The U.S. Justice Department faced criticism Wednesday in court defending a Trump administration order that threatens federal funding cuts to cities and counties that restrict cooperation with immigration authorities.
Chad Readler, the acting assistant attorney general in charge of the DOJ’s Civil Division, told a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit that the November 2017 injunction blocking enforcement of the order nationwide was overly broad and unnecessary.
“The district court enjoined the order before any action had been taken under it,” Readler said during oral arguments in San Francisco. “It was a directive to two cabinet officials to use their discretion, to study the law and impose grant restrictions where appropriate. None of that happened.”
The counties of Santa Clara and San Francisco, which successfully sued to block the order, had administrative remedies they could have pursued if any federal grant was revoked, Readler said. The counties’ concerns that the order could have targeted millions of dollars of federal health care or transportation money are unfounded, he argued.
“So why do you care if there’s an injunction against the actions that you’re disavowing?” asked Chief Judge Sidney Thomas.
Readler said the better question is why the counties sued to block an order that had not harmed them. “Any time an executive action is enjoined I think the government would claim harm from that,” he said.
U.S. District Judge William Orrick of the Northern District of California on Nov. 20 issued a permanent order enjoining the executive action, which he called “unconstitutional on its face.” Orrick rejected the DOJ’s argument that the order affected only a small amount of money, and he cited comments from President Donald Trump about wielding the funding cuts as a “weapon” against so-called sanctuary cities.
Thomas pressed Readler on Wednesday about the president’s remarks.
“We have a lot of statements being made by the president and others that he wants to withhold grant money from sanctuary cities,” Thomas said. “What are we to make of that?”
Readler said Orrick erred by considering the president’s comments instead of focusing on the order and the subsequent enforcement directive by U.S. Attorney General Jeff Sessions.
“Many [statements] were made before the order issued, even before the election last year,” Readler said. “Some were made by White House press staff. That obviously doesn’t trump what’s one, in the order itself, and two, how the attorney general has interpreted it.”
The Ninth Circuit panel, which also included Senior Judge Ferdinand Fernandez and Judge Ronald Gould, had only one question for the counties’ attorneys. Gould asked about why the injunction should extend nationally.
San Francisco deputy city attorney Christine Van Aken argued the injunction should extend at least to California, which distributes some federal funds to local government agencies.
“Clearly the harm from this executive order is nationwide,” she said, while acknowledging that the injunction’s scope “is a matter of district court discretion.”
Sessions and other Justice Department lawyers have criticized the use of global injunctions, calling them a “deeply misguided practice.” The U.S. Solicitor General’s Office is arguing at the Supreme Court this term against the nationwide injunction against the administration’s so-called travel ban.