Terry H. Schwadron
Sept. 17, 2017
More and more, what we’re seeing is the Trump administration taking actions in the name of campaign pledges and ideology, only to run into a federal judge looking at the inevitable lawsuit — as more frequently than not, overturning the Team Trump effort.
I award gold stars to those who argued that the 2016 elections really were about the future of judges throughout the federal system up to the Supreme Court.
These decisions unceasingly are being seen as “political,” even if they rule narrowly on the meaning of a constitutional or well-argued point in established legal precedent. Thus, people of all political stripe then see that the required step is a visible protest on the steps of the Supreme Court, or the local courthouse, as if that will be the definitive popular expression of some kind of legal influence.
Meanwhile, the President himself has acted to undercut any legal decisions that does not adopt his particular and, often peculiar use of legal means to express direction and policy. Thus, decisions about his personal business that came before a federal judge whom 45 found objectionable because of his “Mexican” ancestry and multiple judicial judgments that found Team Trump’s travel bans unconstitutional and poorly written all drew criticism from the White House.
On Friday, there was another one: A federal judge blocked the Trump administration’s attempt to use Justice Department public-safety grant programs to discourage so-called sanctuary city policies aimed at protecting undocumented immigrants. Acting on a lawsuit brought by the city of Chicago, District Court Judge Harry Leinenweber issued a nationwide preliminary injunction stopping the Justice Department from requiring cities to allow immigration agents access to local jails and insisting that local authorities give advance notice when suspected illegal immigrants are about to be released from custody.
“Congress may well have Spending Clause power to impose the conditions or delegate to the Executive Branch the power to impose them, including the notice and access condition, but it must exert that power through statute,” wrote Leinenweber, a Reagan appointee. “The Executive Branch cannot impose the conditions without Congressional authority, and that authority has not been conferred” by the statutory provision Justice Department lawyers cited, the judge said.
The joke is that this Congress would probably pass it, though newfound urgency among Democrats could make it difficult. Like former President Obama, Mr. Trump has found it easier to issue executive orders than to deal with Congress.
The 41-pge decision found that those new conditions “violate the separation of powers doctrine” delegating lawmaking authority to Congress. The judge said he was applying his order nationally because there was “no reason to think that the legal issues present in this case are restricted to Chicago or that the statutory authority given to the Attorney General would differ in another jurisdiction.”
Cities with sanctuary policies contend that they help build trust between law enforcement and communities with significant numbers of undocumented immigrants, but Atty. Gen. Jeff Sessions insists that the practice leaves local residents at risk of being victimized by illegal immigrants who are released onto the streets when they should be detained and deported.
A Justice Department spokesman did not immediately indicate whether an appeal is planned, but said the agency plans to keep fighting against the sanctuary practices.
In a speech delivered soon after the city filed suit last month, Sessions slammed Chicago Mayor Rahm Emanuel for failing to keep city residents safe by obstructing enforcement of immigration rules, a repeated plea. Emanuel, like most mayors in sanctuary cities, clearly argued the opposition, arguing that it is hard enough to enforce public safety without abetting aggressive immigration policies.
The ruling, said Emanuel, “is an affirmation of the rule of law. It’s an assertion of our most fundamental American values and it’s an unambiguous, clear rejection of the false choice that the Trump Justice Department wanted Chicago to make between our values, our principles and our priorities. . . Your attempt to make a city abandon their values to seek resources, abandon its principles of community policing, is wrong. It’s wrong for the court. It’s wrong for the law. It’s not right for America.”
Early on Saturday, California’s legislature voted to stick a finger in the President’s eye by approving a bill that would limit police cooperation with federal immigration authorities by prohibiting additional jail time meant to allow immigration enforcement officials to take undocumented immigrants arrested for other reasons into custody. In July, the Justice Department said that a popular grant program that provides money to local law enforcement for training and supplies would only apply “to cities and states that comply with federal law, allow federal immigration access to detention facilities, and provide 48 hours notice before they release an illegal alien wanted by federal authorities. “As it happens, on the same day, President Trump moved to dismiss a lawsuit filed by more than 200 Democratic lawmakers alleging that the president has violated a constitutional prohibition on taking gifts from foreign governments. BuzzFeed News reported that in a D.C. court filing, , government attorneys accused lawmakers of trying to circumvent the legislative process by turning to the courts because of their inability to pass legislation declaring Trump in violation of the Emoluments Clause, which bars the president from accepting gifts or other benefits from foreign leaders. Interestingly, the President argues that none of these complaints have been voted on by Congress.
Of course, all of this guarantees only that most actions by the Trump administration — or now any other government that may follow — undoubtedly will find its way to court for individual ruling.
Hey, it’s better than settlement by tweet.