A broader threat to Trump on “sanctuary cities”

President Trump’s lawyers have told a federal judge that, at least temporarily, they will not seek permission to enforce a presidential order that threatens to cut off federal funds for so-called “sanctuary cities” – local governments that won’t help round up undocumented immigrants. But the president’s policy faces an even broader threat that will be discussed by the judge at a conference set for Tuesday afternoon.

U.S. District Judge William H. Orrick of San Francisco is to meet with both sides’ lawyers on the next steps in the constitutional controversy over the Trump Administration’s challenge to city and county governments that resist helping enforce immigration laws.

Last week, Judge Orrick temporarily blocked nationwide the Trump executive order, finding that it is likely to be ruled unconstitutional. That is the ruling that government lawyers said on Friday they have no plans at “the present time” to seek to have put on hold. A delay, or stay, would allow immediate enforcement of the president’s initiative.

The most significant issue the judge has said he will take up on Tuesday was left undecided in last week’s ruling. It is a plea by lawyers for San Francisco’s combined city and county government to strike down the federal law that is the legal foundation under the Trump policy on “sanctuary cities.”

Even if President Trump lacks authority under his own constitutional powers for that policy, his lawyers have argued, Congress does have that power and the government is implementing it by the executive order and other actions.

At present, some city and county governments have accepted federal funds on condition that they will obey that law. The most important of those existing programs provides grants to aid in improving police-community relationships to try to ease mutual suspicions among officers and local residents, especially in the wake of police shootings of unarmed individuals, often racial minority residents.

There is a disagreement among immigration law experts about just what that law means or requires.  Its actual terms simply prohibit any interference with the flow of information, to federal officials, about the legal or illegal immigration status of an individual that a local government encounters.

But the Trump Administration interprets the law to support the executive order threatening the loss of federal funds – any federal funds, as the President himself and Attorney General Jeff Session interpret the law – for resistance to immigration policy.

In its lawsuit against the Administration, San Francisco argued that the Supreme Court has made clear that Congress has no authority to “commandeer” local governments into becoming enforcers of federal policy. And, if Congress wants to use federal money to induce local governments to help carry it policy, it must make that condition very explicit, the lawsuit contended. The law at issue, San Francisco asserted, gives local governments no such warning of that condition on federal funding and, in any event, is too vague to be constitutional.

The San Francisco challenge also noted that “Congress has repeatedly considered and rejected legislation to defund sanctuary cities or require them to cooperate with federal immigration officials,” and did so as recently as last summer.

Judge Orrick, in the decision last week ordering the government not to enforce the Trump executive order for the time being, said he was not ruling at that time on the constitutionality of the federal law. He said that briefs filed in the case had ‘intermingled’’ discussion of the validity of that with the challenge to the validity of the executive order. (A San Francisco brief, for example, lumped together the federal law and the Trump order as “funding restrictions.”) The judge put the federal law’s legal status on the agenda for the “case management” conference on Tuesday.

Another issue on that agenda is the request of Trump Administration lawyers for more time to file their formal responses to the San Francisco lawsuit, and to a similar lawsuit by the California county of Santa Clara.  (Santa Clara’s lawsuit is aimed only at the Trump executive order. Last week’s ruling applied to both of the California jurisdictions.)

Although Judge Orrick has stopped the executive order, that is only a preliminary order, and not a final ruling on whether the executive order is actually unconstitutional. As the case proceeds further, after a schedule is worked out, the government is expected to defend its powers to deal with “sanctuary cities.”

Ultimately, that constitutional issue could wind up in the Supreme Court. Aside from the challenges by the two local jurisdictions in California, lawsuits against the Trump policy are being pursued by the city of Seattle, two cities in Massachusetts and another in California.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this post first appeared.