The strategy of shit-talking judges is paying off BIGLY for the Trump administration, so it's time for some more crazy. Let's start with accusing San Francisco of "judge shopping" by bringing suit in ... San Francisco, and work our way backwards through the newest "Your Bullshit Executive Order Is Illegal" Injunction.

But first, a little inflammatory rhetoric from your friend Sean Spicer.

San Francisco, and cities like it, are putting the well-being of criminal aliens before the safety of our citizens, and those city officials who authored these policies have the blood of dead Americans on their hands. This San Francisco judge’s erroneous ruling is a gift to the criminal gang and cartel element in our country, empowering the worst kind of human trafficking and sex trafficking, and putting thousands of innocent lives at risk.

Oh, Spicey! You never disappoint.

Remember When Bannon Had Power and He Wrote All Those Gonzo Executive Orders?

On January 25, newby President Donald Trump signed an Executive Order "Enhancing Public Safety in the Interior of the United States." He was very GRRRRRR ANGRY because his electoral college win was yuuuuge, so hating immigrants is obviously the law now.

Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United States.  These jurisdictions have caused immeasurable harm to the American people and to the very fabric of our Republic.

Since then, evil leprechaun Jeff Sessions has been hovering menacingly over coastal cities, threatening to take away all their lucky charms if they don't hand over the "aliens" pronto. Or at least the brown ones. But then California cities said, COME AND TAKE IT. Only they pronounced it Complaint for Declarative and Injunctive Relief in the case of County of Santa Clara v. Donald J. Trump, et al, because they are elite liberals.

Yesterday, Judge William Orrick issued a nationwide injunction on enforcing the Executive Order and a walloping smackdown of Trump and his big fat mouth. It is glorious! Let's Lawsplore!!!

We Can Hear You! If You Plan to Break the Law, Don't Announce It on Television (You Fucking Moron)!

Hanging out on teevee with your best pussgrabbin' pals is almost as fun as golfing. Tweeting the latest Fox arglebargle is also an important presidential job. But then courts ruin it by citing your THE BEST words as evidence of your actual intent. Which is NO FAIR ACTIVIST JUDGES!!!

Government attorneys had the unenviable job of arguing that Trump's Executive Order should be held separate from all the crazy shit Trump said about it. But Judge Orrick was all LOLOLOL! Since most of the injunction rests on Section 9(a) of the EO, let's dive right into it.

(a)  In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.  The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction.  The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

Looks like a naked threat to withhold all federal dollars from cities who don't want to hand people over to ICE, right? Unless you are the government lawyer tasked with arguing before Judge Orrick. In which case, you march right up there with a straight face and say:

  1. This Order only applies to funds granted by the Department of Justice and Homeland Security. Why would you think Donald Trump is talking about Medicaid and Education dollars? OMG, NO!; and
  2. This EO is just the president using his "bully pulpit" to encourage States to comply with the law. Because he cares about the citizens of Santa Clara. Threaten? Who's threatening?

EXCEPT...you'll never guess who went on Bill O'Reilly's Grope-n-Grab Hour to talk about using federal funds as a "weapon" against sanctuary cities.

I don’t want to defund anybody. I want to give them the money they need to properly operate as a city or a state. If they’re going to have sanctuary cities, we may have to do that. Certainly that would be a weapon. [...] I’m very much opposed to sanctuary cities. They breed crime. There’s a lot of problems. If we have to we’ll defund, we give tremendous amounts of money to California . . . California in many ways is out of control.

On February 5. Nine days after he signed the "sanctuary cities" order.

Bad news, Pops. THE JUDGE HAS CABLE.

With regards to the merits of the Government’s construction, the Order is not readily susceptible to the Government’s narrow interpretation.

Article 1: Separation of Powers

The president is a powerful guy, but not as powerful as his buddy Vlad. That part in the Constitution assigning federal spending powers to Congress is kind of a big thing. Trump can veto a budget, but he can't rescind any funds or place conditions on disbursement. (Or pass 9th grade Civics, apparently.) WEAK!

The Order’s attempt to place new conditions on federal funds is an improper attempt to wield Congress’s exclusive spending power and is a violation of the Constitution’s separation of powers principles.

Ouch. Good thing you stopped letting Bannon draft those orders!

Fifth Amendment: Due Process

Laws aren't supposed to sneak up on you. A competent legislator would never say, "Don't be a sanctuary city!" without spelling out exactly what that means. But whichever flunky on Team Bannon drafted this order is neither "competent" nor a "legislator." So, Trump's January 27 EO gave Homeland Security Secretary John Kelly discretion to call out "sanctuary cities" and yank their federal funding at will.

