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Thread: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

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    9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    9th Circuit rules in favor of Trump admin in 'sanctuary city' case. While the headline is a bit misleading, I posted in this thread because of the rationale of the panel Majority and the Dissent. The case, Los Angeles v. Barr is important for a few reasons. First, it gave the administration a court victory. Second, it demonstrated that court ideologues will use even disfavored doctrine (Chevron) when it suits their interests. Third, it further erodes the authority of Congress. Finally, it demonstrates that Mitch McConnell is right - the power of appointment can invalidate any other legislative interest.

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Looks like sanctuary city's will be losing some of their grant money. But not until this moves to an appeal court.

    The 9th Circuit Court of Appeals on Friday ruled in favor of the Trump administration's efforts to prioritize federal dollars for local policing to towns and cities that complied with certain immigration policies.
    "I want to be clear, Iím not going nuts"
    Joe Biden, New Hampshire, August 26, 2019

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Unfortunately, the bulk of my post got eaten by internet gremlins. I'll be back to post the exposition.

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    The states shouldn't be forced to do the federal governments job. But here we are...again (shades of the fugitive slave act).

    Seems out of character for the 9th circuit to make such a ruling. Ahh, no wonder...

    9th Cir. Close to Having More Trump Judges Than Any Other (1)

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Quote Originally Posted by Moot View Post
    The states shouldn't be forced to do the federal governments job. But here we are...again (shades of the fugitive slave act).

    Seems out of character for the 9th circuit to make such a ruling. Ahh, no wonder...

    9th Cir. Close to Having More Trump Judges Than Any Other (1)
    I agree with both points: it seems ideologically inconsistent to allow the federal government to dragoon the State authorities to execute an explicitly federal function; and the decision contrasts sharply with the predilections of those particular jurists. The Ninth Circuit has been a particular target of ideological manipulation (installation of Federalist Society approved jurists), as it has been, historically, the most reasonable bench at the Appellate level. Another recent thread, here (The non-delegation doctrine and gundy v United States), provides an interesting counterpoint that also demonstrates my initial point: When the outcome is ideologically-based, courts tend to follow the line of cases that reach that outcome, even when they are ideologically counter to their "philosophy".

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    I had to cast back in my mind and dig around to find the precedent that I remembered on this point. Not that long ago (1997) the "conservative" position on the subject was that States (because of the Tenth Amendment) could not be dragooned into enforcing federal mandates. The principle case is Printz v. United States, authored by Justice Scalia. Ironic, isn't it, that Judge Bybee, co-author of the book "Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments" (2006), and a stalwart opponent of Chevron deference would join an opinion trampling on State law enforcement interests based upon Chevron, no?

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Quote Originally Posted by NWRatCon View Post
    ...Second, it demonstrated that court ideologues will use even disfavored doctrine (Chevron) when it suits their interests. Third, it further erodes the authority of Congress. Finally, it demonstrates that Mitch McConnell is right - the power of appointment can invalidate any other legislative interest. ...
    I agree... : it seems ideologically inconsistent to allow the federal government to dragoon the State authorities to execute an explicitly federal function; and the decision contrasts sharply with the predilections of those particular jurists. The Ninth Circuit has been a particular target of ideological manipulation (installation of Federalist Society approved jurists), as it has been, historically, the most reasonable bench at the Appellate level. ...
    ...Not that long ago (1997) the "conservative" position on the subject was that States (because of the Tenth Amendment) could not be dragooned into enforcing federal mandates. The principle case is Printz v. United States, authored by Justice Scalia. Ironic, isn't it, that Judge Bybee, co-author of the book "Powers Reserved for the People and the States: A History of the Ninth and Tenth Amendments" (2006), and a stalwart opponent of Chevron deference would join an opinion trampling on State law enforcement interests based upon Chevron, no?
    Shameless Poppycock.

    First, in this case the state (the City of L.A.) was not being "dragooned" to do anything. It was applying for one of the competitive grants available from the DOJ for law enforcement. Most cities don't win this periodic competition, and those that do have earned the most points based on more than 20 factors. Applicants needn't have focused on immigration or human trafficking law, but those two factors can earn City points. And, in fact, many cities who DIDNT focus on immigration won.

    Therefore Printz v. United States is not relevant to your complaints. In P v. US the federal government MANDATED (commandeered) that all Sheriffs to do background checks on behalf of a federal law, the kind of direct commandeering (mandating) of state officials that had been found unconstitutional in New York v. United States (1992). Moreover, this Court opinion (P v US) stated that the Framers designed the Constitution to allow Federal regulation of international and interstate matters, not internal matters reserved to the State Legislatures. (Note that immigration is not merely an internal matter.)

    Second, the majority opinion in LA did not rely on just the Chevron doctrine, and suggested that a stricter standard would not have changed the outcome. While the Chevron doctrine is deservedly disliked by some such as Kennedy and Kavanaugh, the application in this case has nothing to do with the reasons for its falling popularity. The doctrine, in the hands of some agencies, protect utterly incomprehensible text and enshrine ambiguity as only decipherable by the administrative agency; e.g. one of the defenses of Obamacare and, ironically, now used by Trump is some other cases.

