By Guy Page

As reported in the Sept. 27 State House Headliners, federal opposition to Vermont immigration policies has cost Vermont police an estimated $2.8 million in withheld drug-crime fighting U.S. Department of Justice grants.

State officials — including the office of Gov. Phil Scott — deny federal claims that Vermont is a “sanctuary” jurisdiction. Vermont officials have been negotiating with their federal counterparts and hope to resolve the disagreement and recoup the funds. But the U.S. Attorney General’s office won’t relent, and it controls the purse strings. Vermont seems likely to keep losing these annual grants unless one side or the other gives way, or a federal judge requires immediate action.

Guy Page is affiliated with the Vermont Energy Partnership, the Vermont Alliance for Ethical Healthcare, and Physicians, Families & Friends for a Better Vermont.

At issue is Vermont’s “fair and impartial” policing as it relates to immigration. According to a December 2017 statement on the website of Vermont Attorney General TJ Donovan, Vermont’s 2010 “fair and impartial policing” policy provides that “law enforcement will treat all persons living in, visiting, or traveling through Vermont, equally, regardless of race, ethnicity, immigration status, or other personal criteria” – a policy made law in 2016. As far as the state of Vermont is concerned, immigration status is the feds’ problem, not ours. So when Vermont police arrest or merely meet a suspected illegal (under U.S. law) immigrant, they typically don’t notify federal immigration authorities.

At present, the battle against Sessions’ “anti-sanctuary” order is being waged in the federal courts. Vermont has joined other states in offering “friend of the court” briefs to U.S. appeals courts considering cases won by cities in lower courts but appealed by the Department of Justice, Vermont Assistant Attorney General Julio Thompson told Headliners Nov. 1. Vermont and these states seek a win that will force the Trump administration to fork over money withheld in every so-called “sanctuary” jurisdiction.

The “friend of the court” briefs say that because Congress funded the grants, the administration cannot withhold the money without violating the Constitutional separation of powers. Cases brought in Chicago and Philadelphia district courts are now on appeal. Most recently, on Oct. 5, 2018, U.S. District Court Judge for Northern California William Orrick upheld the State of California’s right to defy the executive order, which he called “unconstitutional.”

As reported in The Hill, the Trump administration has lost about 20 such federal lower court cases. Yet it seems content to merely appeal and take its chances before the U.S. Supreme Court.

An affirmative Supreme Court decision could take months or even years – if it happens at all. Meanwhile, Vermont police face fighting heroin traffickers without millions of federal dollars it has relied on for this task. While it waits, Vermont can: 1) try to get Washington to change its mind, or 2) change its own mind and do what the Trump administration wants, or 3) hope for a new, more agreeable President or Attorney General.  None seem likely, at least not until (maybe) 2020.

AG Donovan is fighting federal immigration policies on other fronts. Vermont AG Donovan April 3, 2018 filed suit with 17 other state’s attorneys opposing the Trump administration’s plan to ask about immigration status in the 2020 U.S. Census. The AG’s website also mentions an immigration task force convened on March 3, 2017, but provides little more information about it.

In an ironic twist, Vermont’s “fair and impartial” policing also faces a funding problem. VT Digger reported Oct. 31 that the Criminal Justice Training Council lacks funding for fair and impartial policing training staff and that all state-mandated training must therefore be conducted online.

Judge Orrick – Boston College Law School 1979 graduate, legal aid lawyer, former assistant attorney general in the Obama administration Department of Justice before appointment to the federal court by Obama – seems to be a “go to” judge for California officials seeking relief from the executive order.

Before Oct. 5, he had ruled in several similar cases, each time ruling against Trump and Sessions.  His November, 2017 decision against the executive order was applauded by Sen. Patrick Leahy and Gov. Phil Scott as a victory for states’ rights.

This is the same judge who, after a pro-life group posted videos of “body parts for sale” conversations with National Abortion Federation officials, told them to remove the videos from You Tube and, when they resisted, held them in contempt of court.

Judge Orrick isn’t shy about his role in either sanctuary or fetal body parts cases. The home page on his U.S. District Court website has a prominently-featured box offering links to the sanctuary and abortion cases.

Some might say Orrick is the kind of judge the Federalist Society has in mind when it says that conservatives seeking justice don’t necessarily need better arguments or lawyers, or even better laws – they  needs better judges.

As of Oct.11, 2018 Pres. Trump had appointed 84 federal judges, including 53 district court judges.

Statehouse Headliners is intended primarily to educate, not advocate. It is e-mailed to an ever-growing list of interested Vermonters, public officials and media. Guy Page is affiliated with the Vermont Energy Partnership; the Vermont Alliance for Ethical Healthcare; and Physicians, Families and Friends for a Better Vermont.