On Tuesday, U.S. District Judge William H. Orrick – a San Francisco-based federal judge appointed by President Obama – issued an injunction blocking enforcement of President Trump’s executive order threatening to cut off the flow of federal funds to jurisdictions that refuse to comply with federal immigration law. This ruling raises serious questions – not about the dispute itself, but about the judge and his understanding of the law.
To begin, keep in mind that the executive order had not yet been implemented. That is, no funds had yet been prevented from flowing to either Santa Clara County, or the city of San Francisco, the two plaintiffs in the suit. In other words, no harm had yet been done to the plaintiffs. Consequently, one can only wonder about the judge’s understanding of the concept of “standing,” which restricts a judge’s authority to adjudicating real disputes involving specific harms.
Courts don’t deal with fantasies and conjectures. They don’t deal with hypotheticals, and they don’t issue advisory opinions about what might happen if something else were to happen. They deal in the real world, with actual disputes between actual litigants who seek redress of actual harms actually done.
So… strike one against the judge, who should simply have said to Santa Clara County and the city of San Francisco, “Come back and see me when you’ve actually lost funding.”
Next, Judge Orrick rejected the Trump Administration’s lawyers’ argument that the executive order was being interpreted narrowly, simply to guide the enforcement of already existing law. That simply couldn’t be true, the judge reasoned, else why would there be a need to issue an executive order? So the judge went on a hunt for the “real” reason behind the issuance of the executive order, and found … then-candidate Trump’s stump speeches, which, in the judge’s mind, revealed the “real” point of the executive orders – not to enforce laws already on the books, but to create new law.
Apparently, Judge Orrick lives in a world where everything candidates say or promise on the campaign trail magically comes to fruition once they are elected and inaugurated. There’s no political compromise, no trimming of desires in the negotiations needed to enact law, no hedging of bets once the awesome responsibilities of incumbency are beheld, no flip-flopping, ever. In Judge Orrick’s world, every incumbent is held accountable for everything he or she said as a candidate on the stump.
(Thank goodness Judge Orrick wasn’t on the bench when George H.W. Bush broke his “no new taxes” pledge, or, for that matter, when the president who appointed him to the bench was promising “if you like your doctor, you can keep your doctor.” Imagine the rulings!)
So… strike two against the judge, who should simply have said to the Justice Department lawyers, “Okay, I’ll take you at your word.”
That Judge Orrick is an alumnus of Barack Obama’s Department of Justice – after having raised literally hundreds of thousands of dollars for Obama’s 2008 campaign – should not be a surprise.
Neither should it come as a surprise that this is the same Judge Orrick who issued a temporary restraining order against the release of undercover videos requested by the National Abortion Federation.
So… strikes three and four against the judge.
Consequently, it is no surprise, either, that President Trump would respond to the judge’s ruling by (once again) slamming the Ninth Circuit Court of Appeals. Though Judge Orrick is not a member of the Ninth Circuit Court of Appeals, his bench falls within the jurisdiction of the Ninth Circuit, and that’s enough for Trump.
Let’s hope the case moves quickly to the Ninth Circuit and – after what may be a Ninth Circuit upholding of Judge Orrick’s ruling (because it is the most liberal Circuit Court in the nation, and its rulings do get overturned more often than any other Circuit Court’s rulings) – a quick appeal to the Supreme Court, which, presumably, will rule to uphold the executive branch’s simple enforcement of the laws on the books.
Jenny Beth Martin is President and co-founder of Tea Party Patriots.