drwex (drwex) wrote,

Unsurprisingly, Trump's anti-refugee directive is (likely) unconstitutional


Ilya Somin, a noted Constitutional scholar and generally right-leaning conservative/Libertarian thinker, has a blog post up in the Washington Post arguing that Trump's order attempting to punish sanctuary cities is unconstitutional.

The basic principle is simple, if wrapped in some legal language: courts have almost universally held that states have to know the conditions under which they are accepting Federal money, and it's not permitted to change those conditions afterward, except as written into the laws. Trump is, in effect, imposing an additional condition, which is not allowed.

Why this matters is that the only significant case so far against Trump is based on a far reach that I expect the courts to reject. This one would appear to have much more solid legal footing, assuming the administration actually carries out the order.

Federal courts, particularly SCOTUS, generally try to avoid rendering advisory opinions. Instead, they require that people bringing suit have a particular type of injury - in plain language they require that someone actually be injured in some way, and that the injury be the sort of thing that a court decision could remedy.

The lawsuit challenging Trump's violation of the Emolument's Clause is brought by people who are going to have a hard time showing that they were injured in this way. Failing to show that means they don't have standing to bring suit. Unless a law specifically allows such a suit (e.g. some whistleblower laws and some environmental laws) the courts are likely to reject the suit for lack of standing even before ruling on the core issues of whether the clause applies to Trump and whether he's guilty of violating it.

By contrast, any town or city that is denied funding has an immediately obvious injury (the denial of funds) that could be remedied by a court order (requiring the Feds to release funds as directed by Congress). The suit would be likely to be heard and if the courts are consistent with precedent the injured sanctuary cities would win. Of course, nothing is for sure but that's the argument here and not by someone who could be accused of wishful liberal thinking.

Unfortunately, such suits will take years to wind through the courts and a lot of people will get hurt in those years. But I'll take small comforts where I can.

Cross-posted from Dreamwidth, at http://drwex.dreamwidth.org/941421.html. You can comment here or there.
Tags: politics
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