By Jerome R. Corsi, Ph.D.
WASHINGTON, D.C. -- On Tuesday, April 25, 2017, William H. Orrick III, a U.S. District Judge for the Northern District of California, issued a temporary restraining order against the federal government in the case City and County of San Francisco v. Donald J. Trump, litigation designed to block President Trump’s effort to deny federal funds to “sanctuary cities” refusing to assist the federal government in the effort to enforce immigration laws.
By issuing the injunction, Judge Orrick has placed a nationwide prohibition on the ability of the Trump administration to enforce the provision of Executive Order Number 13768, “Enhancing Public Safety in the Interior of the United States,” which President Trump signed on Jan. 25, 2017. That order empowers the federal government to withholding federal funding from “sanctuary jurisdictions,” at the local, county, and/or state level.
The White House is now forced to appeal Judge Orrick’s decision to the Ninth Circuit – a court known to lack sympathy with conservative legislation -- and most likely to the U.S. Supreme Court before moving forward nationally to use the threat of withdrawing federal funding to force “sanctuary cities” to assist the federal government in enforcing federal immigration laws.
The Washington-based Center for Immigration Studies (CIS) defines sanctuary jurisdictions as “those cities, counties, and states that have laws, ordinances, regulations, resolutions, policies, or other practices that obstruct immigration enforcement and shield criminals from ICE (U.S. Immigration and Customs Enforcement, Department of Homeland Security) – either by refusing to comply or prohibiting agencies from complying with ICE detainers, imposing unreasonable conditions on detainer acceptance, denying ICE access to interview incarcerated aliens, or otherwise impeding communication or information exchanges between their personnel and federal immigration officers.”
Democratic Party hard-left “open border” politics
What is at stake in this case is the determination of hard-left “open border” activists to protect illegal immigrants in their effort to remain in the United States, to justify their attempts to prevent federal law enforcement officers from enforcing federal immigration laws.
The underlying assumption of these hard-left activists is that establishing and enforcing national borders is somehow an illegitimate activity, under the assumption that illegal immigrants have “rights” under the U.S. Constitution that would prevent them from being arrested, brought before a federal magistrate, and deported despite the fact that illegal aliens are non-citizens who have violated federal laws by entering the country without authorization.
Extreme “open border” activists increasingly control the Democratic Party, which is turning hard-left under the leadership of Democratic National Committee Chairman Tom Perez. A self-professed LaRaza lawyer/radical from Maryland, Perez rose to head the Civil Rights Division of the Department of Justice from 2009-2013, before President Obama elevated him to become Secretary of Labor.
Perez pioneered the use of “consent decrees” to bully state and local law enforcement agencies to cease and desist from enforcing federal immigration laws (see previous article to learn more on this).
Under Perez’s direction, the DOJ ordered U.S. attorneys to bring civil-rights racial-discrimination lawsuits against state and local law enforcement agencies, with the goal of obtaining guilty pleas.
Perez rigged the process to obtain “consent decrees,” designed to turn over operation and management of “racially discriminatory state and local law enforcement agencies” to DOJ court-ordered federal “monitors” who were more concerned with protecting the rights of illegal immigrants than they were with the duty to protect law-abiding U.S. citizens against the ravages of law-breaking illegal immigrants and drug-dealing gangs.
Perez’s new tactic, as head of the DNC, is to oppose every step President Trump takes to close the U.S.-Mexico border by enforcing federal immigration laws, and to find sympathetic federal district judges who will issue injunctions designed to block the Trump administration.
The Perez hard-left strategy to resist the Trump administration appears to involve the “judge shopping” calculation that they will probably lose the appeal at the Ninth Circuit Court of Appeals, forcing them to take a year or longer before being able to make an appeal to the U.S. Supreme Court.
An “open borders” Obama-appointed federal district judge
Democratic Party hard-left activists chose San Francisco city and county as plaintiffs in this case knowing that President Obama nominated Orrick to the federal bench in June 2012. Obama was apparently rewarding Orrick for what Public Citizen documents was some $30,800 that Orrick donated to committees supporting Barack Obama’s 2008 campaign for president, while bundling another $200,000 for the Obama campaign that year. Public Citizen also documents Orrick bundled at least $100,000 for then -- Senator John Kerry’s 2004 presidential campaign.
