Donald Trump

Why Trump Deserves to Lose in Federal Court on Sanctuary Cities

The president's executive order is unconstitutional under the 10th Amendment and the separation of powers.

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Gage Skidmore / Flickr.com

A federal judge has declared President Donald Trump's executive order denying federal funding to so-called sanctuary cities to be unconstitutional. The judge got it right.

In his opinion this week in County of Santa Clara v. Trump, and the related case of City and County of San Francisco v. Trump, Judge William Orrick of the U.S. District Court for the Northern District of California found the president's order to be in violation of the 10th Amendment, the Fifth Amendment, and the constitutional separation of powers.

"The Constitution vests the spending powers in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds," Judge Orrick wrote. "Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves."

I've said it before and I'll say it again: Sanctuary cities are protected by both the Constitution and Supreme Court precedent. For starters, as the late Justice Antonin Scalia explained in Printz v. United States (1997), "the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States' officers, or those of their political subdivisions, to administer or enforce a federal regulatory program." Put simply, Trump's executive order flunks the 10th Amendment test that Scalia spelled out in Printz.

Trump's executive order also flunks the test set forth by the Supreme Court in National Federation of Independent Business v. Sebelius (2012), which held that the federal government may not threaten to withhold existing funding from a state in an attempt to coerce that state into doing the feds' bidding. Such an effort would be an unconstitutional act of "economic dragooning."

Finally, Trump's executive order flunks the text of the Constitution itself, which, as Judge Orrick points out, "vests the spending powers in Congress, not the President." The limited and enumerated powers of the executive branch are spelled out in Article II; the federal spending power is located in Article I.

Related: Will Liberals Learn to Love the 10th Amendment?

NEXT: Trump Defends Roy Moore, Erik Prince Will Testify Before Congress, and Harvard Faces DOJ Probe: P.M. Links

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  1. One does wonder how the whole thing jives with States presuming powers of the Federal Government though.

    I guess that particular argument hasn’t been tried yet?

    1. What federal powers are states presuming?

      1. The Civil War/War Between the States. Duh!

        1. Does this mean any presumption of sovereignty, as in united States? ‘Cause I think that’s what you mean.

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      2. I’ll take the enumerated power of immigration control delegated to the Federal government for $100, Alex.

        1. Which enumerated power is that?

          Also, for bonus points please quote the language in the Constitution about borders. Thanks in advance.

          1. Sadly, we can paraphrase Dickens:

            – The 10th amendment was dead: to begin with. There is no doubt whatever about that. The register of his burial was signed by the clergyman, the clerk, the undertaker, and the chief mourner. Scrooge signed it: and Scrooge’s name was good upon ‘Change, for anything he chose to put his hand to. Old Tenth Amendment was as dead as a door-nail.

            Why is the federal government in the health insurance business? the education business? the….

  2. “The Constitution vests the spending powers in Congress, not the President, so the Executive Order cannot constitutionally place new conditions on federal funds,” Judge Orrick wrote.

    They’re grants divvied out by the DoJ. CONGRESS didn’t provide this money to any cities. They provided grants and has the DoJ decide.

    And they have done so.

    I’ve said it before and I’ll say it again: Sanctuary cities are protected by both the Constitution and Supreme Court precedent. For starters, as the late Justice Antonin Scalia explained in Printz v. United States (2007), “the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Put simply, Trump’s executive order flunks the 10th Amendment test that Scalia spelled out in Printz.

    They’re not forcing anybody.

    They are saying “If you want this grant money, well, strings are attached. Don’t want the strings? Don’t APPLY for the grants in the first place”

    1. Where do you think that DoJ is getting this money? Jeff Sessions’ piggy bank? The money for the grants is appropriated by Congress, and Congress has set out in a statute how those grants are to be disbursed. DoJ doesn’t have plenary authority to come up with its own rules- Congress dictated the rules and DoJ has to follow those rules.

      1. Congress doesn’t decide what city does and does not get the money. DOJ decides that. There is no withholding of funds.

        1. The judge seems to disagree with you.

          1. Until some better judges disagrees with that federal district court judge.

            It’s TDS and open border frenzy. Luckily, Trump is winning every one of these battles. These judges who are violating their oaths of office will get their month dog and pony show. In the meantime, Trump’s cabinet members keep chugging along rolling back government and enforcing immigration law.

            1. You have an ironic handle name given the contempt for the Constitution you’re displaying here.

              The states aren’t required to enforce Federal law and cannot be compelled to do so. Congress has decided what strings are attached to these grants, and the DoJ doesn’t get to make up new ones just because Sessions or Trump is having a temper tantrum.

              The judge isn’t violating his oath of office, but your America-hating, asset-forfeiture loving, scumbag hero Sessions is on a daily basis.

        2. DOJ decides based on the rules that Congress enacted. And those rules do not include compliance with 8 USC 1373.

        3. DOJ doesn’t set the terms of the grant. They just administer it.

  3. …the Federal Government may neither issue directives requiring the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.

    If only states would push back on all out-of-proportion federal crusades against its citizens’ various peccadilloes.

