Executive orders on sanctuary cities have tried, twice in less than a decade, to cut off federal grant money to local governments that decline to help enforce federal immigration law. The first attempt, Executive Order 13768 in January 2017, was blocked in federal court and later revoked. A new set of orders signed in January and April 2025 revived the same strategy and drew the same result: preliminary injunctions from federal judges applying the same constitutional principles that sank the 2017 order. As of early 2026, the core funding provisions of the 2025 orders remain blocked, and the underlying legal problem has not changed.
What the Orders Try to Do
The mechanism is money. Both the 2017 and 2025 orders leaned on the same theory: the executive branch would identify jurisdictions it labeled as sanctuaries and make them ineligible for federal grants until they cooperated with immigration authorities.
Executive Order 13768 (2017)
Signed on January 25, 2017, Executive Order 13768 was titled “Enhancing Public Safety in the Interior of the United States.” Section 9 directed the Attorney General and the Secretary of Homeland Security to ensure that jurisdictions “willfully refusing to comply with 8 U.S.C. 1373” would lose eligibility for federal grants, except grants the Attorney General or Secretary deemed necessary for law enforcement. The Secretary of Homeland Security was also authorized to designate jurisdictions as sanctuary entities at his discretion.1The White House. Executive Order: Enhancing Public Safety in the Interior of the United States
The compliance test was a single statute. 8 U.S.C. 1373 bars state and local governments from restricting their officials from sending, receiving, maintaining, or exchanging immigration status information with federal immigration authorities.2Office of the Law Revision Counsel. 8 U.S. Code 1373 – Communication Between Government Agencies and the Immigration and Naturalization Service Whether a jurisdiction complied with Section 1373 became the trigger for funding consequences.
The Department of Justice then attached new conditions to two major grant programs. Recipients of the Edward Byrne Memorial Justice Assistance Grant Program (Byrne JAG) had to comply with 8 U.S.C. 1373, allow DHS personnel access to detention facilities, and give at least 48 hours’ notice before releasing someone DHS had flagged for potential immigration custody.3Department of Justice. Attorney General Sessions Announces Immigration Compliance Requirements for Edward Byrne Memorial Justice Assistance Grant Programs Byrne JAG is the largest federal criminal justice grant program; its fiscal year 2026 appropriation was $964 million.4Congress.gov. The Edward Byrne Memorial Justice Assistance Grant (JAG) Program Community Oriented Policing Services (COPS) grants, which fund officer hiring, likewise now require compliance with 8 U.S.C. 1373 and prohibit any local restriction on sharing immigration status information with DHS.5U.S. Department of Justice Office of Community Oriented Policing Services. FY25 COPS Hiring Program
Executive Order 13993, signed January 20, 2021, formally revoked EO 13768 and dropped the grant eligibility conditions that had been the centerpiece of the earlier approach.6Federal Register. Revision of Civil Immigration Enforcement Policies and Priorities
The 2025 Executive Orders
On January 20, 2025, the incoming administration signed “Protecting the American People Against Invasion.” Section 17 directed the Attorney General and Secretary of Homeland Security to “evaluate and undertake any lawful actions to ensure that so-called ‘sanctuary’ jurisdictions, which seek to interfere with the lawful exercise of Federal law enforcement operations, do not receive access to Federal funds.” The order also authorized criminal or civil enforcement actions against such jurisdictions and directed a review and immediate pause of federal contracts, grants, or agreements funding nongovernmental organizations that support or serve removable noncitizens.7The White House. Protecting The American People Against Invasion
The language is broader than EO 13768 in one important respect. Rather than tying sanctions to compliance with a specific statute, the 2025 order targets any jurisdiction that “seeks to interfere with the lawful exercise of Federal law enforcement operations.” A second order, “Protecting American Communities from Criminal Aliens,” followed on April 28, 2025, repackaging similar funding threats. The administration announced in early 2026 that it would cut federal funding to sanctuary cities and states starting February 1, 2026.
Why Federal Courts Keep Blocking These Orders
The same constitutional walls that stopped EO 13768 are stopping the 2025 orders. There are three of them.
Congress Controls the Purse
In City and County of San Francisco v. Trump, the Ninth Circuit held that EO 13768 violated the separation of powers. The Constitution assigns spending power to Congress, not the president. Because Congress had not authorized withholding funds from sanctuary jurisdictions, the president was acting “at his lowest ebb” of constitutional power under Youngstown Sheet & Tube Co. v. Sawyer. The court rejected the argument that the order was merely aspirational, pointing to Section 9(a)’s specific direction to make noncompliant jurisdictions ineligible for grants. A “consistent with law” savings clause could not rescue text that pointed directly at unconstitutional action.8Justia Law. City and County of San Francisco v. Trump, No. 17-17478
The Seventh Circuit reached the same result on statutory grounds in City of Chicago v. Sessions. The Attorney General had claimed authority to attach “notice” and “access” conditions to Byrne JAG grants under 34 U.S.C. ยง 10102(a)(6). The court called that reading “so obviously belied by the plain meaning” of the statute that the government’s position was “untenable,” and issued a nationwide preliminary injunction. Nothing in the Byrne JAG statute, the court explained, authorizes the Attorney General to require states or localities to assist with immigration enforcement or to deny funds for failing to do so.9U.S. Court of Appeals for the Seventh Circuit. City of Chicago v. Sessions
The principle is simple. The president can direct agencies to enforce conditions Congress has already written into a grant statute. The president cannot invent new eligibility conditions by executive order.
