A proposed $1 trillion deal to keep the federal government open until October could chill two Trump administration objectives that already face considerable political and legal hurdles.
Multiple reports on Monday said that Congress has reached an informal agreement on an omnibus funding bill that should be approved later this week. The bill would then need to be signed by President Donald Trump by the weekend to avert a government shutdown through September 30.
Politico said the bill is more than 1,600 pages long in its draft form, but two sections will likely get a lot of attention over the next few months. First, the bill reportedly contains no direct funding for a Mexico border wall project. It does include more than $1.5 billion for new technology at borders and repairing infrastructure in place at border locations. And second, Congress passed on a White House request to cut federal grant funding to areas that the federal government would define as “sanctuary jurisdictions.”
To be sure, both issues won’t be resolved in the near future and could resurface as budget and funding talks resurface in September. And both the wall and sanctuary city debates will likely spill over into the courts.
Trump administration officials are now targeting next fall as a new deadline for a border wall funding requirement. But even if they achieve that goal, such a project would be years in the making. The Mexico wall project could stretch for about 2,000 miles, including existing fences and barrier built in past years. Much of that land, mostly in Texas, belongs to state and private owners. The Fifth Amendment’s Takings Clause would allow the federal government to claim the land for public use, provided it pays a fair price for the land as just compensation.
Few experts dispute the Trump administration’s ability to buy the land. However, the eminent domain process can be a long, expensive process for even the smallest pieces of land. President Trump’s proposed budget in March included expenses for 20 attorneys to litigate eminent domain problems related to the wall.
The sanctuary city debate is already in the federal court system, subject to a national injunction issued last week by a federal district judge. During last year’s presidential campaign, Trump said he would “cancel all federal funding to sanctuary cities” and in March, his proposed budget included $210 million in cuts for federal funds sent to local jails that hold illegal immigrants accused or convicted of crimes.
U.S. District Judge William H. Orrick of San Francisco said on April 25 that a Trump executive order unconstitutionally attempted to cut off federal funds to local governments that do not help enforce federal immigration law. Among his findings, Orrick ruled that only Congress, not the President or other Executive Branch officials, can impose new conditions on how federal money is handed out in grants.
Orrick also made broader arguments about how the executive order might violate separation of powers and state sovereignty principles in the Constitution. However, he also made clear that unless the Executive Branch had specific powers to cut grant funding, it would face more legal challenges if it threatened widespread funding cuts to sanctuary jurisdictions.
“Where Congress has failed to give the President discretion in allocating funds, the President has no constitutional authority to withhold such funds and violates his obligation to faithfully execute the laws duly enacted by Congress if he does so,” Orrick said.
There are two other cases about the executive order in the federal legal system. The Justice Department disputes Orrick’s findings and is appealing the decision.
The executive order empowers the Secretary of Homeland Security to identify sanctuary jurisdictions and to work with the Attorney General to block “federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary” to sanctuary jurisdictions.
Scott Bomboy is the editor in chief of the National Constitution Center.
