Update: Supreme Court Declines DACA Review

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.

Department of Justice Takes Issue with California “Sanctuary City” Laws

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.

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).

Travel Ban III: Update

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.”

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: SCOTUS Keeps Ban in Effect Pending Appeal

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.