    Third the predilections of lower court judges notwithstanding, an honorable judge of the lower courts is obliged to follow current doctrine. That is what these judges did, regardless of their personal opinions of Chevron or the 10th amendment. Chevron has not yet been overturned by the Supreme Court, and until it is then no lower court judge has the license to ignore it and invent his/her own doctrine to suit the occasion.

    Finally, be reminded that under Bill Clinton and gun regulation the liberal jurists found all sorts of reasons to enthuse over "dragooning". Justice Stevens opined that the Commerce Clause of the Constitution gave the right to the Federal government, under the Commerce Clause and Necessary and Proper Clause for Congress to Dragoon any State or local government to do its bidding. In fact, he extolled the virtues of (mandatory) "cooperative federalism" as in forcing states to do mass inoculation or, ironically, to respond to INTERNATIONAL threats such as terrorism.

    Souter was certain that the Founders original intent was to require states to act as auxiliaries to the federal government, and Breyer opined that federalism in foreign governments gave central government power over sub-national jurisdictions, so why not here?

    So while you are lecturing on the hypocrisy of the judges, perhaps you could include that when Clinton or Obama was President - the liberal jurists saw no problem with ordering the local government to cooperate. Let Trump use the same principle to enforce federal immigration law, and the histrionics of shock and outrage over federal employment of states to help enforce federal policy is deafening.

    Printz v. United States - Wikipedia
    Last edited by maxparrish; 07-14-19 at 01:16 AM.

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Quote Originally Posted by maxparrish View Post
    Shameless Poppycock.
    What a delightfully unenlightened and meaningless phrase! I do appreciate, however, that you have at least attempted to read the decision(s), even if you have deliberately missed my point(s). More on that in a minute.

    Quote Originally Posted by maxparrish View Post
    First, in this case the state (the City of L.A.) was not being "dragooned" to do anything.
    Here I'll quibble a bit. There is no question that the new standards of the Attorney General were intended to encourage acceptance of a federal mandate to comply with federal demands (that, by the way, is coercive in nature, but I don't want to go too far down that path). The issue that SHOULD have informed the court was not whether the criteria were coercive, but whether they were consonant with the statute Congress passed - the conservative analytical matrix, I might add. Indeed, contrast the decision with the Supreme Court dissenters in Gundy regarding the "non-delegation" doctrine. No reliance on Chevron there! While I disagree with the decision in Gundy, what's relevant to the discussion here is the inconsistency of analysis (especially for Judge Bybee). While the majority here paid lip service to Chevron, they didn't actually apply the analysis of Chevron.

    The central problem here is that the statute was not ambiguous. (My complaint about the Gundy decision is precisely the breadth of the delegation, which had no meaningful limitation, but serious ramifications.) While the Attorney General was given broad authority, the criteria that was established in no way related to the purpose of the COPS program established by the statute. That is the fundamental defect in both the criteria and the decision. The court had to go exceptionally out of its way to find any correlation between the Attorney General's action and the statute. That's not deference, that's obsequiousness.
    Last edited by NWRatCon; 07-14-19 at 01:42 AM.
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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Quote Originally Posted by NWRatCon View Post
    What a delightfully unenlightened and meaningless phrase! I do appreciate, however, that you have at least attempted to read the decision(s), even if you have deliberately missed my point(s). More on that in a minute.
    Rest assured, words in the phrase has meaning. Let me assist:

    Shameless means: flagrant ∑ brazen ∑ brash ∑ audacious ∑ outrageous ∑ undisguised ∑ unconcealed ∑ transparent
    Poppycock means: nonsense ∑ claptrap ∑ balderdash ∑ blather ∑ moonshine ∑ foolishness ∑ silliness ∑ rubbish ∑ rot ∑ tripe ∑ hogwash ∑ baloney ∑ drivel

    The two words mean in a phrase means (for example): undisguised nonsense, brazen claptrap, audacious hogwash, and unconcealed baloney. You're welcome.

    And, by the way, I wrote seven paragraphs, one or more refuting most of your assertions. However, if you have points that you didn't make you shouldn't rely on others to read your mind.

    Here I'll quibble a bit. There is no question that the new standards of the Attorney General were intended to encourage acceptance of a federal mandate to comply with federal demands (that, by the way, is coercive in nature, but I don't want to go too far down that path). The issue that SHOULD have informed the court was not whether the criteria were coercive, but whether they were consonant with the statute Congress passed - the conservative analytical matrix, I might add.
    First, imprecise characterizations are not arguments. Blather over "new standards", mind reading of their "intentions", and sematic contradictions like "encouraged mandates" are hopeless, some of it meaningless on their face. For example, a government "mandate" is not "encouragement", its a legal requirement. If a federal policy requires the purchase of cooperation, such as the promise of money to a state, and the state has the ability to decline the money, its not a "mandate to comply". That is a ridiculous syntactical ploy.

