Monday, October 9, 2017
The second Monday in October is designated as Columbus Day, the day that Italian mariner Christopher Columbus allegedly first saw the "New World," but is increasingly commemorated as Indigenous Peoples Day, recognizing that Native Americans did not necessarily benefit from European colonization.
A good read is Oneida Nation scholar Doug Kiel's article, Bleeding Out: Histories and Legacies of Indian Blood ” in The Great Vanishing Act: Blood Quantum and the Future of Native Nations (2017). Kiel writes of the European preoccupation with "blood" as a source of identity - - - and white supremacy - - - tracing it to the Spanish Inquisition and anxieties about"Christian blood" being contaminated by Jewish and Muslim blood. Moreover, he contrasts Native racial status to the "one-drop rule” of "African American hypodescent, according to which individuals of mixed ancestry only inherit the status of their black kin, with “African blood” polluting all other types of 'blood.'" On the other hand, “white blood” has the capacity to fully absorb “Indian blood" according to early cases, as well as more recent ones. For example, Kiel notes that Justice Alito's opinion for the Court in Adoptive Couple v. Baby Girl (the "Baby Veronica" case), begins by describing the blood quantum of the child: " (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee." Other possibilities for identity, including nationality and culture, are flattened.
The erasure of Native identity is one argument against the celebration of Columbus Day. Last year, in the Presidential Proclamation for Columbus Day, then-President Obama expressed recognition for the rationales of Indigenous People's Day:
As we mark this rich history, we must also acknowledge the pain and suffering reflected in the stories of Native Americans who had long resided on this land prior to the arrival of European newcomers. The past we share is marked by too many broken promises, as well as violence, deprivation, and disease. It is a history that we must recognize as we seek to build a brighter future -- side by side and with cooperation and mutual respect. We have made great progress together in recent years, and we will keep striving to maintain strong nation-to-nation relationships, strengthen tribal sovereignty, and help all our communities thrive.
In the Presidential Proclamation for Columbus Day this year, current-President Trump does not acknowledge Native or Indigenous peoples.
image: "My World is Not Flat,"
Wednesday, September 27, 2017
In its opinion in Doe v. University of Cincinnati, a Sixth Circuit panel affirmed a district judge's grant of a preliminary injunction against the university suspension of student John Doe. The university suspended graduate student John Doe after a finding of a sexual offense in a Title IX hearing at which the complaintant did not appear.
Using the well-established criteria for procedural due process claims, Judge Richard Griffin's relatively succinct opinion found that the risk of erroneous deprivation of Doe's acknowledged interest was great. Doe claimed that his inability to cross-examine the complaintant in a context in which the basic issue was one of credibility - - - a choice of believing Doe's assertion that the sex was consensual and Jane Roe's complaint that it was not consensual - - - was a fundamental flaw. The court agreed, even though the university had no ability to compel Jane Roe's appearance. The court also found the time lapse troubling: the university waited a month after the complaint to interview Jane Roe, four months after that to notify John Doe, and four months after that to hold the hearing.
The court did consider the potential for "emotional trauma" to Jane Roe, but concluded that when there is an issue of credibility, there must be a mutual test of credibility as part of the process "where the stakes are this high." The court did seek to qualify its rationale as not requiring John Doe be allowed to cross-examine Jane Roe during the hearing:
However, we emphasize that UC’s obligations here are narrow: it must provide a means for the ARC [the university’s Administrative Review Committee] panel to evaluate an alleged victim’s credibility, not for the accused to physically confront his accuser.
The University has procedures in place to accommodate this requirement. A month before the ARC hearing, Mitchell informed Doe and Roe that they could “participate via Skype . . . if they could not attend the hearing.” Doe did not object to Roe’s participation by Skype, and he does not object to this practice on appeal. To the contrary, the record suggests that he or one or more of the ARC panelists in fact appeared at the hearing via Skype. What matters for credibility purposes is the ARC panel’s ability to assess the demeanor of both the accused and his accuser. Indisputably, demeanor can be assessed by the trier of fact without physical presence, especially when facilitated by modern technology.
The court's opinion added that it was "sensitive" to the "competing concerns" of the case: the goal of reducing sexual assault is more than laudable, it is necessary; but the elimination of "basic procedural protections" may not be a "fair price" to achieve that goal.
These "competing concerns" are likewise the subject of debate as controversial Secretary of Education Betsy De Vos has acted to rescind the previous guidelines for educational institutions dealing with sexual assault based in part on the perceived "deprivation of rights" for accused students. While the new memo does not mandate cross-examination (unless it is provided to one party and then must be provided to both), no doubt the Sixth Circuit's opinion in Doe v. University of Cincinnati will be used to bolster Secretary de Vos's decision.
Monday, September 11, 2017
Recall that last week, fifteen states and the District of Columbia filed New York v. Trump challenging the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood. The rescission was promised by President Trump, announced by Attorney General Jefferson Sessions, now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky.
Today, several other states - - - California, Maine, Maryland, and Minnesota - - - filed a complaint in the Northern District of California, California v. Department of Homeland Security, also challenging the DACA rescission making similar but not identical arguments. In the California challenge, equal protection is the sixth of the six counts, with no mention of anti-Mexican animus in the allegations. Instead, the equal protection claim contends that "rescission of DACA violates fundamental conceptions of justice by depriving DACA grantees, as a class, of their substantial interests in pursuing a livelihood to support themselves and fu1ther their education."
However, like New York v. Trump, the California complaint includes a challenge based on the Fifth Amendment's Due Process Clause, contending in its first cause of action that:
Given the federal government's representations about the allowable uses of information provided by DACA applicants, Defendants' change in policy on when to allow the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non- citizens, is fundamentally unfair.
This "informational use" due process claim is buttressed by the California complaint's fifth cause of action sounding in equitable estoppel, a claim not made in the New York complaint. Claims similar to the New York complaint include violations of the Administrative Procedure Act and the Regulatory Flexibility Act. Factual allegations supporting these causes of action include references to the President's tweets as advancing rationales for the rescission that are absent or contrary to the Homeland Security memorandum, thus making the rescission arbitrary and capricious.
Additionally, last week in a separate complaint in Regents of the University of California v. Department Homeland Security, also filed in the Northern District of California, another challenge to the DACA rescission was filed by named plaintiff, Janet Napolitano, now Chancellor of the University of California, but also former Secretary of the Department of Homeland Security. In the University of California (UC) complaint, there is no equal protection claim, and the due process claim is third of three claims for relief and sounds in procedural due process:
¶69. The University has constitutionally-protected interests in the multiple educational benefits that flow from a diverse student body. Thousands of DACA students have earned prized places as undergraduate and graduate students at the University of California through their record of high— even extraordinary—personal achievement in high school and college. In reliance on DACA, the University has chosen to make scarce enrollment space available to these students and to invest in them substantial time, financial aid, research dollars, housing benefits, and other resources, on the expectation that these students will complete their course of study and become productive members of the communities in which the University operates, and other communities throughout the nation. If these students leave the University before completing their education, UC will lose the benefits it derives from their contributions, as well as the value of the time and money it invested in these students with the expectation that they would be allowed to graduate and apply their talents in the United States job market.
¶70. UC students who are DACA recipients also have constitutionally-protected interests in their DACA status and the benefits that come from that status, including the ability to work, to pursue opportunities in higher education, to more readily obtain driver’s licenses and access lines of credit, to obtain jobs, and to access certain Social Security and Medicare benefits.
