When a long list of comments from President Trump, his surrogates and his spokesmen shows up in a federal court ruling, it’s fair to say it can only mean one thing: a constitutionally questionable executive order is about to get a judicial smackdown.
That was true in March, when federal judges in Hawaii and Maryland suspended Trump’s travel ban, saying the administration had showed a clear animus toward Muslims, despite government lawyers’ claims to the contrary.
And it was true Tuesday, when U.S. District Judge William H. Orrick of California temporarily froze Trump’s executive order on sanctuary cities, ruling that a case could be made that it violated the Constitution.
Trump’s order, signed Jan. 25, threatens to cut off funding from local governments that refuse to cooperate with immigration authorities. Santa Clara County and the city of San Francisco challenged the order, arguing, among other things, that the president doesn’t have the power to withhold federal money. Orrick found the plaintiffs were likely to succeed on all their claims, as The Washington Post reported.
The 49-page ruling focused largely on an all-too-familiar theme for the young administration: the consequences of bragging and bluster by Trump and top administration officials.
Just like the judges who ruled on Trump’s travel ban, Orrick homed in on the vast discrepancies between what government lawyers defending the sanctuary cities order argued in court and what administration officials said about it in public.
In court, the government tried to make the case that the order doesn’t actually do anything, at least not at the moment, because the administration has yet to define what exactly a sanctuary city is or threaten any particular jurisdiction with a loss of funds. It was their way of convincing the judge to toss out the lawsuit on the grounds that no city or county has yet suffered any harm.
But in public, administration officials boasted about how the order would force sanctuary cities to their knees, singling out particular places. The order described in court as essentially an empty shell was portrayed in news conferences, briefings and television interviews as a powerful tool to protect the public from dangerous undocumented immigrants being shielded by wayward cities and counties.
It was that gap that disturbed Orrick.
In his ruling, the judge pointed to a February interview between Trump and former Fox News host Bill O’Reilly, in which Trump called the order “a weapon” to use against cities that tried to defy his immigration policies.
“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,” Trump said in the interview. “If they’re going to have sanctuary cities, we may have to do that. Certainly that would be a weapon.”
The judge also cited news conferences in which Attorney General Jeff Sessions threatened to “claw back any funds” awarded to a city that violated the order.
And the judge brought up remarks by White House press secretary Sean Spicer, who said in no uncertain terms that “counties and other institutions that remain sanctuary cities don’t get federal government funding.”
On top of that, the judge said, Trump and Sessions had repeatedly held up San Francisco as an example of the supposed dangers sanctuary cities pose to ordinary, law-abiding citizens because of the killing there of Kathryn Steinle in July 2015, allegedly by a man deported five times.
It was more than enough to show the intent of Trump’s order, Orrick wrote.
But government lawyers sang an entirely different tune.
According to Orrick, the government contended that the order was merely an example of Trump using the “bully pulpit” to “highlight a changed approach to immigration enforcement” — in essence, something much more benign than what Trump and company had described.
The argument was lost on the judge, who ridiculed the government’s position as “schizophrenic.”
“If there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments,” Orrick wrote.
“Is the Order merely a rhetorical device,” he added, “or a ‘weapon’ to defund the Counties and those who have implemented a different law enforcement strategy than the Government currently believes is desirable?”
The ruling continued: “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.”
If all that sounds familiar, it’s because other federal judges reached similar conclusions about the administration’s credibility in lawsuits challenging Trump’s travel ban.
In March, judges in Hawaii and Maryland issued rulings that temporarily halted parts of the executive order, which seeks to bar new visas for people from six Muslim-majority countries. In both cases, judges found that what government lawyers said in court about the ban being religiously neutral didn’t line up with remarks from Trump and some of his closest advisers, who had previously called for a “Muslim ban.” The administration’s intent was obvious, the judges said.
“Plainly-worded” statements by Trump and his surrogates “betrayed the Executive Order’s stated secular purpose,” one judge wrote, using language strikingly similar to Orrick’s.
As long as the administration continues to issue broad executive orders, it should expect to have statements by its top officials to come up in court, said Jayashri Srikantiah, an immigration law professor at Stanford Law School.
“It’s hard to imagine not seeing more of these kinds of legal challenges,” she said. “The president is the president and the attorney general is the attorney general, and we have to take seriously what they say about an executive order with such sweeping implications.”
The Trump administration has vowed to fight rulings on the travel ban and sanctuary cities.
In a series of tweets Wednesday, Trump vowed that the White House was ready to bring the case to the Supreme Court and blasted the U.S. 9th Circuit Court of Appeals, which was part of legal decisions blocking Trump’s travel restrictions on several Muslim-majority countries.
“First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities — both ridiculous rulings. See you in the Supreme Court!” Trump wrote.
Orrick is a federal district judge in San Francisco. He does not serve on the U.S. Court of Appeals for the 9th Circuit, although those judges would review his decisions.
In an earlier statement, the White House took aim at Orrick, saying his ruling “unilaterally rewrote immigration policy for our nation.”
“This case is yet one more example of egregious overreach by a single, unelected district judge,” the White House statement said.
The ruling puts the executive order on hold while the judge weighs the full evidence in the case. At issue is whether the order violates the Constitution by giving the president spending powers reserved for Congress and by infringing on state sovereignty by “commandeering” local officials to enforce federal immigration laws.
White House Chief of Staff Reince Priebus said the government’s lawyers were reviewing their options.
“It’s the 9th Circuit going bananas,” he told reporters Tuesday. “The idea that an agency can’t put in some reasonable restriction on how some of these monies are spent is going to be overturned eventually, and we’ll win at the Supreme Court level at some point.”