Another West Coast federal judge has delivered another legal setback to the Trump administration, as San Francisco–based district court judge William Orrick granted two California counties a temporary restraining order against enforcement of a presidential executive order in January that sought to deny federal funds to “sanctuary cities” (or counties, or states) —state or local jurisdictions that refuse to lend a hand to federal immigration authorities in apprehending undocumented immigrants. (Incidentally, a judgment along these lines was predicted weeks ago by Roger Parloff in a piece for New York.)
Litigation over the order was held in abeyance until it became the basis for a recent threatening letter and statement from Attorney General Jeff Sessions warning that law enforcement grants could soon be withheld from jurisdictions (eight received letters, including the State of California but not any California local governments) that remained defiant. Now the legal beagles have been unleashed. What’s really strange about the case is that the Justice Department claimed the executive order did not (because it could not legally) endanger grants beyond a tiny few that already made cooperation with immigration authorities a condition for receiving federal funds. Had Orrick bought that argument, he might have agreed with the government that the jurisdictions asking for the temporary restraining order had no real standing to do so and would suffer no real harm from enforcement of the executive order. But as with the earlier travel ban, the big mouths and tough talk of Team Trump thwarted the administration’s legal strategy, as Orrick noted:
It is heartening that the Government’s lawyers recognize that the Order cannot do more constitutionally than enforce existing law. But section 9(a) [of Trump’s order], by its plain language, attempts to reach all federal grants, not just the three mentioned at the hearing…. And if there was doubt about the scope of the Order, the President and the Attorney General have erased it with their public comments.
And so Orrick granted the restraining order, and now the administration really needs to make up its mind whether the executive order in question is a substance-free exercise of the “bully pulpit,” as the DoJ attorneys suggested in court, or the big bad “weapon” for vindicating respect for the law and stopping the vast crime wave it attributes (falsely) to immigrants, as Trump and Sessions have claimed publicly. Then, if they choose they can seek to get Orrick’s ruling overturned by that same Ninth Circuit Court of Appeals that was their legal nemesis earlier this year.
Good luck with that.