United States of America v. State of California et al

Filing 25

OPPOSITION by United States of America to 18 Motion to Transfer Venue. (Attachments: # 1 Exhibit A)(Press, Joshua)

PLAINTIFF’S
EXHIBIT A

Pages 1 - 47
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
Before The Honorable William H. Orrick, Judge
CITY AND COUNTY OF SAN
FRANCISCO,

)
)
)
Plaintiff,
)
)
VS.
)
)
JEFFERSON B. SESSIONS III,
)
Attorney General of the United )
States, et al.,
)
)
Defendants.
)
)
STATE OF CALIFORNIA, ex rel.
)
XAVIER BECERRA, Attorney
)
General of the State of
)
California,
)
)
Plaintiff,
)
)
VS.
)
)
JEFFERSON B. SESSIONS III,
)
Attorney General of the United )
States, et al.,
)
)
Defendants.
)
)

NO. C 17-04642 WHO

NO. C 17-04701 WHO

San Francisco, California
Wednesday, February 28, 2018

TRANSCRIPT OF PROCEEDINGS

Reported By:

Lydia Zinn, CSR No. 9223, FCRR, Official Reporter

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APPEARANCES:

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For Plaintiff City and County of San Francisco:
City and County of San Francisco
Office of the City Attorney
1390 Market Street, Sixth Floor
San Francisco, California 94102
[phone]
BY: SARA JENNIFER EISENBERG
MOLLIE M. LEE
AILEEN MARIE MCGRATH

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For Plaintiff State of California:
California Department of Justice
Office of the Attorney General
Bureau of Children's Justice
1515 Clay Street, Suite 2100
Oakland, CA
94612-1492
[phone]
[phone] (fax)
BY: SARAH ELIZABETH BELTON
LISA CATHERINE EHRLICH

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For Plaintiff State of California:
California Department of Justice
Office of the Attorney General
Civil Rights Enforcement Section
Bureau of Children's Justice
300 S. Spring Street
Los Angeles, CA 90013
[phone]
[phone] (fax)
BY: LEE ISAAC SHERMAN
For Defendants Jefferson Beauregard Sessions, III; Acting
Assistant AG Alan R. Hanson; United States Department of
Justice:
U.S. Department of Justice
Federal Programs Branch, Room 7210
Civil Division
20 Massachusetts Avenue, NW
Washington, D.C. 20530
[phone]
[phone] (fax)
BY: AUGUST E. FLENTJE
CHAD A. READLER
STEVEN J. SALTIEL

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Wednesday - February 28, 2018

2:00 p.m.

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P R O C E E D I N G S

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---000---

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THE CLERK:

We're calling the combined Cases 17-4642,

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City and County of San Francisco versus Sessions, et al., and

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17-4701, State of California versus Sessions, et al.

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Counsel, if you would please come forward and state your
appearance for the record.
THE COURT:

Let's start with the State.
Lisa Ehrlich, for the State of

MS. EHRLICH:
California.

Sarah Belton, for the State of

MS. BELTON:
California.
MR. SHERMAN:

Lee Sherman, for the State of

California.

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THE COURT:

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MS. MC GRATH:

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Here, to the podiums.

All right.

How about for the City?

Good afternoon, Your Honor.

Aileen McGrath, for the City and County of San Francisco.

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MS. EISENBERG:

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County of San Francisco.

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MS. LEE:

Mollie Lee, also for the City and County of

San Francisco.

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THE COURT:

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MR. READLER:

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Sara Eisenberg, for the City and

Welcome.
Good afternoon, Your Honor.

Chad Readler, on behalf the United States.

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PROCEEDINGS
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2

THE COURT:

Mr. Readler, welcome back to

San Francisco.

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MR. READLER:

Thank you.

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MR. FLENTJE:

August Flentje, on behalf of the

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United States.

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THE COURT:

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MR. SALTIEL:

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THE COURT:
All right.

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Welcome.

So let's start.

We'll do this one at a time.

And let's start with the State's motion.

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Good afternoon, Your Honor.

Steven Saltiel, from the U.S. Attorney's Office.

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10

Mr. Flentje, what a pleasure to see you.

MR. READLER:

So Mr. Readler.

Well, good afternoon again, Your Honor.

Chad Readler, on behalf of the United States.
For our presentation I'm happy to sort of talk about the

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joint issues together, so maybe we can save a little bit of

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time.

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aspects of the State and local laws that are at issue, but even

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there, there's quite a bit of overlap.

There are some differences when it gets to specific

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THE COURT:

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MR. READLER:

So I will --

But --

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if that makes sense.

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THE COURT:

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MR. READLER:

-- try to address the issues together,

That sounds great.
And there are two key substantive

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issues I'd like to address regarding -- in support of our

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motion to dismiss.

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PROCEEDINGS
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The first is that for a cooperative federal law

2

enforcement grant, certainly the United States is authorized to

3

require the sharing of information regarding criminal aliens

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that are being held by the grantees.

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claim regarding a lack of authorization should be dismissed.

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There's clear statutory authority for that.

7

And so we think that any

And, second, both the City and the State, based upon the

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face of their ordinances and State laws, appear to be not in

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compliance with 1373.

And so any claim that seeks a

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declaration that they are in compliance, we think, should be

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dismissed, as well.

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There are a couple of threshold ripeness issues that I

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think we can sort of dispense with right away.

14

State has cited a number of statutes that it's asked for

15

declaratory judgment on, and asked for a judgment on in this

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case.

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hearing -- the Values Act -- where the Government has contended

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that the State may not be in compliance with 1373.

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the Court should dismiss claims as to any other statute,

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because the Government's not contended that the State might not

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be in compliance with 1373.

One is that the

And there was only one, as we discussed at the last

So we think

22

Also, both the State and the City have suggested that

23

there should be a ruling that, on its face, there's facial

24

compliance with 1373 with respect to the local ordinance and

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the State law at issue.

And we think that's not the right

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PROCEEDINGS
1

test.

2

the plaintiffs are not in compliance on their face; but even if

3

the face of the ordinance suggests they might be, we also need

4

to look at the actual conduct, and how the policies are being

5

implemented and followed.

6

be a basis to sort of grant judgment on the facial issue.

7

It's certainly possible that the -- and we think that

So we also don't think there would

And, third, I just want to remind the Court there's still

8

an administrative process going on with respect to the 1373

9

compliance.

The Department has written to both of the

10

plaintiffs.

The plaintiffs have provided information.

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they're still in the process of, at the administrative level,

12

assessing whether there is compliance.

13

this case has really sort of gotten out in front of that

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administrative process, and that there is no final agency

15

determination yet on 1373 compliance.

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THE COURT:

And

So again, we think that

So with respect to the standing issues

17

and justiciability issues, what impact do you think I should

18

consider from the statements of the President last week,

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threatening to take ICE enforcement out of the State, or the

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Acting ICE Director's threat to prosecute criminally public

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officials whose view about Section 1373 differs from his?

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MR. READLER:

Well, I'm familiar with the statements.

