The judge, William H. Orrick of United States District Court for the Northern District of California, issued a nationwide preliminary injunction against the administration, directing it to stop trying to cut off aid to sanctuary jurisdictions. But the order does not prevent the federal government from moving forward on designating certain places as “sanctuaries,” nor does it keep the administration from enforcing conditions for doling out federal money if they already exist, as the Justice Department has already begun to do with some law enforcement grants.
April 25, 2017
"Judge Blocks Trump Effort to Withhold Money From Sanctuary Cities."
The NYT reports.
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161 comments:
1.) Cut off the money.
2.) Let them sue to get it back.
3.) Let them enforce their judgment against the federal government if they actually win their
lawsuit.
District judges issuing national injunctions sort of renders the concept "district" moot, doesn't it.
Expected, regardless if the judge has an argument or not.
You think it's difficult getting congress - and actual elected, accountable body - to go along with the executive? Try getting unanimous approval from every appointed federal judge in the nation. That's the government we have now.
Trump Admin will win this one.
Retire Anthony. Are you listening Anthony? Time to retiiiiiiirrrre.
Retire Ruth. Time to sleep late at home. Do some travel. Retire . . .
What gives him the authority to issue this injunction?
The President either has the statutory authority or he doesn't. If he does, ignore the court and get on with it. It's time to remind a district court that it's remit doesn't go beyond the district. On the other hand if the President does not have the statutory authority then the time has come for Ryan and McConnell step up to the plate and get moving on this, even if it means finally killing the filibuster outright. Funny how Obama and the Democrats argued immigration is a Federal issue when Obama was president but now they have transformed immigration into a State issue. Except for when it doesn't suit them like allowing certain states from not allowing illegal aliens access to public schools, colleges and other state financed entitlements.
It seems that California and Hawaii (or just the 9th Circus) are now in charge of American foreign policy and internal affairs as well. How many divisions does the Court have?
I don't see how he can force them to fund the cities. This is time for Jackson to say, "He has made his ruling. Now let him enforce it."
The 9th Circuit will be useless.
Gahrie: I think unfortunately it comes with the black robe [in the mind of these judges and it seems that is all that counts].
America moves one step closer to another civil war. Thanks liberals, you brought this on.
Interesting. It's a "stop hitting yourself" moment.
So, our labor taxed does not serve Americans, the People, and our Posterity. It is not held in trust. This did not start but accelerated with denying human rights (and science) under the Pro-Choice doctrine and related quasi-religious policies. Judges ruling from the twilight fringe are a progressive condition. So too is the resurgence of distinctly anti-native elements in America, Europe, Libya, Syria, Ukraine, and globally. There desperately needs to be emigration reform to control the influence of anti-native, pro-abortion factions.
We are no longer a nation of laws.
When The next political activist Pretend Federal District Judge enjoins Trump from being President , Trump should shut the Judicial Branch
Government down until
Further
Notice. Right now It is a useless anyway.
He can offer to lift his injunction when they lift their injunction.
PROPOSED CONSTITUTIONAL AMENDMENT
CONCERNING LIMITING JUDICIAL ACTIONS: A. Any judicial decision limiting or overturning an act of the Congress as executed by the President is limited to the judicial district or circuit in which it was made until confirmed by The Congress or The Supreme Court Of The United States; B. Any decision of The Supreme Court Of The United States may be reversed or nullified by a two-thirds vote of the House Of Representatives; C. All decisions of the courts of the United States shall use the intent of the authors of Constitution, its amendments and the Laws of the United States as the basic authority and source for such actions. (These provisions return constitutional power to the People and their democratically elected representatives as taken from them by individual or small groups of unelected judges.)
Lots of lefty comments celebrating the decision.
It will be interesting to watch how this goes. I just hope the Republicans can resist their instinct to do something dumb.
Since Ann Althouse is an expert in this area I sure would like her take.
SCOTUS will slap down these 9CA injunctions in due course.
NB:This is a test.
The UN is on alert to enjoin our government and send in World police to re-establish order if Trump acts against their international NewWorld Order. Obama has kindly volunteered to be
viceroy of this Hemisphere.
Gahrie: What gives him the authority to issue this injunction?
Um, reasons. The right side of history, the moral arc of the universe, illuminated esoteric understanding of the 14th amendment, shit like that.
But mainly it comes from our willingness as a people to tolerate this kind of usurpation of power.
This is what happens when a Scientific Progressive is allowed to become a so-called "federal judge".
Not only does Trump have to continue funding sanctuary cities, he has to stop trying to deny them funds.
Black robes matter.
This is an absurd overreach driven solely by politics. He hasn't even done anything to consider whether it's unconstitutional. How can you tell if something is unconstitutional before you know what it is?
Judicial misconduct is getting so bad we're quickly approaching the point at which their rulings should be ignored.
So the federal government can compel Arizona not to usurp federal authority by cooperating in the enforcement of immigration law but the federal government cannot compel state and municipal authorities to refrain from thwarting such cooperation.
Nice to know that the election of a President by millions of people is meaningless in the face of one small area non elected judge.
Why do we even bother to pretend that we have a government of the the people etc etc etc? Why bother electing anyone when these vultures in black robes are our true rulers. Lefties should be careful about being happy about this turn of events. It could easily be a conservative judge trouncing all over their elected officials. Turn around and all.
What do you suppose the next step of the people to regain their power should be? (That was rhetorical. I know what it should be.)
PROPOSED CONSTITUTIONAL AMENDMENT
CONCERNING LIMITING JUDICIAL ACTIONS:
Add that a 2/3 majority of the states can remove a particular Supreme Court decision from status as a precedent resulting in limited action only regarding to the specific parties of the suit.
There is something in the water in San Francisco and Sacramento that gives politicians and judges delusions of grandeur and illusions of competence.
How can the Judicial Branch make such a ruling when it comes to discretionary spending? I'm not a lawyer. Can someone who is explain to me how this is even remotely Constitutional?
