This article was originally published on April 25 2018.
As if we needed any further reminders of the reckless disregard for law and the Constitution rampant in the Trump Era, a panel of Republican federal judges has forcefully rejected efforts to punish so-called Sanctuary Cities by curtailing federal grant funds. It is a fair barometer to assume that when a Republican judge uses terms like “tyranny” to describe the actions of Trump officials, even the GOP’s catatonic congressional leadership should wake up and start acting like they are paying attention.
The remarkably strong decision by judges of the U.S. Court of Appeals for the 7th Circuit is a sharp reminder that it is a good idea for officials not only to check the merits of their arguments, but also the backgrounds of judges before whom they will make appeals. The judicial panel, led by Judge Ilana Rovner, not only belittled the arguments of Attorney General Jeff Sessions’ Justice Department, but also delivered a ringing defense of congressional prerogatives and separation of power that is clearly a matter of low priority to the current occupant of the White House.
At issue was whether Sessions (channeling some of the most reprehensible of Donald Trump’s prejudices) should be able to inflict punishment on so-called Sanctuary Cities that decline to cooperate with the federal government’s aggressive policy of rounding up and deporting undocumented people. Cities like Chicago, the subject of Wednesday’s case, have not voided federal law – the constitutionality of which was settled some time ago by a nasty civil war – but rather have declined to cooperate with actions to terrorize immigrant communities. Trump and Sessions responded to vows of non-cooperation by threatening to withhold DOJ grant funds designated for these defiant jurisdictions.
Not so fast, instructed District Judge Harry Leinenweber last September. Leinenweber, who had been named a federal judge by Ronald Reagan, imposed a nation-wide injunction against punishing Sanctuary Cities for protecting their residents. Yesterday, a 3-panel appeal court in Chicago upheld Leinenweber’s decision, and used some strong language to disclaim the logic and constitutionality of the Administration’s argument.
Unfortunately for Sessions and Trump, the judge writing the decision in the appeal was Ilana Rovner, a Reagan and Bush I appointee who with her mother had fled Latvia as a child in 1942 to escape the invading Nazi army. Such an experience is bound to make an impression on a 4-year old.
Apparently it did. Rovner’s ruling dripped with contempt for the Administration’s arguments. Sessions’ heavy-handed intimidation was described as a thinly disguised effort to use “the sword of federal funding to conscript state and local authorities to aid in federal civil immigration enforcement.” And that wasn’t the mildest of Rovner’s rebuke. “The issue before us strikes at one of the bedrock principles of our nation,” she lectured the Attorney General, “the protection of which transcends political party affiliation and rests at the heart of our system of government — the separation of powers.”
To someone who teaches students about the proper role of the Congress in the law-making process, Rovner’s decision reads like a textbook example. “The founders of our country well understood that the concentration of power threatens individual liberty and established a bulwark against such tyranny by creating a separation of powers among the branches of government” she wrote. “If the Executive Branch can determine policy, and then use the power of the purse to mandate compliance with that policy by the state and local governments, all without the authorization or even acquiescence of elected legislators, that check against tyranny is forsaken.”
Indeed, as Rovner wrote, Congress “repeatedly refused” efforts by some members to link the funding of federal programs to immigration policies. Numerous bills have been introduced directing that such linkage be imposed, with such menacing names as the “Stop Dangerous Sanctuary Cities Act” and the “Stop Sanctuary Policies and Protect Americans Act,” but Congress declined to enact these alarming bills. She reminded the Administration of the lesson of which legislative drafters are acutely aware, that the language of the law, on which Congress actually voted, is “the best indicator of Congress’s intent [and] and that absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.”
Perhaps Sessions and Trump missed class the day a teacher explained that Congress’ failure to act does not confer special powers on the Executive Branch.
Congress of course can choose to give to the Attorney General, or to anyone else, the power to link the provision of federal funds with certain conditions. But it is up to Congress to make an affirmative decision, not for others in government to assume those powers when Congress fails to do so. Rovner belittles Session’s argument that states and local communities cannot be allowed to interfere with federal law enforcement. “That is a red herring,” she rightly declares, since Sanctuary Cities in no way obstruct enforcement actions by federal officials.
In case the zealots in the Administration missed her point, Judge Rovner further explained that “We are a country that jealously guards the separation of powers, and we must be ever vigilant in that endeavor.” But Sessions’ “repeated mantra evinces a disturbing disregard for the separation of powers. The power of the purse does not belong to the Executive Branch. It rests in the Legislative Branch,” and when the Executive overreaches, it “falls to us, the judiciary, as the remaining branch of the government, to act as a check on such usurpation of power.”
Rovner’s scolding must have stung the White House and Justice Department, but it was surely welcome for teachers of civics throughout the country. It s a sorry state of affairs when conservative judges have to remind the likes of Donald Trump and Jeff Sessions what the Constitution says and judicial precedent means. Probably time to get ready for the Tweet storm about lenient liberal judges.
John Lawrence, a visiting professor at the University of California Washington Center, worked for 38 years in the House of Representatives, the last 8 as chief of staff to Speaker/Democratic Leader Nancy Pelosi. This post was originally published by John’s blog, Domeocracy.