Tuesday, April 25, 2017
Judge William H. Orrick (N.D. Cal.) issued a nationwide temporary injunction halting President Trump's executive order that sought to clamp down on sanctuary cities.
The ruling was a broadside against the EO, handing the plaintiffs, Santa Clara County and San Francisco, a decisive preliminary victory on nearly all the points they raised. But at the same time, the ruling is preliminary, and holds only that the plaintiffs are likely to succeed on the merits of their various claims. It's also certain to be appealed.
The ruling comes closely on the heels of the Justice Department's move last week to begin enforcement of the EO by informing certain "sanctuary cities" that they could lose DOJ Justice Assistance Grants if they failed to provide "documentation and an opinion from legal counsel" that they were in compliance with Section 1373.
But the lawsuit challenged the EO on its face, and not just as applied to DOJ JAG grants. And that turned out to be critical in Judge Orrick's decision. In particular, Judge Orrick held that the plain language of the EO threatened all "federal grants" to sanctuary cities, notwithstanding the administration's attempts to narrow that language. (Judge Orrick flatly rejected attempts to limit the EO, taking judicial notice of a variety of public statements of President Trump and administration officials about the breadth of the program.) Because the EO put all "federal grants" on the chopping block, Judge Orrick said that it swept way too far. (Judge Orrick wrote that nothing in the injunction prohibited the administration from enforcing lawful conditions on federal grants, or enforcing Section 1373, or designating jurisdictions as "sanctuary jurisdictions.")
Judge Orrick ruled that the plaintiffs were likely to succeed on the merits of their separation-of-powers claim, because "Section 9 [of the Order, which conditions federal grants on compliance with Section 1373] purports to give the Attorney General and the Secretary the power to place a new condition on federal funds (compliance with Section 1373) not provided for by Congress." This was particularly troubling, because Congress has several times declined to put like conditions on other federal immigration laws.
Judge Orrick also ruled that the plaintiffs were likely to succeed on the merits of their Spending Clause claim, because (1) the conditions in the EO were not unambiguous (because it didn't exist when the states signed up for many of their federal grants, and because so much of the language is vague), (2) there's not a sufficient nexus between the federal funds at issue (from any federal grant) and compliance with Section 1373, and (3) the EO is coercive (because it could deny to local governments all their federal grants).
Judge Orrick also ruled that the plaintiffs were likely to succeed on their Tenth Amendment challenge (because the EO would compel state and local governments "to enforce a federal regulatory program through coercion" and require state and local jurisdictions to honor civil detainer requests), their void-for-vagueness challenge (because so much of the EO is, well, vague), and their Due Process claim (because the EO contains no process before the feds could withhold already-issued federal grants).
In short, Judge Orrick ruled for the plaintiffs on all their claims. Just one went the other way: Judge Orrick declined to issue an injunction against President Trump himself.
Despite the lofty separation-of-powers and federalism issues that were (and are) at the core of the case, a good chunk of the ruling dealt with justiciability. Judge Orrick ruled that the plaintiffs had standing (because they suffered current budget uncertainty or a required change in policies to comply with the EO) and that the claims were ripe (because of the threatened injury, under MedImmune, Inc. v. Genentech).
Wednesday, April 12, 2017
Update: Might've spoken a little too soon. President Trump told the WSJ yesterday that he's still considering withholding subsidies.
The Trump Administration will continue to pay subsidies to health insurance companies on the exchanges under the Affordable Care Act, despite a district court ruling against the Obama Administration that they are illegal, according to the NYT.
The decision will help to keep the exchanges operating.
Recall that Judge Rosemary Collyer (D.D.C.) ruled that the Obama Administration illegally spent money on the subsidies to ACA exchange insurers without a valid congressional authorization.
The ACA provides for the subsidies, but Congress didn't fund them. President Obama went ahead and paid them, anyway.
The lawsuit, brought by congressional Republicans, is on appeal. The Trump Administration hasn't announced its position in the litigation, beyond saying that it'll continue to fund the subsidies for now.
