Monday, June 26, 2017

SCOTUS Grants Certiorari in "Travel Ban" Cases and Grants Partial Stay

 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)

Monday, June 12, 2017

Ninth Circuit Affirms Injunction Against Muslim Travel Ban

 In its per curiam unanimous opinion in Hawai'i v. Trump, the Ninth Circuit panel affirmed the finding of standing and held that 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 EO2, the revised travel ban or "Muslim Ban 2.0) most likely conflicts with the Immigration and Nationality Act (INA).   Thus, the Ninth Circuit affirmed the injunction against EO2.

The oral argument about a month ago raised both the statutory and constitutional issues, but  recall that District Judge Derrick Watson's opinion in Hawai'i v. Trump centered on the Establishment Clause claim.  For the Ninth Circuit, however, the statutory claim took precedence.  The Ninth Circuit noted that "the district court decided an important and controversial constitutional claim without first expressing its views on Plaintiffs’ statutory claims, including their INA-based claim," although the " INA claim was squarely before the district court."  The Ninth Circuit referred to the "admonition that “courts should be extremely careful not to issue unnecessary constitutional rulings,”and concluded that because "Plaintiffs have shown a likelihood of success on the merits of that claim," the court "need not" and does not "reach the Establishment Clause claim to resolve this appeal."

On the constitutional ramifications of finding EO2 exceeded the president's power under the statute, the court invoked the famous "Steel Seizure Case" framework by Justice Jackson:

Finally, we note that in considering the President’s authority, we are
cognizant of Justice Jackson’s tripartite framework in Youngstown Sheet & Tube
Co. v. Sawyer. See 343 U.S. 579, 635–38 (1952) (Jackson, J., concurring).
Section 1182(f) ordinarily places the President’s authority at its maximum. “When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate.” Id. at 635. However, given the express will procedure for refugee admissions to this country, and § 1182(a)(3)(B)’s criteria for determining terrorism-related inadmissibility, the President took measures that were incompatible with the expressed will of Congress, placing his power “at its lowest ebb.” Id. at 637. In this zone, “Presidential claim to a power at once so conclusive and preclusive must be scrutinized with caution, for what is at stake is the equilibrium established by our constitutional system.” Id. at 638.

But, as the court continued, there would be a different state of affairs if Congress acted:

We have based our decision holding the entry ban unlawful on statutory considerations, and nothing said herein precludes Congress and the President from reaching a new understanding and confirming it by statute. If there were such consensus between Congress and the President, then we would view Presidential power at its maximum, and not in the weakened state based on conflict with statutory law. See id. at 635–38.

In two respects, the Ninth Circuit narrowed the injunction.  First, it vacated the preliminary injunction "to the extent it enjoins internal review procedures that do not burden individuals outside of the executive branch of the federal government."  Second, like the Fourth Circuit en banc opinion in International Refugee Assistant Project v. Trump, it held that the injunction should not be entered against the president as defendant.  But the essential effect of the opinion affirms the injunction against EO2.

Thus, the controversial presidential travel ban Executive Orders have been challenged in courts and found invalid.  EO1 was enjoined and eventually withdrawn.  This Ninth Circuit opinion on EO2 on statutory grounds, joins the Fourth Circuit en banc opinion in International Refugee Assistant Project v. Trump finding EO2 most likely unconstitutional on Establishment Clause.  The DOJ has sought review by the Supreme Court on the Fourth Circuit ruling; most likely the DOJ will similarly seek review of this Ninth Circuit ruling.

 

 

June 12, 2017 in Cases and Case Materials, Executive Authority, Family, First Amendment, Opinion Analysis, Race, Recent Cases, Religion, Standing, Supreme Court (US) | Permalink | Comments (0)

Tuesday, May 23, 2017

DOJ Tightens Sanctuary Cities EO and Moves to Reconsider Court's Injunction

AG Jeff Sessions issued a memo yesterday tightening President Trumps "sanctuary cities" executive order. The government then asked Judge Orrick to reconsider his earlier preliminary injunction halting the EO.

We posted on Judge Orrick's order here, with links to earlier posts.

