Anti-Obama Legal Tactics Come Back to Haunt Trump on Immigration

by Greg Stohr

April 26, 2017

The legal tactics conservatives used against Barack Obama are coming back to haunt Donald Trump.

In winning court orders to halt President Trump’s travel ban and his crackdown on so-called sanctuary cities, opponents happily borrowed from the playbook that years earlier helped undercut President Obama’s health-care and immigration policies.

The latest ruling, issued Tuesday by a federal judge in San Francisco, blocks the new administration from threatening to revoke funds from cities that don’t cooperate with federal efforts to deport undocumented immigrants.

The ruling relied on a section in the Supreme Court’s 2012 Obamacare decision that dealt a blow to the health-care law. The high court said the law unconstitutionally coerced states into expanding their Medicaid programs by threatening to strip them of trillions of dollars -- or, in the words of Chief Justice John Roberts, by putting "a gun to the head."

U.S. District Judge William Orrick said the Trump administration likewise went too far by saying it might deny hundreds of millions of dollars in federal grants to San Francisco and two Northern California counties.

"States must have a ‘legitimate choice whether to accept the federal conditions in exchange for federal funds,’” Orrick wrote, quoting from Roberts’s opinion. The health-care ruling let states opt out of Obamacare’s Medicaid expansion, something 19 of them decided to do.

Some conservatives hailed the sanctuary-city ruling and its embrace of federalism principles they have long advocated. Orrick pointed to the Constitution’s Tenth Amendment, a favorite among legal scholars who favor limits on federal power.

"Some conservative Republicans may not like the outcome of this specific case," Ilya Somin, a law professor at George Mason University, wrote on the Volokh Conspiracy blog. "But they will have reason to celebrate it the next time a liberal Democratic president tries a similar move."

Texas Attorney General Ken Paxton, a Republican, says he’s happy to see the other side taking up federalism arguments. "I think it’s good that maybe the Republican AGs and Texas AGs can wake people up to Tenth Amendment arguments, because I think they’re legit," he said.

In a tweet, Trump called the ruling "ridiculous" and vowed to take the case to the Supreme Court, where his appointment of Justice Neil Gorsuch has restored the court’s Republican-appointed majority.

Still, the odds may be against Trump. The other four Republican appointees -- Roberts, Clarence Thomas, Anthony Kennedy and Samuel Alito -- all had said Obamacare’s Medicaid rules were unconstitutional. Joining them were Democratic appointees Stephen Breyer and Elena Kagan.

A Single Judge

Liberals are also mimicking conservatives by asking a single federal judge to issue a nationwide order against the administration.

That’s exactly what conservative states did two years ago when they asked a federal judge in Brownsville, Texas, to block Obama’s plan to defer deportation for 4 million undocumented immigrants. The judge, Andrew Hanen, did just that, issuing a nationwide order that ultimately was upheld by an evenly split Supreme Court.

The Obama administration decried the reach of Hanen’s order, calling it "drastically overbroad" in a 2015 court filing.

Now it’s conservatives who are protesting use of the tactic. When a federal judge in Hawaii said last month that Trump couldn’t block travel from a group of predominantly Muslim countries, Attorney General Jeff Sessions said he was "amazed that a judge sitting on an island in the Pacific" could block the president’s policy.

The administration expressed similar frustration after Tuesday’s ruling. "Once again, a single district judge -- this time in San Francisco -- has ignored federal immigration law to set a new immigration policy for the entire country," the White House said in a statement.