It appears that the Trump Administration is attempting to find a fix for its unconstitutional sanctuary cities order. The Administration also seems to have acknowledged that last month's federal court ruling that the order had no power to overrule Congress was not, after all, an "egregious overreach."
As we discussed on this blog at the time, U.S. District Judge William Orrick III in San Francisco made two important points in his ruling. First, Section 9(a) of the executive order says in plain language that the order is meant to apply to all federal funds, not just those already conditioned on cooperation with federal immigration authorities.
"The Constitution vests the spending powers in Congress, not the president, so the order cannot constitutionally place new conditions on federal funds," was the second point. So, the order can only deny a small, specific number of federal grants to sanctuary areas -- only those that already have a condition requiring the recipient to cooperate.
Sessions reinterprets Trump order as compliant with judge's interpretation
Attorney General Jeff Sessions has just acknowledged that the order can only lawfully target funds with existing immigration-related conditions. He has released a new policy memo reinterpreting the presidential order as already compliant with the federal judge's ruling.
First, he acknowledged that the order only applies to a limited pool of federal funding. Next, he narrowed the jurisdictions to be targeted. Only those who "willfully refuse to comply" with federal immigration law will have that funding stripped.
Finally, the Justice Department has demanded a rehearing of the San Francisco ruling. The reason? "The authoritative position set forth in the AG memorandum squarely contradicts the court's determination," reads the petition.
The claim is that Sessions' memo contradicts the judge's ruling about what Trump's executive order says and what funds it was intended to target.
Whether the Sessions memo is considered authoritative by a judge remains to be seen. After all, the plain language of Section 9(a) has not changed.