Did Trump administration concede a key sanctuary city point?

The Justice Department wants a federal judge to drop or amend an injunction against President Trump’s sanctuary city executive order, and Attorney General Jeff Sessions has made a key change to lessen the policy’s potential impact on states, counties and cities.

On Monday night, the Justice Department filed paperwork with the Northern District of California federal court after Sessions released a memo changing the Trump administration’s definition of a “sanctuary jurisdiction” to exclude counties and towns that don’t honor detainer requests.

Immigration detainer requests are issued by federal Immigration and Customs Enforcement (or ICE) officials, asking local law enforcement officials to hold suspected illegal immigrants in custody for up to 48 additional hours if they already are arrested or detained related to a criminal act. The requests themselves are legally voluntary on the part of local law enforcement and Department of Homeland Security policy directives repeatedly phrase detainers as requests made to local law enforcement.

The original January 25, 2017 executive order allowed the Secretary of Homeland Security to identify sanctuary jurisdictions and to work with the Attorney General to block “federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary” to sanctuary jurisdictions. The city of San Francisco sued the Trump administration soon after the order was issued, arguing among other things that the order sought to block all federal funds to sanctuary jurisdictions that didn’t honor ICE detainer requests.

The Justice Department countered that the grant restrictions in the executive order only directly pertained to jurisdictions that withheld information requests made by federal officials about illegal immigrants under part of a federal law called section 1373 – and not to local officials who refused to hold suspects in detention.

On April 25, U.S. District Judge William H. Orrick ruled in the case that only Congress, not the president or other Executive Branch officials, can impose new conditions on how federal money is handed out in grants. Orrick then imposed a national injunction against the order.

In his 49-page decision, Orrick also said the order’s wording and the Trump administration’s public comments convinced him that the order was intended to allow the federal government to withhold all funds from jurisdictions that didn’t honor detainers.

Specifically, Orrick cited Section 9(a) of the executive order, which reads in part that “the Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of federal law.” Orrick cited a Sessions press conference where the Attorney General said that one example of frustrating federal law enforcement was “refusing to detain known felons on the federal detainer request.”

“The Order’s instruction that the Attorney General shall take ‘enforcement action’ against jurisdictions that hinder the enforcement of federal law, which the Attorney General has indicated includes, at a minimum, failure to honor detainer requests ... appears to proscribe states and local jurisdictions from adopting policies that refuse to honor detainer requests,” Orrick concluded.

A request filed by the Justice Department with Orrick’s court on Monday night cites Session’s memo from earlier in the day as reason to reconsider his injunction. The new Sessions memo restricts withholding of funds to “federal grants administered by the Department of Justice or the Department of Homeland Security” directly related to section 1373 violations, the request argues.

“The AG Memorandum resolves the Court’s Tenth Amendment concerns by making clear that the grant-eligibility provision does not attempt to require retroactively that local jurisdictions comply with federal civil detainer requests,” it says.

For now, it is up to Judge Orrick to rethink the temporary injunction. The Court’s website shows a hearing scheduled on July 2 to consider the government’s motions to dismiss.

Scott Bomboy is the editor in chief of the National Constitution Center.