23

I really don't think those have anything to do with the grants

24

that are at issue.

25

We're really talking about a narrow issue here, which is

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PROCEEDINGS
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one federal grant administered by the Department of Justice

2

that places conditions that the City -- City and State can

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voluntarily agree to, or they don't have to accept.

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think those are really sort of separate issues.

5

And I

But I would acknowledge that immigration issues have been

6

in the news a lot recently locally, nationally.

7

certainly been a lot of debate.

8
9

And there's

But I think it's worth keeping in mind that historically
the immigration system has really been built on cooperation

10

between the Federal Government and the State Government.

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that's true, I think, from the perspective of the Federal

12

Government, of every branch of Government.

13

And

Of course, the Congress puts in lots of schemes in lots of

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areas -- not just immigration; but health care, education --

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where it requires information sharing back and forth between

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the State and Federal Government to administer programs.

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the Congress has done that here with respect to immigration.

18

And

Perhaps the most significant area is with respect to the

19

holding of criminal aliens, where it allows aliens who are

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sentenced by a local government to serve their time before

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they're then turned over to the Federal Government to be

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removed.

And that's a cooperative procedure.

23

The Executive, of course, embraces the cooperative

24

aspects, too, because it's certainly less expensive for the

25

Federal Government to detain a criminal alien when they're

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PROCEEDINGS
1

released from prison, as opposed to having to find them out in

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the community.

3

And it's also much safer.

And I think the courts also have embraced the idea of a

4

cooperative immigration system, that the Court, of course, is

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very familiar with the Arizona decision from the Supreme Court.

6

And Justice Kennedy wrote that consultation between federal and

7

state officials is an important feature of the immigration

8

system.

9

And what we're talking about here is a cooperative

10

law-enforcement grant, where the Federal Government provides

11

money to the State and local governments for law-enforcement

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issues.

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what priority purposes it would like to include in those

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grants, and to place conditions on those grants.

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placed conditions regarding information sharing; information

16

sharing about criminal aliens held by the grantees.

17

And the Federal Government is authorized to determine

And it's

And we think that's both authorized by statute, and

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constitutional.

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which is the statutory authorization for the grant

20

conditions --

And I'd like to take that issue up first,

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THE COURT:

22

MR. READLER:

Okay.
-- in the Byrne JAG grant.

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In 2006 when the grant was created, the Congress

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authorized the Assistant Attorney General who oversees this

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grant program to do two things.

Authorized him or her to place

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PROCEEDINGS
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special conditions on these grants.

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dozens of conditions; 40 or 50 conditions on grants.

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And every year there are

And, second, the Assistant Attorney General is also able

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to determine the priority purposes for formula grants like the

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Byrne JAG grant.

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plaintiffs have not addressed much in their papers; but what

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the Congress said is that for a formula grant like this, the

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Assistant Attorney General still has the discretion to

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determine the priority purpose for that grant, and further that

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priority purpose by placing conditions, among other things, to

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encourage certain kind of behavior.

And that's a really key aspect that the

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For non-formula or discretionary grants, that's an

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inherent ability that the grant maker has, to use their

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discretion.

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grant, it also wants the grantors to have the ability to

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determine priority purposes each year, annually.

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And Congress said here that for this formula

So certainly these conditions are very consistent with the

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statutory authority granted by Congress.

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surprise that they would authorize the Attorney General and the

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Assistant Attorney General to utilize these types of

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conditions.

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Attorney General is the chief law-enforcement officer

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responsible for law enforcement around the country.

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Assistant Attorney General has the express duty to maintain

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liaison with local governments on law-enforcement issues.

And I think it's no

They're both Senate-confirmed officials.

The

And the

And

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PROCEEDINGS
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so certainly through these cooperative, information-sharing

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grant conditions, that's one way the Assistant Attorney General

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can honor that obligation.

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And I think it's worth noting that of the, you know,

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dozens of conditions that fall under these grants each year,

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many of those are about information sharing.

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common not only in the immigration area, but whether it's DNA

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evidence or certain purchases made by a grantee with money,

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there are a whole host of information-sharing conditions that

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go back and forth.

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So it's very

all.

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So in that sense, this is not unusual at

And these conditions, of course, further the Federal

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Government's interests in a lawful immigration system,

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specifically with respect to criminal aliens in custody by the

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grantees.

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Two problems with the plaintiffs' interpretation of this

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provision.

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Department to place these conditions, but there are two

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significant problems with their reading.

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what they say is when it says "special conditions and priority

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purposes," that's just superfluous language, because you

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actually have to find that power somewhere else in the statute,

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which doesn't make a lot of sense, because if that's the case,

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there's no reason to list these powers, to begin with, if you

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actually sort of have to find them somewhere else.

You know, they say this doesn't authorize the

The first is that

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PROCEEDINGS
1

And if that's also their view, then these are sort of

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meaningless powers, because they tell you that you actually

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have to look somewhere else for these authorizations, but they

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don't point to anywhere else in the statute where it authorizes

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the special-condition and priority-purpose power.

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made these terms both superfluous and meaningless in their

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reading of them.

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So they have

And so we think by far the better interpretation is to
give them their natural effect, and that they would authorize
conditions like those imposed on the Byrne JAG grant.
THE COURT:

So, Mr. Readler, don't you think -- or do

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you think that there is a bona fide dispute at the moment

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between the Federal Government, and the State and local

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jurisdictions, that is formed by the Government -- on the one

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hand, the Federal Government's undoubted powers with respect to

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immigration, and the states' and local jurisdictions'

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constitutional rights under the Tenth Amendment to have the

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police powers?

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Don't you think that the clash is going to be what the

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Federal Government actually interprets 1373 to be;

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specifically, what does "regarding" mean?

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MR. READLER:

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THE COURT:

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Sure.

And isn't that the entire guts of the

issue that we're going to have to deal with in this case?
And if that's the case, isn't this the wrong time to be

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PROCEEDINGS
1

dealing with that?

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the case with a record?

3

Shouldn't we be dealing with the merits of

MR. READLER:

Well, certainly at the

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motion-to-dismiss level, the Court is naturally limited in what

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it can do.

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The argument I gave was with respect to the authorization,

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particularly to the Notice and Access Conditions which the

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plaintiffs have challenged; and we think there's authority for

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those.

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There's also authority for the 1373 condition.

And the

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plaintiffs have not really challenged the authority to impose

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it, as opposed to -- I think they've made the arguments you

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suggest:

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A Tenth Amendment argument, and some other concerns.

With respect to the 1373 provision, as a matter of law the

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governing analysis here is the Spending Clause line of cases;

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not the Tenth Amendment line of cases.

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In other words, this is not direct regulation by the

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Federal Government.

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plaintiffs are able to enter into.

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then there are conditions they have to comply with, including

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1373.

22

This is a voluntary grant program that the
And if they opt to do that,

So the analysis here is really governed by the Dole case,

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and that line of cases.

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all the requirements of Dole.

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unconstitutional conduct.