In 2004, Orrick helped organize “Lawyers for Kerry,” – a nationwide group credited with raising more than a million dollars for Kerry in San Francisco alone. In 2008, a dozen or so attorneys meeting at Orrick’s firm effectively became “Lawyers for Obama,” organized before Obama officially entered the presidential race.
Orrick has a history of exercising his hard-left biases in making judicial decisions, as evidenced in his 2015 decision to block the release of videos depicting Planned Parenthood medical officials’ participation in the sale of internal organs from aborted babies.
In his work as a lawyer in the Civil Division of the U.S. Department of Justice from 2009-2010, and as deputy assistant attorney general from 2010-2012, Orrick worked against SB 1070, the “Support Our Law Enforcement and Safe Neighborhoods Act” passed by the Arizona legislation in 2010.
In deciding to issue a temporary injunction in City and County of San Francisco v. Donald J. Trump, Judge Orrick went beyond a strict construction of the law. The judge quoted candidate Trump to imply that Trump had an “animus against illegal immigrants,” and somehow found this relevant in his decision that the executive order withdrawing federal funding from sanctuary cities was unconstitutional.
In his decision, Orrick quoted President Trump saying in an interview with then Fox News host Bill O’Reilly on Feb. 5, 2017, “I don’t want to defund anybody. I want to give them the money they need to properly operate as a city or a state. If they’re going to have sanctuary cities, we may have to do that. Certainly, that would be a weapon.”
Later in the opinion, Orrick quoted Trump saying, “I’m very much opposed to sanctuary cities. They breed crime. There’s a lot of problems. If we have to defund, we give tremendous amounts of money to California … California in many ways is out of control.” Orrick argued this gave the two California local governments that blocked the executive order – the City of San Francisco and the County of Santa Clara – “good reason to believe they would be targeted.”
By focusing on President Trump’s comments, Judge Orrick managed to imply that Trump somehow had a prejudice against San Francisco that extended beyond the “sanctuary city” issue.
How many sanctuary jurisdictions are there in the United States?
On March 23, CIS identified some 180 cities and counties in the United States that were classified as “sanctuary jurisdictions,” with the largest numbers (listed alphabetically by state) in California, Colorado, Iowa, Oregon, Pennsylvania, and Washington State.
A “detainer” is the primary tool used by ICE to gain custody of a criminal alien for deportation. CIS defines a detainer “as notice to another law enforcement agency that ICE intends to assume custody of an alien and includes information on the alien's previous criminal history, immigration violations, and potential threat to public safety or security.”
In a press conference held on March 27, 2017, Attorney General Jeff Sessions noted the Department of Homeland Security had recently issued a report showing that in a single week, there were more than 200 instances of jurisdictions refusing to honor ICE detainer requests with respect to individuals charged or convicted of serious crimes that included drug trafficking, hit and run, rape, sex offenses against a child, and even murder.
“We all remember the tragic case of Kate Steinle, the 32-year-old woman who was shot and killed two years ago in San Francisco as she walked along a pier with her father,” Sessions recalled. “The shooter, Francisco Sanchez, was an illegal immigrant who had already been deported five times and had seven felonies.”
Sessions continued: “Just eleven weeks before the shooting, San Francisco had released Sanchez from its custody, even though ICE had filed a detainer requesting that he be kept in custody until immigration authorities could pick him up for removal. Even worse, Sanchez admitted the only reason he came to San Francisco was because of its sanctuary policies.”
Rather than threatening to deny all federal funding to sanctuary jurisdictions, Sessions referred to Trump’s executive order, noting that those jurisdictions that refuse to “comply with the law” will not be eligible to receive federal law enforcement grants. The DOJ is expected to award more than $4.1 billion in federal grants in 2017.
“Today I am urging all states and local jurisdictions to comply with all federal laws, including 8 U.S.C. Section 1373,” Sessions stressed. “Moreover, the Department of Justice will also require jurisdictions seeking or applying for Department grants to certify compliance with Section 1373 as a condition of receiving these awards.”
The section of the U.S. Code referred to by Sessions, 8 U.S.C. Section 1373, prohibits local and state law enforcement from restricting the sharing of immigration status with federal authorities.
