Judge Rules Trump 'Sanctuary Cities' Executive Order As Unconstitutional As All The Other Ones

Good Morning, Wonkers! It is NiceTimes again, at least for the next 20 minutes until we have to come back and tell you that yet another of your childhood heroes is a horrible rape monster. But until then, let's enjoy this epic smackdown of Trump's Sanctuary Cities Order from the 9th Circuit.

Way back in January, when Steve Bannon was still writing all those gonzo Executive Orders, the White House burped out a presidential decree to withhold "federal funds" from "sanctuary cities." They didn't define sanctuary cities, or describe which funds were going to be withheld, but then Donald Trump helpfully went on The O'Reilly White Grievance Hour to flesh it out.

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.

Yes, the President went on national television to announce his plan to withhold all federal dollars from the state of California to punish it for not turning over undocumented immigrants to ICE. Because he's slick like that. And because he doesn't Constitution good.

In April, Judge William Orrick issued a preliminary injunction on enforcement of the order because:

  1. Separation of Powers: The president can't impose new restrictions on money already allocated by Congress, and the Constitution grants spending powers to Congress.
  2. Fifth Amendment Due Process: The president can't punish states for being sanctuary cities if no one knows what a sanctuary city is.
  3. Tenth Amendment: The Constitution forbids the federal government from conscripting states to enforce federal laws.
  4. Precedent from ACA litigation: If it was illegally coercive for the Obama administration to withhold Medicaid money from red states that didn't set up exchanges, then Trump can't punish blue states for refusing to cooperate with ICE.
  5. Illegal Intent: The President went on TV to clarify that he explicitly intended to punish California, because he is a dumbass.

Jeff Sessions, who is no one's idea of a great legal mind, tried to save the executive order by issuing a Memorandum in May. We're definitely not doing anything illegal, he promised, so disregard our threats to withhold "any" funds and all that stuff Trump said on teevee. He was just funnin'!

Which is all very interesting, except that a Memorandum from Jeff Sessions ISN'T LAW, and an Executive Order from the president, Donald Trump, IS. As Judge Orrick put it,

The AG Memorandum purports to clarify the scope of the Executive Order to a more narrow interpretation than what its plain meaning allows. To fix the constitutional problems I have identified, the Executive Order itself would need to be amended. I have concluded that the AG Memorandum amounts to "nothing more than an illusory promise to enforce the Executive Order narrowly."

Yesterday the judge granted the cities of Santa Clara and San Francisco summary judgement and permanently barred enforcement of the Order. Sessions will probably still be able to condition receipt of some law enforcement funding on compliance with ICE detainer requests, but at least the president and his goon squad will have to back off trying to dock Medicaid and education funding for cities and states that refuse to round up immigrants and turn them over to ICE for deportation. And in 2017, that's what counts as NiceTimes. We'll take it!

[Santa Clara v. Trump, Order granting summary judgement / Sanctuary Cities Executive Order / AG Memorandum / WaPo]

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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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