I haven't looked into the parameters of the hold on "sanctuary" city funding, but this isn't entirely shocking to me. There was something similar with Obamacare where the Democrats in Congress wanted to force states to adopt changes to state Medicare laws by withholding all Medicare funds, not just any incremental funds allocated by Obamacare, but judges ultimately found that coercive.
On the other hand, the administration here isn't trying to get them to change the law so much as to stop taking affirmative steps to shield scofflaws and criminals from federal law enforcement.
Haven't read the opinion yet, but reports suggest that the president can't add conditions not specified by Congress. Its an argument.
My goodness; looking at the Trump-loyalist comments above, I think I am going to add five years to my life, by not going into fits every time a federal district judge renders a ruling unfavorable to the Trump Administration.
I have yet to see a .pdf of the ruling. From calm, legal sources, I understand that it is a rather narrowly-constructed ruling. It can (and I expect will be)appealed. And if the 9th Circuit gets it wrong, there is the Supreme Court.
Up above I see cubanbob whining about how "The President either has the statutory authority or he doesn't." If the President has an statutory authority it is as the executive enforcing or implementing an act of Congress. If it isn't working out, Congress can re-write it to pass muster under judicial review and move on.
I don't know; perhaps there really is a vast undercurrent of loathing among the members of the federal judiciary toward Donald Trump. It wouldn't surprise me. But to a great extent, Trump has only himself to blame for that, with all of the stupid things he's said about them. There are plenty of conservative federal judges and the one good thing about Donald Trump is that I hope he will be given good instructions from the Federalist Society on how to place more conservatives among their ranks.
The judge would be in jail already if he had blocked a single Obama ruling. Or he'd have his house surrounded by thugs. Reporters would publish hearsay gossip dating back to his kindergarten days.
Another Democrat judge. The Democrat judges are all political judges. This has been the same way at least since Clinton and the "Magnificent Seven."
Hey Chuck, I'm a lifelong Republican too. Don't these Democrat political judges disgust you?
What a revoltin' development. I don't know bupkis about the law, but it seems to me that there's little point in having representative government if a largely unaccountable judiciary simply ignores the legislative branch to issue rulings that have the force of law.
Trump should nominate four Supreme Court Justices immediately. Increase the Court to 13 seats--a baker's dozen. Make sure every one of those is young. Ish. Explosive devives in their brains in case they are sleeper Lefties. Time to stop Chucking around.
devices
This doesn't seem surprising to me. The Democrats/liberals/progressives have lost the House, the Senate, the Presidency, the state legislatures and the state governorships.
So what do you do in that situation? You go to the judiciary. Why? Cause it's all you've got left.
So from here on out, you're going to see lots of California and Hawaii judges issuing TROs and various other bullshit orders to hold back Trumpworld.
The downside for them is that - with Gorsuch in place - the Trump govt can now rapidly appeal to the SC and get the state-level obstructionism shut down. And an even bigger (potential) downside is that the SC rules that all these state obstructionist tactics are unconstitutional and shuts then down "forever" - with appropriate qualifications, law being what it is.
A district-court judge has no authority outside his jurisdiction: that's why he's called a "district" court judge. Similarly, a circuit court of appeals has no authority outside its jurisdiction: that's why it's called a "circuit" court. And that's why an appeal involving a circuit split (that is, when two or more circuit courts of appeal hand down conflicting rulings on the same issue) easily ends up on the SCOTUS docket.
I believe that the posturing by these district-court judges -- that they have jurisdiction to impose nationwide stays -- ought to lead to their impeachment and removal from office.
Hauntings from the ghost of Marbury vs Madison
Gahrie: What gives him the authority to issue this injunction?
Penumbras and emanations, or something.
Pillage idiot has the right idea. Whomever writes the checks should be conveniently out of pocket. Now sue to get it and then send someone to collect.
I hope these get resolved quickly. Republicans just need to accept that we have an additional, judicial level for any political action we take and plan accordingly.
Trump is a deplorable man, who said deplorable things during the election, and who was elected by deplorable people. Therefore, none of the powers vested in the Executive by Article II of the Constitution or delegated by Congress under Article I of the Constitution may be exercised by said Trump. Rather they devolve to the People, acting through their tribunes, the District Court judges of the 9th Circuit.
Cut the monies regardless and let the cities/states sue. Ramp up arrests of any and all illegal aliens wherever they may be and anyone who obstructs...anyone, including federal judges.
Trump caves on the border wall, a judge blocks Trump's travel ban, another judge blocks the withholding of funding to sanctuary cities. So much winning!
Wait. Isn't he just asking for information right now, or has something actually been done to take money? If no money has been taken, how is there standing?
If I understand the ruling as described in the NYT, the executive cannot unilaterally impose conditions on the funding. Instead, the conditions must be defined in legislation.
I'm opposed to funding sanctuary cities, but this doesn't sound that outrageous to me. Congress needs to get on the ball and codify this in law.
Haven't read the opinion yet, but reports suggest that the president can't add conditions not specified by Congress.
Wait, the American President is not a King?
We'll get SCOTUS back, Inga. That's winning enough for me.
That and the fact that the drunken hag you voted for will never be president.
Isn't Trump compromising on the border wall to keep Democrats from throwing a tantrum and shutting down the government? If the left are going to gloat because Trump tries to reason with them, I don't imagine they'll keep his ear for long.
If the President has an statutory authority it is as the executive enforcing or implementing an act of Congress. If it isn't working out, Congress can re-write it to pass muster under judicial review and move on.
Mr Life-Long Republican, chuck, would you like to explain the difference between this ruling and Arizona SB 2010 ?
The state tried to enforce federal immigration law and was told it could not. Only the feds could do so.
Now, they can't do so either ?
