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Cole writes: "This is the third time a Trump policy connected to immigration has been struck down by lower courts on the grounds that it is unconstitutional, raising questions as to whether this administration has a grasp on the constitution."

President Trump took aim at the court for blocking several of his executive orders. (photo: Carolyn Kasterer/AP)
President Trump took aim at the court for blocking several of his executive orders. (photo: Carolyn Kasterer/AP)


Trump Sanctuary Threat Quashed by Court - Is Anything He Does Constitutional?

By Juan Cole, Informed Comment

26 April 17

 

S district judge William Orrick responded to a lawsuit by the county of San Francisco and by Santa Clara county against a Trump Executive Order conveyed to them by the Department of Justice, threatening to deny Federal funding to self-proclaimed sanctuary cities by striking down the DoJ. This is the third time a Trump policy connected to immigration has been struck down by lower courts on the grounds that it is unconstitutional, raising questions as to whether this administration has a grasp on the constitution.

The Trump administration acted with fury and called Orrick an “unelected judge.” Yes, but federal judges are appointed by the Federal government, which is . . . elected. And besides, the constitution doesn’t change with each election.

The Trump administration argued that the Executive Order only reaffirms existing law. There are three Federal grants in the Department of Justice and Homeland Security that already have a rider requiring county compliance with immigration law. Only Santa Clara has one of these grants, to the tune of a million dollars a year.

Judge Orrick, however, did not accept the Trump administration’s claim that the plaintiffs lack standing or that all the Executive Order did was to reinforce those three existing laws. He pointed out that the EO claimed to be able to block all Federal funds to the affected counties.

Not only did the EO say that, Orrick pointed out, but Trump and Attorney General Jeff Sessions both publicly made such claims:

“And if there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments. The President has called it “a weapon” to use against jurisdictions that disagree with his preferred policies of immigration enforcement, and his press secretary has reiterated that the President intends to ensure that “counties and other institutions that remain sanctuary cites don’t get federal government funding in compliance with the executive order.” The Attorney General has warned that jurisdictions that do not comply with Section 1373 would suffer “withholding grants, termination of grants, and disbarment or ineligibility for future grants,” and the “claw back” of any funds previously awarded. Section 9(a) is not reasonably susceptible to the new, narrow interpretation offered at the hearing.”

In other words, if Trump wants to keep trying to push unconstitutional executive orders, he has to at least pretend in public that they are constitutional. Orrick flatly dismissed the government’s new interpretation of the order [as narrow] “not legally plausible.” But he noted that the government attorneys had more or less admitted that Trump’s overly broad interpretation of his own EO would be unconstitutional.

Orrick points out that Congress decides on funding issues, not the executive, so that the president can’t just wake up in the morning and put restrictions on Congressionally mandated funding.

In addition, “Further, the Tenth Amendment requires that conditions on federal funds be unambiguous and timely made; that they bear some relation to the funds at issue; and that the total financial incentive not be coercive. Federal funding that bears no meaningful relationship to immigration enforcement cannot be threatened merely because a jurisdiction chooses an immigration enforcement strategy of which the President disapproves.”

Trump’s lawyers also argued that the counties did not have standing to sue, since nothing had actually yet been done to them.

Judge Orrick pointed out that the EO had caused budgetary uncertainty, since it threatened to deprive them of hundreds of millions of Federal dollars. Moreover, he said, the Trump EO caused them ongoing constitutional injuries. It violates the separation of powers doctrine and deprives them of their Fifth and Tenth Amendment rights.

He went even further and rejected the whole legal logic of Trump’s demand that local jurisdictions that arrest undocumented persons hold them in jail so that ICE can come by and deport them.

He wrote, “Several courts have held that it is a violation of the Fourth Amendment for local jurisdictions to hold suspected or actual removable aliens subject to civil detainer requests because civil detainer requests are often not supported by an individualized determination of probable cause that a crime has been committed.”

Moreover, ICE does not reimburse local jurisdictions for the cost of keeping a Federal suspect locked up for a long time.

So the takeaway is that Trump attempted through his EO to make a coup. He tried to take spending decisions away from Congress, violating the separation of powers clause of the constitution. He also tried to throw out the Fifth Amendment’s guarantee of due process. And, he tried unilaterally to abrogate the Tenth Amendment, which says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.”

Trump was attempting to hijack local government for Federal purposes, in the absence of even the slightest statutory guidance from the states.

