The latest ruling in the case closely follows Judge Orrick’s April 25 decision imposing a temporary injunction against implementation of the order, which I analyzed here and here. In both opinions, Judge Orrick concluded that the order is unconstitutional because it violates principles of federalism and separation of powers. Here is his summary of his reasoning in last night’s opinion:
The Constitution vests the spending power in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds. Furthermore, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly 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.
As in the litigation over the preliminary injunction, the federal government – this time citing a memorandum issued by Attorney General Jeff Sessions – claimed that the order only affects federal funds that are already conditioned by Congress on cooperation with federal immigration enforcement efforts, and identified three law enforcement grant programs that supposedly meet those requirements. But, as Judge Orrick notes, the Sessions Memorandum conflicts with the plain text of the order, which states that “sanctuary cities” are generally “not eligible to receive” federal funds, without any such narrow limitation on the range of funds covered. Furthermore, the Sessions memorandum would render the order meaningless:
The AG Memorandum not only provides a an implausible interpretation of Section 9(a) [of the order], but is functionally an “illusory promise” because it does amend Section 9(a) and does not not bind the Executive Branch. It does not change the plain meaning of the Executive Order….The federal government attempts to read out all of Section 9(a)’s unconstitutional directives to render it an ominous, misleading, and ultimately toothless threat…. If Section 9(a) does not direct the Attorney General and [Homeland Security] Secretary to place new conditions on federal funds, then it only authorizes them to do something they already have the power to do, which is to enforce existing grant requirements; effectively, the federal government argues that Section 9(a) is “valid” and does not raise constitutional issues so 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 Executive Order’s broad intent.
If the president really meant to limit the scope of the order to just three relatively small programs, he could have easily made that clear by amending it to say exactly that. He could do that any time he wants to by the mere stroke of the presidential pen.
It is worth noting that even if the order really is limited to the three law enforcement grant programs identified by the Justice Department’s lawyers and AG Sessions, it would still be unconstitutional, because Congress never conditioned those grants on compliance with Section 1373 or other immigration enforcement efforts. I discussed this issue in greater detail here.
The executive order and the administration’s other unconstitutional efforts to target sanctuary cities have broad implications for federalism and separation of powers that go far beyond the question of immigration enforcement. I summarized them here:
Longstanding Supreme Court precedent indicates that only Congress can impose conditions on grants given to states and localities, and that those conditions must be “unambiguously” stated in the text of the law “so that the States can knowingly decide whether or not to accept those funds….”Should the administration manage to get away with this, it will set a dangerous precedent that goes far beyond… the specific issue of sanctuary cities. If the president can unilaterally add new conditions to one federal grant program, he can do the same thing with others. This would give presidents a massive club to coerce state and local governments on a wide range of issues….Some conservatives may cheer when the current administration uses this tool against sanctuary cities. But they are likely to regret their enthusiasm if a liberal Democratic president uses the same tactic to force states to increase gun control, adopt a “common core” curriculum, or pursue liberal policies on transgender bathroom accommodations.Allowing the executive to impose its own after-the-fact grant conditions also threatens the separation of powers. It goes a long way towards taking control over spending away from Congress and transferring it to the president. This, of course, violates the text of Article I of the Constitution, which clearly gives the power of the purse to the legislature, not the executive.As conservatives often pointed out during the Obama Administration, the modern executive has already appropriated far too much power that more properly belongs to Congress or the states. It is dangerous to let it seize even more.
The litigation over both the Trump executive order and the Sessions policy will continue in federal appellate courts, and perhaps even at the Supreme Court, if either case gets that far.