The American Civil Liberties Union (ACLU) criticized the statute as a violation of the Supremacy Clause of the United States Constitution, which states that federal law, so long as it is constitutional, is paramount over state laws.][209] Erwin Chemerinsky, a constitutional scholar and dean of the University of California, Irvine School of Law says that "The law is clearly pre-empted by federal law under Supreme Court precedents."
So the feds preempt state law but district judges can preempt federal law ?
Pillage Idiot is right. Put the ball in their court.
Michael said " I just hope the Republicans can resist their instinct to do something dumb."
I have serious doubts, Too many are into the DC cocktail scene. Its great to be liked. One gets laid more that way.
Federal income tax surcharges on all residents of sanctuary cities. Those cities have already divorced themselves from the umbrella of Federal Law, so equal protection/treatment doesn't apply. Let the masses storm the city halls with torches and pitchforks.
"If no money has been taken, how is there standing?"
Judge Orrick wrote:
"They have demonstrated that they have standing to challenge the Order and are currently suffering irreparable harm, not only because the Order has caused and will cause them constitutional injuries by violating the separation of powers doctrine and depriving them of their Tenth and Fifth Amendment rights, but also because the Order has caused budget uncertainty by threatening to deprive the Counties of hundreds of millions of dollars in federal grants that support core services in their jurisdictions."
Seems a bit expansive to me.
Maybe the constitutional argument I could buy. But... Budget uncertainty? Man, Republicans could learn from this to up their BS skills.
Surprise surprise!
Apologies to Jim Nabors.
Woo hoo!!!!
Vicki from Pasadena
Actually, CWJ, its surprise, surprise, surprise.
Vicki from Pasadena
Ace has some good context here: the Trump administration is not engaged in unconstitutional commandeering. Legally binding requests for information do not commandeer.
Like the travel ban previously, this isn't a legal contest either - it's a political PR battle masquerading as one: "will the 'lawless Trump' ' defy the courts'?
In the travel ban case, the Trump administration chose not to fight that PR battle. One imagines it will make a similar choice here: not to convert the PR battle into an actual legal one it would win. Pity.
To think, this began with denying life unworthy under Pro-Choice, evolved to deny equal rights under [class] diversity, progressed as a virulent left-wing ideology to carry out elective regime changes, and forced Catastrophic Anthropogenic Immigration Reform to cover-up crimes, liberal fiscal policies, labor and environmental arbitrage, Planned/aborted Posterity, and individual disenfranchisement through demographic redistricting.
Comments ate one, but I'll try again.
If the cities are violating Federal Law, what about arresting someone in charge?
I declare my Basement to be a Sanctuary Basement.
I will provide for the needs of the women in there without any interference from the Government.
There is a reason my windows are painted shut.
I am Laslo.
Hauntings from the ghost of Marbury vs Madison
Did someone say Marbury V Madison?
"The creation of judicial review was a total scam by Marshall.
Marshall was the Secretary of State under Adams from June 30, 1800 until March 4, 1801 when the Jefferson administration took office.
Marshall was approved by the Senate to be the Chief Justice of the Supreme Court on January 27, 1801. He began acting as the Chief Justice on February 4, 1801.
So for a month he was both the Secretary of State and the Chief Justice.
During this month Marbury was appointed as a Justice of the Peace for the District of Columbia. It was Marshall's job as Secretary of State to deliver Marbury's commission to him...but somehow he forgot to do so, and Madison refused to do so when he replaced Marshall as Secretary of State.
Thus the controversy that led to the case of Marbury V Madison which allowed Marshall to create judicial review in such a way that no one would challenge him, was created by Marshall (on purpose?) while he was simultaneously Chief Justice and Secretary of State.
Could you imagine this happening today?"
I really like the part of the decisions where Judge Horrick, joining Posner as a moron, says the cities will suffer irreparable harm if the funds are withheld. DUH! The whole point of withholding funds for breaking the law is to cause irreparable harm to force compliance with the law. If the law can be broken with impunity, there is no law. And when judges say there is no law- why should anyone obey any law they disagree with?
Surprise surprise surprise, lifelong republican Chuck is cheerleading liberal judicial activism and the flaunting of law in favor of illegals.
How lifelong republicany of him.
Up above I see cubanbob whining about how "The President either has the statutory authority or he doesn't." If the President has an statutory authority it is as the executive enforcing or implementing an act of Congress. If it isn't working out, Congress can re-write it to pass muster under judicial review and move on."
Chuckles you claim to be a lawyer. So counsellor where in the statutes have you found the President does not have the authority to block federal funds from sanctuary cities? Where do you find that subdivisions of states have the authority to actively prevent the federal government from enforcing its laws, particularly where it is acknowledged that the federal government is the sole government in authority in this area.
VIcki and other lefties are celebrating this decision but I don;t see this being permanent. The Democrats are burning down the barn to get rid of rats. The irony here is that Trump is probably the most liberal Republican elected to office since Nixon or Eisenhower.
They will not do well with this scorched earth strategy.
I don't know, Michael. How's that travel ban working for you righties? not so good... Ouch
Vicki from Pasadena
Why not stop funding the 9th Circuit?
In Nineteen Eighty-Four the laws of Big Brother weren't wicked, or oppressive.
Big Brother made no laws to broken by Winston or anyone else. Because then there would be safety in not breaking the law, you see, and that would limit the power of Big Brother.
Trump is getting rolled (again), but doesn't seem to know it. If he allows it to continue, the courts will not only bury him, they'll bury us.
I have to assume that one of these, what seem like judicial overreach, decisions is going to go before the Supreme Court. There seem to be some important issues of presidential powers and law enforcement that need to be settled. I am not a lawyer so I just have lean on what I have read, but the judges in the 9th district seem to be taking powers until themselves that they - from a common sense perspective - should not have. Like all things legal it will take some time, but these questions should be settled at the highest level. As many have mentioned , maybe Breyer will be replaced by the time they get there.
Sessions should just ignore the 9th Circuit. Trump will back him. Ultimately, SCOTUS will decide. This is an extremely important issue.
