Politico
By Josh Gerstein
April 11, 2018
A Justice Department lawyer trying to defend one of President Donald Trump’s executive orders found himself in a familiar position on Wednesday: asking a federal court to ignore Trump’s own statements on the subject.
At issue in the 9th U.S. Circuit Court of Appeals hearing: an anti-sanctuary city order that Trump issued five days after taking office.
The order sought to ban federal grants to jurisdictions that limit their involvement in federal immigration enforcement.
Last April, a federal judge in San Francisco blocked that part of the order, saying it appeared intended to intimidate local and state officials by using the threat of withholding a broad swath of federal funding.
But the acting chief of the Justice Department’s Civil Division, Chad Readler, told the appeals court on Wednesday that this wasn’t what the order said and that the best reading of Trump’s directive was that it simply urged compliance with federal law.
“The executive order does not rewrite the law,” Readler argued. “It does not invoke new powers and it does not instruct Justice or [the Department of Homeland Security] to engage in unconstitutional activity, and, in fact, the executive order does just the opposite.”
But Readler quickly found himself on the defensive as Chief Judge Sidney Thomas asked about the import of Trump’s repeated public calls for sanctuary cities to repent or face a cutoff of federal funding.
“You can have [a valid legal] action with the threat of prosecution or even absent the threat of prosecution,” Thomas said. “And here we have a lot of statements being made by the president that he wants to withhold grant money from sanctuary cities. What are we to make of that?”
Readler urged the three-judge 9th Circuit panel to disregard Trump’s comments.
“The order has to be judged by its terms and not by public statements. … Many were made before the order issued, even before the election last year,” Readler said, apparently referring to the 2016 election. “Some were made by White House press staff. That obviously doesn’t trump, one, what’s in the order itself and, two, how the attorney general has interpreted it.”
The senior Justice Department lawyer pointed to a memo that Attorney General Jeff Sessions issued last May saying Trump’s order should be interpreted solely to call for enforcement of a single federal law that bars localities from interfering with their employees’ efforts to communicate with immigration officials.
Since the district court injunction explicitly allowed the administration to continue to apply that specific law, Thomas asked, why was the Justice Department fighting the ruling?
“Why do you care if there’s an injunction against the action that you’re disavowing?” the judge asked.
“Any time an executive action is enjoined, I think the government would claim harm,” Readler said. “I think the better question is, what was the harm to the plaintiffs?”
Those plaintiffs, the cities of San Francisco and Santa Clara, urged the appeals court to preserve Judge William Orrick’s order. The cities’ attorneys also argued that the Justice Department was running away from the president’s clear intent.
“This executive order is simply not susceptible to the post-litigation gloss that the Department of Justice has placed on it,” said Christine Van Aken, a lawyer for San Francisco. “This executive order claims powers that the president doesn’t have in an unconstitutional effort to coerce cities into changing their sanctuary policies. … The entire premise of the order is that it is the president who has the power to impose conditions on grants of federal funds and not Congress.”
Santa Clara’s lawyer, Danielle Goldstein, said of Sessions’ memo: “It’s plainly not what the president who authored and signed this executive order wanted this executive order to do.” Trump, she said, “was extremely clear that he wanted this order to be a weapon to end sanctuary jurisdictions. … The Department of Justice’s reading of that executive order defuses that weapon.”
Van Aken called Sessions’ interpretation of Trump’s order “very cold comfort,” noting that the attorney general’s stance was not binding on other agencies.
“To be told, ‘Trust us’ … is not a sufficient remedy,” she said.
In the face of those attacks, Readler downplayed the significance of Sessions’ memo, arguing that Trump’s order was defensible on its own terms. “The memo was just belt and suspenders,” he said.
Thomas and and another appellate judge on the panel, Ronald Gould, sounded more skeptical of the administration’s arguments than of those put forward by the two cities. The third judge, Ferdinand Fernandez, was silent during the 40-minute argument.
Gould asked whether the administration could legally threaten to cut off hurricane relief or higher-education aid to a sanctuary city. Readler said that some such actions might be permissible, but that courts would be better off waiting for the federal government to act rather than trying to anticipate its moves.
Gould did express some skepticism about the sweep of the district court order, which banned the Trump administration from using Trump’s directive to threaten funding to state and local governments across the country. Such nationwide injunctions have been the focus of sharp criticism from Sessions in recent months, although he was silent on the subject when similar orders blocked policies from the administration of President Barack Obama.
Van Aken said Orrick had the discretion to apply his order nationwide. However, she said her city wanted to see the order appllied at a minimum throughout the state of California because of how impact on state grants could trickle down to San Francisco.
The Trump administration is also fighting separate injunctions issued by Orrick and by judges in Philadelphia and Chicago that block new Justice Department grant requirements issued last July aimed at persuading cities and states to cooperate with immigration enforcement efforts. The Justice Department said those new rules were not a product of Trump’s executive order from Jan. 25, 2017.
Thomas and Gould were appointed by President Bill Clinton, Fernandez by President George H.W. Bush, and Orrick by Obama.
For more information, go to: www.beverlyhillsimmigrationlaw.com
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