Policy

Trump’s Rhetoric Causes Trouble in Court

Judge calls government approach ‘schizophrenic’

Activists protesting President Donald Trump's immigration policies march in Washington on Monday. (Bill Clark/CQ Roll Call)

The Trump administration’s political rhetoric about the purpose of immigration executive orders isn’t matching the arguments it makes in court — and that disconnect has cut against efforts to implement policies central to President Donald Trump’s campaign promises. 

The latest example: Trump’s executive order to cut funding for “sanctuary” jurisdictions that don’t cooperate with federal enforcement of immigration laws.

Trump in a media interview called the order a “weapon” so that sanctuary cities would change their policies. Attorney General Jeff Sessions at a press conference said these jurisdictions would lose grants and the Justice Department might even “claw back” previously awarded grants. White House Press Secretary Sean Spicer underscored that broad reading of the order at a White House briefing.

But in court, Justice Department lawyers defending the order signed in January argued it did not change existing law and only is an exercise of Trump’s “bully pulpit” to highlight a changed approach to immigration enforcement.

The disconnect was enough for U.S. District Judge William H. Orrick to deem the government’s approach “schizophrenic.”

Orrick cited the comments of Trump, Sessions and Spicer when he issued an injunction on April 25 in the Northern District of California that stopped the Trump administration from implementing the order nationwide.

“Is the Order merely a rhetorical device, as counsel suggested at the hearing, or a ‘weapon’ to defund the Counties and those who have implemented a different law enforcement strategy than the Government currently believes is desirable?” Orrick wrote.

Orrick pointed out in the injunction that the Justice Department argued the order only applies to three grants that it could already enforce under existing law — but that the plain language of the order is so broad as to address all federal funding.

While the Justice Department disavowed any right to stop the billions of dollars San Francisco and Santa Clara County receives each year, Orrick wrote, “if there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments.”

Trump and his administration trumpet the executive orders as fulfilling campaign promises to get tough on immigration enforcement.

Four days before the injunction, the Justice Department sent letters to nine jurisdictions requesting validation of compliance with federal immigration laws or risk grant money. There would be no nationwide injunction had the administration simply sent out the letters instead of Trump issuing an executive order, said Josh Blackman, a professor at the South Texas College of Law in Houston.

And there’s a parallel to the Trump administration’s ban on U.S. entry for refugees and certain immigrants and travelers from Muslim-majority nations, Blackman wrote on his blog. Federal judges have stopped implementation of the travel ban as well, and cited the comments of Trump and administration officials in their orders.

“Had President Trump quietly instructed his State Department officials to quietly put on hold any visa application from these countries, and to suspend specific visas of individuals from these nations, without the dramatic flare of an executive order, there would not have been a nationwide injunction,” Blackman wrote.

“This early bravado has, in no small part, led to defeat after defeat in court,” he wrote.

There are other signs that Trump and the government lawyers representing him in court aren’t on the same page.

Trump took to Twitter on April 26 to complain that the travel ban and sanctuary cases were brought in the jurisdiction of the U.S. Court of Appeals for the 9th Circuit. “They used to call this ‘judge shopping!’ Messy system,” the president wrote.

But the previous day, Justice Department lawyers defending a separate challenge to the sanctuary jurisdiction order by the city of Richmond, California, agreed it was proper to bring that case in the Northern District of California.

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