And these conditions clearly satisfy
They're not requiring

PROCEEDINGS

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Certainly, whether we could directly force the City to

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give us information -- they can certainly agree to policies

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where they don't restrict information.

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This is not coercive in the sense that the dollar amount

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here is significant.

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significant that it would be anywhere near the sort of the

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coercion line.

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9

A few million dollars, but -- but not so

So I think -- and germaneness.

I think there's a natural

tie between law enforcement, criminal justice, criminal aliens

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being held by the City.

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met here, too.

12

are answered in that respect.

So the germaneness requirements are

So I think all of the constitutional questions

13

With respect to the Tenth Amendment analysis, to the

14

extent the Court takes that up, of course, the Second Circuit

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has already held that -- in the City of New York case, that

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1337 does satisfy any Tenth Amendment concern.

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18
19

THE COURT:

Not any Tenth Amendment concern,

Mr. Readler.
MR. READLER:

Well, certainly -- well, I suppose

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hypothetically there could be some interpretation of it; but

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certainly there are ways in which 1337 is interpreted that it

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would satisfy the Tenth Amendment.

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challenge, certainly there are applications of the statute that

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would apply.

25

And so if it is a facial

And the Northern District of Illinois, of course, also

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PROCEEDINGS
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revisited -- visited this issue, and upheld the application of

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1373.

3

So it's not an instance where the cities are being

4

compelled to perform background checks to help employ the

5

regulatory scheme, and are sort of a critical part, in terms of

6

affirmative obligations to go out and perform duties that would

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further the federal scheme.

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9
10

What they're doing voluntarily, because they agreed to the
condition, is to not restrict certain information.
And I'd be happy to talk about, then, our interpretation

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of 1373, and what we think it requires.

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bit of this in December.

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THE COURT:

We discussed a little

So -- and I think maybe one before --

Well, I'm happy to hear it.

I'm not sure

14

that it's going to be useful in the analysis on the motion to

15

dismiss; but I'm very interested in knowing what the Government

16

thinks with respect to the term "regarding"; how far the

17

definition is stretching; and whether the Department's sort of

18

come to ground on that.

19

MR. READLER:

Well, I think the Court is correct to

20

focus on the word "regarding," because in the plaintiffs'

21

papers they talk about immigration status, but that's not the

22

test.

23

obviously, a broader term.

24
25

The test is information regarding immigration status;

1373, in another place in Section C, uses the more narrow
phrase "immigration status"; but in the key provision here,

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1373(a), it talks about "information regarding," so beyond just

2

information that would be the course of immigration status.

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And in our view, what the Congress had in mind here was

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that the cities would not be foreclosed from providing

5

information to the Federal Government -- to DHS -- that lets it

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do its job.

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trying to get all kinds of information, but what they're trying

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to get is the core information they need to do their jobs.

9

They're not on a fishing expeditions where they're

And the two areas that we've identified -- very narrow,

10

but the two areas we've identified are, one, personal

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information, which would be name and address, primarily; and

12

also the release date when the individual's released from

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incarceration, so the Federal Government and DHS can detain

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those individuals and deport them, as appropriate.

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THE COURT:

So --

And so if I -- when I look at 1373, I can

16

just focus on those two things; and the Federal Government is

17

not asserting that 1373 requires anything else, besides those

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two pieces of information?

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MR. READLER:

In this case, no.

I'm not going to

20

foreclose us from some future opportunity.

21

statute at issue that we think might run afoul of 1373,

22

somebody would raise that to a locality that we think might be

23

in violation.

24
25

If there's a

But with respect to the California and San Francisco
statutes and ordinance at issue, the issues that we've

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PROCEEDINGS
1

identified -- and we've written to them in the administrative

2

process -- as violating 1373 are the personal information, and

3

the release date.

4

identified anything that they think "information regarding

5

immigration status" means, other than immigration status.

6

it obviously can't be that narrow.

7

And my friends on the other side have not

And

We've identified two things that we think naturally fall

8

within the definition.

9

briefly.

10

And I'm happy just to talk about those

Personal information helps DHS further the immigration

11

regulatory scheme in a couple of ways.

12

immigration status includes a residency requirement.

13

certain statuses -- and I think the B-2 nonimmigrant visitor

14

status is one -- you're required to have a permanent address

15

outside of the United States, because that's a temporary

16

visitation period in the country.

17

a permanent address in the United States, that could be

18

evidence that you've violated the status of your immigration;

19

of your permission to be in the country.

20

residence might qualify an alien as a nonresident visitor under

21

certain aspects of the immigration laws.

22

Sometimes your
So for

And if you have established

So your place of

Second, obviously, address is critical information for the

23

Federal Government to find a criminal alien.

24

already released from incarceration by a local or state

25

government, and they weren't detained at that time, then the

If they have been

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PROCEEDINGS
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address is obviously the best possible way for the Federal

2

Government to find those individuals.

3

address is critical to your immigration status, because if

4

you're removable, the Federal Government has an obligation to

5

do that.

6

you.

7
8

So in that sense, the

They obviously can only do that if they can locate

THE COURT:

That's enforcement -- that's not

status -- isn't it?

9

MR. READLER:

The definition of "status" includes

10

presence.

11

think, is bound up in the question of your immigration status.

12

And your presence is partially determined by the address that

13

you're staying at, and that you've disclosed to the Government.

14

So I think all of those issues are closely tied, in terms of

15

the immigration system, and appropriate notice, and execution

16

of the system by the United States.

17

And whether your presence is legal or illegal, I

And second is release dates.

And release dates, I think,

18

is a natural component of information regarding your

19

immigration status, for a couple of reasons.

20

One, historically, cities have shared that information.

21

And I think I mentioned this point when I was here last time;

22

but the City of New York case was not about -- was not about

23

the City not complying with disclosing information regarding

24

criminal aliens.

25

should disclose that information.

Their ordinance made it clear that the City

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PROCEEDINGS
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It was other information that they were not disclosing

2

that helped prompt 1373 and led to the litigation there; but

3

historically this information has been shared by localities.

4

This is more sort of a recent trend of some communities not

5

sharing that information; but the INA, I think, pretty clearly

6

contemplates that information would be shared, for a couple of

7

reasons.

8
9
10
11

One, it defines your immigration status of any individual
to include that an alien is not lawfully present in the
United States.
And certainly 1373 then covers information regarding

12

presence, as I said earlier.

13

removability is determined by -- partly determined by if you're

14

incarcerated, because, as we discussed a bit before and as I

15

mentioned earlier, it's a cooperative system, where oftentimes

16

the Federal Government will detain someone, but then will

17

voluntarily turn them over to a local government so that they

18

can further their prosecutorial interests and prosecute someone

19

if they've violated a local or state law.

20

And your presence and your

And the other part of that bargain is that when the

21

individual is released, that the federal would expects

22

notification, so that they can detain that person and deport

23

them, if appropriate, because they can't do -- under federal

24

law, they can't do it while they're incarcerated.

25

90-day removal period starts once they've been released.