Friday, April 7, 2017
For a deeper dive into the constitutional law, check out these:
Here are links to the cited OLC memos:
For a broader, historical approach, check out this CRS report on Congressional Authority to Limit U.S. Military Operations.
Sunday, April 2, 2017
In a Memorandum Opinion and Order, Judge David Hale ruled on a motion to dismiss the complaint in Nwanguma v. Trump which includes a count of incitement to riot by then-candidate Trump during a campaign event in Louisville, Kentucky on March 1, 2016. The complaint alleges that the candidate told the crowd “Get ’em out of here,” when the plaintiffs were "peacefully protesting" at a campaign rally. Allegedly as a result of the candidate's encouragement, three individual defendants pushed, shoved, and struck the three plaintiffs. The complaint contended that candidate Trump should be held vicariously liable for the tortious actions of the individual defendants; Judge Hale dismissed this count as not having sufficient allegations that the candidate (or his campaign) "had the right to control the other defendants’ actions." The complaint also contained a count regarding the candidate's negligence and failure to protect, which Judge Hale did not dismiss.
Most important from a constitutional standpoint, Judge Hale denied Trump's motion to dismiss the incitement to riot claim despite the defendant's argument that Trump's statement "Get ’em out of here” was protected by the First Amendment. As Judge Hale relates, under the landmark case of Brandenberg v. Ohio (1969), as well as the Sixth Circuit's en banc decision in Bible Believers v. Wayne County (2015), speech may not be “sanctioned as incitement to riot unless
(1) the speech explicitly or implicitly encouraged the use of violence or lawless action,
(2) the speaker intends that his speech will result in the use of violence or lawless action, and
(3) the imminent use of violence or lawless action is the likely result of his speech.”
Judge Hale analyzes each of these prongs in turn.
First, Judge Hale concludes that Trump's statement, “Get ’em out of here,” is phrased in the "imperative; it was an order, an instruction, a command." It is therefore unlike the protected speech in NAACP v. Claiborne Hardware Co. (1982) (“If we catch any of you going in any of them racist stores, we’re gonna break your damn neck.”); Hess v. Indiana (1973) (“We’ll take the fucking street again.”); or Watts v. United States (1969) (“If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.”).
Second, Judge Hale concludes that the complaint states sufficient allegations of Trump's intent, although whether "he actually intended for violence to occur is beyond the scope of the Court’s inquiry at the motion-to-dismiss stage."
Third, Judge Hale rules that "the complaint adequately alleges that Trump’s statement was likely to result in violence—most obviously, by alleging that violence actually occurred as a result of the statement." Additionally, the complaint describes "a prior Trump rally at which a protestor was attacked."
The case is now on course to proceed.
Wednesday, March 29, 2017
In an opinion and order in Hawai'i v. Trump, United States District Judge Derrick Watson has granted the motion to convert the previously issued Temporary Restraining Order 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") into a Preliminary Injunction. This has the effect of extending the time frame of the injunction as well as making appeal likely.
Judge Watson incorporated the rationales as stated in the previous TRO as we previously discussed, but elaborated on several matters. First, Judge Watson again considered the standing issues and again concluded that both the state of Hawai'i and the individual plaintiff, Dr. Ismail Elshikh, had standing.
On the likelihood of success on the merits, Judge Watson again set out the classic Establishment Clause test articulated in Lemon v. Kurtzman (1971) and again concluded that the first prong requiring the government action to have a primary secular purpose was not met.
Judge Watson declared that "As no new evidence contradicting the purpose identified by the Court has been submitted by the parties since the issuance of the March 15, 2017 TRO, there is no reason to disturb the Court’s prior determination" (emphasis in original).
