Law

Trump's Eagerness for a Win Hurts Him in Court

The judge who blocked the sanctuary cities executive order uses the president's words to show it's probably unconstitutional.

Can't catch a break.

Photographer: Saul Loeb/AFP/Getty Images

A federal district court in California ruled Tuesday that President Donald Trump’s executive order on sanctuary cities would be unconstitutional if used to pull funding from municipalities that don’t do the president’s bidding in reporting undocumented people to the federal government. This result is heartening but not surprising: I predicted the result on constitutional grounds back in November, two months before the order was even issued.

What’s noteworthy is how desperate the Trump Department of Justice was to avoid a defeat -- so desperate, in fact, that its lawyers told the judge that the executive order actually had no legal effect at all.

QuickTake Why ‘Sanctuary Cities’ Are a Target for Trump

The judge, William Orrick, refuted that argument by quoting statements from Trump as well as Attorney General Jeff Sessions, a move borrowed from the courts that had previously rejected Trump’s successive executive orders on immigration.

The administration’s frantic efforts not to lose and the judge’s easy rejection of those efforts mark the current state of play between Trump and the courts. Put simply, Trump can’t seem to catch a break, much less win a case. His strategy of announcing bold executive orders with scant attention to their legality is now officially in tatters.

The legal arguments in the sanctuary cities case can be summed up pretty simply. The court said first that as president, Trump doesn’t have the power to set conditions on federal grants unless Congress has already provided that he does in the law creating the grants. Thus, the executive order had no legal justification for purporting that the president could impose new conditions.

This is a restatement of the most fundamental principle of the separation of powers: Congress makes laws; the president executes them. He doesn’t get to change the laws around. The fact that the order seemed ignorant of this basic civics lesson is still shocking to my mind.

The court’s ruling should be a good reminder that in the U.S., the president doesn’t rule. He doesn’t even govern, like a parliamentary prime minister. The president executes the laws passed by Congress, unless the president is acting within the scope of the executive’s inherent authority.

Next, the court said that even if Congress did give the president authority to set conditions on grants, there are still constitutional limitations. Congress has to tell the states about conditions on funding in advance, because the U.S. Supreme Court has said that such grants are in the nature of the contract between Congress and the states. There must be a relationship between the condition and the subject area of the grant. And the condition can’t be coercive -- what Chief Justice John Roberts called a “gun to the head” in the Affordable Care Act decision, NFIB v. Sebelius.

All these limits to what Congress can do come from the conservative judicial ideology sometimes known as “the new federalism.” That is, they were developed to protect states’ rights against the federal government.

Liberals didn’t much like any of these limits when they were first discovered by conservative justices -- especially the “gun to the head” rule, which blocked Congress from forcing all states to adopt the Medicaid expansion intended by the ACA. But the limits are on the books, and now liberals are pleased to use them against the Trump administration.

Faced with the high probability of defeat, the Trump Justice Department showed fear. Rather than fighting for the legality of the order, the Justice lawyers argued that the executive order in fact had no independent legal effect but was rather “merely an exercise of the President’s ‘bully pulpit’ to highlight a changed approach to immigration enforcement.”

It’s pretty astonishing that the executive branch was claiming Trump’s executive order was nothing but hot air. True, the public saw the headlines about the order in the first place, and likely won’t know what the lawyers were saying in court. They’ll also read Trump’s tweets on the matter.

The news in court, however, got worse for the president. Even though the Justice Department was prepared to strip the executive order of any content, the court refused to take the bait.

The judge could have issued a short order saying that he accepted the executive branch’s interpretation of the executive order and would hold the government to it. Then the court wouldn’t have had to address the unconstitutionality of the rest of the order.

That would’ve been an exercise of judicial prudence -- the kind courts like to deploy when they’re feeling a little shaky about their power relative to the political branches.

Instead, the district court gleefully pointed out that the Justice Department’s interpretation of the order was at odds with statements by Trump, who called the order a “weapon” to be used against sanctuary cities, and Sessions, who threatened sanctuary cities with grant “withholding” and “clawback.”

The court felt so confident in quoting the president against the Department of Justice is no doubt because other courts have done the same in blocking Trump’s immigration executive orders.

The whole enterprise is so familiar that it almost feels like a script.

That’s good news for the rule of law and our constitutional institutions, which are showing their impressive capacity to stand up against gross violations of the legal ground rules.

It’s bad news for the Trump administration, which really ought to start rethinking the use of headline-grabbing executive orders that are unconstitutional and will therefore be blocked by the courts.

It’s fair to say that one accomplishment of Trump’s first 100 days is that the courts are starting to think his most prominent executive orders are almost presumptively unconstitutional. And that’s not something you can say about any earlier president.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Noah Feldman at nfeldman7@bloomberg.net

    To contact the editor responsible for this story:
    Stacey Shick at sshick@bloomberg.net

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