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Federal Court Also Uses Trump's Statements in Refusing to Block Injunction Against Cutting off Sanctuary Cities' Funds. Roger Algase

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In a case with a parallel to the lower federal courts' use of the president's public statements against him in issuing injunctions against his Muslim ban order, which is now before the Supreme Court, a federal judge in San Francisco, William Orrick III, has refused to lift an injunction against the Trump administration's threat to cut of federal funding to "Sanctuary Cities" which refuse to comply with federal government requests to provide information about or honor detainers relating to unauthorized immigrants in their jurisdictions.

In his refusal to lift a previous injunction against the threatened funds cutoff, Judge Orrick reportedly relied on broad statements that both Trump and Attorney General Sessions - whose job may now reportedly be in danger because of his principled decision to uphold the rule of law by recusing himself from the Russia related investigations - a decision which has evidently infuriated the president - see:

http://www.politico.com/story/2017/0...message-240774

- had made threatening a cutoff of all federal funds to the jurisdictions concerned.

The court (as reported by POLITICO - I have not yet seen the actual decision) relied on these public statements as evidence of the administration's real intent to institute a legally impermissible broad cutoff of funds, despite the fact that Sessions subsequently issued a memo narrowing the scope of the threatened action in order make it more compliant with federal law and with the Constitutional separation of powers.

The parallels with the Muslim ban lawsuits are unmistakable. In both cases, the federal courts are reacting to what they, with considerable justification, perceive as the reality of Trump's intentions, based on his own statements and those of his top officials.

In contrast, many federal District and Circuit courts have been rejecting what Trump himself has described (in the Muslim ban litigation) as "watered-down", sanitized versions of his original executive orders or other policy statements as inaccurate or even misleading versions of his real intentions.

This was apparent, especially, in the 4th Circuit's 10-3 full court decision in the Muslim ban case, and we are now seeing the same thing, only in a different context, in the Sanctuary Cities litigation.

For the full POLITICO story about Judge Orrick's decision, see:

http://www.politico.com/story/2017/0...-cities-240780

One might ask, ultimately, what difference does it make whether the federal courts look behind the narrow, but prima facie more legally acceptable rationales for Trump's policies regarding both excluding Muslim immigrants from the US and threatening retaliation against Sanctuary Cities for not falling in line behind his mass deportation agenda for Hispanic and Asian immigrants, or whether America's judges take Trump at his word concerning his stated broader objectives?

The answer to this question involves whether America can continue to be governed as a democracy or whether it will become a dictatorship.

If the courts are deprived of the power to look behind the surface of Trump's immigration policies and to examine their real objectives, as stated by the president himself, merely because, well, he is the president, then we will no longer have separation of powers in this country and the courts will be nothing more than a compliant rubber stamp for whatever the president says and does about immigration.

And if America's judicial branch turns into nothing more than the president's doormat on immigration policy, how can the judiciary preserve its independence from one man rule by the president with regard to religious freedom, voting rights or any of the vital issues today which affect the rights and freedoms of the American people, not only foreign citizens?

Roger Algase
Attorney at Law
algaselex@gmail.com

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Updated 07-21-2017 at 06:04 PM by ImmigrationLawBlogs

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