Laslo, as he so often does, succinctly exposes the idiocy of the decision's reasoning.
That's right. Throw meat to the flies swirling this mess with no legal explanation at all, Perfessor.
Thanks Vicki.
It's been a long time.
OTOH, did the situation really need the third surprise?
Inga said...Trump caves on the border wall, a judge blocks Trump's travel ban, another judge blocks the withholding of funding to sanctuary cities. So much winning!
You write as if any of those predictable set backs are permanent.
How's that travel ban working for you righties? not so good... Ouch
Vicki, it's early. The courts have decided to make a confrontation over this issue of illegals.
I don't see how they win this but you keep celebrating.
Do you remember Arizona's SB 2010?
The court determined by a 5–3 majority, with Justice Anthony Kennedy writing the opinion, that Sections 3, 5(C), and 6 of SB 1070 are preempted by federal law.[256][257][258] These sections make it a state misdemeanor for an immigrant not to be carrying documentation of lawful presence in the country, allow state police to arrest without a warrant in some situations, and make it unlawful under state law for an individual to apply for employment without federal work authorization.[27][259][260] All justices agreed to uphold the portion of the law allowing Arizona state police to investigate the immigration status of an individual stopped, detained, or arrested if there is reasonable suspicion that individual is in the country illegally.[261] However, Justice Kennedy specified in the majority opinion that state police may not detain the individual for a prolonged amount of time for not carrying immigration documents, and that cases based upon allegations of racial profiling are allowed to proceed through the courts, if such cases happen to arise later on
Obama chose not to enforce the ruling.
Good luck
William Horsley Orrick III and his ilk are the reason Harry Reid and the Democrats went nuclear. It's paying off for the Leftists.
Laslo Spatula:
There is a reason my windows are painted shut.
The right and rite of privacy is recognized by pornographic humanitarians, the twilight faithful, and activist judges.
You write as if any of those predictable set backs are permanent.
The harm it will do to the budget will be.
Nice to know that the election of a President by millions of people is meaningless in the face of one small area non elected judge.
Separation of powers, Beeeeyatch!!!!
Why do we even bother to pretend that we have a government of the the people etc etc etc?
Because yours was elected with a minority of the votes.
Pretty amazing that the Trumpcucks going on about the lawlessness of illegal immigration are so inept in their misunderstanding of that foundation of law in America known as separation of powers.
How can the Judicial Branch make such a ruling when it comes to discretionary spending? I'm not a lawyer. Can someone who is explain to me how this is even remotely Constitutional?
Well, your blog hostess is and might have done that duty. But I suppose when it comes to stirring up Trumplove/America-hate, she prefers to be vague and instead goes with that "Choose your own interpretation" thing.
The Miseducation of Hamburger Hill. And so it goes.
victoria said...
"I don't know, Michael. How's that travel ban working for you righties? not so good... Ouch
Vicki from Pasadena"
Actually, it's working pretty well. The Muzzies are spooked, and they're heading for Canada. But maybe a nice young couple will move in next door to you. I hear that California is not such a great place to be any more if you're American, but it's still the Land of Opportunity if you're a Muslim terrorist, or just a shiftless bum with a room temperature IQ looking for a place to live on the dole and raise criminals. Any empty houses on your block, Vicki? Maybe a little Section 8 action is heading your way, compliments of the federal judiciary!
The Miseducation of Capitol Hill.
The Miseducation of That Shiny City on the Hill.
Rabel quoted Judge Orrick as writing,
"...but also because the Order has caused budget uncertainty by threatening to deprive the Counties of hundreds of millions of dollars in federal grants that support core services in their jurisdictions."
So, does this mean if Congress were to reduce funding of various "federal grants that support core services" for a city -- any city -- the reduction would cause unconstitutional "budget uncertainty"?
If he wants to say the executive order is unlawful because it exceeds Trump's authority, fine, but to throw in municipal "pain and suffering" as reason for the ruling seems very much to be overreach.
I don't know if Ann Althouse is still reading/listening to Rush Limbaugh, but he said today that Trump shouldn't cave to Wall funding.
Because yours was elected with a minority of the votes.
See my comment re: Nineteen Eighty-Four. Laws don't matter to leftists, because it limits what they can do to you.
TTR wrote: The harm it will do to the budget will be.
Love the "encyclical" syntax! It's almost latinate!
Bob asks: So, does this mean if Congress were to reduce funding of various "federal grants that support core services" for a city -- any city -- the reduction would cause unconstitutional "budget uncertainty"?
Shorter Orrick: "The Federal spigot shall not be turned off. By the way, to do so is rank spigotry."
The Sanctuary City battle is important to win for both sides: From the illegal's POV, the Wall is the barrier but the Sanctuary City is the goal. Any wall is worth surmounting if the goal is in place.
From our perspective, destabilizing sanctuary cities (the goal) will automatically raise the barrier (the Wall). A less hospitable makes any barrier more of a barrier.
It's important to have a view on this ruling and issue that is entirely political, and not at all legal or judicial.
Re: cubanbob:
Chuckles you claim to be a lawyer. So counsellor where in the statutes have you found the President does not have the authority to block federal funds from sanctuary cities?
Congress has authority over the budget, not the President. They have delegated a lot of authority to the Executive branch, but not necessarily everything.
Where do you find that subdivisions of states have the authority to actively prevent the federal government from enforcing its laws, particularly where it is acknowledged that the federal government is the sole government in authority in this area.
This is the bigger problem here -- I think there's an argument that these corrupt states and municipalities are basically engaged in criminal conspiracy to obstruct justice.
We don't need no stinkin' law.
We got judges.
If there was ever any naive thought that the judicial branch isn't as partisan as any other, that foolish notion should be now extinguished. Trump needs Ginsburg and Kennedy to go then to fill their slots with Sykes and Pryor. Then Mitch and crew can 51/49 them in.
