On October 5, 2017 the Trump Administration filed a Brief asking the Supreme Court to dismiss the two cases challenging its March 6, 2017 Executive Order 13780 (Travel Ban II) on the grounds the cases are Moot.
The Plaintiffs in the two cases (Hawaii v. Trump and International Refugee Assistance Project v. Trump) urged the Court to decide the cases despite the recent changes (September 24, 2017 Proclamation) regarding travel restrictions arguing the cases are not Moot.
On October 5, 2017, Attorney General Jeff Sessions in a Memorandum instructed the Justice Department to take the position in court cases that transgender individuals are not protected under Title VII of the Civil Rights Act of 1964 that prohibits workplace discrimination based on “sex.”
Previously, Attorney General Eric Holder ordered the Justice Department to take the position that “sex” under Title VII encompassed gender identity, extending protection to transgender people.
On September 6, 2017 15 states and the District of Columbia filed a federal lawsuit (New York et al. v. Trump et al.) in the United States District Court for the Eastern District of New York challenging the Department of Homeland Security’s (DHS) September 5, 2017 Memorandum rescinding the Deferred Action for Childhood Arrivals (DACA) program.
Following the Hawaiian Judge’s ruling of July 13, 2017 (2017 WL 2989048), the Supreme Court on July 19, 2017 (2017 WL 3045234), has denied a request to clarify its order of June 26, 2017. It noted, however, that it would not disturb the decision of the district court holding that grandparents could not be excluded from the definition of “close family relationship”. The court nevertheless stayed the district court’s order concerning refugee resettlement agencies.
A Federal Judge in Hawaii ruled on Thursday July 13th, 2017 that three categories of individuals are now exempt from the revised travel ban (Executive Order 13780): grandparents; refugees who have a “formal assurance from an agency within the United States that the agency will provide…. placement services;” and refugees in the Refugee Admissions Program through the Lautenberg Program.
On June 26, 2017, the U.S. Supreme Court, in a per curiam opinion, granted certiorari in Trump v. State of Hawaii and Trump v. International Refugee Assistance Project, 2017 WL 2722580 (2017) ordering a consolidated oral argument “during the first session of October Term 2017” (id. At *5). The October term commences on October 2. The Court also partially lifted the restrictions of the preliminary injunction on Executive Order 13780. Under this decision, the travel ban is in effect against “foreign nationals who lack any bona fide relationship with a person or entity in the United States.” Id. At *5-7.
On June 12, 2017, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, in a unanimous decision, affirmed the Preliminary Injunction order that had been entered by the U.S. District Court for the District of Hawai’i (Hawaii v. Trump, 2017 WL 1011673 (D. Haw. Mar. 15, 2017)) against the second “Muslim travel ban” Executive Order (E.O. 13780). The Court stated that “immigration, even for the President, is not a one-person show.
On May 25, 2017, the U.S. Court of Appeals for the Fourth Circuit, in a 10-3 decision, affirmed the preliminary injunction that had been entered by the U.S. District Court for the District of Maryland (Int’l Refugee Assistance Project v. Trump, 2017 WL 1018235 (D. Md. Mar. 16, 2017)) against the second “Muslim travel ban” Executive Order (E.O. 13780).
The Constitutionality of Executive Order 13768 Generally
On April 25, 2017, in County of Santa Clara v. Trump, 2017 WL 1459081 (N.D.Cal., 2017), a district court issued a preliminary nationwide injunction (pdf) against enforcing section 9 of executive order 13768, which seeks to withhold Federal grants from sanctuary jurisdictions. The court found that enforcement of section 9 of the order violated the Constitution’s separation of powers, the Tenth Amendment, and the Fifth Amendment’s due process requirements.
Following up on the President’s executive order 13768, “Enhancing Public Safety in the Interior of the United States,” the Trump Administration is targeting jurisdictions which as a policy do not honor ICE detainers. ICE was publishing a weekly list of cities refusing to abide by the ICE detainer request to pressure these jurisdictions into detaining persons at the request of ICE. Recently, ICE suspended this practice after two such reports were issued, reportedly due to “errors” in the reports. The ICE detainers give rise to constitutional concerns.