Instead, the Federal Defendants take a different tack. They once more urge the Court not to look beyond the four corners of the Executive Order. According to the Government, the Court must afford the President deference in the national security context and should not “‘look behind the exercise of [the President’s] discretion’ taken ‘on the basis of a facially legitimate and bona fide reason.’” Govt. Mem. in Opp’n to Mot. for TRO 42–43 (quoting Kliendienst v. Mandel, 408 U.S. 753, 770 (1972)), ECF No. 145. No binding authority, however, has decreed that Establishment Clause jurisprudence ends at the Executive’s door. In fact, every court that has considered whether to apply the Establishment Clause to either the Executive Order or its predecessor (regardless of the ultimate outcome) has done so.
(emphasis in original). The footnote to this passage includes citations to the recently decided Sarsour v. Trump (Virginia District Judge upholds EO 2) and Int’l Refugee Assistance Project (IRAP) v. Trump (Maryland District Judge enjoins part of EO 2). Judge Watson adds
The Court will not crawl into a corner, pull the shutters closed, and pretend it has not seen what it has.
While future Executive action could cure the defects, the attempt by this second EO to merely sanitize the first EO was not sufficient.
Judge Watson declined to narrow the TRO's scope and the injunction is a nationwide one including sections 2 and 6. The judge stated he was
cognizant of the difficult position in which this ruling might place government employees performing what the Federal Defendants refer to as “inward-facing” tasks of the Executive Order.
Any confusion, however, is due in part to the Government’s failure to provide a workable framework for narrowing the scope of the enjoined conduct by specifically identifying those portions of the Executive Order that are in conflict with what it merely argues are “internal governmental communications and activities, most if not all of which could take place in the absence of the Executive Order but the status of which is now, at the very least, unclear in view of the current TRO.” Mem. in Opp’n 29. The Court simply cannot discern, on the present record, a method for determining which enjoined provisions of the Executive Order are causing the alleged confusion asserted by the Government.
In other words, the federal government cannot complain about the injunction's breadth if the government does not take steps necessary to narrow it. Quoting the Ninth Circuit panel on the original EO in Washington v. Trump, Judge Watson stated that "even if the [preliminary injunction] might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order.”
Judge Watson's order and opinion set the stage for the case to be appealed to the Ninth Circuit, even as IRAP v. Trump is beginning to proceed in the Fourth Circuit.
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)
Friday, March 17, 2017
President Trump's EO on sanctuary cities says that "the Attorney General and the Secretary . . . shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1373 (sanctuary jurisdiction) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary."
The provision is almost certainly over-broad, in that it conditions apparently all "Federal grants" on compliance with Section 1373, running afoul of both the relatedness prong and the pressure-into-compulsion test for conditioned federal spending.
But is 1373 itself unconstitutional? In particular, does 1373 violate the non-commandeering principle?
Section 1373 reads:
(a) Notwithstanding any other provision of Federal, State, or local law, a Federal, State, or local government entity or official may not prohibit, or in any way restrict, any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.
(b) Notwithstanding any other provision of Federal, State, or local law, no person or agency may prohibit, or in any way restrict, a Federal, State, or local government entity from doing any of the following with respect to information regarding the immigration status, lawful or unlawful, or any individual:
(1) Sending such information to, or requesting or receiving such information from, the Immigration and Naturalization Service.
(2) Maintaining such information.
(3) Exchanging such information with any other Federal, State, or local government entity.
(c) The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information.
The provision--which prohibits action (it prohibits prohibitions) by state and local governments, but doesn't require action--is a pretty transparent attempt to try to work around the anti-commandeering principle. (Doing the same thing directly--by requiring state and local officers to report--would obviously violate the anti-commandeering principle.) Does that save it from commandeering?
Jane Chong, in a thoughtful post over at Lawfare, says maybe--or at least "the answer is not as open-and-shut as the experts insist it is."
If she's right--and she makes a good argument--maybe the problem isn't with transparent work-arounds like 1373. Maybe, instead, the problem is with the anti-commandeering principle itself. In light of 1373 (and a similar provision in the Professional and Amateur Sports Protection Act of 1992, which Chong discusses), maybe "anti-commandeering" suffers from the same problem that another Tenth Amendment principle--"areas of traditional government functions"--suffered from between National League of Cities v. Usery and Garcia v. San Antonio Metropolitan Transit Authority: It's unworkable. And maybe the solution is the same as in Garcia: Abandon it, and leave the issue to the political process. (After all, there's nothing in the Tenth Amendment that says anything about commandeering.)
