin, Why Trump's executive order on sanctuary cities is unconstitutional, Washington Post (January 26, 2017).
  25. Dolan, Maura. "San Francisco sues Trump over executive order targeting sanctuary cities".<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  26. "Opinion - San Francisco files suit against Trump's executive order on sanctuary cities".<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  27. "San Francisco sues Trump over sanctuary city order".<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  28. "San Francisco Sues Feds Over Sanctuary City Ban". February 1, 2017.<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  29. Greenwood, Max (January 31, 2017). "San Francisco sues Trump admin. over sanctuary cities order".<templatestyles src="Module:Citation/CS1/styles.css"></templatestyles>
  30. 30.0 30.1 Milton J. Valencia, Chelsea, Lawrence sue over Trump's sanctuary city order, Boston Globe (February 8, 2017).

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