I wanna see Chuck Schumer cry again, these big fat crocodile tears he conjured up before.
California should cecede then the U.S. should declare war on them, conquer them, and throw all their judges into prison.
Get a fresh start, iow.
TG 4:42 "It seems that California and Hawaii (or just the 9th Circus) are now in charge of American foreign policy and internal affairs as well. How many divisions does the Court have?"
Infinity. Unless you stop them.
Ever since a guy who was on his eighth trip to Oregon, having been deported seven times previously, killed three people and critically wounded a fourth a little north of here, I have been somewhat leery of sanctuary anything. My husband dismisses this with "Oh, it was just a dispute over a pot farm." So what? The dead people are just as dead. Mass murder is still mass murder. And the dude should have been run out of town without leave to return the first time.
Congress can and should strip the Courts of the authority to consider both matters relating to the defunding of Sanctuary cities/states as well as orders which curb immigration.
We are not at liberty to inquire into the motives of the legislature. We can only examine into its power under the Constitution; and the power to make exceptions to the appellate jurisdiction of this court is given by express words.... It is quite clear, therefore, that this court cannot proceed to pronounce judgment in this case, for it has no longer jurisdiction of the appeal; and judicial duty is not less fitly performed by declining ungranted jurisdiction than in exercising firmly that which the Constitution and the laws confer."
Ex parte McCardle (1869)
brylun said...
Hey Chuck, I'm a lifelong Republican too. Don't these Democrat political judges disgust you?
Quite often, they do.
Back during the 2016 campaign, I wrote many times that I was intent on getting a Republican elected for the primary reason of nominating more federal judges in the image of the Federalist Society. So yeah, there is that.
But what a mess this comments page is. Cranky comments about packing the Supreme Court, "Trump's" taxing sanctuary cities (huh?), arrests for the elected officials in sanctuary cities (apparently with an all-new federal police force), etc.
I have a vague recollection of the earlier days of the Althouse blog being more lawyerish, with smarter comments from other lawyers. This page is a mess.
Mind you, I haven't formed an opinion about this new opinion out of the Northern District of California. Because I haven't read it yet. We're almost exactly 100 comments into this, and unless I missed it nobody has linked to, and quoted, the opinion. Or discussed any of the details. You want to read it along with me? Be my guest. And you don't even need a PACER account.
Here (it is a download):
https://www.cand.uscourts.gov/filelibrary/3043/Order-Granting-Motions-to-Enjoin-9-a-of-Exec-O.pdf
Fixing this would appear to simply require that the administration should begin appeal applications to the new SCOTUS. Our three-legged government cannot work well when any leg attempts to grow larger than the other two. While ethical abuse can happen anywhere, the judiciary has to be the most ethical of them all - and that ain't happening.
By the way, kiddos; this is an area of the law in which Professor Althouse is a for real expert, since the issues are federalism and a bunch of concepts that touch on issues that are well-known to a law prof who has researched and published on Printz v United States and "the anti-commandeering doctrine."
@ Chuck, so called
Condescending Chuck is my favorite kind. This decision is an example of the one-way ratchet that is Leftism. Anybody can deny this plain fact but to do so is to ask the reader to dispense with common sense.
The institutions are undermined.
Reading the opinion (it's 49 pages) in County of Santa Clara v Donald J. Trump I am really struck, at how similar this case feels, to the 2011 "Dear Colleague" letter from the [Obama] Department of Education Office of Civil Rights to the nation's institutions of higher education, threatening all of them with the removal of federal funding, Pell Grants, scholarship money, etc., if they failed to toe the line on Title IX sexual assault allegations. They were essentially telling every college and university to lower their administrative standards or else lose federal money.
I don't think that issue ever got litigated like this one is. Anybody know?
Chuck said...By the way, kiddos; this is an area of the law in which Professor Althouse is a for real expert, since the issues are federalism and a bunch of concepts that touch on issues that are well-known to a law prof who has researched and published on Printz v United States and "the anti-commandeering doctrine."
I look forward to her opinion after she reads the opinion under conclave. However, I fear she won't blow white smoke or black smoke, but rather only grey smoke.
Chickenlit -
I think Althouse has already opined on this one ...
LINK
OK Chuck, layman's first question: Why does the CA Northern District's jurisdiction extend beyond that delegated district?
chickelit:
From page 48 of the opinion in County of Santa Clara v Trump (proving, if nothing else, that I read all the way to the end):
V. NATIONWIDE INJUNCTION
The Government argues that, if an injunction is issued, it should be issued only with
regards to the plaintiffs and should not apply nationwide. But where a law is unconstitutional on its face, and not simply in its application to certain plaintiffs, a nationwide injunction is appropriate. See Califano v. Yamasaki, 442 U.S. 682, 702 (1979) (“[T]he scope of injunctive relief is dictated by the extent of the violation established, not by the geographical extent of the plaintiff.”); Washington, 847 F.3d at 1166-67 (affirming nationwide injunction against executive travel ban order). The Counties have demonstrated that they are likely to succeed on their claims that the Executive Order purports to wield powers exclusive to Congress, and violates the Tenth and Fifth Amendments. These constitutional violations are not limited to San Francisco or Santa Clara, but apply equally to all states and local jurisdictions. Given the nationwide scope of the Order, and its apparent constitutional flaws, a nationwide injunction is appropriate.
Re: chickelit:
OK Chuck, layman's first question: Why does the CA Northern District's jurisdiction extend beyond that delegated district?
Once the court has jurisdiction over the parties, then its orders are binding on the parties wherever they are -- the order doesn't lose effect just because the parties moved to the next district over, or even moved overseas. This occasionally results in blackly comic absurdities, like when some random judge in New York held the entire sovereign nation of Argentina hostage for several years because a bunch of hedge funds refused to agree to restructure Argentina's sovereign debt, and insisted that they pay up in full. If I recall correctly, the district court actually tried to arrogate to itself the power to block any financial institution worldwide (i.e. including overseas nonparties) from processing Argentine debt payments until the hedge funds were paid. Here is an article noting that the judge successfully pressured Citibank Argentina to stop processing Argentine debt payments on bonds issued under Argentine law, in Argentina.
