Trump has had yet another one of his executive orders
struck down in court. On Tuesday, a Federal judge in San Francisco issued a temporary stay on the enforcement of Executive Order 13768, which was intended to deny federal funds to sanctuary cities.
The Trump administration's argument in this case was almost a self-parody. Recall how, in the cases regarding the travel ban, the government argued that Trump's statements outside the four corners of the Executive Order should not be considered. This case takes that logic a step further; here, the government does not want the court to consider Trump's statements
within the four corners of the order, i.e., the text of the order itself. According to the administration, this Executive Order doesn't actually mean anything. It's just a rhetorical device, designed to emphasize activities that the administration would already be taking.
The text of the Executive Order, however, belies this interpretation. § 9(a) contains the relevant part:
In furtherance of this policy, the Attorney General and the Secretary, 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.
This isn't nothing. Quite the opposite: it gives the Attorney General or the Secretary of Homeland Security broad discretion to deny almost all Federal funding to a city. This is obviously not something the President can choose to do. Congress has the power to spend money, and therefore to choose the conditions under which the money is spent.
U.S. Const. Art. I § 8. Congress can, and sometimes does, leave a certain amount of discretion to the President. But this Executive Order would allow the Attorney General or the Secretary to withhold nearly
all Federal funds from jurisdictions they designate, regardless of whether Congress has granted them that discretion.
Not only does this violate basic separation of powers principles, but Judge Orrick found that, even if Trump did have the power to witthold funds without permission from Congress, the way in which he does so here would violate the Tenth Amendment. The Tenth Amendment, in its entirety, states that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."
U.S. Const. Amend. X.. The Supreme Court has interpreted this amendment to prevent the Federal government from coercing states or state officials through the withholding of Federal funds.
In particular, the Supreme Court has held that the Federal government cannot force state officials to execute Federal laws,
Printz v. United States,
521 U.S. 898 (1997); that when the Federal government withholds funds, the conditions for withholding funds must be clear, unambiguous, and serve matters of national concern,
South Dakota v. Dole,
483 U.S. 203 (1987); and that the withholding of funds cannot amount to coercion,
National Federation of Independent Businesses v. Sebelius,
132 S. Ct. 2566 (2012).
The Judge found that the Executive Order was in violation of all of these principles. By leaving the Secretary and Attorney-General the discretion to determine what a sanctuary city was, the conditions for withholding Federal funds were neither clear nor unambiguous. Because such a determination would deny a city
all Federal funding, the denial of funding amounted to coercion. And because this coercion is designed to enforce compliance with 8 U.S.C. § 1373, which requires state officials to communicate with the Federal government on matters of immigration, the Executive Order unconstitutionally forces state officials to enforce Federal law.
The Trump administration's response to all of this, by the way, is not to insist that denying sanctuary cities all Federal funds would be consistent with the Constitution. Instead, the administration insists that the Executive Order doesn't require them to do that. Instead, they argue that the Executive Order only allows the Secretary or Attorney-General designate as sanctuary cities those cities not compliant with 8 U.S.C. § 1373, and then only deny those cities Federal funds that Congress has already made contingent on compliance with 8 U.S.C. § 1373. In other words, the Order doesn't do anything at all, it is just designed as a rhetorical device to criticize sanctuary cities.
Trump's supporters insistence that we take him seriously, but not literally, may sometimes hold sway in the court of public opinion; but it cannot hold sway in a court of law. Judge Orrick, examining both the text of the Executive Order and the statements of Trump and Sessions in interviews and speeches, concluded that the Executive Order didn't mean nothing. On the contrary, it asserted a sweeping authority to do what not even Congress is allowed to do.
It's likely that Trump will appeal, but the 9th Circuit Court of Appeals hasn't been friendly to him so far. And his argument is so bizarre that, even if he wins, his Order is given an authoritative reading that renders it meaningless. Trump has, for the umpteenth time in his Presidency, found himself trapped between the scylla of insisting he be taken at his word, and the charybdis of insisting he not be taken at his word.