    Second, there is no consonant (consistency?) legal doctrine by that name. However, the competitive grant's general purpose is consistent with that of the general purpose of the grant Act, that is to enhance the crime prevention in state and local law enforcement and to enhance public safety through community policing. In particular the act states that its purpose is "to expand and improve cooperative efforts between law enforcement agencies" and to "address crime and disorder problems, and otherwise enhance public safety". And "Nothing in the Act precludes DOJ from allocating federal funds to state or local governments to focus on problems raised by the presence of illegal aliens within their jurisdictions.8" (opinion of the court).

    A footnote in the majority opinion sums it up nicely:

    In addition to listing the immigration focus area, the Application Guidelines list multiple other focus areas, including violent crime, traffic and pedestrian problems, and “quality of life policing.” While the Act does not expressly mention any of these focus areas, its gives DOJ broad discretion to identify and rank such a range of goals. Given DOJ’s authority to administer the grant program along these lines, the dissent’s argument that immigration enforcement cannot be a permissible focus area because the Act makes no mention of immigration enforcement, Dissent at 42, is meritless.
    In other words, there is nothing in this grant program that is unlike any other competitive grant program for any agency, and in all cases once a law provide general goals and a methodology for providing a competitive grant the technical gaps are, as usual, filled in by the agency's expertise - as intended by the ACT.

    I don't have any general objection to a complaint about Congress not doing its job, and in fact feel strongly that the Courts should have routinely slapped Congress and returned incoherent and contradiction filled legislation to Congress as null and void. The sloppiness on Obamacare, for example, was inexcusable. That said, you can't fault the administration or the courts on this particular grant without faulting ALL grants and much other legislation for the same sins - and until you are willing to do that, this 'complaint' is purely "whose ox is gored" grandstanding.

    Finally, the ACT is not especially ambiguous and, for the reasons stated, the grant is not in violation of any of its text. And if the text is unambiguous you don't need to go fishing for legislative intentions (or purpose).

    PS The comparison to Gundy, which was not by Bybee, seems rather far fetched. Frankly, I found Gorsuch (as I often do) to be difficult to read and unclear. Whereas reading and understanding Alito, Thomas, Roberts, Ginsburg, Bryer and especially Scalia have been pain free, Gorsuch is not the great writer he was reputed to be.

    If there was single and precise analytical doctrine in the Gorsuch opinion, I failed to find it.
    Last edited by maxparrish; 07-14-19 at 06:21 AM.

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    Re: 9th Circuit rules in favor of Trump admin in 'sanctuary city' case

    Oh good Lord! This transient decision is not worth a lot of effort, and you spend a great deal of sturm und drang missing the point, but I was serious when I said I appreciate your trying. Let's skip the claptrap, shall we?

    1. What do you think the Chevron standard is? Is it, as here, the end of analysis (complete deference), or is it a framework?

    2. Is such complete deference consistent with the bulk of Ikuta's other work, or, more significantly, Bybee's? (Short answer, no. Which is why I noted it.)

    3. Eliding the definitional diversion of your opening sentences (love those words, by the way. "Hogwash" seems particularly apropos to most of what followed!), Lets address the following paragraphs of your disquisition: First. Say what? I was trying to skip that inanity. I wasn't asserting that it was as coercive as the scheme in Printz, but that the goal of the Attorney General was to create an incentive to comply. The background is that the Attorrney General's previous effort to simply withhold already granted funds was prohibited by the court. This scheme was an end-around of that decision. That background is important.

    Second. Consonant is a perfectly legitimate word, not a legal standard, nor was I creating one, so I really don't understand why you're so het up about that. Instead, let's turn to the nub of the court's error. What is the purpose of the COPS program? Is it to I federal law enforcement programs? No. I agree when you say (paraphrased) "the statue is not particularly vague." It's not. Nowhere in the statute or its legislative history is there any mention of such intention. The closest is creating capability to coordinate with federal anti-terror efforts. The entire gravamen of the program is to enhance local police jurisdictions' ability to pursue their own community policing programs (it's in the name). One can quibble with whether that is a legitimate federal goal, but you can't deny that is the program's purpose, and not the Attorney General's.

    Instead, the Attorney General used admittedly vague and overbroad language (virtually the same language used in Gundy, hence the reference) to create, out of whole cloth, a new purpose for the funds [while also using the power of the purse to punish those jurisdictions that defied him]. Is that within his authority? No, but "honey badger don't care," and neither did the panel. The footnote and accompanying section of the opinion do not change that, they're just an elaborate and obvious effort to paper over the reality. That there are other, authorized, criteria is meaningless when "One of these things is not like the others." Nor is the imperfect fit between the AG's intent and the result (but it's at least a close fit... most of the jurisdictions got the message).

    Ironically, you and I probably would agree on the general lack of merit in both the Gundy majority opinion and this opinion if it weren't for the ideological purpose it serves. That, in a nutshell, is my complaint. "Chevron deference" is a tool used by judges to approve ideological results that comport with their desired outcomes, but ignored when it suits their judicial activist whims. Scalia was notorious for that. It's the hypocrisy I detest. (By the way, I don't disagree about Gorsuch. That was never my point.)
    Last edited by NWRatCon; 07-14-19 at 10:56 AM.
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