Preliminary or Premature? Injunction Against Trump Sanctuary Order May Come Down To A Question Of Timing

Judge_William_H._Orrick,_IIIdonald_trump_president-elect_portrait_croppedIn 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.

80 thoughts on “Preliminary or Premature? Injunction Against Trump Sanctuary Order May Come Down To A Question Of Timing

  1. No one brings out the worst in people they bring it out themselves. The media has been bias long before Trump arrived, the protesters have proven they are violent against anyone who disagrees with them, the judges making these calls are all left wing appointees, they have no credibility and sanctuary cities should have been stopped long before Trump became president.

    • Sadly, agree individuals often are guilty of being their “worst” enemy regardless of position in society. Clearly, this includes judges & members of law enforcement. That said, it should be repeated ours is an evolving democracy embedded in lively controversy for the good of our nation over two hundred years. In moving forward, controversy will remain an integral part of our nature & belief in our republic. Moreover, hopefully, partisan babble & partisan jabber will be off set by partisan logic & partisan reason. In short, the versatility of controversy should include the willingness to agree to disagree as paramount to the success of this nation!

  2. One good thing about the outsider method is getting the refinements needed to go ahead and produce a new set of rules . Assuming these rogue judges stop dictating to the nation. I have no respect for their system where one judge can overturn the Constitution without an amending change.

    So the Trump method is kick over the apple cart and start stomping apples into apple sauce which certainly lit some fires. A bit less than a 100 days and immigration is already in legal phase two with a clear idea of the potential need to go SCOTUS or not. It also clearly shows the system up as faulty. Were it en banc I might go along IF they had consulted with the opposing appelate judge from the other side of the nation. But one Judge. The Judge himself ought to rule the system unconstitutional on it’s face and not doing so tells me a lot about their ideology and it’s the wrong one.

    The important issue then is exposing the deep state or in some cases the Fourth Branch even more important than the issue used to expose these faulty procedure. Money as Free Speech gave a none pre existing right to everyone including foreigners while it took away four or fiver existing rights.

    Looks to me like the judicial swamp is the worst offender of all.

  3. Far from a “respected jurist,” Orrick is widely recognized as a partisan hack. Note that JT mentions absolutely nothing about how Orrick raised at least $200,000 for Obama and donated more than $30,000 to groups supporting him. That speaks volumes about what Orrick is all about. And what JT is all about for that matter. Two leftist hacks dedicated to intellectual dishonesty. But over in the Robing Room, where attorneys rate judges, Orrick received the equivalent of a D- grade and they exposed him as the political hack and fraud that he has always been.

  4. Orick is the name of a vacuum cleaner. Or some such spulling. This dork cannot write.
    Sanctuary cities: They cause harm to their citizens. The local “officials” who act under color of state law need to be sued by the victims of the policies which allow the thieves to go free when they are captured. With the right set of facts I could put together a good federal civil rights suite seeking declaratory relief, injunctive relief, damages, punitive damages and attorney fees against the “state actors” (city officials acting under color of state law) who caused harm by not following the federal law and regulations. The damages and attorney fees which could be awarded against the local officials can be enormous. It would be enough to make others think twice about letting Hey Zeus out of jail and not turn him over to the feds. Hey Zeus, full of juice, don’t let your meat loaf.

  5. And for some strange reason these cities never put it to the VOTE of the people. What would The People of each of these states say?

    • IIRC 3 separate polls of Californians, just in the past few months, have returned high numbers (between 70 and 80%) against sanctuary city programs. I think there is growing irritation and restlessness with the concept.

  6. It seems judges are also going as overboard as Trump did during his campaign and even after that. You are right judge should not have considered one of the public uttering of the president as the basis of his decision, though tough it may seem and human they are, judges have a duty to be neutral and methodical always.

  7. “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.”

    I’m still unclear how someone detained and found to be in this country illegally has ANY constitutional expectation to be released. How can they be “legally” free to leave custody when they are in the country illegally?

    • Olly, do Constitutional rights apply only to citizens or to every living being?

      I would say that those Constitutional rights that are inalienable and given by the Creator apply to everyone, whether citizen or not a citizen.

      So the next question is whether or not the right to due process applies to everyone or only to citizens. What do you think?

      • David,
        I believe every individual has inalienable rights regardless of the country they live in. If I understand correctly, our country provides constitutional protection of those rights for all residents in this country. If we violate the law, those rights can be disabled.

        “So the next question is whether or not the right to due process applies to everyone or only to citizens.”

        I believe due process applies but the original violation of being in this country illegally does not entitle them to be released into society awaiting trial.

        • From my perspective, some constitutional rights are inalienable and some are not. Due Process typically implies an innocence until proven guilty, although I don’t think the Constitution spells that out. So if the accusation is that someone is here illegally, should not due process include setting bail and allowing the accused to defend the charge of being here illegally? Of course if they confess that they are here illegally, then there is no need for any defense.

