897 F.3d 1225

FERNANDEZ, Circuit Judge, dissenting:
Congress has the authority to enact legislation regarding immigration and nationality. That entails legislation that determines which foreign citizens are permitted to cross the borders of the United States and live within this country. Congress has done so, and those determinations have duly become the laws of the United States. Also, the president "shall take Care that the Laws be faithfully executed." It came to the attention of President Trump that some individuals in the country did not agree with the laws duly passed in the area of immigration and nationality. Those individuals were of the opinion that they and others who agreed with their position should delay or thwart the execution of those laws. To that end they had prevailed upon local and state governmental entities in the places they resided to pass laws that were designed to at least reduce the cooperation of state or local government officials and entities with federal immigration officials and entities. For example, the City and County of San Francisco and the County of Santa Clara (hereafter "the Counties") have enacted ordinances or policies that at least etiolated the Counties' government officials' cooperation with or giving of information to federal immigration authorities when those county officials were acting in an official capacity. See S.F., Cal., Admin. Code §§ 12H.1-.6, 12I.1-.7; County of Santa Clara, Cal., Board of Supervisors Policy 3.54, Civil Immigration Detainer Requests (Oct. 18, 2011); County of Santa Clara, Cal., Board of Supervisors Resolution 2010-316, Advancing Public Safety and Affirming the Separation Between County Services and the Enforcement of Federal Civil Immigration Law (June 22, 2010). For its part, based on the animus that animated those ordinances, the State of California imposed similar restrictions upon all law enforcement officials. See Cal. Gov't Code §§ 7282 - 7282.5 ; id. §§ 7284-7284.12; see also id. §§ 7285.1-7285.3 (prohibiting employers' voluntary cooperation with federal immigration agents' access or entry); id. § 7310 (directing housing prohibitions regarding non-citizens in immigration custody); id. § 12532 (conducting detention facility inspections); Cal. Lab. Code § 1019.2 (prohibiting reverification of employment eligibility by an employer).
In partial response to that kind of legislation and action, the President issued an executive order, which directs certain high officers of the United States government as follows:
Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or political subdivision of a State, shall comply with 8 U.S.C. 1373.
(a) In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.
Executive Order § 9(a). Of course, the Executive Order does make 8 U.S.C. § 1373 the foundation of section 9(a)'s directives. Section 1373 reads as follows in pertinent part:
(a) ... Notwithstanding any other provision of Federal, State, or local law, 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.
(b) ... Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.
I note that on its face the section does not dragoon state or local officials into federal government service, but, rather, merely precludes governmental entities or officials from prohibiting or restricting other governmental entities or officials from communicating with the Immigration and Naturalization Service. It does not require any entity or person to communicate any information to the Service, or to do anything with information received from the Service. Besides the section's rather mild requirement, lest there be any doubt, the Attorney General has essentially declared that he will, indeed, adhere to the Executive Order's requirement that any steps he takes must be consistent with law. See Memorandum for All Department Grant-Making Components from the Attorney General relating to Implementation of the Executive Order (May 22, 2017) (hereafter, "the Formal Memorandum").
Nevertheless, the Counties have facially challenged the Executive Order and asked the United States courts to enjoin United States officials from following the Executive Order, which, in effect, directed that those officials shall assure that a law of the United States shall "be faithfully executed." Is that a proper use of the power of the United States courts in this case? One would think that to ask the question is to answer it in the negative. Alas, the district court did not agree with that answer. Alack, neither do my esteemed colleagues. I do. The reasons for my doing so follow.
(1) I do not think that this case is ripe for decision. I recognize that the concept of ripeness is very close to the concept of standing, and often is much the same as injury-in-fact inquiries in the standing area. See Thomas v. Anchorage Equal Rights Comm'n , 220 F.3d 1134, 1138-39 (9th Cir. 2000) (en banc). As we have noted, "ripeness can be characterized as standing on a timeline." Id. at 1138. In either event, what a party must show is that there is a true " 'case or controversy,' " that is, "that the issues presented are 'definite and concrete, not hypothetical or abstract.' " Id. at 1139 ; see also Lujan v. Defs. of Wildlife , 504 U.S. 555, 560-61, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). Moreover, ripeness doctrine does focus on timing and directs us to consider whether the claim a plaintiff is making keys on an alleged injury that is speculative because it " 'rests upon contingent future events that may not occur as anticipated, or indeed may not occur at all.' " Wolfson v. Brammer , 616 F.3d 1045, 1064 (9th Cir. 2010) ; see also Whitmore v. Arkansas , 495 U.S. 149, 158, 110 S.Ct. 1717, 1724-25, 109 L.Ed.2d 135 (1990) ("Allegations of possible future injury do not satisfy the requirements of Art. III. A threatened injury must be certainly impending to constitute injury in fact." (internal quotation marks omitted) ). Moreover, while there are times when a "law is aimed directly at plaintiffs" and there is reason to believe that it will be enforced against them, that is not the case here. The Executive Order itself is not directed toward the Counties at all; it is directed to Federal government officials only. If they obey its dictates, they will not overstep legal or constitutional boundaries. Nor have they threatened that they will knowingly do so.
