Trump Vs. The 9th Circuit: Court Uses Administration's Words Against Itself

Judges from the 9th Circuit have ruled against the Trump administration in a series of big cases — first the travel ban and now sanctuary cities. NPR legal affairs correspondent Nina Totenberg joins us to talk about the court and it's legal reasoning.

ARI SHAPIRO, HOST:

This morning, President Trump tweeted about that ruling on sanctuary cities. He attacked the 9th Circuit Court of Appeals for what he called ridiculous rulings. This is part of a pattern of attacking judges whose rulings the president doesn't like. NPR's Nina Totenberg joins us now to discuss this. Hi, Nina.

NINA TOTENBERG, BYLINE: Hi, Ari.

SHAPIRO: The president is attacking the 9th Circuit Appeals Court, but this wasn't even in the court of appeals, right?

TOTENBERG: That's absolutely correct. This was a single federal judge in San Francisco, Judge William Orrick III, who's issued the order blocking any cutoff of federal funds to sanctuary cities. There is no formal appeal yet. Papers haven't been filed with the 9th Circuit. They - 9th Circuit hasn't heard the case, so there's quite a long road yet for this case to get to the Supreme Court.

SHAPIRO: Because Trump also tweeted, I will see you in the Supreme Court.

TOTENBERG: Yeah, much less the 9th Circuit.

SHAPIRO: He also tweeted that the 9th Circuit gets overturned close to 80 percent of the time. Do a fact check for us. Is that number accurate?

TOTENBERG: Last term, it was 80 percent of the time, but that's not actually that far off the average. And the 9th Circuit isn't the most overturned circuit in the country. That honor went to the 6th Circuit Court of Appeals, which is in the Midwest. And the 9th Circuit in the last few years is ranked third, fourth and fifth out of the 11 circuits. So it's sort of a meaningless statistic in that sense.

SHAPIRO: President Trump referred to this case as judge shopping - sort of looking for the most favorable place you can bring a case. Is that true?

TOTENBERG: Well, it's natural that many immigration cases come out of California because it has millions and millions of immigrants, and it has the largest number of undocumented immigrants in the country according to the Census Bureau.

SHAPIRO: And Nina, let's look at the substance of this particular ruling. It sounds like the judge is referring to a lot of rulings in cases that were brought by conservatives challenging actions by the Obama administration.

TOTENBERG: In this, as in the judge shopping question, this all comes under the heading of, in law as in life, what goes around comes around. Conservatives during the Obama administration advanced and perfected a strategy of challenging Obama's executive actions in court, often succeeding.

They brought cases in Texas, for example, a conservative state with a lot of conservative judges who are Republican appointees. They succeeded in blocking some of Obama's executive actions on immigration. And here President Trump's adversaries are trying to use the same grounds to attack his executive actions, that the president has exceeded his authority - the authority that was granted to him by Congress.

And it's not just immigration cases that are the basis for the judge's decision in this case, it's a whole raft of cases that are sort of stars in the conservative firmament - the case in which the Supreme Court struck down a part of the Brady gun control law and part of the Obamacare decision in which it said you can't condition Medicaid funding for a state based on their refusal to cooperate with the federal government. At the bottom of this is the notion that you can't commandeer the state's apparatus to carry out a federal mandate.

SHAPIRO: It seems in this opinion as though the judge is using the president's own words against him here.

TOTENBERG: Well, a pattern is emerging here, and it's one I can't recall seeing before, at least not to this extent. The president's own words and those of others in his administration are being used against them in court. So here, for instance, the Trump administration lawyers argue that that executive order on sanctuary cities would only affect a few grants, that it was no big deal. And the judge then said, well, then what's the point?

And then there's the fact that the president and his attorney general, Jeff Sessions, have been saying this is an outrage that all this money is going to states - that there are billions of dollars, and they're going to cut it off and strangle them over it.

SHAPIRO: NPR's Nina Totenberg, thanks a lot.

TOTENBERG: Thank you.

(SOUNDBITE OF THE FUNK ARK SONG, "HORCHATA")

Copyright © 2017 NPR. All rights reserved. Visit our website terms of use and permissions pages at www.npr.org for further information.

NPR transcripts are created on a rush deadline by Verb8tm, Inc., an NPR contractor, and produced using a proprietary transcription process developed with NPR. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of NPR’s programming is the audio record.