Lyman Abbot, editor of The Outlook, began an essay in an issue of that publication, "A Review of President Roosevelt's Administration", with an anecdote about then-President Theodore Roosevelt: "He had just finished a paragraph of a distinctly ethical character when he suddenly stopped, swung round in his swivel chair, and said, 'I suppose my critics will call that preaching, but I have got such a bully pulpit!'" The hortatory power of the presidency has since come to be known as "the Bully Pulpit."

This phrase makes an appearance three times in District Judge William Orrick's order in County of Santa Clara v. Trump, in which he granted the motions of the County of Santa Clara and the City and County of San Francisco's motions to enjoin section 9(a) of Executive Order 13768 (E.O. 13768), "Enhancing Public Safety in the Interior of the United States."

Section 9 of the Executive Order states, in pertinent part:

It is the policy of the executive branch to ensure, to the fullest extent of the law, that a State, or a political subdivision of a State, shall comply with 8 U.S.C. 1373. (a) In furtherance of this policy, the Attorney General and the 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.

The referenced section of the federal code, 8 U.S.C. § 1373, states:

(a) In general Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual. (b) Additional authority of government entities-- Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, of any individual: (1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service. (2) Maintaining such information. (3) Exchanging such information with any other Federal, State, or local government entity. (c) Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.

On its face, this is a fairly benign provision: localities, states, and the federal government regularly work together to enforce our nation's laws. The enactment of this provision reflects the fact, as the Supreme Court has ruled:

The Government of the United States has broad, undoubted power over the subject of immigration and the status of aliens. This authority rests, in part, on the National Government's constitutional power to "establish an uniform Rule of Naturalization," Art. I, § 8, cl. 4, and its inherent power as sovereign to control and conduct relations with foreign nations. The federal power to determine immigration policy is well settled. Immigration policy can affect trade, investment, tourism, and diplomatic relations for the entire Nation, as well as the perceptions and expectations of aliens in this country who seek the full protection of its laws. [Citations omitted.]

With respect to ensuring compliance with section 1373, Judge Orrick noted:

In July, 2016 [sic], the U.S. Department of Justice issued guidance linking two federal grant programs, the State Criminal Alien Assistance Program ("SCAAP") and Edward Byrne Memorial Justice Assistance Grant ("JAG") to compliance with Section 1373.

As with SCAAP and JAG, he stated: "The Department has indicated that the Community Oriented Policing Services Grant (COPS) is also conditioned on compliance with Section 1373."

Such conditions were necessary because Congress was concerned that certain jurisdictions had adopted policies that did not comply with 8 U.S.C. § 1373. In a May 31, 2016 Memorandum, the Office of Inspector General for the Department of Justice (DOJ OIG) detailed its review of the policies of 10 selected localities, finding that certain "local laws and policies" in several of those jurisdictions "that by their terms apply to the handling of ICE detainer requests ... may ... be inconsistent with at least the intent of Section 1373."

Santa Clara and San Francisco challenged section 9(a) on four grounds:

[F]irst, it violates the separation of powers doctrine enshrined in the Constitution because it improperly seeks to wield congressional spending powers; second, it is so overbroad and coercive that even if the President had spending powers, the Order would clearly exceed them and violate the Tenth Amendment's prohibition against commandeering local jurisdictions; third, it is so vague and standardless that it violates the Fifth Amendment's Due Process Clause and is void for vagueness; and, finally, because it seeks to deprive local jurisdictions of congressionally allocated funds without any notice or opportunity to be heard, it violates the procedural due process requirements of the Fifth Amendment.

The government did not respond to the plaintiffs' constitutional challenges, but rather asserted that Santa Clara and San Francisco lacked standing to challenge section 9 of E.O. 13768, in part, because that Executive Order "did not change existing law."

In particular, the government explained that the Executive Order: "is merely an exercise of the President's 'bully pulpit' to highlight a changed approach to immigration enforcement." The court, however, dismissed the government's position:

Under this interpretation, Section 9(a) applies only to [SCAAP, JAG, and COPS] that already have conditions requiring compliance with 8 U.S.C. 1373. This interpretation 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. Counsel disavowed any right through the Order for the Government to affect any other part of the billions of dollars in federal funds the Counties receive every year. [Emphasis added.]

While the court then spent another 47 pages describing what it saw as problems with section 9(a) of the Executive Order, it ended up stating that the government could do what it argued it had planned to do to begin with. Specifically, on page 4 of its order the court held:

The Counties' motions for preliminary injunction against Section 9(a) of the Executive Order are GRANTED as further described below. That said, this injunction does nothing more than implement the effect of the Government's flawed interpretation of the Order. It does not affect the ability of the Attorney General or the Secretary to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does it impact the Secretary's ability to develop regulations or other guidance defining what a sanctuary jurisdiction is or designating a jurisdiction as such. It does prohibit the Government from exercising Section 9(a) in a way that violates the Constitution.