And their

PROCEEDINGS
1

19

And the Ninth Circuit has addressed this issue in sort of

2

a related context, and has made the point that that 90-day

3

period starts immediately upon release or very soon thereafter.

4

So the release date is a critical component of the information

5

regarding immigration status, because your status is

6

significantly impacted by whether you're incarcerated or if

7

you've been released by the local government.

8

And so in that respect both -- and unless the Court wants

9

me to, I won't walk through all of the specific aspects of the

10

California and San Francisco law, but each of them have

11

components that restrict that kind of information, especially

12

with respect to San Francisco.

13

They also have a number of other requirements that suggest

14

that the City may be violating 1373, in that City employees are

15

not being properly instructed on what 1373 means; and they're

16

strongly encouraged, up to -- by reporting requirements and

17

other potential disciplinary actions that could be taken when

18

they don't follow their local law.

19

So we have the concern, which -- I think you're right --

20

we will develop more on the record, about whether City

21

employees are actually understanding the obligations under

22

1373, and how those work in conjunction with local

23

requirements.

24
25

But we do think the Court can dismiss aspects of the claim
regarding authorization for these -- for those conditions.

And

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PROCEEDINGS
1

we're happy to develop more of a record on whether the City and

2

State are complying with them at a future time.

3
4
5
6

THE COURT:

All right.

So let's start with the State.
MR. SHERMAN:

Sure.

Good afternoon.

Lee Sherman,

for the State of California.

7

THE COURT:

8

MR. SHERMAN:

9

Thank you.

Mr. Sherman.
This case is fundamentally about

defendants' attempt to legislate from the Executive Branch.

10

These are not conditions that were imposed by Congress.

11

here -- and in three different respects -- defendants have

12

attempted to insert their own immigration-enforcement

13

preferences into federal statute.

14

And

The first is that although the JAG authorizing statute

15

does not provide a basis for defendants to add

16

immigration-enforcement conditions, they seek to use a narrow

17

administrative statute to justify adding the Notification and

18

Access conditions -- what they call "special conditions" -- to

19

basically justify imposing any condition that they want.

20

Second, they seek to inject into the criminal justice

21

purpose area of JAG civil immigration enforcement, although

22

that has never been a contemplated purpose area for JAG.

23

And, third, they take 8 U.S.C. 1373, where Congress has

24

used precise terminology of "regarding immigration or

25

citizenship status," to transform it into a massive prohibition

21

PROCEEDINGS
1

against jurisdictions restricting exchange of any information

2

which touches upon their identity, which here Mr. Readler

3

described as "personal information."

4

Since this is a motion to dismiss, all the State has to do

5

is show that it has alleged facts to support a cognizable legal

6

theory.

7

The State's done much more than that.

In fact, two

8

Federal Courts have already determined that the Notification

9

and Access Conditions are likely to be unconstitutional, under

10

the separation of powers.

11

And with respect to the condition regarding compliance

12

with 1373, as you know, Your Honor, the Northern District Court

13

has already determined that defendants' interpretation of 1373

14

is too broad.

15

claims, and defendants' motion should be denied.

So the State therefore has alleged viable

16

Let me start off with the separation-of-powers argument.

17

There are four reasons why the conditions cannot be supported

18

by the JAG authorizing statute, taking aside for a moment this

19

special-condition statute the defendants rely on.

20

First, the text of the statute circumscribes what

21

conditions defendants may impose.

22

the formula grant sets out who gets the funds.

23

the confines of that formula, defendants can impose conditions

24

on what the grants can be used for.

25

set out in 34 U.S.C. 10153.

This is a formula grant, so
And then within

And those conditions are

And in that statute it sets out

22

PROCEEDINGS
1

that defendants can impose conditions to comply with

2

requirements of this part; programmatic and financial reporting

3

requirements, and the requirement to comply with applicable

4

law.

5

statute allows.

So that is what are the conditions that the authorizing

6

Second, the purpose of JAG --

7

And, by the way, those -- none of those conditions

8

contemplate a -- the Notification and Access Conditions, which

9

are not tied to the use of the funds.

They are tied on to --

10

imposed on all of the jurisdictions, regardless of how they use

11

the funds.

12

Second, the purpose of JAG is to provide more flexibility

13

to jurisdictions.

14

2006 when JAG was reorganized, Congress said that this was --

15

these grants are to provide jurisdictions so they don't have to

16

do a one-size-fits-all strategy to local law enforcement.

17

Throughout the legislative history -- in

And in fact, at the same time the legislative history

18

shows that in order to achieve more flexibility, when JAG was

19

reorganized, Congress repealed the only condition that had ever

20

existed in the decades' history of JAG that was related to

21

immigration enforcement, and that was a condition that required

22

the Chief Executive Officer of the State to provide certified

23

criminal records to the Federal Government.

24

So the fact that that condition was repealed -- the

25

defendants are seeking to revive that condition, and more --

23

PROCEEDINGS
1

suggests that they are acting contrary to congressional intent.

2

And, fourth, since the reorganization of JAG, Congress has

3

specifically and repeatedly rejected attempts to add

4

immigration enforcement to JAG.

5

requiring compliance with 1373 in JAG.

6

are acting at the lowest ebb of their power.

7

They've rejected conditions
So right now defendants

So that leads to this special-condition statute, 34 U.S.C.

8

10102.

9

conditions they want, so long as it complies with the Spending

Defendants read that statute as if they can impose any

10

Clause; but they are instead -- they are, in fact, using the

11

word "special," and imagining that "any" is in the statute.

12

And, in fact, they cite one case:

DKT Memorial Fund v.

13

Agency for International Development.

14

challenge to the President's authority to add conditions on

15

foreign assistance grants; but there Congress authorized the

16

President to furnish assistance on such terms and conditions as

17

he may determine, so that it gives very broad authority; while

18

here congress limited it to special conditions.

19

"special conditions" has to mean something.

And that case involved a

So that

20

So we do not -- defendants suggest that we say that

21

"special conditions" -- that the statute is superfluous.

22

That is not the argument which we are making.

What we are

23

saying, though, is that "special conditions" is a term of art.

24

At the same time that JAG was reorganized in 2006, USDOJ had a

25

regulation that identified special conditions:

28 C.F.R.

PROCEEDINGS
1

66.12.

2

24

pertaining to high-risk and low-performing grantees.

3

And that regulation identified special conditions as

So here you have a statute which is about USDOJ's ability

4

to impose conditions.

5

existence at the same time about USDOJ's ability to impose

6

conditions.

7

as each other -- as each other.

8
9

You have a regulation that was in

So those should be looked at in the same context

And the case that they cite, U.S. v. Yeats, supports that
view, because it says -- it warns that -- to avoid ascribing to

10

one word a meaning so broad that it is inconsistent with its

11

accompanying words.

12

So what that case instructs is to look at the terms in the

13

statute in the same -- and look at other statutes where that

14

term is used in the same context.

15

In addition, the special-conditions statutes cannot be

16

interpreted to mean -- give this broad authority, for two other

17

reasons; that it is an ancillary provision that is not found in

18

the -- in the JAG authorizing grant.

