City and County of San Francisco v. Trump

[Decided May 3, 2025, by Judge William H. Orrick III of the United States District Court for the Northern District of California. Preliminary injunction; sixteen plaintiff cities and counties. Read the posture carefully. The injunction itself issued on April 24, 2025 in a six-page summary order, Dkt. No. 111, reported at 779 F. Supp. 3d 1077, whose own footnote says: “This is a summary order because of the exigencies it addresses. I will enter an order that discusses the issues and my reasoning in more detail at a later date.” This is that later order — Dkt. No. 126, 783 F. Supp. 3d 1148 — and it states that it “is meant to be read together with the Order Granting Preliminary Injunction.” If you see the case cited as “(N.D. Cal. Apr. 24, 2025),” that citation points at the summary order, not at the reasoning.]

[What was enjoined: the first sentence of Section 17 of Executive Order 14,159; Section 2(a)(ii) of Executive Order 14,218; and the Preamble and Section 1 of the Attorney General’s February 5, 2025 “Sanctuary Jurisdictions Directives.” The injunction runs only to the sixteen plaintiffs, not nationwide — though the notice obligation it imposes required defendants to inform all federal departments and agencies.]

[A note on citation. F. Supp. 3d citations exist for all three orders in this sequence — 779 F. Supp. 3d 1077 (Apr. 24), 783 F. Supp. 3d 1148 (May 3), and 782 F. Supp. 3d 830 (the May 9 clarifying order) — so the case can be pinned to the reporter. The star pagination was not available from the source used here, however, so no internal pin cites are given.]

[Read this for the ordering of the grounds, which is the pedagogical point. You come to this case from the anti-commandeering material, and you will expect New York and Printz to be the engine. They are not. Judge Orrick’s Part II–A is separation of powers — the President may not refuse to spend or may not condition money Congress has appropriated — and Part II–B is the Spending Clause, both governed by City & County of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018), the appellate decision in the 2017 round of this same litigation. The Tenth Amendment appears third, in Part II–C, and it is a page long. Ask why. One answer is that a district judge takes the narrowest controlling ground first and a binding circuit holding beats a constitutional principle he would have to build. Another is that anti-commandeering does less work here than the Module suggests, because these orders operate on money rather than on state legislatures or officers.]

[Two things to correct as you read, because they matter for exam answers. Murphy v. NCAA and Pennhurst *are cited nowhere in this opinion. If you bring them to the case, they are your gloss, not the court’s — a defensible gloss, but say so. The anti-commandeering authorities the court actually uses are Printz, New York v. United States, and NFIB for the proposition that coercion counts as commandeering just as command does. Do not miss the passage where the court observes that the Government’s reliance on Printz “is odd,” since Printz held that the federal government was imposing unconstitutional obligations on state officers.]

[Posture since. The Cities and Counties’ case did not stop here. The Government appealed to the Ninth Circuit, No. 25-3889, argued December 5, 2025 before Judges Berzon, R. Nelson and Collins; as of this writing no decision has been located. Judge Orrick issued a clarifying order on May 9, 2025, a second preliminary injunction on August 22, 2025 reaching HUD and formula-grant conditions, and denied a motion to dismiss the Second Amended Complaint on January 20, 2026. Treat the appellate status as unresolved rather than as settled.]

NORTHERN DISTRICT OF CALIFORNIA CITY AND COUNTY OF SAN Case No. 25-cv-01350-WHO FRANCISCO, et al.,

Plaintiffs, FURTHER ORDER REGARDING

PRELIMINARY INJUNCTION

v.

Re: Dkt. Nos. 61, 108 DONALD J. TRUMP, et al.,

Defendants.

On April 24, 2025, I issued an Order Granting Preliminary Injunction to plaintiffs San Francisco, Santa Clara, and fourteen other cities and counties that maintain policies placing them within the definition of “sanctuary jurisdictions” (hereafter, the “Cities and Counties”).1 Dkt. No. 111. The Preliminary Injunction blocks the first sentence of Section 17 of Executive Order 14,159 (“Protecting the American People Against Invasion”) (hereafter, “EO 14,159”), Section 2(a)(ii) of Executive Order 14,218 (“Ending Taxpayer Subsidization of Open Borders”) (hereafter, “EO 14,218”) (together the “2025 Executive Orders”) and the Preamble and Section 1 of the February 5, 2025, Memorandum from the Attorney General entitled “Sanctuary Jurisdictions Directives,” (the “Bondi Directive”). Dkt. No. 111. I enjoined the defendants the day after the hearing because of the Cities and Counties’ well-founded fear of enforcement, the merits of their claims, and the irreparable injury they faced. This Order explains my reasoning in greater detail.

1 Plaintiffs are City and County of San Francisco (“San Francisco”), County of Santa Clara (“Santa Clara”), City of Portland (“Portland”), Martin Luther King, Jr. County (“King County”), City of New Haven (“New Haven”), City of Oakland (“Oakland”), City of Emeryville (“Emeryville”), City of San Jose (“San Jose”), City of San Diego (“San Diego”), City of Sacramento (“Sacramento”), City of Santa Cruz (“Santa Cruz”), County of Monterey (“Monterey”), City of Seattle (“Seattle”), City of Minneapolis (“Minneapolis”), City of St. Paul (“St. Paul”), and City of Santa Fe (“Santa Fe”).

[The order’s Background Parts I and II — the 2017 Executive Order and the litigation it produced, and then the 2025 Executive Orders, the Bove Memorandum and the Bondi Directive — are given next. Background Part III, a sixteen-part recitation of each plaintiff’s sanctuary policies and its federal funding, runs to roughly 8,000 words and is omitted; its substance is that federal money is between about 8 and 31 per cent of these jurisdictions’ annual budgets]

BACKGROUND

I. THE 2017 EXECUTIVE ORDER AND RELATED LITIGATION

Days after being sworn into office for the first time in January 2017, President Trump issued Executive Order 13,768, 82 Fed. Reg. 8799 (Jan. 25, 2017), which directed the Attorney General and Secretary of the Department of Homeland Security (“DHS”) to, “in their discretion and to the extent consistent with the law,” “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 [of Homeland Security].” Executive Order 13,768, Section 9, 82 Fed. Reg. 8799 (Jan. 25, 2017).

San Francisco and Santa Clara challenged Section 9 of EO 13,768 in this court. I preliminarily and then permanently enjoined Section 9(a) of EO 13,768, finding that it violated the Constitution’s separation of powers doctrine, the Spending Clause and the Tenth Amendment. I also held that it was unconstitutionally vague and denied sanctuary jurisdictions the procedural due process they were owed under the Fifth Amendment. See Cnty. of Santa Clara v. Trump, 250 F. Supp. 3d 497, 509 (N.D. Cal. Apr. 25, 2017) (granting preliminary injunction motion brought by San Francisco and Santa Clara, seeking to enjoin Section 9 of EO 13,768); Cnty. of Santa Clara v. Trump, 275 F. Supp. 3d 1196 (N.D. Cal. Nov. 20, 2017) (granting plaintiffs’ motion for summary judgment and motion for a permanent injunction). The Ninth Circuit affirmed. See City & Cnty. of S.F. v. Trump, 897 F.3d 1225, 1234–35 (9th Cir. 2018).

After I enjoined Section 9(a) of EO 13,768, the government inserted various immigration-related conditions on grants under the Edward Byrne Memorial Justice Access Grant (“Byrne JAG”) program in several jurisdictions. In a second lawsuit filed by San Francisco (along with the State of California) over DOJ’s efforts to condition Byrne JAG funding on cooperation with federal immigration enforcement, I concluded that DOJ’s conditions violated the Constitution’s separation of powers doctrine and the Spending Clause, and were arbitrary and capricious under the Administrative Procedure Act, 5 U.S.C. § 706. I also found that San Francisco complied with relevant federal law. I entered summary judgment in the plaintiffs’ favor and issued a permanent injunction. City & Cnty. of S.F. v. Sessions, 349 F. Supp. 3d 924 (N.D. Cal. 2018), aff’d in part and vacated in part, City & Cnty. of S.F. v. Barr, 965 F.3d 753 (9th Cir. 2020). The Ninth Circuit agreed, and the Third and Seventh Circuits reached similar conclusions. See City of Philadelphia v. Attorney General of United States, 916 F.3d 276 (3d Cir. 2019); City of Chicago v. Sessions, 888 F.3d 272 (7th Cir. 2018) (“Chicago I”); City of Chicago v. Barr, 961 F.3d 882 (7th Cir. 2020) (“Chicago II”). The Second Circuit disagreed. State v. Dep’t of Just., 951 F.3d 84 (2d Cir. 2020).

II. THE 2025 EXECUTIVE ORDERS AND GOVERNMENT CONDUCT

A. Executive Order 14,159

On the day of his second inauguration, President Trump issued EO 14,159, 90 Fed. Reg. 8443 (Jan. 20, 2025). Section 17 of EO 14,159 directs the United States Attorney General and DHS Secretary to take “any lawful actions to ensure that so-called ‘sanctuary’ jurisdictions, which seek to interfere with the lawful exercise of Federal law enforcement operations, do not receive access to Federal funds.” Id.

