Full opinion text
ORDER GRANTING THE COUNTY OF SANTA CLARA’S AND CITY AND COUNTY OF SAN FRANCISCO’S MOTIONS TO ENJOIN SECTION 9(a) OF EXECUTIVE ORDER 13768 William H. Orrick, United States District Judge INTRODUCTION This ease involves Executive Order 13768, “Enhancing Public Safety in the Interior of the United States,” which, in addition to outlining a number of immigration enforcement policies, purports to “[ejnsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law” and to establish a procedure whereby “sanctuary jurisdictions” shall be ineligible to receive federal grants. Executive Order 13768, 82 Fed. Reg. 8799 (Jan. 26, 2017) (the “Executive Order”). In two related actions, the County of Santa Clara and the City and County of San Francisco have challenged Section 9 of the Executive Order as facially unconstitutional and have brought motions for preliminary injunction seeking to enjoin its enforcement. See County of Santa Clara v. Trump, No. 17-cv-0574-WHO; City and County of San Francisco v. Trump, 17-cv-0485-WHO. The Counties challenge the enforcement provision of the Order, Section 9(a), on several grounds: first, it violates the separation of powers doctrine enshrined in the Constitution because it improperly seeks to wield congressional spending powers; second, it is so overbroad and coercive that even if the President had spending powers, the Order would clearly exceed them and violate the Tenth Amendment’s prohibition against commandeering local jurisdictions; third, it is so vague and standardless that it violates the Fifth Amendment’s Due Process Clause and is void for vagueness; and, finally, because it seeks to deprive local jurisdictions of congressionally allocated funds without any notice or opportunity to be heard, it violates the procedural due process requirements of the Fifth Amendment. The Government does not respond to the Counties’ constitutional challenges but argues that the Counties lack standing because the Executive Order did not change existing law and because the Counties have not been named “sanctuary jurisdictions” pursuant to the Order. It explained for the first time at oral argument that the Order is merely an exercise of the President’s “bully pulpit” to highlight a changed approach to immigration enforcement. Under this interpretation, Section 9(a) applies only to three federal grants in the Departments of Justice and Homeland Security’ that already have conditions requiring compliance with 8 U.S.C. 1373. This interpretation renders the Order toothless; the Government can already enforce these three grants by the terms of those grants and can enforce 8 U.S.C. 1373 to the ex-, tent legally possible under the terms of existing law. Counsel disavowed any right through the Order for the Government to affect any other part of the billions of dollars in federal funds the Counties, receive every year, It is heartening that the Government’s, lawyers recognize that the Order cannot do more constitutionally than enforce .existing law. But Section 9(a), by its plain language, attempts to reach all federal grants, not merely the three mentioned at the hearing. The rest of the Order is broader still, addressing all federal funding. And if there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments. The President has called it “a weapon” to use against jurisdictions that disagree with his preferred policies of immigration enforcement, and his press secretary has reiterated that the President intends to ensure that “counties and other institutions that remain sanctuary cites don’t get federal government 'funding in compliance with the executive order.” The Attorney General has warned that jurisdictions that" do not comply with Section 1373 would suffer “withholding grants, termination of grants, and disbarment or ineligibility for future grants,” and the “claw back” of any funds previously awarded. Section 9(a) is not reasonably' susceptible to the new, narrow interpretation offered at the hearing. Although the Government’s new interpretation of the Order is not legally plausible, in effect it appears to put the parties in general agreement regarding the Order’s constitutional limitations. The Constitution vests the spending powers in Congress, not' the President, so the Order cannot constitutionally place new conditions on federal füñ'ds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous’ and timely máde; that they bear some relation to the funds at issue; and that the total financial incentive not be coercive; Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement' strategy of which the President disapproves. To succeed in their motions, the Counties must show that they are likely to face immediate irreparable harm absent an injunction, that they are likely to succeed, on the merits, and that the balance "of harms and public interest weighs in their favor, The Counties have met this burden. They have demonstrated that they have standing, to challenge the Order and are .currently suffering irreparable harm, not only because the Order has caused and will cause them constitutional injuries by violating the separation of powers doctrine and depriving them of their Tenth and Fifth Amendment rights, but also because the Order has caused budget uncertainty by threatening to deprive the Counties of hundreds of millions of dollars in federal grants that support core services in their jurisdictions, They have established that they are likely to succeed on the merits of their claims and that the balance of harms and public interest decisively weigh in favor of an injunction. The Counties’ motions for preliminary injunction against Section 9(a) of the Executive Order are GRANTED as further described below, That said, this injunction does nothing more than implement the effect of the Government’s flawed interpretation of the Order. It does not affect the ability of the Attorney General or the Secretary to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does it impact the Secretary’s ability to develop regulations or other guidance defining what a sanctuary jurisdiction is or designating a jurisdiction as such. It does prohibit the Government from exercising Section 9(a) in'a way that violates the Constitution. BACKGROUND I. THE EXECUTIVE ORDER On January 25, 2017, President Donald J. Trump issued Executive Order 13768, “Enhancing Public Safety in the Interior of the United States.” See Harris Decl. ¶2; Ex. A (“EO”) (SC Dkt. No. 36-l). In outlining the Executive Order’s purpose, Section 1 reads, in part, “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.” EO § 1. Section 2 states that the policy of the executive branch is to “[e]n-sure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” EO § 2(c). Section 9, titled “Sanctuary Jurisdictions” lays out this policy in more detail. It reads: Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch-to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373. (a)In furtherance of this -policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. 