Confirming an interpretation by a district court judge last year, a three-judge panel of the Ninth Circuit Court of Appeals ruled (by a two-to-one margin) a Trump executive order seeking to deny grants to “sanctuary cities” an unconstitutional violation of the separation of powers.
The order, which was a key part of the administration’s efforts to intimidate and demonize California state and local governments accused of failing to cooperate with ICE, has not been implemented, mainly because Judge William Orrick issued a nationwide injunction against it in November of 2017 (after putting a hold on it in April until the case was heard). The appeals court panel concluded that the order usurped Congress’s exclusive power over federal spending and did not reflect any inherent presidential power or any congressional delegation of authority. In a nice twist, the judges cited one of conservatives’ favorite jurists as authority for denying the Executive branch this kind of prerogative:
As then-Assistant Attorney General William Rehnquist noted in 1969, “[w]ith respect to the suggestion that the President has a constitutional power to decline to spend appropriated funds, we must conclude that existence of such a broad power is supported by neither reason nor precedent.”
The Ninth Circuit also made short work of this rather interesting argument from the Justice Department:
[T]he Administration argues that the Executive Order is all bluster and no bite, representing a perfectly legitimate use of the presidential “bully pulpit,” without any real meaning—“gesture without motion,” as T.S. Eliot put it.
There certainly was a lot of bluster, from Trump, from Attorney General Jeff Sessions, and from then–White House press secretary Sean Spicer, when the order was promulgated just a few days after the president’s inauguration. But the judges concluded that the plain language of the order did represent a tangible threat to the two California counties that brought the suit, which were pretty clearly targeted along with the State of California itself.
Speaking of bluster, you can be sure the administration and quite possibly the president himself will conduct their usual attacks on the “liberal” Ninth Circuit. Indeed, Orrick’s original ruling produced such an outburst from then–White House chief of staff Reince Priebus:
White House Chief of Staff Reince Priebus says the ruling is another case of “the 9th Circuit going bananas” in response to the 9th Circuit Court based in San Francisco, where judges have also ruled against Trump’s travel bans.
The administration has often criticized the 9th U.S. Circuit Court of Appeals. Orrick does not sit on that court but his district is in the territory of the appeals court, which has ruled against one version of Trump’s travel ban.
Priebus also threatened to take the case all the way to the Supreme Court, which remains an option, though its arguments seem to lack much public appeal. The dissenting judge who sided with Team Trump did so only on grounds that the order had never actually been enforced, which isn’t a good look for an administration trying to look tough on sanctuary cities and the godless State of California. Not enforcing an order designed to punish officials for not enforcing the law won’t win much applause at MAGA rallies.
The government did win one argument before the judges: they said Orrick’s nationwide injunction wasn’t sufficiently justified by evidence the administration was targeting jurisdictions outside the Golden State. So they sent the case back to him for further examination of that issue. Since Orrick’s second deliberation will force Trump’s lawyers to look toothless and feckless all over again in order to avoid a nationwide injunction, they may not put up that much of a fight.