On Monday a federal judge in San Francisco, William Orrick, used Trump’s words to support a ruling halting part of the president’s order to cut federal funding to sanctuary cities or other jurisdictions that refuse to cooperate with the enforcement of immigration laws. And on Tuesday, a federal judge in Maryland issued a temporary stop to Trump’s new policy to prohibit the Pentagon from paying for gender-reassignment treatments for service members, inserting screen captures of three Trump tweets in his opinion.
In the Maryland case, Judge Marvin J. Garbis, the second federal judge to issue a ruling in favor of transgender troops, wrote: “A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes.”
Orrick, as WND reported in May, was the judge who banned the publishing of an undercover video in which abortionists joked among themselves about the killing of unborn infants.
The Washington Times reported another court challenge in which judges might use Trump’s declarations to rule against his agenda is his attempt to roll back the Obama-era Deferred Action for Childhood Arrivals amnesty.
In a case brought by the state of California, Michael Mongan, the deputy solicitor general of California argued before the 9th U.S. Circuit Court of Appeals that Trump’s statement that he might extend the program beyond his March cutoff date contradicts Attorney General Jeff Sessions insistence that DACA is illegal.
Previously, federal judges ruled against both versions of Trump’s ban on travel from selected terrorist hot spots, arguing they are “Muslim bans” because of statements Trump made during his election campaign. The bans, however, centered on countries designated as generators of terrorism by President Obama, affecting no more than 10 percent of world’s Muslim population, and federal law gives the president authority to bar entrance of certain people for security reasons.
In October, nevertheless, U.S. District Judge Theodore Chuang insisted official campaign statements and Trump’s past tweets show that his motive was to ban Muslims in particular, not prevent terror attacks on American soil.
“The evidence offered by Plaintiffs includes numerous statements by President Trump expressing an intent to issue a Muslim ban or otherwise conveying anti-Muslim sentiments,” wrote Chuang.
The judge even insisted Trump was trying to get away with imposing a “Muslim ban” by cloaking his intentions.
Chuang said Trump’s past statements show he “intended to effectuate a partial Muslim ban by banning entry by citizens of specific predominantly Muslim countries deemed to be dangerous, as a means to avoid, for political reasons, an action explicitly directed at Muslims.”
‘Judges treat every tweet as gospel’
The Times noted that the words of other presidents have been used against them, including President Obama’s comments on the limits of his immigration powers, which helped dash his effort in 2014 to expand the DACA program beyond so-called Dreamers, who came to the U.S. as children with their illegal-alien parents.
But the issue seems to arise more often with Trump, noted
Katherine Shaw, an associate professor at the Cardozo School of Law, the Washington Times reported. Shaw has published what is described as the first systematic treatment of judges’ use of presidential speech in legal cases.
Josh Blackman, a professor at the South Texas College of Law, told the Times that Trump’s comments on DACA could undercut the Justice Department’s defense.
“The answer in a normal time would be for DOJ to say POTUS misspoke,” he said. “But judges treat every tweet as gospel.”
Trump’s words also affected the case of a black man who claimed he was roughed up by Trump supporters at a campaign rally. The judge in the case considered whether the president’s order during the fracas to “get ’em out of here” amounted to inciting violence.
Regarding transgender troops, a previous ruling halted Trump’s plans, but the ruling by Judge Garbis went further, saying the challengers showed they already are being harmed by the government’s refusal to pay for reassignment treatments.
“They are already suffering harmful consequences such as the cancellation and postponements of surgeries, the stigma of being set apart as inherently unfit, facing the prospect of discharge and inability to commission as an officer, the inability to move forward with long-term medical plans, and the threat to their prospects of obtaining long-term assignments,” Garbis wrote in his order.
Garbis pointed to Trump’s July 26 announcement via Twitter that he had decided to reimpose the ban on transgender troops lifted by Obama, which was followed by a formal memo Aug. 25.
The presidential memo prohibited the military from enlisting transgender people and from using funds to pay for gender transition-related surgery. It also gave Defense Secretary James Mattis six months to determine what to do with transgender troops who are currently serving.
The judge insisted the policy change was not motivated by genuine concerns about the military and amounted to an unconstitutional denial of due process rights.
“A capricious, arbitrary, and unqualified tweet of new policy does not trump the methodical and systematic review by military stakeholders qualified to understand the ramifications of policy changes,” Garbis wrote.
Judge removes Trump’s ‘weapon’
In the sanctuary cities case, Judge Orrick, a Democratic appointee, said the White House’s proposal to stop all federal grant money flowing to jurisdictions that refuse to cooperate with deportation officers is unconstitutional.
The judge, in lawsuits filed by San Francisco and Santa Clara County, said Trump’s broad declaration of war against sanctuary cities exceeds the president’s powers.
Trump’s order urged his administration to find ways to deny federal money to cities, counties and states that refused to provide information on illegal immigrants to U.S. Immigration and Customs Enforcement.
Orrick argued the Constitution grants such spending powers to Congress, not the president, “so the executive order cannot constitutionally place new conditions on federal funds.”
He noted that Trump called his executive order “a weapon” against cities that tried to impede his immigration policies.
The sanctuary city policy in San Francisco, which often even refuses to inform federal officials if a deportation target is being released, has been blamed for the death of Kate Steinle, who was murdered by an illegal immigrant who had been released by the city.