Trump Crackdown Confronts Sanctuary Fight, Skeptical Judge

  • President’s order called unconstitutional threat to funding
  • Judge questions U.S. claim executive order doesn’t change law

A key part of the Trump administration’s push to arrest and deport undocumented immigrants was met with skepticism from a federal judge.

San Francisco and its Silicon Valley neighbor, Santa Clara County, are seeking a nationwide ban on enforcement of President Donald Trump’s Jan. 25 executive order declaring that so-called sanctuary cities have caused “immeasurable harm to the American people and to the very fabric of our republic.” The city and county say they’re threatened with the loss of perhaps billions of dollars in federal funding unless they abide by unconstitutional demands.

U.S. District Judge William Orrick dealt a first blow to the administration in court Friday, agreeing with the city and county that they’re harmed by Trump’s policy and have the right to sue to block it. The judge went on to pick apart the administration’s argument that the order merely restates existing law, saying in making his decision he would take into account past statements by the president and Attorney General Jeff Sessions and not just the text of the order itself.

A victory for the city and county would reinforce similar policies in some of the nation’s largest cities, including New York, Los Angeles and Chicago. It would be another blow to Trump’s call to tighten U.S. borders and crack down on those living in the U.S. illegally. He’s already lost multiple bids to impose a travel ban against citizens of six mostly Muslim countries.

Why ‘Sanctuary Cities’ Are a Target for Trump: QuickTake Q&A

A win for the two would also bolster California’s aspirations to lead the so-called resistance against the Trump administration’s agenda. This month, the state Senate passed the California Values Act, a measure that would give the entire state sanctuary status by prohibiting its agencies from sharing certain information with U.S. counterparts or detaining individuals on orders from Washington.

John Keker, a lawyer for Santa Clara County, called the threat to withhold funding a “gun to the head” of local officials.

“This unconstitutional order cannot be enforced, cannot be applied, cannot exist consistent with law,” Keker argued at Friday’s court hearing in San Francisco. “The president doesn’t have the power to do it.”

Imprecise Language

Orrick, nominated by President Barack Obama, questioned U.S. Justice Department lawyer Chad Readler about the imprecise language of the president’s order, saying it doesn’t describe how funds would be withheld or define what it means to hinder enforcement of federal law.

Readler agreed with Orrick that Congress rather than the president has authority over federal funding and conditions on grants to cities must be related to the purpose of the program.

“There’s no clear definition of sanctuary,” Readler added. “It means different things to different people.”

Readler restated the administration’s view that the president’s order doesn’t add anything to what’s already required of cities. The only funds affected by the order would be grants from the Justice Department and Department of Homeland Security, he said, adding that those restrictions were already in place under the Obama administration.

“What is this executive order about, then?” Orrick asked. He said he would issue a written ruling as soon as he could on San Francisco and Santa Clara County’s requests for a preliminary injunction halting enforcement of the order. The judge also set a further hearing for April 25 regarding whether cities have an obligation to share information with immigration authorities.

‘In Sync’

The White House and Sessions have chided California and its allies, accusing them of harboring criminals. Sessions said in March that the administration would use “all the lawful authority we have to make sure that our state and local officials are in sync with the federal government."

Sessions told the International Association of Chiefs of Police at a conference in Litchfield Park, Arizona, that the Justice Department was serious about enforcing immigration laws to make the country safer.

“But there are holdouts,” Sessions said in Tuesday’s speech. “Some mayors and city councils, and even a police chief and a sheriff here and there, are refusing to work with the federal government, choosing instead to protect the criminal aliens who harm public safety. For the sake of your communities, families, and children, work with us.”

After Trump issued his executive order, the administration asked Congress to draft a 2017 spending bill that includes a provision to withhold federal funds from states and local governments that shield undocumented immigrants from deportation. Part of the Justice Department’s argument against the requests for preliminary injunctions by San Francisco and Santa Clara County is that neither has actually lost any funding yet.

Fearing Police

The city and county say the administration’s threats have already caused damage. Their residents, especially immigrants, now fear that that local police have been commandeered by U.S. Immigration and Customs Enforcement and will detain and deport them if they seek help in an emergency, they contend.

“On the ground, communities are already experiencing the harm of the executive order," said Jayashri Srikantiah, a Stanford Law School professor who submitted an argument in the case in support of the city and county. “During the floods in San Jose, the undocumented and immigrant communities were reluctant to call law enforcement for fear they’d be turned over to ICE."

ICE agents have executed regional detention and removal programs on a weekly basis to arrest “criminal aliens” en mass. From April 2 to April 6, ICE said it arrested 368 foreign nationals across the country, including in New York City, Denver, Colorado and Washington. One of them was a Guatemalan man who had been released by New Jersey authorities after Camden County declined to honor a detainer request filed by ICE.

While state and local governments can do little to control ICE’s detention sweeps, Orrick’s ruling could determine whether they can continue to enforce their own laws, even if they contradict White House policy. The city and county contend more than $2 billion in public funding is at stake if the president’s order is enforced. They also argue the order is a clear violation of Congress’ exclusive right to allocate or withhold public funds, as well as the Constitution’s Tenth Amendment protecting states from federal overreach.

The case is County of Santa Clara v. Trump, 17-cv-00574, U.S. District Court, Northern District of California (San Francisco).

    Before it's here, it's on the Bloomberg Terminal.