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Political Philosophy and Law > Legal Developments regarding the Trump Administration's Immigration and Refugee Policies

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message 1: by Alan, Moderator and Author (last edited Feb 04, 2017 02:19PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
I have created this separate topic on legal developments regarding the Trump administration's immigration and refugee policies, because events during the first two weeks of the presidency of Donald J. Trump indicate that this topic will involve much in the way of executive orders, judicial decisions/opinions, legislation, and administrative regulations.

Since this topic involves current events, a word of caution is in order—both for myself and for other posters. In keeping with the general principles of this group, I do not intend for this topic to become a partisan debate on the pros and cons of the administration's statements or actions on immigration or refugees. Rather, I wish to focus on the constitutional and legal issues that go to the root of what the US governmental order is or should be. Given the currency of the present disputes, it is going to be difficult to make this distinction, but I will attempt to do so in my posts, and I request that other posters do the same.

Generally, the executive orders of President Trump can be located here. The presidential memoranda can be located here.

On January 25, 2017, President Trump issued an executive order entitled Enhancing Public Safety in the Interior of the United States. This executive order provides, inter alia, for 10,000 additional immigration officers; the deportation of all deportable aliens who have committed any crime, are accused of having committed a crime, or have committed acts that would constitute a crime; and the withholding of federal grants from "sanctuary jurisdictions" (also known as "sanctuary cities") except as necessary for law enforcement purposes. Although I am not aware of any litigation filed to date regarding this executive order, such litigation will certainly be forthcoming.

On January 25, 2017, President Trump also issued an executive order entitled Border Security and Immigration Enforcement Improvements. This executive order provides, inter alia, for the construction of a physical wall between the United States and Mexico, an accounting of all federal aid to Mexico (perhaps as a tool to make Mexico pay for the wall, though this is not explicitly stated), the hiring of 5,000 additional Border Patrol agents, and other measures to curb illegal immigration between Mexico and the United States. I am not aware of any litigation filed to date regarding this executive order.

The January 27, 2017 executive order regarding a travel ban from certain Muslim countries is discussed below in post 4.


message 2: by Mimi (new)

Mimi | 96 comments San Francisco has sued about the Sanctuary City order by Trump, and Pennsylvania's AG has talked about defending Philadelphia.
http://www.reuters.com/article/us-usa...


message 3: by Alan, Moderator and Author (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Mimi wrote: "San Francisco has sued about the Sanctuary City order by Trump, and Pennsylvania's AG has talked about defending Philadelphia.
http://www.reuters.com/article/us-usa......"


Thank you for this information.


message 4: by Alan, Moderator and Author (last edited Feb 04, 2017 02:22PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
On January 27, 2017, President Trump issued an executive order entitled Protecting the Nation from Foreign Terrorist Entry into the United States. This executive order provided, inter alia, as follows:

"I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from [Iran, Iraq, Syria, Libya, Somalia, Sudan, and Yemen] would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas)."

The executive order further stated:

"I hereby proclaim that the entry of nationals of Syria as refugees is detrimental to the interests of the United States and thus suspend any such entry until such time as I have determined that sufficient changes have been made to the USRAP [U.S. Refugee Admissions Program] to ensure that admission of Syrian refugees is consistent with the national interest."

The executive order has special provisions applicable only to religious minorities (evidently meaning, according to Trump's own statements, Christians):

"Upon the resumption of USRAP admissions, the Secretary of State, in consultation with the Secretary of Homeland Security, is further directed to make changes, to the extent permitted by law, to prioritize refugee claims made by individuals on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in the individual's country of nationality. Where necessary and appropriate, the Secretaries of State and Homeland Security shall recommend legislation to the President that would assist with such prioritization."

It is not clear from the foregoing whether a minority sect of Islam (for example Shias in a Sunni-majority country or vice versa) would be entitled to such prioritization.

