Last week, a federal district judge blocked enforcement of President Trump’s executive order threatening to cut federal funding to “sanctuary cities,” those that do not help the federal government apprehend and deport undocumented immigrants.
In his ruling, Judge William H. Orrick of the Northern District of California explained that the president had attempted to usurp powers that belong to Congress – that he cannot, by fiat, impose conditions on federal funds.
That power belongs to Congress and, were Congress to impose conditions, it would have to ensure that the conditions were unambiguous; imposed before the funds had been accepted; and had a nexus with the federal program’s purpose. In other words, for Congress to condition a grant on a city helping the federal government apprehend and deport undocumented immigrants, the grant would have to have some connection with law enforcement or immigration.
Finally, and importantly, the financial inducement could not be coercive. That is to say that state and local governments cannot be commandeered to enforce federal law. As the judge noted, the administration clearly intended the executive order to be coercive. As support, he cited President Trump’s unabashed declaration that the executive order would be “a weapon” to wield against sanctuary cities.
The day the court announced its decision, Idaho’s junior Senator Jim Risch criticized the ruling, telling CNN’s Wolf Blitzer that it was the product of a “left-leaning judge.” Risch flatly predicted that appellate courts would reverse it. I think he’s wrong on both counts.
Frankly, this is a rather conservative decision. It upholds the constitutional principle of separation of powers and fortifies the Tenth Amendment which states, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Republicans have long complained that judges have given the Tenth Amendment short shrift and that the growth of federal power has come at the expense of the states. How odd then that those Republicans who have long railed against federal meddling in traditionally local activities – like city policing – now champion that very thing.
Trump’s knee-jerk response to Judge Orrick’s ruling was to threaten to break up the Ninth Circuit. He talks as if he could accomplish this on his own, but once again he forgets that congressional action would be required. Of course, some members of Congress would like to see the Ninth Circuit carved up, but I think that’s a non-starter.
Exactly eighty years ago, Franklin Roosevelt was miffed at the judiciary. He put forward his “court-packing” plan, a blatant attempt to punish the Supreme Court for blocking his New Deal legislation and “pack” the court with additional justices who would shift the court’s philosophical balance and uphold his agenda. His plan, born of frustration, met with widespread bi-partisan opposition. The American people, who strongly supported Roosevelt’s agenda, nonetheless disapproved of such machinations.
Now Trump, in a fit of pique, hopes to intimidate the federal judiciary with ham-handed threats. His immature rants are likely to backfire. I expect the American people will become more – not less – protective of judicial independence. Federal judges should not be above criticism, but that criticism – especially when it comes from the president – should be directed to the wisdom, integrity, and intellectual honesty of their opinions, not because they refuse to rubber stamp the president’s political agenda.
If Trump thinks Judge Orrick is mistaken, he has a right to appeal the court’s decision to the Ninth Circuit. But, if he does appeal, I predict the Ninth Circuit and the Supreme Court – should it consider the case – would affirm Judge Orrick’s ruling. And I expect that Trump, in his ignorance of the Constitution, will continue to take actions that will be rebuffed by the judiciary. He will continue to lose – not only in federal court, but in the court of public opinion.