NEW YORK/SAN FRANCISCO (Reuters) - Even if President Donald Trump wins an appeal of a court ruling blocking his executive order on sanctuary cities, arguments made by the government in the case could permanently harm its efforts to cut off wide swaths of federal funding to targeted cities, some legal experts say.
Trump’s original order, issued on Jan. 25, stated that cities and counties shielding illegal immigrants and refusing to cooperate with immigration officials would lose federal funding except for that “deemed necessary for law enforcement purposes.”
U.S. Justice Department attorneys defending the order in a San Francisco court presented a far narrower view of its reach, however, arguing before U.S. District Judge William Orrick III earlier this month that the only funds the government intended to withhold were certain grants tied to law enforcement programs.
That argument did not convince the judge on Tuesday, who noted in issuing a preliminary injunction that the text of the executive order threatened withdrawal of a much wider range of federal funds than the government attorneys asserted in court.
“Disavowing the plain language of the executive order itself” was a potentially dangerous course for the Justice Department, said Edward Waters, a Washington lawyer who specializes in federal grants.
The government’s strategy could restrict its ability to cut off funds going forward, some legal experts said, since the Justice Department now has said the order applies to a narrow range of funding.
Trump has promised to broadly “defund” sanctuary cities, saying they “breed crime.”
The government could appeal the preliminary injunction to the 9th Circuit Court of Appeals and the losing side at the appellate level could then appeal to the Supreme Court.
One procedural case the federal government could make on appeal involves the timing of the challenge, some legal scholars suggested, but such an argument would have limitations.
Since no federal funds actually have been withheld to date, the government could say there has been no harm and therefore the case is not yet “ripe” for litigation, said Brian Galle, an expert on government finance at Georgetown Law.
To have standing to bring a case, San Francisco and Santa Clara County would have to have suffered actual harm, which could be difficult to establish in this case since they have so far lost no federal funding.
The two municipalities successfully argued in the district court hearing that they had already been harmed by uncertainty and chaos in their budget planning but that might not convince an appellate court.
“In the very short run it’s quite possible that the administration could win a reversal of this ruling” on appeal because of these procedural reasons, Galle said.
He predicted, however, the administration would be unable to successfully defend itself if it then began withholding funds without Congress authorizing such action.
The Justice Department declined to discuss its appeals strategy.
Tuesday’s ruling left leeway for the administration to deny some kinds of funding to sanctuary cities, noting the government can “use lawful means to enforce existing conditions of federal grants.”
A small amount of federal law enforcement money is tied to a statute requiring local jurisdictions to share information with federal immigration officials.
Programs making such grants include the Edward Byrne Memorial Justice Assistance Grant Program, Community Oriented Policing Services, and the State Criminal Alien Assistance Program. In San Francisco, such funding is a small fraction of federal monies that go to the city, said City Attorney Dennis Herrera.
Tuesday’s ruling was the latest legal blow to the Trump administration, which has had two previous executive orders stayed by the courts.
In February, a Washington court blocked a Trump order temporarily banning all refugees and travelers from seven mostly Muslim nations. A subsequent order replaced that one, removing Iraq from the ban and creating more exemptions. Parts of that ban were also blocked, this time by judges in Maryland and Hawaii. Those cases are pending appeal.
After Tuesday’s district court ruling, a spokesman for the Department of Justice said that it “will follow the law with respect to regulation of sanctuary jurisdictions.”
But the president made clear on Twitter Wednesday that he doesn’t consider the battle over: “See you in the Supreme Court!” he tweeted.
Reporting by Mica Rosenberg in New York and Dan Levine in San Francisco; Editing by Bill Trott