As the world now knows, the implementation of this executive order wreaked havoc with the travel situations of individuals from the blacklisted countries who were in transit when the order was promulgated.

On February 3, 2017, the United States District Court for the Western District of Washington granted a nationwide Temporary Restraining Order (TRO) prohibiting the enforcement of significant portions of the executive order. This TRO did not discuss why the District Court considered the executive order to be unconstitutional. The Government has announced that it will appeal this TRO to the U.S. Court of Appeals for the Ninth Circuit. (It may already have done so by the time you read this.)

On the same date, however, the United States District Court for the District of Massachusetts filed a Memorandum and Order deferring to the executive branch on these issues.

For additional and updated developments, see this article.


message 5: by Randal (last edited Feb 05, 2017 11:48AM) (new)

Randal Samstag (scepticos) I was at dinner last night with two lawyers, who had worked with Judge Robart, the 9th Circuit Judge who invalidated the order on February 3. They worked with him when he was managing attorney in a private law firm in Seattle. They (and another lawyer who is a neighbor) pointed me to the video of the oral argument in the case. A very interesting exchange took place between the attorney from the Justice Department (Bennett) and Judge Robart. Let’s pick up the exchange at about 37:57 in the linked video starting with a question from Judge Robart to attorney Bennett:

R: “The rationale for Section 3 is invoking 9/11 and my question to you is have there been terrorist attacks in the United States by refugees or other immigrants from the seven countries listed since 8/11?"

B: “Your honor I don’t know of specific facts or details of attacks or planned attacks . . . " She goes on to say that the order was not just based on 9/11 and that the seven countries were already designated by the prior administration for special scrutiny.

R: “Well, let me walk you back then. You are from the Department of Justice, if I understand correctly, so you are aware of law enforcement. How many arrests have there been of foreign nationals from these seven countries since 9/11?”

B: "Your honor, I don’t have that information. I am from the Civil Division if that helps me get off the hook any (laughter).”

R: “Well, let me tell you; the answer to that is none, as best as I can tell. So I mean, you know, you are here arguing on behalf of someone who says we have to protect the United States from these individuals coming from these seven countries and there is no support for that.”

B: “Your honor, I think that the point is that because this is a question of foreign affairs this is an area where Congress has delegated authority to the President to make these determinations. It’s the president that gets to make the determinations and the court doesn’t have the authority to look behind those determinations. They are essentially determinations that are committed to agency discretion. . . . . ”

R: “Well, Counsel, I understand that from your papers and you very forcefully presented that argument, but I am also asked to look and determine if the executive order is rationally based. And rationally based to me implies that to some extent I have to find it grounded in fact as opposed to fiction.”

B: “Your honor, we actually don’t think you are supposed to look at whether it is rationally based . . . . .”

Judge Robart eventually didn't find that a winning argument!


message 6: by Alan, Moderator and Author (last edited Feb 05, 2017 12:22PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Randal wrote: "I was at dinner last night with two lawyers, who had worked with Judge Robart, the 9th Circuit Judge who invalidated the order on February 3. They worked with him when he was managing attorney in a..."

Thanks, Randal, for your comment and for the link to the video. Judge Robart's remark that he must distinguish between fact and fiction is priceless. Perhaps on appeal the Government will argue that the Court should recognize "alternative facts" and cite the famous legal authority Kellyanne Conway for that proposition.

There is, however, a considerable amount of case law (including, as of Feb. 3, the decision in the District of Massachusetts case) holding that the courts should defer to the executive branch on matters of alleged national security. The late Chief Justice Rehnquist wrote a book on this (guess which side he was on), which I read many years ago. On the other side, there is a recently published book arguing that the courts have extended such deference too far. I'll cite that book in another post when I get to that point.

I am preparing an update reflecting developments in the Ninth Circuit Court of Appeals. The transcript for the Feb. 3, 2017 TRO hearing is Exhibit E to the Government's motion to stay pending appeal. I will finish reading the transcript before I post my update to my preceding posts.

