By Rachel Serebrenik Over the last two months, federal judges across the United States have generally ruled in favor of “sanctuary cities.” On June 6, 2018 U.S. District Judge Michael Baylson ruled that the Trump administration cannot cut off funds to Philadelphia’s […]
On June 26th, 2018, the United States Supreme Court ruled 5-4 in favor of President Trump’s updated travel ban, prohibiting the entry into the United States of foreign nationals from seven countries, of which five are predominately Muslim. The Court […]
On April 25, 2018 the Supreme Court of the United States heard oral arguments for the landmark case State Of Hawai’i And Ishmael Elshikh vs. Donald J. Trump, et al in which the State of Hawaii sued the federal government to stop the implementation of Executive Order No. 13,780. The executive order, which is titled “Protecting the Nation from Foreign Terrorist Entry into the United States.”, is President Trump’s third attempt at a travel ban and it restricts the entry of foreign nationals from 6 specified Muslim countries and two non-Muslim majority nations (Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad). Chad was later removed from the Travel Ban on April 11, 2018. It also suspends entrants from the United States refugee program for specified periods of time.
On February 26, 2018, the Supreme Court declined to hear the Trump Administration’s appeal to the decision for the DACA case in the Northern District of California. In an unusual step, called “certiorari before judgment,” the Department of Justice (DOJ) had not only appealed to the Court of Appeals for the Ninth Circuit, based in San Francisco, to review the Northern District of California’s decision, but simultaneously requested the Supreme Court to immediately take up the case, bypass the Ninth Circuit, and issue an emergency ruling on the merits. Certiorari before judgement has typically been used only in major cases involving national crises that require immediate resolution, such as in the cases Youngstown Sheet & Tube Co. v. Sawyer, when President Harry Truman attempted to seize control of the U.S. Steel industry for the war effort in Korea, or U.S. v. Nixon when President Richard Nixon’s refused a special prosecutor’s subpoena to turn over White House tape recordings.
On March 6, 2018, the Department of Justice (DOJ) filed a complaint against the State of California in the Eastern District of California (United States of America v. California) over three new “Sanctuary City” laws signed by Governor Jerry Brown that took effect at the start of this year that limit the California police departments to cooperate, share information with, and transfer detained undocumented individuals to the Department of Homeland Security (DHS) and Immigration and Customs Enforcement (ICE). The DOJ’s Complaint relies on the broad authority of the Executive Branch to enforce immigration laws, as well as the Supremacy Clause of the Constitution that establishes, as the Complaint cites, “a state enactment is invalid if it ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’ Hines v. Davidowitz, 312 U.S. 52, 67 (1941), or if it ‘discriminate[s] against the United States or those with whom it deals,” South Carolina v. Baker, 485 U.S. 505, 523 (1988).’” The DOJ also cites that California does not generally apply similar laws that limit cooperation with other federal agencies, and thus the DOJ claims that these Sanctuary City laws are discriminatory toward the agencies that enforce compliance with federal immigration laws.
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.
On January 19, 2018, the United States Supreme Court announced it would hear the Travel Ban III case (Trump v. Hawaii) this term. Per Adam Liptak in The New York Times, “[t]he justices are likely to hear arguments … in the spring and to issue a decision in late June.”
On Friday, December 22, 2017, the Ninth Circuit Court of Appeals in Seattle affirmed in part and vacated in part the preliminary injunction order of the district court regarding the Trump Administration’s third travel ban attempt. This follows the U.S. Supreme Court’s order for a stay pending the resolution of the Ninth Circuit and Fourth Circuit appeals.
In their opinion, the judges concluded that the executive order conflicts with the Immigrant and Nationality Act’s “prohibition on nationality-based discrimination in the issuance of immigrant visas,” and that the “President’s issuance of the proclamation once again exceeds the scope of his delegated authority.”
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.”