19

And in Whitman v. American Trucking Associations, the

20

Supreme Court has said that Congress does not hide elephants in

21

mouseholes.

22

statute as giving it untrammeled authority to add any

23

conditions would be doing just that.

24
25

And here, to interpret this special-condition

THE COURT:

Don't you agree, though, that the

threshold to add a condition is a pretty low bar for the

25

PROCEEDINGS
1

Department to get over?

2

And the relationship between immigration enforcement --

3

Well, there is a relationship between criminal law and

4

immigration throughout the INA.

5

INA.

6

when you have to comply with all applicable laws, that's one

7

that clearly applies?

So can't they get over that low bar, and say you just --

8
9
10

It's stated throughout the

MR. SHERMAN:

Right.

So that is a Spending Clause

argument.
So we're focusing on the separation of powers.

And the

11

State is not alleging or has not brought a cause of auction

12

with respect to the applicable laws language.

13

San Francisco will discuss that.

14

regarding that.

15
16
17
18

this -- this -THE COURT:

I don't have much trouble with the

Notification and Access Conditions.
MR. SHERMAN:

20

THE COURT:

22
23

There are good arguments

But focusing on the Notification and Access Condition,

19

21

And I know

You have no trouble with them?

I think those claims will survive the

motion to dismiss.
MR. SHERMAN:

Okay.

Sure, sure.

So then to shift the focus away from that, then, so going

24

to the Spending Clause -- and I would like to take our

25

arguments with respect to the Spending Clause and the APA

26

PROCEEDINGS
1

together, because there's a lot of overlap there.

2

And under the Spending Clause, the standard is that

3

there has to be a sufficient nexus between the purpose of the

4

federal interest in the grant, and the -- and condition at

5

issue.

6

INA.

7

purposes.

8
9

And again, this is not a grant that is found in the

This is a grant that is for local criminal-justice

So, like you pointed out last time, Your Honor, in the
Philadelphia case it talks about the relationship between

10

criminal justice and immigration enforcement.

11

in some instances a relationship between criminal justice and

12

immigration enforcement to determine whether certain

13

individuals -- their status has changed, there's not any

14

relationship between immigration enforcement and local criminal

15

justice.

16

While there are

In fact, the conditions the defendants are imposing here

17

seek to place requirements on State and local jurisdictions of

18

individuals that have no intersection with the criminal justice

19

system.

20

applies to every person in the United States; so that includes

21

in it people who have not been at all convicted or even

22

suspected of a criminal offense.

23

intersection between criminal justice and immigration

24

enforcement, in addition to which the definition for criminal

25

justice that is used talks about the apprehension of criminals.

The 1373 condition, as defendants have interpreted it,

So in that, there's no

27

PROCEEDINGS
1

And here defendants are seeking to impose this condition on

2

State and local jurisdictions that are for people who are just

3

even suspected of criminal offenses.

4

antithetical to our notion of criminal justice here in the

5

United States that people have a presumption of innocence; but

6

that is not what these conditions contemplate.

And that also is

7

So I hope that answers your question, Your Honor.

8

But -- so that's our Spending Clause argument.

9

With respect to the APA, first of all, this is a

10

straightforward case of final agency action under Bennett v.

11

Spear.

12
13

The standard is --

(Reporter requests clarification.)
MR. SHERMAN:

-- final agency action under Bennett v.

14

Spear, in which there is a consummation of the decision-making

15

process, and that rights and obligations flow from that.

16

And here you have -- they have imposed these conditions in

17

the solicitation.

18

to other jurisdictions.

19

that the State will receive a substantively identical

20

condition.

21

ability to receive these grant funds.

22

action here.

23

They've included these conditions in awards
And they've represented to this Court

So -- and because of that, that impacts the State's
So you have clear agency

And then under the arbitrary and capricious standard is

24

that a defendant's action has to do all three of these things.

25

It must -- sorry -- that it must not consider factors that

28

PROCEEDINGS
1

Congress did not intend.

2

consider -- it cannot fail to consider important aspects of the

3

problem.

4

that runs counter to the evidence before this -- before it.

5

And here, they failed to do all three.

It must -- it must -- it must

And it cannot offer an explanation for its decision

6

With respect to the first, for what we just discussed,

7

that Congress did not anticipate or contemplate that this grant

8

would include immigration-enforcement conditions, because it

9

repealed immigration-enforcement conditions.

It has never, in

10

the history -- in the decades-long history of this grant,

11

identified immigration enforcement as a purpose area of this

12

grant, and it has repeatedly rejected attempts to do that.

13

And with respect to the failure to consider important

14

aspects of the problem, the agency -- the State is not saying

15

that the defendants have to agree with the State that these

16

sorts of policies and laws are beneficial to the public safety;

17

but in the agency record it must show that they are

18

contemplated; that they considered this important aspect of the

19

problem.

20

documents in the agency record that shows that they considered

21

this to be -- as -- when they were imposing these conditions.

And so far, defendants have not identified any

22

So we should look at that record to see if they considered

23

this to be an aspect of the problem as of the time they imposed

24

these conditions.

25

survive a motion to dismiss.

And for that reason, alone, this should

29

PROCEEDINGS
1
2

THE COURT:

And what's the status today of the DOJ's

consideration of the State and the COPS grant?

3

MR. SHERMAN:

Sure.

So since the motion for

4

preliminary injunction, defendants and the State agreed that

5

the clock on states -- the State having to accept the COPS

6

grant would be stayed until a decision was reached on the

7

motion for preliminary injunction.

8

agreement on that.

9

So we were able to reach an

However, the State faces some very serious programmatic

10

concerns, which I've been informed by our Bureau of

11

Investigations in our office that if they are not able to draw

12

down on the funds soon, that they may have to remove the agents

13

that they've put towards this task force, which, again, has

14

seized $60 million of drugs over the past two years.

15

does really important public-safety work for the State.

16

one instance, they may have to terminate someone who -- an

17

employee.

18

soon, in April or May.

19
20
21

So it
And in

And they will have to be facing that decision rather

So that is a current -- so the State still cannot draw
down on the COPS funds, to answer your question.
THE COURT:

And -- but there's no sort of final

22

determination on what the Department's perspective is with

23

respect to the grant?

24
25

MR. SHERMAN:
compliance.

Everything's just in stasis?
So that's inquiry into the State's

And right now the defendants have -- defendants,

30

PROCEEDINGS
1

in their original letter to the State, said that if you

2

interpret 1373 or you interpret the Values Act as not allowing

3

the sharing of release dates or addresses, that they have

4

determined that this is a violation of 1373.

5
6

And the State responded that it does interpret the Values
Act as restricting sharing of information.

7

And then defendants responded to the Board of State and

8

Community Corrections, which is a State entity that gets JAG

9

funds, that they want more documents from the BSCC regarding

10

its practices.

The BSCC's not a law-enforcement agency.

11

So it made that production of documents last week.

12

didn't have many documents to produce; but we anticipate that

13

the Bureau of Investigations in the California Department of

14

Justice, which is the only entity -- the State entity that --

15

State law-enforcement entity that receives JAG funds -- will be

16

making a production of documents.

