Judge: Trump can’t de­fund sanc­tu­ary cities

Pres­i­dent, Ses­sions al­lowed to strip cash from some pro­grams

The Washington Times Daily - - FRONT PAGE - BY STEPHEN DI­NAN AND AN­DREA NO­BLE

A judge blocked Pres­i­dent Trump’s anti-sanc­tu­ary city ex­ec­u­tive or­der Tues­day, ac­cus­ing the White House of wrongly try­ing to threaten the cities and saying Congress, not the pres­i­dent, gets to de­cide what strings to at­tach to fed­eral funds.

The rul­ing was still a par­tial vic­tory for the pres­i­dent though, with the judge saying the ad­min­is­tra­tion can with­hold funds in cases where the law al­ready gives him per­mis­sion.

That clears the path for At­tor­ney Gen­eral Jeff Ses­sions to strip sanc­tu­ary cities of hun­dreds of millions of dol­lars doled out each year across three Justice Depart­ment grant pro­grams.

Still, the na­tion­wide in­junc­tion by U.S. District Judge Wil­liam H. Or­rick is the lat­est le­gal spank­ing for Mr. Trump, who has now seen three ex­ec­u­tive orders — all of them deal­ing with im­mi­gra­tion and home­land se­cu­rity pol­icy — halted by the courts.

“Once again, the courts have spoken to de­fend tol­er­ance, di­ver­sity and in­clu­sion from the il­le­gal threats of the Trump ad­min­is­tra­tion. Once again, Trump has over­reached and lost,” the Amer­i­can Civil Lib­er­ties Union said af­ter the rul­ing.

Mr. Trump is­sued his sanc­tu­ary city pol­icy in a Jan. 25 ex­ec­u­tive or­der, saying he wanted his at­tor­ney gen­eral and home­land se­cu­rity secretary to come up with an of­fi­cial def­i­ni­tion of

sanc­tu­ary cities, then try to strip them of per­haps tens of bil­lions of dol­lars the fed­eral govern­ment pays to them each year.

An­a­lysts said ev­ery­thing from Med­i­caid money to school funds could have been on the chop­ping block.

Judge Or­rick, how­ever, said Congress has the power of the purse and gets to de­cide what strings are at­tached to fed­eral money. He sided with two Cal­i­for­nia coun­ties, San Fran­cisco and Santa Clara, that had sued to stop the ex­ec­u­tive or­der.

“The coun­ties have a strong in­ter­est in avoid­ing un­con­sti­tu­tional fed­eral en­force­ment and the sig­nif­i­cant bud­get un­cer­tainty that has re­sulted from the or­der’s broad and threat­en­ing lan­guage,” Judge Or­rick wrote.

The Justice Depart­ment por­trayed the rul­ing as lit­tle more than a sym­bolic set­back, saying it had al­ready lim­ited the pun­ish­ment to the three pro­grams the judge said can be cut off un­der ex­ist­ing law.

“Ac­cord­ingly, the depart­ment will con­tinue to en­force ex­ist­ing grant con­di­tions and will con­tinue to en­force 8 U.S.C. 1373,” Justice Depart­ment spokesman Ian Prior said. “Fur­ther, the or­der does not pur­port to en­join the Depart­ment’s in­de­pen­dent le­gal author­ity to en­force the re­quire­ments of fed­eral law ap­pli­ca­ble to com­mu­ni­ties that vi­o­late fed­eral im­mi­gra­tion law or fed­eral grant con­di­tions.”

San Fran­cisco, though, said the in­junc­tion was an em­bar­rass­ment to Mr. Trump.

“I hope this pres­i­dent learns from his litany of mis­takes. His first 100 days have been a dis­as­ter. I hope, for all of our sakes, that he can turn it around,” said Den­nis Her­rera, San Fran­cisco’s city at­tor­ney.

Mr. Trump made sanc­tu­ary cities a cen­ter­piece of his pres­i­den­tial cam­paign, and made San Fran­cisco a par­tic­u­lar tar­get af­ter the 2015 killing of Kate Steinle. The man who’s ad­mit­ted to shoot­ing her is an il­le­gal im­mi­grant who had been pro­tected from de­por­ta­tion by San Fran­cisco’s sanc­tu­ary pol­icy.

In of­fice, how­ever, Mr. Trump has strug­gled to make good on his promise to crack down on il­le­gal im­mi­gra­tion.

The Depart­ment of Home­land Se­cu­rity was forced to halt its weekly name-and-shame list of sanc­tu­ar­ies af­ter it made too many er­rors, and the ad­min­is­tra­tion is still strug­gling to come up with an of­fi­cial def­i­ni­tion of what a sanc­tu­ary is.

