Sanctuary Cities, Travel Bans, Federal Courts, Justice Gorsuch, and the Constitution

TODAY'S NEWS COMES FROM THE JUDICIARY. At a time when the Republic is fighting for its life as Progressive Globalists attack more and more frontally -- ignoring the Constitution by opening US borders to illegals and then protecting them from federal arrest and deportation, and forming a cabal with the media to destroy the legally elected US President -- we are witnessing a federal judiciary either joining forces in the fight to destroy the Republic or supporting the Republic but by means that are better suited to times when everyone agrees that the Constitution is the law of the land. • • • THE 7TH CIRCUIT TALKS ABOUT TYRANNY. The Washington Post reported on Friday that a panel of three judges, each appointed by a Republican President to the federal appeals court in Chicago, ruled unanimously on Thursday against President Trump’s effort to withhold money from “sanctuary cities.” The US Court of Appeals for the 7th Circuit upheld a nationwide injunction that blocks the Justice Department from using “the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement.” What the 7th Circuit was talking about is the Department of Justice funding grant "opportunities to support law enforcement and public safety activities in state, local, and tribal jurisdictions; to assist victims of crime; to provide training and technical assistance; to conduct research; and to implement programs that improve the criminal, civil, and juvenile justice systems." • The decision is a shamefully direct attack on the Constitution and the rule of law. • Of course, the cabalist Washington Post is thrilled with the decision, saying : "Trump’s latest courtroom defeat offers yet another civics lesson about checks and balances for the first President in American history who lacks any prior governing or military experience. Unlike congressional Republicans who have by and large kowtowed and capitulated to Trumpism, despite private uneasiness and grumbling in many cases, Republican-appointed judges are free not to care about the wrath of the President or blowback from his loyalists. This gives them the breathing room to worry more about the rule of law than partisanship. That was the point of an independent judiciary and giving lifetime appointments. It’s how the Constitution is supposed to work." • That was NOT the point -- the 7th Circuit ignored the Constitution. • Judge Ilana Rovner, 79, who was appointed to a district judgeship by Ronald Reagan and elevated to the circuit by George H.W. Bush, gave a remarkable 35-page opinion about the separation of powers. She even threw in the word “tyranny” -- not usually used by judges : “Our role in this case is not to assess the optimal immigration policies for our country. Rather, the issue before us strikes at one of the bedrock principles of our nation, the protection of which transcends political party affiliation and rests at the heart of our system of government....The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government. If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken....Congress repeatedly refused to approve of measures that would tie funding to state and local immigration policies. Nor...did Congress authorize the Attorney General to impose such conditions. It falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power. We are a country that jealously guards the separation of powers, and we must be ever-vigilant in that endeavor.” • The federal judge was reacting to the efforts of Attorney General Jeff Sessions to require that cities give federal immigration agents access to undocumented immigrants who are in their jails in order to get certain public safety grants. This effort has already been blocked in separate lawsuits by federal judges in California and Pennsylvania. The judge who blocked the administration from holding back money from Philadelphia, Michael Baylson, was appointed by George W. Bush and wrote a 128-page ruling against the administration in November. The 7th Circuit opinion complains that the term sanctuary cities “is commonly misunderstood” and “a red herring.” Contrary to popular understanding, the judges explain, “the federal government can and does freely operate in ‘sanctuary’ localities.” Doesn't that miss the point entirely? AG Sessions is trying to prevent illegal alien criminals from being sheltered from federal arrest and deportation by localities that decide they are 'sanctuary' cities or states -- a concept, a lot like 'corruption,' that does not exist in US law. The question is more complicated than it seems. • The DOJ quickly criticized the ruling, saying the administration believes that it has the power to set rules for grant money appropriated by Congress and that courts keep issuing broad injunctions that thwart President Trump's agenda. DOJ spokesman Devin O'Malley said in a statement : “Many in the legal community have expressed concern that the use of nationwide injunctions is inconsistent with the separation of powers, and that their increased use creates a dangerous precedent. [Historically, injunctions apply only to the District