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].
United States District Judge Derrick Watson has issued a Temporary Restraining Order in Hawai'i v. Trump 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." Recall that the original EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," and now enjoined by the Ninth Circuit in Washington v. Trump, as well as subject to an injunction in Virginia in Aziz v. Trump (note that the state of Virginia intervened). Our backgrounder on the issues is here. Recall also that Judge Watson allowed Hawai'i to amend its original complaint challenging the previous EO.
Judge Watson's more than 40 page opinion first engages in an explanation of the facts giving rise to the litigation.
Next, Judge Watson concludes there is Article III standing. He finds that Hawai'i has standing based on its proprietary interests (and thus there was no need to reach the parens patriae standing theory). The first proprietary interest is the state's financial and intangible interests in its universities, very similar to the interests the Ninth Circuit found sufficient in Washington v. Trump, involving the previous EO. The second proprietary interest was to the state's "main economic driver: tourism." Additionally, Judge Watson concludes that Dr. Elshikh, added as a plaintiff in the amended complaint has standing, specifically addressing the Establishment Clause claim in which injury can be "particularly elusive." Moreover, his claim is ripe.
As to the likelihood of success on the merits prong of the TRO requirement, Judge Watson concluded that the plaintiffs "and Dr. Elshikh in particular" are likely to succeed on the merits of the Establishment Clause claim (and thus the court did not reach the other claims).
Judge Watson acknowledged that the EO does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order—unlike its predecessor—contain any term or phrase that can be reasonably characterized as having a religious origin or connotation.
Nevertheless, the court can certainly look behind the EO's neutral text, despite the Government's argument to the contrary, to determine the purpose of the Government action. Judge Watson stated that the record before the court was "unique," including "significant and unrebutted evidence of religious animus driving the promulgation" of the EO and its "related predecessor." Judge Watson then provided excerpts of several of Trump's statements, and rejected the Government's caution that courts should not look into the "veiled psyche" and "secret motives" of government decisionmakers:
The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry. For instance, there is nothing “veiled” about this press release: “Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States.” SAC ¶ 38, Ex. 6 (Press Release, Donald J. Trump for President, Donald J. Trump Statement on Preventing Muslim Immigration (Dec. 7, 2015), available at https://goo.gl/D3OdJJ)). Nor is there anything “secret” about the Executive’s motive specific to the issuance of the Executive Order:
Rudolph Giuliani explained on television how the Executive
Order came to be. He said: “When [Mr. Trump] first announced
it, he said, ‘Muslim ban.’ He called me up. He said, ‘Put a
commission together. Show me the right way to do it legally.’”
SAC ¶ 59, Ex. 8.
On February 21, 2017, commenting on the then-upcoming revision to the Executive Order, the President’s Senior Adviser, Stephen Miller, stated, “Fundamentally, [despite “technical” revisions meant to address the Ninth Circuit’s concerns in Washington,] you’re still going to have the same basic policy outcome [as the first].” SAC ¶ 74.
In a footnote, Judge Watson lists "many more" examples.
Moreover, Judge Watson engaged with the plaintiffs' arguments that the EO was contextual, including pointing out that the security rationales listed in the EO included an incident involving an Iraqi national when Iraq was no longer included in the EO; the delayed timing of the EO; and the focus on nationality rather than residence. But Judge Watson noted that while such "assertions certainly call the motivations behind the Executive Order into greater question, they are not necessary to the Court's Establishment Clause determination."
Judge Watson does note that context could change and that the Executive is not forever barred, but as it stands the purpose of the EO is one that has a primary religious discriminatory purpose and will most likely not survive the Establishment Clause challenge.
Having found a likelihood of success on the merits of the Establishment Clause claim, Judge Watson easily found there was irreparable harm and that a temporary restraining order was appropriate.
