In granting a preliminary injunction against President Trump’s executive order that federal grant funds be withheld from “sanctuary cities”—a term the executive order does not define—the U.S. District Court for the Northern District of California relied heavily on a line of modern U.S. Supreme Court decisions that interpret the 10th Amendment to limit the conditions put on such grants. Because grant money allows the federal government to buy from the states cooperation that it could not otherwise command, the Supreme Court has held, Congress must tell the states explicitly what obligations they are assuming in return for the money, so that the state “voluntarily and knowingly accepts the terms of the contract at the time Congress offers the money.” (Santa Clara County v. Trump, 2017 U.S. Dist. LEXIS 628 71 (N.D. Cal. Apr. 25, 2017) at *78).
Because the exchange of cash for compliance is contractual, it follows that the federal government cannot impose conditions retroactively. Because it involves the waiver of a constitutional right, it follows, conditions should not be imposed by implication. (Id). Moreover, even explicit conditions must bear a reasonable relationship to the purpose of the grant, and they must leave the state “a legitimate choice whether to accept federal conditions in return for federal funds.” (Id. at *79-*80). Hence, held the district court, the president may not order the executive branch to withhold funds from cities that do not cooperate with federal immigration law enforcement unless the statutory terms of the grant explicitly condition the grant on such cooperation and the condition is reasonably related to the purpose of the grant. In particular, while 8 U.S.C. §1373 prohibits a state or local government from withholding from ICE information about any person’s immigration status, Congress has repeatedly declined to make compliance with §1373 a general condition of federal grants to cites, and the president may not do so by executive order. (Id. at *75-*76).
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