This time last year, U.S. District Court Judge William Orrick was handing down an opinion on whether an endangered monkey could claim copyright over his own selfie.
Times have certainly changed for the former Justice Department attorney.
Orrick’s courtroom could soon be the source of another devastating blow to the Trump administration’s agenda if he grants a request this week for a preliminary injunction against the president’s Jan. 25 executive order on so-called sanctuary cities.
A hearing on the request from the city of San Francisco is set to take place April 5 and there’s no telling where the Obama appointee falls on the issue, despite having spent two years supervising the Justice Department’s Office of Immigration Litigation.
“Honestly, I have seen Judge Orrick rule both in favor of, and against the DOJ in different cases and so there is no way to know how he would rule for the government this time around,” said Leon Fresco, Orrick’s successor at the Justice Department and the lawyer who likely would have defended Trump’s travel ban before a three-judge panel last month had he not left the agency in January.
Fresco joined Holland & Knight’s Washington office as a partner this year and has been following the new administration’s legal troubles closely, including the case Orrick will hear on Wednesday.
The executive order in question denies funding to jurisdictions that shield illegal immigrants from deportation by refusing to comply with federal detention requests and immigration authorities. Anti-illegal immigration experts believe the policy would affect approximately 400 cities that have declared themselves havens for unauthorized immigrants.
“The American people are no longer going to have to be forced to subsidize this disregard for our laws,” White House spokesman Sean Spicer told reporters shortly after the executive order was signed.
But 34 cities and counties across the country have rejected that characterization, claiming in an amicus brief filed last month that Trump hopes to “coerce cities, counties and states into becoming de facto agents of the Executive Branch” by withholding the funds they need to operate.
Citing the Tenth Amendment, the cities and counties said the Trump administration is seeking to “usurp local police power and commandeer scarce city and country resources.” This violates the Constitution’s Due Process Clause and renders the executive order unlawful on its face, they claimed.
Similar arguments were made by Justice Department attorneys in 2010, when the Obama administration sued Arizona over its controversial immigration law known as SB 1070. The law made it illegal for cities in the Grand Canyon State to interfere with immigration enforcement and required that police officers attempt to determine the immigration status of persons stopped for other reasons if “reasonable suspicion exists that the person is … unlawfully present in the United States.”
Orrick was heavily involved in coordinating the Obama administration’s preemption argument in the Arizona case, telling the Senate Judiciary Committee in July 2012 that he “attended meetings where the impact of SB 1070 on the operations of DHS and law enforcement was discussed [and] where the preemption analysis of the lawyers working on this issue was discussed.
“When we evaluated the Arizona statute and developed pleadings in the district court … a material portion of my time was spent on that matter,” he added.
A key portion of the law — what became known as the “show me your papers” requirement — was eventually upheld by the Supreme Court, which rejected the government’s challenge by a 5-3 margin in the summer of 2012. Orrick had been nominated to serve on the Northern California District Court bench just two weeks before the high court handed down its decision.
Asked if the agency is concerned about Orrick presiding over San Francisco’s injunction request due to his previous involvement in a case against a law prohibiting sanctuary cities, a Justice Department spokeswoman declined to comment.
During his confirmation hearing, Orrick told the Senate panel that he would remove himself from “cases involving issues, policies or iniatives developed by the Obama administration” that he was directly or indirectly involved with while serving at the Justice Department.
Fresco described the situation as “foggy” when asked if Orrick is in the best position to evaluate the case against Trump’s order.
“In one way, if there’s a lawsuit about a Trump-era executive order then the record is confined to the Trump-era and he does not have to recuse himself,” Fresco explained. “But in the other way, because he was an employee of the DOJ Civil Division, and a lot of who would be litigating this were his colleagues and there was discussion of these matters while he worked there, then he would have to recuse himself.”
An aide to Orrick was unsure whether the judge had considered recusal.
“I do not know the mindset of Judge Orrick,” the aide said.
San Francisco became the first U.S. city to take legal action against Trump over his sanctuary city funding threat. The city could lose as much as $1.2 billion a year in funding from the federal government if the president’s order withstands legal scrutiny.
