Difficult legal path forward for Trump in
sanctuary cities case
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[April 27, 2017]
By Mica Rosenberg and Dan Levine
NEW YORK/SAN FRANCISCO (Reuters) - Even if
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 wide swaths of
federal funding to targeted cities, some legal experts say.
Trump's original order, issued on Jan. 25, stated that cities and
counties shielding illegal immigrants and refusing to cooperate with
immigration officials would lose federal funding except for that "deemed
necessary for law enforcement purposes."
U.S. Justice Department attorneys defending the order in a San Francisco
court presented a far narrower view of its reach, however, arguing
before U.S. District Judge William Orrick III earlier this month that
the only funds the government intended to withhold were certain grants
tied to law enforcement programs.
That argument did not convince the judge on Tuesday, who noted in
issuing a preliminary injunction that the text of the executive order
threatened withdrawal of a much wider range of federal funds than the
government attorneys asserted in court.
"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 specializes in federal grants.
The government's strategy could restrict its ability to cut off funds
going forward, 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."
SEE YOU IN COURT
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, but such an
argument would have limitations.
Since no federal funds actually 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, an expert on government
finance at Georgetown Law.
To have standing to bring a case, San Francisco and Santa Clara County
would have to have suffered actual harm, which could be difficult to
establish in this case since they have so far lost no federal funding.
The two municipalities successfully argued in the district court hearing
that they had already been harmed by uncertainty and chaos in their
budget planning but that might not convince an appellate court.
"In the very short run it's quite possible that the administration could
win a reversal of this ruling" on appeal because of these procedural
reasons, Galle said.
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President Donald Trump
speaks after signing the Antiquities Executive Order at the
Department of the Interior in Washington, DC, U.S. April 26, 2017.
REUTERS/Kevin Lamarque
He predicted, however, the administration would be unable to
successfully defend itself if it then began withholding funds
without Congress authorizing such action.
The Justice Department declined to discuss its appeals strategy.
Tuesday's ruling left leeway for the administration to deny some
kinds of funding to sanctuary cities, noting the government can "use
lawful means to enforce existing conditions of federal grants."
A small amount of federal law enforcement money is tied to a statute
requiring local jurisdictions to share information with federal
immigration officials.
Programs making such grants include the Edward Byrne Memorial
Justice Assistance Grant Program, Community Oriented Policing
Services, and the State Criminal Alien Assistance Program. In San
Francisco, such funding is a small fraction of federal monies that
go to the city, said City Attorney Dennis Herrera.
Tuesday's ruling was the latest legal blow to the Trump
administration, which has had two previous executive orders stayed
by the courts.
In February, a Washington court blocked a Trump order temporarily
banning all refugees and travelers from seven mostly Muslim nations.
A subsequent order replaced that one, removing Iraq from the ban and
creating more exemptions. Parts of that ban were also blocked, this
time by judges in Maryland and Hawaii. Those cases are pending
appeal.
After Tuesday's district court ruling, a spokesman for the
Department of Justice said that it "will follow the law with respect
to regulation of sanctuary jurisdictions."
But the president made clear on Twitter Wednesday that he doesn't
consider the battle over: "See you in the Supreme Court!" he
tweeted.
(This version of the story was refiled to add dropped words in first
and third paragraphs)
(Reporting by Mica Rosenberg in New York and Dan Levine in San
Francisco; Editing by Bill Trott)
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