          • I would expect every resident in this country should be guaranteed the right to due process. I don’t believe however that due process and the presumption of innocence implies you should be free from incarceration pending trial. Being in this country illegally should disqualify anyone from returning to the very illegal status they had when they were first held. Don’t we already suspend licenses for professionals that are suspected of breaking the law to protect society. If someone is allowed bail for a crime they are suspected of, don’t we already set conditions that are meant to protect society from the possibility of harm? Then why would we EVER allow someone proven to be in this country illegally to be returned to the very crime they already have committed, namely being in the country illegally? And especially if they are suspected of another crime? I’m not a lawyer; but I would love to hear the legal logic behind that one.

          • If you guys are going to pretend to be lawyers, please spell the word correctly – it’s unalienable, not inalienable.
            And as Olly says above, the Creator granted those unalienable rights to every person in the world. Our country recognizes those rights for its citizens.
            So no, a person who has illegally entered the country has no constitutional rights. We can choose to be humane about it, but that’s a choice, not a right.

    • State prisons and local jails also notify and hold prisoners being released, who have been charged with a Federal Crime or a crime in another jurisdiction, so that law enforcement from those jurisdictions can take them into custody. How is that different from notifying and holding those illegally in the country for ICE?

  8. JT knows very well that Congress, along with the rest of the puppeteers for the 1% all support open borders, so-called free trade, and more wars for Israel.

    What was his opinion of Bush’s claim that the Constitution is just a piece of paper?

  9. “[S]ome 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. . . .” Holding detainees without charge would seem on its face a violation of the right of habeus corpus, and it certainly is a legitimate concern. Based on Mr. Turley’s interpretation of the case law, Judge Orrick should have stricken only that portion the executive order rather than staying the order wholly.

    What a tragedy this may become for the people the Stasi seek to displace. As they say, you’ve got to be carefully taught to hate all the people your relatives hate:

    • Isn’t an immigration violation just cause? If a prison knows that a violent felon is an illegal alien, and by law must be deported, wouldn’t they be criminally liable if they released him and he killed again, when he had no permission to be here? Legally, how would they get around this issue and be able to hold for ICE?

      • Karen S., if I understand Mr. Turley’s post, in answer to “Isn’t an immigration violation just cause?,” the answer is that it depends. Mr. Turley wrote “In 1997 in Printz v. United States that the federal government cannot order states or cities to [actively] enforce federal law,” but the executive order at least in part (although I haven’t read it) seeks to prevent state and local government from actively shielding against federal immigration enforcement.

        Isn’t a marijuana violation just cause? We don’t see enforcement of the Controlled Substance Act with regard to marijuana here, do we? The feds cannot compel state and local enforcement to do so under Printz. If state and local government were to shield against the fed’s enforcement of the Act, however, it’d be a different matter. As an example of the latter, recall the allegation of the Multnomah County, Oregon judge alleged to have allowed an undocumented defendant exit through the back door of the courthouse while ICE waited to arrest him at the front door.

  10. I agree that Trump should work with Congress on handling anarchical states or cities that refuse to obey federal law. There has to be some consequences for states or even cities refusing to follow federal law, or else why would anyone follow it? I personally vote that we stop following federal income tax law and estate taxes!

    I cannot recall, but did Obama work with Congress when his politicized DOJ threatened federal funding for schools that did not provide transgender bathrooms/showers? Even if he did not, that does not make it OK:

    http://www.snopes.com/obama-transgender-bathrooms/

    I would also like to put into perspective the similarities we have across the aisle. There was uproar when Kim Davis, the Kentucky county clerk, refused to sign off on gay marriage licenses based on her own personal religious beliefs. The law required her to do so. Now we have city officials refusing to follow federal immigration law, as their office requires. They had been ignoring it for some time, and now that enforcement was being insisted upon, they were conscientiously objecting.

    Refusing to follow the law as part of your job is either right for everyone, or wrong for everyone. In some situations there may be some wiggle room whereby you can have a proxy do the tasks for which you cannot bring yourself. But you cannot block the law. (Another example of this kind of fight is in Sweden, where a pro-life midwife can be forced to perform abortions. There is no longer any room in Sweden for anyone in the obstetrics profession who only wants to birth babies and not abort them. And clearly they do not subscribe to the “wriggle room” compromise. https://www.lifesitenews.com/news/swedish-court-denies-pro-life-midwifes-appeal-its-reasonable-for-employer-t)

  11. And may I add, out of my own bitterness, that CA has declared itself not only a sanctuary state, but its legislature has passed single payer, which will expressly cover illegal aliens.