or Circuit whose federal court issues them.] We will continue to fight to carry out the department's commitment to the rule of law, protecting public safety, and keeping criminal aliens off the streets to further perpetrate crimes.” • • • WHO ARE THE 7TH CIRCUIT JUDGES? Rovner, 79, and her parents fled Latvia, and the Nazis, when she was an infant. She lost family members in the Holocaust. She often says that she decided to become a lawyer to stop anything like that genocide from happening again. Displayed in her chambers are the green card she was issued when she arrived in America in 1939 and her mother’s passport. “These are the things that saved my life,” she told the Chicago Tribune for a 2011 profile. Her scathing opinion was joined by Judge William Bauer, 91, who was appointed by Gerald Ford. Judge Daniel Manion, a Reagan appointee, wrote a concurrence saying he would have narrowed the injunction to protect only Chicago, rather than keeping it national. The injunction was ordered last September by District Judge Harry Leinenweber, who was also appointed by Reagan. • • • WHY ARE ROVNER, 79, and BAUER, 91, STILL ON THE 7TH CIRCUIT BENCH? Wisconsin Justice Initiative (WJI) wrote in September 2017 : "Federal judges may take senior status or retire under the Rule of 80 -- at age 65 if they have served at least 15 years on the bench, age 66 with 14 years, and so on. When a judge chooses senior status or full retirement (or, in unfortunate circumstances, dies), the President gets to name a successor. With the surprise retirement of Circuit Judge Richard Posner a couple weeks ago [in September 2017], four spots on the 7th Circuit are available for Trump to fill. Circuit Judge Ann Claire Williams took senior status in June 2017. Circuit Judge John Daniel Tinder took senior status in early 2015. And the seat of Circuit Judge Terence T. Evans has famously been vacant since January 2010." • On September 11, 2017, Trump proposed his tenth slate of nominees for federal courts around the country. In total, Trump has nominated 53 individuals for judgeships, and 34 of those nominations came since mid-July. The Senate has confirmed six of the nominees. These Trump appointees will have a lot to say about moving his agenda forward. That's why there are ProgDem delays over every Trump judicial nominee. • • • THE TRAVEL BAN. District Judge James Robart in Washington state, nominated by George W. Bush in 2004, halted the President’s first travel ban that blocked citizens of seven majority-Moslem countries from entering the United States. Trump tweeted : “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” But it wasn’t overturned. A three-judge panel on the very Progressive 9th Circuit, which included another G.W. Bush appointee, unanimously agreed. The administration withdrew the ban and issued another watered-down version. • The travel ban issue is now at the Supreme Court. Reuters reported on Sunday that : "The first big showdown at the US Supreme Court over President Donald Trump’s immigration policies is set for Wednesday when the justices hear a challenge to the lawfulness of his travel ban targeting people from several Moslem-majority countries. The case represents a test of the limits of presidential power. Trump’s policy, announced in September, blocks entry into the United States of most people from Iran, Libya, Somalia, Syria and Yemen. Chad previously was on the list but Trump lifted those restrictions on April 10. The high court has never decided the legal merits of the travel ban or any other major Trump immigration policy, including his move to rescind protections for young immigrants sometimes called Dreamers brought into the United States illegally as children. It has previously acted on Trump requests to undo lower court orders blocking those two policies, siding with him on the travel ban and opposing him on the Dreamers." • President Trump’s immigration policies were a fundamental part of his presidential campaign, and many saw his positions on illegal immigrants and immigration as a major reason to vote for him. The Trump administration has actions taken against states and cities that protect illegal immigrants, and intensified deportation efforts and limits on legal immigration where "extreme" vetting is not possible. • The conservative-majority Supreme Court will hear arguments on Wednesday on the third version of the travel ban policy Trump first sought to implement a week after taking office in January 2017, with a ruling expected by the end of June. • Reuters outlines the arguments : "The lead challenger is the state of Hawaii, which argues the ban violates federal immigration law and the US Constitution’s prohibition on the government favoring one religion over another. 