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: SCOTUS Disposition

On October 10, 2017 the United States Supreme Court issued an unsigned order declaring that because the case of Trump, et al. v. International Refugee Assistance et al. “‘expired by its own terms’ on September 24, 2017 the appeal no longer presents a ‘live case or controversy.'” The court further stated “[f]ollowing our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No.13, 780.

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.

Travel Ban: Ninth Circuit Update

On September 7, 2017, the U.S. Court of Appeals for the Ninth Circuit decided that grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of American residents in the affected countries can enter the USA. State v. Trump, 2017 WL 3911055 (9th Cir. Sept. 7, 2017). This decision follows the US Supreme Court’s decision in the case of Hawai’i v. Trump which on June 26, 2017, partially reinstated the “travel ban” executive order.

Analysis: Groups Sue Trump re. Transgender Military Service

On August 9, 2017, the National Center for Lesbian Rights (NCLR), GLBTQ Legal Advocates & Defenders (GLAD) and two law firms filed a federal lawsuit in the U.S. District Court for the District of Columbia challenging President Trump’s directive issued by tweet on July 26, 2017 to reinstate a ban on transgender people serving in the military. The suit is brought in the names of five presently anonymous service members who serve openly as transgender people (“Jane Does 1-5”) against, among others, Donald Trump, James Mattis, the U.S. Army, Air Force, Coast Guard, and the federal government.

The lawsuit requests declaratory and injunctive relief, that is, a pronouncement from the court adjudging that the directive issued by Donald Trump via tweet that transgender persons cannot serve in the military as unconstitutional and illegal, and prohibiting the government from removing currently serving transgender members of the military who have relied in good faith on the government’s previous policy.