¶71. The Rescission and actions taken by Defendants to rescind DACA unlawfully deprive the University and its students of these and other constitutionally-protected interests without due process of law. Such deprivation occurred with no notice or opportunity to be heard.
The other two causes of action in the UC complaint are based on the Administrative Procedure Act, with the first claim for relief contending the rescission is "arbitrary and capricious" and the second cause of action objecting to lack of notice and comment. However, the "arbitrary and capricious" claim for relief does include a reference to the Fifth Amendment:"The Rescission and actions taken by Defendants to rescind DACA are arbitrary and capricious, an abuse of discretion, and not in accordance with law because, among other things, they are contrary to the constitutional protections of the Fifth Amendment."
It may be that even more constitutional and statutory challenges to DACA are forthcoming as protests against the rescission continue.
[image: DACA Rescission Protest at Trump Tower, NYC, September 2017, photo by via]
Wednesday, September 6, 2017
In a Complaint filed today in the Eastern District of New York in New York v. Trump, fifteen states and the District of Columbia have challenged the rescission of DACA, the Deferred Action for Childhood Arrivals program, covering 800,000 people in the United States who are not citizens but who have been residents since childhood. The rescission was promised by President Trump, announced by Attorney General Jefferson Sessions, and is now in a Memorandum from the Department of Homeland Security, although some of the details of the rescission remain murky. The complaint describes the rescission as "animus-driven."
The first two causes of action of the five total causes of action in the 58 page Complaint allege constitutional infirmities.
The first cause of action is based on the Equal Protection component of the Due Process Clause of the Fifth Amendment, and alleges that the rescission targets individuals based on their national origin and is based, at least in part, by the desire to harm a particular group. Paragraphs 239-252 detail the statements by Trump, both as a candidate and as President, expressing anti-Mexican sentiments. Part of these allegations include the controversial pardon of former Maricopa County, Arizona Sheriff Joe Arpaio. As for the timing of the rescission, the complaint also contains allegations regarding Texas, alleging that a "demand that President Trump eliminate DACA is part of a history of intentional discrimination against Latinos/Hispanics by the State of Texas" (¶256) and then detailing federal court findings that Texas has been found liable for "engaging in unlawful discrimination based on race and/or national origin." Among the cases cited is the recent Perez v. Abbott concerning redistricting.
The second cause of action sounds in Due Process, arguing a breach of "fundamental fairness" relating to information use. Specifically, ¶278 avers:
Given the federal government’s representations about the allowable uses of information provided by DACA applicants, a refusal to prohibit the use of information contained in DACA applications and renewal requests for purposes of immigration enforcement, including identifying, apprehending, detaining, or deporting non-citizens, is fundamentally unfair.
Two other causes of action relate to the Administrative Procedure Act - - - arbitrary and capricious action and failure to follow notice and comment - - - while the final cause of action is based on the Regulatory Flexibility Act, requiring federal agencies to "analyze the impact of rules they promulgate on small entities and publish initial and final versions of those analyses for comment."
The extensive allegations in the complaint by individual states include statements regarding each state's harm if DACA were rescinded in an effort to establish each state's standing. In addition to New York, the plaintiffs are Massachusetts, Washington, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia. Generally, the allegations pertaining to each states detail the effect on their state colleges and universities, state companies, and state economies.
The complaint is a serious challenge to the DACA rescission and in some ways is similar to the ongoing state challenges to the so-called Muslim travel ban, another highly controversial Trump administration action still in litigation.
UPDATE: Additional complaints discussed here.
Tuesday, August 29, 2017
In an exceedingly brief Order signed only by Associate Justice Samuel Alito, the United States Supreme Court in Abbott v. Perez, stated:
UPON CONSIDERATION of the application of counsel for the applicants,
IT IS ORDERED that the order of the United States District Court for the Western District of Texas, case No. SA-11-CV-360, entered August 15, 2017, is hereby stayed pending receipt of a response, due on or before Tuesday, September 5, 2017, by 3 p.m., and further order of the undersigned or of the Court.
Recall that the three-judge court, after an extensive opinion, ultimately directed the Texas Attorney General to provide a "written advisory within three business days stating whether the Legislature intends to take up redistricting in an effort to cure these violations and, if so, when the matter will be considered."
As we discussed, the extensive opinion by the three judge court found constitutional violations, including intentional discrimination, but also rejected several of the challengers' claims.
[image: Caricature of Associate Justice Alito by Donkey Hotey via ]
Monday, August 28, 2017
Late Friday August 25, President Trump issued a Memorandum for the Secretary of Defense and Secretary of Homeland Security through the Office of the Press Secretary directing the halt of accession of transgender individuals into the military and the halt of all resources "to fund sex-reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex." By Monday, there were at least three lawsuits challenging the action on constitutional grounds.
A month before, Trump had tweeted his thoughts regarding transgender individuals in the military, reportedly taking military officials by surprise.
Soon after the tweets, the complaint in Doe v. Trump was filed by lawyers for the National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates and Defenders (GLAD) in the District Court for the District of Columbia, challenging any military action on the basis of a violation of equal protection, due process, and a nonconstitutional argument of equitable estoppel.
This complaint is now joined by two others: The complaint in Stone v. Trump was filed by lawyers for the ACLU in the United States District Court for the District of Maryland, challenging the 3 policies of the military ban - - - existing troops, enlistment of new troops, and medical care - - - as well as the policies taken as a whole. Again, the two constitutional issues are equal protection and due process. The complaint in Karnoski v. Trump was filed by lawyers for Lambda Legal Defense and Education Fund in the United States District Court for the Western District of Washington, challenging the policy on the basis of equal protection, due process, as well as the First Amendment's free speech clause.
On the core challenge of equal protection - - - as applied to the federal government through the Fifth Amendment - - - the complaints vary in their detail and possible theories. In Doe, the NCLR and GLAD complaint, paragraph 71 reads: "The categorical exclusion of transgender people from military service lacks a rational basis, is arbitrary, and cannot be justified by sufficient federal interests." In Stone, the ACLU complaint, paragraph 140 contends that transgender classifications should be treated as sex classifications, deserving heightened scrutiny, and additionally in the next paragraph that transgender status itself warrants heightened scrutiny because "men and women who are transgender, as a class" have historically been subject to discrimination, have a defining characteristic that frequently bears no relation to an ability to contribute to society, exhibit immutable or distinguishing characteristics that define them as a discrete group, and are a minority with relatively little political power. In Karnoski, the complaint contends that in addition to sex-discrimination, discrimination on the basis of transgender status "bears all the indicia of a suspect classification requiring strict scrutiny by the courts," enumerating similar criteria including history of discrimination, discrete and insular minority, no relation to ability to contribute to society, and arguing the characteristic sometimes expressed as immutability in stating that "gender identity is a core, defining trait" so "fundamental to one's identity and conscience that a person should not be required to abandon it as a condition of equal treatment."
However, whatever standard of scrutiny is applied, all the complaints contend that there is not a sufficient government interest in the policy - - - an argument that may well lead into judicial inquiry into Trump's unorthodox announcement on Twitter as well as any details of thoughtful decision-making.
While there has been some reporting that military officials have discretion in implementing Trump's directives, professors of military law have issued a worth-reading policy statement that the discretion is quite limited; they also argue that the directives are discriminatory and based on inaccuracies.
This litigation is certain to accelerate. Expect more action from the NCLR and GLAD action filed before the Friday policy announcement and requests for preliminary relief.