Sessions's memo specifies that the government can only withhold certain DOJ and DHS grants (and not all federal grants) from sanctuary cities. Moreover, he wrote that DOJ will apply a certification requirement (putting the grant recipients on notice that they could lose funds if they "willfully refuse to comply with 8 U.S.C. 1373" (see below)) "to any existing grant administered by the Office of Justice Programs and the Office of Community Oriented Policing Services that expressly contains this certification condition and to future grants for which the Department is statutorily authorized to impose such a condition."

This portion of the memo is designed to satisfy the clear-notice requirement, the relatedness requirement, and no-pressure-into-compulsion requirement for conditioned federal spending.

Sessions's memo also defined "sanctuary jurisdiction" (for the first time) as "jurisdictions that 'willfully refuse to comply with section 1373.'" This portion of the memo is designed to exempt jurisdictions that do not "willfully refuse to comply with section 1373," including some that have sued the government.

At the same time, the government asked Judge Orrick to revise or lift his earlier preliminary injunction. The government's argument is that Sessions's memo takes care of all the likely legal problems that Judge Orrick identified (the conditions for federal spending, mentioned above) and leaves the plaintiffs with no standing.

May 23, 2017 in Cases and Case Materials, Executive Authority, Federalism, News, Tenth Amendment | Permalink | Comments (1)

Sunday, May 21, 2017

Special Counsel Appointment Docs and Regs

Deputy AG Rod Rosenstein's press release announcing the appointment of former FBI Director Robert S. Mueller III to serve as Special Counsel is here. The appointment order is here. The order includes the following authority:

to conduct the investigation confirmed by then-FBI Director James B. Comey in testimony before the House Permanent Select Committee on Intelligence on March 20, 2017, including:

(i) any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

(ii) any matters that arose or may arise directly from the investigation; and

(iii) any other matters within the scope of 28 CFR Sec. 600.4(a).

Rosenstein is acting AG for the purpose of the appointment, because AG Sessions recused himself. As Acting AG, Rosenstein has the AG's authority to appoint a special counsel under 28 USC 515.

DOJ regs on special counsel are at 28 CFR 600.1 - 600.10. Section 600.4 says that the special counsel's jurisdiction is set by the AG (or in this case the Acting AG) and provides for additional jurisdiction, with permission of the AG. Section 600.6 sets out the special counsel's power and authority, and provides for its independence. Section 600.7 says who the special counsel reports to ("The Special Counsel shall not be subject to the day-to-day supervision of any official of the Department."), when and how the AG can intervene in the Special Counsel's operations (when the AG concludes that "the action is so inappropriate or unwarranted under established Departmental practices that it should not be pursued."), and when and how the Special Counsel can be disciplined or removed ("for misconduct, dereliction of duty, incapacity, conflict of interest, or for other good cause, including violation of Departmental policies.").

May 21, 2017 in Appointment and Removal Powers, Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Monday, May 15, 2017

Ninth Circuit Oral Arguments in Hawai'i v. Trump

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)

Tuesday, May 9, 2017

Trump Sacks Comey

President Trump fired FBI Director James Comey today in a move that some are comparing to President Nixon's Saturday Night Massacre in the Watergate investigation. That's because Comey is leading a criminal investigation into whether Trump advisors worked with the Russian government to influence the 2016 presidential election.

The timing of the sacking--amid the Russia investigation, and for things that happened as far back as July 2016--raises significant questions about President Trump's reasons for firing Comey. It also raises questions whether a future FBI director can aggressively pursue the Russia investigation, or any other investigation that the administration disfavors, without fear of retribution.

As a result, President Trump's move elicited a new round of calls from congressional Democrats for an independent counsel into any Russian collusion.

Here's a document that includes a statement from the White House, President Trump's letter to Comey, AG Sessions' letter to President Trump, and the DOJ legal analysis and recommendation to fire Comey.

Deputy AG Rod Rosenstein, who penned the DOJ memo, wrote that Comey "usurp[ed] the Attorney General's authority on July 5, 2016, and announce[d] his conclusion the [Clinton e-mail] case should be closed without prosecution," and that Comey held "press conferences to release derogatory information about the subject of a declined criminal investigation," Clinton, in violation of "another longstanding principle." Rosenstein wrote that his "perspective on these issues is shared by former Attorneys General and Deputy Attorneys General from different eras and both political parties."

