By Ernest A. Canning on 4/26/2017, 12:09pm PT  

I couldn't help but burst out laughing while reading White House Press Secretary Sean Spicer's description of U.S. District Court Judge William H. Orrick's late Tuesday decision partially blocking a Presidential Executive Order on funding to so-called "sanctuary cities" as an "egregious overreach by a single, unelected district judge."

(All federal judges are nominated by a President and confirmed by the Senate. None are "elected.")

Not to be outdone by his Press Secretary, Trump via Twitter described the ruling to enjoin the enforcement provision of his January 25 Executive Order as "ridiculous."

In that Executive Order, Trump threatened to withhold and/or recapture all federal funds and grants from any local jurisdiction that did not assist the federal government in its newly aggressive efforts to deport undocumented immigrants.

Trump vowed to appeal all the way to the Supreme Court.


In the forty (40) years that have passed since I was first admitted to the California State Bar, I can scarcely recall a more one-sided "contested" case --- one in which I actually felt sorry for the Justice Department attorney who had been assigned to defend this indefensible Executive Order...

Unable to refute constitutional challenges

As recited by Judge Orrick in his decision:

The Counties [San Francisco and Santa Clara] challenge the enforcement provision of Order, Section 9(a) on several grounds: first, it violates the separation of powers doctrine enshrined in the Constitution because it improperly seeks to wield congressional spending power; second, it is so overbroad and coercive that even if the President had spending powers, the Order would clearly exceed them and violate the Tenth Amendment's prohibition against commandeering local jurisdictions; third, it is so vague and standardless that it violates the Fifth Amendment Due Process Clause and is void for vagueness, and, finally, because it seeks to deprive local jurisdictions of congressionally allocated funds without notice or opportunity to be heard, it violates the procedural due process requirements of the Fifth Amendment.

The Government does not respond to the Counties' constitutional challenges...[Emphasis added].

The court concluded that neither side disputed these constitutional limits on Presidential power:

The Constitution vests the spending powers in Congress, not the President, so the Order cannot place new conditions on federal funds. Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that the total financial incentive not be coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves.

What the President says isn't quite what he means

Placed in an untenable position of defending the indefensible, the Justice Department's attorney argued that Trump's Executive Order merely reflect an effort by President Trump to use the "bully pulpit" in order "to highlight a changed approach to immigration enforcement...Counsel disavowed any right through the Order for the Government to affect any other part of the billions of dollars in federal funds the Counties receive every year. ." [Emphasis added].

To this, Judge Orrick replied:

It is heartening that the Government's lawyers recognize that the Order cannot do more than constitutionally enforce existing law. But Section 9(a), by its plain language, attempts to reach all federal grants, not merely the three mentioned at the hearing. The rest of the Order is broader still, addressing all federal funding. And if there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments. 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 cities don't get federal government funding in compliance with the executive order." The Attorney General has warned that jurisdictions that do not comply...would suffer "withholding grants, termination of grants or ineligibility for future grants," and the "claw back" of any funds previously awarded. Section 9(a) is not reasonably susceptible to the new, narrow interpretation offered at the hearing.

Injunction no broader than DOJ's concession

Judge Orrick did not strike down the entirety of the executive order. Instead he issued a preliminary injunction that limits the President and Attorney General's right to withhold federal funds only to the extent already authorized by existing law. "This injunction," Judge Orrick explained, "does nothing more than implement the effect of the Government's flawed interpretation of the Order."

So, if the order is no broader than that which the Government concedes, what, pray tell, is the legal basis for Trump's vow to appeal the case all the way to the Supreme Court?

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Ernest A. Canning is a retired attorney, author, Vietnam Veteran (4th Infantry, Central Highlands 1968) and a Senior Advisor to Veterans For Bernie. He has been a member of the California state bar since 1977. In addition to a juris doctor, he has received both undergraduate and graduate degrees in political science. Follow him on twitter: @cann4ing

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