  4. “Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that they not be unduly coercive.

    Given that they are divvied out by DoJ, they are for, you know, law enforcement. And if a city decides they are going to not cooperate with federal law, fine. They just lose the grants in the process.

    If they want to be noble and just, they should stand by their call.

    It’s time for some serious judicial blood-letting in this country, We have too many judges — including this guy who, before being a judge, was quite a prolific fund-raiser for Democrats — and we need to lose a lot of them.

    1. If you had bothered to read the opinion, you’d know that the EO did not limit threatened federal funds to law enforcement grants. But keep on getting outraged about facts that exist only in your own head.

      1. If a state is ignoring federal law, demanding federal money is amusing.

        1. the amusing thing is your ability to completely ignore both the law and the facts.

          1. Aw, poor sock puppet adam330 is confused how facts and current law works.

        2. One shouldn’t have to state that it’s not actually, “federal money” – it’s money stolen from the people of the various states; withholding it for political matters further compounds the immorality of it all. Now, I don’t want my money going to LA to an illegal in the form of welfare, but I want it used to further partisan agendas even less.

    2. But the executive order wasn’t limited to law enforcement grants, which was kind of a big problem the judge had with it.

  5. So that explains why it wasn’t okay for the feds to withhold funds against states not enforcing the 55 mph speed limit, or the 21-year-old drinking age, amirite?

    And if say, Alabama, decides to stop enforcing federal laws concerning slavery, say, there’s not much the feds can do about it?

    1. No, it doesn’t, because the withholding of funds for 55 mph speed limit was specifically created by Congress, specifically in Section 2(b) of the 1974 Emergency Highway Energy Conservation Act. That’s the whole issue here- Trump decided to make up a new condition for federal grants that wasn’t approved by Congress.

      1. exactly Congress would have to rewrite the laws with the sanctuary exclusion included in the bill which would not happen until the next bill writing sessions if they were so inclined and i don’t think they are.

      2. The executive branch has broad spending authority; if Congress wants to restrict that, they need to pass appropriate laws.

        1. They did; according to the judges, anyway.

  6. Fair enough on the point about appropriations. However local officers are engaged in a conspiracy to aid and abet individuals in violation of federal law; the latter who are in fact civilian invaders of the country. These local people therefore should be arrested and tried on those grounds.

    1. I would actually like to see a federal prosecutor try to make this case, just to see how quickly they would be laughed out of court.

      1. if you or I refused to turnover criminals in our homes to the federal government it would be harboring and obstruction which would put us in jail and that same law should be applied to local governments as well it won’t but it should

        1. There is an important difference here. The cities aren’t refusing to turn them over. They are refusing to keep holding them.

          It’s not harboring or obstruction for you to let someone leave before the cops get there.

          1. It’s not harboring or obstruction for you to let someone leave before the cops get there.

            That’s actually not true in general:

            In the United States, a person who learns of the crime and gives some form of assistance before the crime is committed is known as an “accessory before the fact”. A person who learns of the crime after it is committed and helps the criminal to conceal it, or aids the criminal in escaping, or simply fails to report the crime, is known as an “accessory after the fact”. A person who does both is sometimes referred to as an “accessory before and after the fact”, but this usage is less common.

            That is, failing to report a crime, letting a criminal that you already have apprehended, or even facilitating a crime, can be prosecuted. The same principle could easily be applied to immigration enforcement.

            1. But they are reporting the aliens. They just aren’t incarcerating them long enough to suit the Feds.

              Would we expect Colorado police to enforce federal marijuana laws? Should a marijuana grower in Denver, who is arrested for an unrelated crime, be turned over to the Feds for prosecution?

            2. Since being in the country illegally is not a crime, how is this relevant?

              1. “illegally” … “not a crime” …. Do you have some special definition of the word “illegal” not available to the rest of us?

                1. “Crime” means in violation of a statute providing for criminal penalties. Most laws do not provide for criminal penalties, including most of the ones dealing with immigration. A very large proportion of illegal immigrants are here because they overstayed valid visas. While this is illegal, and can lead to deportation, it is not a crime. Entering the US without a visa or other authorization, on the other hand, is a crime.

        2. Tumblrina can count on the fact that judges are as savagely left wing as he is and will uphold a ridiculous double standard though, so you just shut the fuck up and take it, racist whitey.

      2. If the court followed the law, the responsible authorities would be prosecuted under
        U.S. Code ‘ Title 8 ‘ Chapter 12 ‘ Subchapter II ‘ Part VIII ‘ ? 1324
        8 U.S. Code ? 1324 – Bringing in and harboring certain aliens

        Link and relevant text in a comment below.

  7. Could DOJ merely deprioritize the award of grants to sanctuary cities?

    They can 1) make up excuses not to select those cities and 2) put them on the bottom of the list of checks to write, and leave them there.

    Much like Obama and immigration enforcement.

  8. ICE will just have to conduct raids in cities that don’t cooperate.

    Start with Los Angeles. ICE could probably deport 10% of the population.