17

the same entity; that COPS grant is frozen right now.

18

THE COURT:

19

MR. SHERMAN:

20
21

It

And that, incidentally, is

Okay.
So that goes to the 1373 issues

regarding issues of standing and ripeness.
With respect to standing and the other statutes, as we

22

discussed in your motion for preliminary injunction, that even

23

before the Values Act, defendants had made statements about the

24

State's compliance with 1373.

25

all of that, but that has raised a credible fear that the State

And so I won't rehash through

31

PROCEEDINGS
1
2

would face enforcement under -- from that.
With respect to the Values Act, the defendants concede

3

that the State does have standing to challenge that.

4

concerns about ripeness, but ripeness and standing are often

5

looked at in the same vein.

6

State has to show is the constitutional standard for ripeness,

7

which is that there has -- that the State has articulated a

8

concrete plan to violate the statute at issue; that there's

9

been a threat of prosecution; and that there -- and that the

10
11

They have

And here, the State -- all the

defendants have sought to enforce the statute in the past.
And here we have all three.

As I just mentioned, the

12

State has articulated a plan to not comply with defendants'

13

interpretation of 1373 in its original response letter to

14

defendants.

15
16

Defendants have said that they will withhold funds as a
result of that.

17

And they have now enforced 1373 35 times against

18

jurisdictions all across the country, including us in

19

San Francisco, over the past several months.

20

meets the constitutional-standard test.

21

So this clearly

Prudential ripeness is something that -- the Supreme Court

22

has questioned its vitality; but the State meets that, too.

23

That's a question of balancing hardship and fitness.

24

the State has shown a hardness -- a hardship because of the

25

fact that its COPS grant has been frozen.

And here

It has to certify

32

PROCEEDINGS
1

under -- as defendants have represented before, under

2

defendants' interpretation of 1373, under penalty of perjury.

3

And that -- and if this goes through an administrative

4

process, the regulation governing that, 28 C.F.R. 18.5(i) --

5

that would allow defendants to suspend the State's JAG funds

6

for the -- for the duration of that.

7

So there is a hardship that January 24th letter only

8

illustrates, because now, although they have determined that

9

the State's law on its face does not comply with 1373, they are

10

prolonging this administrative process to indefinite length.

11

And I think we all know here that -- based on how we've

12

stated our positions, where this is going to turn out.

13

Ninth Circuit has found, under the firm prediction rule, that

14

the -- that having a firm prediction that a jurisdiction or

15

entity or person will apply for benefits, and that will be

16

denied to them -- that is enough to satisfy ripeness.

17
18

THE COURT:

All right.

And the

So would you take on the --

I understood Mr. Readler to tell me that I should not be

19

looking at this case with any sort of Tenth Amendment lens.

20

tell me what the State's position is with respect to that.

21
22
23

MR. SHERMAN:

Yeah.

So

We absolutely disagree with

that.
The defendants' -- if this was a matter of Congress adding

24

a grant condition, and then attaching, saying, Jurisdictions

25

must comply with not restricting assuring of immigration status

33

PROCEEDINGS
1

or citizenship status, that would be a different question.

2

That's not what we have here.

Defendants are relying on

3

the fact that 1373 is an independent statutory obligation, as

4

applicable law, as they refer to it.

5

defendants can do is ask the jurisdictions to comply with the

6

law; no more -- and nothing more than that.

7

So from there, all

So this should look -- so what we should be looking at is:

8

What does 1373 allow defendants to require State and local

9

jurisdictions, both on its plain test, and as the Constitution

10

allows?

11

And, in fact, if you look at their proposed conditions,

12

Condition 53 of the grant -- it refers to the definitions in

13

13.

14

they are referring to the independent statutory authority all

15

over -- all over the condition.

16

looking at; not the Spending Clause analysis with respect to

17

that -- the compliance piece.

18

It refers to immigration status, as defined in 1373.

So

So that is what you should be

And the State's -- and as we -- I'm happy to go through

19

again our argument for preliminary injunction, but the State's

20

position is that the Values Act complies with 1373 --

21

THE COURT:

22

MR. SHERMAN:

I see.
-- and -- and that -- because 1373

23

covers what is squarely immigration or citizenship status

24

information.

25

And the fact that "regarding" is in 1373(a) does not mean

PROCEEDINGS

34

1

that it encompassed all of these other pieces of information

2

that is not unmistakably clear on the face of the statute.

3

And, in fact, in numerous other cases within the same

4

legislative act that allowed -- that spawned 1373, Congress was

5

clear.

6

contained in there as any information relating to an immigrant,

7

which would have been the language that defendants would have

8

wanted them to put into 1373.

9

In 8 U.S.C. 1367 they refer to the information

And in 8 U.S.C. it says permitting immigration officers to

10

ask applicants, quote, "about any information regarding the

11

purposes and intentions of the applicant."

12

8 U.S.C. 1231 requires an immigrant to give information

13

about the alien's nationality, circumstances, habits,

14

associations, and activities, and other information the

15

Attorney General considers appropriate.

16

And 8 U.S.C. 1360(c)(2) requires the Social Security

17

Commissioner to provide information regarding the name and

18

address of the -- of the alien.

19
20
21

So these are Congress -- when Congress wants to be clear
about something, it is.
And the fact that it doesn't include immigration and

22

citizenship status is very telling.

23

information -- addresses, and immigration -- I'm sorry --

24

addresses and release dates is not -- is information that may

25

be useful for federal immigration authorities, that is not

And the fact that the

PROCEEDINGS

35

1

relevant to what is in 8 U.S.C. 1373, because the -- as -- the

2

Court in Steinle looked at this.

3

that the legislative -- what -- the legislative intent does not

4

matter; that what is important is looking at the plain text of

5

the statute.

6
7

And it looked at the fact

I'm sorry.

THE COURT:

No.

The word "regarding" means

something.

8

MR. SHERMAN:

9

THE COURT:

Sure.

And I don't know what it means, but

10

Mr. Readler has just defined it in a very narrow way, which I'm

11

sure will be more expansive as -- when it's necessary, but he's

12

only carrying it with respect to this lawsuit these two --

13

MR. SHERMAN:

14

THE COURT:

15

MR. SHERMAN:

Right.

-- relatively small issues.
Well, let me posit an alternative

16

definition of "regarding" -- is that "regarding" -- that in

17

18 -- in 8 U.S.C. 1373(c), "regarding" is about the information

18

that immigration authorities have; and presumably, that they

19

have definitive information about someone's immigration status.

20

And that's not information -- the State or local law

21

enforcement may have additional information, but they don't

22

have what is the official record of a person's immigration

23

status.

24
25

So there was no need in 8 U.S.C. 1373(c) to put the word
"regarding"; whereas in (a), it was necessary, because State

36

PROCEEDINGS
1

and local governments don't have the official record of a

2

person's immigration status, but it does allow them to have

3

information that it does have that would, on its face, show

4

immigration or citizenship status.