It is frightening that this administration (it isn’t just Trump) is perfectly OK with pissing all over the constitution to get what it wants.

For the moment, the courts are holding the line.

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+35 # Radscal 2017-04-26 16:40
So, it turns out that the Courts really are stopping the most egregious Executive Actions the Orange Fuhrer campaigned on, and Congress is stopping the most egregious legislation Drumpf campaigned on.

It seems to me I read some RSN commenters suggesting that would happen if he got into the White House.

I also recall some commenters postulate that the "left" who have been largely asleep for the past 8 years, will start paying attention and calling out our government for continuing and even escalating the policies of the past 16 years (and longer) if Drumpf "won."

Plenty of nasty stuff is still getting through, which is why I state that we need to remain focused on the big issues that we might be able to influence.

And again, I think the wars are the biggest of these issues. If we allow the Orange Fuhrer to complete his reversal and invade Syria and Iran and push us into war with Russia, then nothing else will matter. Or, shall we just leave the planet to the cockroaches?
 
 
+13 # Carol R 2017-04-27 03:48
Don't forget that the Orange Fuhrer is also beating his chest to encourage escalation of problems with N. Korea.

I guess he thinks the way to show strength is to bully other countries. He's very good at blustering but not so good at achieving anything useful. What foreign leader respects him?

(My favorite name for tRump is Orange Buffoon.) Why would anyone think he respects the constitution? He doesn't read, doesn't understand and doesn't want to learn. He doesn't know enough to know that he doesn't know.
 
 
+3 # Radscal 2017-04-27 14:26
Yep. North Korea, too. Which of course means China.

The US Empire has long operated on the premise that we don't care if it is respected. Only that it is feared. Having a President who is presented as ignorant and impulsive adds a whole new layer to that fear mongering.

Nixon was presented as such for a while.... allegedly he went so wacko that he was prevented from having the nuclear weapons code by Dr. Strangelove (oops. I mean Dr. Kissinger).
 
 
+6 # ericlipps 2017-04-27 04:53
Gee, and here I thought it was supposed to be Hillary Clinton who, if elected, would "invade Syria and Iran and push us into war with Russia," not to mention all kinds of nasty stuff here in the U.S., while the Donald just wanted peace, love and joy to the world.

Certainly that was the gist of what a lot of commenters here said, at least before the election last year. Not tat I expect them to admit they were wrong; they're no more capable of that than is the Rump himself.
 
 
+4 # Radscal 2017-04-27 14:30
We quoted Ms. Clinton's threats against Syria, Iran and Russia. Or are you claiming that HRC is a liar who never intended to carry out her foreign policy goals of many years?

Some believe that the Orange Fuhrer is being forced into following this NeoCon agenda by those who seek to impeach him over alleged ties to Russia.

Personally, I don't. I've come to believe that we were all played by Deep State from the start. But either way, we need to do everything in our power to prevent escalating our wars.
 
 
+2 # dbrize 2017-04-27 15:50
Quoting ericlipps:
Gee, and here I thought it was supposed to be Hillary Clinton who, if elected, would "invade Syria and Iran and push us into war with Russia," not to mention all kinds of nasty stuff here in the U.S., while the Donald just wanted peace, love and joy to the world.

Certainly that was the gist of what a lot of commenters here said, at least before the election last year. Not tat I expect them to admit they were wrong; they're no more capable of that than is the Rump himself.


You are exhibiting a reading/memory deficiency combined with straw man argumentation.

That Trump is doing some of what many on RSN found deplorable in Clinton's actual performance and stated policy proposals
proves how correct they were to vote for neither.

It is a distorted sense of LOTE that continues to blind you. It is you that should be admitting how wrong you were but, alas, we are where we are and incessant snow flaking may be personally edifying but otherwise unproductive.
 
 
+1 # lfeuille 2017-04-27 19:45
She would have done it sooner.
 
 
-2 # Time Traveller 2017-04-27 16:44
Good points, and in another article I admitted, with yuge qualifications, that you might have been right before the election about that.

BUT (imagine an elephant's butt here), its like playing Russian Roulette with at least one fucking Martial Law / End of Republic bullet in the cylinder!

DO NOT count your fucking chickens until Dump and Pence are gone, RAD! Bad, bad karma gloating while the Beast still rules.
 
 
+3 # Radscal 2017-04-28 00:59
I won't be counting anyone's chickens until we overturn the plutocracy.
 