EO 14,159, like its 2017 predecessor, threatens all “Federal funds” destined for so-called “sanctuary” jurisdictions. What qualifies as a “sanctuary” jurisdiction is less clear in EO 14,159 than it was in EO 13,768. While EO 13,768 defined “sanctuary jurisdictions” within the text of the Executive Order by specific reference to compliance with 8 U.S.C. § 1373 and civil immigration detainer requests, EO 14,159 defines the term to include any jurisdiction that, according to the President, “seek[s] to interfere with the lawful exercise of Federal law enforcement operations.” 90 Fed. Reg. 8443. Additional agency directives, and communications from the Executive Branch, make it clear that the term is meant to encompass jurisdictions, like the Cities and Counties, that limit the use of local resources to assist in federal immigration enforcement. This is consistent with how the term was understood in 2017.

1. The Bove Memo

On January 21, 2025, the day after EO 14,159 was issued, defendant Emil Bove, as Acting Deputy U.S. Attorney General, issued a memorandum to all DOJ employees entitled “Interim Policy Changes Regarding Charging, Sentencing, And Immigration Enforcement” (the “Bove Memo”), which purports to implement EO 14,159. Tilak Decl., Ex. 2. Through the Bove Memo, the DOJ expressed its view that “[t]he Supremacy Clause and other authorities require state and local actors to comply with the Executive Branch’s immigration enforcement initiatives” and that states and localities violate federal law by “failing to comply with lawful immigration-related commands and requests.” Id. at p. 3. The Bove Memo states that the President has the unilateral authority to require states and localities to comply with EO 14,159. It also declares that laws and policies that “prohibit[] disclosures of information” “threaten to impede Executive Branch immigration initiatives” and that those policies that pose such a “threat[]” will be subject to investigation by a DOJ task force focused upon so-called “sanctuary” jurisdictions. Id.

2. The Bondi Directive

On February 5, 2025, defendant Pamela Bondi, in her capacity as United States Attorney General, issued the Bondi Directive to all DOJ employees. Tilak Decl. Ex. 3. It commits DOJ to “ensure that, consistent with the law, ‘sanctuary jurisdictions’ do not receive access to Federal funds from the Department.” Id. at p. 1. It orders DOJ to “pause distribution of all funds” so that it could review agreements with states and municipalities and announces that DOJ would “terminate any agreements that are in violation of law or are the source of waste, fraud, or abuse, and initiate clawback or recoupment procedures, where appropriate.” Id. at p. 1.

The Bondi Directive provides a definition for “sanctuary jurisdictions” that had been missing from EO 14,159. It defines them as “includ[ing]” states and localities that choose not to comply or certify compliance with 8 U.S.C. § 1373, which is consistent with how EO 13,768 defined the term. Tilak Decl. Ex. 3 at p. 2. It states that, in accordance with “applicable immigration-related federal laws,” state and local actors must “comply with lawful immigration-related directives,” but does not specify what those directives are, or which “applicable federal immigration laws” or “immigration-related federal laws” might trigger “clawback” or “recoupment” procedures if agreements contain provisions that violate those laws.2 See id.

2 The Bondi Directive also states that DOJ will invoke its “own authority” to impose immigration-related conditions upon DOJ funding. That authority apparently includes requiring “any jurisdiction that applies for certain [DOJ] grants to be compliant with 8 U.S.C. § 1373(a).” Tilak Decl., Ex. 3 at pp. 1-2. The Cities and Counties state in a footnote to their Motion that if DOJ publishes a list of grants the receipt of which will be conditioned upon compliance with 8 U.S.C. § 1373 or other immigration-related conditions, or starts imposing such conditions upon grants, then the Cities and Counties will likely seek additional injunctive relief if necessary. But they state that “given the imminent budgetary quandary that [they] already face,” they are forced to seek

B. Executive Order 14,218

On February 19, 2025, President Trump issued EO 14,218, 90 Fed. Reg. 10581. Tilak Decl. Ex. 33. Section 2(a)(ii) of EO 14,218 directs every federal agency to “ensure, consistent with applicable law, that Federal payments to States and localities do not, by design or effect, facilitate the subsidization or promotion of illegal immigration, or abet so-called ‘sanctuary’ policies that seek to shield illegal aliens from deportation.” Id., 90 Fed. Reg. at 10581. EO 14,218 is intended to “prevent taxpayer resources from acting as a magnet and fueling illegal immigration into the United States,” and to ensure that “no taxpayer-funded benefits go to unqualified aliens.” Id. Like EO 14,159, EO 14,218 does not define many of its key terms. It does not define “Federal payments” or “sanctuary” policies. It does not clarify what it means for a payment to “abet” “sanctuary policies” by “design or effect,” nor does it explain why providing federal funding to jurisdictions with “sanctuary” policies “fuel[s] illegal immigration,” or leads to “taxpayer-funded benefits” afforded to “unqualified aliens.” Id.

C. Actions Taken in the Wake of the 2025 Executive Orders

Since the issuance of the 2025 Executive Orders, the Government has taken numerous steps to try to implement them. On the litigation front, it has initiated lawsuits against New York and Illinois, in which it asserts that the defendants’ respective sanctuary policies violate the Supremacy Clause. See United States of America v. State of New York, et al., No. 1:25-cv-00205 (N.D.N.Y., filed Feb. 12, 2025) (Dkt. No. 1) (Complaint); United States of America v. State of Illinois, et al., No. 1:25-cv-1285 (N.D. Ill., filed Feb. 6, 2025) (Dkt. No. 1) (Complaint).

Executive departments have followed suit. On the same day that EO 14,218 issued, DHS Secretary defendant Kristi Noem issued a memorandum to all executive agencies and offices, entitled “Restricting Grant Funding for Sanctuary Jurisdictions.” Supp. Nguyen Decl. Ex. 1 (Noem Directive). 3 In it, Secretary Noem directs the DHS to review federal financial assistance immediate injunctive relief without waiting to see what grants may appear on a DOJ list.

3 The Cities and Counties filed a Request for Judicial Notice of a February 19, 2025, Memorandum from the Secretary of the Department of Homeland Security, Kristi Noem, to “ALL AGENCIES AND OFFICES” that is entitled “Restricting Grant Funding for Sanctuary Jurisdictions.” Dkt. Nos. 88 (the Noem Memo), 89. The Government protests that because the Cities and Counties did not “challenge this memo in their Amended Complaint or Motion for awards to “determine if [DHS] funds, directly or indirectly, are going to sanctuary jurisdictions,” and then, “to the extent consistent with relevant legal authorities,” “cease providing federal funding to sanctuary jurisdictions.” Id. at p. 2.

On March 25, 2025, Secretary Noem approved the Federal Emergency Management Agency’s (“FEMA”) recommendation that “conditions or restrictions” related to “sanctuary” jurisdictions should be placed on “all open and future awards” for twelve grant programs that fund essential emergency preparedness activities, each of which, according to FEMA, has “a nexus to immigration activities, law enforcement, or national security,” and where a “statute does not limit how FEMA implements the program.” Supp. Nguyen Decl. Ex. 1 at pp. 2-3 (emphasis added).

DHS’s actions led the California Governor’s Office of Emergency Services (“Cal OES”) to issue a “Grant Management Memorandum,” informing all Cal OES, Homeland Security Grant Program (“HSGP”), Nonprofit Security Grant Program (“NSGP”), Emergency Operations Center Grant Program (“EOCGP”), Emergency Management Performance Grant Program (“EMPG”) and State and Local Cybersecurity Grant Program (“SLCGP”) subrecipients that DHS and the Federal Emergency Management Agency (“FEMA”) had paused federal grant funding while they conduct a “manual review” of grant programs, including pending disbursement requests for obligated grant funds. Dkt. No. 108-2, Ex. 1. The Cal OES memo instructed the grant programs to be prepared to comply with the federal government’s requests by compiling various documentation and information about the programs. Id.

And on April 18, 2025, DHS released a document entitled “FY 2025 DHS STANDARD TERMS AND CONDITIONS,” available at https://www.dhs.gov/sites/default/files/2025- 04/2025_0418_fy2025_dhs_terms_and_conditions_version_3.pdf.4 The DHS Terms and Preliminary Injunction” it is improper for consideration here. Oppo. 4, n.3. The Cities and Counties are not asking that I enjoin any part of the Noem Memo. They offer it as further evidence of the Government’s intent to enforce the 2025 Executive Orders through agency action. It is a public document issued by an executive agency in an official capacity; its authenticity is uncontested. I will take judicial notice of it.

