A federal appeals court on Wednesday scrutinized whether President Donald Trump's executive order to withhold funding from so-called "sanctuary cities" threatened hundreds of millions of dollars in federal funding to two California counties or potentially less than a million dollars as the administration claims.
Ninth U.S. Circuit Court of Appeals Chief Judge Sidney Thomas asked what the court was to make of statements by Trump and his administration that the president wants to withhold money from sanctuary cities. Thomas and two other appellate judges — Ronald Gould and Ferdinand Fernandez — will decide whether a lower court judge was right to permanently block the executive order. They did not immediately rule.
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Thomas also questioned whether the order would be constitutional if it applied to all types of funding as a lower court judge found.
U.S. Department of Justice attorney Chad Readler said the order was much narrower, noting that it referred specifically to the DOJ and U.S. Department of Homeland Security and not to other cabinet agencies that oversee transportation, Medicaid, or other funds. Readler has previously said the order applied to only three Justice Department and Homeland Security grants that would affect less than $1 million for Santa Clara and possibly no money for San Francisco — the two counties that sued to block it.
He said the judges should not focus on comments by the president or other administration officials.
"The order has to be judged by its terms and not by public statements," he said.
U.S. District Court Judge William Orrick said in November the order threatened all federal funding and the president did not have the authority to attach new conditions to spending approved by Congress.
He cited comments by Trump and Attorney General Jeff Sessions as evidence of the order's scope and said the president himself had called it a "weapon" to use against recalcitrant cities.
Danielle Goldstein, an attorney for Santa Clara County, also referenced the president's use of the term "weapon" at Wednesday's hearing, saying he was very clear that the order was a "weapon to end sanctuary jurisdictions."
"This executive order claims powers that the president doesn't have in an unconstitutional effort to coerce cities into changing their sanctuary policies," Christine Van Aken, an attorney with the San Francisco City Attorney's Office, said.
The DOJ also says Orrick should have limited his injunction to Santa Clara and San Francisco instead of applying it nationwide.
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Gould asked Van Aken why San Francisco needed a nationwide injunction.
Van Aken said the city at a minimum needed an injunction that applied to California, but she said the order affected the entire nation.
The executive order is part of a push by the administration to crack down on "sanctuary jurisdictions" — a loosely defined term for places that don't comply with immigration authorities. The administration has sued California over three laws aimed at protecting immigrants in the country illegally. It has also moved to block a key public safety grant from sanctuary cities and states.
The Trump administration says sanctuary jurisdictions allow dangerous criminals back on the street. San Francisco and other so-called sanctuary cities say turning local police into immigration officers erodes the trust needed to get people to report crime.