 
0 # Time Traveller 2017-04-27 16:56
Sorry, Rad, I overdid my last, coz I just remembered you warned about wars, which are indeed the key.

Nothing matters more right now than what the Joint Chiefs of Staff have in mind. What say we do a little research on them to see how Strangelovian they are?
 
 
+2 # Radscal 2017-04-28 01:03
On the one hand, the Chairman of the Joint Chiefs (General Dunford) testified to Congress that imposing a "no fly zone" on Syria would amount to a declaration of war against Russia, which was above his pay grade.

McCain did NOT like that answer, and manipulated it into something more in keeping with his "regime change' goal.

On the other hand, all of the Orange Fuhrer's "greatest generals" are rabid warmongers.
 
 
-1 # Time Traveller 2017-04-28 09:26
You would think 8 years in the Hanoi Hilton would have given McCain a little perspective on the costs of war.

Reminds me of how a buddy finally got a mean stallion to stop bucking... He smacked it upside the head with an oak 2 x 4, then busted a plastic bag of warm water over its head so it thought it was bleeding to death after pushing its luck too far with that particular cowboy.

I don't approve, just passing story on about stubborn idiots who just don't know how to take a hint.
 
 
+2 # Radscal 2017-04-28 14:48
Did you know that many of McCain's "comrades" in the Hanoi Hilton are certain that he worked with the North Vietnamese? They consider him a traitor.

They do not believe he was tortured - certainly not one once he started talking. Most of his injuries were from the plane crash and the beatings the civilians he'd been bombing gave him after they dragged him out of the lake. There are photos of him in a Vietnamese hospital being treated for his wounds.

He's a psychopathic warmonger from a long line of psychopathic warmongers.
 
 
-2 # Time Traveller 2017-04-29 01:59
Everyone breaks under torture. EVERYONE. I never served in the military, and cannot imagine what many veterans have gone through.

Did you serve?
 
 
+2 # Radscal 2017-04-29 13:24
No, they wouldn't have me, and I agreed.

I have a dear friend from Iran who was arrested by the Shah's SAVAK and imprisoned and tortured for years, and she and her family and friends say she never gave them the names they wanted.

Her sister-in-law however, had given my friend's name to SAVAK just on the threat of being arrested.

Torture was always designed to force false "confessions," and it does that in the majority of cases. But history tells us that people of strong moral fiber are frequently tortured to death without ever "breaking."
 
 
-1 # Time Traveller 2017-04-29 02:11
I am not saying McCain isn't a psycho warmonger. I'm just saying that I don't judge what a person does under the extreme stresses of what it rightly called the "crucible" of war.
 
 
+2 # Radscal 2017-04-29 13:26
Perhaps I wasn't clear. The people in prison with McCain say he was never tortured (but they were). The Vietnamese knew immediately that McCain was the son of an Admiral, and saw him as a very useful pawn, but also knew that if they abused him, all hell could well fall on them.
 
 
-3 # Time Traveller 2017-04-30 07:50
Well, all hell fell on the South Vietnamese, not the North, last time I checked. Re torture, my bro had to go through POW training in the Navy (flying over enemy territory) and he, as well as all the other trainees he talked to, broke under waterboarding.

Awaiting their turn, however, each heard a fake waterboarding session in which the trainee was NOT broken and kept the "secret" he was given.

Everybody breaks, but few ever admit it, Rad. It is certainly in the interest of the military to perpetuate the myth of the Unbroken Hero.
 
 
0 # Radscal 2017-04-30 15:00
I do not appreciate you calling someone I love and her family liars.

You are clearly unaware of the history of torture. You don't even know of the many people burned at the stake because they didn't break under the torture of the Inquisition.

The historical record is quite clear. Many people have been tortured to death without ever "breaking." As I wrote, "most" people will say whatever the torturer wants them to say in order to stop the torture. But not all.
 
 
0 # Radscal 2017-05-01 15:15
You are just wrong. Not "everyone breaks" as has been proven time and time again throughout history. People were burned at the stake for not "breaking" under torture during the Inquisition.

As I wrote, most people will say whatever their torturer wants them to say just to stop the torture. Sometimes they might even say something that's true.
 
 
-2 # Time Traveller 2017-04-30 07:51
BTW, Failing the waterboarding test never kept any recruits from flying.
 