4 On April 22, 2025, the Cities and Counties filed a Third Supplemental Request for Judicial Notice (Dkt. No. 108), asking that this court take judicial notice of the DHS Terms and Conditions (Dkt. No. 108-2, Ex. 2), along with the April 11, 2025, Memorandum from the California Governor’s Office of Emergency Services (“Cal OES”) Grants Management, which was issued to Conditions for Fiscal Year 2025 apply to “all new federal awards of federal financial assistance … for which the federal award date occurs in FY 2025 and flow down to subrecipients unless a term or condition specifically indicates otherwise.” Dkt. No. 108-2, Ex. 2. In it, the executive agency states, in relevant part:

(1) All recipients … must agree that they will comply with the following requirements

related to coordination and cooperation with [DHS] and immigration officials:

(a) They must comply with the requirements of 8 U.S.C. §§ 1373 and 1644… . ; (b) they

must comply with other relevant laws related to immigration …(2) the recipient must

certify under penalty of perjury … that it will comply with the requirements of this

term… . (3) The recipient agrees that compliance with this term is material to the

Government’s decision to make or continue with this award and that the Department of

Homeland Security may terminate this grant, or take any other allowable enforcement

action, if the recipient fails to comply with this term. Dkt. No. 108-2 (Ex. 2) (DHS Terms and Conditions).

The Department of Housing and Urban Development (“HUD”) is doing the same thing. On March 12, 2025, it notified San Francisco that annual renewals of more than thirty grants through the Continuum of Care program (a program that supports San Francisco’s safety network to house people experiencing chronic homelessness) would be subject to new grant conditions. McSpadden Decl. ¶¶ 9-12. The new HUD conditions require compliance with “all applicable immigration restrictions and requirements,” including under “Executive Order 14,218[] or other Executive Orders,” seemingly incorporating those restrictions and requirements iterated in EO 14,159. The HUD grant agreement also contains language pulled directly from Section 2(a)(ii) of EO 14,218, stating that funds may not be used “in a manner that by design or effect facilitates the subsidization or promotion of illegal immigration or abets so-called ‘sanctuary’ policies that seek to shield illegal aliens from deportation.” Tilak Decl., Ex. 33. The new conditions came months after HUD told San Francisco that it had been awarded the grants; San Francisco had already expended its own resources to reimburse nonprofit service providers, expecting that it would receive HUD funding once the grant agreements were executed. McSpadden Decl. ¶ 8. And on all subrecipients of the Cal OES Homeland Security Grant Program, among other grant programs. See Dkt. No. 108. These are public documents issued by state and executive agencies. Their authenticity is uncontested. I will take judicial notice of both the DHS Terms and Conditions and Cal OES memorandum. April 4, 2025, HUD Secretary Scott Turner issued a memo to “all HUD Grantees and Stakeholders,” stating that he had recently directed HUD senior leadership to “institute mechanisms that can ensure HUD programs are compliant with President Trump’s Executive Order,” and explaining that “going forward, grant agreements will include language that will require compliance with Executive Order 14218, and the Department will take steps to ensure that Federal resources are not used to support ‘sanctuary’ policies of State and local jurisdictions[.]” Supp. Nguyen Decl. Ex. 9.

Communications shedding light on the intended purpose of the 2025 Executive Orders have not been limited to official executive agency directives or publications. President Trump’s intent to withhold all federal funds from sanctuary jurisdictions is crystal clear through his own commentary. For example, on March 27, 2025, President Trump told reporters that he planned to “end sanctuary cities for some of these jurisdictions that aren’t cooperating with law enforcement,” and that he might “just end the thing altogether.” Supp. Nguyen Decl. Ex. 4. On April 10, 2025, he posted on the social media platform Truth Social, “No more Sanctuary Cities! They protect the Criminals, not the Victims. They are disgracing our Country, and are being mocked all over the World. Working on papers to withhold all Federal Funding for any City or State that allows these Death Traps to exist!!!” Donald Trump (@realDonaldTrump), Truth Social, https://truthsocial.com/@realDonaldTrump/posts/114313927527638500 (last visited April 28, 2025).5

[Omitted: Background Part III (the plaintiff-by-plaintiff funding recitation)]

LEGAL STANDARD

“A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). This has been interpreted as a four-part conjunctive test, not a four-factor balancing test. However, the Ninth Circuit has held that a plaintiff may also obtain an injunction if he has demonstrated “serious questions going to the merits” that the balance of hardships “tips sharply” in his favor, that he is likely to suffer irreparable harm, and that an injunction is in the public interest. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011).

DISCUSSION

[Omitted: Discussion Part I on justiciability — pre-enforcement standing in five subparts, and ripeness — roughly 5,600 words. The court finds standing on a well-founded fear of enforcement and finds the claims ripe]

II. LIKELIHOOD OF SUCCESS ON THE MERITS

The Cities and Counties challenge the 2025 Executive Orders and the Bondi Directive because: they violate the Separation of Powers doctrine enshrined in the United States Constitution in purporting to exercise spending power that the Constitution entrusts solely to Congress; they violate the Fifth Amendment’s Due Process Clause by depriving the plaintiffs of funding without notice or an opportunity to be heard, based on unconstitutionally vague criteria; the 2025 Executive Orders violate the Tenth Amendment by purporting to withhold all federal funds from the sanctuary jurisdictions and condition all payments to such jurisdictions, seeking to commandeer plaintiffs’ resources to enforce federal immigration laws; and the Bondi Directive is arbitrary and capricious and exceeds statutory authority under the Administrative Procedure Act (“APA”).

In light of binding Ninth Circuit precedent, the Cities and Counties have shown they are likely to prevail on the merits of their Separation of Powers and Spending Clause arguments. On similar facts, I have previously decided similar Tenth and Fifth Amendment claims in their favor. And they have also shown that they are likely to succeed on their APA claim.

A. Separation of Powers

The Cities and Counties are likely to prevail on the merits of their claim alleging that the 2025 Executive Orders and Bondi Directive violate the Separation of Powers doctrine. Two crucial points guide my analysis of this issue, neither of which is disputed: the Constitution places limits on the Executive Branch’s power to appropriate funds, and I am bound by Ninth Circuit precedent.

Under the principle of the Separation of Powers and considering the Spending Clause, which vests the exclusive power to Congress to impose conditions on federal grants, the Executive Branch may not refuse to disperse federal grants already allocated by Congress to sanctuary jurisdictions without authorization by Congress. Cnty of Santa Clara, 250 F. Supp. 3d at 530-31 (citing South Dakota v. Dole, 483 U.S. 203, 206, 107 S.Ct. 2793, 97 L.Ed.2d 171 (1987) (where the Supreme Court held that “Congress may attach conditions on the receipt of federal funds, and has repeatedly employed the power ‘to further broad policy objectives by conditioning receipt of federal moneys upon compliance by the recipient with federal statutory and administrative directives.’”). The Ninth Circuit (and I) found that this applied to the 2017 Executive Order, and it applies as well to the 2025 Executive Orders.

The President cannot “repeal[] or amend[] parts of duly enacted statutes” after they become law. City of New York, 524 U.S. at 438, 118 S.Ct. 2091. After a bill becomes law, the President is required to “take Care that the Law be faithfully executed.” See U.S. Const. art. II, § 3, cl. 5. Where Congress has failed to give the President discretion in allocating funds, the President has no constitutional authority to withhold such funds and violates his obligation to faithfully execute the laws duly enacted by Congress if he does so. See City of New York, 524 U.S. at 439, 118 S.Ct. 2091; U.S. Const. art. I, § 8, cl. 1. Further, “[w]hen the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb …” Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 637, 72 S.Ct. 863, 96 L.Ed. 1153 (1952) (Jackson, J., concurring). Congress has intentionally limited the ability of the President to withhold or “impound” appropriated funds and has provided that the President may only do so after following specific procedures and receiving express permission from Congress. Cnty. of Santa Clara, at 531 (citing Impoundment Control Act of 1974, 2 U.S.C. §§ 683 et seq.).

As was the case in 2017, the President has followed no such procedures here and has received no such permission. He has acted unilaterally to attempt to withhold from every sanctuary city in the country millions of dollars already appropriated by Congress, in direct contravention of our nation’s laws. By directing defendants Attorney General Bondi and Secretary Noem to freeze all DOJ funds from sanctuary cities, see Tilak Decl. Ex. 1 (EO 14,159), and by directing all federal agencies to condition federal funds on jurisdictions agreeing not to “abet so-called ‘sanctuary’ policies,” id. Ex. 3 (EO 14,218), the 2025 Executive Orders violate the constitutional Separation of Powers.

That the 2025 Executive Orders contain savings clauses, stating that the executive agencies’ withholding of federal funds and evaluation of federal funding programs should be done in a way that is “lawful,” does not insulate them from judicial review any more than the inclusion of the phrase “consistent with law” in EO 13,768 insulated it from judicial review. See City & Cnty. of S.F., 897 F.3d at 1239-40. The “clear and specific” language of the 2025 Executive Orders communicates that their intent is to direct executive agencies to withhold all federal funds from sanctuary jurisdictions. See City & Cnty. of S.F., 897 F.3d at 1239-40 (“[s]avings clauses are read in their context, and they cannot be given effect when the Court, by rescuing the constitutionality of a measure, would override clear and specific language.”); see also, e.g., Shomberg v. United States, 348 U.S. 540, 547–48, 75 S.Ct. 509, 99 L.Ed. 624 (1955) (refusing to “nullify” “clear legislative purpose” to give effect to a savings clause). As the Ninth Circuit held last time, “[b]ecause the Executive Order unambiguously commands action, here there is more than a ‘mere possibility that some agency might make a legally suspect decision.’” Id. at 1240.