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. (b) To better inform the public regarding th§ public safety threats associated with sanctuary jurisdictions, the Secretary shall utilize the Declined Detainer Outcome Report or its equivalent and, on a weekly basis, make public a comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor.any detain-ers with respect to such aliens. (c) The Director of the Office of Management and Budget is directed to obtain and provide relevant and responsive information on all Federal grant money .that currently is received by any sanctuary jurisdiction. EO § 9. Section 3 of the Order, titled “Definitions,” incorporates the definitions listed in 8 U.S.C. § 11Ó1. EO § 3* Section 1101 does not define “sanctuary jurisdiction.” The term is not defined anywhere in the Executive Order. Similarly, neither section 1101 nor the Order defines what it means for a jurisdiction to “willfully refuse to comply” with Section 1373 or for a policy to “prevent! ] or hinder! ] the enforcement of Federal law.” EO § 9(a). II. SECTION 1373 Section 1373, to which Section 9 refers, prohibits local governments from restricting government officials or entities from communicating immigration status information to ICE. It states in relevant part: (a) In General. Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional Authority of Government Entities. Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity. 8 U.S.C. 1373. In July, 2016, the U.S. Department of Justice issued guidance linking two federal grant programs, the State Criminal Alien Assistance Program (“SCAAP”) and Edward Byrne Memorial Justice Assistance Grant (“JAG”) to compliance with Section 1373. This guidance states that all applicants for these two grant programs are required to “assure and certify compliance with all. applicable federal statutes, including Section 1373, as well as all applicable federal regulations, policies, guidelines, and requirements.” Id. The Department has indicated that the Community Oriented Policing Services Grant (COPS) is also conditioned on compliance with Section 1373. III. CIVIL DETAINER REQUESTS An ICE civil detainer request asks a local law enforcement agency to continue to hold an inmate who is in local jail because of actual or suspected violations of state criminal laws for up to 48 hours after his or her scheduled release so that ICE can determine if it wants to take that individual into custody. See 8 C.F.R. § 287.7; Neusel Decl. ¶ 9; Marquez Deck, Ex. C at 3 (SC Dkt. No. 29-3). ICE civil detainer requests are voluntary and local governments are not required to honor them. See 8 C.F.R. § 287.7(a); Galarza v. Szalczyk, 745 F.3d 634, 643 (3d Cir. 2014) (“[Sjettled constitutional law clearly establishes that [immigration detainers] must be deemed requests” because any other interpretation would render them unconstitutional under the Tenth Amendment). Several courts have held that it is a violation of the Fourth Amendment for local jurisdictions to hold suspected or actual removable aliens subject to civil detainer requests because civil detainer requests are often not supported by an individualized determination of probable cause that a crime has been committed. See Morales v. Chadbourne, 793 F.3d 208, 215-217 (1st Cir. 2015); Miranda-Olivares v. Clackamas Cnty., No. 3:12-cv-02317-ST, 2014 WL 1414305, at *9-11 (D. Or. Apr. 11, 2014). ICE does not reimburse local jurisdictions for the cost of detaining individuals in response to a civil detainer request and does not indemnify local jurisdictions for potential liability they could face for related Fourth Amendment violations. See 8 G.F.R. § 287.7(e); Marquez Decl. ¶¶ 21-15 & Exs. B-D. IV. THE COUNTIES’ POLICIES A. Santa Clara’s Policies Santa Clara asserts that its local policies and practices with regard to federal immigration enforcement are at odds with the Executive Order’s provisions regarding Section 1873. SC Mot. at 5. (SC Dkt. No. 26). In 2010, the Santa Clara County Board of Supervisors adopted a Resolution prohibiting Santa Clara employees from using County resources to transmit any information to ICE that was collected in the course of providing critical services or benefits. Marquez Decl. ¶27 (SC Dkt. No. 29) & Ex. G (SC Dkt. No. 29-7); Neusel Decl. ¶ 7 (SC Dkt. No. 31); L. Smith Decl. ¶ 6 (SC Dkt. No. 35). The Resolution also prohibits employees from initiating an inquiry or enforcement action based solely on the individual’s actual or suspected immigration status, national origin, race or ethnicity, or English-speaking ability, or from using County resources to pursue an individual solely because of an actual or suspected violation of immigration law. Id. In October, 2016, after receiving DOJ guidance that JAG and SCAAP funds would be conditioned on compliance with Section 1373, Santa Clara decided not to participate in those programs. Marquez Decl. ¶29 & Ex. H (SC Dkt. No. 29-8). Santa Clara also asserts that its policies with regard to ICE civil detainer requests are inconsistent with the Executive Order and the President’s stated immigration enforcement agenda. Prior to late 2011, Santa Clara responded to and honored ICE civil detainer requests, housing an average of 135 additional inmates each day at a daily cost of approximately $159 per inmate. Neusel Decl. ¶ 4. When the County raised concerns about the costs associated with complying with detainer requests and potential civil liability, ICE confirmed that it would not reimburse the County or indemnify it for the associated costs and liabilities. Marquez Decl. ¶¶ 21-15 & Exs. B-D. Santa Clara subsequently convened a task force and adopted a new policy where the County agreed to honor requests for individuals with serious or violent felony convictions, but only if ICE would reimburse the County for the cost of holding those individuals. Neusel Decl. ¶6; Marquez Decl. ¶26 & Ex. E. ICE has never agreed to reimburse the County for any costs, so since November 2011 the County has declined to honor all ICE detainer requests. Id. B. San Francisco’s Policies San Francisco’s sanctuary city policies are contained in Chapters 12H and 121 of its Administrative Code. Eisenberg Decl. Exs. A-B (SF Dkt. No. 28). The stated purpose of these laws is “to foster respect and trust between law enforcement and residents, to protect limited local resources, to encourage cooperation between residents and City officials, including especially law enforcement and public health officers and employees, and to ensure community security, and due process for all.” S.F. Admin Code § 121.1. As relevant to Section 1373, Chapter 12H prohibits San Francisco departments, agencies, commissions, officers, and employees from using San Francisco funds or resources to assist in enforcing federal immigration law or gathering or disseminating information regarding an individual’s release status, or other confidential identifying information (which as defined does not include immigration status), unless such assistance is required by federal or state law. S.F. Admin Code §■ 12H.2.. Although Chapter 12H previously prohibited city employees from sharing information regarding individuals’ immigration status, the- San Francisco Board of Supervisors removed this restriction in July, 2016, due to concerns that the provision violated Section 1373. With regard to civil detainer requests, Chapter 121 prohibits San Francisco law enforcement from detaining an individual, otherwise eligible for release from custody, solely on the basis of a civil immigration detainer request. S.F. Admin Code § 121.3. It also prohibits local law enforcement from providing ICE with advanced notice that an individuar will be released from custody, unless the individual meets certain ' criteria. S.F. Admin Code § 121.3. Chapter 12I.3.