Ruling on Trump's sanctuary city executive order premature, dissenting judge says

By Karen Kidd | Aug 9, 2018

An August ruling declaring President Donald Trump's executive order withholding money from sanctuary cities unconstitutional was too hasty, a dissenting federal judge wrote in an opinion.

The recent ruling on the Trump administration's sanctuary city order provoked a strongly-worded dissent.  

SAN FRANCISCO  — An August ruling declaring President Donald Trump's executive order withholding money from sanctuary cities unconstitutional was too hasty, a dissenting federal judge wrote in an opinion. 

U.S. Ninth Circuit Court of Appeals Judge Ferdinand F. Fernandez broke with his fellow judges -- Ronald M. Gould and Sidney R. Thomas -- who affirmed a lower court's decision to block the order on Aug. 1. 

"I do not think that this case is ripe for decision," Fernandez wrote in his 47-page opinion. "The Trump administration's executive order to withhold federal funds from sanctuary cities and counties had not yet been implemented, which meant those cities and counties had not yet sustained an 'injury' worthy of the court's attention."

The Trump administration asked the appeals court to reverse an April  decision by the U.S. District Court for the Northern District of  California to block the executive order withholding federal funding to  sanctuary counties and cities. The administration argued that U.S.  District Court Judge William Horsley Orrick acted prematurely to block  the order when no action had yet been taken.


San Francisco City Attorney Dennis Herrera  

Fernandez seemed to agree.

"A threatened injury must be certainly impending to constitute injury in fact," Fenandez wrote. "Moreover, while there are times when a law is aimed directly at plaintiffs, and there is reason to believe that it will be enforced against them, that is not the case here. The executive order itself is not directed toward the counties at all; it is directed to federal government officials only. If they obey its dictates, they will not overstep legal or constitutional boundaries. Nor have they threatened that they will knowingly do so."

San Francisco City Attorney Dennis Herrera hailed the majority opinion as "a victory for the rule of law" and support for the Constitution. 

"This is why we have courts," Herrera said in a statement issued the same day as the appeals court's opinion.

"When a president overreaches and tries to assert authority he doesn't have under the Constitution, there needs to be a check on that power grab. The courts did that today, which is exactly what the framers of the Constitution had in mind."

In addressing the merits of the case, Fernandez also wrote that the lower court failed to give the Trump administration's executive order a fair hearing and abused its discretion in issuing an injunction against the order. 

"There can be no doubt that the President had the authority and the duty to see that duly adopted laws were faithfully executed, and to direct his subordinates to that end," Fernandez wrote, adding that the lower court had "shunt aside short but clear and extraordinarily important wording" included in the order.

"That is not the proper way to deal with plain language -- it is, instead, an attempt to rewrite the executive order itself and then to enjoin use of the newly written version," Fernandez wrote. "And if there is ambiguity in certain parts of the executive order, it is not at all ambiguous in its use of the restrictive language. Nor is it proper to enjoin enforcement of the executive order on the unsupported speculation that it will be implemented in an unconstitutional manner."

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