//  4/27/17  //  Commentary

Two days ago, a federal judge in San Francisco issued a preliminary injunction against President Trump's executive order threatening to block federal funds to sanctuary cities. Take Care has published analyses of the ruling by Niko Bowie (here), Peter Shane (here), and me (here).  

In response to the preliminiary injunction, Trump issued a baffling series of Tweets, which suggest a fundamental and dangerous misunderstanding of law and legal process:

  • First the Ninth Circuit rules against the ban & now it hits again on sanctuary cities-both ridiculous rulings. See you in the Supreme Court! 
  • Out of our very big country, with many choices, does everyone notice that both the "ban" case and now the "sanctuary" case is brought in ...
  • ...the Ninth Circuit, which has a terrible record of being overturned (close to 80%). They used to call this "judge shopping!" Messy system.

There's a lot wrong here.  And some of it really matters.

1.  In a normal presidencyyou know, one in which the President's doesn't bash federal judges every time they enjoin one of his policiesthis attack on a federal court would be widely condemned. Even for a presidency defined by threats and bluster, turning every judicial defeat into a mass-tweeted temper tantrum is unseemly and offensive. As Chiraag Bains noted on Twitter, "Personally attacking judges like this is corrosive and undermines the rule of law."

2.  The decision was issued by U.S. District Judge William Orrick of the Northern District of California, not by the Ninth Circuit Court of Appeals. And, for what it's worth, Judge Orrick's opinion rested primarily on Supreme Court precedent, not on cases unique to the Ninth Circuit. As any lawyer would tell you, there's a big difference between losing in the district court and losing in the Court of Appeals. Trump apparently can't tell the two courts apart. I can't help but wonder if he really understands the difference.

3.  Yet again, it's unclear who the "you" is that Trump will "see in the Supreme Court." Is Trump speaking to the plaintiffs? Perhaps the American people as a whole? Possibly, but that seems charitable.  More likely, he's speaking generically to all his haters out there (of which they are surely many) ... or to the Ninth Circuit itself, which, in fairness, he has previously threatened to haul into court. 

4.  As a substantive matter, it's not clear to me why the Trump Administration feels so strongly about appealing this ruling. Their whole defense in the district court was that the plaintiffs lacked standing, on the theory that the executive order changed nothing, had essentially no legal effect, and probably wouldn't be enforced against anybody. To the extent the Administration actually believes anything it said in court, this loss is really no loss at all: it's been enjoined from doing something that it repeatedly stated it wasn't doing and had no plans to do. To be sure, the injunction was entered precisely because the district court correctly concluded that this was all bogus, and that the executive order represented a meaningful, imminent, concrete, and illegal threat to change federal spending policy. (This conclusion seemingly was confirmed by Trump's ballistic reaction, which was jarringly out of key with what his lawyers had said about the order's lack of real-world effect.) But if we pretend that DOJ and Trump have any credibility here, all they'd be appealing is an injunction that forbids something they've repeatedly denied and foresworn.

5.  This relates to what Peter Shane has described as Trump's "gestural presidency." Given the total mismatch between DOJ's defense and the Administration's rhetoric about the order (e.g., Sean Spicer saying sanctuary cities "have the blood of dead Americans on their hands"), Trump likely felt he had no choice but to blast out some overheated tweets in response to Judge Orrick's ruling. The tweets, then, must be understood as the spectacle associated with a president who cares little for the substance of his policies but a great deal about how they (and he) are perceived. STRONG! GOOD! U.S.A.! It doesn't matter that the tweets are legally nonsensical and at odds with DOJ's position; they're about creating an appearance. 

6.  Still, the tweets must be taken seriously. As I've emphasized, "the rule of law means little if the President's word means nothing." Consider, for instance, the charge of forum shopping. This is a silly claim. Trump went on national TV and singled out California in his threats: "I’m very much opposed to sanctuary cities. They breed crime. There’s a lot of problems. If we have to we’ll defund, we give tremendous amounts of money to California … California in many ways is out of control." In this context, two sanctuary cities in California sued Trump for an illegal threat. Where did they file? Well, federal court in California, obviously. That's not called forum shopping; it's called complying with the applicable rules. (It's also entirely normal for a municipality to sue locally, so that it's lawyers don't have to travel long distances for every court appearance.) Moreover, other sanctuary city suits have been filed elsewhere, including in Boston (under the First Circuit, hardly known for any particular ideological orientation). By the same token, suits against "the Ban" were originally filed in many states, and are now pending in both the Ninth and Fourth Circuits. In fact, it is the Fourth Circuit, based in Richmond, Virginia, that will hear the first appeal concerning Trump's revised travel ban. 

7.  It's also very hypocritical for Trump and the GOP to cry "judge shopping." For most of the Obama presidency, the Texas Attorney General functioned as a high-powered anti-Obama cause lawyer, regularly bringing ideologically charged cases before friendly federal judges in Texas, knowing that any appeals would be heard by the conservative Fifth Circuit. As I've noted, many of these cases developed the national injunction as we are now familiar with it. "Judge shopping," indeed. And of course, given his background, Trump has no leg to stand on when it comes to actual abuse of the judicial process.

8.  While Trump and Sessions have treated rulings like this as emanating from crazy liberal judges, it's worth remembering that the most important legal doctrines at issue in the sanctuary city litigation are recent, conservative creations: the anti-commandeering principle and the coercion principle, both of which were created (and applied) within the past few decades by conservatives on the Supreme Court, typically over liberal dissents. These aren't outlandish liberal ideas. They're longstanding conservative projects.  

Finally, these tweets are of a piece with Trump's general project to politicize and delegitimize the judiciary—and legal constraints, more generally. Trump doesn't get to pick and choose which federal courts are entitled to decide cases and controversies. And he doesn't get to publicly insist that his order does one thing while his lawyers swear in court it does the opposite. Tweets like these contribute to a perception that the rule of law—and the federal courts—are political all the way down, and that they're subject to the very same attacks that Trump levels against anyone he perceives as a threat.

In time, this presidential conduct will cause severe damage to the separation of powers and to public confidence in the legitimacy of our government. It should be met with universal condemnation that transcends our partisan divide.

But clearly that is too much to hope for these days.

Deferred Reaction To the Courts

6/22/20  //  Commentary

Democratic and Republican responses to the DACA decision illustrate the different focus the two parties put on the federal courts.

Leah Litman

Michigan Law School

Versus Trump: Should Vulnerable Detainees Be Released?

3/27/20  //  Commentary

On this week’s Versus Trump, Jason and Charlie discuss a lawsuit in Seattle, Dawson v. Asher, requesting that several vulnerable people in immigration detention be released. They discuss the legal standard for detention, why detention centers are particularly dangerous places, and what courts will be balancing when they consider these requests for release. Listen now!

Charlie Gerstein

Gerstein Harrow LLP

Jason Harrow

Gerstein Harrow LLP

The Blame Game

2/18/20  //  Commentary

The administration often tries to foist blame on the courts for its politically unpopular policies--or to have the courts effectuate its politically unpopular policies for the administration.

Leah Litman

Michigan Law School