(e) provides that a “[l]aw enforcement official shall not arrest or detain an individual, or provide any individual’s personal information to a federal immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil immigration document based solely on alleged violations of the civil provisions of immigration laws.” S.F. Admin Code § 12I.3.(e). San Francisco explains that it adopted these policies due- to concerns that holding people in response to civil detainers would violate the Fourth Amendment and require it to dedicate scarce law enforcement personnel and resources to holding these individuals. Hennessy Decl. ¶ 11 (SF Dkt. No. 24). V, THE COUNTIES’ FEDERAL FUNDING A. Santa Clara’s Federal Funding In the 2015-2016 fiscal year, Santa Clara received approximately $1.7 billion in federal and federally dependent funds, making up roughly 35% of the County’s total revenues. J. Smith Decl. ¶ 6; Marquez Decl. ¶ 8. This figure includes federal funds provided through entitlement programs. Most of the County’s federal funds are used to provide essential services to its residents. Marquez Decl. ¶¶ 5-8. In support of its motion, the County includes a number of declarations outlining how a loss of any substantial amount of federal funding would force it to make substantial cut backs to safety-net programs and essential servicies and would require it to lay off thousands of employees. It highlights that the County’s Valley Medical Center, the only public safety-net healthcare provider in the County, relies on $1 billion in federal funds' each year, which covers up to 70% of its total annual costs. Lorenz Decl. ¶¶ 3, 7 (SC Dkt. No. 28). A loss of all federal funds would shut down Valley Medical Center and cut off the only healthcare option for thousands of poor, elderly, and vulnerable people in the County. Id. ¶ 8. It further' highlights that Santa Clara’s Social ’ Services Agency, which provides various services to vulnerable residents, including child welfare and protection, aid to needy families, and support for disabled children, adults and the elderly, receives roughly 40% of its budget, $300 million, from federal funds. Menicocci Decl. ¶ 5 (SC Dkt. No, 30). The County’s Public Health Department receives 40% of its budget and $38 million in federal funds. And the County’s Office, of Emergency Services, whose job is. to prepare for and respond to disasters such as earthquakes and terrorism, receives more than two-thirds of its -budget from federal funds. Reed Decl. ¶¶ 3-20 (SC Dkt. No. 32). In the 2014-2015 fiscal year, the County received over $565 million in non-entitlement federal grants. See Marquez Decl. Ex. A at 11-12 (SC Dkt. No. 29-1) (showing $338 million in federal grants subject to OMB auditing requirements and an additional $227 million in federal grants through the Department of Housing and Urban Development). This $665 million represents -approximately 11% of the County’s budget. B. San Francisco’s Federal Funding San Francisco’s yearly budget is approximately $9.6 billion; it receives approximately $1.2 billion of this from the federal government. Rosenfield Decl. ¶ 9 (SF Dkt. No. 22). San Francisco uses these federal funds to provide vital services such as medical care, social services, and meals to vulnerable residents, to maintain and upgrade roads and public transportation, and to make needed seismic upgrades. White-house Decl. ¶ 16 (SF Dkt. No. 23). Losing all, or a substantial amount, of federal funds would have significant effects on core San Francisco programs: federal funds make up 100% of Medicare for San Francisco residents, Rosenfield Deck ¶ 29; 30% of the budget for San Francisco’s Department of Emergency Management, id. ¶¶ 25-27; 33% of the budget for San Francisco’s Human Services Agency, id. ¶¶ 13-18; and 40% of the budget for San Francisco’s Department of Public. Health, id. ¶¶ 19-24. Approximately 20% of these- federal funds, or $240 million, are from federal grants. Id. ¶29. San Francisco also receives $800 million each year in; federal multi-year grants, primarily for public infrastructure projects. Id. ¶ 11. San Francisco must adopt a - balanced budget for the fiscal year beginning July 1, 2017. Whitehouse Decl. ¶ 16. Under, local law, the Mayor must submit a balanced budget to the Board of Supervisors by June 1 and make fundamental budget decisions by May 15, including whether to create a budget reserve to account for the potential loss of significant funds. Id. ¶ 5-6, 8. Any money placed in the budget reserve would not be available to be used for other programs or services in the coming fiscal year. Id. ¶ 9. LEGAL STANDARD “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 20, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). This has been interpreted as a four-part conjunctive test, not a four-factor balancing test. However, the Ninth Circuit has held that a plaintiff may also obtain an injunction if he has demonstrated “serious questions going to the merits" that the balance of hardships “tips sharply” in his favor, that he is likely to suffer irreparable harm, and that an injunction is in the public interest. See Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-35 (9th Cir. 2011). DISCUSSION I. JUSTICIABILITY The Government argues that the Counties’ claims against the Executive Order are not justiciable because the Counties cannot establish an injury-in-fact, which is necessary to establish standing, and because their claims are not ripe for review. These principles of standing and ripeness go to whether this court has jurisdiction to hear the Counties’ claims. I conclude that the Counties have demonstrated Article III standing to challenge the Executive Order and that their claims are ripe for review. A. Standing Article III, section 2 of the Constitution limits the jurisdiction of the federal courts to “Cases” and “Controversies.” Massachusetts v. EPA, 549 U.S. 497, 516, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007); see U.S. Const, art. Ill, §, cl. 1. “Standing is an essential and unchanging part of the case-or-controversy requirement.