Thursday, July 27, 2017
In a well reasoned opinion in Davison v. Loudon County Board of Supervisors, United States District Judge James Cacheris of the Eastern District of Virginia found that a politician who reacted to a constituent's comment on her "official" Facebook post by deleting his comment and banning him from her Facebook page violated the First Amendment.
Phyllis Randall, Chair of the Loudon County Board of Supervisors, maintained a Facebook page, entitled "Chair Phyllis J. Randall." She generally "uses the Facebook page to share information of interest with the County she serves," and Judge Cacheris provided several examples of the types of postings - - - precisely the type of postings one would expect - - - relating to proclamations such as "Loudon Small Business Week" and photographs of herself at conferences or other events.
As a threshold matter, Judge Cacheris determined that there was state action. This state action, however, could not be attributed to the defendant County Board of Supervisors, but only as to Phyllis Randall. Although the Facebook page was not the "property" of the county and would not revert to it when Randall left office, Randall "used it as a tool of governance." The judge found that Randall used the page to communicate with her constituents and the page reflects her efforts to "swathe" it with "the trappings of her office." Further, there were other government employees who assisted with the page. Moreover, the specific act of banning the constituent Davison arose out of public rather than private circumstances. Davison had apparently complained about the corruption of Randall's colleagues on the Board (the actual post, having been deleted by Randall, was not before the judge).
Judge Cacheris referenced two of the Supreme Court's decisions last Term - - - Packingham v. North Carolina opinion, noting that Facebook had become a vital platform for speech and the exchange of ideas, and Matal v. Tam, noting that if anything is clear, "it is that speech may not be disfavored by the government simply because it offends." The judge held that it was unnecessary to decide what type of "forum" under the First Amendment the Facebook page might be, given that under no forum is viewpoint discrimination permissible. Here, the judge held, Randall clearly banned Davison because of the opinion he expressed. There was no neutral policy (such as a ban on profanity) which was being neutrally applied.
The judge observed that Davison was banned only for a short time - - - Randall retracted her ban the next morning - - - and that during this time, Davison had adequate means to communicate his message through other avenues. Nevertheless, the judge stated that
Indeed, the suppression of critical commentary regarding elected officials is the quintessential form of viewpoint discrimination against which the First Amendment guards. By prohibiting Plaintiff from participating in her online forum because she took offense at his claim that her colleagues in the County government had acted unethically, Defendant committed a cardinal sin under the First Amendment.
The judge issued a declaratory judgment in favor of Davison, who represented himself pro se, on the First Amendment claim, although the judge rejected a procedural due process claim that Davison had also advanced.
This case should serve as a wake-up call for politicians who use their "official" Facebook pages in ways that may violate the First Amendment. The case may also be a harbinger of decisions to come in the ongoing litigation challenging the President's practice of "blocking" people on Twitter.
[image by Matt Shirk via]
Friday, July 21, 2017
Given recent reporting that raises the specter of a Presidential self-pardon, a few sources are worth considering.
First, there is the Constitutional text itself, which is not surprisingly inconclusive on this issue. Article II §2 begins by declaring that the President "shall be commander in chief of the Army and Navy of the United States" and ends by stating "and he shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment." What's clear is the exclusion of impeachment. What's unclear is whether this power would extend to a self-pardon.
Second, although there has never been a case of Presidential self-pardon in the United States, the possibility was contemplated with regards to President Richard Nixon. An Office of Legal Counsel Opinion, Memorandum Opinion for the Deputy Attorney General, offered a succinct answer to the "question whether the President can pardon himself":
Under the fundamental rule that no one may be a judge in his own case, it would seem that the question should be answered in the negative.
The Memo does raise several other possibilities, including one under the 25th Amendment involving the Vice-President, as well as the legislative actions. The Memo, by Mary Lawton, was dated August 5, 1974; Nixon resigned a few days later. A month later, President Gerald Ford issued a Proclamation with a full pardon to Nixon.
Third, a 1996 law review note article by now-Professor Brian Kalt of Michigan State University College of Law, Pardon Me?: The Constitutional Case Against Presidential Self-Pardons, springboards from the possibility that President George Bush, who had pardoned several people implicated in the Iran-Contra controversy would also pardon himself as he left office. Kalt concludes that "the intent of the Framers, the words and themes of the Constitution they created, and the wisdom of the judges that have interpreted it all point to the same conclusion: Presidents cannot pardon themselves."
The bedrock principle that "no one can be a judge in his own case" is the foundation of the Kalt article and its sources as well as the OLC memo, as well as providing a rationale for even the possibility not being excluded in the Constitutional text.
Monday, June 26, 2017
In a per curiam opinion in the so-called "travel ban" or "Muslim ban" cases, Trump v. International Refugee Assistance Project and Trump v. Hawai'i, the Court has granted the federal government's petitions for certiorari and granted the stay applications in part. The Fourth Circuit en banc and the Ninth Circuit had both found that the challengers to the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), known as EO-2.
Recall that the Fourth Circuit en banc in Trump v. International Refugee Assistance Project affirmed the injunction against EO-2 based on the Establishment Clause. As the Supreme Court's opinion phrases it, the Fourth Circuit
majority concluded that the primary purpose of §2(c) was religious, in violation of the First Amendment: A reasonable observer familiar with all the circumstances—including the predominantly Muslim character of the designated countries and statements made by President Trump during his Presidential campaign—would conclude that §2(c) was motivated principally by a desire to exclude Muslims from the United States, not by considerations relating to national security. Having reached this conclusion, the court upheld the preliminary injunction prohibiting enforcement of §2(c) [of EO-2] against any foreign national seeking to enter this country.
Recall also that the Ninth Circuit unanimous panel similarly affirmed a district judge's injunction against EO-2, but on the grounds that EO-2 likely exceeded the president's statutory authority, thus only implicitly reaching the constitutional issue.
In today's opinion from the Court, the Court granted the petitions for certiorari in both cases, consolidated the cases, and set them for the October 2017 Term, as well as directing briefing on the issues of mootness.
Importantly, the Court narrowed the injunctive relief imposed by the appellate courts. As to §2(c) of EO-2, which suspended entry in the United States, the Court found the injunction balanced the equities incorrectly as to "foreign nationals abroad who have no connection to the United States at all." Thus, "§2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2."
Similarly, as to §6(b) refugee cap enjoined by the Ninth Circuit, the Court found that refugees who lack connection to the United States should not be covered. However, EO §6 "may not be enforced against an individual seeking admission as a refugee who can credibly claim a bona fide relationship" with the United States.
In discussing §2(c), the Court provided examples of the narrowed injunction:
The facts of these cases illustrate the sort of relationship that qualifies. For individuals, a close familial relation- ship is required. A foreign national who wishes to enter the United States to live with or visit a family member, like Doe’s wife or Dr. Elshikh’s mother-in-law, clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admit- ted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship sim- ply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.
The Court's decision may give both "sides" a basis for claiming victory, but of course the decision is a temporary one and awaits a full decision on the merits.
June 26, 2017 in Cases and Case Materials, Courts and Judging, Current Affairs, Establishment Clause, Executive Authority, First Amendment, Mootness, Opinion Analysis, Supreme Court (US) | Permalink | Comments (1)
Thursday, May 25, 2017
In its opinion in International Refugee Assistance Project (IRAP) v. Trump, heard by the en banc court without an intervening panel decision, the court affirmed in almost every respect Maryland District Judge Theodore Chuang's Opinion and nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0." The court heard oral argument on May 8.