During a White House press conference on March 27, 2017, Sessions explained,
“As a former prosecutor for many years on state and federal law and jurisdictions, I just know the historic relationship different federal agencies have with regard to honoring ‘detainers’. It’s just a fundamental principal of law enforcement that if you have a person arrested, and another jurisdiction has a charge, then they file a ‘detainer’, and when you finished with the prisoner, you turn them over to the next jurisdiction for their adjudication. That is what should be done.”
There are limits to the ability of Congress to pass a law including provisions demanding federal funds be withheld from a state that refuses to comply with the law’s provisions.
Writing the majority 7-2 opinion in the 1987 Supreme Court case South Dakota v. Dole, 483 U.S. 203 (1987), Chief Justice William Rehnquist ruled that legislation enacted by Congress in 1984, ordering the Secretary of Transportation to withhold five percent of federal highway funds from states that did not adopt a 21-year-old minimum drinking age, was within constitutional limits because the legislation was in pursuit of “the general welfare” and the five percent loss of highway funds was not unduly coercive. But in writing the court’s opinion, Justice Rehnquist warned a law withholding federal funds from a state refusing to comply with a law duly passed by Congress could become overly coercive “as to pass the point at which pressure turns into compulsion.”
It is also important to note that jurisdictions wanting to assist ICE by detaining illegal immigrants can do so under the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Section 287(g) which authorizes the director of ICE to enter into agreements with state and local law enforcement agencies permitting designated officers to perform immigration law enforcement functions under federal law, provided that they undergo the state and/or local law enforcement training and that they function under the supervision of ICE officers.
What’s next for the Trump administration?
On April 21, 2017, the Justice Department sent letters to officials in nine “sanctuary jurisdictions,” including New York, Philadelphia, and California, that threatened to withhold DOJ grants from jurisdictions violating 8 U.S.C. Section 1373, noting that “many of these jurisdictions are crumbling under the weight of illegal immigration and violent crime.”
The DOJ press release concerning the letters explained: “The number of murders in Chicago has skyrocketed, rising more than 50 percent from the 2015 levels. New York continues to see gang murder after gang murder, the predictable consequence of the city’s ‘soft on crime’ stance. And just several weeks ago in California’s Bay Area, after a raid captured 11 MS-13 (Mara Salvatrucha) members on charges including murder, extortion and drug trafficking, the city seemed more concerned with reassuring the illegal immigrants that the raid was unrelated to immigration than with warning other MS-13 members that they were next.” MS-13 is a notorious transnational gang with origins in El Salvador in the 1980s that today has a heavy presence on Long Island.
The New York Times reported on April 21, 2017 that the amounts of the DOJ grants in question were relatively small. In 2016, the City of New York received a $4.3 million DOJ grant. In 2016, the State of California received $10.4 million in DOJ grants, divided up among 128 cities and counties. Chicago and Cook County shared a $2.3 million grant. Philadelphia received a $1.7 million DOJ grant in 2016.
In reaction to Judge Orrick’s decision, President Trump Tweeted that the decision was “ridiculous,” promising, “See you in the Supreme Court!”
While the Trump administration can be expected to appeal Judge Orrick’s decision, the primary responsibility to enforce federal immigration laws continues to rest with the Justice Department, working in conjunction with ICE officers from DHS.
On April 26, 2017, the day after Judge Orrick’s decision, Attorney General Sessions announced a trip to Central Islip on Long Island, New York, after announcing that the DOJ was going to send a high intensity DOJ gang task force to New York to combat MS-13.
Sessions had decided to crack down on MS-13 after four males were found inside Long Island’s Recreational Village Town Park on April 13, 2017, with the bodies suggesting the victims were killed “in a manner consistent with the modus operandi of MS-13.”
The Trump administration, in the determination to arrest and deport criminal illegal immigrants, will have no choice but to accept the political fallout from voters as well as government officials and law enforcement officers in sanctuary jurisdictions that remain determined to shelter illegal immigrants, protecting even illegal immigrants known to be criminals from deportation.
In the final analysis, DOJ and ICE will have no choice but to exert their authority to enforce federal immigration laws in sanctuary jurisdictions, ignoring the resistance of local and state law enforcement officers that refuse to assist.
Whether or not the Ninth Circuit or the Supreme Court reverses Judge Orrick’s decision, the Trump administration appears determined to hire the federal law enforcement officers needed to enforce immigration laws, and to protect all U.S. citizens, including those who reside in sanctuary jurisdictions.