This situation is different from those where courts have accepted savings clauses, like Building & Construction Trades Dep’t v. Allbaugh, 295 F.3d 28 (D.C. Cir. 2002). There, the D.C. Circuit considered an executive order with a savings clause and rejected the plaintiffs’ argument that “notwithstanding the President’s instruction that the Executive Order be applied only ‘[t]o the extent permitted by law,’ a particular agency may try to give effect to the Executive Order when to do so is inconsistent with the relevant funding statute.” Allbaugh, 295 F.3d at 33. As the Ninth Circuit explained in 2018, Allbaugh is distinguishable because the executive order there did not “command action”—the plaintiffs in Allbaugh merely speculated that an agency “may” try to give it effect, when to do so would be unlawful. See City & Cnty. of S.F., at 1239-40 (discussing Allbaugh). Here, as I have explained in detail, the plaintiffs’ fear that executive agencies will give effect to the 2025 Executive Orders, and that the effect will be unlawful, is not speculative: it arises from the clear and specific language of the orders themselves, and is reinforced by the Government’s actions and statements since their issuance. See discussion supra, Section I(A)(4).

As for the Bondi Directive, it too oversteps DOJ authority in violation of the Separation of Powers doctrine. The Government has identified no statutory basis or Congressional authorization for the Attorney General to indefinitely freeze the distribution of already-appropriated DOJ funds. The Bondi Directive imposes new conditions on funds that were already promised to the Cities and Counties. See Tilak Decl. Ex. 1. This action, like President Trump’s, is an exercise of spending power not authorized by Congress, violating the Separation of Powers doctrine.

The Government’s arguments in defense of the Separation of Powers claim are weak, inapplicable, or nonexistent. It defends Section 2(b) of EO 14,218, see Oppo. 13, which is not in issue in the Cities and Counties’ motion. It offers no defense of Section 2(a)(ii), the challenged provision that directs all executive departments to ensure that federal payments do not “abet so-called ‘sanctuary’ policies” regardless of whether Congress has appropriated money for those payments. It offers no defense of the Bondi Directive’s indefinite freeze on the distribution of Congressionally appropriated funds.

The Government does argue that “Congress has frequently authorized agencies administering certain grant programs to impose discretionary conditions on their receipt.” Oppo. 14. The examples it provides involve, ironically, DOJ’s decision in 2017 to condition eligibility for participation in three DOJ-administered grant programs on the applicant’s certification of compliance with Section 1373. Oppo. 14. What the Government neglects to mention is that the Ninth Circuit held that those conditions were unconstitutional. See City of Los Angeles v. Barr (“Barr I”), 941 F.3d 931, 938–44 (9th Cir. 2019) (determining that DOJ has only limited statutory authority to impose special conditions necessary for carrying out the Byrne JAG program); see also Trump, 897 F.3d at 1233–35 (holding that the Executive Branch may not withhold properly appropriated funds without congressional authorization to do so).

The 2025 Executive Orders and Bondi Directive do not purport to authorize “agencies administering certain grant programs to impose discretionary conditions on their receipt”—they direct, respectively, a freeze on all federal funding to sanctuary jurisdictions and a freeze on all DOJ funding to the same. These are not targeted certification conditions imposed on the receipt of Byrne JAG funding, as was the case in Barr I and Trump. These are universal funding freezes, intended to coerce localities into following Executive Branch commands instead of their constitutionally protected local decisions about how to govern.

B. Spending Clause

The Cities and Counties assert that even if the President and Attorney General Bondi had acted within the authority delegated to them by Congress, the 2025 Executive Orders and the Bondi Directive violate the Spending Clause in three distinct ways. The Government does not have a persuasive response to any of them.

First, when Congress imposes conditions on federal funds, it must do so unambiguously so that jurisdictions can plan accordingly. Cnty. of Santa Clara, 250 F. Supp. 3d at 532; Dole, 483 U.S. at 203, 107 S.Ct. 2793. Moreover, “[b]ecause states must opt-in to a federal program willingly, fully aware of the associated conditions, Congress cannot implement new conditions after-the-fact.” Cnty. of Santa Clara, at 532; Nat’l Fed. of Indep. Bus. v. Sebelius (“NFIB”), 567 U.S. 519, 132 S.Ct. 2566, 2602-04 (2012). The Cities and Counties argue that because the 2025 Executive Orders ostensibly apply to all “federal funds” and “federal payments,” including funds already appropriated by Congress or already awarded to states and localities, they impose immigration-related conditions that localities were unaware of and therefore could not have assented to when choosing to receive federal funding. Mot. 17; McSpadden Decl. ¶¶ 8-1; see Kittler Decl. ¶¶ 16, 30-39; Williams Decl. ¶¶ 26–28, 58-60; Eder Decl. ¶¶ 8–9; Milstein Decl. ¶¶ 4, 6; McCarthy Decl. ¶ 7; Charvel Decl. ¶ 16; Shannon Decl. ¶¶ 4, 7-9; Oster Decl. ¶ 12; Cabell Decl. ¶ 5.

The Government repeats that it is merely providing guidance for executive agencies about how to evaluate the way federal funding is allocated. It argues that the Cities and Counties are still afforded the opportunity to opt-in to federal programs willingly because they can consider the immigration-related conditions before choosing to accept or reject federal funds. Oppo. 14-15.7 This misrepresents the purpose and plain language of the 2025 Executive Orders and Bondi Directive. See discussion supra “Background” Section II; “Discussion” Section I(A)(2). The challenged orders and DOJ directive purport to apply to all federal funds, both apportioned and future.

Second, the 2025 Executive Orders and Bondi Directive violate the Spending Clause because they are conditions without a nexus to the affected funds. As the Ninth Circuit (and I)

7 The Cities and Counties also argue that the 2025 Executive Orders and the Bondi Directive violate the rule iterated by the Ninth Circuit because they are ambiguous with respect to critical terms, like what constitutes a “sanctuary” policy or a “sanctuary” jurisdiction, and what amounts to “abet[ting]” such a policy. Mot. 17. The Government has no response to this. held before, conditions placed on congressional spending must have some nexus with the purpose of the implicated funds. Cnty. of Santa Clara, 250 F. Supp. 3d at 532 (citing New York v. United States, 505 U.S. 144, 172 (1992)). The Cities and Counties rely on the threatened federal funding for critical social and public health services, law enforcement, child welfare services, transportation, programs that shelter the homeless, anti-terrorism programs, and natural disaster preparedness programs, to name just a few. See, e.g., Kittler Decl. ¶¶ 17-20 (explaining how San Francisco uses federal funding to run its Medicaid and Medicare programs, its Temporary Assistance for Needy Families program, its Supplemental Nutrition Assistance Program, foster care system, and other child welfare programs, and stating that there is no connection between the purpose of the federal funds and federal immigration enforcement); Williams Decl. ¶¶ 25-41 (explaining that Santa Clara uses federal funding for “entitlement” programs, and mostly uses the funds to provide essential services to its residents like funding its three biggest hospitals, which offer neonatal intensive care, a pediatric trauma center, and burn rehabilitation services, and funding its public health department, which provides disease control and pandemic response services); Dauer Decl. ¶¶ 5-12 (explaining that Emeryville uses federal funds, including DOJ funding, for officer safety and community safety programs, including purchasing bulletproof vests for its officers, and enhancing traffic safety by increasing enforcement of moving violations and DUI arrests); Dively Decl. ¶¶ 3-6 (explaining how King County relies on federal funding to run its emergency management and antiterrorism programs and its Metro Transit line). Because both the executive orders and the Bondi Directive, respectively, purport to condition all federal funding and federal payments and all DOJ funding on local assistance with federal immigration enforcement, even though most of the categories of federal funding have nothing to do with immigration enforcement, nexus is lacking and the Cities and Counties are likely to prevail on their claim for a violation of the Spending Clause, as they did in 2017. The Government has no meaningful response to this argument.

Finally, I held last time, “Congress cannot use the spending power in a way that compels local jurisdictions to adopt certain policies.” Cnty. of Santa Clara, 250 F. Supp. 3d at 533. Offering a financial inducement that is “so coercive as to pass the point at which pressure turns into compulsion” is unacceptable. See Dole, 483 U.S. at 211, 107 S.Ct. 2793. The 2025 Executive Orders and the Bondi Directive are just that kind of coercive inducement. Conditioning all federal funding, which can account for as much as 31% of a locality’s annual budget (as is the case for Santa Clara, see e.g. Williams Decl. ¶¶ 25-26), on compliance with federal immigration enforcement policies crosses the line from pressure to compulsion. EO 14,218 applies to federal payments administered by every federal agency, and EO 14,159 applies to federal funds without limitation. The Bondi Directive does not place certification conditions on particular sources of DOJ funding—it directs DOJ to freeze all department funds to sanctuary jurisdictions.

