San Francisco Sanctuary Case a ‘Time Warp’ for Federal Precedent

Ninth Circuit precedent—set in lawsuits brought by San Francisco and Santa Clara County during the first Trump administration—is on the side of localities again seeking to stave off threats to their federal funding because of their immigration “sanctuary” policies.

If President Donald Trump holds back funds from California because it limits how state and local law enforcement can cooperate with federal immigration officials, state Attorney General Rob Bonta (D) said Friday, “we will sue, and we will win.”

He added, “there is very clear Ninth Circuit precedent stating that that exact, precise conduct by the federal government violates the Constitution and is not permissible.”

Little has changed from a strictly legal standpoint since the US Court of Appeals for the Ninth Circuit ruled in 2018 and 2019 to uphold sanctuary policies in a strikingly similar set of cases to the one filed Feb. 7 by San Francisco, Santa Clara County, King County, Wash.; New Haven, Conn., and Portland, Ore.

But the country’s “vibes” have shifted, said Ahilan Arulanantham, co-director of the Center for Immigration Law and Policy at UCLA School of Law. The US is generally more in favor now of some types of immigration enforcement, he said, and the US Supreme Court is friendlier to the Trump administration.

“The law is almost identical,” Arulanantham said. “Those people must be feeling like they’re caught in a time warp.”

Trump’s Isn’t a Strong Case

“Sanctuary” isn’t a legally defined term, but so-called sanctuary jurisdictions generally limit their cooperation with federal immigration enforcement authorities, according to the Feb. 7 lawsuit.

That could mean barring local police from making civil immigration arrests, or not sharing certain personal information with federal officials. In 2018, then-mayor of Oakland Libby Schaaf warned residents of impending raids by Immigration and Customs Enforcement officers.

San Francisco, Santa Clara County, and a handful of prominent localities across the country say their policies are needed to ensure immigrant communities are comfortable reporting crime to local authorities.

In 2017, like last week, San Francisco and the county of Santa Clara sued the first Trump administration, arguing that the executive branch cannot yank federal funds from sanctuary cities without Congressional approval.

In that case, the Ninth Circuit agreed.

“Not only has the Administration claimed for itself Congress’s exclusive spending power, it has also attempted to co-opt Congress’s power to legislate,” the panel wrote.

A separate Ninth Circuit panel also ruled to uphold California’s law that limits cooperation between state and local law enforcement and federal immigration enforcement, in a case brought by the first Trump administration against the state of California.

The US Supreme Court passed on reviewing both cases.

By taking a second stab at local non-cooperation policies, Trump and his Department of Justice are “pushing a very novel theory of federal preemption and what federal immigration law means,” University of Colorado Law professor P. Deep Gulasekaram said.

The administration is wagering “that eventually a friendly Supreme Court will rule their way,” Gulasekaram said. “But I think it’s hard for any neutral legal observer to look at the background cases and think that the administration has a very strong case on sanctuary cities.”

Ripeness

If Department of Justice grants are pulled, the cities and counties will lose out on millions of dollars in federal funding that supports victim services, substance abuse treatment, and youth support, among other programs, the Feb. 7 complaint says.

San Francisco has at least $8.7 million in DOJ-administered funds for its 2024-2025 fiscal year; Santa Clara gets more than $6 million in DOJ grants.

These funding threats come with “potentially devastating” consequences, enough to establish standing in the case San Francisco brought against the first Trump administration.

However, Senior US Circuit Judge Ferdinand F. Fernandez—an appointee of President George H.W. Bush who was in a conservative minority that has since increased its ranks on the Ninth Circuit—said then in a dissent that he didn’t think the facts were developed enough to make the case “ripe” for a lawsuit.

This time the ripeness argument is stronger. The case follows a lawsuit US Attorney General Pam Bondi filed against Chicago for its non-cooperation policies during her second day in office. Trump’s executive order and DOJ memos directing the prosecution of state and local officials who don’t assist federal law enforcement also bolster this case’s ripeness.

To keep San Francisco’s case alive, California federal judges in the Northern District of California will have to decide that Trump’s executive order, the DOJ memos, and other executive actions demonstrate Trump’s intentions and that the localities are sufficiently likely to face harm, Gulasekaram said.

No states, including California, have filed a preemptive suit like San Francisco’s. Bonta said California will only enter the fray if the federal government indeed pulls funding.

‘Huge Power Grab’

Congress would have to change federal law for Trump’s anti-sanctuary funding plan to survive. That, or the US Supreme Court would have to intervene in his favor.

There, three decades of precedent are clear that the federal government can’t force state and local officials into action “to make the federal government’s life easier,” Gulasekaram said.

A Supreme Court ruling in Trump’s favor would be “a huge power grab,” he said, adding it would give the federal executive branch the power “to be able to coerce, essentially, and to co-opt states and localities into whatever they want to do.”

The strength of precedent upholding sanctuary policies is similar to that underpinning birthright citizenship, which Trump targeted in an executive order quickly after taking office last month, said Rutgers Law School professor Rose Cuison-Villazor.

“We can objectively say that there is precedent in birthright citizenship, in sanctuary litigation, and they lost,” she said, “and still they’re pushing for that.”