Rogue judge sides with sanctuary cities. Will Congress respond?
Gavel on desk

Rogue judge sides with sanctuary cities. Will Congress respond?

Posted April 26, 2017 11:34 AM by Daniel Horowitz, Nate Madden Gavel on desk
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“If aliens might be admitted indiscriminately to enjoy all the rights of citizens at the will of a single state, the Union might itself be endangered by an influx of foreigners, hostile to its institutions, ignorant of its powers, and incapable of a due estimate of its privileges.” ~ Joseph Story on why the Constitution grants federal government control over immigration.

Well, it appears that we will have a government shutdown after all. No, not the closure of 17 percent of the federal bureaucracies due to a funding lapse, but the violation of separation of powers and national sovereignty. The federal judiciary has become so supreme that a district judge has now been given the power to greenlight sanctuary cities.

Yesterday, Judge William Orrick of the U.S. District Court for the Northern District of California issued a nationwide preliminary injunction on President Trump’s executive order cutting off funds to sanctuary cities. Section 9a of the January 25 order directed the DOJ to “ensure that jurisdictions that willfully refuse to comply” with federal law requiring them to cooperate with ICE agents (8 U.S.C. 1373) be denied federal grant funds.  

Citing bogus claims of federalism and the 10th Amendment, the judge ruled that it is “unconstitutionally coercive” to threaten law-breaking jurisdictions with funding cuts outside of three DOJ grant programs directly linked to cooperating with immigration authorities. While the judgment was on behalf of the city of San Francisco and Santa Clara County, the judge applied his ruling nationwide, as if he stands atop the food chain of federal powers.

A number of observations are in order:

  1. Judge Orrick is a liberal Obama donor who previously blocked the release of Planned Parenthood videos.
  2. This is another example of the judiciary engaging in civil disobedience by violating rules of standing to grant relief before there is a ripe case or controversy. These jurisdictions have not been named yet, nor have they been threatened with loss of funds, but the judge ruled that the mere fear of losing funds is sufficient to create an injury-in-fact. This is part of the disturbing trend we saw with the refugee and visa order, in which judges granted standing to foreign nationals who didn’t even have a legitimate case for standing. They will do anything to steal our national sovereignty.
  3. Once again, a judge goes outside the interpretation and application of the law as written to incorporate the rhetoric of the president, attorney general, and the White House press secretary, not unlike the kinds of rulings issued on the two versions of the administration’s travel moratorium.
  4. These same judges are crushing states into oblivion by denying them their long-standing powers over abortion, marriage, redistricting, and election laws, but are now crying “10th Amendment” when it comes to states who thwart a manifestly federal power. The same judges who allow states to sue for more immigration or for the right to thwart federal immigration law are forcing states like Arizona to grant driver’s licenses – which are manifestly a state function – to aliens illegally amnestied by Obama, in contravention of federal immigration law!
  5. It is now clear that liberals will use any random district judge, within the Ninth Circuit in particular (so they can win the appeal), to strike down every legitimate executive order from this president. If Republicans fails to enact judicial reform, we will have no national sovereignty left.
  6. The argument that the federal government cannot coerce a state into following immigration law is bogus. While it is true that courts have limited the power of the federal government to place conditions on grants to the states in order to induce them to accept specific policies, the comparison to these court cases doesn’t get off the ground.

As we’ve explained before in this space:

“In South Dakota v. Dole, the federal government was leveraging an enumerated spending power to induce states into raising their minimum age for alcohol assumption, a power that does not belong to the federal government and should be left to the states. In Pennhurst, the federal government was forcing states into a costly and burdensome disability program full of extra costs and regulations. In the case involving Medicaid expansion (NFIB v. Sebelius), the federal government was placing a massive unfunded liability on the states — which accounts for the single-largest expenditure for a state. These are instances when it is appropriate, within certain limits, for states to tell the federal government to get off their lawns.

“Immigration, on the other hand, is one of the most foundational enumerated powers and responsibilities of the federal government to the entire union of states. The federal government has the right to send out agents anywhere at any time to apprehend and deport illegal aliens. Furthermore, the federal government isn’t foisting upon the states implementation of a cumbersome, officious, and costly spending or regulatory regime. All they are asking for is the minimum cooperation needed for the federal government to protect the sovereignty and security of all the states, which merely requires states to communicate with ICE and detain illegal immigrants in jail until they are picked up by the feds. At the very least, they are asking that states don’t take active steps to undermine, thwart, and downright prohibit police from cooperating with ICE, as required by law [8 U.S.C. 1373]. There is no practical way for the federal government to exercise this solemn responsibility if states are active accomplices to the assault on the national sovereignty.”

Taken to its logical conclusion, the judge’s ruling would mean that a state which opposes a given military conflict can block the deployment of national guard troops within its jurisdiction and the federal government would not have the ability to cut off funding!

On a final note, 8 U.S.C. 1373 was enacted as part of the 1996 Welfare Reform Act to ensure that illegal aliens don’t benefit from public assistance. By definition, any grant program, not just law enforcement programs, would benefit illegal aliens were they to be funneled equally to jurisdictions saturated with illegal aliens. Thus, the federal condition of the executive order is not extraneous to the policy goals of the underlying grant as they would be if, say, the federal government would cut off transportation funding to a state for implementing an undesirable social policy related to gender-neutral bathrooms. In this case, the law is designed to target the recipients of benefits, not a social behavior. 

What to do now

Even this rogue judge made it clear that Congress has the power to punish sanctuary cities. And frankly, Congress doesn’t need permission from a district court, which is an institution created by Congress. Now that Republicans have caved on the border wall, Planned Parenthood, and defunding refugee resettlement, they have nowhere to run or hide. Everyone hates sanctuary cities. This is their issue to run on. They must immediately pass a budget bill out of the House defunding sanctuary cities. This will not only keep us safe and protect our sovereignty, it will solve the real systemic government shutdown – the stolen sovereignty perpetrated by the judiciary.

If Democrats want to shut down the government in order to fund those who break our sovereignty and threaten our security, let them stand before the American people and defend the ultimate shutdown of our government.  

Daniel Horowitz is a senior editor of Conservative Review. Follow him on Twitter @RMConservative.

Nate Madden is a staff writer for Conservative Review, focusing on religious freedom, immigration, and the judiciary. Follow him @NateMaddenCR and on Facebook.