May 9, 2017 in Executive Authority, News | Permalink | Comments (1)

Monday, May 8, 2017

Fourth Circuit En Banc Hears Appeal from Injunction Against "Muslim Ban 2.0"

The Fourth Circuit en banc heard almost two hours of intense oral arguments in Trump v. International Refugee Assistance Project (IRAPfrom 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.

 

Screen Shot 2017-05-08 at 6.06.01 PM

Next Monday, a panel of the Ninth Circuit will hear the appeal in Hawai'i v. Trump.

 

May 8, 2017 in Current Affairs, Establishment Clause, Executive Authority, First Amendment, Oral Argument Analysis, Religion | Permalink | Comments (0)

Thursday, May 4, 2017

Is There Even Enough in Trump's Religion-Protection EO to Sue Over?

President Trump issued his long-awaited and much promoted executive order on protecting religious liberties today. Most say that when the rubber hits the road, the EO does, well, nothing at all, except maybe telegraph the President's feelings about the importance of protecting religious liberties. Even the ACLU, earlier geared up to sue, backed down when they read the actual language.

So: Is the ACLU right? Is there even enough in Trump's EO to sue over?

Probably not. Consider it, section by section:

Section 1 states that "[i]t shall be the policy of the executive branch to vigorously enforce Federal law's robust protections for religious freedom" and that "[t]he executive branch will honor and enforce those protections." At most this language states the administration's enforcement priorities for law that already exists.

Section 2 takes aim at the Johnson Amendment--that portion of IRC 501(c)(3) that bans nonprofits from directly or indirectly engaging in electioneering on behalf of, or in opposition to, any candidate for elective public office. (Nonprofits can engage in ordinary political speech; they do it all time. They just can't endorse candidates.) But the language of Section 2 does no such thing. It says, "the Secretary of the Treasury shall ensure, to the extent permitted by law, that the Department of the Treasury does not take any adverse action against any individual, house of worship, or other religious organization on the basis that such individual or organization speaks or has spoken about moral or political issues from a religious perspective, where speech of similar character has, consistent with law, not ordinarily been treated as participation or intervention in a political campaign on behalf of (or in opposition to) a candidate for public office by the Department of the Treasury." (Emphasis added.) In other words, the plain terms of Section 2 don't take down the Johnson Amendment (even if they could); instead, they comply with it.

Section 3 directs the relevant secretaries to "consider issuing amended regulations" to overturn the contraception mandate regs. Folks may agree or disagree over the wisdom of the contraception mandate, but there's nothing objectionable with a president asking an agency to "consider issuing amended regulations." And even if there were, the "consider" means that anyone challenging this portion of the EO could face an uphill battle to show standing.

The balance of the EO is just dressing.

In other words, the EO really doesn't do anything that one might sue over--at least yet. Even Section 2--the portion perhaps most likely to be challenged on Establishment Clause, Equal Protection, free speech, and "take care" grounds (and in fact challenged on exactly those grounds in a suit filed by the Freedom From Religion Foundation)--actually says that the administration will comply with the Johnson Amendment.

The Freedom From Religion Foundation wisely quotes President Trump throughout its complaint, arguing that the EO must be interpreted in light of his public statements (and thus drawing on this same (successful) strategy in other cases challenging the travel ban and the sanctuary cities EO).

But unlike those other EOs, the plain text of this one seems to do nothing--at least not yet.

May 4, 2017 in Cases and Case Materials, Establishment Clause, Executive Authority, News, Religion | Permalink | Comments (1)

Tuesday, April 25, 2017

Court Temporarily Halts Trump's Sanctuary Cities Order

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).

April 25, 2017 in Cases and Case Materials, Executive Authority, News, Opinion Analysis, Ripeness, Separation of Powers, Standing | Permalink | Comments (0)

Wednesday, April 12, 2017

UPDATED: Trump Administration to Continue Contested Insurance Subsidies Under ACA

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.

