With great fanfare President Trump issued Executive Order 13768, entitled “Enhancing Public Safety in the Interior of the United States.” The order curtailed federal funding and eligibility for grants to “sanctuary cities.” I can’t define “sanctuary cities” for you because the EO does not do so, one of the lesser criticisms leading to the court’s decision.
The primary attack on EO 13768 was that it was beyond the President’s authority to control spending that Congress controls. Trump Administration lawyers charged with defending this challenge, by the cities of Santa Clara and San Francisco, were so helpless against it that they argued the EO didn’t really do what it said. They argued that Trump’s tough EO “is merely an exercise of the President’s ‘bully pulpit’ to highlight a changed approach to immigration enforcement.”
In his decision, the judge noted that “this interpretation renders the Order toothless.” The court added:
The Government attempts to read out all of [the EO’s] unconstitutional directives to render it an ominous, misleading, and ultimately toothless threat.
The Trump administration’s interpretation that the EO did not make new law was plainly contradicted by the text of the EO. The judge then itemized a long list of statements from Trump, and others in his administration, claiming this was a new, get tough approach that would be enforced as written. Taking judicial notice of those many statements, the judge noted they made clear the administration’s intent to enforce the EO as written, not as reformed by government attorneys before the court.
But the government’s new position made things easy for the judge. As the judge put it, the government interpretation of the Executive Order at the hearing “put the parties in general agreement regarding the Order’s constitutional limitations.” The judge’s decision simply implemented that mutual agreement between the parties.
Trump’s “bully pulpit was reduced by his own attorneys to a meaningless sissy pulpit, and the court didn’t buy it. This continues a tradition of Trump attorneys trying to argue that his EO’s don’t do what they say they do. Trump similarly claimed his first travel ban didn’t do what it said it did even though it was enforced against people in just that way. It is also another case where statements by Trump, and his spokespersons, were used against him in court. The same happened in the decision regarding Trump’s second travel ban.
From a law perspective this administration is guided by buffoons, being led by child. They simply don’t know what they are doing.