Judge Watson's injunction against Sections 2 and 6 of the EO applies "across the Nation." Should an emergency appeal be sought, Judge Watson's order already denies a stay of the TRO, but does direct the parties to submit a briefing schedule for further proceedings.
Monday, March 6, 2017
The President's revised Executive Order (March 6, 2017), entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," has substantial changes from the previous EO, 13769, issued January 27, 2017, also entitled "Protecting The Nation From Foreign Terrorist Entry Into The United States," and now enjoined by the Ninth Circuit in Washington v. Trump, as well as subject to an injunction in Virginia in Aziz v. Trump (note that the state of Virginia intervened). Our backgrounder on the issues is here.
This new EO, signed without the fanfare of the previous one, acknowledges that the previous EO "has been delayed by litigation" and does seek to remedy some of the problems with the EO. For example, the scope is much narrower and the suspension of entry excludes "any lawful permanent resident" as well as some other categories. This will make the applicability of constitutional protections less clear. While the Constitution protects non-citizens, it does not have global applicability.
The new EO avers that the previous EO was not a "Muslim Ban":
Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP [US Refugee Admissions Program] in light of their particular challenges and circumstances.
Nevertheless, this new EO does not mention otherwise religion. Of course, omitting references to "religion" or stating that an act is not motivated by animus does not end the inquiry. Instead, there will most certainly be arguments that courts can consider the new EO as religiously-motivated under either First Amendment or Equal Protection Clause doctrine.
The new EO also changes the seven nations to six - - - omitting Iraq as a "special case." This could also give rise to a national origin classification - - - is Iraq, with its "active combat zones" so different from Libya and Yemen which are described similarly? The omission of Iraq is also problematical because the new EO recites as part of its justification this specific incident: "For example, in January 2013, two Iraqi nationals admitted to the United States as refugees in 2009 were sentenced to 40 years and to life in prison, respectively, for multiple terrorism-related offenses."
That relatively brief paragraph, §1(h), ends by stating that "The Attorney General has reported to me that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations by the Federal Bureau of Investigation." Issues with the Attorney General and counterterrorism aside, the objections of other government officials regarding the efficacy of the travel ban would certainly figure in any judicial measurement of the fit between the travel ban and the government purposes.
In terms of litigation and constitutional challenges, the first order of business will be procedural questions regarding whether the new EO can be substituted for the previous EO through amended complaints and other pleadings or will there need to be new cases.
Saturday, March 4, 2017
In his opinion in LaCroix v. Junior, Florida state judge Milton Hirsch confronted the constitutionality of the Executive Order threatening to revoke federal funding for sanctuary cities which as we previously predicted "overreaches."
The judge granted the petition for writ of habeas corpus by a man "incarcerated in the Miami-Dade County correctional system." Although there were no state charges against him, LaCroix had "no prospect of imminent release," because as "often happens" Immigration and Customs Enforcement (“ICE”), the federal agency "responsible for the deportation of those whose presence in this country is unlawful, had filed a detainer or lodged a request with the corrections department, seeking to have the department retain an inmate whom would otherwise be released, because ICE has a basis to inquire further as to the status of the person sought.
Judge Hirsch identified "two inequities" of this practice. First, until ICE takes custody of the person, the county must "house, oversee, and control" people in which it has no ongoing interest and to do so at county expense. Second, "it results in the continued incarceration in county jails of persons neither charged with, nor sentenced for violating, any state or county law, and whose ongoing incarceration by the county is therefore difficult to justify."
Judge Hirsch's opinion outlines the controversies surrounding the county's changing practices, noting that while there had been county detention on behalf of ICE, in 2013 the Dade County Commission changed its policy to effectively ban county jails from honoring ICE requests. However, after the President "threatened to cut federal grants for any counties or cities that don’t cooperate fully with Immigration and Customs Enforcement," Miami-Dade Mayor Carlos Gimenez immediately reversed county policy and ordered county jails to comply with ICE requests.
