A federal court has blocked President Donald Trump’s executive order on sanctuary cities on the grounds that it is unconstitutional, in another legal setback for the administration.
The nationwide injunction granted on Tuesday by a federal judge in San Francisco will prevent the executive order, signed just days after Mr Trump’s inauguration, from being enforced while its legal merits are debated.
“This is a very aggressive use of the injunction authority,” said Leon Fresco, an immigration lawyer who served in the Department of Justice under President Barack Obama, “ . . . using the president and attorney-general’s statements to presume the worst possible interpretation of the sanctuary city executive order.”
The executive order threatened to cut federal funding from “sanctuary cities” that do not co-operate with federal immigration authorities, as part of the president’s plan to crack down on illegal immigration.
The decision marks another stinging courtroom defeat for the president and attorney-general Jeff Sessions, a former federal prosecutor. Like earlier court rulings rejecting Mr Trump’s controversial travel ban, the sanctuary cities decision underscores the damage Mr Trump’s own words have done to his legal position.
“This decision clearly and convincingly puts the president on notice that anything they say can and will be used against them in a court of law,” said Mr Fresco, a partner at Holland & Knight in Washington.
In a cryptic statement, the DoJ said it would follow the law, adding that the decision would not prevent it from enforcing “the requirements of federal law applicable to communities that violate federal immigration law or federal grant conditions”.
Government attorneys argued that the executive order, despite its broad wording, should be interpreted narrowly to represent no change in existing law and to apply only to a handful of DoJ grant programmes.
Judge William Orrick rejected that argument, citing Mr Trump’s public description of the funding cut-off as “a weapon” and his aides’ remarks about administration enforcement plans.
“The statements of the president, his press secretary and the attorney-general belie the government’s argument in the briefing that the order does not change the law,” the judge ruled. “They have repeatedly indicated an intent to defund sanctuary jurisdictions in compliance with the executive order.”
Judge Orrick highlighted the president’s comments in an interview on February 5 that specifically targeted California. “I’m very much opposed to sanctuary cities,” Mr Trump said. “They breed crime. There’s a lot of problems. If we have to defund, we give tremendous amounts of money to California . . . California in many ways is out of control.”
The judge also singled out comments by both Mr Trump and Mr Sessions complaining about San Francisco, in particular, as indicating that the government would target the city for enforcement — despite what its lawyers argued in court. San Francisco and Santa Clara had “a well-founded fear” of the executive order’s consequences, he wrote.
Judge Orrick’s ruling recalled the president’s succession of courtroom losses over his proposal to restrict immigration from seven majority-Muslim nations. In March, two federal judges rejected the president’s proposed travel limits, citing his inflammatory anti-Muslim comments on the campaign trail.
Nearly 100 days into the Trump administration, the Department of Justice, like much of the federal government, remains thinly staffed.
Mr Sessions is only one of two senior DoJ officials to have been confirmed by the Senate. After dismissing all of the federal prosecutors he inherited from the Obama administration, Mr Trump has yet to fill the 93 vacant US attorney positions around the country.
Santa Clara and San Francisco both stood to lose millions of dollars in federal funding if they were classified as “sanctuary cities” under the executive order of January 25.
“Today’s decision is a historic affirmation of the US constitution’s core principles — that the president cannot usurp power not given to him, and that the federal government cannot use federal defunding to coerce local governments into becoming federal immigration enforcers,” said James R. Williams, county counsel for Santa Clara.
While the executive order did not name specific “sanctuary cities”, legal experts believe it could have been applied to more than 400 US cities that do not use their own budget to enforce federal immigration laws, a role that historically falls to the department of homeland security.