Still No Word From Justice Department On Sanctuary Cities Appeal

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Kevin Daley Supreme Court correspondent
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The U.S. Department of Justice has not indicated if it will appeal a federal court order halting enforcement of President Donald Trump’s executive order on federal funding for sanctuary cities.

U.S. District Judge William Orrick issued a preliminary injunction in late April, barring enforcement of the order, which empowered Attorney General Jeff Sessions to strip cities that refuse to comply with immigration laws of federal funds.

Orrick, an Obama appointee, ruled that the president cannot strip cities of funds that bear “no meaningful relationship to immigration enforcement” because of failure to comply with immigration laws. He also said the U.S. government cannot retroactively condition federal funding on compliance with certain terms, and that such terms may only be set by Congress, not the president.

The order prompted aggressive denunciations from the Trump administration.

“Today, the rule of law suffered another blow, as an unelected judge unilaterally rewrote immigration policy for our Nation,” the White House said in a statement shortly after the ruling. “This case is yet one more example of egregious overreach by a single, unelected district judge. Today’s ruling undermines faith in our legal system and raises serious questions about circuit shopping.”

“Circuit shopping” or “venue shopping” refers to the practice of bringing lawsuits in jurisdictions most friendly to a plaintiff’s cause. It is a common litigation tactic.

Trump promised to fight the order all the way to the Supreme Court.

The administration’s outrage notwithstanding, Justice Department lawyers have not yet taken steps to appeal the decision, or publicly announced that an appeal is forthcoming. Last week Sessions released a statement promising the Department would continue to defend the order in court, but was unspecific as to how exactly DOJ would proceed.

“[A]ctions that have always been understood to be squarely within the powers of the President, regardless of the Administration, have now been enjoined,” he said. “The Department of Justice cannot accept such a result, and as the President has made clear, we will continue to litigate this case to vindicate the rule of law.”

The AG’s comments do not reveal whether DOJ will appeal the ruling, or proceed to a trial definitively evaluating the lawfulness of the executive order. Should the Department decline to appeal Orrick’s ruling, a trial will begin in April 2018.

If the Department contests Orrick’s decision, the appeal will be heard by the 9th U.S. Circuit Court of Appeals.

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