Mean­while, a rash of new cities and coun­ties has passed poli­cies pro­tect­ing il­le­gal im­mi­grants, saying they are de­ter­mined to thwart Mr. Trump.

Not all sanc­tu­ary poli­cies are the same. Some ju­ris­dic­tions pro­hibit all com­mu­ni­ca­tion with U.S. Im­mi­gra­tion and Cus­toms En­force­ment, while oth­ers will share in­for­ma­tion with ICE but re­strict co­op­er­a­tion with the agency’s de­tainer re­quests, which of­ten ask lo­cal author­i­ties to hold il­le­gal im­mi­grants be­yond their reg­u­lar re­lease time.

Sev­eral courts have ruled that pro­longed de­tain­ers vi­o­late the Con­sti­tu­tion.

A del­e­ga­tion of may­ors met Tues­day with Mr. Ses­sions, and said they made some head­way in try­ing to hash out what poli­cies the Trump ad­min­is­tra­tion deems in vi­o­la­tion of the law.

“We heard a nar­row­ing of what might be a sanc­tu­ary city,” said Steve Adler, mayor of Austin, Texas.

But lo­cal of­fi­cials said they still want more de­tail on how the ad­min­is­tra­tion ex­pects them to treat de­tainer re­quests.

“Do we have le­gal author­ity to hold people on de­tain­ers?” said Chief Tom Manger, head of the Ma­jor Cities Chiefs As­so­ci­a­tion and head of the Mont­gomery County, Mary­land, po­lice depart­ment.

Judge Or­rick said that while Mr. Trump can’t go be­yond the laws writ­ten by Congress, he can en­force ex­ist­ing laws — in­clud­ing U.S. Code Sec­tion 1373. That law pro­hibits ju­ris­dic­tions from en­act­ing poli­cies that re­strict com­mu­ni­ca­tions with Home­land Se­cu­rity “regarding the cit­i­zen­ship or im­mi­gra­tion sta­tus, law­ful or un­law­ful, of any in­di­vid­ual.”

The three pro­grams are the Byrne Justice As­sis­tance Grants, the COPS pro­gram and the State Crim­i­nal Alien As­sis­tance Pro­gram, which pays lo­cal pris­ons and jails to hold il­le­gal im­mi­grants.

Mr. Ses­sions last week sent let­ters to nine ju­ris­dic­tions de­mand­ing they ex­plain their sanc­tu­ary poli­cies and try to square them with a fed­eral law that re­quires them to share in­for­ma­tion with fed­eral im­mi­gra­tion agents.

The state of Cal­i­for­nia was one of the ju­ris­dic­tions. Nei­ther San Fran­cisco nor Santa Clara was on the tar­get list.

Lo­cal of­fi­cials who met with Mr. Ses­sions on Tues­day doubted the law will snare many ju­ris­dic­tions.

Chief Manger said very few lo­cal law en­force­ment agen­cies are out­right block­ing com­mu­ni­ca­tions with ICE.

“If that’s the def­i­ni­tion of a sanc­tu­ary city, I don’t think there are any sanc­tu­ary cities in the U.S.,” said Jorge Elorza, mayor of Prov­i­dence, Rhode Is­land.

But the Justice Depart­ment in­spec­tor gen­eral last year iden­ti­fied a num­ber of ju­ris­dic­tions, in­clud­ing San Fran­cisco, which it said had poli­cies that likely did run afoul of Sec­tion 1373.

Judge Or­rick’s 49-page or­der is the lat­est to use Mr. Trump’s own words against him.

The judge wrote that the govern­ment ac­knowl­edged “the or­der can­not do more con­sti­tu­tion­ally than en­force ex­ist­ing law,” but that the lan­guage in the or­der at­tempted to ap­ply the author­ity to re­strict fed­eral funds to all fed­eral grants, not just the three men­tioned by the Justice Depart­ment.

“If there was doubt about the scope of the or­der, the pres­i­dent and at­tor­ney gen­eral have erased it with their pub­lic com­ments,” Judge Or­rick wrote. “The Pres­i­dent has called it ‘a weapon’ to use against ju­ris­dic­tions that dis­agree with his pre­ferred poli­cies of im­mi­gra­tion en­force­ment.”

Mr. Trump’s words about a “Mus­lim ban” have also come back to bite him on his ex­treme vet­ting pol­icy, with sev­eral fed­eral judges saying that no mat­ter what his ex­ec­u­tive or­der looks like on its face, his com­ments have tainted the process and made the or­der likely un­con­sti­tu­tional.

ASSOCIATED PRESS

San Fran­cisco City At­tor­ney Den­nis Her­rera ap­plauded a judge telling Pres­i­dent Trump he can­not uni­lat­er­ally re­scind sanc­tu­ary city funds.

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