Note on legal jargon: the term "Ninth Circuit" refers to the Ninth Circuit Court of Appeals and to the precedential decisional authority of the Ninth Circuit Court of Appeals. It can also refer to the geographical area for which the Ninth Circuit Court of Appeals is the usual court of appeals (though in some specialized cases the appeal is to the Federal Circuit Court of Appeals or perhaps—if I recall correctly—on rare occasions to the D.C. Circuit Court of Appeals). Judge Robart is a District Court judge, sometimes referred to as a "District Judge." A "Ninth Circuit judge" is one who sits on the Ninth Circuit Court of Appeals.


message 7: by Alan, Moderator and Author (last edited Feb 05, 2017 05:20PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Update in the Washington v. Trump case: The US Government appealed the District Court's Temporary Restraining Order ("TRO") in the Washington v. Trump case to the Ninth Circuit Court of Appeals. Among the filings in the Ninth Circuit was the Government's Emergency Motion for [Administrative] Stay and Motion to Stay [the TRO] Pending Appeal. The transcript of the February 3, 2017 TRO hearing is attached as Exhibit E to that motion. In an Order filed February 4, 2017, the Ninth Circuit denied the Government's request for an immediate administrative stay of the TRO pending further consideration of its motion to stay the TRO pending appeal. The opposition of Appellees (State of Washington and State of Minnesota) to the motion to stay the TRO pending appeal is due today, Sunday, February 5, 2017, by 11:59 p.m. PST. The Government's reply in support of the emergency motion is due February 6, 2017, by 3:00 p.m. PST. Because all filing in federal courts is now done electronically, a federal court can specify deadline dates and times when the court is not normally open for business.

A spokesman for the US Department of Justice reportedly stated: “With the fast briefing schedule the appeals court laid out, we do not plan to ask the Supreme Court for an immediate stay but instead let the appeals process play out." Although the exact meaning of this statement is not entirely clear, it appears to mean that the Government will wait to see the result of its motion to stay pending appeal before appealing to the Supreme Court. Under the Federal Rules of Civil Procedure, a party can appeal the grant or denial of injunctive relief to the next highest court even though there is not a final order in the case.


message 8: by Alan, Moderator and Author (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Randal,

Greetings from Greater Appalachia to the Left Coast. This article explains why the State of Washington is leading the charge against the Trump executive order on immigrants and refugees. I see that the governor is one of your neighbors. Indeed, your island appears to be ground zero in this battle! Before his first term is up, I wouldn't be surprised if Trump tries to excommunicate both Washington and California from the Union. That's reason enough not to secede.

Alan


message 9: by Alan, Moderator and Author (last edited Feb 05, 2017 04:57PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
The Book Review section of the January/February 2017 issue of The Federal Lawyer contains two reviews that are relevant to the current controversies regarding President Trump's executive orders relating to immigration and refugees.

Louis Fisher, an eminent constitutional law scholar, reviews David Rudenstine's The Age of Deference: The Supreme Court, National Security, and the Constitutional Order (New York: Oxford University Press, 2016) on pages 90-92 of this magazine. Fisher himself is the author of twenty-four books, including The Law of the Executive Branch: Presidential Power (New York: Oxford University Press, 2014).

Pages 92-93 of this issue of The Federal Lawyer contain a review by R. Mark Frey, an immigration attorney, of Leon Wildes's John Lennon vs. The U.S.: The Inside Story of the Most Bitterly Contested and Influential Deportation Case in United States History (Chicago: American Bar Association, 2016). Wildes represented Lennon and his wife, Yoko Ono, against a determined effort by the Nixon administration to deport them when they were in the United States trying to obtain custody of Ono's daughter from a previous marriage.

