Trump’s sanctuary cities order facing barriers

NEW YORK/SAN FRANCISCO: Even if US President Donald Trump wins an appeal of a court ruling blocking his executive order on sanctuary cities, arguments made by the government in the case could permanently harm its efforts to cut off federal funding to targeted cities, some legal experts say.

Trump’s original order, issued on January 25 says cities and counties shielding illegal immigrants and refusing to co-operate with immigration officials would lose federal funding except for that “deemed necessary for law enforcement purposes”.

The US Justice Department, defending the order in court, presented a far narrower view of its reach, however, arguing before US District Judge William Orrick III earlier this month that the only funds the government intended to withhold were certain grants tied to law enforcement programmes. That argument did not convince the judge, who noted in issuing a preliminary injunction that the text of the executive order threatened withdrawal of a much wider range of federal funds.

“Disavowing the plain language of the executive order itself” was a potentially dangerous course for the Justice Department, said Edward Waters, a Washington lawyer who specialises in federal grants.

The government’s strategy could restrict its ability to cut off funds, some legal experts said, since the Justice Department now has said the order applies to a narrow range of funding.

Trump has promised to broadly “defund” sanctuary cities, saying they “breed crime”. The government could appeal the preliminary injunction to the 9th Circuit Court of Appeals and the losing side at the appellate level could then appeal to the Supreme Court. One procedural case the federal government could make on appeal involves the timing of the challenge, some legal scholars suggested.

Since no federal funds have been withheld to date, the government could say there has been no harm and therefore the case is not yet “ripe” for litigation, said Brian Galle at Georgetown Law.

To have standing to bring a case, San Francisco and Santa Clara County would have to have suffered harm, which could be difficult to establish since they have lost no federal funding.