 
-2 # Time Traveller 2017-04-27 17:17
Actual military operations chain of command is prez, SecDef, Combatant Commanders, but Joint Chiefs are still huge. Current AF Chief was blown out of sky by a Serbian SAM.
https://en.m.wikipedia.org/wiki/Unified_combatant_command
 
 
+7 # Skeeziks 2017-04-26 22:00
He doesn't seem to understand the position he has. People probably voted for him as a person who would operate well under pressure and someone who is willing to do things differently that would make the U.S.A. even better than it is.

Now that he's almost through his 100 days...fat chance for him to accommodate those voters who chose him.

And to think that after his first 100 days are completed, we'll have 1360 days left with him as our president. Yoi!!!
 
 
+13 # Blackjack 2017-04-26 23:21
Seems we are leaving "the planet to the cockroaches" anyway with this slew of climate deniers now ensconced in power. Not only do they not give a flip about the Constitution (some obviously never having read it), but they don't give a flip about the well-being of Planet Earth either, seeing it only as their useful tool for extracting more personal wealth.
 
 
-16 # JohnBoanerges 2017-04-26 23:48
So you really believe that Marbury v Madison is the true determinate of constitutionali ty? I don't. Putting the judiciary as the top government branch is the short trip to oligarchy and the founders saw it that way (except monster Hamilton), too. Juan, I find that you are of the loony left, a progressive communist useful idiot trying to usher the populace onto cattle cars to totalitarian prisons 'for our own good', as the central planners have decided. I wish for you and all control freaks an early and unpleasant death since you want that for freedom lovers.
 
 
+5 # Radscal 2017-04-27 14:35
1 We are already an oligarchy, and have been for some time now. More specifically, we are the type of oligarchy called a plutocracy

2. Marbury v. Madison does NOT make the Supreme Court the "top government branch"

The Constitutional Balance of Powers is a circle, not a line or a pyramid.

Observe:

The Legislature passes a law.
The Executive carries out that law.
The Supreme Court determines the law is Unconstitutional
The Legislature Amends the Constitution.

It's a circle. Each Branch can check the others.
 
 
-3 # Time Traveller 2017-04-27 20:27
Theoretically, yes. In actual practice, sometimes. Wartime and Martial Law changes everything.
 
 
+2 # Radscal 2017-04-28 14:51
Yep. And as I mentioned in another reply to you, we've been living under some form of Martial Law since September 14, 2001. Each year whoever is the President signs another 1-year extension to it.

Most of the document is classified, so we don't even know to what level our representative democracy has been nullified.
 
 
-2 # Time Traveller 2017-04-28 16:48
Perhaps you should have issued a snark alert... What your Balance of Powers circle implies is that the Legislature ultimately has the most power.

Then there are those lovely little things called Presidential Orders that circumvent the Balance of Power... Then there is Supreme Court packing...

Jayzuz wept... I'm getting back in my Time Machine and setting the dial for one million years BP!
 
 
+1 # Radscal 2017-04-29 13:29
As your second paragraph notes, the Legislature is not the ultimate branch. As designed, it's a never ending circle.

Thought, there is a reason that the Framers defined the Legislature in Article I. "First among equals" and all.
 
 
+12 # John Whiting 2017-04-27 02:09
Why do we continue to assume that Trump has even the vaguest understanding of what he's doing and that he's not just given long papers and told, "Sign this!"?
 
 
+10 # treerapper 2017-04-27 02:09
NO - his mere existence is a violation of everything and anything one might hold dear. He is a blemish, a wart, a fungal disease.
 
 
+9 # RLF 2017-04-27 05:26
This is how democracy dies...when he decides to enforce an executive order after it has been knocked down by a court...that is either the end or a new beginning if the Senate and congress wake up and stop it...I'm kind of doubting it.
 
 
+4 # Radscal 2017-04-28 01:06
Sort of like when President Jackson told the Supreme Court that if they want to stop him, they can bring their own army and see who wins. Since no opposing army showed up, Jackson gave history the "Trail of Tears."
 
 
+3 # tr4302@gmail.com 2017-04-27 11:19
Remember the orangeFuhrer is Non Compos Mento!!

not of sound mind in Latin!!
 
 
0 # Time Traveller 2017-04-27 20:30
Wish he was compost.
 
 
0 # Oyster 2017-05-03 17:42
Quoting tr4302@gmail.com:
Remember the orangeFuhrer is Non Compos Mento!!

not of sound mind in Latin!!


I think the correct spelling is: non compos mentis.
 

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