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As Trump Moves to Punish Sanctuary Cities, California Officials Push Back: ‘See You in Court’

An executive order is not the same as a law.


On Wednesday President Trump made good on his threat to punish sanctuary cities like San Francisco by signing an executive order that seeks to block federal grants to those cities. In overall funding, San Francisco gets $478 million a year from the federal government—more like $1 billion if you count the money that flows through the state first—though how much of that comes by way of grants has yet to be tallied. Even a fraction of that annual haul is still a decent chunk of change, which means that, um, it just got real. But according to state and local officials, Trump can’t just zap the funds away like a mogul stiffing the hired help. There are laws in the way. “Executive orders do not change existing law,” California Attorney General Xavier Becerra said in a response to the order. “Executive orders can be challenged for violating constitutional and legal standards in their enforcement.” Or, as California Senate leader Kevin de León tweeted, “See you in court.”

The power to grant (or not grant) money to states lies with Congress. And there are boatloads of legal precedent governing the way Congress treats such grants. CityLab has a pretty great primer on those hurdles, which range from the difficulty of placing new conditions on existing grants to a requirement that conditions—such as cooperating with federal immigration officials—need to be “germane” to the grant’s function (so tying immigration strings to money designated for an environmental program isn’t kosher, for instance).

State Senator Scott Wiener suggests reading between the lines of the executive order. “It says throughout ‘to the extent permitted by law,’” Wiener says. “He can say whatever he wants in an executive order, but the president does not have the authority to withhold money from the states just because the states are doing something that he doesn’t like.”

City Attorney Dennis Herrera, for his part, is vowing to make sure all San Franciscans are protected. In the event that Congress finds a way to withhold the money and the city sues to reinstate it, “obviously there are legal theories to look at,” Herrera tells San Francisco. “Is the language clear and unambiguous? Is there a germaneness argument in terms of putting these restrictions on money we are getting?” Herrera’s office declines to go into more specifics about the city’s legal strategy, lest they tip their hand.

Here’s one relevant Supreme Court precedent that boosts the city's pro-sanctuary stance, courtesy of three UC Irvine School of Law professors opining in the Washington Post:

For example, in Printz v. United States, in 1997, the Supreme Court struck down a provision of the federal Brady Handgun Violence Prevention Act that sought to require local officers to help enforce federal gun-control laws, including by conducting background checks. In an opinion by Justice Antonin Scalia, the court held that the act violated principles of federalism and the 10th Amendment for Congress by compelling state and local governments to comply with a federal mandate. Under the anti-commandeering principle, the federal government can no more require state and local governments to help it carry out mass deportations than it can require local officers to investigate and enforce federal gun laws.

Or, as Herrera put it in his statement on the executive order: “The threat of cutting off federal grants to coerce cities like San Francisco won’t hold up in court.”

Sadly, we can’t say the same for Trump’s purported plans for Deferred Action for Childhood Arrivals, or DACA, President Obama’s amnesty program granting temporary protection from deportation, as well as work permits, to immigrants who arrived illegally as children. Vox got its hands on a draft executive order that will end DACA, although the already issued work permits will remain valid until they expire.

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