President Trump’s lawyers have figured out what may turn out to be a too-cute-by-half response to a problem that the separation of powers poses for the fulfillment of Trump campaign promises. His problem is that, without statutory authority, the Administration cannot fulfill the president’s promises, and for many key promises, no such authority exists.  The solution? Executive orders or presidential memoranda that direct administrators to keep the president’s promises “to the extent permitted by” or “unless prohibited by” law. 

A perfect example from Trump’s second week in office is Executive Order 13771, “Reducing Regulation and Controlling Regulatory Costs,” which purports to direct the imposition of a regulatory budgeting system and a requirement that two federal rules be repealed for every new rule issued—moves that I have argued cannot legally be implemented.  As I wrote regarding that initiative: “Trump’s order raises the puzzling question whether a presidential command, in effect, to ignore the law ‘unless prohibited by law’ is lawful.”

Now, with regard to a different Trump directive, U.S. District Judge William H. Orrick, in his April 25 order in County of Santa Clara v. Trump, seems to have answered my question, “No.” Specifically, he has enjoined the Attorney General and Secretary of Homeland Security from enforcing Section 9(a)—the sanctuary cities provision—of Executive Order 13768.  That section directs the Attorney General and Secretary of Homeland Security to cut federal funding to sanctuary jurisdictions “to the extent consistent with law.”

It turns out that, if you take "to the extent consistent with law” seriously, Section 9(a) does no more than reiterate the condition Congress built into three specific law enforcement grant programs; jurisdictions receiving funds through just these three programs must comply with 8 U.S.C. 1373, a statute that requires state and local jurisdictions to share with immigration authorities certain information within their possession.  If they do not, the grants can be rescinded.  But as Judge Orrick noted, this reading “renders the Order toothless; the Government can already enforce these three grants by the terms of those grants and can enforce 8 U.S.C. 1373 to the extent legally possible under the terms of existing law.”

Here’s where the gestural presidency comes in.  The American public is presumably not supposed to regard the Trump order as merely reinforcing business as usual.  The order is to be heralded as an icon of the Trump Administration’s toughness on immigration.  That’s why the order is called, “Enhancing Public Safety in the Interior of the United States.” Judge Orrick put the point mildly: “[The Government] explained for the first time at oral argument that the Order is merely an exercise of the President’s ‘bully pulpit’ to highlight a changed approach to immigration enforcement. . . .It is heartening that the Government’s lawyers recognize that the Order cannot do more constitutionally than enforce existing law.”

So why issue an injunction against an executive order which, if implemented only “to the extent permitted by law,” would be “toothless?” As Judge Orrick explains, relying on that phrase in the face of the order’s breadth and intent “is not legally plausible”: “Section 9(a), by its plain language, attempts to reach all federal grants . . . .The rest of the Order is broader still, addressing all federal funding.”

Neither the County of Santa Clara, nor the City and County of San Francisco are apparently in violation of grants requiring adherence to 8 U.S.C. 1373. Yet both receive many millions dollars of federal funding that help support critical local services. Given the vague phrasing of the Trump order and its facially unlimited scope, Judge Orrick concluded that both jurisdictions “have a well-founded fear” that unconstitutional enforcement actions will be taken against them because, through various policies, they decline to assist in federal immigration enforcement.

What made the plaintiffs' fears "well-founded" was the Trump Administration’s undisciplined braggadocio.  Judge Orrick writes: “[I]f there was doubt about the scope of the Order, the President and Attorney General have erased it with their public comments.” In the course of his opinion, he quotes various press conference statements by Press Secretary Sean Spicer and by Attorney General Sessions, as well as a Trump television interview with Bill O’Reilly and a letter by Sessions and DHS Secretary Kelly to the Chief Justice of the California Supreme Court. Judge Orrick treats all these officials as if they mean what they say.

It remains to be seen if courts follow this approach with regard to other orders.  Public Citizen is seeking an injunction against the Trump regulatory reform order cited above on the similar premise that the order means everything it says except for the “unless prohibited by law” part. If we had a president less concerned with posing as a man of action and more as the fiduciary taking care that the laws be faithfully executed, he would probably do better in court. I don't foresee him changing course.

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