(The opinions expressed here are those of the author, a columnist for Reuters.)
By Alison Frankel
NEW YORK, April 26 According to the White House, U.S. District Judge William Orrick of San Francisco imperiled the safety of untold innocent Americans on Tuesday, when the judge issued a nationwide injunction barring enforcement of President Trump’s Jan. 25 executive order to withhold federal funds from so-called sanctuary cities.
“This San Francisco judge's erroneous ruling is a gift to the criminal gang and cartel element in our country, empowering the worst kind of human trafficking and sex trafficking, and putting thousands of innocent lives at risk,” the White House said in a statement decrying Judge Orrick’s decision, which came in a constitutional challenge to the executive order by San Francisco and Santa Clara county.
By striking down enforcement of the order, the White House suggested, the judge has allowed officials of jurisdictions that disagree with the federal government’s immigration policies to carry “the blood of dead Americans on their hands.”
Yet according to the Justice Department lawyers who defended President Trump’s executive order in court earlier this month, the executive order was really nothing more than a rhetorical device.
THE BULLY PULPIT
The administration’s lawyers told Judge Orrick at oral arguments on April 14 that the executive order was just meant ”to highlight to the country” that the president cares a lot about enforcing immigration laws.
“It's certainly a broad policy statement,” said Acting Assistant Attorney General Chad Readler. “And, certainly, executives and all political leaders use the bully pulpit to encourage compliance with policy directives that they think are important.”
Even the Justice Department’s response to Judge Orrick’s ruling suggests DOJ isn’t too worried about the injunction. “The department will continue to enforce existing grant conditions,” the DOJ statement said.
“The order does not purport to enjoin the department’s independent legal authority to enforce the requirements of federal law applicable to communities that violate federal immigration law.”
So: The president believes his executive order was a critical and lawful weapon to force sanctuary cities to bow to the administration, stanching the flow of American blood spilled by the illegal immigrants.
But as I read the transcript of the oral argument on the injunction, the Justice Department believes the executive order was little more than political grandstanding - and that the executive branch doesn’t have a constitutional right to wield Congress-approved federal funding to states and cities as a bludgeon to beat them into compliance with its policies.
That’s a deep divide, with real costs to the credibility of the Justice Department. Of course, there’s always a disconnect between what politicians tell the public and what lawyers tell judges.
Moreover, as I’ll explain, the Justice Department’s legal strategy in the sanctuary jurisdiction injunction case more or less required DOJ lawyers to minimize the potential impact of the executive order.
But that strategy blew up because Judge Orrick opted to take President Trump and Attorney General Jeff Sessions at their word, despite the Justice Department’s attempt to refocus the judge on the literal language of the order.
The judge called DOJ’s argument “not legally plausible” in the face of public statements by Trump and the AG. That’s a gloomy portent for a Justice Department that will continually have to ask federal judges to disregard the president’s words as they consider his policies.
The big constitutional question in the sanctuary cities case was whether the executive branch can withhold or even claw back federal money from jurisdictions that disobey the president’s directives to cooperate with federal immigration authorities.
According to San Francisco, Santa Clara and scores of other jurisdictions that filed amicus briefs in the California case or have challenged the Trump executive order in their own suits, the executive order threatens billions of dollars in federal funding for everything from public health and social services to law enforcement and infrastructure.
They claim the order violates a host of constitutional protections, including the Fifth Amendment, the 10th Amendment and basic separation-of-powers principles.
Among other constitutional deficiencies, the suits allege, the executive order impinges on congressional power because it attempts to place new restrictions on funds allocated by Congress.
Santa Clara’s lawyers at Keker Van Nest & Peters were the first to ask for a preliminary injunction to bar the Trump administration from enforcing the executive order. San Francisco soon followed.
"VERY SMALL MONEY"
The Justice Department chose to sidestep the merits of the constitutional issues in its opposition to the preliminary injunction. Instead, the government argued that the California jurisdictions haven’t suffered any harm from the not-yet-implemented executive order so their suits must be dismissed.
DOJ’s brief also claimed the order imposed no additional restrictions on federal funding to sanctuary jurisdictions. DOJ said the Trump order “does nothing more than direct enforcement of preexisting duties under federal law.”
That was a cramped interpretation of the order, but the government offered an even more restrictive view of the scope of the directive at the April 14 oral argument.
Acting Assistant AG Readler said the actual language of the executive order threatened to cut off not a broad swath of federal funds, as hypothesized by San Francisco and Santa Clara, but only a small category of Justice Department and Homeland Security grants that are already conditioned on cooperation with immigration authorities.
The order affects just “a very narrow range of funding,” Readler said. “Very, very small money.”
Readler had two very good reasons to argue that the executive order implicated only grants that already require cities and countries to assist immigration officials. The argument allowed the Justice Department to claim the executive order didn’t violate separation-of-powers doctrine because it didn’t add to funding restrictions imposed by Congress.
And by minimizing the potential impact of the order, Readler strengthened the government’s assertion that San Francisco and Santa Clara weren’t entitled to an injunction because they couldn’t show they would be irreparably harmed by enforcement of the funding provision.
Lawyers for San Francisco and Santa Clara insisted the Justice Department’s argument made no sense: Why would the president need to issue an executive order to enforce authority he already has? When Judge Orrick asked DOJ lawyer Readler that question, Readler gave his “bully pulpit” answer.
Santa Clara lawyer John Keker said he suspected a different motive behind the DOJ argument. “The reading that they are giving is something I'm sure that some very wise lawyers who know the Constitution in the Department of Justice Civil Division say, ‘Here's something that maybe we could defend if somebody ever did it,’” Keker said. “But it is not this executive order.”
Judge Orrick, as I mentioned, agreed with Keker that DOJ’s argument strained plausibility. Justice’s interpretation of the executive order “renders (it) toothless,” the judge wrote.
And while he said it was “heartening” that the government opted not to assert constitutionally infirm executive branch powers, the judge said DOJ’s reading of Trump’s order did not match its depiction by the president and AG Sessions.
“The president has called it ‘a weapon’ to use against jurisdictions that disagree with his preferred policies of immigration enforcement,” the judge wrote. “The Attorney General has warned that jurisdictions that do not comply … would suffer ‘withholding grants, termination of grants, and disbarment or ineligibility for future grants,’ and the ‘claw back’ of any funds previously awarded.”
The White House statement on the ruling said in its very first sentence that Judge Orrick “unilaterally rewrote immigration law for our nation,” a comment that is hard to square with the judge’s actual decision, which explicitly said the ruling “does not affect the ability of the Attorney General or the Secretary (of Homeland Security) to enforce existing conditions of federal grants.”
The White House statement also doesn’t align with the Justice Department’s argument that the executive order was only intended to highlight Trump’s policy of enforcing existing law. Both Judge Orrick and the Justice Department said the injunction ruling does not change the executive branch’s power over immigration law.
"There's a lot about the White House's statement that doesn't make sense," said Santa Clara lawyer Cody Harris in an email. "In court, the Department of Justice lawyers interpreted the executive order to mean basically nothing ... But the White House now says that a judicial order holding the federal government to its own interpretation will cause Americans to die. There's no way to square the administration's bellicose public statements with its own litigation position."
President Trump said he intends to fight for his sanctuary cities order all the way to the U.S. Supreme Court. Sometime before the case gets there, the White House and the Justice Department ought to put their heads together to figure out what they’re fighting for.
The Justice Department did not respond to my request for comment. (Reporting by Alison Frankel. Editing by Alessandra Rafferty.)
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