Similarly, at the end of his order, Judge Orrick stated:

The defendants (other than the President) are enjoined from enforcing Section 9(a) of the Executive Order against jurisdictions they deem as sanctuary jurisdictions. This injunction does not impact the Government's ability to use lawful means to enforce existing conditions of federal grants or 8 U.S.C. 1373, nor does it restrict the Secretary from developing regulations or preparing guidance on designating a jurisdiction as a "sanctuary jurisdiction." [Emphasis added.]

Although it "implement[ed] the effect of the Government's ... interpretation of the Order," the court nonetheless questioned the reasonableness of the government's position, stating:

Effectively, the Government argues that Section 9(a) is "valid" and does not raise constitutional issues as long as it does nothing at all. But a construction so narrow that it renders a legal action legally meaningless cannot possibly be reasonable and is clearly inconsistent with the Order's broad intent.

The reasonableness of the government's argument is clear, however, given the historical context in which the Executive Order was issued. Specifically, as noted above, the government had argued that the Executive Order "is merely an exercise of the President's 'bully pulpit' to highlight a changed approach to immigration enforcement" (emphasis added).

President Trump's attitude toward immigration enforcement differs in tone and effect from that of the previous administration: My colleague Jessica Vaughan has amply detailed the extent to which immigration enforcement had gone into a steep decline under the last administration. Further, as noted, DOJ OIG recognized in 2016 that there were jurisdictions with policies "inconsistent with at least the intent of" 8 U.S.C. § 1373. That the new president, within a week of assuming an office that he had won based in part on his pledge to reverse the immigration policies of that prior administration, would issue a purely hortatory Executive Order on immigration enforcement is eminently reasonable. This is especially true given the fact that at the time Executive Order was issued, the president's Secretary of Homeland Security had just been confirmed, his Attorney General had not yet been confirmed, and much of the immigration enforcement apparatus was staffed by holdovers from the previous administration.

Given the fact that the court's order granting the plaintiffs' motion to enjoin section 9(a) of the Executive Order by the judge's own admission did "nothing more than implement the effect of the Government's ... interpretation of the Order," as a practical matter, its only effect is to chill the president's use of the bully pulpit of his office, at least as it pertains to immigration enforcement.

A plain reading of section 9(a) of Executive Order 13768 reveals that President Trump simply attempted therein to make it clear that he would use his lawful authority to enforce compliance with a facially valid law (section 1373) and to order the Attorney General to "take appropriate enforcement action against any entity ... which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law." The obvious intent of this Executive Order was to put states and localities on notice that unlawful hindrance of the immigration laws would not be tolerated by his administration, as Jessica Vaughan has made clear was tolerated by the previous administration. For his trouble, the president was forced to expend resources to defend that Executive Order in a federal court that pored over his public statements to support its order. If the administration is hauled into court to support every statement that it makes supporting immigration enforcement, eventually it will stop making them.

The reasons why the plaintiffs sought such an order, moreover, reveal the politically untenable nature of their position as it relates to federal immigration enforcement.

Both Santa Clara and San Francisco have policies that directly affect the ability of U.S. Immigration and Customs Enforcement (ICE) to enforce the immigration laws. Santa Clara does not honor ICE civil detainer requests, and it does not comply with section 1373.

As it pertains to civil detainer requests, San Francisco's Administrative Code "prohibits San Francisco law enforcement from detaining an individual, otherwise eligible for release from custody, solely on the basis of a civil immigration detainer request." The code "also prohibits local law enforcement from providing ICE with advanced notice that an individual will be released from custody, unless the individual meets certain criteria." A separate section of the code "provides that a '[l]aw enforcement official shall not arrest or detain an individual, or provide any individual's personal information to a federal immigration officer, on the basis of an administrative warrant, prior deportation order, or other civil immigration document based solely on alleged violations of the civil provisions of immigration laws.'"

Notwithstanding their attitudes toward ICE, Santa Clara and San Francisco receive almost $3 billion combined from the federal government annually: "In the 2015-2016 fiscal year, Santa Clara received approximately $1.7 billion in federal and federally dependent funds, making up roughly 35% of the County's total revenues," while San Francisco "receives approximately $1.2 billion of" its yearly budget "from the federal government."

Thus, at the same time that those localities slap ICE with one hand, they hold the other one out for federal dollars. This inconsistent attitude toward the federal government underscores why each was so desperate to get the court to enjoin the Executive Order, even in the face of the government's argument that "the Order does not change the law in any way, but merely directs the Attorney General and Secretary [of Homeland Security] to enforce existing law": because they are, notwithstanding their hostile attitude toward federal law enforcement, dependent on federal dollars.

Finally, it is notable that the court used the term "vulnerable" four times in its order, on each occasion describing a class of resident provided for by the two localities with the assistance of federal aid. While such use is appropriate, never did the court equally appropriately use the term to describe those victims, like Kate Steinle, rendered vulnerable by the anti-enforcement policies of those jurisdictions.