    1. It will be funny for election 2018 when a significant part of the illegals are deported and There are millions of less votes for democrats.

      1. I would point out that illegals can’t vote, but then neither can the dead; how do we go about deporting the deceased and to where do we send them?

  9. States don’t have to enforce federal laws, and they can’t be dragooned into doing so by the sort of thing that got struck down in the Obamacare case.

    Also, as far as criminal aliens are concerned, I’d say that once someone is here and is convicted of a crime, the state can keep that person in prison for the duration of his sentence rather than simply send him out of the country.

    But states themselves ought to pass laws that illegal criminal aliens should be handed over to ICE at the end of their prison sentences. That would provide a bona fide method of overruling the sanctuary cities.

    1. Specifically, there should be state laws that the feds get informed of the conviction of any criminal alien, advised in advance of when and where they will be released once their sentence is over, etc.

  10. “Related: Will Liberals Learn to Love the 10th Amendment?”

    My guess: No. They’ll just say, “how ironic, we’re using those racists’ own book of rules against them, just like Saul Alinsky of blessed memory said we should!”

  11. Finally, Trump’s executive order flunks the text of the Constitution itself, which, as Judge Orrick points out, “vests the spending powers in Congress, not the President.” The limited and enumerated powers of the executive branch are spelled out in Article II; the federal spending power is located in Article I.

    It’d be nice to think that this strange new respect for the Constitution and its limits on executive power will extend to more than about 4 seconds after the next Democrat takes office.

  12. You know, if Trump can’t withhold funds from sanctuary cities, I’m sure he could just impose a penaltax equal to the amount of the grant for non-compliant cities. I’ve heard the courts are cool with penaltaxes. Or, he could just ignore the court ruling the way Obama ignored the court ruling that those insurance company re-imbursements for Obamacare losses were an unconstitutional appropriation of funds by the executive branch.

    1. PPACA was not an executive order.

      1. Neither is Federal immigration law.

  13. The tenth amendment? Really? Hahahahhahahahahahaha!
    When was the last time the court invited the 10th amendment? What’s next, applying the ninth? Hell, 90% of the federal government would be found illegal if the courts start applying the 9th and tenth amendments.

    1. “invoked’ not “invited”. Stoopit auto spell

      1. It’s not like Obama used a trillion dollars (of future generations money) to pay off all his friends. Pelosi/Reid approved the money but Obama cronies decided on wear to spend it for the most part. It was the Obama decision to spend money on field mice studies in Nancy Pelosi’s urban district, etc.

        So it’s OK for Obama to decide to spend money but not OK for Trump to not spend money. Got it?

    2. The department of Education would go bye-bye!!!

  14. A federal judge has declared President Donald Trump’s executive order denying federal funding to so-called sanctuary cities to be unconstitutional. The judge got it right.

    Seriously? According to you, the feds can deny federal funding for the flimsiest of reasons, but they can’t deny funding to cities that refuse to cooperate on immigration enforcement? That’s ridiculous.

  15. Sanctuary cities are illegal by

    U.S. Code ‘ Title 8 ‘ Chapter 12 ‘ Subchapter II ‘ Part VIII ‘ ? 1324

    (a) Criminal penalties
    (1)
    (A) Any person who?
    (i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien;
    (ii) …
    (iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation;
    (iv) encourages or induces an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law; or
    (v)
    (I) engages in any conspiracy to commit any of the preceding acts, or
    (II) aids or abets the commission of any of the preceding acts,
    shall be punished as provided in subparagraph (B).

    Lock them up. Start with the Mayors of the cities.

    1. The title of the Code is:

      8 U.S. Code ? 1324 – Bringing in and harboring certain aliens

      Harboring, inducing, and concealing illegal aliens is a federal crime, as is conspiracy to do the same.

    2. None of this seems even remotely applicable to what sanctuary cities are doing. Which is probably why even immigration hardliner Jeff Sessions hasn’t attempted a prosecution of local officials under this statute.

      1. He’s not as stupid as the Trumpkin sheep.

  16. I’d applaud cities and states for refusing to enforce federal laws, if they would just do it consistently. Many of the people who support sanctuary cities are the first fucking people to shriek “Supremacy Clause! Supreme law of teh land!” if a federal law they like is being defied.

    1. You want people to be rational, including consistent, in their thinking.

      That’s adorable.

  17. Honestly, I don’t care why the feral government was shot down on 10th Amendment grounds, only that it was. That’s one small step for a judge, one giant leap for federalism.

  18. And you guys wonder why so many people think that state’s rights activists are only interested in the state’s right to discriminate against minorities.

    The average libertarian is nothing but inconsistent on principles.

    1. You being too fucking retarded to comprehend the topic under discussion is not inconsistency of principle.

  19. The feds want to withhold grants from cities that refuse to cooperate with federal immigration enforcement?

    No way! 10th Amendment, bitches!

    What? Arizona passed a law mandating cooperation with federal immigration enforcement?

    Uhhhh……….. Federal Supremacy, bitches!

    Gotta love Reason. Mexicans’n’Muslims uber alles.

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