On February 10, San Diego's police chief asked Kelly directly for the definition of a "sanctuary city." And he responded, "I don't have a clue." Nevertheless, the administration was threatening to claw back money already allocated to blue states scofflaws if he stared into the Magic Hate Ball and SANCTUARY CITY floated up.

If the Secretary has unbounded discretion to designate “sanctuary jurisdictions” but has no idea how to define that term, states and local jurisdictions have no hope of deciphering what conduct might result in an unfavorable “sanctuary jurisdiction” designation. [...]

It does not direct the Attorney General or Secretary to provide “sanctuary jurisdictions” with any notice of an unfavorable designation or impending cut to funding. And it does not set up any administrative or judicial procedure for states and local jurisdictions to be heard, to challenge enforcement action, or to appeal any action taken against them under the Order. This complete lack of process violates the Fifth Amendment’s due process requirements.

Tenth Amendment: STAY IN YOUR OWN LANE

The Tenth Amendment forbids the federal government from conscripting states to carry out federal laws. Because of this, courts have consistently held that states cannot be required to help Immigration and Customs Enforcement to deport their residents.

Until 2009, Santa Clara County voluntarily coordinated with ICE to hold an average of 135 people in its jails every day, at a daily cost of $159 per person. ¡Tantos pesos! The Obama administration refused to reimburse Santa Clara for any of these funds, so the County stopped complying in 2010.

Now, being a Constitutional scholar, Donald Trump knows well that he can't tell cities how to use their police forces. But he's just saying, it would be really sad if something happened to the 35 percent of Santa Clara's budget that depends on federal funds. Not that he would ever threaten...

The Executive Order attempts to use coercive methods to circumvent the Tenth Amendment’s direct prohibition against conscription. While the federal government may incentivize states to adopt federal programs voluntarily, it cannot use means that are so coercive as to compel their compliance. The Executive Order’s threat to pull all federal grants from jurisdictions that refuse to honor detainer requests or to bring “enforcement action” against them violates the Tenth Amendment’s prohibitions against commandeering.


Karma's a Bitch

Remember back in 2010 when President Obama was drunk with power and tried to force states to set up their own healthcare exchanges and expand Medicaid so poors would die a little less? Remember how a bunch of patriotic Republican governors stood up against totalitarianism and sued for their right to deprive their own citizens of healthcare? Remember how the Court said that the Obama administration COULD NOT coerce states to comply with the ACA by withholding federal funds?

TG we had those principled men standing up for the Spending Clause we all hold so dear!

In 2012, the Supreme Court held that the federal government could not withhold Medicaid funding to coerce states to expand eligibility. Nat’l Fed. of Indep. Bus. v. Sebelius (“NFIB”),132 S. Ct. 2566,(2012) And yesterday, Judge Orrick cited NFIB when he told the government to GET FUCKED with its threats to withhold money unless states start handing over their residents for deportation.

Legislation that “coerces a State to adopt a federal regulatory system as its own” “runs contrary to our system of federalism.” States must have a “legitimate choice whether to accept the federal conditions in exchange for federal funds.” In NFIB, the Supreme Court concluded that the Affordable Care Act’s threat of denying Medicaid funds, which constituted over 10 percent of the State’s overall budget, was unconstitutionally coercive and represented a “gun to the head.” The Executive Order threatens to deny sanctuary jurisdictions all federal grants, hundreds of millions of dollars on which the Counties rely. The threat is unconstitutionally coercive. [Citations omitted.]


And the Horse You Rode In On!

Judge Orrick noted several other ways this EO is hilariously, amateurishly illegal. As Trump himself would say, "Very, very bad. The worst." The Judge opined that the president might educate himself on the difference between his "right to use the bully pulpit to encourage his policies" and actual factual lawmaking. Also, he told the government to shove said order up its ass in all fifty states.

The Government argues that, if an injunction is issued, it should be issued only with regards to the plaintiffs and should not apply nationwide. But where a law is unconstitutional on its face, and not simply in its application to certain plaintiffs, a nationwide injunction is appropriate.

So, a very good morning to you, California! Thanks for standing up to the Lunatic in Chief. We owe you one!

[Executive Order / Santa Clara v Trump, all docs available at court website / Pool Notes from John Kelly's Feb. 5 Press Conference]

Who's going to wade through four years of these facacta cases? We are. So don't forget to tip your servers!

Liz Dye

Liz Dye lives in Baltimore with her wonderful husband and a houseful of teenagers. When she isn't being mad about a thing on the internet, she's hiding in plain sight in the carpool line. She's the one wearing yoga pants glaring at her phone.


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