Federal Immigration EO – Strong Legal Arguments Against Stay May Not Be Available to Trump Later

Although President Donald Trump called it “ridiculous” and threatened to challenge the ruling in court, Justice Department attorneys have just told a federal court in San Francisco that they have no plans at this time to seek a court ruling immediately reinstating the president’s executive order to withhold funding from communities that limit cooperation with immigration authorities.

This is strange because, although the court stated that the original order was actually “toothless,” it was apparently already pressuring jurisdictions to begin complying more fully with federal immigration and deportation efforts.

Also, grounds which exist for challenging the order at this time probably will not be available to the administration at later stages in legal proceedings, suggests public interest law professor John Banzhaf, who had predicted that the order would be struck down on constitutional grounds.

 

Federal Immigration

Federal Immigration

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Although Banzhaf and other legal experts have concluded that the order appears to be an unconstitutional violation of both states’ rights and Congress’ rights, and in practice may have little real effect because it neither deals with detainers nor with cities which simply refuse to question suspects about their immigration status, it was apparently already beginning to have an impact with jurisdictions which may be reluctant to assume the expense and the risks of challenging it in court, says Banzhaf.

For example, it has been reported that the New York City Police Department alerts ICE agents if immigrants facing deportation are due to appear in Criminal Court, thereby making it easier for them to be detained by the federal government.

In addition, Florida’s Miami-Dade has ordered jails there to “fully cooperate” with Trump’s order, and others appear to be considering it. Other states are also moving to pressure localities to begin cooperating with federal immigration enforcement. These include Iowa, Kansas, Kentucky, North Carolina, Pennsylvania, Texas, Virginia, and Wisconsin.

However, the preliminary injunction obviously blunts this persuasive effect, so it would surprising – and bad lawyering – if Trump does not challenge the stay now, using two powerful administrative law arguments which likely would not be available at later stages in the legal proceedings.

The first is the administrative law principle known as “ripeness,” which says that courts should not address legal issues until they are ripe – sufficiently developed, with the facts clear enough, for a court to rule knowledgeably and authoritatively. This applies most strictly when constitutional issues are raised.

Here, since the meaning of the order, its applicability to different so-called sanctuary activities, and how federal officials will interpret and seek to enforce it are all unclear, courts may well decide that the issues – especially those related to constitutionality – are just not yet ripe enough for adjudication at this time.

A second administrative law doctrine, “exhaustion of administrative remedies,” provides that courts should not decide legal issues if plaintiffs have failed to exhaust whatever administrative remedies they may have before and within the agency itself.

For example, if an agency provides for hearings, these hearing should occur, and the agency at the highest level should then render a final decision, before a court decides important legal issues.

Here, each threatened city almost certainly will be entitled to a hearing before funds are finally terminated, so cities may have to participate in such a hearing before they can get relief from a court.

If the stay order is not challenged, it certainly will not be the first bad Trump legal decision, suggests Banzhaf, who earlier pointed out how his lawyers may have doomed his Muslim ban order.