    They are anticipating absolutely crushing taxes to pay for this, in a state that is already the highest taxed in the nation. There will likely be no way to “opt out” because you’ll have to pay the taxes regardless.

    The result, if they hold the course, is that successful, mobile tax payers will leave, the poor and illegal aliens who pay no taxes will come, and the middle class who cannot easily change jobs or move their small businesses will be trapped with an unbearable tax burden. Crime will of course escalate, and the economy of the state, which has already suffered the bankruptcies of several prominent cities, will collapse.

    This is why 2/3 of voters polled believe the Democratic Party is out of touch with them. The DNC has convinced me that they do not care about me, or anyone else in the middle class. And I am also convinced that the majority of their policies end up harming the people they purport to help. They have driven me farther and farther away over the past 8 years, where before I had a lot in common with them.

    • “This is why 2/3 of voters polled believe the Democratic Party is out of touch with them.” I doubt it. The reason for this, if true, is more likely that they gave us Hillary Clinton, and Boxer (now Harris) and Feinstein and everyone in Congress (the jury’s still out on first-term Congressman Ro Khanna who is one of only six in Congress now rejecting corporate donations) are corporatist shills.

      • No it was 67%. And not limited to California…. it was a media + polling entity poll just in the past two weeks.

        The jury is very out on Khanna. Honda had needed to go for years, I don’t think he has been allowed out for a decade without minders and it was a Herculean effort t get him thru the last run. What a mess. Harris is just a cleaned up GF of Willie Brown, well schooled in being nothing and working whatever is the most useful rhetoric. What a pity she is a senator frankly. I doubt she could go farther tho, she traded in the black husband in recent years for a white husband. As it is she plays it both ways, one day Indian, one day black. Eh.

        Neither Pelosi nor Dianne F could survive a really strong challenger, should one emerge…. Neither is up to debate, and Dianne not only refuses for a long time to debate anyone, she resents questions even. She has walked out of interviews that even just raise her refusal to debate. Pelosi is over the hill, she holds on because she has shoveled out the same answers for years.

          • Time for Feinstein to retire. After watching Trump struggle with memory problems, I am less and less inclined to vote for those well over 70 and particularly so for president.

            • Were you less inclined to vote for President Obama who had no such memory problems? Age or memory is not the root problem; it’s the disregard for the rule of law and separation of powers that is the greater threat.

                • You begin with the desire to do so. Then you surround yourself with trusted advisers that share your philosophy. Then, when you “seem” to forget your oath, you will have people that won’t allow that to happen.

            • Dave T – both Pelosi and Auntie Maxine have had memory problems this last week. Actually, think back to high school. Did you know every answer? And then college? And then graduate school? And then what ever job(s) you had?
              Now, if I gave you a test from your high school biology class, think you could still pass it?

                • Dave T – do you see an age limitation in the Constitution regarding old age? I have never seen one. Maybe you have a newer or older Constitution than mine. Please cite the age qualification for President.

            • A dear friend just turned 80 and she is sharper and better well-informed than many 30 year olds. I do not believe one’s age should be held against anyone whether for a job or as a politician. People should be judged on their abilities. performance and ethics.

        • Autumn, I saw that video. I like what he had to say, but after checking him out at Wikipedia, I found that he did take over half a million in corporate money when he got elected last year. Now, he’s jumped on the no-corporate money bandwagon. Better late than never, I guess, but that’s taking a page out of the Obama playbook. We’ll see. I’d certainly welcome being wrong about him, but for me there’s a question mark there.

          • True that Steve. There are far too many people jumping on that bandwagon as anyone paying close attention to those running under the Dim banner are realizing. He will be definitely scrutinzed. Talkin the talk and walkin it are very different.

  12. You believe there is media bias against Trump because of negative reporting. This is because of your bias in favor of him. To ignore Dumpster’s emotional problems, lack of basic knowledge of government, his racism, misogyny, insults directed at almost everyone, including leaders of other countries, bragging about sexual assaults, his thin skin, lying, inability to work with others, and other failures–this would be bias. Take note that none of any of these factors has anything to do with partisan politics. It’s fundamental lack of qualification to be President. This person is the least-qualified person ever to hold the highest office in this land. That is not bias, it is fact, and only ultra conservatives such as yourself refuse to acknowledge it. Your thinking goes something like this: “He’s the President, we must support him”. No, not if he’s emotionally unstable, misguided, unqualified, motivated by egotism and won’t listen to stable voices around him. More people voted against him than for him. He’s not even the popular choice. It’s not reasonable to start with neutral when it comes to this person. By virtue of his big mouth and conduct, he hasn’t even earned neutral.

