The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Most observers perceive yesterday's federal court ruling against Donald Trump's executive order targeting sanctuary cities as a significant setback for the administration, at the ands of Santa Clara and San Francisco, the cities that filed the case. Trump himself seems to agree, judging by his fulminations against it. But a few commentators, such as Ilya Shapiro and David French, claim that the decision is insignificant—even that it is "much ado about nothing" (Shapiro) or "mostly meaningless" (French).
Their key point is that Judge William Orrick's ruling still permits Trump to do all the things that would be authorized by the administration's lawyers' ultra-narrow interpretation of the order: withhold grants that have previously been conditioned on state and local government compliance with federal immigration laws and enforce 8 USC Section 1373 (a statute forbidding states and localities from instruction their officials to withhold information on citizenship status from the feds) by "lawful" means. On this view, the ruling makes little difference because it does not prevent the administration from doing any of the things it wanted to use the order to accomplish.
This theory has several major flaws. Most obviously, it ignores the fact that the actual text of the order goes far beyond the absurdly minimalistic gloss put on it by administration lawyers as a litigation tactic. As Judge Orrick explains at length in his opinion, the order's language applies to all federal grants, not just those that were specifically conditioned by Congress on compliance with Section 1373 or other federal mandates related to immigration policy. It makes little sense to interpret the order in a way that renders it "meaningless" (as French put it) or "toothless" (in Judge's Orrick's description). In interpreting laws and executive orders, the standard judicial practice is to avoid interpretations that would render them utterly ineffectual and superfluous. Judge Orrick also notes that Trump's and Attorney General Jeff Sessions' sweeping statements about what the order is intended to do cut against the minimalistic interpretation.
The interpretation advanced by the administration's litigators and endorsed by Shapiro and French is also inconsistent with the administration's angry reaction to the ruling. White House Chief of Staff Reince Priebus called the decision "bananas" and promised that the administration would appeal it. Trump has railed against it on Twitter and promised to fight the issue all the way to the Supreme Court. This is not the reaction of people who have already gotten everything they wanted from yesterday's decision. If Judge Orrick's ruling allows them to do all that the order was supposed to do anyway, there would be no point to any appeal. Trump could then just declare victory and end the litigation.
French and Shapiro also point to the provision in Trump's order that indicates funds can only be withheld "to the extent consistent with law." This could be interpreted as forswearing any withholding that violates constitutional constraints, including the requirement that grant conditions be authorized by Congress. But, as Judge Orrick explained, this interpretation would make the order utterly ineffectual and toothless. It would not authorize the withholding of any funds that could not be withheld anyway. A more plausible interpretation of the order is that it assumes that, under existing law, there is some significant class of federal grants that could be withheld by executive order even if Congress did not authorize the conditions the executive wants to impose.
Imagine that Trump issued an executive order authorizing the Justice Department to suppress publications critical of the president, but only "to the extent consistent with law." Such an order would surely be unconstitutional, despite the fact that defenders could argue that it really doesn't authorize any censorship because all such action is banned by the First Amendment. The hypothetical censorship order makes no sense unless it is premised on the assumption that the administration could engage in viewpoint-based censorship of critics in at least some cases. The same point applies to the sanctuary cities order and its mandate to withhold federal funds from targeted jurisdictions.
Yesterday's ruling creates problems for the administration even if the position advanced by the administration's litigation team is correct. They argued that the administration could use the order to withhold grants available under three small law enforcement programs, from jurisdictions that do not comply with Section 1373. The lawyers contend that these grants are conditioned on compliance with Section 1373 under existing law. But Judge Orrick's decision emphasizes that the president cannot impose spending conditions that were "not provided for by Congress." And none of the authorizing statutes for the three programs mention Section 1373 as a grant condition imposed on recipients. The fact—much trumpeted by administration supporters—that the Obama Justice Department once sent a letter indicating that Section 1373 is an "applicable federal law" for these programs is constitutionally irrelevant. The Obama Justice Department can no more impose grant conditions not authorized by Congress than Trump can. Under Judge Orrick's ruling, therefore, the administration may find it hard to withhold funds even under these three programs.
Finally, yesterday's ruling is likely to have important effects that go beyond strictly legal considerations. Uncertainty over the scope of the order has led at least some sanctuary jurisdictions to cave in to Trump, for fear of losing large amounts of funding. Miami-Dade is the most notable example. If yesterday's ruling holds, sanctuary jurisdictions will no longer have much reason for fear. They need not worry about losing any funds that were not specifically conditioned by Congress on compliance with Section 1373 and other similar policies. Such congressional conditions are either nonexistent or very close to it. Trump's threats to withhold funding through unilateral executive action would be exposed as a paper tiger.
Ultimately, yesterday's ruling served a valuable function even if all it did was force the administration to clarify the ultra-narrow scope of the order, and admit that it is largely toothless. Even if that interpretation of the order is right, it is still important that the cases brought by San Francisco and Santa Clara led the administration to make that clear.
This decision is not the end of the legal battle over Trump's sanctuary cities order. But if it holds on appeal, the lawsuit brought by Santa Clara and San Francisco will stand as an important example of what liberals can do to help make constitutional federalism great again in the Trump era. In the long run, strong enforcement of constitutional limits on federal power can benefit people across the political spectrum and help mitigate the partisan hatred that is poisoning American politics.
UPDATE: I analyzed yesterday's ruling in detail here. In a previous post written when Trump's executive order was first issued, I explained why it was unconstitutional for reasons similar to those advanced in Judge Orrick's ruling.