The court's opinion finding that the plaintiffs have standing and that the plaintiffs are likely to succeed on the merits of their Establishment Clause challenge to the Executive Order was authored by Chief Judge Roger Gregory with six other judges joining in full in the almost 80 page opinion. Additional opinions bring the total opinion pages to over 200: three other judges concurred in separate opinions; Three judges dissented in separate opinions (with the dissenters joining each of the dissenting opinions). Recall that two other judges recused.
On the merits of the Establishment Clause claim as applied to an Executive Order involving immigration, Judge Gregory's opinion for the court agreed with the United States that the deferential standard in Kleindienst v. Mandel (1972) is the appropriate starting point but disagreed with the government that it ended the inquiry. Instead, "Mandel's requirement that an immigration action be 'bona fide' may in some instances compel more searching judicial review." The court found that while the national security interest was facially legitimate, the plaintiffs made a requisite showing that it was provided in "bad faith."
Plaintiffs point to ample evidence that national security is not the true reason for EO-2, including, among other things, then-candidate Trump’s numerous campaign statements expressing animus towards the Islamic faith; his proposal to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this ban by targeting “territories” instead of Muslims directly; the issuance of EO-1, which targeted certain majority-Muslim nations and included a preference for religious minorities; an advisor’s statement that the President had asked him to find a way to ban Muslims in a legal way; and the issuance of EO-2, which resembles EO-1 and which President Trump and his advisors described as having the same policy goals as EO-1. [citations to record omitted]. Plaintiffs also point to the comparably weak evidence that EO-2 is meant to address national security interests, including the exclusion of national security agencies from the decisionmaking process, the post hoc nature of the national security rationale, and evidence from DHS that EO-2 would not operate to diminish the threat of potential terrorist activity.
Having cleared the hurdle of Mandel, the court then considered the application of the Establishment Clause test articulated in Lemon v. Kurtzman, noting that "in the context of this case, there is an obvious symmetry between Mandel's "bona fide" prong and the constitutional inquiry establishment in Lemon. Both tests ask courts to evaluate the government's purpose for acting."
Thus, Judge Gregory's opinion analyzed some of the same material regarding the EO's bona fide quality to determine whether the EO had a primary secular government purpose as required under Lemon's first prong. But the analysis the court conducted under Lemon was much more detailed. The court relied upon McCreary County v. ACLU of Kentucky (2005), in which the United States Supreme Court concluded that a judge's initial removal of his posting of the Ten Commandments in the courthouse was not cured by his subsequent posting of the biblical text surrounded by other texts. In McCreary, the Court articulated the correct viewpoint as the "reasonable objective observer" who should take into account the traditional external signs but should not perform judicial psychoanalysis.
It is this portion of the opinion (Part IVA2; pages 54-70 in text) regarding the purpose of EO-2 that is central. The court finds there is a "compelling case" that EO-2's "primary purpose is religious." It begins by discussing the candidate's campaign statements, later rejecting the argument that these statements should be subject to a "bright-line rule" that they should not be considered. Instead, the court states that the "campaign statements here are probative of purpose because they are closely related in time, attributable to the primary decisionmaker, and specific and easily connected to the challenged action."
Just as the reasonable observer’s “world is not made brand new every morning,” McCreary, nor are we able to awake without the vivid memory of these statements. We cannot shut our eyes to such evidence when it stares us in the face, for “there’s none so blind as they that won’t see.” Jonathan Swift, Polite Conversation 174 (Chiswick Press ed., 1892). If and when future courts are confronted with campaign or other statements proffered as evidence of governmental purpose, those courts must similarly determine, on a case-by-case basis, whether such statements are probative evidence of governmental purpose. Our holding today neither limits nor expands their review.
Moreover, the court considered the by now familiar statements by spokespeople: advisor and former mayor Rudolph Guiliani on EO-1; Senior Policy Advisor Miller and White House Press Secretary Spicer on EO-2. The court further found that the government's argument that EO-2's primary purpose was national security rather than religious
is belied by evidence in the record that President Trump issued the First Executive Order without consulting the relevant national security agencies, J.A. 397, and that those agencies only offered a national security rationale after EO-1 was enjoined. Furthermore, internal reports from DHS contradict this national security rationale, with one report stating that “most foreign-born, US-based violent extremists likely radicalized several years after their entry to the United States, limiting the ability of screening and vetting officials to prevent their entry because of national security concerns.” According to former National Security Officials, Section 2(c) serves “no legitimate national security purpose,” given that “not a single American has died in a terrorist attack on U.S. soil at the hands of citizens of these six nations in the last forty years” and that there is no evidence of any new security risks emanating from these countries. Corrected Brief for Former National Security Officials as Amici Curiae Supporting Appellees 5–8, ECF No. 126-1. Like the district court, we think this strong evidence that any national security justification for EO-2 was secondary to its primary religious purpose and was offered as more of a “litigating position” than as the actual purpose of EO-2. See McCreary, 545 U.S. at 871 (describing the government’s “new statements of purpose . . . as a litigating position” where they were offered to explain the third iteration of a previously enjoined religious display). And EO-2’s text does little to bolster any national security rationale: the only examples it provides of immigrants born abroad and convicted of terrorism-related crimes in the United States include two Iraqis—Iraq is not a designated country in EO-2—and a Somalian refugee who entered the United States as a child and was radicalized here as an adult. EO-2, § 1(h). The Government’s asserted national security purpose is therefore no more convincing as applied to EO-2 than it was to EO-1.
In short, the court found that EO-2 cannot be divorced from the cohesive narrative linking it to the animus that inspired it," and thus EO-2 "likely fails Lemon's purpose prong" and is unconstitutional under the Establishment Clause.
The court affirmed the preliminary injunction as appropriately nationwide, but did agree with the government that the injunction should not be issued "against the President himself." Thus, the injunction was lifted in that regard, although the court noted that while the President was not directly bound, the court assumes "it is substantially likely" that the President would abide by the the court's authoritative interpretation of section 2 of EO-2.
Recall that a Ninth Circuit panel is also considering the constitutionality of EO-2; it heard oral arguments on May 15 in Hawai'i v. Trump.
Monday, May 15, 2017
A panel of the Ninth Circuit - - - Judge Ronald Gould, Judge Richard Paez, and Senior Judge Michael Hawkins - - - heard oral arguments in Hawai'i v. Trump, the appeal from the preliminary injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780) (colloquially known as the revised travel ban or "Muslim Ban 2.0").
Arguing for the DOJ in favor of the United States was Acting Solicitor General Jeffrey Wall, who also argued the same position a week ago in the Fourth Circuit en banc argument in Trump v. International Refugee Assistance Project (IRAP). Indeed, there were specific references in the Ninth Circuit argument to that argument with regard to the scope of the injunction in Hawai'i v. Trump. The argument spent a fair amount of time on the statutory claims, which were a basis of Maryland District Judge Theodore Chuang's injunction on appeal to the Fourth Circuit, but were not the basis of the injunction by Hawai'i District Judge Derrick Watson, who ruled on the basis of the Establishment Clause. The issue of standing also peppered the arguments. Wall's argument in the Ninth Circuit seemed less emphatic about the "presumption of regularity" entitled to the President than the argument last week, perhaps because of intervening events. Wall certainly did, however, hammer the Government's point that the deferential standard of Kleindienst v. Mandel (1972) should apply. And although it was not specifically referenced, the dissent from en banc review in a Ninth Circuit precursor case, Washington v. Trump, which largely rested on Mandel, implicitly shaped the arguments.
