“Chaos was the law of nature; Order was the dream of man.”–Henry Adams
A U.S. District Court pitched another home run for liberals last week. At-bat this time around was a lawsuit filed by SF and Santa Clara counties, both having sought injunctive and declaratory relief from potentially losing their respective federal funding as sanctuary cities. Once again, President Trump has struck out against the liberal leaning jurisdiction with a district court judge’s ruling that hit him right in his sweet spot, stating that the administration cannot cease funding to sanctuary cities. And although the pertinent policy was not per se unconstitutional, threatening to take away federal funds from those cities who refuse to comply with federal immigration procedures might be.
While it would be easy to blame this setback on yet another liberal court ruling, such would require us to overlook how the obscurity inherent to the relevant law that serves as the foundation of Executive Order 13768 that requires jurisdictions to report an individual’s immigration status to federal law enforcement agencies factors in. Simply put, the subject EO fails to clearly define what a sanctuary jurisdiction is, thus making it nearly impossible to legally enforce the same.
Since the District Court issued its ruling, the Trump administration has been making rumblings about potentially appealing, as well as announcing the possibility of dividing the current Ninth Circuit into a new Twelfth Circuit given its enormous (liberal) jurisdictional reach. Such decisions notwithstanding, however, one might argue that aside from whether or not one court within the judicial branch should have the authority to bar the plenary power of a U.S. president, perhaps introducing and implementing EO 13768 was a hasty decision, and thus a lawsuit such as the one filed by San Francisco and Santa Clara counties was inevitable.
Not unlike President Trump’s travel ban order that has faced unprecedented scrutiny all-around, particularly by the Ninth Circuit court–which would hear any appeal filed by the Trump administration regarding the subject lawsuit–perhaps EO 13768’s fate was doomed because it attempted to unilaterally modify the (ill-defined) terms of an existent law. The Order would terminate funding to any sanctuary jurisdiction “that willfully refuse to comply with 8 U.S.C. 1373.” Section 1373 prevents a state or local government from establishing any policy or practice that prohibits providing the federal government with information pertaining to an individual’s immigration status. EO 13768 alternatively seeks to threaten state-wide funding overall by instructing certain cabinet officers to terminate sanctuary jurisdiction funding should a city violate section 1373.
Judge William Orrick, an Obama appointee, ruled overall that President Trump lacks the authority to sporadically alter prerequisite conditions of funding without notice. Such line of reasoning comports with the 2012 Supreme Court case, National Federation of Independent Businesses (NFIB) v. Sebelius, a decision that set forth strict conditions in which federal funding to states must adhere to. In short, the federal government must 1) clarify conditions applicable to such funding beforehand to avoid the appearance of coercion; 2) identify the connection between the subject funds and any prerequisite requirements; and 3) the funds cannot be of such a value wherein a state has little choice but to comply with conditions in order to secure funding.
The crux of the relevant lawsuit was the contention that section 1373 violated their Tenth Amendment right by requiring government employees to “use state time and resources to assist in the enforcement of federal statutes.” Although this seems a bit paradoxical in that the “resources” at-issue are federal funds so it seems reasonable that at minimum, a portion thereof should be used to assist “…in the enforcement of federal statutes,” the separation of power between federalism and individual states is not only recognized under the text of the Constitution, but also by the Supreme Court. In accordance with the essence of the NFIB decision, Judge Orrick found that both cities are “currently suffering irreparable harm” by the threat that EO 13768 be enforced.
However, despite the sound use of legal authority regarding the threat of “budget uncertainty,” and therefore finding that injunctive relief was appropriate, citing “…the balance of harms and public interest weigh in their favor,” it would be fool-hardy to overlook Orrick’s snarky tone in statements such as “[a]nd if there was doubt about the scope of the order, the president and attorney general have erased it with their public comments.” The Judge further posits, “[t]he President has called it ‘a weapon’ to use against jurisdictions that disagree with his preferred policies of immigration enforcement…”
As I wrote in an earlier blog, the subject lawsuit and those filed with regard to seeking a similar injunctive relief from President Trump’s travel ban executive order are not premised on plaintiffs who have suffered actual harm and thus are seeking redress from the courts for damages arising out of any such injury; rather, they were filed in anticipation of the possibility of harm arising. For example, despite the threat of terminating funding to sanctuary cities that fail to comply with ICE and other federal immigration authorities, none such action had been taken at the time San Francisco’s lawsuit was pending.
Thus, the “weapon” that President Trump is allegedly threatening these sanctuary jurisdictions with that Orrick alludes to is analogous to a gun that hasn’t been fired. Moreover, one might go a step further and argue the gun isn’t even loaded. This is relevant because despite the broad scope of EO 13768, the District Court’s ruling effectively sends a message that it can and will happily usurp the President’s executive authority, even when an order is intended to “enhance public safety in the interior of the United States.” So although on its face this decision appears to be one that benefits the public, by doing so it counters the very reason why the Trump administration is seeking to regulate sanctuary jurisdictions—to first and foremost protect American citizens.
Yet ironically, both the administration and local officials assert that their respective positions are premised on improving public safety. The former intends to do so by removing undocumented persons who have committed repeated violent crimes, whereas the latter argues that by preventing the reporting and consequently deportation of legal immigrants, these same individuals will in turn cooperate with local law enforcement agencies in the event they witness a crime.
But if the current administration truly wants to effectively monitor and/or regulate immigration, then perhaps it must first take a step back and address the innate weaknesses of the current order. Law is most effective when it leaves only a narrow space for interpretation. In order to regulate the activities of these sanctuary jurisdictions, the administration must first and foremost develop a comprehensive definition of the same and establish parameters for reporting to federal immigration authorities and law enforcement before it incorporates any proposals to cease funding for alleged non-compliance under 8 U.S.C. 1373. San Francisco, for example, must adhere to the criteria set forth in Administrative Code Chapters 12H and 12I—a Code the city itself drafted—in order to be maintain its sanctuary city status. Hence, until sans definition established by the federal government, any attempt it makes to gain the cooperation of these cities by flexing federal “monetary muscle” will prove futile, as well as unconstitutional, according to Judge Orrick. Moreover, it seems foolish to attempt to challenge an existent ambiguous legal precedent with an executive order that’s equally as unclear.
Only time will tell if the Trump administration will attempt to appeal Judge Orrick’s order or if it will alternatively seek to amend EO 13678. Given his propensity for speaking impulsively, we can only hope Attorney General Sessions can save the President from the certain humiliation should he attempt to challenge the District Court’s ruling before the Ninth Circuit. If nothing else, hopefully Trump has learned to be more discriminating before he swings at the Liberal’s next pitch…