A federal judge in San Francisco dealt the Trump administration another legal blow Tuesday, temporarily halting President Trump’s threat to withhold unspecified federal funding from cities and towns that refuse to cooperate with immigration authorities.
U.S. District Judge William H. Orrick imposed a nationwide injunction against Trump’s Jan. 25 executive order on what are called “sanctuary” jurisdictions and said lawsuits by Santa Clara County and San Francisco challenging the order were likely to succeed.
It is hard to overstate what a sweeping defeat this was for the White House. Once again, a horribly and sloppily drafted executive order came back to haunt the White House. The court held, “[The counties] 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.”
As in the legal fight over the travel ban, the government employed what can only be described as a ridiculous defense. In this case, the government claimed that the executive order had no real meaning and was only an exercise of the “bully pulpit.” President Trump, Attorney General Jeff Sessions and the plain language of the order say otherwise. The government also argued that the order applied only narrowly to grants from the Justice Department and the Homeland Security Department. The court scolded the government: “This reading is similarly implausible. Nothing [in the order] limits the ‘Federal grants’ affected to those only given though the Departments of Justice and Homeland Security.” It is frankly bizarre that the government’s only defense was that it was a meaningless order with no real effect on local governments.
The government’s aversion to admit the full scope of the order was perhaps the only way to save an order so plainly unconstitutional. The court had a field day spotting the constitutional infirmities:
The Counties argue that the Executive Order is unconstitutional because it seeks to wield powers that belong exclusively to Congress, the spending powers . . . . The Counties also argue that, even if the President had the spending power, the Executive Order would be unconstitutional under the Tenth Amendment as it exceeds those powers. While Congress has significant authority to encourage policy through its spending power, the Supreme Court has articulated a number of limitations to the conditions Congress can place on federal funds. The Executive Order likely violates at least three of these restrictions: (1) conditions must be unambiguous and cannot be imposed after funds have already been accepted; (2) there must be a nexus between the federal funds at issue and the federal program’s purpose; and (3) the financial inducement cannot be coercive.
The separation-of-powers argument is precisely the one employed by Republicans against President Barack Obama’s immigration executive orders, while the 10th Amendment argument is based on Chief Justice John Roberts’s majority opinion in the first Obamacare case. One can only marvel at the legal irony here.
The court was not done, however. The court also found that the order was impermissibly vague under the Fifth Amendment. One problem, one that we and other critics of the whole “sanctuary city” witch hunt have noted, is that no one really knows what a “sanctuary city” really is “because the Order does not clearly define ‘sanctuary jurisdictions’ the conduct that will subject a jurisdiction to defunding under the Order is not fully outlined. This is further complicated because the Order gives the Secretary unlimited discretion to make ‘sanctuary jurisdiction’ designations. But, at least as of two months ago, the Secretary himself stated that he ‘do[esn’t] have a clue’ how to define ‘sanctuary city.’ ”
The court also found that Trump violated the due process clause: “The Executive Order purports to make the Counties ineligible to receive these funds through a discretionary and undefined process.”
This was a humiliating loss for the administration, which naturally provoked an unhinged statement complaining that the court had “rewritten” law. In fact, it was Trump who did that; the court said he couldn’t do so. The White House hyperventilated that “city officials who authored these policies have the blood of dead Americans on their hands.” (Sanctuary city status, as has been repeatedly demonstrated, bears no relationship whatsoever to crime.) No amount of frothing at the mouth from the administration will lessen the blow to its anti-immigrant vendetta. It can try an appeal to the 9th Circuit, but as with the travel ban, it would do well to rethink and redraft the entire undertaking. And if — as the administration said in court — this was just an exercise of the “bully pulpit,” one has to ask why it’s necessary at all.
Moreover, given the results, one is tempted to ask what’s wrong with the administration’s lawyers. “The people going into court for DOJ are the government’s best lawyers, but even they can’t defend an order when the president constantly undermines their arguments with his public statements,” says former Justice Department spokesman Matthew Miller. He explains, “The White House has come up with a perfect formula for losing in court: issue legally questionable orders, make overheated comments that undermine any defense of them, and then publicly attack the judges who control their fate. If they keep it up, they are going to rack up an unprecedented record of losing in court.” When do they start winning?