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). To establish standing a plaintiff must demonstrate “that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favorable decision will redress that injury.” Massachusetts, 549 U.S. at 517, 127 S.Ct. 1438 (citing Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130). The Counties contend that they have standing to challenge the Executive Order because the Order threatens to defund, or otherwise bring enforcement action against, states and local jurisdictions that are “sanctuary jurisdictions.” Although the Order does not clearly define “sanctuary jurisdictions,” it directs the Attorney General and Secretary to ensure that jurisdictions that “willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants” and elsewhere equates jurisdictions that refuse to honor detainer requests with the term “sanctuary jurisdictions.” It further directs the Attorney General to bring “enforcement action” against jurisdictions with policies that “hinderf ] the enforcement of Federal law.” The Counties represent that they have “sanctuary policies” that are likely to subject them to enforcement or defunding under the Order. They assert that enforcement under the Order would result in injury-in-fact in the form of cuts to federal funds and whatever other penalty the Government seeks to impose through its “enforcement action.” As a result of this threat of major cuts to federal funding, the Order is also causing present injury-in-fact in the form of budget uncertainty. Alternatively, attempting to comply with the Order would also cause injury, as it would require them to change their local policies in ways that conflict with their local judgment on how best to ensure public safety and require them to commit substantial resources to assist in enforcing federal immigration laws. The Government raises two primary arguments against the Counties’ claims of standing. First, it asserts that the Counties cannot demonstrate injury-in-fact traceable to the Executive Order because the Order does not change the law in any way, but merely directs the Attorney General and Secretary to enforce existing law. Second, it argues that the Counties’ claims of injury are not sufficiently “concrete” or “imminent” because the Government has not designated either County as a “sanctuary jurisdiction” and has not withheld any federal funds. I will address these arguments in turn. 1. Whether the Executive Order Changes the Law The Government’s primary defense is that the Order does not change the law, but merely directs the Attorney General and Secretary to enforce existing law. In its briefing, the Government emphasized Section 9(a)’s provision that it will be implemented “to the extent consistent with law.” It argued that to the extent the Order directs the Attorney General and Secretary to newly condition federal funds on compliance with Section 1373, it could not lawfully do so and so it does not. It asserted, “If the grant language does not require compliance with Section 1373, the Executive Order does not purport to give the Secretary or Attorney General the unilateral authority to alter those terms.” SC Oppo. at 13. By this interpretation, Section 9 simply directs the Attorney General and Secretary to ensure that grants that are already conditioned on compliance with Section 1373 are not remitted to jurisdictions that fail to meet that requirement. At the hearing, the Government went further and explicitly disclaimed the ability under the Executive Order to add conditions to grants authorized by Congress or to enforce the Order against any but three grant programs, SCAAP, JAG and COPS. Government counsel urged me to adopt this narrow reading of the Order, arguing that well-established rules of construction require courts to adopt narrow readings when broader ones would read in constitutional problems. Where a construction of a statute “would raise serious constitutional problems, the Court will construe the statute to avoid such problems unless such construction is plainly contrary to the intent of Congress.” Edward J. DeBartolo Corp. v. Florida Gulf Coast Bldg. & Const. Trades Council, 485 U.S. 568, 575, 108 S.Ct. 1392, 99 L.Ed.2d 645 (1988). “[A]s between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.” Blodgett v. Holden, 275 U.S. 142, 148, 48 S.Ct. 105, 72 L.Ed. 206 (1927). The primary purpose of the doctrine is to “minimize disagreement between the branches by preserving congressional enactments that might otherwise founder on constitutional objections.” Almendarez-Torres v. U.S., 523 U.S. 224, 238, 118 S.Ct. 1219, 140 L.Ed.2d 350 (1998). “This canon is followed out of respect for Congress, which we assume legislates in the light of constitutional limitations.” Bust v. Sullivan, 500 U.S. 173, 191, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991). This canon of construction is limited; to adopt an alternate construction the statute must be “readily susceptible” to that construction. United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 409, 29 S.Ct. 527, 53 L.Ed. 836 (1909). It is not the job of the courts “to insert missing terms into the statute or adopt an interpretation precluded by [its] plain language.” Foti v. City of Menlo Park, 146 F.3d 629, 639 (9th Cir. 1998). As a preliminary matter, a narrow construction does not limit a plaintiffs’ standing to challenge a law that is subject to multiple interpretations. See Virginia v. American Booksellers Ass’n, Inc., 484 U.S. 383, 392, 108 S.Ct. 636, 98 L.Ed.2d 782 (1988) (noting that a plaintiffs standing may be based on its interpretation of the statute even when a narrower interpretation is offered). Therefore, the Government’s proposed narrow construction does not destroy justiciability. With regards to the merits of the Government’s construction, the Order is not readily susceptible to the Government’s narrow interpretation. Indeed, “[t]o read [the Order] as the Government desires requires rewriting, not just reinterpretation.” U.S. v. Stevens, 559 U.S. 460, 481, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010). While the Government urges that the Order “does not purport to give the Secretary or Attorney General the unilateral authority” to impose new conditions on federal grants, that is exactly what the Order purports to do. It directs the Attorney General and the Secretary to ensure that “sanctuary jurisdictions” are “not eligible to receive” federal grants. EO § 9(a)(emphasis added). Whether a jurisdiction is eligible to receive federal grants is determined by the conditions on those grants and the characteristics, acts, and choices of the jurisdiction. See BLACK’S LAW DICTIONARY 634 (10th ed. 2014) (defining “eligible” as “Fit and proper to be selected or to receive a benefit.”). Section 9(a)’s language directing the Attorney General and Secretary to ensure that jurisdictions that “willfully refuse to comply” with Section 1373 are “not eligible” for federal grants therefore purports to delegate to the Attorney General and the Secretary the authority to place a new condition on. federal grants, compliance with Section 1373, And as Government counsel agreed at the hearing, the power to place conditions on funds belongs exclusively to Congress. The Government attempts to read out all of Section 9(a)’s un'constitutional directives to render it an