5

couple of instances.

And that could happen in a

6

First of all, the Federal Government does not have

7

information of every person that is in -- every person who's

8

currently in the United States in their databases.

9

it is conceivable, and it happens -- the State cites one case

So it is --

10

to it -- where State and local law enforcement may have

11

information about a person that's not in the hands of the

12

Federal Government.

13

And the information in the Federal Government's database

14

may not be correct.

15

that -- on that topic, but -- so it is not --

16

And there are other cases that are on

But the State's -- State's definition of "regarding

17

immigration or citizenship status" does not mean that the

18

provision is meaningless; that there is information that the

19

states and localities would have in its possession that could

20

be useful to federal immigration authorities.

21

THE COURT:

22

MR. SHERMAN:

23

Okay.
And then I do want to touch upon the

substance of the Tenth Amendment claim.

24

THE COURT:

25

MR. SHERMAN:

Okay.
This is information that --

37

PROCEEDINGS
1

And here Printz is most informative; that Printz governed

2

the information that was in the custody and control of law

3

enforcement, and only in the custody and control of law

4

enforcement.

5

So applied here to the Values Act -- that is what we're
This case is not like the City of New York.

6

dealing with here.

7

The City of New York was about an Executive Order that only

8

limited the sharing of information to immigration authorities.

9

Here, the information, both with respect to the

10

personal-information provision in the Values Act, and with

11

respect to the release dates information -- the information is

12

only being restricted to any immigration authority if the

13

information is not available to the public.

14

immigration authorities in the same manner as it would be

15

treating entities or individuals in similar-situated

16

circumstances.

17

So it's treating

And Reno -- and Reno, which I'm sure the defendants will

18

point to, does not cover this point, because that is a -- that

19

only applied to generally applicable statutes.

20

Well, here, this is a statute that's directed at the

21

State, that is saying that State and local jurisdictions have

22

to -- have to comply with this provision.

23

defendants have had such a broad reach of 1373, then that --

24

then that only exacerbates the Tenth Amendment problem that we

25

have here.

And because the

38

PROCEEDINGS
1

THE COURT:

2

MR. SHERMAN:

All right.

Great.

And one other thing, too, about release

3

dates is that, regarding connecting it to immigration-status

4

information, just because someone -- again, defendants say that

5

this is an important purpose, but just because someone is

6

released from custody does not make them more -- unlawfully

7

present in the United States.

8

"presence."

And they use this definition of

And that is not the right definition to use.

9

In 8 U.S.C. 1182, this is defined as unlawful presence;

10

and that is whether you're present outside the authorization

11

of -- that was granted by the Federal Government.

12

should be what we're looking at.

13

United States.

14

present -- is present in the United States, outside the

15

authorization period.

16

And addresses are also not relevant in that regard.

17
18
19
20

And that

Not present anywhere in the

The question is just whether the person is

And that does not go into release dates.

Thank you, Your Honor.
THE COURT:
All right.

Thank you, Mr. Sherman.

For the City.

MS. MC GRATH:

Good afternoon, Your Honor.

21

Aileen McGrath, for the City and County of San Francisco.

22

here with my colleague, Sara Eisenberg.

23

permission, Ms. Eisenberg and I would like to divide the City's

24

argument time.

25

amount to add to what Mr. Sherman has already said.

I'm

And, with the Court's

I don't think either of us has an enormous
I plan to

PROCEEDINGS

39

1

address the separation of powers statutory authorization issues

2

about all three conditions.

3

questions the Court has about the City's claim for declaratory

4

relief.

5

THE COURT:

6

MS. MC GRATH:

And Ms. Eisenberg will discuss any

All right.
The only thing I would like to add to

7

what Mr. Sherman has already said concerns a small area where

8

the City and the State differ somewhat, and it relates to an

9

earlier point that Mr. Readler made about the claims that are

10

at issue in this case.

11

Government lacks the statutory authority to impose all three of

12

these conditions, including the Section 1373 condition.

The City does contend that the Federal

13

The only source of authority that the Federal Government

14

invoked in their motion to dismiss was 34 U.S.C. 10102(a)(6),

15

the same special-conditions priority-purposes language that

16

we've already been discussing.

17

point we will need to discuss other potential sources of

18

statutory authority, but for purposes of this motion that's the

19

only statute that's at issue.

It may be that at some future

20

I don't have anything to add to Mr. Sherman's description

21

of why that statute doesn't provide the Federal Government the

22

authority that it needs, and certainly why it doesn't provide a

23

basis for dismissing the City's claims here.

24
25

Other than that, I'm happy to answer any questions that
the Court might have.

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THE COURT:

2

MS. MC GRATH:

3

MS. EISENBERG:

4

I don't think I need any.

Thank you.

Thank you, Your Honor.
Good afternoon, Your Honor.

I think I can be as brief as my colleague.

5

THE COURT:

6

MS. EISENBERG:

Excellent.
I think there seems to be very little

7

question that there is a live controversy over whether or not

8

San Francisco complies with Section 1373, as Your Honor

9

indicated before.

10

regard, I'm happy to leave that be.

11
12

THE COURT:

That seems quite obvious to me,

Ms. Eisenberg.

13
14

Unless you have questions for us in that

MS. EISENBERG:

Okay.

Thank you.

And similarly, this is a motion to dismiss.

There have

15

been some comments today and in the briefs that we haven't

16

established our right to a judgment on our compliance with

17

1373, but we're not here on a motion for summary judgment.

18

It's a motion to dismiss.

19

little disagreement even from defendants at this point that

20

dismissal is not the appropriate result on this claim at this

21

time.

22

And there seems to actually be very

So although I have a page of notes prepared to talk to you

23

about the proper interpretation of "regarding immigration

24

status," I'm happy to save that for another day, unless

25

Your Honor has specific questions.

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2

THE COURT:

No.

I do think there will another day

when we come to the merits.

3

MS. EISENBERG:

4

THE COURT:

5

MS. EISENBERG:

6

THE COURT:

7

MR. READLER:

I welcome that day.

Thank you.
Thank you, Your Honor.

Mr. Readler.
Just a couple of points.

First of all,

8

on the ripeness question, I think my friend from California

9

confirmed that the administrative process is not yet complete.

10

And that's one of the reasons why we say this dispute is

11

actually not ripe.

12

still negotiations going on with respect to that issue.

13

agree, and we would dismiss the case on that ground.

14
15
16

And I think he confirmed that there are
So we

But we'd also, again, dismiss the authorization claims;
that we weren't authorized to administer these conditions.
And I know the Court suggested that maybe it doesn't agree

17

with our position, but one thing I'd certainly like to

18

highlight.

19

talking about the priority-purpose aspect of the Government's

20

powers to impose restrictions and limitations on grants to

21

identify a priority purpose, which they did -- immigration --

22

and impose those.

23
24
25

In my presentation I spent a fair amount of time

And my friend said nothing about that provision this
morning.

I don't think they have an answer to that aspect.

We heard a lot about the special conditions, which we

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PROCEEDINGS
1

agree about; but these are justified also by the

2

priority-purpose language.