For his part, arguing for Hawai'i, Neal Katyal, formerly with the Department of Justice, stressed that the Ninth Circuit's panel opinion in Washington v. Trump should be the model. Katyal argued that the EO was unprecedented.
The video of the argument is worth watching, not only for its explication of the issues, but also as examples of excellent appellate advocacy.
However, there was a quite odd interchange regarding Neal Katyal's previous litigation stances. At around 52:03 in the video above, Senior Judge Hawkins said to Katyal, "You have argued in the past to give deference to the Executive in immigration matters." After Katyal's acknowledgement, Judge Hawkins refers to an amicus brief in United States v. Texas and reads a passage. The brief to which Hawkins seems to have been referring is Brief of Former Commissioners of the United States Immigration and Naturalization Service as Amici Curiae In Support Of Petitioners and the portions seem to be from page 12 of the brief, supporting the Congressional grant of wide authority to make decisions regarding deferred action in immigration deportations. After Katyal's response, Judge Hawkins made a second reference: "You also wrote a brief in Flores-Villar." The brief to which Hawkins refers is Katyal's brief as Acting Solicitor General for the Respondent United States in Flores-Villar v. United States, involving a mother-father differential for unwed parents. Judge Hawkins reads the following passage without the case references or citations:
[T]he United States’ “policy toward aliens” is “vitally and intricately interwoven with * * * the conduct of foreign relations,” a power that likewise is vested in the political Branches. Harisiades v. Shaughnessy, 342 U.S. 580, 588-589 (1952). “Any rule of constitutional law that would inhibit the flexibility of the political branches of government to respond to changing world conditions should be adopted only with the greatest caution.” Mathews v. Diaz, 426 U.S. 67, 81 (1976).
Katyal responds that when he was with the United States Government he tried to convince the United States Supreme Court of this, but the Court "did not bite." Recall that Flores-Villar was a 4-4 affirmance of the Ninth Circuit.
Certainly, both United States v. Texas, which has usually surfaced in the context of a state's standing, and Flores-Villar are somewhat pertinent immigration cases involving the scope of judicial deference. Nevertheless, specific references to an individual attorney's briefs does seem unusual.
May 15, 2017 in Congressional Authority, Courts and Judging, Current Affairs, Due Process (Substantive), Establishment Clause, Executive Authority, First Amendment, Oral Argument Analysis, Recent Cases, Standing | Permalink | Comments (0)
Monday, May 8, 2017
The Fourth Circuit en banc heard almost two hours of intense oral arguments in Trump v. International Refugee Assistance Project (IRAP) from Maryland District Judge Theodore Chuang's Opinion and nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."
The court of 13 Judges (there were recusals from Harvey Wilkinson III whose son-in-law is Jeffrey Wall, Acting Solicitor General arguing for the United States, and Allison Duncan), were very active and asked the questions which are by now familiar, including standing, the constitutional "choice" between Executive power in immigration and Establishment Clause doctrine, and the statutory under Immigration and Nationality Act. (We discuss these issues and Judge Chuang's ruling here). The opening question, however - - - before Wall even had a chance to introduce himself - - - concerned the scope of Judge Chuang's injunction.
In its most basic terms, Wall defended the President's Executive Order by repeating that once the President takes the oath of office, his actions are entitled to a "presumption of regularity," thus the judiciary should not inquire further regarding any motive. Representing the plaintiffs, ACLU attorney Omar C. Jadwat was pressed on how the court should look beyond the four corners of the EO and how long any taint from animus should last.
The oral argument is available on C-SPAN, with an official transcript from the court forthcoming.
Next Monday, a panel of the Ninth Circuit will hear the appeal in Hawai'i v. Trump.
Sunday, May 7, 2017
Comedian Stephen Colbert has drawn ire and FCC scrutiny for a joke in his monologue implying the President of the United States is in a specific sexual position vis-a-vis the President of Russia.
The remark, which occurred on "The Late Show with Stephen Colbert" is within the so-called safe harbor provisions of the FCC regulation of indecent speech by "radio communication" (including traditional television such as CBS).
The constitutionality of such regulation was upheld by the Court in FCC v. Pacifica Foundation (1978), involving comedian George Carlin's "Seven Dirty Words" monologue, which had provoked complaints to the FCC by listeners. But Pacifica's continued viability seems questionable. Justice Ruth Bader Ginsburg, concurring in FCC v. Fox Television Stations II (2012), which did not reach the First Amendment issues involving fleeting expletives, argued that Pacifica "was wrong when it issued," and further that time, technological advances, and FCC's "untenable rulings" show why Pacifica "bears reconsideration." Ginsberg cites the concurring opinion of Justice Thomas in the FCC v. Fox Television Stations I, decided three years earlier, in which Thomas highlights the "dramatic technological advances" that "have eviscerated the factual assumptions" underlying Pacifica: traditional broadcast media is no longer pervasive or even dominant.
Some might argue that the Colbert remark is “obscene” and that obscenity is categorically excluded from First Amendment protection. But to be obscene, speech must meet the classic test from Miller v. California (1973), requiring that the average person find the speech appeals to the prurient interest, describes in a patently offensive way sexual conduct specifically defined by the applicable state law, and that the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Here, Colbert’s comment would not likely to be found obscene. It does not appeal to the prurient interest, meaning some excessive or unhealthy interest in sex; it is not sexually arousing.
Perhaps more importantly, it would be very difficult to find that the Colbert monologue “taken as a whole” lacks serious “political value.” In Hustler Magazine v. Falwell (1988), based on a parody about evangelist Jerry Falwell implying that his first sexual experience was with his mother in an outhouse, Justice Rehnquist, wrote for the nearly unanimous Court about the importance of caustic humor for free political speech:
Despite their sometimes caustic nature, from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and political debate. Nast's castigation of the Tweed Ring, Walt McDougall's characterization of Presidential candidate James G. Blaine's banquet with the millionaires at Delmonico's as "The Royal Feast of Belshazzar," and numerous other efforts have undoubtedly had an effect on the course and outcome of contemporaneous debate. Lincoln's tall, gangling posture, Teddy Roosevelt's glasses and teeth, and Franklin D. Roosevelt's jutting jaw and cigarette holder have been memorialized by political cartoons with an effect that could not have been obtained by the photographer or the portrait artist. From the viewpoint of history, it is clear that our political discourse would have been considerably poorer without them.
Colbert's remark, subject to critique as crude as well as homophobic, is nevertheless the type of political discourse protected by the First Amendment.
Here's the full clip, with the relevant passage starting at about 11:40, albeit with the offending language bleeped out as it was in the broadcast.
Saturday, March 25, 2017
In his opinion in Sarsour v. Trump, United States District Judge for the Eastern District of Virginia Anthony Trenga denied the Plaintiffs' motion for Temporary Restraining Order or Preliminary Injunction.
At issue is the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0."
Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," was enjoined by the Ninth Circuit in Washington v. Trump,; our backgrounder on the issues is here. The President withdrew the initial EO and the Ninth Circuit denied the sua sponte motion for en banc review, but in a somewhat unusual step there was a substantive dissenting opinion authored by Judge Jay Bybee.