Consideration of the 2025 Executive Orders and Bondi Directive requires a different analysis than the challenged Byrne JAG grants that the Second Circuit considered in State v. Dep’t of Just., 951 F.3d 84 (2d Cir. 2020), authority that the Government repeatedly cites in its defense (and upon which the Bondi Directive relies). There, the Second Circuit considered whether placing certification conditions on a particular source of DOJ funding (Byrne JAG funds) was constitutional or an overstep of executive and agency authority. It reached a different conclusion than the Ninth, Seventh and Third Circuits. Compare State v. Dep’t of Just., 951 F.3d 84 (2d Cir. 2020) with City & Cnty. of S.F. v. Barr, 965 F.3d 753 (9th Cir. 2020) and City of Philadelphia v. Att’y Gen. of United States, 916 F.3d 276 (3d Cir. 2019) and City of Chicago v. Barr, 961 F.3d 882 (7th Cir. 2020) (“Chicago II”). But here, the 2025 Executive Orders and the Bondi Directive target all applicable funds, not one grant program. The Second Circuit’s reasoning is contradicted by Ninth Circuit precedent, which is binding on me, but the Circuits’ disagreement is not material in deciding this motion in any event.

C. Tenth Amendment

The Cities and Counties argue that the 2025 Executive Orders violate the Tenth Amendment because they attempt to conscript states and local jurisdictions into carrying out federal immigration law. This argument is the same as the one I addressed in 2017.8

8 In granting summary judgment for Santa Clara and San Francisco in 2017, I concluded that: (1) the Executive Order violated the Separation of Powers; (2) even if the President had acted within authority delegated to him by Congress, the congressional action would violate the Spending Clause; (3) the Executive Order violated the Tenth Amendment’s anti-commandeering principle;

The Tenth Amendment prohibits the federal government from commandeering state and local officials to help enforce federal law. Printz v. U.S., 521 U.S. 898 (1997). The federal government may not compel states to enact or administer a federal regulatory program. New York, 505 U.S. at 188. This is true regardless of whether it “directly commands” a state to regulate or “indirectly coerces” a state to adopt a federal regulatory system as its own. NFIB, 567 U.S. at 578. The 2025 Executive Orders coerce the Cities and Counties to adopt federal immigration enforcement laws by ordering that all federal funding (which accounts for huge percentages of their total annual budgets) be withheld unless these “sanctuary” jurisdictions change their policies to comport with § 1373. They, like EO 13,768, wield critical federal funding as a cudgel with which to coerce localities that do not wish to cut essential programs into accepting the federal government’s conditions in exchange for the funds they were promised.

The Government says that plaintiffs may “decline to apply for the specific DOJ or DHS grants to which any offensive conditions are attached,” so there is “no commandeering of their sovereignty.” Oppo. 16. It offers Envtl. Def. Ctr., Inc. v. EPA, for the rule that “as long as the alternative to implementing a federal regulatory program does not offend the Constitution’s guarantees of federalism, the fact that the alternative is difficult, expensive, or … unappealing does not establish a Tenth Amendment violation.” 344 F.3d 832 (9th Cir. 2003).

EPA is a different case. For one thing, it did not involve threats to all federal funding. And the thrust of the holding is different. There, environmental groups and cities brought petitions for review of an EPA rule mandating that discharges from small city storm sewers be subject to federal pollutant elimination permitting requirements. The court held, in relevant part, that the rule did not violate the Tenth Amendment because the EPA gave the operators of small “Municipal Separate Storm Sewer Systems” (“MS4s”) (which are regulated by the EPA) a choice: either implement the regulatory program spelled out by the EPA rule or pursue an Alternative (4) the Executive Order is void for vagueness under the Fifth Amendment; and (5) the Executive Order infringed upon the Counties’ procedural due process rights. Given the Ninth Circuit’s resolution of the merits on the basis of the Separation of Powers in consideration of the Spending Clause, it did not reach the merits of the other bases of my decision. See City & Cnty. of S.F., 897 F.3d at 1235, n.5. Permit option and seek a permit under a different provision of the Rule. This meant that unless the alternative option “offend[ed] the Constitution’s guarantees of federalism,” the challenged rule did not violate the Tenth Amendment. Nothing in the alternative permit option required the operator of an MS4 to implement a federal regulatory program to receive a permit to discharge because the rule specified application requirements, not permit requirements. But here, there is no alternative funding option: the Cities and Counties have no choice to pursue their chosen sanctuary policies if they are to receive federal funding.

At oral argument, counsel for the Government contended that this case is like Printz v. U.S., 521 U.S. 898, 117 S.Ct. 2365 (1997), where the Supreme Court, the Government says, “implied” that each ministerial reporting may not violate the Tenth Amendment. See Transcript [Dkt. No. 117] 26:3-8. In Printz, the Court considered if the federal government was unlawfully commandeering state governments when it required county sheriffs to implement background checks on prospective handgun purchasers under the Brady Handgun Violence Prevention Act (the “Brady Act”). In a concurring opinion, which the Government now references, Justice O’Connor observed that the Court “appropriately refrain[ed] from deciding whether other purely ministerial reporting requirements imposed by Congress on state and local authorities pursuant to its Commerce Clause powers are similarly invalid,” and cited 42 U.S.C. § 5779(a) as an example of such a reporting requirement.9

The Government’s invocation of Printz is odd. Justice O’Connor’s concurrence was with a majority opinion holding that the federal government was imposing unconstitutional obligations upon state officers to execute federal laws. The decision supports the Cities and Counties, not the Government. And the Court was evaluating “ministerial reporting requirements” as opposed to Executive Orders that coerce state and local governments to change substantive policies that affect a wide array of social services, law enforcement programs, and public health infrastructure.

Accordingly, the Cities and Counties have shown that they are likely to prevail on their claim that the 2025 Executive Orders violate the Tenth Amendment.

9 4 U.S.C. § 5779(a) requires state and local law enforcement agencies to report cases of missing children to the DOJ.

D. Fifth Amendment

The Fifth Amendment protects against federal laws that are so vague that they fail to provide fair notice of what is prohibited or are so standardless that they permit discriminatory enforcement. Sessions v. Dimaya, 584 U.S. 148 (2018). In 2017, I found that Section 9(a) of EO 13,768 was unconstitutionally vague and violated procedural due process. Cnty. of Santa Clara, 250 F. Supp. 3d at 534-36.

The 2025 Executive Orders and the Bondi Directive are arguably more vague than the Executive Order I considered in 2017. EO 14,159 directs the Attorney General and DHS Secretary to withhold funding based on their determination that a state or locality is a “sanctuary” jurisdiction that “seeks to interfere” with “Federal Law Enforcement operations.” Tilak Decl. Ex. 1 (EO 14,159, 90 Fed. Reg. at 8446). This is the kind of “expansive, standardless language” that “creates huge potential for arbitrary and discriminatory enforcement.” United States v. Williams, 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008). EO 14,218 does not define key terms either, like what constitute “sanctuary policies,” or “Federal payments,” and does not specify what counts as “seek[ing] to shield illegal aliens from deportation,” even though failure to comply with these terms will apparently lead to total loss of DOJ funding. Tilak Decl. Ex. 33 (EO 14,218, 90 Fed. Reg. 10581).

The Bondi Directive provides a vague definition for so-called “sanctuary” jurisdictions, identifying them as “includ[ing]” “state or local jurisdictions that refuse to comply with 8 U.S.C. § 1373, refuse to certify compliance with § 1373, or willfully fail to comply with other applicable federal immigration laws.” Tilak Decl. Ex. 3 (Bondi Directive) at p. 1. It does not explain what other federal immigration laws are “applicable,” and the use of the term “include” leaves open the possibility that jurisdictions that do comply with Section 1373 and/or whatever federal immigration laws are deemed “applicable” may also be subject to loss of federal funds. As in 2017, the 2025 Executive Orders and Bondi Directive “do[ ] not make clear what conduct might subject a state or local jurisdiction to defunding or enforcement action, making it impossible for jurisdictions to determine how to modify their conduct, if at all, to avoid [the Executive Orders’] penalties.” Cnty. of Santa Clara, at 535.

The Cities and Counties also assert that the 2025 Executive Orders fail to provide them with procedural due process in violation of the Fifth Amendment. To sustain a valid procedural due process claim, a person must demonstrate that he has a legally protectable property interest and that he has suffered or will suffer a deprivation of that property without adequate process. See Thornton v. City of St. Helens, 425 F.3d 1158, 1164 (9th Cir. 2005). To have a legitimate property interest, a person “must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.” Bd. of Regents v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). A state or local government has a legitimate claim of entitlement to congressionally appropriated funds, which are akin to funds owed on a contract. See NFIB, 132 S.Ct. at 2602 (“The legitimacy of Congress’ power to legislate under the spending power [ ] rests on whether the State voluntarily and knowingly accepts the terms of the ‘contract.’”). Accordingly, the Cities and Counties have a legitimate property interest in federal funds that Congress has already appropriated and that they have accepted.

