The Corner

Law & the Courts

A Federal Judge Issues a Mostly Meaningless Ruling Against a Mostly Meaningless Executive Order

This afternoon a federal judge did not much at all to stop an executive order that didn’t do much at all. Don’t pay attention to the breathless headlines. Here is what you need to know, in five easy steps.

First, Donald Trump signed an executive order in the first days of his presidency that was 90 percent hype and 10 percent substance. Here’s the key language:

Sec. 9. Sanctuary Jurisdictions. It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373.

(a) In furtherance of this policy, the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of federal law. (Emphasis added.)

Note the bolded portion. The executive order was not changing the law. It did not strip federal funds from sanctuary cities. It directed federal officials to enforce existing law and then larded up that directive with meaningless legalese that made the order look far more dramatic to the untrained eye. 

Second, Trump did Trump things, and by that I mean he and his administration hyped the order beyond its plain meaning. Here’s Trump’s comment to Bill O’Reilly: “I don’t want to defund anybody. I want to give them the money they need to properly operate as a city or a state. If they’re going to have sanctuary cities, we may have to do that. Certainly that would be a weapon.” To be clear, Trump can’t do that by himself. He’s bound by the language of statutes, and he can’t change the language of statutes through executive order. 

Third, Santa Clara and San Francisco sued, using the brand-new standing rule applicable to the age of Trump. The new standing rule is this: courts shall torch, stretch, and contort ordinary standing jurisprudence and hear lawsuits they wouldn’t ordinarily hear because Donald Trump is super-scary and super-mean. So the court allowed the case to go forward.

Fourth, DOJ lawyers tried to introduce sanity to the proceedings by noting that neither Santa Clara nor San Francisco face enforcement action under the order and explaining that the Trump administration had no intention to go beyond existing law to implement the order. Instead, it mainly represented a use of the “bully pulpit” to “highlight a changed approach to immigration enforcement.”

Fifth, the court responded with a ruling that was, much like the executive order itself, 90 percent hype and 10 percent substance. Here’s the key section of the judge’s ruling:

That said, this injunction does nothing more than implement the effect of the Government’s flawed interpretation of the Order. It does not affect the ability of the Attorney General or the Secretary to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does it impact the Secretary’s ability to develop regulations or other guidance defining what a sanctuary jurisdiction is or designating a jurisdiction as such. It does prohibit the Government from exercising 9(a) in a way that violates the Constitution.

Allow me to translate. The Court is telling the Trump administration that it can still enforce existing law, it just can’t do what its lawyers promised not to do anyway — strip funding without appropriate Constitutional authority. The rest of the opinion is basically nothing more than interesting fluff, outlining a basic civics lesson in federal spending power. In other words, the court larded up its ruling with legalese that made the opinion look far more dramatic to the untrained eye.

The bottom line? Trump isn’t blocked from enforcing existing law. He’s only blocked from engaging in illegal acts that the DOJ promised the court that it wasn’t considering. In other words, move along. There’s not much to see here. 

David French is a senior writer for National Review, a senior fellow at the National Review Institute, and a veteran of Operation Iraqi Freedom.

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