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 Government does not respond to the Counties' constitutional challenges...[Emphasis added].
The court concluded that neither side disputed these constitutional limits on Presidential power:
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:
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?
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