It does get pretty hard to believe in an impartial judiciary and the actual meaning of the “rule of law,” when many judges seem to have so much involvement in partisan politics and money.
Judge William Orrick III of the U.S. District for Northern California today issued an injunction against President Trump’s order to withhold certain federal funds from sanctuary cities. He was responding to separate suits brought by the city of San Francisco and nearby Santa Clara County.
According to AP:
The injunction will stay in place while the lawsuits work their way through court.
The judge said that President Donald Trump cannot set new conditions for the federal grants at stake. And even if he could, the conditions would have to be clearly related to the funds at issue and not coercive, Orrick said.
Now, to start with, it sounds like Orrick is just making that up. “Not coercive”? What does that even mean? The federal government is coercive with money all the time. There are many superb examples, starting with funding for education programs, which put a number of hapless school districts under effective consent decrees — a few explicit, more in all but name — over the expansive Obama-era reading of Title IX. Another, closer to home, is policing and “civil rights” programs — which have yielded a similar result with highly coercive consent decrees for dozens of cities and counties.
But there’s another salient point, which is that Orrick has based his decision on a reading of the Trump order that is not what the Trump administration thinks the order says, or what the administration’s lawyers say it intends.
During a recent court hearing, the Trump administration and the two California governments disagreed over the order’s scope.
San Francisco and Santa Clara County argued that the order threatened billions of dollars in federal funding for each of them, making it difficult to plan their budgets.
But Readler, acting assistant attorney general, said the threatened cutoff applies to three Justice Department and Homeland Security grants and would affect less than $1 million for Santa Clara County and possibly no money for San Francisco.
In his ruling, Orrick sided with San Francisco and Santa Clara, saying the order “by its plain language, attempts to reach all federal grants, not merely the three mentioned at the hearing.”
“And if there was doubt about the scope of the order, the president and attorney general have erased it with their public comments,” the judge said.
In other words, the judge is adducing what he thinks he heard in “public comments.” That might be applicable if the plaintiffs were alleging an injury already done to them by the order. But they’re seeking preemptive relief, without any evidence of injury having been done.
The basis for this court ruling looks questionable. We’ll see what the legal experts say.
In the meantime, it’s just kind of ridiculous that it turns out William Orrick was not only appointed by Obama (confirmed to his current seat in 2013), but was a major fundraiser for Obama.
Wikipedia cites Public Citizen:
According to the Public Citizen, a non-profit, consumer rights advocacy group, William H. Orrick III, who was employeed by Coblentz, Patch, Duffy & Bass, raised at least $200,000 for Barack Obama and donated $30,800 to committees supporting him.
Orrick’s other connections with the Obama administration relate directly to immigration issues. In 2009, before he was appointed to the bench, he joined the Obama Justice Department (emphasis added):
During his time with the Obama administration, Judge Orrick supervised the DOJ’s office of immigration litigation, and says some of his proudest work came in helping to roll back notoriously strict state-level immigration laws that had cropped up in Arizona, Alabama, South Carolina and elsewhere.
He saw being a judge as a way to continue this work against the rule of law in the administration of immigration in the United States:
In 2012, on the recommendation of Sen. Barbara Boxer, D-Calif., Judge Orrick was nominated by Obama to the Northern District, a post he says he began looking into largely because he felt it would allow him to continue the public service work he had begun with the DOJ.
“I was so enjoying my work every day trying to the right thing for the government,” he says. “I thought: I would like to figure out how to continue doing this the rest of my life, and I have friends who are judges in this district and seem to be enjoying themselves quite a bit.”
So it’s a good bet that if the U.S. Constitution said in black and white that “Donald J. Trump shall have the explicit power to deny federal funds for policing programs to cities that refuse to comply with federal law in their police policies,” Orrick would still have ruled against the Trump administration.
Law has to work for the people. They have to be able to trust it. Selective refusal to enforce the law of the land — the entire basis of operation for illegal-migration advocacy — cannot be held to be “law working for the people.”
And Trump was elected precisely because of that. The people don’t trust what the “enforcement of law” has turned into in America: a political game, in which the people themselves are held arbitrarily at risk. And they are not wrong to be worried and angry about that. They see far more clearly than legal specialists do that the Orrick ruling is part of a wrong pattern, one that just keeps finding ways to thwart the rule of law.
It doesn’t even really matter how Orrick’s ruling is next ruled on, or what anyone says about the framing of Trump’s order. What matters is that things should never have come down to this in the first place. The root problem is that they have. New rounds of rulings and orders can’t fix that. You either enforce the law on the underlying issue — in this case, immigration — or you don’t. Congratulating yourself on any other legal or judicial successes is merely a form of political perversion.
No matter what the judicial outcome is for the Trump sanctuary cities order, the tragedy — and it is a tragedy — will be that it does not represent the operation of the rule of law. We’re beyond that now. And it’s a very dangerous place to be.