Posted by: maboulette | April 29, 2017

Why President Trump Is Getting Killed In Court, In 1 Astonishingly Ignorant Comment

Trump in Oval Office

Trump’s threat to “break up” the 9th Circuit because “everybody immediately runs” to it doesn’t make much more sense. It is true that the Constitution gives Congress the power to reorganize the federal judicial system, and some conservative legislators have floated proposals to create a new court that would cover some jurisdictions currently covered by the large and rapidly growing 9th Circuit. (Since this would mean a lot of new Republican judges — which is the real point — this would have no chance of passing the Senate as long as the filibuster remains in place.) But needless to say, even if the 9th Circuit was broken up this wouldn’t stop forum (or what Trump calls “judge”) shopping because suits could still be filed in the jurisdictions the 9th Circuit does cover.


It’s not exactly news that Trump’s tweets and interviews tend not to withstand rigorous, or even cursory, scrutiny. The bigger problem for Trump is that you can say the same thing about his sanctuary city order.

1987 CASE

In a 1987 case which upheld the use of federal highway funds to establish a de facto national drinking age, the Supreme Court gave Congress a broad (although not unlimited) ability to use its spending power to persuade states to advance federal objectives. One of the limits that the Court placed, however, was that if Congress wants to put conditions on federal funding it “must do so unambiguously” so that states “exercise their choice knowingly, cognizant of the consequences of their participation.” In addition, any conditions placed on spending must be “relevant to federal interest in the project and to the over-all objectives thereof.” Congress could withhold highway spending to compel states to raise their drinking ages because it was related to the federal interest in highway safety, but it could not accomplish the same goal by threatening to withhold Social Security spending.


These restrictions made it nearly inevitable that the courts would find Trump’s order unconstitutional. Judge Orrick’s holding that Trump’s order is not sufficiently related to the federal grants in question is debatable, although the case is strong. But it’s obvious that Congress did not “unambiguously” make clear that the grants in question were conditioned on local officials enforcing federal immigration law. The Supreme Court can revise its own precedents, but lower courts cannot — hence, Orrick had no real choice but to find that the order was unconstitutional.


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