Immigration: Ninth Circuit Ruling Affirms Injunction Maintaining DACA

On September 5, 2017, then-U.S. Attorney General Jeff Sessions announced that the government was terminating the Deferred Action for Childhood Arrivals (DACA) program. That same day, then–Acting Secretary of Homeland Security Elaine Duke issued a memorandum confirming the change. Multiple lawsuits challenging the Trump administration’s actions to terminate DACA were filed across the country. On January 9, 2018, Judge William Alsup of the U.S. District Court for the Northern District of California issued a preliminary injunction requiring the federal government to maintain the DACA program on a nationwide basis.

On November 8, 2018, the Ninth Circuit issued a decision (hereafter DACA II) affirming the lawfulness of the preliminary injunction. The Ninth Circuit first ruled that Acting Secretary Duke’s decision to rescind the DACA program is reviewable under the APA, because the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS. It also ruled that INA Section 1252(g) does not deprive courts of jurisdiction to review the DACA rescission order.

Immigration: District Court Issues Restraining Order on Trump Effort to Limit Asylum

On November 9, 2018, the Departments of Justice and Homeland Security published a Rule that placed an additional restriction on the right of asylum, namely that an asylum seeker would be ineligible for asylum if he or she entered the country in violation of a presidential Proclamation issued on or after that date. On the same day, President Trump issued a proclamation that suspended for 90 days the right of asylum seekers to enter the country across the U.S.-Mexico border except through officially designated ports of entry.

In response, various social service and legal organizations that assist immigrants filed a federal lawsuit in United States District Court (Northern District of California) against President Trump and others to seek a Temporary Restraining Order (TRO) to prevent the Rule from taking effect. On November 19, 2018, District Court Judge Jon S. Tigar issued a lengthy decision in which he scheduled a hearing on this matter for December 19, 2018, and imposed a nationwide TRO pending that hearing.

Maryland Challenges the Appointment of Whitaker as Acting Attorney General

On November 13, 2018, Maryland Attorney General Brian E. Frosh filed a motion challenging the appointment of Matthew G. Whitaker as Acting Attorney General, as part of the state’s lawsuit, Maryland v. U.S. et al. The motion asks the court to declare that Deputy Attorney General Rod Rosenstein should be Acting Attorney General and represent the United States in this case.

First Amendment: PEN Center v. Trump

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.”

Emoluments: DC Federal Court Holds Plaintiffs Have Standing to Sue

On September 28th, 2018, Judge Emmet G. Sullivan of United States District Court for the District of Columbia denied-in-part President Trump’s Motion to Dismiss and found that the plaintiffs have standing to sue in Senator Richard Blumenthal et al., v. Donald J. Trump, in his official capacity as President of the United States. The plaintiffs, 201 minority members of Congress led by Senator Richard Blumenthal, allege that President Trump violated the Foreign Emoluments Clause, which states that “no person holding any office of profit or trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”

Judge Sullivan ruled that “each time the President allegedly accepts a foreign emolument without seeking congressional consent, plaintiffs suffer a concrete and particularized injury—the deprivation of the right to vote on whether to consent to the President’s acceptance of the prohibited foreign emolument—before he accepts it. And although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote that was nullified.” Thus, Judge Sullivan ruled that plaintiffs have standing to bring the claims because they adequately alleged that their injury-in-fact can only be “redressed by a favorable judicial decision”—not a legislative remedy.

Emoluments: District Court Directs Maryland, D.C. Case to Move Forward

On July 25th, 2018, a United States District Court Judge in Greenbelt, Maryland ruled that the Attorneys General of the State of Maryland and the District of Columbia could move forward in their lawsuit against President Trump. The Attorneys General claim that the President’s actions in relation to his continued involvement in the Trump Organization—specifically the Trump Hotel—violate the Foreign and Domestic Emoluments Clauses of the U.S. Constitution.

While the Foreign Emoluments Clause bans, without Congressional approval, “any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State,” the Domestic Clause bars the President from receiving any benefits other than his compensation from federal, state, or local governments. The Plaintiffs in this case have “convincingly argued” that an “emolument” in both the Foreign and Domestic Emoluments Clauses, is any “profit,” “gain,” or “advantage,” that one might receive. While the President claims that the Plaintiffs have interpreted the term “emolument” too broadly, the presence in the Emoluments Clauses of modifiers such as “any” and “of any kind whatever” indicates that “the term was meant to have the widest scope and applicability.”