“The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them.” – President Ronald Reagan
“The Counties’ motions for a nationwide preliminary injunction, enjoining enforcement of Section 9(a), are GRANTED. The defendants (other than the President) are enjoined from enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions. This injunction does not impact the Government’s ability to use lawful means to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does it restrict the Secretary from developing regulations or preparing guidance on designating a jurisdiction as a “sanctuary jurisdiction.” IT IS SO ORDERED.”
Specifically, Judge Orrick’s order targeted this language contained within Section 9(a) of the Executive Order:
“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.”
There are a lot of things wrong with this order – not least its interpretation of federal funding (for a discussion of this matter see the article by Hans von Spakovsky – a source used for this portion of the discussion).
Note, specifically, the word “grant”. There is no targeting of federal entitlement programs such as Highway Funding or Medicaid in the Executive Order – only grants. Furthermore, the order is directed to The Department of Justice and Homeland Security – thereby likely limiting grant withholding to those from these two Departments – a point of focus in Spavkovsky’s piece.
Judge Orrick took a much broader view – a violation of jurisprudence in itself:
“The Executive Order purports to retroactively condition all “federal grants” on compliance with Section 1373. As this condition was not an unambiguous condition that the states and local jurisdictions voluntarily and knowingly accepted at the time Congress appropriated these funds, it cannot be imposed now by the Order.”
In other words, Judge Orrick is claiming that the federal government is changing the rules under which federal funding may occur after states have already agreed to set conditions.
However, he immediately acknowledges the government’s position that the Executive Order targets only three grant areas:
“The Government’s lawyers say it only applies to three grants issued through the Departments of Justice and Homeland Security.”
But, again, Judge Orrick allows his decision to rest on potential withholding of all federal funding:
“The Executive Order’s attempt to condition all federal grants on compliance with Section 1373 clearly runs afoul of the nexus requirement: there is no nexus between Section 1373 and most categories of federal funding, including without limitation funding related to Medicare, Medicaid, transportation, child welfare services, immunization and vaccination programs, and emergency preparedness.”
Unfortunately for Judge Orrick, the grant areas cited by the government do fall within the Nexus requirement and specifically require adherence to Section 1373:
“To ensure that grantees comply with Section 1373, and all other applicable federal law, OJB [Office of Justice Programs] already requires all grant applicants electronically to acknowledge and accept the conditions contained in two documents – “General Assurances” and “General Certifications” – as preconditions to a grant award.”
Lets step back for a moment. The laws of the United States clearly give the President control over immigration policy. More importantly, the Constitution gives the President control of foreign policy and national security as noted by Article II of the Constitution. And adherence to federal law supersedes state law – as noted by the Supremacy Clause within Article VI of the U.S. Constitution which dictates that federal law is the “supreme law of the land”.
As noted by Daniel Sobieski; “Implicit in accepting federal funding would be the condition of obeying the laws of the United States which sanctuary city officials are sworn to uphold.”
There should not need to be a clause attached to federal funding of any kind – entitlements or grants – that needs to specifically state that states must follow existing federal law – such as Section 1373.
Judge Orrick is not targeting the legality of the actual issue at hand – sanctuary city policies that prevent their police from notifying ICE officials when they detain an illegal alien. These policies clearly violate federal law. Instead, he chose a legal clause within the order – and then applied a very broad interpretation to it – in order to manufacture an injunction against the entire Executive order. Judge Orrick wanted to find a means to judicially legislate the outcome he desired.
Interestingly, Judge Orrick donated $30,000 to committees supporting Obama’s 2008 presidential campaign. He also served as a political fundraising “bundler” for Obama, raising over $200,000. In 2015, Judge Orrick issued a temporary restraining order against a pro-life group that had been releasing disturbing undercover videos about Planned Parenthood – “out of concern for the safety of National Abortion Federation leaders”.
Lastly and notably, the Obama Administration itself previously threatened to cut off federal funding to North Carolina when that state fought against Obama’s Transgender Bathroom “Guidance”.
Should President Trump choose to appeal the ruling – and he has indicated he will – it would go to the 9th Circuit Court of Appeals. If upheld by the 9th Circuit Court of Appeals – likely given their track record – it would then proceed to the Supreme Court.
Where it would almost certainly be overturned.
The idea of our nation’s foreign and domestic policies being established by lone, activist – and unelected – judges operating from internal biases is preposterous – and alarming.
Judicial activism has become a very real problem for this country.
President Ronald Reagan saw this danger clearly:
“The role assigned to judges in our system was to interpret the Constitution and lesser laws, not to make them. It was to protect the integrity of the Constitution, not to add to it or subtract from it — certainly not to rewrite it. For as the framers knew, unless judges are bound by the text of the Constitution, we will, in fact, no longer have a government of laws, but of men and women who are judges. And if that happens, the words of the documents that we think govern us will be just masks for the personal and capricious rule of a small elite.”
More on this topic to come.
newer post Reversing the 9th Circuit Court of Appeals