The lawsuits bear some obvious similarities to the travel-ban litigations we have already seen, yet they also have marked differences. The key parallel is that the order being challenged appears to have been drafted in haste and with astonishingly little input from experts. The difference is that its constitutional flaws appear to be multilayered, fundamental, and unsalvageable. The second travel ban — after substantial revision by competent lawyers — is now defensible as written, and becomes vulnerable only if one considers its overtly anti-Muslim provenance. It may well pass muster before our majority-conservative Supreme Court, now that Judge Neil Gorsuch is officially seated.
The same cannot be said of the sanctuary-cities order, which appears to offend the principles of separation of powers, due process, and interpretations of both the Tenth Amendment (establishing that the federal government only has powers specifically delegated to it by the Constitution) and limits on Congress’s spending power that have been mainly championed by conservative justices — including President Trump’s own claimed judicial hero, Antonin Scalia.
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Finally, the whole design and thrust of the executive order appears calculated to scare and coerce cities and counties into enlisting as ICE’s deputies in Trump’s multifront war on immigrants. Such coercion looks like unconstitutional “commandeering,” and runs afoul of Justice Scalia’s admonition, in a 20-year-old precedent, that federal government may not “impress into its service— … at no cost to itself — the police officers of the 50 states.”
