BREAK UP THE JUDGE-SHOPPING!

I’m beginning to think that the president may not be entirely competent:

While the Republican Congress has been laughably deficient in checking President Trump’s corruption and power grabs, the federal courts have been doing their job. On Tuesday, a federal district court judge blocked an executive order intending to deny federal funding to sanctuary cities. The president of the United States wasted little time in reacting, tweeting “[f]irst the 9th Circuit rules against the ban and now it hits again on sanctuary cities — both ridiculous rulings. See you in the Supreme Court!” and criticizing the winners of the suit for “judge shopping.” In a subsequent interview, he expressed agreement with “the many people that want to break up the 9th Circuit.”

Both the order itself and Trump’s reaction to the court’s ruling indicated why he’s had a rough ride in the courts so far: He has no idea what he’s doing.

The most obvious problem is that while U.S. District Judge William Orrick lives in the geographic area covered by the 9th Circuit — he is based in San Francisco — he does not in fact serve on that court. He’s a trial judge, not an appellate one. The fact that the same president issuing executive orders apparently doesn’t understand basic facts about the structure of the American judicial system is rather sobering.

[…]

It’s not exactly news that Trump’s tweets and interviews tend not to withstand rigorous, or even cursory, scrutiny. The bigger problem for Trump is that you can say the same thing about his sanctuary city order.

In a 1987 case which upheld the use of federal highway funds to establish a de facto national drinking age, the Supreme Court gave Congress a broad (although not unlimited) ability to use its spending power to persuade states to advance federal objectives. One of the limits that the Court placed, however, was that if Congress wants to put conditions on federal funding it “must do so unambiguously” so that states “exercise their choice knowingly, cognizant of the consequences of their participation.” In addition, any conditions placed on spending must be “relevant to federal interest in the project and to the over-all objectives thereof.” Congress could withhold highway spending to compel states to raise their drinking ages because it was related to the federal interest in highway safety, but it could not accomplish the same goal by threatening to withhold Social Security spending.

These restrictions made it nearly inevitable that the courts would find Trump’s order unconstitutional. Judge Orrick’s holding that Trump’s order is not sufficiently related to the federal grants in question is debatable, although the case is strong. But it’s obvious that Congress did not “unambiguously” make clear that the grants in question were conditioned on local officials enforcing federal immigration law. The Supreme Court can revise its own precedents, but lower courts cannot — hence, Orrick had no real choice but to find that the order was unconstitutional.

I, for one, am shocked that Jefferson Beauregard Sessions III’s commitment to the Noble Ideals of Federalism might be opportunistic and unprincipled. This is highly unusual for an Alabama politician!