Updates

Following up on Executive Order 13768, “Enhancing Public Safety in the Interior of the U.S.”

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.

re Executive Order March 6, “Protecting the Nation from Foreign Terrorist Entry into the United States”

He issued on March 6, 2017 a second Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The new EO, among other actions, temporarily suspends from “entry into the United States” certain nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen, and also temporarily suspends the U.S. Refugee Admissions Program.

Like the previous EO, the new EO has been challenged in federal court. On March 15, 2017, in State of Hawaii v. Trump, the court issued a nationwide TRO against implementation of the above-described provisions of the new EO, holding that Hawaii was likely to succeed on its claim that the new EO violates the Establishment Clause of the First Amendment. …

re the Johnson Amendment

He has declared that his administration would “totally destroy” the Johnson Amendment, thereby enabling tax-exempt churches to endorse or oppose political candidates and to engage in lobbying activities. Courts have held that the Johnson Amendment does not violate the First Amendment.

The Johnson Amendment changed the tax code in 1954 to prevent 501(c)(3) entities—that is, tax-exempt charities, including churches—“from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” …

re Executive Order (EO) “Border Security and Immigration Enforcement Improvements”

He signed the Executive Order (EO) entitled “Border Security and Immigration Enforcement Improvements.” The EO declares that it is the policy of the executive branch for a wall along the southern border with Mexico to be built. The EO orders the Secretary of Homeland Security to design and construct the wall, to allocate funding to the wall, and to prepare a Congressional budget request. The Secure Fence Act of 2006 (“SFA”) is one of the statutes this EO relies on. The SFA authorizes the government to act as “necessary and appropriate.” The U.S. Supreme Court has held that under such a statute, “no regulation is ‘appropriate’ if it does significantly more harm than good.”

re Executive Order entitled “Enhancing Public Safety in the Interior of the United States”

He signed the Executive Order entitled “Enhancing Public Safety in the Interior of the United States.” The EO targets “sanctuary” jurisdictions, stating that it is the policy of the executive branch to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal Funds, except as mandated by law” and “as deemed necessary for law enforcement purposes[.]” Funding conditions not germane to the purpose of the funds raise a serious Tenth Amendment constitutional question.

re Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.”

He signed the Executive Order (EO) entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The EO, among other actions, temporarily suspends the operation of the U.S. Refugee Admissions Program and indefinitely bans the entry of Syrian refugees; temporarily suspends entry of all persons from Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen; and institutes exceptions and preferences for refugees who are members of a religious minority and claim religious persecution.