    You claim that courts are too quick to rule against dummy’s “executive orders” and that it is wrong to use the egomaniac’s own words as motivation behind the orders. You claim Courts are too quick to pull the trigger, and that their judgments might be tainted by the snarky rhetoric coming from dummy’s mouth. Dummy made clear exactly what he thought he was trying to do with his little leather-bound executive orders. Cities shouldn’t have to wait until the checks stop coming to bring legal action. In fact, that could be perceived as laches. Trying to argue that cities should “wait and see” exactly what funds are withheld ignores the reality of what Dumpster was trying to do, which is what he said he was going to do–and that is to withhold federal funds as a measure calculated to twist the arms of certain cities, to force them to incarcerate illegal immigrants. That is illegal, as the Judge said.

    • “emotionally unstable, misguided, unqualified, motivated by egotism and won’t listen to stable voices around him” you meant her right? Like it or not HRC is NOT the president – more people chose NOT to vote Obama2.0

      If Progressives Don’t Wake Up To How Awful Obama Was, Their Movement Will Fail –

      View story at Medium.com

    • Natacha wrote: “It’s fundamental lack of qualification to be President. This person is the least-qualified person ever to hold the highest office in this land.”

      Really? Sounds like you are regurgitating the MSM’s favorite talking point.

      I would love to hear what qualifications you think Barack Obama had that supremely qualified him to be president? “Not much” is the answer. Obama makes anyone paying attention to his policies and actions wonder exactly whose side he was on for eight years because it sure didn’t seem like the community organizer named Barack Obama did much ‘good’ for the U.S.

      Trump has decades of private sector real-world executive experience and brings all of that perspective to a bloated government bureaucracy that sorely needs it. A career politician as corrupt and incompetent as Hillary Clinton was not the answer to ANY of the problems we face.

      At least Trump made his fortune BEFORE he decided to go into public service. As for Hillary and Bill Clinton becoming uber wealthy during their careers in ‘public service’ — this quote sums it up: “An honest public servant can’t become rich in politics.” — Harry Truman

      But that’s exactly what too many politicians do. The corruption in Washington, DC is out of control. And now we have a President who is not in it to become wealthy because he already is. I’m giving him four years to see what he can do. Why the hell not? We should be so grateful that Trump spared the country the guaranteed disaster that would have Hillary Clinton. The fact that she ran such a wasteful, incompetent, tone-deaf, losing campaign that she should have easily won proves it, without a doubt.

  13. Fwiw, in jail house interviews, the Steinle killer admitted he always returned to San Francisco as he knew he would not be hassled here. And now, he has killed someone, with three stories, again jail house interviews, of how it happened. Further, for almost two years now, the City authorities have colluded to hide that he did indeed steal the gun. A media person I correspond with sent me the audio to a back ground interview tape (I know, irregular) with a high ranking city official, stating that they know he stole the gun, from the Bureau of Land Management vehicle in a downtown garage. For some reason, the City clearly feels what he did is not so bad if he did not also steal the gun. AFAIK he still sits in San Francisco jail.

      • “Do these clowns seriously think the states would ratify this?”

        Good, now you are thinking rationally. Of course they don’t, which makes the report all the more suspect in the first place. Had you bothered to think it through (without bias), you wouldn’t have even given the story a moment of serious consideration.

        • Olly,…
          – The First Amendment will not be abolished, or modified, via the conventional process for Constitutional Amendments.
          There’s no need for that, since we know from “a leading historian” that it’s “pretty much inevitable” that Trump will stage a coup.
          And post-coup, the Constitution will be irrelevant anyway.
          Don’t you read The Intercept??🐔🐔
          The sky is falling.😩🐔

          • I guess I need to get on its distribution list. I’m still trying to decide if I need to follow anon on Twitter; I’m not really seeing the point though, since he reposts his feed here. 🙂

          • The Constitution is already irrelevant. We have the law professoriate, the appellate judiciary, and various and sundry lawfare artists on the federal trial bench to thank for that, along with the har-de-har public interest bar.

    • Should the press be free to criticize a sitting President…absolutely. Should the press be free to lie about what a sitting President is doing without consequences…I don’t believe so. The former is a responsibility an honest media owes to both the administration and to the people for the exercise of that right. Abuse that right and there should be legitimate consequences for that betrayal to both the administration and to the people.

  14. Haven’t read your article completely. Had to stop when you said “Trump…”! The thousands of people attending his rallies are mostly sad Americans there because beating Hillary was the only way to keep our country OUR COUNTRY! Ask Congress to write a bill about Sanctuary cities? You are kidding, aren’t you? Archaic rules and procedures need rewriting (or dump). Business folk view time as money. Politicians view time as theirs to squander. The boss makes the rules, the minions follow them. Everybody in Congress knew long before January 20 that Trump wanted sanctuary cities to be unlawful. Now, a bright member might consider writing that law without being asked. The process is tedious and needs updating. A corporation would have done it years ago. That’s why businesses can make decisions and get things done.

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