It's not always immediately obvious, but the US has a deeply, deeply weird legal system, and the legal profession has quietly seized lot more power than you might think proper.
If the Constitution said nothing but "No distribution of federal monies to leftist agencies can be interrupted as a result of leftist malfeasance under any circumstances", would this, or any other decision of the last 50 years, have been decided differently?
David French of National Review* writes that this was "a mostly meaningless ruling against a mostly meaningless executive order."
Read more at: http://www.nationalreview.com/corner/447045/federal-judge-issues-mostly-meaningless-ruling-against-mostly-meaningless-executive
*Author, Army major, Harvard law grad, practicing attorney, past president of FIRE, Cornell Law School lecturer.
What if two federal judges in different parts of the country issue contradictory rulings against Trump--one for a policy, one against it. Which ruling takes precedence? The ban or the refusal to issue a ban?
"The Government argues that, if an injunction is issued, it should be issued only with
regards to the plaintiffs and should not apply nationwide."
Jeez, the judge should at least use proper grammar. Unless he really meant that the President should send his regards to the plaintiffs as part of the EO.
@Chuck: You forgot David French's #NeverTrump bone fides: link
Google is forever, just like never. If only guys like French had said "Not Trump this time" instead of "Never Trump" I would trust their use of the English language.
chickelit said...
@Chuck: You forgot David French's #NeverTrump bone fides: link
You say that like it's a bad thing!
Re: Paul Ciotti:
What if two federal judges in different parts of the country issue contradictory rulings against Trump--one for a policy, one against it. Which ruling takes precedence? The ban or the refusal to issue a ban?
I'd say ban takes precedence because it's an injunction; the one permitting the policy just denies plaintiff the relief they are seeking, rather than commanding the government to undertake the policy. We saw a bit of this with Obama's DACA policy, actually (in fact, we saw some apparently jawdroppingly unethical conduct from DOJ attorneys who lied in court about the administration's efforts to slip DACA approvals in before the judge could issue an injunction).
Sorry, meant to finish the thought -- so it's worth watching carefully to see if DOJ tries something similar to evade the injunction here.
None of this theater means anything.
Using Executive Orders in lieu of working with the countries Legislature is about as fascist as you can get.
Why it doesn't mean anything, is that the country is bankrupt. Moving debt around in circles is theater.
The only way forward is the suspension of the Constitution. Like the tyranny of England, the tyranny of Washington cannot continue.
May the best army win.
Whoa.
On the other hand if the President does not have the statutory authority then the time has come for Ryan and McConnell step up to the plate and get moving on this …
I’ll give McConnell the benefit of a doubt because he has to work with a thin majority in the Senate. That majority could easily disappear in one election cycle – especially if the public’s opinion(already low) of Congress goes even further south.
As for Ryan, consciously or not, I believe he always does his best to stymie anything to do with Trump legislative initiatives. At first I thought it was mere incompetence but as time goes by it looks more and more to me to be a particular pattern of behavior. It’s as if Chuck was Speaker.
I hear pundits talking about how the GOP in Congress has no motivation to act on Trump initiatives because of Trump’s “low approval ratings.” Which is ironic since Congress’s own approval rating is a dismal 17%., while the RCP average for Trump is 43%.
But as we all saw in Trump’s “unexpected” victory the polls are quite often a steaming pile of shit.
So … I expect more delay and excuses from the dickheads in Congress until such time as Trump can light some kind of fire under their do-nothing asses.
Federal Judge William Orrick III, who on Tuesday blocked President Trump´s order to withhold federal funds from sanctuary cities, reportedly bundled hundreds of thousands of dollars for President Barack Obama.
This is my shocked face :^O
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On every political case that meets the federal judiciary, you can look at the political affiliation of the judge, and if Democrat you can bet his or her decision is political.
Please show me an exception...
Chuck @ 9:40 PM: "I don't think that issue [Obama's 2011 "Dear Colleague" overreach in Title IX] ever got litigated like this one..."
I am pretty sure it never got litigated, and the failure to do so is an eternal stain on every school, and their trade groups that might have had standing and resources to stand up to the threat. Not only was it a vast overreach, it was patently illegal, because the "Dear Colleague" letter and the OCR "investigations" of school compliance were a vast rewrite of Title IX and a making of new substantive law by an agency without complying with the Administrative Procedure Act. Obama's people knew this BS would not survive public notice and comment; Congress would have been triggered to act; and the project would have almost certainly failed. So it was left to the schools to resist, and they didn't. The result has been years of waste, a vast new bureaucracy and the ruin of many lives.
I have repeatedly seen the phrase "scientific progressive" on this blog.
What does "scientific progressive" mean?
The result has been years of waste, a vast new bureaucracy and the ruin of many lives.
Once millennials realize that this is all getting folded into their yuuuge debts, they might get resentful of it, but that is being handled by telling them their debts are going to be forgiven and their parents will be forced to pony up in taxes.
I just love how ILLEGALS have more rights than citizens. Do we get sanctuary when we commit crimes??
The president does not have the power to spend unallocated money. The president does, however, have the power to not spend allocated money. That is a well settled uncontroversial point. In fact, it happens all the time. That very tactic was used to force states to adopt the 21 drinking age.
That very tactic was used to force states to adopt the 21 drinking age.
That was an act of Congress, wasn't it? Not an executive order.
brylun said...
Did Justice Gorsuch bundle money for the Republicans?
Like Orrick did? See http://insider.foxnews.com/2017/04/25/trump-sanctuary-city-law-blocked-judge-san-francisco-obama-donor-william-orrick
Which type of judge do you trust to make non-political decisions?
You, and the people who write stories for Fox, should try to be a little more honest and accurate when you write stuff like that.
