You know a court opinion is deeply dishonest when its very first sentence invokes a blatant fallacy of logic. Here is the first sentence of today's majority opinion from a three-judge panel of the U.S. Court of Appeal for the Ninth Circuit in the "sanctuary cities" case, San Francisco v. Trump:
This appeal presents the question of whether, in the absence of congressional authorization, the Executive Branch may withhold all federal grants from so-called "sanctuary" cities and counties.
That is false. The defendants in this case do not claim any such power, and therefore that question is not presented. Their position, fully expressed in the briefing (and supported by CJLF in its amicus brief) is that the Executive Order's limitation to means "consistent with law" limits the withholding of grants to those where Congress has authorized withholding. These include, consistent with the interpretation by the Obama Administration DoJ, the Byrne grants for local law enforcement.
It is one thing to interpret the Executive Order differently, as the majority does. It is quite another to flatly misstate what the controversy is in the opening sentence of the opinion. The question presented is whether the Executive Order requires withholding all grants, not whether it may constitutionally do so. This is the fallacy of assuming the conclusion. The majority begins by assuming one side's interpretation of the Executive Order, dodging the real question for most of the opinion only to brush it off in a few paragraphs deep within. The majority also commits the straw man fallacy, attacking an argument the defendants did not make, thus being doubly fallacious.
Judge Fernandez in dissent gets it right. The order is addressed not to the cities but to two cabinet officers. Those officers have interpreted the order to limit the defunding to grants statutorily conditioned on compliance. There is, therefore, no "ripe" controversy as to other grants.
The majority does get one thing partially right. The district judge was not justified in making his decision effective nationwide, at least on this record.
The panel opinion in the court of appeals is usually the last full consideration in a typical case, but of course this is not the typical case. This case is headed for rehearing by a larger 11-judge panel, at least, and probably to the Supreme Court.
The Summary of Argument from CJLF's brief follows the break:
On its face, section 9(a) of the Executive Order is a directive by the President to the Attorney General and the Secretary of Homeland Security regarding how they are to exercise authority they already possess. Contrary to the district court's view, such a directive is far from meaningless. The exercise of discretion in executing the laws is an essential element of the executive power. Other parts of the order and external statements of officials do not negate the plain and important meaning of the section itself.By interfering with the President's supervision of his subordinates, the district court has violated the separation of powers. The Constitution vests executive power directly in the President, and this power necessarily includes the authority to supervise and direct the officers of the executive branch.At the present time, the Government has not indicated an intent to impose a condition of compliance with section 1373 on any grant program other than those previously identified, where application is not disputed. Until a disputed application is made, there is no ripe controversy suitable for judicial decision. An order that does not by its own force create or change any legal rights or obligations does not give rise to the kind of concrete dispute needed for a ripe case.
Leave a comment