The 2025 Executive Orders purport to make sanctuary jurisdictions like the Cities and Counties ineligible to receive federal funds through a discretionary and largely undefined process. Section 17 of EO 14,159 directs the Attorney General and DHS Secretary to identify “so-called ‘sanctuary’ jurisdictions,” and “undertake any lawful actions” to “ensure that” they “do not receive access to Federal funds.” Tilak Decl. Ex. 1 (EO 14,159, 90 Fed. Reg. 8443). It does not direct the Attorney General or the DHS Secretary to provide notice to these jurisdictions of these impending funding cuts. And, like Section 9(a) in EO 13,768, it does not set up any administrative or judicial procedures for states and local jurisdictions to be heard, to challenge enforcement, or to appeal any action taken against them. See id. This complete lack of process violates the Fifth Amendment’s due process requirements. See Mathews v. Eldridge, 424 U.S. 319, 349, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (“The essence of due process is the requirement that a person in jeopardy of serious loss be given notice of the case against him and opportunity to meet it.”) (internal alterations and quotations omitted).

Section 2(a)(ii) of EO 14,218 fares no better under scrutiny. It directs executive agency heads to “ensure, consistent with applicable law, that Federal payments to States and localities do not, by design or effect, facilitate the subsidization or promotion of illegal immigration, or abet so-called ‘sanctuary’ policies that seek to shield illegal aliens from deportation.” Tilak Decl. Ex. 33 (EO 14,218, 90 Fed. Reg. 10581). It is even more vague than EO 14,159 with respect to what constitutes “facilitat[ing]” the “subsidization or promotion of illegal immigration,” or how the identified Federal payments will be halted. Id. It provides no instructions to agencies to warn sanctuary jurisdictions of impending funding cuts, or to provide procedures for challenging those cuts. The Bondi Directive suffers from the same problems.

The Government once again cites the savings clauses in both Executive Orders and the Bondi Directive, asking this court—and sanctuary jurisdictions—to essentially trust that the Government will abide by the law while it implements the President’s directives. But, as discussed, these savings clauses, taken in the context of the clear and specific language of the orders and directives in which they appear, cannot insulate their hosts from judicial review. See discussion supra Section II(A.) There is no dispute that while the 2025 Executive Orders command executive agencies to identify sanctuary jurisdictions and ensure that they receive no federal funding, they provide no process for notifying jurisdictions about such a determination and no opportunity to be heard. The same is true for the Bondi Directive. The Cities and Counties are likely to succeed on their claim that the 2025 Executive Orders and Bondi Directive fail to provide adequate due process in violation of the Fifth Amendment.

E. Administrative Procedure Act

The APA governs the process and procedures of federal agency decision-making. Defendant DOJ is an “agency” as defined in the APA, 5 U.S.C. § 551(1). Plaintiffs argue that the Bondi Directive violates the APA because it is (1) unconstitutional, so it is “contrary to constitutional right [and] power, violating 5 U.S.C. § 706(2)(B), (2) in excess of statutory authority, violating 5 U.S.C. § 706(2)(C), and (3) “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law,” violating 5 U.S.C. § 706(2)(A).

1. The Bondi Directive is a Final Agency Action

The APA allows judicial review of “final agency action for which there is no other adequate remedy in a court.” 5 U.S.C. § 704. An agency action is final if: (1) the agency action marks “the consummation of the agency’s decision-making process” and (2) the “action … [is] one by which rights or obligations have been determined or from which legal consequences flow.” Bennett v. Spear, 520 U.S. 154 (1997). To determine whether an action is “final,” courts “look to whether the action ‘amounts to a definitive statement of the agency’s position’ or ‘has a direct and immediate effect on the day-to-day operations of the subject party, or if ‘immediate compliance [with the terms of the agency action] is expected.’” Oregon Natural Desert Ass’n v. U.S. Forest Service, 465 F.3d 977, 982-83 (9th Cir. 2006).

The Government’s main argument against the APA claim is that the Bondi Directive is not a “final” agency action subject to APA review. It contends that the Bondi Directive merely instructs executive agencies to evaluate federal funding decisions, which is not a final action because it does not have a “direct” or “immediate” effect on “the day-to-day operations” of the localities. Oppo. 17-18.

As I have discussed, what the Government proposes is a disingenuous interpretation of the Bondi Directive, and of the plaintiffs’ quest for relief. While the Cities and Counties reserve the right to seek future relief if DOJ publishes a list of grants that are conditioned on localities’ compliance with 8 U.S.C. § 1373, their arguments today focus upon the Bondi Directive’s instruction to freeze the distribution of all DOJ funds to implement President Trump’s directive to defund “sanctuary” jurisdictions. The Bondi Directive commands action in that it provides “the Department of Justice will ensure, consistent with law, ‘sanctuary jurisdictions’ do not receive access to Federal funds from the Department” and that DOJ “shall pause the distribution of all funds.”10 Tilak Decl. Ex. 3 (Bondi Directive).

10 The Bondi Directive’s savings clause does not insulate it from judicial review any more than do the savings clauses in the 2025 Executive Orders. True, the Bondi Directive instructs DOJ to pause all federal funds to sanctuary jurisdictions in a way that is “consistent with law,” and “[c]onsistent with applicable statutes, regulations, court orders, and terms,” but it also states, unequivocally, that “[s]anctuary jurisdictions should not receive access to federal grants administered by the Department of Justice.” Tilak Decl. Ex. 3 at p. 1. To allow its savings clauses to insulate the Bondi Directive from judicial review would require looking past the clear and specific language within the directive that communicates DOJ’s intent to withhold all federal funds from sanctuary jurisdictions, regardless of—or at least before determining—the legality of that freeze. I cannot do that. See City & Cnty. of S.F., at 1239.

That statement clearly “mark[s] the consummation of” the DOJ’s “decision-making process” that so-called “sanctuary” jurisdictions are ineligible for federal funding. And it is a statement from which legal consequences will flow. U.S. Forest Service, 465 F.3d at 982-83. The Directive is unclear as to some of its key terms, which raises other problems, but its finality is not reasonably questioned.

The Government offers several cases to support its contention that the Bondi Directive is not a final agency action. None is on point. For example, in F.T.C. v. Standard Oil, an oil company sued the Federal Trade Commission (“FTC”) after the FTC issued a complaint “averring reason to believe” that the company was violating the Federal Trade Commission Act (“FTCA”). 449 U.S. 232 (1980). The Supreme Court explained that the FTC’s issuance of its complaint was not a “final agency action” under the APA (nor was it a “collateral order”), and was thus not judicially reviewable before the conclusion of the administrative action; it was definitive only on the question of whether the FTC “avers reason to believe that the respondent … is violating [the FTCA],” but “the extent to which the respondent may challenge the complaint and its charges proves that the averment of reason to believe [was] not ‘definitive’ in a comparable manner to the regulations in Abbot Laboratories.” Standard Oil, 449 U.S. at 242. The complaint, by itself, had “no legal force comparable to that of the regulation at issue in Abbot Laboratories,” and had no “comparable effect upon [Standard Oil’s] daily business.” Id. Here, as I have explained at length, the Cities and Counties are experiencing very real effects on their equivalent of “daily business” as a result of the Bondi Directive, and the Bondi Directive purports to have legal force.

This case is also different than Fairbanks North Star Borough v. U.S. Army Corps of Engineers, where the Ninth Circuit affirmed dismissal for lack of jurisdiction over a “jurisdictional determination” of the Army Corps of Engineers that property proposed to be developed by a municipality contained waters of the United States subject to regulation under the Clean Water Act (“CWA”). 543 F.3d 586 (9th Cir. 2008). The determination was not a final agency action because the municipality’s “rights and obligations remain unchanged” by the approved jurisdictional determination. The determination did not, by itself, command the municipality to do or forbear from anything; through it, the Corps had simply “expresse[d] its view of what the law requires” of the municipality. Fairbanks, 543 F.3d at 593-94. The same cannot be said here, where the Bondi Directive commands the DOJ to pause funding to sanctuary jurisdictions.11

2. Arbitrary and Capricious

The Cities and Counties contend that the Bondi Directive is “arbitrary and capricious, an abuse of discretion, or otherwise not in accordance with the law” in violation of 5 U.S.C. § 706(2)(A). I tend to agree. “An agency action qualifies as ‘arbitrary’ or ‘capricious’ if it is not ‘reasonable and reasonably explained.’” Ohio v. EPA, 603 U.S. 279, 292 (2024). As is discussed above, the Bondi Directive fails to offer a reasonable explanation of the breadth of funding withheld or the basis for withholding funds that Congress has already appropriated.