These reviews will be accessible online at no charge until the next issue of The Federal Lawyer comes out, probably in early March 2017.


message 10: by Randal (last edited Feb 06, 2017 04:46AM) (new)

Randal Samstag (scepticos) Alan wrote: "I see that the governor is one of your neighbors. Indeed, your island appears to be ground zero in this battle!...."

Jay regularly commuted on the ferry to and from his job in DC as our congressman. He and his wife, Trudi, have been prominent members of the Bainbridge Island community for many years. He moved here when he lost his previous congressional seat in Eastern Washington a couple of decades ago. He and Trudi live down in the Governor's mansion in Olympia now, but I expect they will be coming back to their old brick house down by the Winslow sewage treatment plant after he retires as governor. The siting of the treatment plant was done during the tenure as mayor of a local accountant who previously owned Jay and Trudi's house. The mayor was such a public spirited citizen that he made no complaint at having the treatment plant go in a block away from his house!

The Inslee house is not so very far from the house once owned by Warren Magnuson, ex-Senator of our state. Our neighbor here was the best man at Scoop Jackson's wedding. So Bainbridge has had its share of connections to Washington State political figures.

A connection to immigration rights, by the way, is the story of the relocation of Japanese American citizens during WWII. Bainbridge's Japanese American families were the first to be evacuated to Manzanar. Current day Japanese American and other residents spearheaded construction of a memorial park at the site of the landing from which these neighbors were removed by boat.

Cheers,

Randal


message 11: by Alan, Moderator and Author (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Randal wrote: "The Inslee house is not so very far from the house once owned by Warren Magnuson, ex-Senator of our state. Our neighbor here was the best man at Scoop Jackson's wedding."

Randal, the fact that both you and I remember Warren Magnuson and Scoop Jackson kind of dates us!


message 12: by Alan, Moderator and Author (last edited Feb 07, 2017 08:11PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Oral argument in the case of Washington v. Trump will be conducted today before the U.S. Court of Appeals for the Ninth Circuit on the issue of whether the District Court's nationwide stay of the president's executive order imposing a travel ban on visitors from certain Muslim-majority countries to the United States should be approved, pending determination of the merits, or vacated. The oral argument will be conducted by telephone at 3:00 p.m. Pacific Standard Time (6:00 p.m. Eastern Standard Time). Evidently, anyone can listen to the oral argument live by accessing the Ninth Circuit's website here.


message 13: by Alan, Moderator and Author (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
The Ninth Circuit Court of Appeals has issued its opinion in the Washington v. Trump case. You can find it here. The panel unanimously affirmed the District Court's ruling on the temporary restraining order. I will comment further later this evening after I have read the twenty-nine page opinion.


message 14: by Alan, Moderator and Author (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Following up on the preceding post, the Ninth Circuit opinion was unanimous. There were three judges on the panel: Judges William C. Canby (nominated by President Carter), Richard R. Clifton (nominated by President George W. Bush), and Michelle T. Friedland (nominated by President Obama). I listened to the February 7 oral argument, which was conducted by telephone, live (see post 12, above). It was clear at the oral argument that Judge Friedland was the presiding judge on the panel. Although this was a per curiam (unsigned) opinion, I think it is quite likely, for various reasons that I don't have time to adduce right now, that Judge Friedland was the principal author of it.

There are several technical legal points in the opinion that are interesting to lawyers, but the lawyers in this group can read the opinion themselves for those matters. I won't bore the nonlawyers in the group with such details. Instead, I will highlight the main holdings of the case. All page citations in the following discussion refer to the page numbers in the opinion linked in the preceding post.

The Plaintiffs-Appellees in the case are the State of Washington and the State of Minnesota (collectively, "States"). The Defendants-Appellants are President Donald J. Trump, the U.S. Department of Homeland Security, Secretary of State Rex Tillerson, Secretary of the Department of Homeland Security John F. Kelly, and the United States of America (collectively, "Government").