Judge Hirsch finds that the federal government cannot constrict or commandeer state officials largely relying on Printz v. United States (1997), which held the Brady Handgun Violence Prevention Act's requirement of background checks by state officials unconstitutional pursuant to the Tenth Amendment. Quoting from Justice Scalia's opinion for the Court in Printz, Judge Hirsch concluded that the present situation was "actually easier" to decide: Printz involved something that local law enforcement is often called to do as a matter of local law, but here
however, we deal with an area of the law – the regulation of immigration and deportation – reserved exclusively to the federal government. See U.S. Const. Art. I § 8, clause 4. The Department does not, and as a matter of constitutional law cannot, act in this federal bailiwick. According to its “mission statement,” see http://www.miamidade.gov/corrections/about-corrections.asp, the Department, “serves our community by providing safe, secure and humane detention of individuals in our custody while preparing them for a successful return to the community.” (Emphasis added.) This is wholly unrelated, arguably antithetical, to the mission of ICE, see https://www.ice.gov/overview, which is “to protect America from the cross-border crime and illegal immigration that threaten national security and public safety.” Yet by operation of the recent change in county policy, and the presidential order upon which it is based, county correctional officers and county correctional facilities are made appendages of ICE, obliged to imprison and maintain Petitioner for ICE –
Petitioner and others, perhaps many others, similarly circumstanced. If the use made of local governmental resources in Printz was constitutionally proscribed, the use made of local governmental resources here is surely constitutionally proscribed.
Moreover, although LaCroix is not a government official, the Tenth Amendment's reservation of rights to "the people" is one that can be raised by an individual, as the Court unanimously held in Bond v. United States (2011). (Recall that Carol Anne Bond was similarly successful in her second trip to the United States Supreme Court when it held that the federal government had essentially overreached in prosecuting her for violation using "chemical weapons.")
Judge Hirsch's analysis of Tenth Amendment precedent is on solid ground. The opinion is carefully crafted and closely reasoned. But Judge Hirsch does evoke the larger political contexts in at least two respects.
First, Judge Hirsch raises and discounts the term "sanctuary city." He writes that although the term has a "Biblical sound to it" (explaining in a footnote the more precise Biblical meaning), and thus has some rhetorical force,
Miami is not and never was a “sanctuary city,” and the issue raised by the petition at bar has nothing to do with affording “sanctuary” to those unlawfully in this country. It has everything to do with the separation of powers between the state and federal governments as reflected in the Tenth Amendment to, and in the very structure of, the United States Constitution.
Nevertheless, near the end of the opinion, Judge Hirsch repeats his conclusion that "Miami is not, and has never been, a sanctuary city," and then adds:"But America is, and has always been, a sanctuary country." He quotes one of his own previous opinions and includes a footnote quoting Emma Lazarus, The New Colossus and discussing the dedication of the Statue of Liberty.
Second, Judge Hirsch raises the specter of unbridled Executive power. He notes that although the "presidential edict at issue here seeks to bring about the conscription of the corrections department, and employs powerful financial pressure to do so," the Spending Power is vested in Congress under Art. I §8 cl. 1 rather than the Executive. Additionally:
No doubt the limitations imposed by the Tenth Amendment, like so many limitations imposed by the Constitution, are a source of frustration to those who dream of wielding power in unprecedented ways or to unprecedented degrees. But America was not made for those who dream of power. America was made for those with the power to dream.
It does not seem too far of a stretch to read this as a critique of the current President.
The case is sure to be appealed. But whatever happens on appeal in this case, there is similar litigation throughout the nation, including the lawsuit by San Franscisco.
Thursday, February 23, 2017
Check out Ben Wofford's interview at Politico with David Cole (Georgetown), the ACLU's recently appointed legal director. Cole talks about the ACLU agenda for the Trump presidency, and, drawing on his book, Engines of Liberty, and his essay in the NY Review of Books, how lawyers, academics, and citizens can hold a president accountable and make constitutional change.
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.