April 12, 2017 in Executive Authority, News, Separation of Powers | Permalink | Comments (0)

Friday, April 7, 2017

Did Trump Have Authority to Launch Strikes in Syria?

Charlie Savage provides a good starting point for the legal analysis at the NYT; Amber Phillips looks a little more at the politics at WaPo; Conor Friedersdorf has a little of both at The Atlantic.

For a deeper dive into the constitutional law, check out these:

Jack Goldsmith, at Lawfare

John Bellinger, same

Ashley Deeks, same

Andrew Kent, same

Marty Lederman, at Just Security

Harold Koh, same

Marty Lederman (responding to Koh), same

Ryan Goodman, same

Julian Ku, Opinio Juris

Deborah Pearlstein, same

Edward Swaine, same

Julian Ku (again), same

Ilya Somin, Volokh Conspiracy

Here are links to the cited OLC memos:

Libya (2011)

Kosovo (2000)

Haiti (1994)

For a broader, historical approach, check out this CRS report on Congressional Authority to Limit U.S. Military Operations.

April 7, 2017 in Congressional Authority, Executive Authority, News, Separation of Powers | Permalink | Comments (1)

Sunday, April 2, 2017

United States District Judge Refuses to Dismiss Complaint Against Trump on First Amendment Grounds

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.

 

 

April 2, 2017 in Executive Authority, Executive Privilege, First Amendment, Opinion Analysis, Speech | Permalink | Comments (0)

Wednesday, March 29, 2017

Hawai'i District Judge Extends Injunction Against Muslim Travel Ban 2.0

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.

650px-Seal_of_the_State_of_Hawaii.svgJudge 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.

March 29, 2017 in Establishment Clause, Executive Authority, Family, First Amendment, Opinion Analysis, Race, Religion, Standing | Permalink | Comments (0)

Saturday, March 25, 2017

Virginia District Judge Upholds Muslim Travel Ban 2.0

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. 

Linda Sarsour
Linda Sarsour, plaintiff via

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

Is Section 1373 Unconstitutional?

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.)

March 17, 2017 in Executive Authority, Federalism, News, Tenth Amendment | Permalink | Comments (1)

Thursday, March 16, 2017

Maryland Federal District Judge Issues Injunction Against Muslim Travel Ban 2.0

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.

640px-Anti_Trump_immigration_protest_in_Baltimore_DSC_6704_(32475523201)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].

 

March 16, 2017 in Courts and Judging, Current Affairs, Establishment Clause, Executive Authority, Fifth Amendment, Race | Permalink | Comments (0)

Wednesday, March 15, 2017

Ninth Circuit Declines En Banc Review in Washington v. Trump, Muslim Ban I . . . but with dissent

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.

BybeeThere is also a more than 20 page dissenting opinion authored by Judge Jay Bybee (pictured) and joined by Judges Kozinski, Callahan, Bea, and Ikuta.

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]. 

March 15, 2017 in Courts and Judging, Current Affairs, Due Process (Substantive), Executive Authority, First Amendment, Opinion Analysis, Religion | Permalink | Comments (1)

Hawai'i District Judge Issues TRO Against Muslim Travel Ban 2.0

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.

HawaiiDetailedMapNext, 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.

March 15, 2017 in Courts and Judging, Establishment Clause, Executive Authority, First Amendment, Opinion Analysis, Race, Religion, Standing | Permalink | Comments (0)

Monday, March 6, 2017

President Issues Revised "Travel Ban"

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.

 

 

 

March 6, 2017 in Equal Protection, Executive Authority, Fifth Amendment, First Amendment, Fundamental Rights, News, Race, Religion | Permalink | Comments (0)

Saturday, March 4, 2017

Florida State Judge Grants Writ of Habeas Corpus to Immigration Detainee on Tenth Amendment Grounds

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. 

220px-CapeFloridaLightJudge 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. 

Cape_Florida_1830

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.

[images: Cape Florida Lighthouse, Miami-Dade County via & in 1830, via]

March 4, 2017 in Executive Authority, Federalism, Habeas Corpus, Tenth Amendment | Permalink | Comments (0)