The Government argued that the District Court lacked authority to enjoin enforcement of the Executive Order because the President, in its words, has "unreviewable authority to suspend the admission of any class of aliens." (13). The Court of Appeals rejected that proposition, citing several U.S. Supreme Court cases. (13-18). "In short," the court concluded, "although courts owe considerable deference to the President's policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action." (18).

In requesting a stay of the District Court's temporary restraining order ("TRO"), the Government was required, according to the Court of Appeals, to show that (1) it is likely to succeed on the merits, (2) that it will be irreparably injured absent a stay, (3) that a stay will not substantially injure the other parties interested in the proceeding, and (4) that the public interest requires a stay. (18-19). The first two factors are the most critical (18). The appellate panel held that the Government failed to establish any of these four elements.

First, the Ninth Circuit held that the Government did not show that it was likely to succeed on the merits on the States' Fifth Amendment due process claims. See pages 19-24 of the opinion for the court's reasoning on this issue.

Among other things, the First Amendment to the U.S. Constitution prohibits any "law respecting an establishment of religion." This is called the Establishment Clause. The federal courts have long held that the Fifth Amendment Due Process Clause also contains an implicit requirement of equal protection of the laws. The Court of Appeals noted that the States had made a serious showing of an Establishment Clause violation but that further proceedings (depositions and other discovery) would be necessary to flesh out the Establishment Clause and equal protection claims and that it was not necessary for the court to reach those issues in this preliminary consideration since it had already determined that that Government could not make a strong showing that it was likely to prevail on the due process claims. (24-26). In the course of its discussion, however, the Ninth Circuit cited well-established U.S. Supreme Court decisions holding that "evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment Clause and Equal Protection Clause claims." (25-26).

The Court of Appeals also held that the Government had failed to establish the remaining prongs of the test for prevailing on a motion to stay a TRO. (26-29). In the course of this discussion the panel observed that "the Government may provide a court with classified information. Courts regularly receive classification information under seal [not open to public examination] and maintain its confidentiality. Regulations and rules have long been in place for that." (27 n.8).

The last paragraph of the opinion is as follows: "For the foregoing reasons, the emergency motion for a stay pending appeal is DENIED." (29, emphasis and capitalization as in the original).

The Government has two options for attempting further appellate review of the TRO. It can move for a rehearing en banc in the Ninth Circuit (a rehearing by perhaps 9-12 judges of the Ninth Circuit Court of Appeals) followed (if the en banc court agrees with the panel decision) by a request for stay to the U.S. Supreme Court. Alternatively, it could skip the en banc procedure (thereby waiving it regarding the immediate issue) and move directly in the Supreme Court for a stay.


message 15: by Alan, Moderator and Author (last edited Feb 11, 2017 07:41AM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
On February 10, 2017, Ninth Circuit Court of Appeals Chief Judge Thomas (who is also the En Banc Coordinator for the court) filed an order stating that a Ninth Circuit Court of Appeals judge has made a request that a vote should be taken as to whether the order issued by the three-judge motions panel on February 9, 2017 (see preceding two posts) should be reconsidered en banc. Parties are to file briefs supporting or opposing en banc review by February 16, 2017, at 11:00 a.m. PST. On February 10, 2017, the Ninth Circuit Court of Appeals also filed an excellent Media Advisory summarizing en banc procedure.

I have read or heard various media accounts stating that a judge on the February 9 panel made the request for en banc review. However, this is not necessarily the case and, in fact, is unlikely to be the case given the fact that all three judges on the panel joined the Order (which included the opinion) that was filed on that date.

Per a February 10 Politico article, "To win a rehearing, the Trump administration will need a majority of the active judges voting. In that group, Democratic appointees outnumber GOP judicial picks, 18-7." To be more precise, only the judges who are not on senior status (except for a member of the three-judge panel) and not recused can vote. Since it appears that this group includes many more Democratic than Republican appointees, it would seem to me unlikely that the vote regarding en banc review will result in such review or, if en banc review does occur, that it would result in the en banc panel reversing the three-judge panel.