Judge Orrick was a major Democratic donor in 2004-08. After that, he left his private law firm partnership and joined the Department of Justice. And years later, he was nominated for the District Court.
I don't know about Justice Gorsuch's legal campaign donations. I know, personally, several U.S. District Court judges in the Eastern District of Michigan who, before they were nominated, were politically active and who made substantial campaign donations. Republicans, and Democrats. Just about any lawyer you ask could report a similar personal experience.
tim maguire said...
The president does not have the power to spend unallocated money. The president does, however, have the power to not spend allocated money. That is a well settled uncontroversial point. In fact, it happens all the time. That very tactic was used to force states to adopt the 21 drinking age.
Litigated, in South Dakota v. Dole, 483 U.S. 203 (1987), which was discussed extensively by Judge Orrick in his decision in County of Santa Clara.
"The president does not have the power to spend unallocated money. The president does, however, have the power to not spend allocated money. That is a well settled uncontroversial point. In fact, it happens all the time. That very tactic was used to force states to adopt the 21 drinking age."
You're referring to an act of Congress, which is different. The president's power to not spend money allocated by Congress is somewhat more limited (they went through this with Nixon back in the '70s).
Ultimately Trump is going to have to get Congress on board if he's going to implement any major part of his agenda. Otherwise, expect a lot of small ball like we saw in the last six years of Obama's tenure.
I see Tim Maguire and Chuck have brought up the two situations I (being no authority) find comparable.
The threat of withholding federal funds for the Title IX sex trials.
And the withholding of federal highway funds for the 21 drinking age.
Also, someone above mentioned the opposite situation- where the feds sued Arizona to make them follow federal immigration laws, stating only the executive (or federal?) has the right to make immigration laws.
Finally, the whole DREAMER thing seems somewhat similar in the opposite- Obama directing the federal government to spend money in a way not designated by Congress, calling it "prosecutorial discretion" in the way he is enforcing immigration law.
Chuck said: "Just about any lawyer you ask could report a similar personal experience."
As a bundler? There are probably a few former bundlers, but not "just about any lawyer."
Also, any exceptions to my statement about Democrat judges on political cases?
And, Judge Orrick added, 10th Amendment restrictions on the power of the federal government require that the federal funds at stake be related to the policy in question...
Two points:
1) I would happily accept this ruling, if liberals would agree to actually abide by 10th Amendment restrictions on the power of the federal government. They won't, so they can kindly fuck off.
2) Where in the 10th Amendment does it say or imply any such thing?
Also, a quick Google search of Neil Gorsuch shows no political contributions. I would think that this would have been a topic of discussion in the confirmation hearings.
MayBee said...
I see Tim Maguire and Chuck have brought up the two situations I (being no authority) find comparable.
The threat of withholding federal funds for the Title IX sex trials.
And the withholding of federal highway funds for the 21 drinking age.
Also, someone above mentioned the opposite situation- where the feds sued Arizona to make them follow federal immigration laws, stating only the executive (or federal?) has the right to make immigration laws.
Finally, the whole DREAMER thing seems somewhat similar in the opposite- Obama directing the federal government to spend money in a way not designated by Congress, calling it "prosecutorial discretion" in the way he is enforcing immigration law.
See, I think all of these examples are valuable for popular thinking, for legislators, and for discussion in the marketplace of ideas. But the devil is in the details. There is different law at work in each of these cases. Requiring careful, informed legal discussion. Unlike what we saw at the beginning of this comments page.
brylun said...
Chuck said: "Just about any lawyer you ask could report a similar personal experience."
As a bundler? There are probably a few former bundlers, but not "just about any lawyer."
Also, any exceptions to my statement about Democrat judges on political cases?
Sorry; perhaps I should have been clearer. What I meant was that if you ask any lawyer who knew a handful of U.S. District judges in her or his state, they would report the same as what I observed. About the District Court bench. Not that all lawyers, or even most lawyers were "bundlers."
About your idea that there are so few political cases in which judges who were Democrats ever rule against liberal/Democrat interests... It is such a powerful and pervasive notion, I don't really want to poke holes in it. I'm certain that there are exceptions. I'm just not motivated to find them. Because I'd feel as if I were only arguing for the sake of argument. Because in fact, what you allude to is a real phenomenon.
I'd ask why we have DISTRICT courts in the first place since a judge can, apparently, stop something nationally.
If a different district judge disagrees, would that nullify the national injunction? It's hard to argue one district means more than another.
damikesc said...
I'd ask why we have DISTRICT courts in the first place since a judge can, apparently, stop something nationally.
Only under relatively rare circumstances, in certain kinds of cases.
If a different district judge disagrees, would that nullify the national injunction? It's hard to argue one district means more than another.
Conflicts between District Courts get resolved in the Circuit Courts, and conflicts among the Circuit Courts get resolved at the Supreme Court. Conflicts at any level over the same subject matter usually get resolved in expedited appeals. Contentious decisions in the District Courts get appealed almost universally to the Circuit Courts of Appeal.
@ Chuck, so called fopdoodle
When you admit the one-way legal ratchet is operative and then try to get the commenters on an online board to apply skillful legal analysis, you are defeating your own argument. Would you care to recalibrate?
Do you understand that you, personally, are deligitimizing the institution of the law when you make an argument that asks people to ignore the obvious?
So it is okay that Obama was forcing schools to accept transgenders or lose federal funding, but is not okay for Trump to force cities and states to follow the laws on the books or lose federal funding. WHY do these activist judges have so much power?? Can I commit crimes and find a sanctuary to hide in?? How come I'm not as equal as an illegal alien who gets more rights??
See, I think all of these examples are valuable for popular thinking, for legislators, and for discussion in the marketplace of ideas. But the devil is in the details. There is different law at work in each of these cases. Requiring careful, informed legal discussion.
