Judge Orrick’s bizarre decision

The more I think about Judge Orrick’s decision striking down President Trump’s executive order on sanctuary cities, the more outrageous it seems. Kent Scheidegger at Crime and Consequences tears the decision to shreds.

Scheidegger starts, as one normally should, with the relevant language from the executive order at issue:

Section 9. Sanctuary jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary [of Homeland Security], in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.

(Emphasis supplied by Scheidegger)

The question that immediately arises is how a directive from president to his subordinates that is expressly limited by its terms to actions “consistent with law” can possibly be illegal. As Scheidegger says, if you asked that question you understand the law better than Judge Orrick does.

The next question is: what does the statute referred to in the executive order — 8 U.S.C. 1373 — do? The answer is: it forbids government entities from stopping their employees from exchanging information with immigration authorities. That’s all.

Scheidegger points out:

It does not “commandeer” local resources for immigration purposes. It does not require county sheriffs to keep people in jail longer than the state criminal process requires in order to hold them for the immigration authorities. It only says the county board can’t stop the sheriff’s deputy from tipping the immigration authorities that, e.g., a rapist who is illegally in this country is about to be released from county jail.

When this law was enacted, President Bill Clinton said: “this bill is good for America…. [It] includes landmark immigration reform legislation that cracks down on illegal immigration without punishing legal immigrants.” Bill Clinton was right.

Federal law already ties the receipt of federal grants to law enforcement agencies to compliance with all applicable federal law. The Obama Department of Justice, under Loretta Lynch, determined that Section 1373 is one of the laws encompassed by that command.

Thus:

[W]e know that there are laws on the books already interpreted by the prior administration to require compliance with section 1373 as a condition of some grants. We also know that executive officers do not always enforce laws to the hilt. Can’t the chief executive direct his subordinates to enforce a particular law to the hilt, but not beyond the hilt? Of course he can.

How, then, did Judge Orrick get around the obvious fact that the Order does not change the law, but merely directs the Attorney General and Secretary to enforce existing law? He attempted to do so with this passage:

The Government attempts to read out all of Section 9(a)’s unconstitutional directives to render it an ominous, misleading, and ultimately toothless threat. It urges that Section 9(a) can be saved by reading the defunding provision narrowly and “consistent with law,” so that all it does is direct the Attorney General and Secretary to enforce existing grant conditions.

But this interpretation is in conflict with the Order’s express language and is plainly not what the Order says. The defunding provision is entirely inconsistent with law in its stated purpose and directives because it instructs the Attorney General and the Secretary to do something that only Congress has the authority to do-place new conditions on federal funds.

If Section 9(a) does not direct the Attorney General and Secretary to place new conditions on federal funds then it only authorizes them to do something they already have the power to do, enforce existing grant requirements. Effectively, the Government argues that Section 9(a) is “valid” and does not raise constitutional issues as long as it does nothing at all. But a construction so narrow that it renders a legal action legally meaningless cannot possibly be reasonable and is clearly inconsistent with the Order’s broad intent.

What nonsense! Obviously, as Scheidegger notes, a superior officer’s direction to his subordinates to do something that they have the authority to do, pursuant to existing law, but has in practice not always been done is not “legally meaningless.” It is precisely the kind of thing a president might reasonably, and lawfully, demand.

There’s also the problem, noted by Andy McCarthy, that no action has yet been taken under the executive order to deny grants to any jurisdiction. Scheidegger is correct when he asks:

[H]ow can any particular city claim that it has been harmed before these officers have taken any action to deny any grant to any city? Doesn’t it make more sense to wait and see which grants they deny?

If the denials are “consistent with law” then the order is legal as so applied, and if the denials are not “consistent with law” then they were not authorized by the order, so the problem lies with the particular application of the order and not the order on its face.

With a concrete controversy of a particular grant being withheld because of a particular city’s “sanctuary” policy, a court would be in a better position to determine whether the withholding actually is “consistent with law,” wouldn’t it? If you get that, then congratulations, you understand the Supreme Court’s doctrine of “ripeness” better than a federal district judge.

Actually, I’m sure Judge Orrick understands the doctrine of ripeness. But he understands the imperative of advancing the left’s agenda and undermining President Trump better.

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