City Attorney Herrera Battles Trump Administration

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On January 25, U.S. President Donald Trump signed Executive Order 13768, which promised to withdraw federal grants from “sanctuary cities.” Although the term “sanctuary city” has no legal definition, it’s generally understood to refer to municipalities that permit residence by undocumented immigrants, with policies that prohibit local authorities from detaining individuals due to their immigration status, and from holding jailed immigrants past their release dates at the request of U.S. Immigration and Customs Enforcement if no criminal warrant demands it.

Nearly every major American city has a sanctuary policy. San Francisco has self-identified as one since 1989, based on the principle that the community fabric is strengthened when all residents feel entitled to report crimes, enroll their children in schools, and use public services without fear of deportation.

The late Reverend Peter J. Sammon, of St. Teresa’s Church, was an early advocate for the sanctuary movement.  In 1984, St. Teresa’s became the City’s first parish to declare itself a sanctuary. Five years later, Sammon collaborated with the San Francisco Board of Supervisors to pass the City of Refuge ordinance, making San Francisco’s sanctuary status official. Early this year, another community member – City Attorney Dennis Herrera, who has lived in Dogpatch since 1993 – acted to defend the same immigrant populations Sammon had worked to protect.

On January 31, 2017, Herrera filed a federal lawsuit against the Trump Administration, marking the beginning of what may be a prolonged battle between San Francisco and the White House. Standing beside Mayor Ed Lee, Herrera told reporters at a press conference that Trump’s executive order “is not only unconstitutional; it’s un-American.”

Herrera explained that the U.S. Constitution “gives local and state governments the power to make decisions in the best interests of our residents. President Trump’s executive order seeks to interfere with those powers.”

He added that San Francisco fully complies with the federal statute cited by Trump’s order – 8 U.S.C. 1373, which requires that local governments respond to federal inquiries “regarding the citizenship or immigration status, lawful or unlawful, of any individual” – but noted that this statute, too, violates the Constitution, and will be challenged by the lawsuit.

“No president can commandeer the local police force and turn it into the deportation arm of the federal government,” Herrera concluded.

Trump’s executive order was deemed doubly problematic –“potentially catastrophic,” in Herrera’s words – for cities like San Francisco because it didn’t state how much federal funding would be lost, or where the cuts would occur, if the order were carried out. The City’s annual budget is roughly $10 billion, of which $1.2 billion comes from the federal government. Mayor Lee is required to submit a new budget for the fiscal year beginning July 1, 2017 to the Board of Supervisors by June 1.

In the hope of removing the “cloud of uncertainty” hanging over the Mayor’s Office, in March Herrera asked a federal judge for an injunction that’d freeze Executive Order 13768 until the question of its constitutionality – posed by Herrera’s lawsuit and, later, by similar complaints from Santa Clara County, the City of Richmond, and the towns of Chelsea and Lawrence in Massachusetts – had been resolved.

“I would argue that the uncertainty itself is creating harm to the City and County of San Francisco,” Herrera stated in an interview with the View. “There is certainly a necessity of some predictability when you’re trying to budget appropriately.”

In mid-March, Herrera released a public statement with District Attorney George Gascón and Public Defender Jeff Adachi in support of California Supreme Court Chief Justice Tani Cantil-Sakauye, who had written to U.S. Attorney General Jeff Sessions and Department of Homeland Security Secretary John F. Kelly to request that ICE agents refrain from “stalking” undocumented immigrants at California courthouses. “Enforcement policies that drive victims away from the courthouses – whether they be victims of crime or unfair labor practices – undermine the administration of justice,” warned Herrera’s, Gascón’s, and Adachi’s collective statement. “If witnesses are afraid to come to court and testify – for any side in a case – justice is not served and everyone loses.”

In late-March, Jeff Sessions pledged that the U.S. Department of Justice would no longer give grants to cities that flout 8 U.S.C. 1373. San Francisco currently receives $2 million annually from the Department. Herrera quickly filed a legal brief reiterating his claim that the City has never violated the aforementioned statute.

In a late-April statement issued after Judge William H. Orrick approved San Francisco’s motion for a preliminary injunction in the lawsuit against President Trump’s executive order, Herrera said, “Faced with the law, the Trump administration was forced to back down. This is why we have courts; to halt the overreach of a president and an attorney general who either don’t understand the Constitution or choose to ignore it.”

Herrera told the View that he’s “gotten involved in cases against the federal government previously” but that his defense of San Francisco’s sanctuary policies constitutes a “very, very unique case.” He admitted that he was “stunned” and “disappointed” when Trump won the presidential election, but wasted no time getting back to work.

“Considering what had been said on the campaign trail, with respect to a variety of issues, I was pretty confident that we would have to be prepared to act proactively once the President’s Administration took over,” he said, “and that’s why we were prepared as we were to take action out of the box. During that interim transition period, based on what had been said over the campaign, we were looking at different areas where we thought we’d have to be concerned and subject matters to look at to make sure that San Francisco’s interests were protected: public safety; education; healthcare; environmental and then, obviously, immigration issues.”

In early March, Herrera – representing San Francisco alongside 30 other cities and states – filed an amicus brief with the U.S. Supreme Court in support of transgender students’ rights, including their right to use restrooms that correspond to their gender identities.

“I think that this office has always been at the forefront of fighting for civil rights and LGBT rights, and to the extent that those fundamental rights are going to be threatened, we’ll make sure that we take a proactive role,” he affirmed. “The case where we filed an amicus brief was one such case in one such area. The rhetoric that’s coming out of Washington suggests that fundamental rights could be threatened. We’re going to make sure to do what we can to make sure that civil rights are protected, and to the extent that they get into other areas which impact San Francisco and Californians more generally, we’ll be at the forefront of those as well.”