We aren't all lawyers. You apparently are, so you can provide careful, informed legal discussion. The rest of us are affected by the way the courts apply their reasoning, and we all try to understand what is happening and why they are doing what they are doing as best we can. It isn't our job to just shut up and let the lawyers and judges have their way with us. Even the rabble gets to say if we think something is unjust.
Chuck, we've seen it at least 3 times in 3 months. The rarity is ending.
I assume the judiciary is joining "The Resistance" and that will end exceptionally poorly.
Pretty clear to me that the left has chosen 'constant warfare' as their modus operandi for the next 4-8 years. No mercy. They will use the judiciary and the violence of antifa to completely disrupt American life. What will be Trump's response? I don't see any fucking testicles.
Chuck said...
"Conflicts between District Courts get resolved in the Circuit Courts, and conflicts among the Circuit Courts get resolved at the Supreme Court. Conflicts at any level over the same subject matter usually get resolved in expedited appeals. Contentious decisions in the District Courts get appealed almost universally to the Circuit Courts of Appeal."
Huh. It's almost like there's a system. Does it by-any-chance pay for itself?
damikesc said...
Chuck, we've seen it at least 3 times in 3 months. The rarity is ending.
I assume the judiciary is joining "The Resistance" and that will end exceptionally poorly.
Well, now I have to say that I think was clear, and that you are completely misreading me.
First, I realize that there is a very strong pattern developing, in which District Court judges nominated by Democrats are enjoining various acts and Executive Orders of the Trump Administration. That's true, and it also wasn't what I was asked, or was speaking to.
The "exceptions" I was asked about, were any exceptional cases in which Democrat-nominated judges ruled against liberal/Democrat political or social interests. And I agree with the person who put the question; those are rare exceptions. I am just not going to argue the point, even if there are exceptions (I am sure that are) "that prove the rule."
Jupiter said...
Chuck said...
"Conflicts between District Courts get resolved in the Circuit Courts, and conflicts among the Circuit Courts get resolved at the Supreme Court. Conflicts at any level over the same subject matter usually get resolved in expedited appeals. Contentious decisions in the District Courts get appealed almost universally to the Circuit Courts of Appeal."
Huh. It's almost like there's a system. Does it by-any-chance pay for itself?
I think that I would argue, "Yes, our federal court system pays for itself." The way it pays for itself is by creating a framework of civil law and civil rights that is a gold-plated attraction for the world's capital and business. Creating a reliable system for adjudicating corporate, personal and intergovernmental disputes. Such that we have built the greatest democracy, economy and civil society that the world has ever known. I'd like to think that the U.S. court system is like the cotton gin or the telephone or the Model T or the Apple iPhone. Borrowing from predecessor technologies (in our case, the British common law) and building upon it and creating a uniquely American version that suited the country. And changed the world. What we pay, for the operation of a federal court system is such a tiny, trivial part of a global economy that looks to American market leadership.
I think we could find several economists who would make the case that the U.S. military pays for itself too, in terms of world stability and creating an orderly platform on which we can conduct world commerce.
Chuck,
French's #NeverTrump stance is certainly useful; it unequivocally identifies him as Part Of The Problem.
Tommy,
What does "scientific progressive" mean?
Nothing.
@ Chuck, so called fopdoodle
The question about paying for itself may have been intended to mean "do the fees the courts collect make them a self-sustaining entity that does not depend on Congressional spending" in which case the answer you gave is irrelevant, even though likely true.
It is obvious you are not a business person.
Somehow all of these decisions seem to come from west of the Cascades. Throw in the WA State McCleary decision, which is pretty much the definition of "ultra vires." Judges within 100 miles of the Pacific Ocean seem to have a notion of judicial supremacy wildly beyond anything the Founders intended or anything consistent with actual democracy.
Injunctive relief is an extraordinary remedy. It has several dimensions: who is enjoined, where, for how long, for what activity.
The judges throwing down these injunctions against Trump's orders are pushing the tool to its limits (and IMHO beyond). They start with some local named parties, and suddenly it's everybody. They start with events in their district, and suddenly it's national. They start with some contemporary concern, and suddenly it's "until further notice." They start with "my budget might get affected, I'm feeling sad" and suddenly it's "screw the Executive Branch for every possible permutation of what I think it might try to do."
Not what I would call a useful approach.
Birkel said...
@ Chuck, so called fopdoodle
The question about paying for itself may have been intended to mean "do the fees the courts collect make them a self-sustaining entity that does not depend on Congressional spending" in which case the answer you gave is irrelevant, even though likely true.
It is obvious you are not a business person.
I suppose we are both thinking in businesslike terms. I am thinking like the businessperson who runs Google.
And you are thinking like the businessperson who sells phone accessories from a kiosk in the mall.
I'm sure he did, Chuck. It's too famous a case to ignore. That doesn't mean he adequately distinguished it.
Andy McCarthy at NRO: http://www.nationalreview.com/article/447058/trump-administration-sanctuary-city-executive-order-activist-liberal-judge-william-h-orrick
The ruling is absurd for a number of reasons. First, standing, in federal courts, essentially requires injury in fact. Here, the supposed injury is '"pre-enforcement” anxiety'. Actual damages? I don't think so. This is the type of speculative damages that federal courts routinely reject. Secondly, nothing has been done yet, except for Trump to order his people to execute the law as written. Again, no action yet, on their part, equals no standing. The judge is enjoining something that they might or might not do. Essentially an advisory action. Where is the required Case or Controversy? And, the EO references a specific.federal law (8 USC 1373), enacted in 1996 under Bill Clinton. This isn't like a lot of things that Obama did, in contravention of federal law, but, rather, by its very term, an order to enforce a 20 year old statute as written. Nothing more. Not a dollar has been denied these cities yet.
I suspect that this decision will have to be reversed ASAP, by the Supreme Court, if not by they 9th Circuit, because of the horrible precedent that it sets. The federal Ct system cannot afford to be swamped by this sort of speculative damages.
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