Executive Order 13768


Executive Order 13768, titled "Enhancing Public Safety in the Interior of the United States", was signed by U.S. President Donald Trump on January 25, 2017. The order stated that "sanctuary jurisdictions" including sanctuary cities that refused to comply with immigration enforcement measures would not be "eligible to receive Federal grants, except as deemed necessary for law enforcement purposes" by the U.S. Attorney General or Secretary of Homeland Security.
Legal challenges to the order were brought almost immediately after its issuance by San Francisco and a number of other cities and counties. In late April 2017, a federal court issued a nationwide preliminary injunction halting enforcement of the executive order, determining that the localities were likely to succeed on the merits of their challenge.
On November 21, 2017, section 9 of the executive order was declared unconstitutional by Judge William Orrick III, who issued a nationwide permanent injunction against its implementation. The executive order was rescinded by President Joe Biden on January 20, 2021.

Background

During his campaign, Trump proposed the mass deportation of illegal immigrants as part of his immigration policy. Jeff Sessions was confirmed on February 7 as Attorney General. 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."
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.
On February 8, 2017, Immigration and Customs Enforcement 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 others Immigrant advocates believe that she is one of the first to be deported after the EO was signed and that her case reflects the severity of the crackdown on illegal immigration. ICE officials said that proceedings in Immigration Court had resulted in a finding that she did not have a legal basis to remain in the US. 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.

Provisions

Section 5 - Priorities for removal

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."
This provision of the executive order greatly expands the category of people classified as "priorities for removal," making all aliens who have been charged with a crime, or believed could have been charged with a crime, priorities for deportation. The order expands to even those convicted of minor crimes, such as traffic offenses. This marks a change from the Obama administration, which placed the highest priority for deportation on aliens who had been convicted of serious crimes.

Section 9(a) - Disqualification of sanctuary cities from federal grants

Section 9 deals with disqualification of sanctuary cities from receiving U.S. federal grants. Section 9 states:
It has been successfully challenged in the following cases, where it has been declared unconstitutional:
Section 9 deals with the compilation and publication of information about immigrant crime.
Section 9states:

Criticism of Section 9(b)

While there is evidence that immigrants commit fewer crimes and are incarcerated at a lower rate than native-born Americans, there are very few studies of crime specific to illegal immigrants who are the targets of the order. Critics say that the effort to publicize immigrant crime is an effort to skew public perceptions about crimes committed by undocumented migrants.
Some historians have compared Trump's proposed list of crimes committed by immigrants to the Nazi Germany-era policy of publishing lists of crimes supposedly committed by Jews. Historian Claudia Koonz of Duke University, an expert on Nazi Germany, said that the proposal was deeply troubling and that: "It's tough to make parallels when the scapegoat is so different. But the process is the same. The process was to exaggerate every piece of evidence showing the criminality of the targeted group. Even though it was atypical and not representative, by the media blitz that accompanied it, people began to see it as normal." A number of commentators, including Amanda Erickson of The Washington Post, Christopher Hooton of The Independent, and Tessa Stuart of Rolling Stone also compared the policy of distributing list of criminal actions committed by undocumented immigrants to antisemitic Nazi propaganda that focused on crime in order to stir up anger and hatred toward Jews.

Section 13 - VOICE office

Section 13 creates the Office of Victims of Immigration Crime Engagement, which operates to assist victims of immigrant crime. The Biden administration replaced the office on June 11, 2021 with the Victims Engagement and Services Line. https://www.ice.gov/news/releases/ice-launches-victims-engagement-and-services-line-vesl

Legal challenges

Legal basis for the challenges

The challenges are based largely on the Tenth Amendment to the United States Constitution. This amendment was the basis for the U.S. Supreme Court's decision in Printz v. United States, in which the Court, in an opinion by Justice Antonin Scalia, struck down a law, held that the U.S. government cannot engage 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.
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".
Legal scholar Ilya Somin, writing in the Washington Posts The Volokh Conspiracy, wrote:

California legal cases: ''City and County of San Francisco v. Trump'', ''County of Santa Clara v. Trump'', and ''City of Richmond v. Trump''

City and County of San Francisco v. Trump or San Francisco v. Trump, No. 3:17-cv-00485, were resolved by the United States District Court for the Northern District of California, finding that Executive Order 13768 is unconstitutional on the grounds it violates the Fifth and Tenth Amendments to the United States Constitution, as well as the doctrine on the separation of powers, in line with claims made by the petitioners.
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 criminal aliens 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.
The civil suit alleges three causes of action Declaratory Relief – San Francisco complies with, 10th Amendment – is unconstitutional, and 10th Amendment – Executive Order Section 9 enforcement directive is unconstitutional. The suit seeks a Declaratory Judgment and Injunctive Relief holding that, is unconstitutional and invalid on its face; Enjoin Defendants from enforcing Section 1373 or using it as a condition for receiving federal funds; Declare that Section is invalid as applied to state and local Sanctuary City laws, Enjoin Defendants from enforcing Section 1373 against jurisdictions that enact Sanctuary City laws for legitimate local purposes; Declare that San Francisco complies with Section ; Enjoin Defendants from designating San Francisco as a jurisdiction that fails to comply with Section ; Enjoin unconstitutional applications of the Enforcement Directive in Executive Order Section 9.
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.
On February 3, 2017, Santa Clara County, California filed a separate lawsuit challenging the order on the same grounds. For reasons of "judicial efficiency," both cases were assigned to District Court Judge William Orrick III. The State of California, represented by California Attorney General Xavier Becerra, filed an amicus brief in support of the two counties' challenge. Judge Orrick issued a preliminary injunction with nationwide effect halting implementation of the order on April 25, 2017, ruling that the plaintiffs were likely to succeed on the merits of their challenge.
On November 20, 2017, Judge Orrick issued a summary judgment that ruled Section 9 of the Executive Order was unconstitutional on its face and issued a permanent nationwide injunction against its implementation. The judgment concluded:
The city of Richmond, California filed a similar lawsuit on March 21, 2017. This lawsuit was also assigned to Judge Orrick.