Outside the Beltway

Federal Judge Slaps Down Trump Executive Order On ‘Sanctuary Cities’

Another Federal Court has found another Trump Executive Order unconstitutional.

Doug Mataconis · Wednesday, April 26, 2017 · 7 comments

A Federal Judge in San Francisco has issued an Order putting a hold on a Trump Administration Executive Order withholding certain funds from so-called “sanctuary cities, a term generally used to describe jurisdictions where law enforcement declines to provide information about suspected undocumented immigrants to Federal authorities:

A judge in San Francisco on Tuesday temporarily blocked President Trump’s efforts to starve localities of federal funds when they limit their cooperation with immigration enforcement, a stinging rejection of his threats to make so-called sanctuary cities fall in line.

The judge, William H. Orrick of United States District Court, wrote that the president had overstepped his powers with his January executive order on immigration by tying billions of dollars in federal funding to immigration enforcement. Judge Orrick said only Congress could place such conditions on spending.

The ruling, which applies nationwide, was another judicial setback for the Trump administration, which has now seen three immigration orders stopped by federal courts in its first 100 days. And as with the rulings halting his two temporary bans on travel from several predominantly Muslim countries, the president’s own words were used against him.

Though Justice Department lawyers argued in the case that the government did not intend to withhold significant amounts of money, the judge noted that the president and Attorney General Jeff Sessions had suggested the punishment could be far greater.

“If there was doubt about the scope of the order, the president and attorney general have erased it with their public comments,” Judge Orrick wrote.

While the order is only a temporary injunction until the judge issues a broader ruling on the executive order’s constitutionality, he strongly signaled that San Francisco and Santa Clara County, the plaintiffs in the case, were likely to win a permanent victory. It was also an early verdict on the question of whether the White House can coerce cities and counties into helping federal immigration agents detain and deport immigrants who are not authorized to be in the country.

Mr. Trump has criticized judges who have ruled against him, and late Tuesday night the White House released a statement saying, “Once again, a single district judge — this time in San Francisco — has ignored federal immigration law to set a new immigration policy for the entire country.”

Exactly what makes a city or county a sanctuary is a matter of interpretation, but most that present themselves as sanctuaries, including New York, Los Angeles, San Francisco and Houston, limit how much they cooperate with federal immigration authorities, often by refusing to turn over unauthorized immigrants from local jails except under certain conditions or by preventing local police officers from asking about immigration status.

In San Francisco’s case, the city argued that the executive order violated the Constitution by essentially trying to commandeer state and local officials to enforce federal immigration law. In practical terms, San Francisco’s filing said, forcing the city to cooperate with federal immigration agents would threaten public safety by breaking trust between local authorities and immigrants, who the city argued would become less likely to report crimes or serve as witnesses.

The city estimated that it stood to lose more than $1 billion in federal funding as a result of the executive order. Santa Clara said about $1.7 billion, or more than a third of its revenue, was at risk.

“This is why we have courts — to halt the overreach of a president and an attorney general who either don’t understand the Constitution or chose to ignore it,” Dennis Herrera, the San Francisco city attorney, said in a statement. “Because San Francisco took this president to court, we’ve been able to protect billions of dollars that fund lifesaving programs across this country.”

While the judge’s order temporarily stops the White House from placing new restrictions on federal funding without going through Congress, it does not keep the administration from enforcing existing rules on federal grants. In letters to several local governments last week, the Justice Department warned that several current grants could be in jeopardy.

As was the case with the rulings by Federal Judges on Trump’s Executive Order regarding travel to the United States from certain Muslim countries, Trump’s own words on the campaign trail, and since taking office, have ended up undermining the legal arguments that Justice Department lawyers made in defense of the Executive Order:

During his campaign and since taking office, Mr. Trump has repeatedly attacked sanctuary cities as harboring lawbreakers. Mr. Trump and Mr. Sessions have seemed particularly galled by San Francisco’s policies, pointing multiple times to the killing of Kathryn Steinle, who was shot in San Francisco in 2015 by an immigrant with a record of multiple deportations.

Sanctuary cities “breed crime; there’s a lot of problems,” Mr. Trump told Fox News in February. “If we have to, we’ll defund. We give tremendous amounts of money to California — California in many ways is out of control, as you know.”

But as President Barack Obama was sometimes thwarted by conservative states and Republican-appointed judges, Mr. Trump has been stopped by liberal jurisdictions and, in this case, by an Obama appointee who had been a bundler for his 2008 campaign, according to OpenSecrets, a website run by the Center for Responsive Politics.