'Right now, the travel ban is keeping families apart. It is degrading our values by subjecting a specific set of people to be denigrated and marginalized,' Hawaii Lieutenant Governor Doug Chin said in an interview. The Supreme Court on December 4 signaled it may lean toward backing Trump when it granted the administration’s request to let the ban go into full effect while legal challenges played out." • The challengers in the travel ban case argue that the policy was motivated by Trump’s enmity toward Moslems, pressing that point in lower courts with some success by citing statements he made as a candidate and as President. As a candidate, Trump promised “a total and complete shutdown of Moslems entering the United States.” The Justice Department argues Trump’s statements as a candidate carry no weight because he was not yet President. The policy’s challengers also point to views he has expressed as President, including his retweets in November of anti-Moslem videos posted by a far-right British political figure [the videos were real, not Fake, news, but the White House said the President didn't know they had been put online by an extreme group]. In a court filing last week, US Solicitor General Noel Francisco, representing Trump in the Supreme Court, said those retweets “do not address the meaning” of the travel ban policy. In his filing, Francisco cited Trump statements complimentary toward Moslems and Islam, including in a May 2017 speech in Saudi Arabia. The administration has also defended the ban by pointing to a waiver provision allowing people from targeted countries to seek entry if they meet certain criteria. The State Department said that as of last month 375 waivers to the travel ban had been granted since the policy went into effect on December 8. • But, one problem for President Trump is that some former Republican Senators and officials who served in Republican President George W. Bush’s administration have signed onto legal briefs asking the Supreme Court to invalidate the ban. “I think the travel ban is a terribly misguided policy that appeared to be motivated more by a political intention of the President than by any real national security need,” said John Bellinger, the State Department’s top legal advisor during the Bush administration. • Are these Bush-era opponents of the travel ban part of the #NeverTrump Republican Swamp? It would seem so. • It will be a surprise if the Supreme Court does not validate in a 5-4 or 6-3 decision the Trump travel ban on unvetted immigrants and visitors from countries that have such weak govenrments that they cannot provide sufficient background information on its citizens so as to allow the US to decide that the visa applicants are not terrorists. • • • SANCTUARY CITIES AND STATES. The Hill wrote in early January that : "Sixteen attorneys general are arguing that the Justice Department does not have the authority to threaten funding for 'sanctuary cities' by putting immigration-related conditions on federal law enforcement grants. The argument was made in an amicus brief aimed at protecting sanctuary cities and their police departments from the cuts. 'The Trump administration does not have the authority to unilaterally transform state and local police into federal immigration agents -- and they cannot punish a locality simply because it won’t comply,' New York Attorney General Eric Schneiderman (D) said in a statement. 'Attorneys General will continue to fight back against the Trump administration’s draconian immigration policies that threaten our communities and our safety,' he continued." • Schneiderman is leading the effort, which includes California, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, New Jersey, New Mexico, Oregon, Vermont, Washington and the District of Columbia. • The Trump administration has cracked down on sanctuary cities that refuse to comply with the DOJ guidelines on the issue of illegal immigration. The Justice Department is fighting back against sanctuary localities. It has demanded documents from two dozen jurisdictions to show if local law enforcement is sharing information with federal immigration authorities -- and has threatened to issue subpoenas if they fail to cooperate. AG Sessions said : “Protecting criminal aliens from federal immigration authorities defies common sense and undermines the rule of law. We have seen too many examples of the threat to public safety represented by jurisdictions that actively thwart the federal government’s immigration enforcement -- enough is enough.” Sessions sent letters to officials in Albuquerque, New Mexico; San Bernardino and Stockton, California; and Baltimore last year, warning that if the cities did not cooperate with federal efforts to crack down on illegal immigration, they would withhold funding. Sessions said in a statement : “By protecting criminals from immigration enforcement, cities and states with so-called 'sanctuary' policies make all of us less safe.” • The Daily Signal online news of the Heritage Foundation wrote on February 8 that : "California is one of several sanctuary jurisdictions -- but the first [sanctuary] state -- to file a lawsuit relating to Attorney General Jeff Sessions’ order to tie federal grants to immigration compliance. The state of California sued the Department of Justice Wednesday to force the release of records relating to Attorney General Jeff Sessions’ order to withhold funding from so-called sanctuary states. California hopes the records will prove the DOJ didn’t consider the damage the requirements may cause, Courthouse News reported Wednesday. 