Recall also that regarding the March 6, 2017 EO ("Muslim Travel Ban 2.0"), two other federal district judges issued injunctions before the EO became effective. In Hawai'i v. Trump, United States District Judge Derrick Watson issued a TRO of sections 2 and 6 of the EO based on the likelihood of plaintiffs to prevail on their Establishment Clause challenge. In International Refugee Assistance Project (IRAP) v. Trump, Maryland District Judge Theodore Chuang issued a preliminary injunction of section 2(e) of the EO based on the likelihood of plaintiffs to prevail on their statutory claim under the Immigration and Nationality Act and their constitutional claim under the Establishment Clause.Judge Trenga disagrees with both Hawai'i v. Trump and IRAP v. Trump, although the opinion does not engage in a substantial dialogue with these opinions.
For example, on the statutory claim in Sarsour v. Trump, Judge Trenga concludes after reviewing "the text and structure of the INA as a whole, and specifically, the practical, operational relationships" of the provisions, that the nondiscrimination restrictions of §1152 do not "apply to the issuance or denial of non-immigrant visas or entry under §1182(f). In a footnote, Judge Trenga acknowledges that the judge in IRAP v. Trump "attempted to reconcile these seemingly contradictory provisions," and simply adds, "There, the court concluded that Section 1152 bars the President from discriminating on the basis of nationality in the issuance of immigrant visas only." (footnote 12). Judge Trenga characterized the Immigration and Nationality Act (INA) as a "legislative rabbit warren that is not easily navigated," but his ultimate conclusion seems to be based on a broad view of Executive authority. Judge Trenga writes that the he "also has substantial doubts that Section 1152 can be reasonably read to impose any restrictions on the President’s exercise of his authority under Sections 1182(f) or 1185(a)."
Similarly, on the Establishment Clause claim Judge Trenga accorded the Executive broad deference. Unlike the judges in both Hawai'i v. Trump and IRAP v. Trump, Judge Trenga found that the facial neutrality of "EO-2" was determinative. Judge Trenga held that past statements - - - or the EO-2 statements (described in a footnote as including the President's statement that EO-2 was a "watered-down version" of EO-1, and Presidential Advisor Stephen Miller's statements) - - - have not "effectively disqualified him from exercising his lawful presidential authority":
In other words, the substantive revisions reflected in EO-2 have reduced the probative value of the President’s statements to the point that it is no longer likely that Plaintiffs can succeed on their claim that the predominate purpose of EO-2 is to discriminate against Muslims based on their religion and that EO-2 is a pretext or a sham for that purpose. To proceed otherwise would thrust this Court into the realm of “‘look[ing] behind’ the president’s national security judgments . . . result[ing] in a trial de novo of the president’s national security determinations,” Aziz, 2017 WL 580855, at *8, and would require “a psychoanalysis of a drafter’s heart of hearts,” all within the context of extending Establishment Clause jurisprudence to national security judgments in an unprecedented way.
Likewise, on the Equal Protection claim, Judge Trenga concluded that although the EO would have a differential impact on Muslims, it was facially neutral. The Judge relied on an earlier Fourth Circuit case, Rajah v. Mukasy (2008) and articulated the standard as requiring merely a rational national security basis for an immigration measure to survive an Equal Protection Clause challenge. And again, Judge Trenga accorded the Executive wide discretion: "These are judgments committed to the political branches - - - not to the courts."
In sum, Judge Trenga's opinion aligns with the Ninth Circuit dissent from en banc review by Judge Bybee and is in opposition to the other district judges who have rendered opinions on the second EO which have enjoined its enforcement.
March 25, 2017 in Courts and Judging, Current Affairs, Equal Protection, Establishment Clause, Executive Authority, Fifth Amendment, First Amendment, Opinion Analysis, Race, Religion, Standing, Travel | Permalink | Comments (0)
Thursday, March 16, 2017
In International Refugee Assistance Project (IRAP) v. Trump, Maryland District Judge Theodore Chuang issued a nationwide injunction against the President's March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" (now numbered EO 13,780), which is colloquially known as the revised travel ban or "Muslim Ban 2.0." The 43 page opinion concludes that the Plaintiffs have a likelihood of success on their claims that the EO violates the Immigration and Nationality Act and violates the Establishment Clause. [Note: Judge Chuang construed the motion for TRO/PI as a motion for a preliminary injunction and issued an injunction.] It closely follows on the TRO issued in Hawai'i v. Trump.
On the issue of standing, Judge Chuang first finds that several of the individual plaintiffs have standing to challenge the EO on statutory grounds, meeting both Article III standing and being within the zone of interests of the statute. Likewise, several plaintiffs have standing to challenge on the EO on Establishment Clause grounds given their personal injury on having family members who are directly and adversely affected by the ban.
Judge Chuang's opinion devotes substantial attention to the Immigration and Nationality Act claim, which has been raised in most of the complaints challenging this EO and its predecessor, but has not been the basis for a judicial restraining order. Here, Judge Chuang concludes that the general power given to the President by 8 U.S.C. §1182(f) to "suspend the entry of all aliens or any class of aliens" is not exempt from the provision of 8 U.S.C. §1152(a) which bars discrimination in the issuance of immigrant visas. Importantly, the exceptions listed in the non-discrimination provision of §1152(a) do not include §1182(f):
Because the enumerated exceptions illustrate that Congress “knows how to expand ‘the jurisdictional reach of a statute,793 the absence of any reference to § 1182(1) among these exceptions provides strong evidence that Congress did not intend for §1182(1) to be exempt from the anti-discrimination provision of §1152(a).
[citation omitted]. Thus, Judge Chuang held that the plaintiffs have a likelihood to succeed on their statutory claim.
On the Establishments Clause claim, Judge Chuang, like other judges, looked to McCreary County v. ACLU of Kentucky (2005), for an interpretation of the first prong of the Lemon test, Lemon v. Kurtzman (1971), requiring an government act to have a secular purpose in order to be constitutional. Noting that finding of purpose is a common task for the courts, Judge Chuang discussed the specific statements in the record "directly establishing that Trump intended to effectuate a partial Muslim ban by banning entry by citizens of specific predominantly Muslim countries deemed to be dangerous, as a means to avoid, for political reasons, an action explicitly directed at Muslims." These statements included the by now familiar statements of candidate Trump and of former-Mayor Guiliani relating to the first EO. Additionally, Judge Chuang found that the despite the changes in the second EO, "the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban," quoting statements by Senior Policy Advisor to the President Stephen Miller and White House Press Secretary Sean Spicer.
Judge Chuang rejected the Government's argument that such statements should not be considered because they were made outside the formal government decision-making process. Instead, "all of the public statements at issue here are fairly attributable to President Trump."
Moreover, Judge Huang also looked to the language of the second EO itself. He rejected the Government's argument that the second EO's articulation of a national security purpose essentially saves the EO. However, while there should ordinarily be deference to national security, Judge Chuang found that in this "highly unique case," the record provides "strong indications that the national security interest is not the primary purpose of the EO.
- First, the initial EO was adopted without interagency review: "The fact that the White House took the highly irregular step of ﬁrst introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a secondary post hoc rationale."
- Second, the national security rationale was offered only after courts issued injunctions against the first EO, similar to litigation in McCreary.
- Third, the EO is an "unprecedented response" to security risks without any triggering event.
Judge Chuang also rejected the Government's argument that deference is warranted. This deference argument was made in a dissenting opinion by Judge Jay Bybee from the Ninth Circuit's denial of en banc review in Washington v. Trump. For Judge Chuang, the deferential standard of Kleindienst v. Mandel (1972), is most "typically applied when a court is asked to review an executive officer's decision to deny a visa" as in Kerry v. Din (2015). The Mandel test does not apply to the promulgation of sweeping immigration policy. Instead, even when exercising their immigration powers, the political branches must choose constitutional permissible means of implementing that power. It is the courts' duty to determine those constitutional boundaries.