In court, lawyers for the government argued that despite Mr. Trump’s vows to end all aid to uncooperative sanctuary jurisdictions, the order was intended to do no more than highlight the president’s commitment to hardening immigration enforcement. No more than a few small grants would be affected, they said.

Judge Orrick’s response: If that were true, what was the point?

“The result of this schizophrenic approach to the order is that the counties’ worst fears are not allayed and the counties reasonably fear enforcement under the order,” he wrote.

He also wrote that because the Constitution gives Congress the federal wallet, the president may not impose new conditions on federal funds to municipalities. The Supreme Court has held that the federal government cannot compel states to administer a federal program, the judge wrote, citing a case with very different partisan battle lines: National Federation of Independent Business v. Sebelius, the 2012 case in which the Supreme Court ruled that the government could not withhold Medicaid funding to force states to comply with Mr. Obama’s Affordable Care Act.

And, Judge Orrick added, 10th Amendment restrictions on the power of the federal government require that the federal funds at stake be related to the policy in question, so that, for instance, housing funds cannot be yoked to immigration laws.

The Volokh Conspiracy’s Ilya Somin, who has previously written on the issue of sanctuary cities and the authority that the Federal Government has to force them to act in these cases, comments:

Earlier today, federal district court Judge William Orrick issued a ruling blocking enforcement of President Trump’s executive order seeking to cut federal funding to “sanctuary cities” – jurisdictions that refuse to help the federal government apprehend and deport undocumented immigrants. The order seeks to deny federal grants to sanctuary cities, especially those that do not comply with 8 U.S.C. Section 1373, which forbids states and localities from ordering their officials to refuse to turn over information about the immigration status of individuals within their jurisdiction. The cities of San Francisco and Santa Clara filed lawsuits challenging the order’s constitutionality, and today’s decision addresses their claims.

Judge Orrick’s ruling concludes that the order violates the Constitution because it undermines both federalism and separation of powers. It follows nearly the same reasoning I laid out in my post criticizing the order when Trump first issued it.

(…)

For reasons I explained in previous posts on this issue, today’s ruling is an important victory for both federalism and separation of powers. If the president could impose new conditions on federal grants after the fact, he would have a powerful club with which to coerce states and localities on a wide range of issues. Some conservative Republicans may not like the outcome of this specific case. But they will have reason to celebrate it the next time a liberal Democratic president tries a similar move.

Technically, this ruling is not a final decision on the merits, but only a ruling granting a preliminary injunction blocking enforcement of the order. But Judge Orrick leaves little doubt which way the final decision is likely to go.

In between the two quoted sections above, Somin’s post goes on to summarize Judge Orrick’s opinion quite well, although it’s worth noting through a lens in which he obviously agrees with the result of the decision. I also recommend reading the previous posts that Somin has written on this topic, which he links to in the post, and which you can find here and here, as a good background for the law that applies in this situation and the reasoning behind the order that Judge Orrick granted yesterday. At its base, though, the Constitutionality of this Order rests largely upon issues of Federalism, the Tenth Amendment, and the authority that Congress has to place limitations and requirements on states or their subdivisions such as cities and counties when they accept Federal funds for a specific purpose. The Supreme Court has dealt with this issue most recently in a series of cases that go back more than twenty years, starting with South Dakota v. Dole in 1987, and continuing into the 1990s with New York v. United States and Printz v. United States. 

In Dole, the Court dealt with a challenge by South Dakota and other states challenging a Federal law that withheld 5% of allocated Federal highway funds from states that declined to raise their drinking age, arguing that the statute was not a valid use of Congressional authority that interfered with state powers reserved by the Tenth Amendment. The Court ruled in favor of the Federal Government but also set forth a series of criteria that the Federal Government must meet in order to avoid violating the Tenth Amendment and other protections of the rights and powers of the states when using this method to force action by the states.  New York v. United States, which was decided about five years after Dole, dealt with a Federal law governing the disposal of low levels of radioactive waste. One of the provisions of that law required states to “take title” to such waste and made them primarily responsible for its disposal, a provision which the Court found to be beyond the boundaries of both the Commerce Clause and the Tenth Amendment. Finally, about five years after New York, the Court issued a ruling in Printz v. United States that has stood for twenty years as the definitive ruling on the extent to which Federal law can be used to compel states to act. Printz dealt with provisions of the Brady Handgun Violence Prevention Act, the so-called “Brady Bill.” One part of that bill required state and local law enforcement to conduct background checks for all gun purchases within their borders for an interim period until a Federal database that would conduct those checks on a more-or-less instant basis could be built, tested, and put into operation. The Supreme Court struck that provision down as unconstitutional under the Tenth Amendment in a decision written by Justice Scalia that relied heavily on both the criteria set forth in Dole for the criteria the Federal Government must meet to compel state’s to perform certain acts or pass certain laws and the holding in New York that more fully developed the limits on the Federal Government’s ability to force the states to act.  One other decision, which Judge Orrick cites in his opinion is National Federation of Independent Business v. Sebelius, the 2011 case in which the Supreme Court largely upheld the Constitutional arguments against the Affordable Care Act. In one part of that decision, though, the Court struck down one provision of the PPACA that purported to use Federal power to force the states to expand Medicaid by threatening to withhold all of a state’s Medicaid funding if it declined to expand coverage as permitted under the PPACA. While there was not a solid majority supporting the reasoning for a decision in that part of the case, there was a majority in agreement with the result that the requirement that states expand the program or risk losing hundreds of millions of dollars or more in Medcaid funding was not permissible under either Article I or the Tenth Amendment. This is the legal foundation upon which Judge Orrick’s decision rests.