'The State is concerned that [the Office of Justice Programs] did not consider the harm that compliance with these conditions may cause to some state and local jurisdictions that have determined such policies would undermine trust and cooperation between law enforcement and their residents, and therefore, public safety in their jurisdictions,' the lawsuit reads." • There is significant money at stake. The DOJ has $385 million in grants, much of which remains unawarded until the appeals process is complete. • California was expecting $31 million in Edward Byrne Memorial Justice Assistance Grants that would have helped fund state and local law enforcement. Sessions’ new rules require jurisdictions to give Immigration and Customs Enforcement full access to jails and 48 hours notice before releasing illegal immigrants. It also requires states to share immigration status information with federal authorities. Chicago filed a lawsuit this fall directly challenging those requirements, claiming that Sessions had overstepped his authority. US District Court Judge Harry Leinenweber, agreed in September, striking two of them down in an injunction he applied nationally, triggering an appeal from the DOJ. That led to the US Court of Appeals for the 7th Circuit upholding the nationwide injunction that blocks the Justice Department from using “the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement.” (See above.) • Chicago Mayor Rahm Emanuel held a press conference to attack Trump as being "petty" for refusing to hand over the grant money while the case continues to play out in the courts : “The Trump Justice Department could actually say ‘OK, we’re going to go forward with these grants, and let’s fight the case out in court,’ said the Democrat, who was Barack Obama’s first White House chief of staff. 'But they refuse to give municipalities like Chicago and other cities around the country the resources to fight crime and gun violence, because they think fighting us on the principle of being a sanctuary, welcoming city, is more important than helping the police departments get the technology they need to do a better job in public safety.' ” • • • THE SANCTUARY ISSUE IS REALLY A STATES RIGHTS ISSUE. TheHill noted on April 7 that the 'sanctuary' arguments revolve around a Trump executive order issued last January "pulling virtually all federal grants from cities and states that violate 8 USC Section 1373, a federal law barring cities or states from forbidding their employees to divulge information to federal immigration enforcers about the citizenship status of people within their jurisdiction. In July, Sessions announced a policy under which the Justice Department would deny Edward Byrne Memorial Justice Assistance Grants to states and localities unless they meet three conditions : complying with Section 1373, giving the Department of Homeland Security access to state detention facilities and giving DHS 48 hours notice of the release of any person whom DHS had asked the state to detain." The constitutional issue is simple, says TheHill : "Only Congress has the power to spend money or impose conditions on federal grants to states. And Congress never passed any laws mandating that recipients of grants must meet the conditions Trump and Sessions seek to impose. That’s why the executive order and the Sessions policy have suffered a series of embarrassing defeats in federal court at the hands of both Republican and Democratic judges. If the Trump administration wins these cases on appeal, it will set a precedent going far beyond the specific issue of sanctuary cities. If the President can unilaterally add new conditions to one federal grant program, he can do the same with others. Since there is a vast array of federal grants, that would give the executive branch a massive club to coerce states and localities on a wide range of issues. Conservatives may cheer when the current administration uses this tool against sanctuary cities, but will likely regret their enthusiasm if a liberal Democratic president uses the same tactic to force states to pursue left-wing policies." • Ilya Somin, a law professor at George Mason University and an adjunct scholar at the Cato Institute, and the author of "Democracy and Political Ignorance: Why Smaller Government is Smarter" told TheHill : "In Arizona v. United States (2012), the Supreme Court ruled that federal immigration laws often override state law even where there is no direct conflict. But the Arizona decision also includes relevant language limiting the scope of preemption. A broad interpretation of preemption could limit state autonomy on many issues going beyond immigration policy. The sanctuary cases represent a political role reversal: Liberal sanctuary jurisdictions are relying on federalism arguments traditionally associated with conservatives. Right-wing defenders of the administration are arguing for sweeping notions of federal power, including by relying on a broad interpretation of Arizona v. United States, a ruling conservatives condemned at the time it came down. Yet in a deeply divided nation, both left and right have