The Spending Clause Has Limits
Even when Congress does attach conditions, the Supreme Court has drawn lines. South Dakota v. Dole upheld a small conditional cut of highway funds tied to raising the drinking age but set a five-part test: the spending must promote the general welfare, the conditions must be unambiguous, they must relate to the federal interest in the funded program, they cannot themselves be unconstitutional, and the financial pressure cannot be so severe that it eliminates real choice.10Justia U.S. Supreme Court Center. South Dakota v. Dole In NFIB v. Sebelius, the Court found that threatening roughly 10% of a state’s budget through Medicaid amounted to “a gun to the head” and constituted “economic dragooning.”
The Federal Government Cannot Commandeer Local Officials
The Tenth Amendment blocks the federal government from ordering state or local officers to carry out federal programs. In Printz v. United States, the Supreme Court struck down a requirement that local sheriffs conduct background checks for federal handgun regulations. In Murphy v. NCAA, the Court extended the principle: Congress cannot forbid states from changing their own laws any more than it can order them to enact new ones. The federal government cannot force local police to hold people for ICE, question arrestees about immigration status, or enforce immigration detainers.
The constitutionality of 8 U.S.C. 1373 itself is unsettled. The Second Circuit upheld it in 1996, reading it to protect only the “voluntary exchange” of information without compelling anyone to collect or report anything. Two federal district courts ruled the other way in 2018, finding that Section 1373 displaces local control over local officers. The appellate courts that reviewed those decisions affirmed the outcomes without resolving the constitutional question directly.11Congress.gov. Sanctuary Jurisdictions: Legal Overview
Where the 2025 Orders Stand in Court
The pattern from 2017 repeated almost immediately. In February 2025, the City and County of San Francisco filed a new federal suit. On April 24, 2025, a federal judge granted a preliminary injunction blocking key provisions, finding the plaintiffs had shown likely irreparable harm from budgetary uncertainty and damage to public trust between local governments and their communities.
When the April 28 order followed, the court issued a clarification: the injunction prevented the government from using new sanctuary designations to cut existing funding. A second group of plaintiffs joined, and the court extended protection to cover coercive immigration-related conditions the Department of Housing and Urban Development had imposed on certain grants. On January 30, 2026, the court denied the government’s motion to dismiss. Preliminary injunctions blocking the core funding provisions of the 2025 orders remain in place.
What the Executive Branch Can Still Do
The rulings do not leave the federal government without tools. They just push it back toward tools Congress actually authorized.
Byrne JAG and COPS grants continue to include 8 U.S.C. 1373 compliance as an eligibility requirement, because that condition traces to a statute rather than an executive order.5U.S. Department of Justice Office of Community Oriented Policing Services. FY25 COPS Hiring Program Jurisdictions that want those grants have to meet the condition. The State Criminal Alien Assistance Program, which reimburses states and localities for the cost of incarcerating noncitizens with certain convictions, focuses on incarceration costs rather than cooperation with detainers, so it has not functioned as a strong pressure point.12Bureau of Justice Assistance. State Criminal Alien Assistance Program (SCAAP)
The 287(g) program offers a voluntary route. Under Section 287(g) of the Immigration and Nationality Act, local law enforcement agencies can sign memoranda of agreement with ICE to train their officers to perform limited immigration functions under federal supervision.13U.S. Immigration and Customs Enforcement. Delegation of Immigration Authority Section 287(g) Immigration and Nationality Act The 2025 executive order directed the Secretary of Homeland Security to expand 287(g) “to the maximum extent permitted by law.”7The White House. Protecting The American People Against Invasion Because 287(g) works through consent, sanctuary jurisdictions that decline are not violating anything, which is why the administration falls back on funding threats.
Immigration detainers themselves are requests, not judicial warrants. When ICE issues a Form I-247A, it asks a local jail to notify ICE at least 48 hours before releasing a person and to hold that person for up to 48 hours past their scheduled release. ICE must establish probable cause of removability based on a final removal order, pending removal proceedings, biometric database matches, or the person’s own statements plus other reliable evidence, and each detainer must accompany an administrative arrest warrant or a warrant of removal.14Congress.gov. Immigration Detainers: Background and Recent Legal Developments In Gonzalez v. ICE, the Ninth Circuit ruled that ICE must provide a prompt probable cause determination before detaining someone on an immigration hold, generally within 48 hours before a neutral decisionmaker. Many local jurisdictions decline detainers to avoid Fourth Amendment exposure for holding someone past their release date without a judicial warrant.
The Practical Picture for Local Jurisdictions
The legal landscape in early 2026 looks close to the one that existed in 2017. The executive branch is again trying to condition federal grants on immigration cooperation. Federal courts are again issuing injunctions on the same constitutional grounds. Sanctuary cities with the resources to litigate have so far kept their federal funding while maintaining noncooperation policies. Smaller jurisdictions without litigation budgets face a harder calculation because the threat of paused funding lands even when the underlying legal authority is doubtful.
The gap between what the executive branch wants to require of local governments and what it actually has authority to require is the defining feature of this area of law. Executive orders cannot close that gap. Only Congress can, and only within the limits the Spending Clause and the anti-commandeering doctrine allow.