The pending request for en banc review will complicate matters in the event the Government was planning to bypass en banc review and file an immediate request for U.S. Supreme Court review. If a party files a motion for rehearing en banc, any appeal to the Supreme Court is precluded until the en banc disposition is determined. I assume that this is the same when an appellate judge requests the review, but I never had this precise scenario in my former law practice and have not taken the time right now to research it.

Another complication is the Trump administration's indications that they will issue a new Executive Order on this subject early next week. If that occurs, both the Ninth Circuit and the Supreme Court might consider any further review to be moot and decline to take the case. But President Trump's statements yesterday suggest that he thinks he can do both: issue a replacement Executive Order and continue to litigate the present one. This doesn't make sense to me: I think it's either/or (apologies to Kierkegaard). We'll see, however, how this works out.

What would happen if and when this case reaches the Supreme Court? Of course, no one can predict with any certainty how the justices on the Supreme Court would vote. It is widely assumed that the Court would tie 4-4, thus affirming the decision of the Ninth Circuit (either with regard to the present proceedings or after a preliminary injunction in the District Court followed by a Ninth Circuit opinion). But as an article by Richard Primus, a University of Michigan law professor, points out, Chief Justice Roberts and Justice Kennedy—assumed to be among the four justices that would give the president unlimited deference—have already ruled the other way in previous cases, and Judge Gorsuch, if confirmed by the Senate, also has a traditional commitment to rule of law that might cause him to vote against the Executive Order. Thus, it is conceivable that the Court could rule 6-2 against the president or, if Gorsuch is on the Court, 7-2. But we cannot, needless to say, count our justices before they are hatched or, in the case of Gorsuch, before they are even confirmed.

I will stick my neck out here and venture a prediction: Trump will issue a new Executive Order within the next few days that will meet most, if not all, of the objections set forth in the February 9 Ninth Circuit opinion (including the Establishment Clause issue, which the court did not determine but on which it enunciated general principles not favorable to the Government). The present proceedings will thereupon be dismissed as moot. The February 9 Ninth Circuit Court of Appeals Order (including its opinion) will, however, stand, as the Court of Appeals indicated that it should be published, i.e., that it has precedential status. Whether there will be new proceedings regarding the new Executive Order will depend on the contents of that order and whether the Plaintiffs (State of Washington and State of Minnesota) here and elsewhere around the country bring any further action against the new Executive Order.


message 16: by Alan, Moderator and Author (last edited Feb 13, 2017 09:21AM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
George Washington University Professor Tyler Anbinder, an immigration historian, has written an excellent article entitled "Today's Banned Immigrants are No Different from our Immigrant Ancestors". This essay was posted February 7, 2017, on the blog of the American Historical Association. Professor Anbinder's observations are consistent with my own study of American history, though his analysis provides more details than I previously knew.


message 17: by Alan, Moderator and Author (last edited Feb 16, 2017 07:33PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Today's Developments in Washington v. Trump:

Today was the deadline for both the Defendants-Appellants (US Government) and the Plaintiffs-Appellees (States of Washington and Minnesota) to file their supplemental briefs regarding the question whether the Ninth Circuit Court of Appeals should rehear the case en banc. (See previous posts for earlier developments.)

The States' Brief Regarding Rehearing En Banc argued that there is no basis for en banc review. It concluded that "[t]he motions panel properly denied Defendants' motion for stay in an opinion that carefully applied precedent and creates no conflict. The Court should deny en banc reconsideration and allow the merits of the preliminary injunction appeal to proceed." States' Brief at 53-54.

The US Government's Supplemental Brief on En Banc Consideration, after an extensive argument that the Ninth Circuit panel's February 9, 2017 decision was wrongly decided, observed that the president will shortly promulgate a "new superseding Executive Order" that will meet the objections of the District Court and the Ninth Circuit panel. Therefore the Government argued that "the Court should hold the case until the new Executive Order is issued, at which point it should vacate the panel's decision." Government's Brief at 46-47.

