2018 continued to be a tumultuous and troubling year for Americans who believe that our Constitution protects us from violations of free speech, free press, due process, equal protection under the law, and the arbitrary power of government to usurp the rule of law. In 2018, the federal courts demonstrated again that they serve as the safety valve, checking abuses of power by the executive branch of government, including notably President Donald Trump and his administration.
More than one thousand Americans from forty different states have joined together in declaring independence from the policies and practices of President Trump. They anticipated that President Trump and his administration would violate basic American values and are documenting the major federal lawsuits challenging the President and his administration.
On November 13, 2018, Cable News Network (CNN) and Abilio James Acosta sued President Donald Trump, John Kelly, William Shine, Sarah Huckabee Sanders, and the United States Secret Service, alleging that the above listed defendants revoked Mr. Acosta’s White House credentials in violation of the 1st Amendment and the due process clause of the 5th Amendment. On the same day, CNN and Mr. Acosta also filed a motion for a temporary restraining order and preliminary injunction requiring the above listed defendants to restore Mr. Acosta’s credentials.
On October 16, 2018, PEN American Center, Inc. filed a complaint at the United States District Court, Southern District of New York, against Donald Trump in his official capacity as President of the United States. PEN America is an association of writers and other literary and media professionals, including journalists who “work for, or with, the Washington Post, Time Warner, CNN, NBC, the White House press corps, and other entities against whom Trump has used, or threatened to use, the machinery of government to retaliate for or suppress their critical speech.”
In the Complaint, PEN America alleges that Donald Trump “directed his threats and retaliatory actions at specific outlets whose content and viewpoints he views as hostile.” (Compl. para 2.) PEN America argues that “President Trump has First Amendment rights and is free to criticize the press vehemently, but he is not free to use the power and authority of the United States government to punish and stifle it.”
On January 9, 2018, Judge William Alsup of the federal district court for the Northern District of California enjoined (i.e. stopped) the administration’s recession of the Deferred Action for Childhood Arrivals (DACA) program.
DACA allowed persons who entered the U.S. as children permission to work and pay taxes, return to the U.S. following departure, and stay in the U.S. without accruing unlawful presence. In September 2017, Attorney General Jeff Sessions, citing the threat of potential litigation concerning DACA and claiming that DACA was unconstitutional, directed the Acting Secretary of the Department of Homeland Security, Elaine Duke, to rescind DACA.
2017 was a tumultuous, stressful and painful year for the many Americans who believe we are all created equal and that we possess natural and constitutional rights that include freedom, justice, liberty, equality, fairness and opportunity.
January began inauspiciously when President Trump and his administration removed all references to civil rights, LGBT rights, climate change and Spanish language content from the White House website. Later in January, President Trump issued Executive Orders mandating that a wall be built along our Southern border with Mexico, targeting sanctuary cities and creating a travel/Muslim ban prohibiting entry into the United States.
In late December, a federal judge in New York dismissed a lawsuit claiming that President Trump is violating the Emoluments Clauses of the Constitution. The Foreign Emoluments Clause precludes a president from receiving any gifts or compensation from foreign governments without the consent of Congress. The Domestic Emoluments Clause “provides that the president’s compensation for his services as president shall not change during his term in office and prohibits him from drawing any additional compensation or salary from the federal or state governments.” Dec 21, 2017 Memorandum Decision and Order (MDO), p. 5. (For more on the Emoluments Clauses, see our June 22 update.)
In the lawsuit, individuals in the hotel and restaurant business claim that they compete with president Trump’s businesses and are at risk of losing customers to Trump Organization hotels and restaurants. Foreign governments and diplomats, they argue, frequent Trump Organization establishments, including Trump’s Washington D.C. hotel located across from the White House, in an effort to curry favor with the President.
On October 30, 2017 Collen Kollar-Kotelly, U.S. District Judge for the District of Columbia issued a preliminary injunction in Doe v. Trump. In its 76 page Memorandum Opinion the Court stated the transgender ban “stigmatizes Plaintiffs as less capable of serving in the military, reduces their stature among their piers and officers, stunts the growth of their careers and threatens to derail their chosen calling or access to unique educational opportunities.” October 30, 2017 Mem. Op. at 73 and “there is absolutely no support for the claim that service of transgender individuals would have any negative effect of the military at all.” Id. at 75.
On December 4, 2017, the U.S. Supreme Court issued an unsigned order, granting an application for a stay, pending the hearing and resolution of the expedited appeal to the 9th circuit. This order stayed the preliminary injunction on Travel Ban III that was granted by Judge Watson in Trump v. Hawaii (WL 5987406 (U.S. 2017)).
This means that Travel Ban III will be in full effect until the Ninth Circuit decides the government’s appeal and/or when and if a petition for certiorari (i.e. a request for appeal to the Supreme Court) is filed with the Supreme Court and the Supreme Court grants the petition and decides the matter.
On September 24, 2017, President Trump by proclamation enacted the third iteration of the travel ban. See Declaration17 Update, Travel Ban Ill, October3, On October 17, 2017, Judge Derrick K. Watson of the District Court of Hawaii enjoined, i.e. stopped, on a nationwide basis the implementation and enforcement of the third travel ban (State v. Trump, 2017 WL 4639560 (D. Haw. Oct. 17, 2017)).
The Court held that the third travel ban suffered from the same shortcomings as the previous version – insufficient findings that “the entry of more than 150 million nationals from six specified countries would be ‘detrimental to the interests of the United States,’” and that it “plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to both Section 1152(a) and the founding principles of this Nation.”
On October 10, 2017 the United States Supreme Court issued an unsigned order declaring that because the case of Trump, et al. v. International Refugee Assistance et al. “‘expired by its own terms’ on September 24, 2017 the appeal no longer presents a ‘live case or controversy.'” The court further stated “[f]ollowing our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No.13, 780.