Updates

Travel Ban III: Supreme Court Reviews Travel Ban

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.

Emoluments: Maryland Federal Court Holds Plaintiffs Have Standing in Challenge

On March 28, 2018, a Maryland District Court denied-in-part President Trump’s Motion to Dismiss a lawsuit (The District of Columbia and The State of Maryland v. Donald J. Trump, individually and in his official capacity as President of the United States), alleging that Trump violated the Foreign and Domestic Emoluments Clauses. The case was filed by the Attorneys General of the District of Columbia and Maryland. The plaintiffs argue that Trump’s emoluments violations harm the sovereign, quasi-sovereign, proprietary and parens patriae interests of Maryland and the District of Columbia. In addition, the plaintiffs argue that Trump’s violations harm the interest of Maryland and D.C. in “protecting their economies and residents.”

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.”