Wednesday, February 8, 2017
Public Citizen, the NRDC, and the Communications Workers of America (AFL-CIO) sued the Trump administration today over President Trump's two-for-one administrative regulation executive order. That EO requires an agency to revoke two regulations for every new regulation it adopts.
The plaintiffs argue that the EO violates the separation of powers, the Take Care Clause, and the Administrative Procedure Act, among others. In short:
To repeal two regulations for the purpose of adopting one new one, based solely on a directive to impose zero net costs without any consideration of benefits, is arbitrary, capricious, an abuse of discretion, and not in accordance with law, for at least three reasons. First, no governing statute authorizes any agency to withhold a regulation intended to address identified harms to public safety, health, or other statutory objectives on the basis of an arbitrary upper limit on total costs (for fiscal year 2017, a limit of $0) that regulations may impose on regulated entities or the economy. Second, the Executive Order forces agencies to repeal regulations that they have already determined, through notice-and-comment rulemaking, advance the purposes of the underlying statutes, and forces the agencies to do so for the sole purpose of eliminating costs that the underlying statutes do not direct be eliminated. Third, no governing statute authorizes an agency to base its actions on a decisionmaking criterion of zero net cost across multiple regulations.
The plaintiffs say that the EO violates the separation of powers, because "[b]y requiring agencies engaged in rulemaking to consider and take final action or to withhold final action based on factors that are impermissible and arbitrary under the governing statutes, the Executive Order purports to amend the statutes through which Congress has delegated rulemaking authority to federal agencies." They say it violates the Take Care Clause, because it "directs agencies to take action contrary to numerous laws passed by Congress." (The plaintiffs also bring claims under non-statutory review of ultra vires action, and the APA.)
The plaintiffs point to harms they'll incur under several statutes, if administrative agencies follow the two-for-one rule. Those include the Motor Vehicle Safety Act and Motor Carrier Safety Act, OSHA, the Mine Safety and Health Act, the Toxic Substance Control Act, and several other environmental protection acts.
The plaintiffs point to harms (for standing purposes) throughout, including organizational harms (by requiring the plaintiffs to shift advocacy priorities) and member harms (because a lack of regulation, where a statute requires it, will harm individual members).
Tuesday, February 7, 2017
The White House and Congress are working at a very quick pace to strike late-promulgated Obama-era administrative regulations under the Congressional Review Act.
That Act allows Congress to pass, and the President to sign, a joint resolution of disapproval to revoke certain administrative regulations. The Congressional Research Service has a backgrounder here, with links to other CRS reports on the Congressional Review Act.
President Trump has issued statements telling Congress that he'll sign four joint resolutions now pending in Congress: (1) a Labor rule on drug testing of unemployment compensation applicants, (2) a BLM reg that establishes procedures to prepare, revise, or amend federal land-use plans, (3) an Ed. rule relating to accountability and state plans under the Elementary and Secondary Educational Act of 1965, an (4) Ed. rule related to teacher preparation.
Congress has considered several resolutions of disapproval since 1996, but overturned just one regulation, a 2000 OSHA rule related to workplace ergonomics standards. President Obama vetoed five resolutions of disapproval, and Congress failed to override the vetoes, so none passed.
With the Republican-controlled House and Senate likely to pass these disapproval resolutions--the Senate minority can't filibuster a CRA disapproval resolution--President Trump's anticipate four overrides will set a record.
Friday, February 3, 2017
Joining the more than 15 other cases filed across the nation challenging Trump's Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, now available on the whitehouse.gov site here, today Hawai'i filed a Complaint in Hawai'i v. Trump, accompanied by a lengthy motion for Temporary Restraining Order and supporting Memorandum of Law.
Hawai'i asserts standing as a state based on its diversity in ethnic population, its high number of noncitizen residents including business owners and students, and its tourism-based economy. Washington state previously brought suit (with an oral ruling granting a TRO); Virginia is seeking to intervene in a lawsuit there.
