President Trump can blame his own rhetoric about Muslims for a slew of court rulings blocking his travel ban, including one decision late Wednesday in Hawaii where a federal judge extended his ban on the ban.
Among the reasons cited by Judge Derrick Watson in his original ruling in Hawaii was that Trump’s “contemporaneous public statements” — about keeping Muslims out of the U.S. — suggested that the travel restrictions “were issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose.”
Now Trump’s threats against particular “sanctuary cities” during his campaign are coming back to haunt him in lawsuits challenging another executive order: The ultimatum threatening a cut-off of federal funding to cities that “willfully” fail to cooperate with federal officers hunting down undocumented immigrants.
The latest example came in a suit brought by Seattle Wednesday challenging that executive order as unconstitutional.
Ordinarily, Seattle would have a hard time getting a federal judge to even consider the merits of its claim because the courts require a showing of injury before they’ll let a lawsuit proceed. Neither Seattle, nor any other city, has yet been specifically threatened with a cut-off of funds by the administration.
In its lawsuit, however, Seattle argues that Trump had Seattle in mind when he issued the order and that the city is indeed specifically threatened by the order. The evidence comes, Seattle says, from “the campaign trail.”
On “the campaign trail,” the city’s suit says, “Trump referenced a 2007 Seattle homicide in his dislike for sanctuary cities.”
“In an interview with a Seattle radio station on August 29, 2016, Defendant Trump was asked about Seattle’s sanctuary city policy,” the suit says. “He responded that ‘sanctuary cities are out … sanctuary cities are over.’ He added that ‘the federal government is going to have to get involved and they’re going to have to get involved very sharply.’”
In a speech in Everett, Wash., on August 30, 2016, the lawsuit says, “‘Defendant Trump stated that we ‘are also going to secure our border to stop the drugs from pouring in,’ and specifically referenced the Seattle area.”
The “executive order creates irresolvable uncertainty surrounding whether federal funds that currently benefit all Seattle residents will be cut off if the city is deemed a ‘sanctuary jurisdiction.’”
Seattle expects to receive $150 million in federal funds this year, including $2.6 million in grants from the Justice Department.
“Seattle will not be bullied by this White House or this administration and today we are taking legal action against President Trump’s unconstitutional order,” Mayor Ed Murray said in a statement announcing the suit.
Seattle is one of at least three dozen cities that have brought suit, individually or jointly, challenging the sanctuary cities executive order. San Francisco, Santa Clara County, Los Angeles, Chicago, Minneapolis, Oakland, Berkeley, Calif., Santa Ana, Calif., and Denver are among the plaintiffs.
The suit by the city and county of San Francisco, which is set for a hearing on April 14, also threw Trump’s words back at him to justify its standing to sue.
“For example,” the suit argued, “in a written campaign speech then-candidate Donald J. Trump gave on August 31, 2016, he expressly referred to San Francisco as a Sanctuary City.”
It cited as well a Trump interview with Breitbart News in which, specifically referencing San Francisco, he called sanctuary cities “a safe-haven for criminals … It’s just unacceptable. We’ll be looking at sanctuary cities very hard.”
Whether these and other arguments made by the lawsuits will prove convincing to the federal judges considering them remains to be seen.
The definition of a “sanctuary city” varies from place to place, but usually entails an unwillingness, sometimes enshrined in municipal law, to cooperate with the federal government by turning over names of undocumented immigrants encountered by city officials, including police, in the course of their duties or by holding them in custody so that federal agents could come and get them.
Seattle considers itself a sanctuary city because of an ordinance barring city employees from inquiring about a person’s immigration status, unless required by law or court order, according to the Seattle Times.
The plaintiffs generally make two arguments in support of their claim of unconstitutionality.
One is that by placing a burden on cities to act in assistance of immigration agents the federal government is “commandeering” or effectively conscripting state and local officials “to enforce federal law,” as San Francisco says in its suit.
They cite as precedent a 1997 Supreme Court opinion involving gun control written by the late Justice Antonin Scalia, Trump’s model Supreme Court justice. The federal gun law, the “Brady Bill,” obligated police across the country to perform background checks on gun purchasers until a federal system of checking was up and running.
The Scalia opinion in the case, called Printz v. U.S., declared this to be federal “commandeering” of local officials in violation the nation’s basic structure of federalism and state sovereignty.
“We have the law on our side,” Murray, the Seattle mayor, said. “The federal government cannot compel our police department to enforce federal immigration law and cannot use our federal dollars to coerce Seattle into turning our backs on our immigrant and refugee communities. We simply won’t do it.”
They also cite the opinion of Chief Justice John G. Roberts Jr. in the “Obamacare case” (National Federal of Independent Business v. Sebelius) declaring it unconstitutional to put a “gun to the head” of states by threatening to cut off massive amounts of money — in this case, Medicaid funds to those states that opted out of the Affordable Care Act’s expansion in health care coverage.
Whether the judges in the cases address those claims, however, will depend in part on their answers to the threshold question: Do the cities, before the government has threatened to cut off any funding to them, have standing to sue.
And that may very well depend on Trump’s rhetoric.
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