ominous, misleading, and ultimately toothless threat. It urges that Section 9(a) can be saved by reading the defunding provision narrowly and “consistent with, law,” so that all it does is direct the Attorney General and Secretary to enforce existing grant conditions. But this interpretation is in conflict with the Order’s express language and is plainly not what the Order says. The de-funding provision is entirely inconsistent with law in its stated purpose and directives because it instructs the Attorney General and the Secretary to do something that only Congress has the authority to do—place new conditions on federal funds. If Section 9(a) does not direct the Attorney General and Secretary to place new conditions on federal funds then it only authorizes them to do something they already have the power to do, enforce existing grant requirements. Effectively, the Gov-, ernment argues that Section 9(a) is “valid” and does not raise constitutional issues .as long as it does nothing at all. But a construction so narrow that it renders a legal action legally meaningless cannot possibly be reasonable and is clearly Inconsistent with the Order’s broad intent. • At the hearing, Government counsel argued that the Order applies only to grants issued by the Department of Justice and the Department of Homeland Security because it is directed only at the Attorney General and Secretary of Homeland Security. This reading is similarly implausible. Nothing in Section 9(a) limits the “Federal grants” affected to .those only given though the Departments of Justice, and Homeland Security, The Department of Justice is responsible for federal law enforcement throughout the country, not just within its own Department. So when the Attorney General is directed to “ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) áre not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary” and to “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,” it is not reasonable to interpret the directive as applying solely to law enforcement grants that the Attorney General and Secretary are specifically given authority to exempt from the Order. . Nor is counsel’s narrow interpretation supported by the rest of the Order. Two examples suffice. Section 9(c) instructs the Director of-the Office of Management and Budget “to obtain and provide relevant and responsive information on all Federal grant money that currently is received by any sanctuary jurisdiction.” This directive is not limited to grants issued by the Departments of Justice and Homeland Security. And Section 2(c) announces a policy to “ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” The Order’s structure and language make clear that a “sanctuary jurisdiction,” which the Secretary will eventually define, should change its policies or risk loss of all federal grants, and Section 9(a) provides the means to do so. The purpose of adopting a plausible valid construction over one that would result in constitutional issues is to save an Act that would otherwise fall on constitutional grounds. A construction so narrow that it reads out any legal force does not save the Act and obviates the entire purpose of adopting a narrow reading: At the hearing, Government counsel explained that the Order is an example of the President’s use of the bully 'pulpit and, even if read narrowly to have no legal effect, serves the purpose of highlighting the President’s focus on immigration enforcement. While the President is entitled to highlight his policy priorities, an Executive Order carries the force of law. Adopting the Government’s proposed reading would transform an Order that purports to create real legal obligations into a mere policy statement and would work to mislead individuals who are not able to conclude, by reading Section 9(a) itself, that it is fully self-cancelling and carries no legal weight. The Supreme Court has acknowledged that applying a narrow construction to an unconstitutionally overbroad statute does not address the confusion and potential deterrent effect caused by the language of the law itself. See, Erznoznik v. City of Jacksonville, 422 U.S. 205, 216, 95 S.Ct. 2268, 45 L.Ed.2d 125 (1975) (concluding, in a First Amendment case, that a narrow construction of an overbroad statute was likely inappropriate- because the "deterrent effect on legitimate expression is both real and substantial.”). As discussed below, the coercive effects of the Order’s broad language counsel against adopting a narrow construction that deprives it of any legal meaning. The- Government’s construction is not reasonable. It requires a complete rewriting of the Order’s language and does hot “save” any part of Section' 9(a)’s legal effect. There is no doubt that Section 9(a), as written, changes the law. 2. Pre-enforcement Standing The Counties argue- that they have standing to challenge the Executive Order because they have demonstrated a well-founded belief that the Order will be enforced against them. In turn, the Government argues that the Counties lack standing because the Government has not yet designated the Counties as “sanctuary jurisdictions” or withheld funds. Because the Counties have not yet suffered a loss of funds or other enforcement action - under the Executive Order, this case is analogous to the many cases addressing pre-enforcement standing.. These cases establish that a plaintiff may demonstrate pre-enforcement standing by showing “an intention to engage in a course of conduct arguably affected with a constitutional interest, but proscribed by a statute, and there exists a credible threat of prosecution thereunder.” Babbitt v. Farm Workers, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979); see Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 39 L.Ed.2d 505 (1974) (“[I]t is not necessary that petitioner first expose himself to actual arrest or prosecution to be entitled to challenge a statute, that he claims deters the exercise of his constitutional rights”); Susan B. Anthony List v. Driehaus, — U.S. -, 134 S.Ct. 2334, 2342, 189 L.Ed.2d 246 (2014) (plaintiffs can. demonstrate standing by alleging “a credible threat of enforcement”); American Booksellers, 484 U.S. at 392, 108 S.Ct. 636 (plaintiffs can establish standing by demonstrating a “well-founded fear that the law will be enforced against them.”). At the hearing, the Government suggested that pre-enforcement review is generally only available when there are criminal penalties or First Amendment issues at stake. While pre-enforcement cases often fall into these categories, pre-enforcement review is not so limited. In a pre-enforcement case, just like any other case, courts are limited by “the primary conception that federal judicial power is to be exercised.... only at the instance of one who is himself immediately harmed, or immediately threatened with harm, by the challenged action.” Poe v. Ullman, 367 U.S. 497, 504, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961). The Court has repeatedly recognized that “where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat—for