Thus, Judge Chuang issued a nationwide injunction against §2(c) of the Executive Order, independent of the injunction earlier that same day of §2, as well as §6, in Hawaii v. Trump.
[image: Photo by Bruce Emmerling of protest of first EO outside courthouse in Baltimore via; note that Judge Chuang does not sit in Baltimore].
Wednesday, March 15, 2017
Recall the proceedings in Washington v. Trump in which a panel opinion upheld an injunction against the January 27, 2017 Executive Order by the President, now popularly known as Muslim Ban I. Because the President withdrew the EO, replacing it with the March 6, 2017 Executive Order "Protecting The Nation From Foreign Terrorist Entry Into The United States" - - - enjoined today in Hawai'i v. Trump - - - proceedings in the Muslim Ban I became irrelevant and the United States dismissed the appeal. Nevertheless, upon the request of a Ninth Circuit judge, a poll was taken to determine whether the Ninth Circuit should hear the case en banc and vacate the panel opinion. Today, the order on this en banc request was rendered, and the "matter failed to receive a majority of the votes of the active
judges in favor of en banc reconsideration."
The order is accompanied by a paragraph concurring opining by Judge Reinhardt:
I concur in our court’s decision regarding President Trump’s first Executive Order – the ban on immigrants and visitors from seven Muslim countries. I also concur in our court’s determination to stand by that decision, despite the effort of a small number of our members to overturn or vacate it. Finally, I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.
The dissenting opinion of Judge Bybee, controversial in many quarters for his expansive views of Executive power, argues that the President's EO was "well within the powers of the presidency." Essentially, the dissent argues that the panel opinion did not sufficiently defer to the Executive and Congressional power over immigration. "The appropriate test for judging executive and congressional action affecting aliens who are outside our borders and seeking admission is set forth in Kleindienst v. Mandel, 408 U.S. 753 (1972)." The dissent faults the panel opinion because it "missed" the Court's 2015 opinion in Kerry v. Din, "in which Din (a U.S. citizen) claimed that the government’s refusal to grant her Afghani husband a visa violated her own constitutional right to live with her husband. A plurality held that Din had no such constitutional right."
Judge Bybee's opinion seems to suggest that the panel misconstrued the law in service of the judge's own personal agendas, even as the opinion criticizes personal attacks on judges:
We are all acutely aware of the enormous controversy and chaos that attended the issuance of the Executive Order. People contested the extent of the national security interests at stake, and they debated the value that the Executive Order added to our security against the real suffering of potential emigres. As tempting as it is to use the judicial power to balance those competing interests as we see fit, we cannot let our personal inclinations get ahead of important, overarching principles about who gets to make decisions in our democracy. For better or worse, every four years we hold a contested presidential election. We have all found ourselves disappointed with the election results in one election cycle or another. But it is the best of American traditions that we also understand and respect the consequences of our elections. Even when we disagree with the judgment of the political branches—and perhaps especially when we disagree—we have to trust that the wisdom of the nation as a whole will prevail in the end.
Above all, in a democracy, we have the duty to preserve the liberty of the people by keeping the enormous powers of the national government separated. We are judges, not Platonic Guardians. It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress. We will yet regret not having taken this case en banc to keep those lines of authority straight.
Finally, I wish to comment on the public discourse that has surrounded these proceedings. The panel addressed the government’s request for a stay under the worst conditions imaginable, including extraordinarily compressed briefing and argument schedules and the most intense public scrutiny of our court that I can remember. Even as I dissent from our decision not to vacate the panel’s flawed opinion, I have the greatest respect for my colleagues. The personal attacks on the distinguished district judge and our colleagues were out of all bounds of civic and persuasive discourse—particularly when they came from the parties. It does no credit to the arguments of the parties to impugn the motives or the competence of the members of this court; ad hominem attacks are not a substitute for effective advocacy. Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.
This dissenting opinion serves as a reminder that the question of the amount of deference to the Executive regarding a "Muslim ban" is a contentious one; this dissenting opinion may also serve as a roadmap to the arguments supporting broad executive power.
[Update: Federal District Judge Theodore Chuang finds the Mandel standard inapplicable in his opinion in International Refugee Assistance Project v. Trump].
Wednesday, February 15, 2017
A habeas petition filed in Ramirez Medina v. US Department of Homeland Security avers constitutional violations of procedural due process and substantive due process under the Fifth Amendment as well as unlawful seizure under the Fourth Amendment.
The petition comes amidst reported "raids" by Immigration and Customs Enforcement (ICE) across the country. Ramirez, who is a 23 year old non-citizen, had been granted employment authorization under the Deferred Action for Childhood Arrivals (DACA) program in 2014, and it was renewed in 2016. According to the allegations in the petition, he was not the target of ICE agents, but encountered them when the agents arrested his father. When the ICE agents asked him if he was "legally here," Mr. Ramirez responded that was, relying on his employment authorization under DACA. Nevertheless, as the petition alleges
ICE agents then took Mr. Ramirez to a processing center in Seattle, Washington. When he again informed them about his work permit, one of the ICE agents stated: “It doesn’t matter, because you weren’t born in this country.” At this point, the ICE agents had Mr. Ramirez’s wallet, which contained his work permit, which clearly identified him as a DACA recipient with a “C-33” code, which reflects a work authorization issued pursuant to DACA. Despite this fact, Mr. Ramirez was questioned further, fingerprinted, booked, and taken to a detention center in Tacoma, Washington.
The first count argues that the detention (apparently still continuing) is a violation of procedural due process rights. Ramirez alleges an interest in his liberty, but also alleges a property interest by virtue of the promises made in the DACA program. Thus, the Matthews v. Eldridge balancing test should apply, affording Ramirez both notice and hearing, as well as application of the extant policies - - - which provide he should not be detained - - - given his DACA status. The second count of substantive due process alleges that Ramirez's liberty is a fundamental interest of which he has been wrongly deprived. And lastly, the Fourth Amendment claim alleges an absence of probable cause for his arrest.
The Western District of Washington Magistrate has set a hearing for the morning of Friday, February 17, with briefs due the previous day. The Magistrate has ordered the brief of DHS to answer, with an opportunity for Ramirez to respond, to the following questions:
- a. Is petitioner still detained? What is the basis for his detention, given that he has been granted deferred action under the Deferred Action for Childhood Arrivals program?
- b. Has petitioner been placed in removal proceedings? What was the result of ICE’s initial custody determination? Has petitioner requested a bond hearing before an Immigration Judge? When is any bond hearing scheduled to occur?
- c. Does the Court have the authority to order an Immigration Judge and the Board of Immigration Appeals to consider any challenge to petitioner’s detention status on an expedited basis?
- d. If petitioner is still detained and removal proceedings have not been initiated against him, what is the basis for ICE’s authority to detain him? What limitations are there, if any, on the Court’s ability to hold a detention hearing for petitioner before the merits of his habeas petition have been decided?
Monday, February 13, 2017
The federal district judge in Aziz v. Trump, having previously granted the Motion of the State of Virginia to intervene, has granted a Preliminary Injunction against section 3(c) of the President's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban." The judge's order is supported by a 22 page Memorandum Opinion. Recall that the Ninth Circuit has also recently ruled on the matter (refusing to stay a district judge's injunction); our general explainer of the issues is here.