much to gain from imposing tighter limits on federal power and allowing diversity to flourish at the state and local levels." • • • THE SHIFTING CONSERVATIVE VS LIBERAL DIALOGUE. Professor Somin's explanation goes a long way to understanding why 'Republican' federal judge would rule against Trump on sanctuary cities receiving DOJ grants. They are appointees of the Reagan and post-Reagan periods when states rights were paramount in the GOP. Upholding states or cities' right to reject federal constraints on congressionally approved grants reflects the primacy of states' rights over the federal government. That President Trump and AG Sessions are on the federal side of the argument that rejects states' rights in favor of the enforcement of federal law on immigration and illegal aliens is a reflection of the immense change the US has undergone since 2008 in the area of immigration. • The Progressive Left is crowing about its 7th Circuit victory, but it apparently fails to see that it is putting itself on the side of conservative states rights and Reaganite small federal government, whereas its overarching approach to government is to eliminate all states rights. This is just one more example of the dizzying political divide that the Republic finds itself in. • BUT, what must have the Trump administration very worried is this -- the Supreme Court on April 17 invalidated a provision in a US law requiring deportation of immigrants convicted of certain crimes of violence. Trump’s administration and the prior Obama administration had defended the provision. It is a legal setback for President Trump when it comes to his immigration agenda. The Court decision was not based on states vs federal rights, but on "vagueness." Justice Gorsuch joined the Supreme Court’s four liberal members to strike down part of the federal law used to deport noncitizens who commit felonies on the grounds that it was unconstitutionally vague. The 5-to-4 decision could limit the government’s ability to deport people with criminal records, a Trump priority. Gorsuch wrote in his concurring opinion : "Vague laws invite arbitrary power. Today’s vague laws...can invite the exercise of arbitrary power all the same -- by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up." • Supreme Court reporter Robert Barnes wrote : "For the conservative Gorsuch to align with the liberals might seem a surprise, but his vote was in keeping with questions he asked during oral argument in October. And he was in part following in the footsteps of the justice he replaced, the late Antonin Scalia. In 2015, Scalia wrote the Court’s decision in Johnson v. United States, which struck down a similarly vague description of violent felony in the Armed Career Criminal Act.” • Liberty Headlines wrote on April 17 : "With Justice Neil M. Gorsuch casting the deciding vote, the Supreme Court on Tuesday spared a California immigrant from deportation because his conviction for home burglary was not clearly the kind of 'crime of violence' that would allow such a step. The decision narrows one provision of a broad federal immigration law that calls for mandatory deportation for non-citizens -- including longtime lawful residents -- who are convicted of an 'aggravated felony.' While the law says a 'crime of violence' is an aggravated felony, the justices have struggled in recent years to decide which state crimes qualify as an aggravated felony under federal law. A federal immigration judge had decided James Dimaya, a native of the Philippines and legal immigrant who had lived in Northern California since 1992, was slated for deportation because he had pleaded guilty twice to residential burglary under California law. Though a lower court determined that Dimaya had gone into an abandoned home and a garage, the immigration judge found that a residential burglary carries a 'substantial risk' of provoking violence or injury. But by a 5-4 vote, the justices reversed that ruling on Tuesday and held that the burglary law is too vague and uncertain to be deemed a crime of violence in all instances." • Justice Elena Kagan, speaking for the Court, relied heavily on a similar ruling handed down by the late Justice Antonin Scalia in 2015. He said the Court would not add an extra 15-year prison term for “armed career criminals” unless Congress spelled out what it meant by a violent felony. The law had been interpreted in that case to apply to possession of a hand gun. Justice Kagan wrote : "Deportation is a particularly severe penalty, and it is unconstitutional to mandate deportation based on a 'hopelessly vague' provision." • Chief Justice John G. Roberts dissented and said that law was reasonably clear. Justice Clarence Thomas, joined by Justices Anthony Kennedy and Samuel A. Alito Jr., faulted the majority for declaring one provision unconstitutionally vague. • • • DEAR READERS, media reports on this decision express surprise that Gorsuch -- a conservative justice, would vote with the four liberal justices to invalidate a law that the Trump administration’s attorney general attempted to use to enforce federal immigration law. Many conservatives, including the President, are angered by Gorsuch’s vote, seeing it as contrary to what they expected from a Trump appointee. • But, conservatives know that the Founders wrote the Constitution to limit government, not to empower it. Here is what Justice Gorsuch said in his concurring opinion : "Vague laws invite arbitrary power. Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of 'pretended' crimes like this as one of their reasons for revolution. See Declaration of Independence ¶21. Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same -- by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up. The law before us today is such a law. Before holding a lawful permanent resident alien like James Dimaya subject to removal for having committed a crime, the Immigration and Nationality Act requires a judge to determine that the ordinary case of the alien’s crime of conviction involves a substantial risk that physical force may be used. But what does that mean? Just take the crime at issue in this case, California burglary, which applies to everyone from armed home intruders to door-to-door salesmen peddling shady products. How, on that vast spectrum, is anyone supposed to locate the ordinary case and say whether it includes a substantial risk of physical force? The truth is, no one knows. The law’s silence leaves judges to their intuitions and the people to their fate. In my judgment, the Constitution demands more." Gorsuch quoted his predecessor, the late Associate Justice Antonin Scalia, who in writing for the Court in Johnson v. United States, held the residual clause of the Armed Career Criminal Act void for vagueness because it invited “more unpredictability and arbitrariness” than the Constitution allows. • In an article about the decision for Breitbart News, Joel Pollak describes Gorsuch’s judicial philosophy as “originalist,” noting : "Gorsuch’s opinion is not a case of yet another Republican appointee to the Supreme Court going liberal. Rather, it is analogous to Justice Antonin Scalia’s dissent in Hamdi v. Rumsfeld (2004), in which the original originalist voted against President George W. Bush because he believed that the Constitution forbade the government from holding an American citizen -- even one accused of fighting alongside our terrorist enemies -- without charge. These cases both remind us that originalists will sometimes disagree in their conclusions, even if they agree in their methods. Far from violating the trust under which he was appointed, Gorsuch is fulfilling his commitment to originalism.” • In February 2017, the Washington Post published an article observing that Republicans were delighted with Gorsuch’s selection as Trump’s Supreme Court nominee because “he’s a demonstrated originalist.” To explain what is meant by this term, the writer quoted from another article by the Post's Supreme Court reporter, Robert Barnes, who offered this definition : "Like Scalia, Gorsuch is a proponent of originalism -- meaning that judges should attempt to interpret the words of the Constitution as they were understood at the time they were written -- and a textualist who considers only the words of the law being reviewed, not legislators’ intent or the consequences of the decision." • Conservatives who want to enforce US immigration law should not read too much into his vote with the liberal wing of the Supreme Court. It does not necessarily mean that Gorsuch is weak on immigration law, but, rather, strong on the Constitution. If a law, as Scalia, and now Gorsuch insists, is vague, then the remedy is to rewrite the law to make it more specific. • So, to get to the "worry" in the Trump administration over the sanctuary city issue, the administration is perhaps lucky that the issue is not yet on the Supreme Court calendar. The"worry" is that Justice Gorsuch will again find the law "vague." 8 USC Section 1373, a federal law barring cities or states from forbidding their employees to divulge information to federal immigration enforcers about the citizenship status of people within their jurisdiction raises this question : is it proper for Congress to prevent states from preventing their local officials from voluntarily providing immigration information to federal officials? Can Congress, through section 1373, preempt a state law that prohibits local municipalities from voluntarily sharing information about immigrants with the federal government. The answer to this question is complex, raising the entire range of states rights vs federal supremacy issues. And, add to this the fact that "sanctuary" as a legal concept is not defined anywhere in US law. Would Justice Gorsuch and his fellow justices agree to lob off a chunk of states rights in favor of federal law enforcement supremacy in a situation in which, as 7th Circuit Judge Rovner stated : "the federal government can and does freely operate in ‘sanctuary’ localities.” She whould have added -- they just don't have active local cooperation. • If the President and Congress can't find the right balance, the Supreme Court will try to point them in the right direction. • Constitutional law isn't always easy, neither for Justice Gorsuch nor for us Deplorables.