The Government has not offered a plausible reason for why a total freeze on all DOJ funding is necessary to advance the 2025 Executive Orders. Nothing in the record before me suggests that the Attorney General considered the Cities and Counties’ reliance on the threatened federal funding before issuing the freeze, their expectation of reimbursement for funds already appropriated, or their need for clarity about what funding will be available in the future to support critical services and infrastructure; all this is required given the Bondi Directive’s reversal of prior DOJ policy that “engendered serious reliance interests.” See FCC v. Fox Telev. Stations, Inc., 556 U.S. 502, 515–16 (2009) (holding that where a policy decision “engender[s] serious reliance

11 The situation here is more akin to the situation that a district court in Rhode Island recently considered, where several states sought judicial review under the APA of actions taken by President Trump, the Office of Management and Budget (“OMB”), and other executive branch agencies and departments, alleging, in relevant part, that an OMB directive was arbitrary and capricious, and therefore violated the APA. See New York v. Trump, No. 25-CV-39-JJM-PAS, 2025 WL 715621 (D.R.I. Mar. 6, 2025), enforced, No. 25-CV-39-JJM-PAS, 2025 WL 1009025 (D.R.I. Apr. 4, 2025), reconsideration denied, No. 1:25-CV-39-JJM-PAS, 2025 WL 1098966 (D.R.I. Apr. 14, 2025). The OMB Directive instructed federal agencies to ‘complete a comprehensive analysis of all their Federal financial assistance programs to identify programs, projects, and activities that may be implicated by any of the President’s executive orders,’” and then mandated that, “in the interim of comprehensive analysis, ‘Federal agencies must temporarily pause all activities related to obligation or disbursement of all Federal financial assistance … for foreign aid, nongovernmental organizations, DEI … woke gender ideology, and the green new deal.” Trump, 2025 WL 715621, at *3. The court determined that the OMB Directive was a “final agency action” subject to judicial review under the APA because it amounted to “a command, not a suggestion, that Agency Defendants shall execute a categorical, indefinite funding freeze to align funding with the President’s priorities.” Id. at *8-9. interests,” the agency making that decision must “provide a more detailed justification than what would suffice for a new policy created on a blank slate.”). This is enough for the plaintiffs to show they are likely to prevail on the merits of their APA claim, at least to the extent that they allege defendant Attorney General Bondi violated 5 U.S.C. § 706(2)(A).

3.  Contrary to Law/Excess of Statutory Authority

The Cities and Counties also argue that the Bondi Directive is unconstitutional, and therefore “contrary to constitutional right [and] power” in violation of the APA, 5 U.S.C. § 706(2)(B). They also argue that it is in excess of statutory authority to the extent that it threatens all DOJ funds, in violation of 5 U.S.C. § 706(2)(C). Once more the Government responds with an unavailing analogy to State v. Dep’t of Just., where the Second Circuit held that “because 8 U.S.C. § 1373 is a law applicable to all plaintiffs in this action, the Attorney General was authorized to impose the challenged Certification Condition and did not violate either the APA or the Separation of Powers by doing so.” 951 F.3d 84 (2d Cir. 2020); Oppo. 20-21.

As a preliminary matter, the Second Circuit in State considered whether DOJ violated 5 U.S.C. § 706(2)(C), not (B), when the Attorney General imposed certain certification conditions on the receipt of Byrne JAG funds. More importantly, as discussed before, several appellate courts, not only the Second Circuit, have considered the scope of the DOJ’s statutory authority to impose conditions on a particular DOJ grant: the Byrne JAG grant. See e.g. Chicago I, 888 F.3d at 285; Barr, 941 F.3d at 939; City & Cnty. of S.F., 965 F.3d 753. Each of these courts has considered how far the Attorney General’s authority stretches such that she can impose “special conditions” on Byrne grants specifically.

In State, the Second Circuit determined that the challenged certification condition was statutorily authorized by 34 U.S.C. § 10153(a)(5)(D), which requires a Byrne grant applicant to include in its application “‘[a] certification, made in a form acceptable to the Attorney General’ stating that ‘the applicant will comply with all provisions of this part and all other applicable Federal laws.’” Id. at 103 (citing 34 U.S.C. § 10153(a)(5)(D)). The court held that since the plaintiffs only relied on Byrne JAG funds for less than .1% of annual funds, the certification condition was not coercive. Other appellate courts considered the same statutory constraint and reached different conclusions, including the Ninth Circuit. And because neither the 2025 Executive Orders nor the Bondi Directive identify which federal funds arising from what grants will be frozen absent certified compliance with Section 1373, the analysis in State is not germane.

This case is also distinct from State with respect to coercion. The Cities and Counties are challenging the impending loss of all their DOJ-allocated funding, not just Byrne JAG funding. Some plaintiffs declare that they receive dozens of DOJ grants annually that serve to fund their public safety services. See e.g. Cole-Tindall Decl. (describing King County’s reliance on several different outstanding DOJ grants, totaling $3.1 million); Bower Decl. (describing Minneapolis’s reliance on $1.8 million in DOJ grants for public safety expenditures). The loss of all DOJ grants requires different analysis than loss of only Byrne JAG grants in the event of non-compliance, and not just from a purely quantitative perspective. It is coercive to be prohibited from receiving any funding from DOJ, regardless of the percentage of the plaintiffs’ budget that DOJ funding currently constitutes.

Ultimately, unlike the DOJ in State, the Government has offered no statutory or caselaw authority supporting its right to impose a total funding freeze to all localities that choose not to use local resources to enforce federal immigration law, so the Bondi Directive likely violates 5 U.S.C. § 706(2)(C). No law authorizes the DOJ to impose conditions not authorized by Congress and, as mentioned briefly before, the Impoundment Control Act (“ICA”) sets out the circumstances and procedures for the Executive Branch to request deferral or recission of appropriated funds from Congress. See discussion supra Section II(A); Impoundment Control Act of 1974, 2 U.S.C. §§ 683 et seq. Those conditions prescribed by the ICA have not been shown to be satisfied here.12

12 My decision is not inconsistent with the Supreme Court’s recent per curiam decision in U.S. Dep’t of Ed v. California, 604 U.S. – (2025). There, the Court considered the Government’s appeal from a TRO issued by a district court in Massachusetts, enjoining the Government from terminating various education-related grants. The district court’s TRO also required the Government to pay out past-due grant obligations and to continue paying obligations as they accrue. Its decision rested upon the finding that the respondents were likely to prevail on the merits of their APA claim. The Supreme Court construed the district court’s order as a preliminary injunction, not a TRO, and granted certiorari. In staying the effect of the district court’s Order pending the disposition of the Government’s First Circuit appeal, the Court held that the Government was “likely to succeed in showing the District Court lacked jurisdiction to order the payment of money under the APA.” Id. at p. 2 (citing Sampson v. Murray, 415 U.S. 61, 87 (1964)). The Court explained that the APA’s waiver of sovereign immunity does not apply “if any

[Parts IV through VII — irreparable harm, the public interest, security, and the terms of the injunction — are given in full below; they are short]

IV. IRREPARABLE HARM

The Cities and Counties face irreparable harm without an injunction enjoining the first sentence of Section 17 of EO 14,159 and Section 2(a)(ii) of EO 14,218, along with the Preamble and Section I of the Bondi Directive. They face present and future budgetary uncertainty, which is wreaking havoc on their budgetary planning process. They are suffering constitutional injury because the Executive Orders and Bondi Directive infringe on their sovereignty in violation of the Tenth Amendment. The Government’s actions threaten to irreparably damage the relationship the Cities and Counties have built with their immigrant communities in reliance on their sanctuary policies.

The Government’s defense is that the Cities and Counties have just identified speculative harm because no funds have been impacted yet. See discussion supra “Justiciability” Sections A(2), A(4); Oppo. 21-22. But, as the Cities and Counties have demonstrated through numerous declarations from public health officials, law enforcement officials, treasurers, and city and county managers, the harm that they face is real and imminent. They are unable to plan their budgets for the upcoming fiscal year in the shadow of the 2025 Executive Orders and Bondi Directive, which threaten all federal funding, they are being forced to subordinate their local policies and practices to the preferences of the Federal Government, and their relationships with their communities suffer for it. The Cities and Counties have shown that they face irreparable harm absent the injunction that I issued on April 24, 2025. other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U. S. C. §702. Nor does the waiver apply to claims seeking “money damages.” Id. The Court conceded that a district court’s jurisdiction “is not barred by the possibility” that an order setting aside an agency’s action may result in the disbursement of funds, see Bowen v. Massachusetts, 487 U.S. 879, 910 (1988), but the APA’s limited waiver of immunity does not extend to orders “to enforce a contractual obligation to pay money” along the lines of what the District Court ordered in U.S. Dep’t of Ed. The Court stayed the effect of the Order because the respondents had represented facts showing that a stay would not irreparably harm them; they “ha[d] the financial wherewithal to keep their programs running.” U.S. Dep’t of Ed., at p. 2. This Order, on the other hand, does not require the Government to pay out past-due obligations to the Cities and Counties now; it enjoins the Bondi Directive to the extent that the directive commands DOJ to freeze all funds to the Cities and Counties. This Order may very well result in the disbursement of funds to the Cities and Counties; but if it does, as discussed, that is a scenario expressly considered and accepted by the Supreme Court in U.S. Dep’t of Ed., and in Bowen.