After the decision was released, the White House issued a statement denouncing the Order and saying that Judge Orrick, an Obama appointee who has been on the bench since 2013 and whose father was also a Federal Judge and worked in the Justice Department under Robert F. Kennedy during the Kennedy Administration, was giving gift to criminals and that he ”unilaterally rewrote immigration policy for our Nation.”Additionally, just as in the case of the aforementioned orders on the Muslim travel ban, this Order applies to enforcement of the Executive Order nationwide and will stand until otherwise overruled by a superior Court such as the Ninth Circuit Court of Appeals or the United States Supreme Court, and not surprisingly, Trump has responded to the Order on Twitter, although in somewhat more restrained tones than we’ve seen in the past.

First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities-both ridiculous rulings. See you in the Supreme Court!

— Donald J. Trump (@realDonaldTrump) April 26, 2017

Out of our very big country, with many choices, does everyone notice that both the “ban” case and now the “sanctuary” case is brought in …

— Donald J. Trump (@realDonaldTrump) April 26, 2017

…the Ninth Circuit, which has a terrible record of being overturned (close to 80%). They used to call this “judge shopping!” Messy system.

— Donald J. Trump (@realDonaldTrump) April 26, 2017

The U.S. recorded its slowest economic growth in five years (2016). GDP up only 1.6%. Trade deficits hurt the economy very badly.

— Donald J. Trump (@realDonaldTrump) April 26, 2017

As a matter of policy, the states that have challenged this Executive Order argue that acting in compliance with Trump’s order would have the impact of making it harder for law enforcement on the local level to do their job. For example, it’s quite common for police to find that immigrants, legal or not, are often reluctant to report crimes committed against them to the police or to cooperate or come forward as witnesses to a crime out of the fear that doing so could subject them to being handed over to Immigration and Customs Enforcement authorities and, ultimately, subject to deportation proceedings. Operating on a policy that local authorities will not turn such people over to ICE aids law enforcement, they argue, because it helps to belay that fear among members of an immigrant community in their jurisdiction and allows law enforcement to fight crime. This is especially true among undocumented immigrants since this group tends to be a common target of criminals in their own communities if they believe that their actions will go unreported or that witnesses will remain silent even if they do know something about a criminal act in their area. Without such a policy, police have a hard time doing their jobs and the immigrant community becomes even more of a criminal target. This strikes me as fairly good reasoning, and the Federal efforts to enforce compliance and state action seem contradictory to a desire to lower crime rates nationwide.

The path from here is a familiar one, of course. This temporary hold will likely be appealed by the Federal Government to the Ninth Circuit, which is also the venue for one of the rulings against Trump’s Muslim ban order, and from there, potentially, it would go to the Supreme Court. Given the fact that the Ninth Circuit won’t be hearing the Muslim ban appeal until the middle of next month, though, it’s likely we won’t see immediate action in this case until early June at the earliest, and that the Supreme Court would end up dealing with this case at some point after its term ends at the end of June. Until then, the hold placed by Judge Orrick remains in place unless and until he either revokes it, which is unlikely, or it is replaced by a more permanent Preliminary Injunction. By that time, we may also have additional rulings on this Executive Order from other Federal Judges around the country. Based on existing precedent, though, I suspect it will take something distinguishing this case from Dole and its progeny in order to overturn the ruling issued yesterday.

Update: This post was updated from the original to include a reference to a fourth Supreme Court case on the issue of Federal-State relations, National Federation of Independent Business v. Sebelius.

Here’s the opinion:

County of Santa Clara Et Al v. Trump Et Al Order by Doug Mataconis on Scribd