President Trump’s lawyers can’t be too surprised by yesterday’s decision striking down his executive order on sanctuary cities. After all, the lawyers didn’t attempt to defend his goal of punishing sanctuary cities as constitutional, possible, or even good policy. The lawyers literally argued that the order was all bark and no bite, like one of the president’s late-night tweets dressed in executive-order pajamas. Quite reasonably, Judge William Orrick had little patience for their claim that he should overlook the order as “an ominous, misleading, and ultimately toothless threat.”
Judge Orrick’s decision is nevertheless significant for at least four reasons. First, it’s the first decision to recognize that the president and attorney general’s goal of withholding all federal funds from sanctuary cities is blatantly unconstitutional. The order promises to punish “sanctuary jurisdictions” without explaining what a sanctuary jurisdiction is. That’s unconstitutionally vague. The order tells cities that if they want to keep their money for schools and hospitals they have to throw some of their residents under the ICE truck. That’s unconstitutionally coercive. The order drafts local teachers and judges and cops as federal jailers. That’s unconstitutionally compulsory. And the order changes a bunch of statutory grants in the name of the president, not Congress. There’s no adjective to describe why that’s unconstitutional, but it is.
Second—and more important for purposes of appeal—the court enlisted the president and attorney general’s help to explain why he had to strike the order now rather than after the Trump administration got around to enforcing it. As a legal strategy, the Department of Justice’s lawyers have abandoned the high road of “this order is good!” for the minefield of “the plaintiffs’ complaints are procedurally defective!” In legalese, they argue that the cities challenging the order lack “standing” to sue—that is, no city has yet been injured in such a concrete and particularized way that a court has reason to step in and protect it. But as Judge Orrick recognized, there have been hundreds of cases in which federal courts have intervened to stop the enforcement of an unconstitutional law before it could be enforced. The legal question courts ask before stepping in is whether there’s a “credible threat” that the law’s future enforcement will stop someone from exercising a constitutional right.
Like a helicopter parent in the principal’s office, the Department of Justice claimed that the president couldn’t have really meant all those mean things he said about keeping federal funds away from sanctuary cities. But Judge Orrick responded with example after example of people in the Trump administration snickering behind the DOJ’s back. “If there was doubt about the scope of the Order,” Judge Orrick explained, “the President and Attorney General have erased it with their public comments.”
Third, this is the second time one of the president’s executive orders has fallen because people in the Trump administration couldn’t keep their mouths shut. The most successful member of the #resistance so far has been Trump’s Twitter account.
The fourth important thing about Judge Orrick’s opinion is the way the judge introduced these out-of-court statements into the record: through a device called “judicial notice.” If you take a look at any of the footnotes, odds are it says something like “I take judicial notice of these statements which can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.”
What’s he doing there?
Courts are supposed to base their decisions on facts presented in the “record”—think testimony, affidavits, exhibits, photos, and briefs introduced by one of the two litigants. At the same time, lawyers creating the record often can’t predict what exactly will persuade a judge to adopt their position, especially in a high-profile case that lots of people will be interested in. So it’s as controversial as it is common for appellate judges to look at a record and decide that it could use some out-of-court facts from news articles, friend-of-the-court briefs, Google, Wikipedia, and everywhere else.
By taking “judicial notice” of the Trump administration’s public statements and declaring their accuracy to be unquestionable, Judge Orrick is, in effect, building a record of his own and making it easier for an appellate court to rely on those statements if Trump decides to appeal. Given how many Trump-era legal cases hinge on the president’s tweets and other public statements, this likely won’t be the last time a district court reinforces its factual conclusions by taking judicial notice of everything the administration puts out.
But any appeal to the Ninth Circuit will come later—if at all. Because the odds there look as grim as they do anywhere else. That said, early this morning the president promised, "See you in the Supreme Court!" But as we’re learning from his lawyers, we shouldn’t take his promises too seriously.