An Obama appointee in San Francisco finds that the EOs violate the Constitution in several ways — just as he did in Trump’s first term.
A federal judge in Northern California has barred the Trump administration from withholding funds from cities and counties that follow sanctuary policies, which were targeted by executive orders the president issued at the start of his second term.
In a six-page order issued this morning, Judge William Orrick Jr., an Obama appointee to the district court in San Francisco, reasoned that, in relevant part, Trump’s Executive Orders 14,159 (“Protecting the American People Against Invasion”) and 14,218 (“Ending Taxpayer Subsidization of Open Borders”) violate the Constitution’s separation of powers.
The spending power in Article I vests Congress with the authority to allocate public funds, including the authority to attach conditions on expenditures. It does not empower the president to attach additional conditions. The president’s constitutional duty is to take care that the laws enacted by Congress are faithfully executed. That gives leeway to decline to enforce laws — here, laws to spend allocated funds — that the president deems unconstitutional (at least until the courts conclusively rule otherwise). Under separation of powers, the president may not legislate, much less rewrite Congress’s laws.
As enacted, federal spending laws do not condition funding to states, counties, and municipalities on their enforcement of federal immigration laws.
Judge Orrick concluded that the two EOs at issue were substantially indistinguishable from the president’s first-term EO 13,768 (“Enhancing Public Safety in the Interior of the United States”). When that EO was issued, Judge Orrick similarly ruled that it was unconstitutional. Importantly, his ruling was upheld by the Ninth Circuit on appeal, in San Francisco v. Trump (2018). Hence, even if Orrick had changed his mind in the intervening years, which he clearly hasn’t, he’d have been bound to follow the circuit’s 2018 precedent.
Orrick also found that the new EOs violate the Fifth Amendment because, in his view, they are vague and violate due process (withholding funds on the president’s unilateral say-so). Further, the judge concluded that the EOs violate the Tenth Amendment by coercively commandeering state and local officials into enforcing executive immigration policies and federal law. Moreover, to the extent that Attorney General Pamela Bondi has undertaken, in compliance with the EOs, to freeze DOJ funds Congress has allocated to state and local programs, Orrick found it likely that this action was arbitrary and capricious, violative of the Constitution, and thus an illegal final agency action in violation of the Administrative Procedure Act.
The court rejected the administration’s arguments that the plaintiff cities and counties lacked standing since no funds have actually been withheld yet. Orrick further found that the cities and counties faced a likelihood of irreparable harm “in the form of budgetary uncertainty, deprivation of constitutional rights, and undermining trust between the Cities and Counties and the communities they serve.”
Orrick indicated that a longer opinion will follow. Presumably the Trump Justice Department will appeal to the Ninth Circuit. Judge Orrick directed that his order “shall apply to the maximum extent provided for” by federal law and procedural rules. That appears to give it close to nationwide scope. (See my essay on nationwide injunctions in the current edition of NR magazine.) Sixteen cities and counties joined the suit; besides San Francisco and Santa Clara (the cities and counties in the Northern District of California, where the suit was filed), they include Minneapolis; New Haven, Conn.; Portland, Ore.; St. Paul, Minn.; Santa Fe, N.M.; and Seattle.