3

With respect to the conditions, just a couple of

4

additional points.

5

justice grant, and so that somehow would preclude the

6

restrictions at issue here; but 34 U.S.C. 10251 defines

7

"criminal justice" to include activities of corrections.

8

what these conditions go directly to is the activities of

9

correctional facilities by the grantees, and whether they're

My friend said that this is a criminal

10

sharing information about their inmates.

11

And

covered by statute.

12

So it's clearly

My friends invoked the reg. that the DOJ has issued about

13

high-risk grantees.

14

addresses conditions that can be imposed on high-risk grantees;

15

but there's nothing in the statute that suggests that Congress

16

meant that the Assistant Attorney General was limited by that

17

reg.

18

say that the AG has the power to follow the reg.

19

does.

20

said "special conditions."

21

And it is true that there's a reg. that

In fact, it would be sort of odd for the Congress to even
Of course, it

So the Congress obviously meant something else when it

And I just want to point out again that there are dozens

22

and dozens of conditions imposed every year.

23

don't come from statute.

24

Orders.

25

Many of those

They come from places like Executive

President Obama signed an Executive Order regarding

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PROCEEDINGS
1

prohibited and controlled expenditures.

2

President Obama's Executive Order prohibited the use of federal

3

dollars to purchase military-style equipment.

4

condition was included in the Byrne JAG grant in prior years.

5

Again, that's a condition that comes straight from the

6

Executive Branch, we think, appropriate with the authority

7

granted to the Department to impose; but their argument would

8

knock out that condition and a whole host of other conditions,

9

including some conditions about body armor which -- the

For example,

And so that

10

Department had included the conditions regarding body-armor

11

standards if you buy body armor, and a requirement that you

12

wear it if you purchase it.

13

They started doing that in 2012.

And in 2016, Congress actually included those conditions,

14

itself.

15

mandatory, rather than leaving it to the discretion of the

16

Department, which just confirms that they were obviously -- had

17

no problem with the Department doing it, and wanted to make it

18

actually a formal requirement rather than a discretionary one.

19

So there's no doubt that the Department has broad authority

20

here, and these conditions are clearly authorized.

21

part of the case should be dismissed.

22

So it liked the idea so much that it made it

And that

I just want to address my friend's point from

23

San Francisco.

24

every single case -- that 1373 is an applicable law.

25

law that applies to cities and states.

We certainly do think -- and we contested in
It's a

And it's certainly a

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law that would then be applicable to a grant to cities and

2

states.

3

And if we didn't mention it, it's only because they did

4

not expressly argue in their motion that the condition was not

5

justified.

6

with it, but we did not read their motion to suggest that we

7

didn't have the authority to impose the 1373.

8

we obviously contest that.

9

host of cases.

10

They certainly argued that they think they comply

So if they do,

And we've contested that in a whole

And I'll just close with a couple of points about 1373

11

compliance.

12

presentation was that "information regarding" must mean more

13

than just immigration status.

14

One of the main points I made during my

And my friends from California said they at first didn't

15

agree; but I think they then did agree, and said this covers

16

information that the grantees may have that the Federal

17

Government doesn't have.

18

about.

19

Government might not have --

And that's exactly what we're talking

We're talking about the address, which the Federal

20

THE COURT:

21

MR. READLER:

22

THE COURT:

Regarding status, I mean, the whole --- and release date.

The whole issue is going to boil down, it

23

seems to me, here, on the difference between what "regarding

24

status" and "regarding enforcement" is, and how far you take

25

the definition of what "regarding status" is, because there is

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PROCEEDINGS
1

a point at 1373 where it runs directly, it seems to me, into

2

the Tenth Amendment.

3

forward to sorting out --

And so that's part of what I'm looking

4

MR. READLER:

5

THE COURT:

6

9

-- with the parties on a motion for

summary judgment.

7
8

Sure.

MR. READLER:

Right.

A couple of thoughts.

First of all, it has to be more than just immigration
status.

And I think, as proven this morning, it's difficult

10

for my friends on the other side to tell you what they think it

11

means.

12

articulated exactly what this we think it means.

And it obviously means more than that.

13

THE COURT:

14

MR. READLER:

15
16
17

Those two things?
Yes.

And there's no Tenth Amendment

problem here, for a couple of reasons.
(Reporter requests clarification.)
MR. READLER:

Yes.

There's no Tenth Amendment

18

problem here, for a couple of reasons.

19

this is a grant that they're entering into.

20

compelled to do that.

21

And we have

One is that, again,
They're not

This is not directly regulation.

And, two, this is not compelling conduct.

This is a

22

prohibition on barring information sharing.

23

information sharing is done throughout the Government.

24

Second Circuit already recognized that information sharing

25

doesn't run into Tenth Amendment problems.

And again,
And the

So I think those --

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PROCEEDINGS
1
2

those issues are answered.
And I'll just close.

With respect to the Tenth Amendment,

3

we cited the Richardson case in our papers from the

4

Ninth Circuit.

5

grants regarding SORNA; that the State must share sex-offender

6

information with the Government, or they risk losing 10 percent

7

of their grant funds.

8

there, That didn't create a Tenth Amendment problem, because

9

it's part of a grant; and if they don't want to share the

10
11
12
13

That was a case that addressed a limitation on

And the Ninth Circuit said expressly

information, they just don't accept the grant.
So we appreciate Your Honor's time, and we look forward to
our next opportunity.
THE COURT:

14

Mr. Readler.

15

Well, I'm looking forward to it, as well,

least, half of them.

And you always bring a fine team with you; at

16

MR. READLER:

17

THE COURT:

Happy to be here today.

Thank you.

So what I want to do is I'll get an Order

18

out pretty quickly.

19

I'd decided to hold on to the preliminary injunction until I

20

heard this argument; but what I will do is set and what I will

21

do is a case-management conference on March 27th.

22

And I'll get an Order -- I've got the --

And between now and then, I would like the parties to

23

discuss what discovery they need to complete a record in this

24

case, and what a good briefing schedule then would be for what

25

I assume will be cross-motions for summary judgment.

And the

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time frame that I'm thinking about for hearing there is in the

2

sort of six-months-from-now range.

3

That may be too fast.

4

can tell me on March 27th.

5

status statement on the 20th.

6

schedule is, then we don't need to have the case-management

7

conference, unless somebody has an issue that they want to

8

raise with me.

9

Order out promptly.

10

All right.

You

I'll ask you to give me a joint
If you've agreed on what the

And we'll proceed that way.

And I'll get an

Good to see you all.

11

MR. SHERMAN:

12

MS. BELTON:

13

It may be too long from now.

Thank you, Your Honor.
Thank you, Your Honor.

(At 3:08 p.m. the proceedings were adjourned.)

14

I certify that the foregoing is a correct transcript from the

15

record of proceedings in the above-entitled matter.

16
17
18
19
20
21
22
23
24
25

Signature of Court Reporter/Transcriber
Lydia Zinn

March 2, 2018
Date