More political than legally-based?
A federal judge in California blocked a portion of President Trump’s January Immigration Executive Order Tuesday.
Jude William H. Orrick of United States District Court for the Northern District of California targeted the Trump administration’s promise to cut federal funding from “sanctuary cities” or cities who refused to cooperate with federal law enforcement concerning immigration matters.
From the New York Times:
The judge, William H. Orrick of United States District Court for the Northern District of California, issued a nationwide preliminary injunction against the administration, directing it to stop trying to cut off aid to sanctuary jurisdictions.
That said, the decision is pretty weak (NYT continued):
But the order does not prevent the federal government from moving forward on designating certain places as “sanctuaries,” nor does it keep the administration from enforcing conditions for doling out federal money if they already exist, as the Justice Department has already begun to do with some law enforcement grants.
San Francisco and Santa Clara County, which had asked the judge for an injunction, “have a strong interest in avoiding unconstitutional federal enforcement and the significant budget uncertainty that has resulted from the Order’s broad and threatening language,” the judge wrote, referring to Mr. Trump’s January executive order on immigration.
CNN continued the discussion:
While the order seemed to threaten to jeopardize all federal funds for cities the administration deemed non-cooperative, it didn’t make clear what the threshold would be beyond that small law. Since the order was issued three months ago, the government has said that a definition of sanctuary jurisdictions would be forthcoming.
That uncertainty was a central focus of the arguments in the case, as well. At a hearing earlier this month, attorneys for the Justice Department offered a far narrower interpretation of the order than Trump, saying it would only apply to jurisdictions that refuse to share citizenship information as required by law, and that it would apply to only three federal grants from the Departments of Justice and Homeland Security that require compliance as a pre-condition.
Orrick was skeptical of that interpretation.
“This interpretation renders the order toothless,” Orrick wrote. “The government can already enforce these three grants by the terms of those grants and can enforce 8 U.S.C. 1373 to the extent legally possible under the terms of existing law.”
The judge instead looked at Trump’s own rhetoric and statements of his surrogates — saying those contradicted the “new, narrow interpretation” that government lawyers presented in court.
“If there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments,” Orrick said. “The President has called it ‘a weapon’ to use against jurisdictions that disagree with his preferred policies of immigration enforcement, and his press secretary has reiterated that the President intends to ensure that ‘counties and other institutions that remain sanctuary cites don’t get federal government funding in compliance with the executive order.'”
In March, AG Sessions announced the DOJ’s commitment to enforce 8 U.S.C. 1373, which allows the federal government to strip grant money from cities who willfully refuse compliance with federal communications guidelines as they pertain to local law enforcement and federal immigration officials:
“This guidance requires local jurisdictions to comply and certify compliance with Section 1373 in order to be eligible for OJP grants,” said Sessions. “It also made clear that failure to remedy violations could result in withholding grants, termination of grants, and disbarment or ineligibility for future grants. The Department of Justice will also take all lawful steps to claw back any funds awarded to a jurisdiction that wilfully violates 1373.”
All of this smells far more politically motivated than anything derived from sound legal doctrine. As I blogged in March:
If there is a legal mechanism to penalize sanctuary cities, we haven’t found it. It’s likely none exists because, despite threats, no administration has carried out a threat to withhold federal monies from disobedient rogue local governments.
There’s speculation aplenty as to how the Supreme Court might interpret a legal challenge to anti-sanctuary city guidance. Printz v. United States (highly cited in relation to this particular part of immigration discussion) held, “Congress may not compel a state or local government to implement federal regulatory programs, even if they are temporary functions.” Enforcing federal law is the responsibility of the federal government, thus immigration enforcement cannot and should not be delegated to local law enforcement. However, as 1373 indicates, local law enforcement are expected and required to communicate certain information to federal authorities.
Trump’s administration doesn’t seem afraid of legal tests, given his first immigration executive order, but it’s clear that sanctuary cities are in the crosshairs.
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