example, the constitutionality of a law threatened to be enforced.” MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 129, 127 S.Ct. 764, 166 L.Ed.2d 604 (2007). "When a threatened injury has not yet been felt, “the question becomes whether any perceived threat to respondents is sufficiently real and immediate to show an existing controversy” O’Shea v. Littleton, 414 U.S. 488, 496, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), or whether it is merely “imaginary or speculative,” Younger v. Harris, 401 U.S. 37, 42, 91 S.Ct. 746, 27 L.Ed.2d 669 (1971). The pre-enforcement line of cases outlines a framework for answering this question in the context of threatened civil or criminal enforcement action. Just as Article III standing is not reserved for individuals who have suffered criminal penalties or First Amendment restrictions, pre-enforcement review is not reserved for such individuals. See e.g. Terrace v. Thompson, 263 U.S. 197, 214, 44 S.Ct. 15, 68 L.Ed. 255 (1923) (noting that a plaintiff has standing to enjoin a law when the government “threatens and is about to commence proceedings, either civil or criminal, to enforce such a law against parties affected”); Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 386, 47 S.Ct. 114, 71 L.Ed. 303 (1926) (holding that a landowner bringing Fourteenth Amendment claims and facing only civil penalties had pre-enforcement standing). Many of the pre-enforcement cases recognize that First Amendment challenges raise an additional consideration for standing purposes because a statute restricting First Amendment rights may cause harm without any enforcement by “chilling speech.” See American Booksellers, at 393, 108 S.Ct. 636 (“[T]he alleged danger of this statute is, in large measure, one of self-censorship; a harm that can be realized even without an actual prosecution.”). "While this “chilling” effect is particularly important in the First Amendment context, analogous concerns have been recognized in other situations. For example, that a threat of legal action may coerce individuals to abandon their legal rights is well recognized outside of First Amendment restrictions and was one of the driving factors behind the creation of the Declaratory Judgment Act. See MedImmune, 549 U.S. at 129, 127 S.Ct. 764 (“The dilemma posed by that coercion—putting the challenger to the choice between abandoning his rights or risking prosecution—is a dilemma that it was the very purpose of the Declaratory Judgment Act to ameliorate.”). And courts have recognized that, outside the First Amendment context, a law’s threat of enforcement may, on its own, cause present injury. See Village of Euclid, 272 U.S. at 386, 47 S.Ct. 114. In Village of Euclid, the Court considered whether a landowner had pre-enforcement standing to challenge a local zoning ordinance that it alleged had drastically reduced the market value of a particular piece of property by limiting its use and threatening to impose penalties for zoning violations. Id. at 384, 47 S.Ct. 114. Although the landowner had not faced any enforcement under the ordinance, the Court concluded the claims were justicia-ble because “injury is inflicted by the mere existence and threatened enforcement of the ordinance” as “prospective .buyer's ... are deterred from buying any part of this land.” Id. at 384-385, 47 S.Ct. 114. In sum, the pre-enforcement cases reveal that an individual facing enforcement action may establish standing by demonstrating a well-founded fear of enforcement and a threatened injury that is “sufficiently real and imminent.” O’Shea, 414 U.S. at 496, 94 S.Ct. 669. One may also establish standing by demonstrating that a well-founded fear of enforcement action is itself causing present injury. See American Booksellers, at 393, 108 S.Ct. 636; Village of Euclid, 272 U.S. at 385, 47 S.Ct. 114. As I discuss below, review of the Counties’ allegations demonstrates that they have a well-founded fear of enforcement under the Executive Order. They have further demonstrated that enforcement under the Order would deprive them of federal grants that they use to provide critical services to their residents and that the “mere existence and threatened enforcement” of the Order is causing them present injury in the form of budget uncertainty. They have demonstrated Article. Ill standing to challenge the Order. a. The Counties’ policies are proscribed by the language of the Executive Order Where it is not fully clear what conduct is proscribed by a statute, a well-founded fear of enforcement may be based in part on a plaintiffs reasonable interpretation of what conduct is proscribed. See American Booksellers, 484 U.S. at 392, 108 S.Ct. 636. This is true even if a narrower reading of the statute may be available. Id. at 397, 108 S.Ct. 636. In American Booksellers, the Supreme Court concluded that a group of booksellers had standing to challenge a Virginia law that made it unlawful for any person to “knowingly display for commercial purpose” visual or written material depicting sexual conduct “which is harmful to juveniles.” Id. at 386, 108 S.Ct. 636 (citing Va. Code § 18.2-391(a) (Supp. 1987)). The booksellers challenged the statute on First Amendment grounds and alleged that they had standing because they had identified 16 books that they intended to display and that they believed would be covered by the statute. Id. Even though the statute had not been made effective and the State had not identified specific materials that would be implicated by the statute, the Court concluded that this was sufficient to establish Article III standing because “the law is aimed directly at plaintiffs, who, if their interpretation of the statute is correct, will have to take significant and costly compliance measures or risk criminal prosecution.” Id. at 392, 108 S.Ct. 636, Further, while the government put forward a narrow construction of the law that would have made the burden to booksellers and the public “significantly less than that feared and asserted by plaintiffs,” the Court did not consider this construction in assessing the plaintiffs’ standing. Id. at 397, 108 S.Ct. 636. The Counties’ policies are likely to subject them to enforcement given their reasonable- interpretation of what conduct and policies the Order purports to proscribe. Section 9(a) of the Executive Order directs the Attorney General and the Secretary to “ensure” that “sanctuary jurisdictions” are “not eligible to receive Federal grants.” EO § 9(a). The Counties acknowledge that the Executive Order does not clearly define “sanctuary jurisdictions” but note that the Order’s' language indicates that a “sanctuary jurisdiction” is, at a minimum, any jurisdiction that “willfully refusefs] to comply with 8, U.S.C. 1373.” The Government has not clarified what it means to “willfully refuse to comply” with Section 1373, and indeed argues that the Counties lack standing because the , Attorney General and Secretary of Homeland Security have not yet figured that out. SC Oppo. at 11 (“[T]he Attorney General and the Secretary of