V. PUBLIC INTEREST AND BALANCE OF EQUITIES

A party seeking a preliminary injunction must “establish … that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter, 555 U.S. at 20, 129 S.Ct. 365. When the federal government is a party, these factors merge. Nken v. Holder, 556 U.S. 418, 435, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009).

The Cities and Counties have established a likelihood of constitutional violations arising from the 2025 Executive Orders and Bondi Directive. The public interest is served by allowing them clarity about their budgets and programmatic capacities in line with the Constitution. The Cities and Counties have a strong interest in avoiding unconstitutional federal enforcement and the significant budget uncertainty that has resulted from the 2025 Executive Orders and Bondi Directive’s broad and threatening language.

The Government’s arguments about the public interest being served by enforcing federal immigration law fell short in 2017 and they fall short now. As was the case in 2017, see City & Cnty. of S.F., 897 F.3d at 539, to the extent that the Government wishes to use all lawful means to enforce federal immigration laws such as 8 U.S.C. § 1373, it does not need Section 17 of EO 14,159 or Section 2(a)(ii) of EO 14,218 or the Bondi Directive to do so. The confusion caused by these documents and their coercive effects on the plaintiffs weigh heavily against the Government. The balance of harms weighs in favor of an injunction.

VI. SECURITY

The Government requests a security bond under Fed. R. Civ. P. Rule 65(c), requiring plaintiffs to “post security for any taxpayer funds expended during the pendency of the Court’s order.” Oppo. 24-25. That request is DENIED.

Whether to require security and if so, for what amount, is within the court’s discretion. Barahona–Gomez v. Reno, 167 F.3d 1228, 1237 (9th Cir. 1999). It is within district court’s discretion to waive bond requirement entirely if “no evidence the party will suffer damages from the injunction,” or if there is a “high probability of success that equity compels waiving the bond, the balance of equities overwhelmingly favors the movant … or the requirement of a bond would negatively impact the movant’s constitutional rights.” Conn. Gen. Life Ins. Co. v. New Images of Beverly Hills, 321 F.3d 878 (9th Cir. 2003); Gilmore v. Wells Fargo Bank, N.A., No. C 14-2389- CW, 2014 WL 3749984, at *6 (N.D. Cal. July 29, 2014); East Bay Sanctuary Covenant v. Trump, 349 F. Supp. 3d 838. 868 (N.D. Cal. 2018).

It is highly unusual for the Government to request a bond under the circumstances of this case. Its request is unsupported. It offers no explanation for how taxpayer funds expended during the pendency of the order could qualify as damages for Government later. And the balance of equities tips strongly in Cities and Counties’ favor; imposing a bond would negatively impact their access to the courts and their ability to assert their constitutional rights.13 The Government has not shown why a bond is necessary here, and no bond will issue.

VII. PRELIMINARY INJUNCTION

This Order is meant to be read together with the Order Granting Preliminary Injunction. Dkt. 111. For the avoidance of doubt, as reflected in the April 24, 2025, Preliminary Injunction Order, it is ORDERED that: 1. Defendants14 and their officers, agents, servants, employees, and attorneys, and any other persons who are in active concert or participation with them ARE RESTRAINED AND ENJOINED from directly or indirectly taking any action to withhold, freeze, or condition federal funds from the Cities and Counties based on (1) the first sentence of Section 17 of Executive Order 14,159, (2) Section 2(a)(ii) of Executive Order 14,218, or (3) the Preamble and Section I of

13 The Government has failed to secure the kind of bond they request here in other, similar litigation over the course of the last few months. See, e.g., Nat’l Ass’n of Diversity Officers in Higher Educ. v. Trump, No. 1:25-CV-00333-ABA, 2025 WL 573764, at *30 (D. Md. Feb. 21, 2025), opinion clarified, No. 25-CV-0333-ABA, 2025 WL 750690 (D. Md. Mar. 10, 2025), injunction stayed on appeal, Order, Dkt. No. 29, No. 25-1189 (4th Cir. Mar. 14, 2025).

14 Defendant President Donald J. Trump is not enjoined by this Order with respect to the “performance of his official duties.” See Franklin v. Massachusetts, 505 U.S. 788, 802–03 (1992) (citation and quotation marks omitted). The injunction does run against any federal agency or official, including the other named defendants and any other agency or individual acting in concert with or as an agent of the President or other defendants to implement the enjoined provisions of Executive Orders 14,159 and 14,128 and the Bondi Directive. See Hawaii v. Trump, 859 F.3d 741, 788 (9th Cir. 2017) (“Injunctive relief, however, may run against executive officials”), rev’d on other grounds, Trump v. Hawaii, 583 U.S. 941 (2017); see also Fed. R. Civ. Proc. 65(d)(2) (preliminary injunction may reach “other persons who are in active concert or participation with” the enjoined parties). the February 5, 2025 Memorandum from the Attorney General entitled “Sanctuary Jurisdictions Directives” on the basis that the Cities and Counties have policies that limit (i) the honoring of civil immigration detainer requests; (ii) cooperation with administrative warrants for purposes of immigration enforcement; (iii) sharing of information with federal immigration authorities other than immigration or citizenship status; (iv) the use of local law enforcement to arrest or detain individuals solely for civil immigration violations; or (v) the use of local resources to assist with civil immigration enforcement activities. 2. This Order shall apply to the maximum extent provided for by Federal Rule of Civil Procedure 65(d)(2) and 5 U.S.C. §§ 705 and 706. 15

IT IS SO ORDERED. Dated: May 3, 2025

William H. Orrick

United States District Judge

15 The Order Granting Preliminary Injunction required that the Government provide notice of the injunction to all federal departments and agencies. Dkt. No. 111. The Government has done so. Dkt. Nos. 119, and 123.

Notes & Questions

1. Why separation of powers comes first. A district judge bound by a circuit holding takes the ground the circuit already decided. Here that is the 2018 Ninth Circuit decision in the 2017 round of this same case, which held that the President may not attach conditions to funds Congress has appropriated. Notice what that does to the constitutional question: it converts “may the federal government coerce a State?” into “may the President, without Congress, do it?” State which of those questions the Tenth Amendment answers and which it does not. Then ask whether anything in this opinion would survive if Congress itself enacted the conditions by statute.

2. Coercion as commandeering. The court’s operative sentence borrows NFIB: the federal government may not compel a State to administer a federal program, “regardless of whether that compulsion is direct (through command) or indirect (through coercion).” That sentence does a great deal of work, because it lets a spending condition become a Tenth Amendment violation without any order to any state officer. Build the counterargument — that a condition on a voluntary grant is an offer, and that a jurisdiction which finds the offer unacceptable may decline it. Then confront the court’s answer, which is that when federal money is up to 31 per cent of a budget, the offer is not one a jurisdiction can decline. Where exactly is the line, and who draws it?

3. Nexus, and a curious citation. The Spending Clause discussion requires that conditions bear some nexus to the purpose of the funds, and the court cites — for that proposition — New York v. United States, a Tenth Amendment case, by way of its own earlier opinion. Is the relatedness requirement a Spending Clause rule or a federalism rule? Dole states it as the third of its four conditions; New York states it as a limit on coercion. Whether they are the same requirement in two idioms is worth ten minutes, and it bears directly on how you would brief a case like this.

4. Printz, turned around. The Government invoked Justice O’Connor’s concurrence in Printz. Judge Orrick’s reply: the concurrence accompanied a majority holding that the federal government was imposing unconstitutional obligations on state officers, and the obligations there were “ministerial reporting requirements” rather than a demand that a jurisdiction change substantive policy across social services, law enforcement and public health. Evaluate the distinction. If ministerial reporting is unconstitutional commandeering, is a demand for substantive policy change a lesser intrusion or a greater one — and does the answer depend on whether money is attached?

5. The circuit split the opinion notices. The court distinguishes New York v. Department of Justice, 951 F.3d 84 (2d Cir. 2020), which upheld immigration-related conditions on a single grant program, from the Ninth, Seventh and Third Circuit decisions going the other way, on the ground that these orders target all applicable funds rather than one program. Is “all funds versus one program” a constitutional distinction or a coercion-magnitude distinction? And if it is the latter, note that you have arrived back at NFIB’s question without anyone having said so.

6. What a preliminary injunction decides. Every holding here is a likelihood-of-success holding on an incomplete record, and the injunction protects sixteen jurisdictions and no one else. When you cite this case, say what it is. Then ask the question Module 8 will make formal: what is the precedential weight of a district court’s preliminary assessment of a constitutional question, and how should a lawyer advising a city that is not a plaintiff use it?