The constitutional claims are by now familiar from suits such as the first one in Darweesh v. Trump and the one filed by CAIR, Sarsour v. Trump, including Equal Protection claims as we analyzed here. Other constitutional claims generally include First Amendment Establishment Clause and Free Exercise Clause and Procedural Due Process. There have also been constitutional claims based on the Emoluments Clause (Mohammed v. United States, filed in U.S. District Court for the Central District of California, with Temporary Restraining Order entered) and a substantive due process right to familial association (Arab American Civil Rights League v. Trump , filed in U.S. District Court for the Eastern District of Michigan, with an injunction entered. Again, Lawfare is maintaining a collection of all the primary source documents.
The Hawai'i complaint includes an innovative count alleging a violation of the substantive due process right to international travel. According to the supporting memo, the right to travel abroad is “part of the ‘liberty’” protected by the Due Process Clause; as the Court stated in Kent v. Dulles (1958), “Freedom of movement is basic in our scheme of values.” The EO fails to satisfy the applicable due process standard for the same reasons it fails the equal protection analysis.
The Attorney General has not been confirmed and the Acting AG was terminated by the President when she stated the Muslim Ban was indefensible, but the DOJ attorneys seem to be vigorously defending these suits.
Thursday, February 2, 2017
There were some questions whether the seemingly hasty release late Friday afternoon of the Executive Order, Protecting the Nation From Foreign Terrorist Entry Into the United States, popularly called a "Muslim Ban," had been presented to the Office of Legal Counsel (OLC) as required by law.
Pursuant to a FOIA request, an OLC Memo has been released. It's seemingly a boilerplate memo, simply repeating the content of the EO and concluding "The proposed Order is approved with respect to form and legality."
It's a quick read at a bit over one page, with the EO appended afterwards. There is no legal analysis.
For comparison, the recent anti-nepotism OLC Memo, concluding that the President could appoint his son-in-law to a White House position runs about 14 single spaced pages.
Tuesday, January 31, 2017
San Francisco filed suit today against President Trump over his executive order stripping sanctuary cities of federal grants.
San Francisco argues that the EO violates the anti-commandeering rule, that its funding provision turns persuasion into compulsion, and that the funding threat includes federal money that has nothing to do with immigration enforcement--all in violation of federalism principles in the Tenth Amendment.
Recall the EO's federal-funding-for-compliance provision:
the Attorney General and the Secretary, in their discretion and to the extent consistent with law, shall ensure that jurisdictions that willfully refuse to comply with 8 U.S.C. Sec. 1371 (sanctuary jurisdictions) are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes by the Attorney General or the Secretary.
8 U.S.C. Sec. 1373(a), in turn, prohibits local governments from "sending to, or receiving from, [federal immigration officials] information regarding the citizenship or immigration status . . . of any individual."
As an initial matter, San Francisco argues that it actually complies with 1373, because it doesn't prohibit officials from communicating with the feds regarding "citizenship or immigration status," even though it restricts communications on other matters.
The City goes on to argue that 1373, taken together with the EO, commandeers state and local governments in violation of the anti-commandeering rule, because it regulates "States in their sovereign capacity," "limit[s] state authority to regulate internal affairs and determine the duties and responsibilities of state employees," and "ultimately forc[es] States to allow their employees to use state time and state resources to assist in the enforcement of federal statutes regulating private individuals." Moreover, the EO "commandeers state and local governments, violating the Tenth Amendment to the United States Constitution by, inter alia, compelling them to enforce a federal program by imprisoning individuals subject to removal at the request of the Federal government when those individuals would otherwise be released from custody."
As to preenforcement review, San Francisco argues that it "faces the imminent loss of federal funds and impending enforcement action if it does not capitulate to the President's demand that it help enforce federal immigration law. At least one jurisdiction has already succumbed to this presidential fiat." (The complaint also outlines the many other harms the city says it suffers, and will suffer, under the EO.)
Monday, January 30, 2017
Check out Marc Thiessen's piece in WaPo, arguing that Senate Republicans should use the nuclear option--destroy the filibuster--for President Trump's Supreme Court nominee.