Homeland Security must determine exactly what constitutes ‘willful refusal to comply with 8 U.S.C. § 1373’”). Despite this, on March 27, 2017,' Attorney General Sessions “urg[ed] states and local jurisdictions to comply with these federal laws, including 8 U.S.C. Section 1373” and confirmed that “failure to remedy violations could result in withholding grants, termination of grants, and disbarment or ineligibility for future grants.” See RJN-2, Ex. D (“Sessions Press Conference”) (SF Dkt. No. 61-4). The Attorney General also stated that this policy was “entirely consistent with the Department of Justice’s Office of Justice Program’s. guidance that was issued just last summer under the previous government.” Id. In the process of developing that guidance, the Inspector General of the Department of Justice, Michael Horowitz, prepared a memorandum entitled “Department of Justice Referral of Allegations of Potential Violations of 8 U.S.C. § 1373 by Grant Recipients.” See RJN-1, Ex. A (Dkt. No. 29-1). The memorandum studies the policies of -several jurisdictions and discusses whether they might violate' Section 1373. It supports a broad reading of Section 1373 and specifically notes that San Francisco’s policy prohibiting City employees from using “City funds or resources to assist in the enforcement of federal "immigration law or to gather or disseminate information regarding the immigration status of individuals ... unless such assistance is required by federal or State statute” could run afoul of Section 1373 unless San Francisco employees are aware that they are permitted to share immigration status information with ICE. Id. The memo further suggests that policies prohibiting civil detainer Requests, even if they do not explicitly restrict sharing of immigration status information, may nevertheless affect ICE’s interactions with local officials regarding immigration status requests and therefore raise Section 1373 concerns. Id. In addition to the potential that, under the Order, compliance with Section 1373 requires compliance with detainer .requests,-the Order may also directly require states and local governments to honor ICE detainer requests to avoid being designated “sanctuary jurisdictions.” While the de-funding, provision in Section 9(a) seems to define “sanctuary jurisdictions” as those that run afoul of Section 1373, Section 9(b) equates “sanctuary jurisdictions” with “any jurisdiction that ignored or otherwise failed to honor any detainers with respect to [aliens that have committed criminal actions].” This language raises the reasonable concern that a state or local government may be designated a sanctuary jurisdiction, and subject to defunding, if it fails to honor ICE detainer requests. This interpretation is supported by Section 9(a)’s broad grant of discretion to the Secretary to designate jurisdictions as “sanctuary jurisdictions.” While the Order states that the Secretary’s designation authority must be exercised “consistent with law,” with the exception of the Order there are no laws regarding “sanctuary jurisdiction” designations: Section 9 gives the' Secretary unlimited discretion. This reading is also supported by Section 9(a)’s directive to the Attorney General to take “appropriate enforcement action” against any jurisdiction that has a policy or practice that “hinders the enforcement. of federal law.” While the Order does not outline what policies “hinder[] the enforcement of -Federal law,” Attorney General Sessions recently suggested that a local policy that prohibits compliance with detainer requests would constitute a “policy, or practice that prevents or hinders the enforcement of Federal law.” See Sessions Press Conference at 2 (“Unfortunately, some states and cities have adopted policies designed to frustrate this enforcement of immigration laws! This includes refusing to detain known "felons on the federal de-tainer request, or otherwise failing to comply -with these laws”). Given Section 9(b)’s language equating “sanctuary jurisdictions” with jurisdictions that fail to honor detainer requests, the Secretary’s unlimited discretion in designating jurisdictions as “sanctuary jurisdictions,” and 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; the Order appears to proscribe states and local jurisdictions from adopting policies that refuse to honor detainer requests. Santa Clara’s policy, prohibiting local officials from using County funds to transmit information collected in the course of providing critical services or benefits, could be considered a restriction on the intergovernmental exchange of information regarding immigration status in violation of Section 1373. Similar to Santa Clara, San Francisco prohibits the use of City funds or resources “to assist in the enforcement of Federal immigration law.” S.F. Admin. Code § 12H.2. Although these policies do not directly prohibit communications with ICE, given the breadth of the Order and the statements of the Attorney General, the Counties have a well-founded fear that the Government may argue that they may sufficiently interfere with those communications in a way that violates Section 1373. Further, the Counties do not honor civil detainer requests. Under a .broad reading, these policies may be considered an improper restriction on the intergovernmental exchange of information in violation of Section 1373, falling within Section 9(b)’s language that jurisdictions that fail to hon- or detainer requests are “sanctuary jurisdictions.” In short, the Counties are likely to be designated “sanctuary jurisdictions” under their reasonable interpretation of the Executive Order. b. The Government has indicated an intent to enforce the Order generally and against the Counties more specifically In assessing whether enforcement action is likely, courts look to the past conduct of the, government, as well as the government’s statements and representations, to determine whether enforcement is likely or simply “chimerical.” See Steffel, 415 U.S. at 459, 94 S.Ct. 1209 (petitioner that had twice been warned to stop handbilling, and whose companion had been arrested, had' well-founded fear of enforcement); Poe, 367 U.S. at 508, 81 S.Ct. 1752 (1961) (“the fear of enforcement of provisions that have during so many years gone uniformly and without exception unenforced” was “chimerical”). A plaintiff does not need to have been specifically threatened with enforcement action to show that enforcement action is likely. See Susan B. Anthony List, 134 S.Ct. at 2345 (plaintiffs demonstrated credible threat of enforcement where the law had previously been enforced against them); American Booksellers, 484 U.S. at 393, 108 S.Ct. 636 (plaintiffs had credible threat of enforcement even though newly enacted law had not become effective and no enforcement action had been brought or threatened under it). However, “the threat of enforcement must at least be ‘credible,’ not simply ‘imaginary or speculative.’ ” Thomas v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1140 (9th Cir. 2000) (en banc) (citing Babbitt, 442 U.S. at 298, 99 S.Ct. 2301). Although the Government now takes the position that the Order carries no legal force, in its public statements and through its actions it has repeatedly indicated its intent to enforce the Order. The Executive Order was passed on January 27, 2017. Although the defunding provision has not yet been enforced against any jurisdiction, governmental leaders have made numerous statements reaffirming the Government’s intent to enforce the Order and to use the threat of withholding federal funds as a tool to coerce states and local jurisdictions to change their policies. On February 5, 2017, after signing the Executive Order, President Trump confirmed that he was willing and able to use “defunding” as a “weapon” so that sanctuary cities would change their policies. See Harris Deck Ex. B (Tr. of Feb. 5, 2017 Bill O’Reilly Interview with President Donald J. Trump) at 4 (SC Dkt. No. 36-2) (“I don’t want to defund anybody. I want to give them the money they need to properly operate as a city or a state. If they’re going to have sanctuary cities, we may have to do that. Certainly that would be a weapon.”). Sean Spicer, the White House press secretary, has confirmed that the Government intends to enforce the order, stating that the President intended to ensure that “counties and other institutions that remain sanctuary cities don’t get federal government funding in compliance with the executive order.” Harris Decl. Ex. C at 4-5 (SC Dkt. No. 36-3). In the same briefing, Spicer cited favorably the actions of Miami-Dade County Mayor Carlos Gim-énez who, one day after the Executive Order, instructed his Interim Director of Corrections to “honor all immigration de-tainer requests” “[i]n light of the Executive Order.” See RJN-1, Ex. C (SF Dkt. No. 29-3). Lauding Miami-Dade’s actions, Spicer noted that Miami-Dade “understand[s] the importance of this order” and encouraged other jurisdictions to follow its lead. Harris Deck Ex. C at 4-5. Attorney General Sessions recently reaffirmed the Government’s intent to enforce the defunding provisions, stating that if jurisdictions do not comply with Section 1373, such violations would result in “withholding grants, termination of grants, and disbarment or ineligibility for future grants,” and that the Government, would seek to “claw back any funds awarded to a jurisdiction that willfully violates 1378.” Sessions Press Conference at 2. When asked at a subsequent press briefing about this claw back process, Spicer confirmed that the Government’s “priority is clear, is to get cities into—into compliance and to make sure we understand there’s not just a financial impact of this, but also a very clear security aspect of this.” RJN-3, Ex. C at 15 (SF Dkt. No. 74-3). The statements of the President, his press secretary and the Attorney General belie the Government’s argument in the briefing that the Order does not change the law. They have repeatedly indicated an intent to defund sanctuary jurisdictions in compliance with the Executive Order. The Counties’ concerns that the Government will enforce the defunding provision are well supported by the Government’s public statements and actions, all of which are consistent with enforcing the Order. Finally, in addition to demonstrating that the Government is likely to enforce the Order, the Counties have demonstrated that the Government is particularly likely to target them and the funds on which they rely. In a February 5, 2017 interview, President Trump specifically threatened to defund California, stating: “I’m very much opposed to sanctuary cities. They breed crime. There’s a lot of problems. If we have to we’ll de-fund, we give tremendous amounts of money to California ... California in many ways is out of control.” See Harris Deck Ex. B. The Counties have established that they both receive large percentages of their federal funding through the State of California, and that they would suffer injury if California was “de-funded.” In a recent joint letter to Chief Justice Cantil-Sakauye of the California Supreme Court, Attorney General Sessions and Secretary Kelly again called out the State of California, as well as its cities and counties, for their sanctuary policies: “Some jurisdictions, including the State of California and many of its largest counties and cities, have enacted statutes and ordinances designed to specifically prohibit or hinder ICE from enforcing immigration law by prohibiting communication with ICE, and denying requests by ICE officers and agents to enter prisons and jails to make arrests.” RJN-3, Ex. A (SF Dkt. No. 74—l). ICE has identified California, Santa Glara County, and San Francisco as jurisdictions with policies that “Restrict Cooperation with ICE” and has identified Santa Clara County Main Jail and San Francisco County Jail as two of eleven-detention centers with the “highest volume of detainers issued” that “do not- comply with detainers on a routine basis.” RJN-3, Ex. B (SF Dkt. No. 74-2). The President and the Attornéy General have also repeatedly held up San Francisco specifically as an example of how sanctuary policies threaten public safety. In his statements to the press on March 27, 2017, Attorney General Sessions referenced the tragic death of Kate Steinle and noted that her killer “admitted the only reason he came to San Francisco was because it was a sanctuary city.” Sessions Press Conference át 1. In an óp-ed recent-' ly published in the San Francisco Chronicle, the Attorney General wrote that “Kathryn Steinle might be alive today if she' had not lived in a ‘sanctuary city’” and implored “San Francisco and other cities to re-evaluate these policies.” RJN-3, Ex. D (SF Dkt. No. 74-4). These statements indicate not only the belief that San Francisco is a “sanctuary jurisdiction” but that its policies are particularly dangerous and in need of change. They also reveal a choice by the Government to hold up San Francisco as an exemplar of a sanctuary jurisdiction. The Government argues that despite these public statements, San Francisco and Santa Clara cannot demonstrate a credible threat of enforcement because the Government has not actually threatened to enforce the Executive Order against them. It points to Thomas v. Anchorage Equal Rights Commission, in which the Ninth Circuit, sitting en banc, concluded that plaintiffs lacked standing to challenge an Alaska law prohibiting landlords from discriminating against tenants on the basis of their marital status. Thomas, 220 F.3d at 1137. In finding the case was non-justicia-ble, the court highlighted that “[n]o action has ever been brought against the landlords to enforce the marital status provision.” Id. at 1140. However, this was not the only fact informing the court’s analysis: it also noted that plaintiffs could not point to concrete facts showing that they had ever violated the law or were planning to violate it, it stressed that the enforcement agency tasked with enforcing the Alaska law had never heard of plaintiffs before the case was filed, and it emphasized that in 25-years on th