The parties do not dispute that in order to assess whether action will be taken against the Counties a three-part test should be applied to ripeness in this case. That is: "whether the plaintiffs have articulated a 'concrete plan' to violate the law in question, whether the prosecuting authorities have communicated a specific warning or threat to initiate proceedings, and the history of past prosecution or enforcement under the challenged [law]." Thomas , 220 F.3d at 1139. Application of the test demonstrates that this case is not ripe.
First: As already noted, the Executive Order is not directed at the Counties. It is directed to the Attorney General and the Secretary. Moreover, while it does direct those officials to "ensure" that a law-§ 1373-is complied with, it also tells them that whatever they do in that regard must be "consistent with law." And neither the Attorney General nor the Secretary has threatened to take actions that do not adhere to that admonition. That is quite different from executive orders that direct the executive's subordinates to take certain actions, but do not caution that those actions must be taken within the confines of existing law. See, e.g. , Youngstown Sheet & Tube Co. v. Sawyer , 343 U.S. 579, 583, 587, 72 S.Ct. 863, 865, 867, 96 L.Ed. 1153 (1952) ; Washington v. Trump , 847 F.3d 1151, 1156-57 (9th Cir.) (per curiam), cert. denied , --- U.S. ----, 138 S. Ct. 448, 199 L.Ed.2d 331 (2017). The district court suggested that the admonition would render the Executive Order legally meaningless, but that is a disingenuous reading of it. It is not meaningless to announce to executive officers and, indeed, the nation, that a statute-here § 1373 -will be enforced even if enforcement has been somewhat lax in the past. And the Counties certainly do not assert that they have violated or intend to violate § 1373.
In short, the Counties have not met the concrete-plan element.
Second: The terms of the Executive Order itself and the Formal Memorandum show that there is no threat to enforce the Executive Order in a manner that takes away (or denies) funding to the Counties in the improper manner that the Counties seem to fear. That is, neither the Executive Order itself, nor any actions taken under it, by creation of regulations or otherwise, have subtended that threat. Rather, whatever the President, or others, might wish for in order to achieve what they deem to be a more perfect polity, the Executive Order recognizes their limits in achieving that. Nothing they have said or done threatens the possible illegal horrors conjured up by the Counties. See Sacks v. Office of Foreign Assets Control , 466 F.3d 764, 774 (9th Cir. 2006). And, after all, it is the Executive Order itself that is under attack here. It does not direct that any illegal conduct be undertaken. This factor does not support ripeness.
Third: There is no enforcement history regarding the Executive Order. San Francisco suggests that the factor is, therefore, neutral. Quite the contrary. What it does demonstrate is that the Counties' rush to litigate caused them to bring this facial attack on the Executive Order before the timeline allowed their case to reach the ripeness stage.
Therefore, in my view this matter is not ripe and the district court should have eschewed jurisdiction, as should we.
(2) While I am of the opinion that we should not opine on the merits at this point, because the majority does, I must say a few words. To a large extent, the defect in the district court's issuance of an injunction was caused by its failure to accord the Executive Order a fair enough reading. That resulted in its abusing its discretion when it issued the injunction. See LaVine v. Blaine Sch. Dist. , 257 F.3d 981, 987 (9th Cir. 2001) ; see also United States v. Hinkson , 585 F.3d 1247, 1261-62 (9th Cir. 2009) (en banc).
There can be no doubt that the President had the authority and the duty to see that duly adopted laws were faithfully executed, and to direct his subordinates to that end. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd. , 561 U.S. 477, 492-93, 130 S.Ct. 3138, 3151-52, 177 L.Ed.2d 706 (2010) ; Nixon v. Fitzgerald , 457 U.S. 731, 749-50, 102 S.Ct. 2690, 2701, 73 L.Ed.2d 349 (1982) ; Myers v. United States , 272 U.S. 52, 117, 133-35, 47 S.Ct. 21, 25, 31, 71 L.Ed. 160 (1926). One way a president does that is through executive orders. See Bldg. & Constr. Trades Dep't v. Allbaugh , 295 F.3d 28, 32-33 (D.C. Cir. 2002). That is what the President did here. The courts do not treat executive orders with disdain, but read and construe them in much the same way as statutes should be treated, and the courts do not properly construe executive orders based upon the courts' own policy preferences. Among other things, that means that: " 'when the [order's] language is plain, the sole function of the courts-at least where the disposition required by the text is not absurd-is to enforce it according to its terms.' " Lamie v. U.S. Tr. , 540 U.S. 526, 534, 124 S.Ct. 1023, 1030, 157 L.Ed.2d 1024 (2004). And it is not the role of the courts "to rewrite the Executive Order." Washington , 847 F.3d at 1167. Unfortunately, the district court did not follow those rules.
