the law

Jeff Sessions Is Faking His Outrage About the Sanctuary Cities Injunction — Here’s Proof

Attorney General Jeff Sessions speaks to local, state, and federal law enforcement about a recent spate of gang-related killings on April 28, 2017, in Central Islip, New York. Photo: Spencer Platt/Getty Images

Attorney General Jeff Sessions is not being honest with the American public.

He is trying to deceive you into believing that a federal judge went off the rails when he blocked President Donald Trump’s executive order aiming to defund so-called “sanctuary cities.” (Trump and the White House aren’t being honest about the ruling either, but their mendacity is so pervasive as to no longer be newsworthy.)

Sessions professed to be shocked by the ruling. “Actions that have always been understood to be squarely within the powers of the president, regardless of the administration, have now been enjoined,” he said in a prepared statement. “The Department of Justice cannot accept such a result … and we will continue to litigate this case to vindicate the rule of law,” he continued. “This is the Trump era … This will be the administration that fully enforces our nation’s immigration laws.”

The White House statement was in the same vein, but more over the top. “Today, the rule of law suffered another blow, as an unelected judge rewrote the immigration policy for our nation,” it said in its statement. “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.”

But Sessions and the White House have a secret they’re trying to keep from you. The judge they’re denigrating, U.S. District Judge William Orrick III of San Francisco, actually ruled that Sessions and Homeland Security Secretary John Kelly may continue to do everything — everything — that Sessions’s own staff attorneys at the Department of Justice claimed the executive order empowered them to do.

Sessions has, then, no legitimate beef with Judge Orrick at all. His beef, if any, should be with his own staff attorneys, because they all but conceded in court that the executive order could not constitutionally accomplish the things Sessions and Trump kept telling the public that it could.

Beginning during the election campaign and continuing since issuance of the executive order on January 25, Sessions and Trump have been threatening to strip federal funding from so-called “sanctuary jurisdictions” — cities or counties that do not cooperate with immigration authorities to the degree Trump believes they should. Under the executive order, Sessions said in a speech in March, such jurisdictions would face “withholding [of] grants, termination of grants, and disbarment or ineligibility for future grants,” as well as the “claw back” of funds previously awarded. Trump told Fox News host Bill O’Reilly in February that he’d use the threat of defunding as a “weapon” to change these cities’ policies vis-à-vis immigration authorities.

The text of the executive order makes no distinction between different kinds of federal funds, and thus appears to implicate billions of dollars’ worth of federal grants issued to municipalities by various federal agencies for such diverse purposes as hospitals, nutritional programs, affordable housing, homeless shelters, transportation infrastructure, and much more. In the case of Santa Clara County, California — one of the plaintiffs in the lawsuit before Judge Orrick — federal grants account for about 35 percent of its annual budget, or some $1.7 billion.

The DOJ attorneys defending the case, however, appear to have recognized that the order, to the extent that it purported to authorize Sessions and Kelly to unilaterally and retroactively deprive municipalities of all these funds on the basis of their seemingly unreviewable say-so, was unconstitutional, root and branch. For reasons I described in detail last month, such an order would violate multiple long-standing precedents relating to separation of powers, the Tenth Amendment (which bars federal officials from “commandeering” state officials into carrying out federal regulatory schemes), and the Due Process Clause of the Fifth Amendment.

For that reason, the Department of Justice staffers working on the case tried to save the executive order the only way they knew how: by arguing to Judge Orrick that the order really did no such thing. They claimed, instead, that it actually had a narrow, modest, and benign meaning. It did not “alter or expand the existing law” at all, the department argued in its briefs. In fact, argued Acting Assistant Attorney General Chad Readler at the oral argument on April 14, regardless of its broad language, the order was only meant to urge Sessions and Kelly to exercise the power they already had to cut off grants issued by their own departments — Justice and Homeland Security — and had nothing to do with grants issued by, say, Health and Human Services or the Department of Transportation or any other government agencies. Moreover, Readler argued, it only applied to those few grants that had already been expressly conditioned from the outset upon a municipality’s agreement to share certain information with federal immigration authorities.

Really? And how many such grants are there?

Just three, it turns out. There are three narrow law-enforcement-related programs, run by the Justice Department, for which, in July 2016, the Obama administration started conditioning grants on an applicant’s commitment to cooperate with immigration authorities in specified ways.

“Are you arguing,” Judge Orrick asked, with evident disbelief, “that the executive order is targeting three grants that were conditioned a year ago? Is that the argument?”

“In many ways that’s correct,” Readler conceded.

(Not one dime of Santa Clara’s $1.7 billion in federal funding came from any of these three programs, in part because it didn’t want to agree to the Justice Department’s condition.)

In his ruling, Judge Orrick found that it was “not legally plausible” that the executive order was, in fact, meant to be read as narrowly as Readler urged. Still, he agreed with Readler that Sessions and Kelly probably did have the power to enforce explicit immigration-related conditions written into grant programs issued by their own agencies.

So in his order he gave Readler everything he asked for, except the official victory.

“This injunction does nothing more than implement the effect of the Government’s flawed interpretation of the Order,” Orrick wrote. “It does not affect the ability of the Attorney General or the Secretary [of Homeland Security] to enforce existing conditions of federal grants.”

What the injunction did do, however, was stop Sessions and Trump from continuing to threaten and deceive the nation’s municipalities into thinking that Sessions and Kelly could strip them of billions of dollars of grants from scores of programs if the municipalities didn’t bow down before them and pledge their employees as unpaid deputies to the federal immigration police.

Since Assistant Attorney General Readler claimed that the executive order had never been intended for that purpose, it’s unclear why Attorney General Sessions would have any cause to regret the outcome. (The Department of Justice press office did not respond to an inquiry seeking comment.)

It’s disappointing that the Department of Justice — a body whose devotion to the rule of law is supposed to transcend politics — would issue a press release taking such nakedly misleading, propagandistic cheap shots at a federal judge who had granted the department virtually everything it claimed to be entitled to.

But then, as Sessions noted, “This is the Trump era.”

Sessions Is Faking Outrage Over Sanctuary Cities Injunction