DACA Injunction and Department of Justice Reaction

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: The Constitution, Federal Courts and President Trump

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.

Emoluments: December Ruling

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.

Birth Control Coverage: Update

On October 6th, 2017, the Department of Health and Human Services issued two rules rolling back a federal requirement that employers must include birth control coverage in their health insurance plans. The rules offer an exemption to any employer that objects to covering contraception services on the basis of sincerely held religious beliefs or moral convictions. Approximately 55 million women have access to birth control without co-payments because of the contraceptive coverage mandate (under the Affordable Care Act).

Update: Transgender Military Ban

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.

Travel Ban III: District Court of Hawaii

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.”

Travel Ban II: New Administration Filing

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.

Update: Transgender Court Cases

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.

Travel Ban III

On Sunday September 24, 2017, President Trump amended the existing travel ban of March 6, 2017 (Executive Order 13780) by proclamation (titled “Presidential Proclamation Enhancing Vetting Capabilities and Processes for Detecting Attempted Entry Into the United States by Terrorists or Other Public-Safety Threats”). This version of the travel ban attempts to address many of the issues that the courts had identified in the previous versions. Specifically, this third ban is different in that it (1) sets forth specific reasons for disallowing entry of nationals of certain countries, (2) applies different levels of scrutiny and suspension on entry to different countries, (3) provides mechanisms for countries to be added or removed from the list, (4) is indefinite in duration, (5) adds North Korea, Venezuela, and Chad while removing Sudan, and (6) provides detailed information on persons who are not covered by it, including classes of persons identified by the Supreme Court.

This travel ban version may moot the legal challenge to E.O. 13780. The Supreme Court has already cancelled the scheduled October oral argument and asked the parties to submit briefs by October 5, 2017, addressing “whether or to what extent the proclamation may render the case moot.” The Supreme Court also asked for briefings on the suspension of the nation’s refugee program, which is not addressed in the proclamation and is scheduled to expire in October, as to whether that issue would soon be moot.