In a week, the first appellate hearing will occur in the review of the second Trump immigration order. In the meantime, the Administration is appealing the latest legal setback with the injunction of Trump’s sanctuary city order. Below is my column from the Hill Newspaper on the decision of District Court Judge William Orrick.
President Trump sometimes appears to bring out the worst in people.
His taunting of protesters seemed to push many protesters to become violent – strengthening his criticism of his opponents. His attacks on the press has produced a considerable amount of openly biased coverage against him and his administration. While these groups had legitimate objections to some of Trump’s comments, they seemed to rush to fulfill the very stereotypes that Trump claimed.
There is a danger that courts could fall victim to the same loss of judgment. Trump has repeatedly insulted and personally attacked individual judges – and by extension the integrity of the judiciary itself. However, like the media, judges must separate themselves from the passions of politics or the appearance of personal bias. There is a constant danger of the appearance of bias if a court is too quick (or perceived too eager) to rule. That concern arose with issuance of the preliminary injunction by U.S. District Court Judge William Orrick in San Francisco to enjoin the Trump executive order threatening to deny federal funds to so-called sanctuary cities. While I disagree with some of the analysis by Judge Orrick (who is a respected jurist), it is the timing of the challenge and injunction that is most problematic.
As I will explain below, these cities have some legitimate objections to the order and some supporting case law. However, on its face, these cases were premature under governing precedent. The administration has not designated a single city to be in violation of the order and has not indicated how it will adjust or deny federal grants. While challengers may succeed in bagging another Trump order in the courts, this is a bit too quick on the trigger like some “buck fever” hunter jumping at the first movement in brush.
First, it is important to note that there are deeply troubling elements to the order for those of us who both favor state rights and fear executive overreach. Conditions on federal funds should come not from the President but from Congress. Moreover, some cities raise legitimate concerns over the constitutionality of holding detainees after they are legally free to leave custody and have not been charged with a new crime or made subject to a formal warrant.
However, it seems facially premature to state globally that “Federal funding that bears no meaningful relationship to immigration enforcement.” It is not known what federal funding would be denied or the relationship drawn in such a decision. As a threshold question without any specific denial, the court would have to rule that effectively no denial of any federal funding would pass constitutional muster. That is rather difficult to square with existing case law, particularly when the standard for a preliminary injunction requires a showing of a likelihood to prevail on the merits.
There is even a fundamental disagreement on the scope of the order, if enforced. San Francisco and Santa Clara County insisted, implausibly, that the order could deny billions of dollars in federal funding. Each. However, the administration argued that it was not certain that any money would be threatened for San Francisco and less than $1 million appears at risk in Santa Clara County. As widely expected, the Justice Department has affirmed that the order would only impact Justice Department and Homeland Security funds, which is a relatively small fraction of the grant money received by the counties.
Despite my admiration for Judge Orrick as a jurist, he may have gotten a bit ahead of his skis on issuing the preliminary order on this record.
Adding to this concern is Orrick’s reliance (as with prior judges in the immigration cases) on the public statements of Trump. Orrick maintained “if there was doubt about the scope of the order, the president and attorney general have erased it with their public comments.” I have previously expressed concern over the use of such statements, particularly the use of Trump’s campaign rhetoric as part of the interpretation of his immigration orders. Orrick cited comment by Trump referencing the order as “a weapon” to use against jurisdictions obstructing his immigration policies. That does not alone seem particularly enlightening on these questions, particularly when the Justice Department is expressly limiting its arguments in court. Rather it sounds like over-heated rhetoric from someone who put the hyper into hyperbole.
Once again, the Trump administration would have been wiser to work through Congress on a refined and clear legislative change. However, the case law is at best mixed for the challengers.
One of the central challenges concerns unconstitutional coercion. In 2012, the court handed down National Federation of Independent Businesses v. Sebelius, says that the government cannot use the threat of large cuts in federal funds to “coerce” states into adopting federal policies. However, it is relatively rare to find such coercion and the courts have upheld the right to condition federal funds. The 2012 case involved a virtual shutdown of health care funds. This involves grants, which the government has not identified beyond narrowing the scope to a small subset of grants. It is true that such conditions should come from Congress, but Congress also gave discretion to the Executive Branch in the granting of such funds between rivaling jurisdictions. Moreover, in South Dakota v. Dole (1987), the court upheld conditions on highway funds that forced changes in drinking ages because these changes were “relevant to the federal interest in the project and the overall objectives thereof.” That would seem equally compelling in sharing immigration-related information.
A second claim concerns unconstitutional “commandeering.” In 1997 in Printz v. United States that the federal government cannot order states or cities to enforce federal law. However, Printz involved ordered state and city officials to effectively administer the interim provisions of the Brady Handgun Violence Prevention Act. The thrust of the Trump order goes to “attempt[s] to shield aliens from removal from the United States.” There have been alleged cases of active efforts by judges or officials to shield targets of immigration officials. Moreover, in Reno v. Condon (2000), the court unanimously rejected a challenge under a commandeering rationale of the Driver’s Privacy Protection Act. The act required states to disclose information about license holders. The conveyance of such information (which is analogous to immigration status information or arrest reports) “did not require state officials to assist in the enforcement of federal statutes.”
There remains the problem of conditions coming from the Executive rather than the Legislative Branch, though the administration is citing one federal immigration law. The result is still fairly uncharted water for the courts. The administration is seeking to distinguish between jurisdictions that are active partners in supporting federal policies against those that are obstructionist. Many would agree with that distinction as reasonable.
In the end, timing is everything in constitutional law. For that reason, this injunction seems more premature than preliminary in nature.
Jonathan Turley (@JonathanTurley) is the Shapiro Professor of Public Interest Law at George Washington University.