Does Judge Orrick Think President Obama ‘Fundamentally Transformed’ Executive Orders?
William H. Orrick III is a Democrat campaign bundler and left-wing political activist. He has been known as “Judge Orrick” since 2013, when President Obama managed to get him on the federal bench -- with the assistance of Republicans Senators Jeff Flake (Arizona), Lisa Murkowski (Alaska), and Susan Collins (Maine). All other Republicans opposed Orrick’s nomination, except Bob Corker (Tennessee) who failed to vote.
It was as Judge Orrick that the San Francisco-based social justice warrior issued a 49-page decision this week. His decision purported to invalidate President Trump’s executive order (EO) on federal funding for “sanctuary” jurisdictions -- cities, counties and other municipal subdivisions that refuse to cooperate in federal immigration-law enforcement.
I say “purported” because Orrick’s screed is a ruling about nothing. The Trump Justice Department had argued that the EO did nothing to alter pre-existing law. Though Orrick tendentiously disputed this construction of the EO, he admitted that his opinion “does nothing more than implement” the Justice Department’s view. He further conceded that his ruling had no effect on the administration’s power to enforce conditions Congress has placed on federal funding (i.e., the very conditions Trump incorporated in the EO by telling his subordinates they could only act “to the extent consistent with law”). Meanwhile, the administration has not endeavored to strip any federal funding from any sanctuary jurisdictions.
So, in effect (or should we say, non-effect?), nothing has happened and nothing has changed. The ruling’s sole achievement is a fleeting star turn for its author. Actually, make that another star turn: In 2015, Judge Orrick thrilled the Democrat-media complex by carrying water for the National Abortion Federation, which wanted an injunction against a whistleblower’s release of videos showing Planned Parenthood officials selling baby parts -- oh, sorry, I mean “fetal tissue.”
The ruling is instructive, though, as a measure of how politicized the judiciary has become. Consider the matter of executive orders.
Orrick’s opinion includes the following remarkable passage (at p. 16):
Government counsel explained that the [Executive] Order is an example of the President’s use of the bully pulpit and, even if read narrowly to have no legal effect, serves the purpose of highlighting the President’s focus on immigration enforcement. While the President is entitled to highlight his policy priorities, an Executive Order carries the force of law. Adopting the Government’s proposed reading would transform an Order that purports to create real legal obligations into a mere policy statement[.] [Emphasis added.]
Can it be that, after eight years of Obama’s usurpation of legislative power, judges have forgotten what proper executive orders are?
Contrary to Obama’s practice and Orrick’s apparent belief, executive orders do not carry the force of law -- at least not presumptively. They are supposed to be policy statements that give presidential guidance to subordinate executive officials. That is because the president has no unilateral authority to decree law -- it is for Congress to write the laws; the executive branch just enforces them.