Judge Leonie Brinkema rested her opinion on the Establishment Clause, finding a likelihood of success on the merits on that claim, and thus not reaching the Equal Protection Clause and Due Process Clause or statutory claims.
Judge Brinkema found that the case was justiciable and that Virginia as a state has standing to raise claims based on the injuries to its universities. The judge rejected the contention that the President has unbridled power to issue the EO, stating that
Maximum power does not mean absolute power. Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights. It is a bedrock principle of this nation’s legal system that “the Constitution ought to be the standard of construction for the laws, and that wherever there is evident opposition, the laws ought to give place to the Constitution.” The Federalist No. 81, at 481 (Alexander Hamilton) (Clinton Rossiter ed., 1999). Defendants have cited no authority for the proposition that Congress can delegate to the president the power to violate the Constitution and its amendments and the Supreme Court has made it clear that even in the context of immigration law, congressional and executive power “is subject to important constitutional limitations.” Zadﬂdas v. Davis, 533 U.S. 678, 695 (2001).
As to whether or not the EO is a "Muslim ban," the judge relied on public statements by the President and his senior advisors, noting that although the Government disputes the relevancy of the statements, the government does not contest their accuracy. Among the statements the Judge found relevant are candidate Trump's campaign statements and Rudolph Guiliani's January 29, 2017 interview on Fox News.
Judge Brinkema's analysis of the Establishment Clause issue relies heavily on McCreary County v. ACLU of Kentucky in which the Court found unconstitutional the display of the Ten Commandments in a courthouse based in large part of the motive of the state actors. The judge also rejected the argument that the EO could not be a "Muslim ban" because it did not ban all Muslims:
The argument has also been made that the Court cannot infer an anti-Muslim animus because the E0 does not affect all, or even most, Muslims. The major premise of that argument—that one can only demonstrate animus toward a group of people by targeting all of them at once—is ﬂawed. For example, it is highly unlikely that the Supreme Court considered the displays of the Ten Commandments erected by the Kentucky counties in McCreary, which had a localized impact, to be targeted at all persons outside the Judeo-Christian traditions. Moreover, the Supreme Court has never reduced its Establishment Clause jurisprudence to a mathematical exercise. It is a discriminatory purpose that matters, no matter how inefﬁcient the execution. [citations omitted]
Thus, the judge entered a preliminary injunction of 3(c) of the EO against Virginia residents or those affiliated with Virginia's education institutions.
Tuesday, February 7, 2017
The wife of the President has two pending defamation claims that not only involve interesting First Amendment issues, but may also be relevant to the pending Emoluments Clause challenge.
First there is the complaint in Melania Trump v. Tarpley (and Mail Media), filed in Maryland state court. This suit alleges that statements by blogger Webster Griffin Tarpley in a blog post, including “Ms. Trump Reportedly Obsessed by Fear of Salacious Revelations by Wealthy Clients from Her Time as a High-End Escort” and “It is widely known that Melania was not a working model but rather a high end escort.” The complaint survived the motion to dismiss by Tarpley, with the Judge ruling from the bench reportedly rejecting the blogger defendant’s argument that he was not making the statement as a fact but merely reporting rumors. The judge further reportedly stated that the alleged statements were defamatory: “The court believes most people, when they hear the words 'high-end escort' that describes a prostitute. There could be no more defamatory statement than to call a woman a prostitute."
Additionally, as the news report stated:
The judge also seemed skeptical that such salacious claims were deserving of the highest level of legal protection given that Melania Trump was the wife of a candidate and not a candidate herself.
"The interests affected are arguably not that important because the plaintiff wasn't the one running for office," [Judge] Burrell said.
This would seem to imply that Melania Trump was not a public figure, a conclusion that does not seem sustainable. The judge did, however, seem to dismiss the plaintiff’s claim that the false statements included injuries to her husband’s business.
Maryland Judge Burrell did , however, dismiss the complaint as against Mail Media for lack of jurisdiction against the company.
Ms. Trump has now filed a complaint in New York against Mail Media (Mail Online), alleging defamation and intentional infliction of emotional distress based on the same facts. Interestingly, Ms. Trump has dropped the allegations of injuries to her husband's business and included more specific injuries to her own business and lost opportunities. Paragraph 3 of the Complaint reads:
As a result of Defendant’s publication of defamatory statements about Plaintiff, Plaintiffs brand has lost significant value, and major business opportunities that were otherwise available to her have been lost and/or substantially impacted. The economic damage to Plaintiffs brand, and licensing, marketing and endorsement opportunities caused by the publication of Mail Online’s defamatory article, is multiple millions of dollars. Plaintiff had the unique, once-in-a-lifetime opportunity, as an extremely famous and well-known person, as well as a former professional model and brand spokesperson, and successful businesswoman, to launch a broad-based commercial brand in multiple product categories, each of which could have garnered multi-million dollar business relationships for a multi-year term during which Plaintiff is one of the most photographed women in the world. These product categories would have included, among other things, apparel, accessories, shoes, jewelry, cosmetics, hair care, skin care and fragrance.
This allegation has raised some eyebrows as it seems to allege that Melania Trump intended to monetize her "once-in-a-lifetime opportunity" for a "multi-year term" as First Lady by promoting her personal products. Indeed, Melania Trump's initial biography on the White House website lends credence to this view:
This entry has since been removed, although it does not seem the removal is connected to the August 2016 publications about Melania Trump.
Should discovery on damages ensue, it could be a trove of material for those claiming that conflicts of interests exist in Donald Trump's official position and his businesses, including his family businesses. However, note that under Seattle Times v. Rhinehart (1984), a judge could certainly order nondisclosure of the material gained by Mail Media despite the defendant's press status.
Meanwhile, also in New York state court, Donald Trump is defending a defamation suit filed by Zervos Summer based on allegations that he called her charges of sexual harassment by him false.
Saturday, February 4, 2017
In a Temporary Restraining Order, United States District Judge James Robart enjoined the federal government from enforcing sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban."
Judge Hobart's Order is brief and concludes that there is a likelihood of success on the merits, although it does not specify which of the claims is likely to succeed. Washington State's complaint contains 7 counts claiming violations of constitutional guarantees of Equal Protection, Establishment Clause, and Procedural Due Process, as well as statutory violations of the Immigration and Nationality Act (2 counts), Foreign Affairs and Restructuring Act, the Administrative Procedure Act (2 counts), and the Religious Freedom and Restoration Act (RFRA).
The Judge's finding that Washington faces the "immediate and irreparable injury" requirement for preliminary relief might also be a comment on the merits of Washington's standing (which we first discussed here) to bring the suit, and would be pertinent to the standing of the state of Hawai'i, which has also sued. Judge Robart found:
The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inﬂicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States" operations, tax bases, and public funds.
Additionally, in the Order's one paragraph Conclusion, Judge Robart implicitly invokes the Marbury v. Madison aspects of the controversy. Here is the entire last paragraph:
Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. The narrow question the court is asked to consider today is whether it is appropriate to enter a TRO against certain actions taken by the Executive in the context of this speciﬁc lawsuit. Although the question is narrow, the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulﬁll its constitutional role in our tripart government. Accordingly, the court concludes that entry of the above-described TRO is necessary, and the States’ motion (Dkt. ## 2, 19) is therefore GRANTED.
The morning after the Judge's Order, the President from his vacation home "tweeted" his disapproval, maligning the judge but seemingly committed to pursue further judicial process.
February 4, 2017 in Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Procedural Due Process, Race, Separation of Powers, Standing | Permalink | Comments (2)