Declaring that President Trump probably acted unconstitutionally in attempting to cut off federal funds to city and county governments that do not help enforce federal immigration law, a judge in San Francisco on Tuesday temporarily blocked enforcement of the policy anywhere in the nation.
In the latest action by a federal court against the Trump Administration’s wide array of immigration enforcement actions, U.S. District Judge William H. Orrick found that only Congress, not the president or other Executive Branch officials, can impose new conditions on how federal money is handed out in grants.
The ruling was not limited to the two local jurisdictions that sued the Trump Administration in this specific case – San Francisco and California’s Santa Clara County. It will apply to any city or county that has a policy of refusing to arrest, hold or report foreign nationals who may be in the country illegally. It is not clear how many such “sanctuary cities” there are, but the list is assumed to be quite lengthy.
The new ruling does not sweep as broadly as recent orders by other federal judges in blocking President Trump’s original and revised executive orders barring entry of foreign nationals from Muslim-majority nations or refugees from anywhere in the world, but does amount to a new reminder that the courts will act as independent monitors of strong and novel use of presidential powers to achieve policy goals.
Judge Orrick’s 49-page ruling was not a final judgment that the president did violate the Constitution in his January 25 order against “sanctuary jurisdictions,” but rather amounted to a conclusion that the two challenging local governments are likely to win their challenge when the case is fully and finally decided.
In the meantime, though, the part of the January executive order explicitly at issue in the case cannot be enforced to cut off federal funds to any jurisdiction unless the specific terms of a federal grant make it a condition that the city or county join in enforcing the laws against remaining in the U.S. illegally. The judge identified only three fairly small federal grant programs with that condition; thus, those can be enforced under the new decision.
The judge declined to aim his order against enforcement directly at President Trump personally, saying that it is a general rule that courts should not issue such orders against the president. But the order specifically is aimed at two Cabinet secretaries, Attorney General Jeff Sessions and Homeland Security Secretary John F. Kelly, and against scores of lower-ranking federal officials and employees involved in enforcing U.S. immigration laws.
The two California jurisdictions had leveled a number of constitutional challenges at the presidential order, and Judge Orrick ruled that they had shown that they are likely to prevail on each of those claims. The judge left for later a decision on a separate claim by San Francisco that Congress does not have the constitutional power to force local governments into helping enforce immigration laws by making that a condition of access to any specific federal grant program.
San Francisco (which operates as both a city government and a county government) and Santa Clara County each receive millions of dollars of federal funds every year to help pay for a variety of public services. The two local governments argued that a loss of those funds, under the Trump order, would seriously impair their local budgets.
One curious facet of the lawsuit, as it developed in Judge Orrick’s court, was that the Trump Administration’s lawyers tried to argue that the executive order actually made no change in federal law, and had only the effect of using the president’s “bully pulpit” to try to shore up public support for his policies. The judge rejected that interpretation, declaring that the order was, in fact, a move to establish a new, and coercive, policy to commandeer local governments into rounding up and reporting to the federal government any foreign national that might be in the country illegally.
President Trump and Attorney General Sessions have both made repeated public statements that individuals illegally in the U.S. are responsible for a significant increase in crimes, especially in “sanctuary cities” that harbor them from federal authorities. Judge Orrick used those statements as part of his findings that the January order marked a significant, and threatening, change in federal law that very likely is well outside the powers of the Executive Branch.
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.