In a predictable but emphatic decision, California-based federal district judge William Orrick issued a permanent ruling (following up on a temporary order he made back in April) declaring the president’s executive order punishing so-called “sanctuary cities” (and states) unconstitutional. In fact, Orrick said the order violated the Fifth and Tenth Amendments and the bedrock constitutional principle of separation of powers.
The order sought to disqualify jurisdictions that did not fully cooperate with federal immigration-enforcement efforts from receiving federal grants. It was never all that clear which federal grants would be affected, though tough talk from the president and the attorney general about the order being designed as a “weapon” to compel sanctuary cities to help apprehend undocumented immigrants undermined the administration’s later argument that the order was just hortatory.
The most fundamental problem with the order, said Orrick, is that it seeks to override the Legislative branch’s power to set conditions for receipt of federal funds that Congress has appropriated. That violates the principle of separation of powers. And even if the president did have the power to set grant conditions without congressional authorization, this order did so in an overly broad manner that would “commandeer” state and local governments, whether or not the money involved was in any way related to immigration enforcement. The vagueness of the order, moreover, violated Fifth Amendment due process rights of the affected parties.
While the administration can be expected to thunder against Orrick’s ruling and the president will likely tweet another condemnation of liberal judges exceeding their powers, Orrick’s ruling is hardly controversial. At the conservative Volokh Conspiracy legal blog, the order was roundly condemned at its inception as representing the kind of Executive branch and federal government “power grab” that Republicans so often accused President Obama of undertaking:
Even if the power-grab is limited to withholding funds when states or localities violate other federal laws and regulations, it is still a grave menace. There are literally thousands of federal laws and regulations on the books. No jurisdiction can fully comply with all of them. If the president can withhold funds from any state or locality that violates any federal law, without needing specific authorization from Congress, he would have sweeping authority over state officials.
The administration may appeal Orrick’s ruling in order to enable some additional presidential demagoguing about sanctuary cities and the threat of criminal immigrants. But it will struggle to find any court that will validate Trump’s power to order state and local governments to become agents of his noisy border war.