Two Sides of President Trump and the Rule of Law

This article was submitted by the distinguished judge John H. Wilson (retired)

In previous columns, I have discussed the efforts made by the Trump Administration to put in place non-activist judges, ones who would respect the Constitution as the basis for federal law, and not automatically rule in favor of the latest left-wing movement. Happily, those efforts have begun to bear strong and healthy fruit.

At the same time, President Trump is not afraid to make use of the Courts for his own purposes.

Besides California, New York State has been a leader across the nation in the establishment of “Sanctuary City” policies. At the end of 2019, the “Green Light Law” took effect, which “allows all New Yorkers age 16 and older to apply for a standard, not for federal purpose, non-commercial driver license or learner permit regardless of their citizenship or lawful status in the United States.” According to USA Today, the law also “included a provision prohibiting state DMV officials from providing any of its data to entities that enforce immigration law unless a judge orders them to, leading the state to cut off database access to at least three federal agencies last week, (including)…U.S. Customs and Border Protection, or CBP…and U.S. Immigration and Customs Enforcement, or ICE.”

The only people surprised by the response of the Department of Homeland Security were the Governor and other political leaders of New York State. Quoting USA Today once more, “the Department of Homeland Security announced it would block New York residents from applying for, or renewing membership in programs that expedite international travel…The programs include Global Entry, which expedites entry into the U.S. from international destinations; NEXUS, which speeds entry to the U.S. from Canada; SENTRI, which covers entry to the U.S. from Canada and Mexico; and FAST, a program for truck drivers crossing into Canada or Mexico.”

Rather than rescind a law that clearly violates federal immigration law and provides a form of legal status to persons who have entered the country illegally, New York chose to double down, and file litigation against the Department of Homeland Security. In February, NY Attorney General Letitia James brought a complaint in the Southern District of New York, claiming that “singling out one state for coercion and retribution as a means to compel conformity with preferred federal policies is unconstitutional.” Naturally, the lawsuit skirts over New York State’s own illegal and unconstitutional effort to circumvent federal immigration law.

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In 2017, the Trump Administration declared that it would withhold federal law enforcement grants from cities and states that did not cooperate with federal attempts to enforce immigration law. In response, seven states and the City of New York sued in the Southern District of New York, claiming the federal government had no right to withhold these funds.

The lower court had granted the request of the Sanctuary States, and ruled that the Trump Administration could not withhold these funds, a ruling consistent with the rulings of three other federal appeals courts – Chicago (7^th Circuit), Philadelphia (3^rd Circuit), and San Francisco (9^th Circuit). However, in a unanimous opinion authored by Judge Reena Raggi, the Second Circuit reestablished the rule of law.

In clear and unmistakable language, Judge Raggi wrote “as the Supreme Court has repeatedly observed, in the realm of immigration policy, it is the federal government that maintains ‘broad’ and ‘preeminent’ power…at the same time that the Supreme Court has acknowledged States’ ‘understandable frustrations with the problems caused by illegal immigration,’ it has made clear that a ‘State may not pursue policies that undermine federal law.’ As Chief Justice John Marshall wrote over 200 years ago, ‘the states have no power by taxation or otherwise, to retard, impede, burden, or in any manner control the operations of the constitutional laws enacted by congress to carry into execution the powers vested in the general government.’ This fundamental principal, a bedrock of our federalism, is no less applicable today. Indeed, it pertains with particular force when, as here, Congress acts pursuant to its power under the Spending Clause.” (Citations omitted)

Naturally, the usual complaints were made about the Second Circuit’s ruling. As quoted by the Associated Press, Cody Wofsy, a staff Attorney with the ACLU, stood the legal standard quoted by the Court on its head, and claimed that “under the Constitution’s federalism principles and the 10th Amendment…states and municipalities ‘are entitled to decline to become part of the administration’s deportation force,’” while Mayor Bill DeBlasio moaned that the President’s “latest retaliation against his hometown takes away security funding from the number one terrorist target in America — all because we refuse to play by his arbitrary rules.”

Considering the split between the Circuit courts, the issue will need to be decided by the US Supreme Court. But it does not take a crystal ball, or a time machine, to know that the odds of the Supreme Court supporting its own stated principals is extremely high, and that the Second Circuit ruling will be upheld.