What the Counties argued for and what the district court did was to shunt aside short but clear and extraordinarily important wording in the Executive Order. The introductory sentence of section 9 of the Executive Order merely stated that it was executive branch policy that § 1373 be followed "to the fullest extent of the law," and lest that be seen as too expansive, the body of section 9(a) directed that any actions taken by the Attorney General or the Secretary were to be taken "to the extent consistent with law" and not otherwise. To brush those words aside as implausible, or boilerplate, or even as words that would render the Executive Order meaningless was just to say that the plain language of the Executive Order should be ignored in favor of comments made dehors the order itself, none of which have resulted in the taking of any illegal action pursuant to the order. That is not the proper way to deal with plain language-it is, instead, an attempt to rewrite the Executive Order itself and then to enjoin use of the newly written version. And if there is ambiguity in certain parts of the Executive Order, it is not at all ambiguous in its use of the restrictive language. Nor is it proper to enjoin enforcement of the Executive Order on the unsupported speculation that it will be implemented in an unconstitutional manner. See Arizona v. United States , 567 U.S. 387, 415, 132 S.Ct. 2492, 2510, 183 L.Ed.2d 351 (2012) ; Wash. State Grange v. Wash. State Republican Party , 552 U.S. 442, 454, 128 S.Ct. 1184, 1193, 170 L.Ed.2d 151 (2008). Certainly, it was not a proper basis for deciding that the Executive Order was facially unconstitutional.
In fine, while the Counties may be convinced that the Executive Order loosed a fearsome chimera upon them, that does not mean that the courts should take up arms to vanquish the imagined beast by slaying the Executive Order itself.
Thus, I respectfully dissent.
See U.S. Const. art. I, § 8, cl. 4 ; Toll v. Moreno , 458 U.S. 1, 10, 102 S.Ct. 2977, 2982, 73 L.Ed.2d 563 (1982).
See, e.g. , United States Code, Title 8.
See U.S. Const. art. I, § 7, cl. 2.
U.S. Const. art. II, § 3.
Exec. Order No. 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017) (hereafter the "Executive Order").
See Printz v. United States , 521 U.S. 898, 928, 117 S.Ct. 2365, 2381, 138 L.Ed.2d 914 (1997).
City of New York v. United States , 179 F.3d 29, 35 (2d Cir. 1999) ; see also Murphy v. Nat'l Collegiate Athletic Ass'n , --- U.S. ----, 138 S.Ct. 1461, 1477, 200 L.Ed.2d 854 (2018) (discussing principles behind the anticommandeering rule, none of which supports attempts to frustrate the carrying out of national programs and policies (like immigration) by prohibiting communications between national and state or local officials).
U.S. Const. art. II, § 3.
Virginia v. Am. Booksellers Ass'n, Inc. , 484 U.S. 383, 392, 108 S.Ct. 636, 642, 98 L.Ed.2d 782 (1988).
Id. at 393, 108 S. Ct. at 643.
See Utley v. Varian Assocs., Inc. , 811 F.2d 1279, 1284-85 (9th Cir. 1987) ; see also Bassidji v. Goe , 413 F.3d 928, 934 (9th Cir. 2005).
See Guido v. Mount Lemmon Fire Dist. , 859 F.3d 1168, 1174 (9th Cir. 2017), cert. granted , --- U.S. ----, 138 S.Ct. 1165, 200 L.Ed.2d 313 (2018).
As to the dismissive attitude evidenced by those characterizations, the answer is well set forth in Allbaugh , 295 F.3d at 33, where the court, referring to Youngstown , 343 U.S. 579, 72 S.Ct. 863, said: "Indeed, had President Truman merely instructed the Secretary of Commerce to secure the Government's access to steel '[t]o the extent permitted by law,' Youngstown would have been a rather mundane dispute over whether the Secretary had statutory authority to act as he did."
See Trump v. Hawaii , --- U.S. ----, 138 S.Ct. 2392, 2416-23, ---- L.Ed.2d ---- (2018) (rejecting attack on an executive order based on statements made by the President in his election campaign and some of his other general statements).
If an executive agency should misstep at some point, that will be the time to so state and rule accordingly. See Allbaugh , 295 F.3d at 33. I note that City of Chicago v. Sessions , 888 F.3d 272, 278 (7th Cir. 2018), reh'g en banc granted on other grounds , No. 17-2991 (7th Cir. June 4, 2018) is not apposite. It discusses conditions which were not imposed as a result of the Executive Order and does not consider issues regarding enforcement of § 1373 itself.
While it goes without saying that I would vacate the injunction in its entirety, even if it were otherwise proper, the district court erred when it granted a nationwide injunction. It could have granted relief to the Counties without so doing. In fact, the whole concept of issuing nationwide injunctions is somewhat dubious. See Trump , --- U.S. ----, 138 S.Ct. at 2425-29 (Thomas, J., concurring); cf. id. at ----, 138 S.Ct. at 2423 (majority opinion) (declining to decide "propriety of the nationwide scope of the injunction"). They should at the very least be used with a great deal of caution. In general, a court should not stretch to impose its will further than is necessary to grant relief to those before it. See L.A. Haven Hospice, Inc. v. Sebelius , 638 F.3d 644, 664 (9th Cir. 2011) ; see also Califano v. Yamasaki , 442 U.S. 682, 701-03, 99 S.Ct. 2545, 2558, 61 L.Ed.2d 176 (1979).

Passage view · GavelSight