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Federal Court Blocks Sanctuary Cities Executive Order as Arguing in Good Faith Becomes the Latest Casualty of Trump Era. Roger Algase

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As the Trump administration continues its assault on Muslim and Latino immigrants through unilateral executive orders without going through the democratic process of seeking Congressional approval as contemplated by America's Constitution, and as it tries to marginalize the judicial branch by making personal attacks on judges who stand in the president's way on immigration, a decision issued by a federal judge in San Francisco on April 25 concerning Trump's executive order against Sanctuary jurisdictions shows that the latest casualty of this new policy is the expectation, which is at the heart of our legal system, that parties to a litigation will make arguments that are in good faith.

See also my previous April 14 ilw.com comment on this same lawsuit:

http://blogs.ilw.com/entry.php?9823

To be sure, this is not the first time that the DOJ has used an argument in a federal court case dealing with one of the president's immigration executive orders that can only be described as meretricious (from the Latin word meretrix - "prostitute", in English.)

We first saw this strategy in action in the lawsuits over Trump's Muslim ban executive orders, where the administration argued that a presidential order banning entry to the US by people from seven (later changed to six) 99 per cent Muslim countries, affecting over 100 million people whose only "wrongdoing" was being citizens of these countries, was not a ban against Muslims based on their religion.

This was despite almost a year of Trump's campaign speeches prior to the election promising to ban Muslims worldwide from entering the US, followed by Trump's appointment as president of two unabashedly Islamophobic top advisers, Stephen Bannon and Michael Flynn (who has since left the administration for reasons unrelated to his having called Islam a "cancer" rather than a religion).

But the bad faith of the DOJ's arguments in two federal courts and before the 9th Circuit that the executive orders in these above cases did not constitute a ban against Muslims as a religion (in other words, to paraphrase Orwell, that 2+2 do not equal 4) was dwarfed by the extent of the bad faith shown in the DOJ's argument before the California federal court in the Sanctuary jurisdictions lawsuit.

At issue is Section 9(a) of the president's January 27 Executive Order regarding sanctuary jurisdictions which the DOJ, in its argument before the Federal District Court in a lawsuit brought by two such jurisdictions, the City of San Francisco and Santa Clara County, deliberately misrepresented as allegedly having a much narrower purpose than its broad language states, and as the administration has been threatening to pursue against the these jurisdictions outside the courtroom.

The full decision of the Court can be accessed by going to the POLITICO story about the decision and following the link to the decision itself in that story.

http://www.politico.com/story/2017/0...-blocks-237597

I will begin by quoting Section 9(a) of the president's executive order 13768 (as set forth in the Court's decision):

(a) In furtherance of this policy, the Attorney General and the [DHS] Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. 1373 (sanctuary jurisdictions) are not eligible to receive federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary. The Secretary has the authority to designate, in his discretion and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction. The Attorney General shall take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of federal law.

It is important to note two points about the above quoted part 9(a) of the executive order:

First, 9(a) purports to give the A.G. and DHS Secretary power to cut off, not only funds for specific immigration or other law enforcement programs, but all Federal grants without limitation (except as imposed by the vague and contentious term, which is itself an invitation to endless litigation over this point,"to the extent consistent with law").

This threat could have a devastating effect on cities and other jurisdictions whose budgets depend to a large extent on federal grants, which is precisely why the administration has been making such threats.

One such Sanctuary city, Miami, has already caved into a threat by the president to cut off all federal funding unless it cooperates in full with his deportation agenda. See, USA Today, January 26:

First 'sanctuary city' caves to Trump demands

(Sorry, I do not have a direct link - please go to Google to access this story.)

To argue that Section 9(a) of the executive order was intended for any other purpose would make as much sense as arguing the Trump's ban on entry by citizens of the named Muslim countries was really directed only against the fraction of 1 per cent of the population of those countries who happen to be Christians or Jews, and that if any Muslims were affected, that was purely coincidental.

Even the Trump administration itself has never made such a ridiculous assertion.

But in its argument before the Federal District Court in this case, even as the administration has been making such dire threats, the DOJ tried to downplay or explain away the scope of the Section 9(a), of the EO, arguing that it was so limited in its purpose that it, in effect, added little or nothing to already existing federal law!

Where is there even the slightest shred of good faith in such an argument?

The second broad and intimidating part of the executive order is the phrase, quoted above that gives the DHS Secretary the authority to "designate, in his discretion, and to the extent consistent with law, a jurisdiction as a sanctuary jurisdiction".

This could, very possibly, give the DHS the power to label any city, county or state (or university) which takes any action whatsoever to protect one or more immigrants from the full force of Trump's mass deportation agenda as a "sanctuary jurisdiction", a term which is not defined by any law, leading to a cutoff of all federal funds!

This is an extraordinarily broad provision, one which, arguably, borders more on totalitarian regime practices than on the rule of law in a democracy.

However, here also, the DOJ tried to misrepresent the intent of this provision, as part of its argument that EO Section 9(a) in effect makes no change in the very narrow existing law on this topic.

However, the presiding Judge in this case refused to buy this utterly meretricious (I repeat for emphasis) argument.
__________________________________
Roger Algase is a New York immigration lawyer and a graduate of Harvard College and Harvard Law School. He has been helping mainly skilled and professional immigrants from diverse parts of the world receive work visas and green cards for more than 35 years. Roger's email address is algaselex@gmail.com


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Updated 04-29-2017 at 02:31 AM by ImmigrationLawBlogs

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Comments

  1. MKolken's Avatar
    What were the arguments and how were they in bad faith?
  2. ImmigrationLawBlogs's Avatar
    I will be continuing with my full explanation of this issue shortly. The full text of Federal District Court Judge William Orrick's decision and order is available by going to the POLITICO story about the decision and then clicking on the link to the decision itself.

    http://www.politico.com/story/2017/0...-blocks-237597

    See also my April 14 ilw.com comment about this same litigation:

    http://blogs.ilw.com/entry.php?9823
    Updated 04-26-2017 at 11:06 AM by ImmigrationLawBlogs
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