The Report concludes tomorrow

Photo: U.S. Supreme Court courtroom (Supreme Court)

Quick Analysis

Ukraine’s Frozen Conflict

As we approach winter in the northern hemisphere, the war in Ukraine is beginning to resemble a “frozen conflict” from many perspectives. Ukrainian President Volodymyr Zelensky recently told the media he hopes the war will end faster once President-elect Trump takes over in January. Opinions in Moscow, however, differ from that of the Ukrainian leader. Russian President Vladimir Putin argues that the North Atlantic Treaty Organization (NATO) needs to exclude Ukraine from joining in “exchange” for peace. If it does not, he says, then no end to the war is in sight. So far there is no Christmas solution. Several NATO countries, according to Vladimir Socor of the Jamestown Foundation, are tentatively considering “coalitions-of-the-willing” to provide security for Ukraine outside of the formal NATO framework. There is, however, no collective mechanism today under which such an arrangement is viable. According to the NATO Charter, while Ukraine is a NATO partner country, it may not join as a full member since it has not fulfilled the requirements for membership. That has not stopped NATO and allies from continuing “to provide Ukraine with unprecedented levels of support, helping to uphold its fundamental right to self-defence,” according to the organization. Socor says that keeping Ukraine out of NATO will not advance peace with Russia. Waiting for a peace settlement, he suggests, would only serve to encourage Moscow to continue the war indefinitely. Although the Biden Administration officially withdrew its support for Ukrainian membership in 2021, NATO maintains an “open door” policy toward membership-seeking countries. The current White House position led the way for European states to oppose Ukraine’s membership saying that a decision should be delayed until “conditions are met.” Biden pushed for changing “open door” to a “bridge” metaphor. It is not intended as an across-the-board NATO policy and has been implemented in the past on a case-by-case basis, says Socor. “The alliance’s open-door policy was not fully insulated from Russia’s non-statutory blocking power, and NATO-aspirant countries’ path toward membership was not always irreversible.” Russia has successfully blocked states like Georgia from joining, first in 2008 and again after the war in Ukraine began in 2014. Russia recognizes the value add of Ukraine to NATO is enormous and that Kyiv has a better case than some other nations. Putin’s invasion was, in part, intended to foreclose that option. By 2021, Moscow was pushing hard to maximize its war objectives, which included further annexations of Ukrainian territory. A main goal for Putin was, and is, to ensure there is no Ukraine left to join NATO. As President-elect Trump prepares to assume office in January, he is faced with the historical challenges presented by the war. Post-conflict security guarantees were the center of several proposals made during the 2023 military stalemate. The incoming Trump Administration has yet to outline how it intends to handle the Russia-Ukraine war. Analysts in Washington believe that the new Administration will expect its European allies to guarantee the majority of Ukraine’s security needs. As we approach 2025, several European nations have acknowledged that they do not view Ukraine as eligible for NATO membership as it would draw the organization into the middle of the conflict. Others want to wait until the war is over or pending a “peace” settlement before considering Ukrainian membership. Socor reports that some “influential voices” are suggesting that “Kyiv should join NATO after “freezing” the war along a stable armistice line, de facto accepting Ukraine’s partition, with NATO security guarantees applying de jure to the government-controlled territory only.” This would mean starting accession talks soon with the actual talks to commence only after a ceasefire is in place. Trump arrives in Washington at a time when Putin’s hybrid strategies of war in Ukraine have eviscerated commonly-held differences between war and peace. “Absent a political consensus in NATO over Ukrainian membership, certain European allies, including France’s President Emmanuel Macron, are holding informal consultations about post-conflict security guarantees to Kyiv by NATO members outside of NATO’s framework,” according to the Jamestown Foundation. The Biden Administration downplayed the discussions on possible forms of military assistance and defense industry cooperation by sending only an Assistant Secretary of State. For a European peace to hold the Trump Administration would need to formally extend the United States’ nuclear deterrence to Ukraine. Options under discussion in Europe include a “coalition of the resolute” to deploy forces to Ukraine as part of a possible armistice package, deterring further Russian attacks, says Secor. European officials are also debating, without any agreement, whether its military forces could perform non-combat logistical roles to free Ukrainian forces to fight. None of the possible courses of action has moved forward as all eyes are waiting on the incoming Trump Administration for clues about its intended level of support for a NATO framework and other non-NATO proposals. Daria Novak served in the U.S. State Dept.