It will be interesting to see what the new Executive Order states. In a press conference today, President Trump said it will be issued sometime next week.


message 18: by Alan, Moderator and Author (last edited Feb 17, 2017 05:36AM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Following up on the preceding post, the chief judge of the Ninth Circuit Court of Appeals filed the following Order late yesterday in Washington v. Trump:

"The United States has represented to the Court that the President intends to issue a new Executive Order and has urged the Court to 'hold its consideration of the case until the President issues the new Order.' The United States has further represented that it will inform the Court of any new developments.

"En banc proceedings before this Court are stayed pending further Order of this Court."


message 19: by Alan, Moderator and Author (last edited Feb 21, 2017 05:42PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
The US Department of Homeland Security's February 20, 2017 memorandum entitled "Implementing the President's Border Security and Immigration Enforcement Improvements Policies" can be located here.

DHS's February 20, 2017 memorandum entitled "Enforcement of the Immigration Laws to Serve the National Interest" can be located here.

I am not an expert in immigration law, nor have I studied the above-linked memoranda in detail. I note, however, that, among other things, these memoranda expand the categories of undocumented immigrants that can be subjected to immediate deportation. For example, undocumented immigrants who have only been charged or accused (as distinguished from convicted) of a crime can be immediately deported. I anticipate court challenges to such provisions pursuant to the Due Process Clause of the Fifth Amendment to the United States Constitution, which applies to persons and not just citizens. But the foregoing is just an initial impression of the constitutionality of the memoranda. I never handled an immigration case when I was a practicing lawyer, and immigration law has its own body of case law on constitutional and other issues, with which I am not conversant.


message 20: by Alan, Moderator and Author (last edited Mar 04, 2017 07:08AM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
A March 3, 2017 Politico article discusses a new lawsuit brought by individuals affected by the Trump travel ban against the US government in the same federal court from which the nationwide injunction issued in Washington v. Trump. The District Judge is the same in both cases. The article states that "Seattle-based U.S. District Court Judge James Robart indicated in an order Friday that he agrees with challengers of the first ban that statements from Trump and his aides seem to be at odds with government attorneys' promises that a new order will 'rescind' the old one." The Order nevertheless granted the Defendants' request for a two-week extension, until March 20, 2017, of their deadline for responding to the Plaintiffs' motion for class certification. The court noted that the Plaintiffs would not be prejudiced by the extension of time, because the nationwide injunction against the president's Executive Order in the other case remains in effect.

The repeated delays in the Trump administration's promulgation of a new executive order are strange. One wonders whether this delay bespeaks a difference of view between the administration and its lawyers or whether it is due to other factors. Having had more than thirty years of litigation experience before my retirement, I can say, generally, that there are often conflicts between a lawyer and his/her client as to the course of action to take in a lawsuit. The client usually thinks they know better than the lawyer, who, after all, only knows the law and the practice in courts. And the bigger the client (I sometimes represented mayors and corporation presidents), the more difficult the client can be. I can't imagine having a more difficult client than the current president of the United States. I'm so glad I retired from the practice of law a few years ago!


message 21: by Alan, Moderator and Author (last edited Mar 06, 2017 11:17AM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
This morning the president issued a revised "Executive Order Protecting the Nation from Foreign Terrorism Entry into the United States." Among other things, the January 27, 2017 Executive Order was revoked. The new Executive Order contains no reference to religion. It is much more lawyer-like than the earlier Executive Order. It recognizes exceptions and waivers to accommodate many individuals who were wrongfully refused entry to the United States under the earlier Executive Order. Section 14 states that the effective date of the present Executive Order is March 16, 2017, at 12:01 a.m. eastern daylight time (daylight time begins on March 12).

I have read the new Executive Order, but I will not at this time opine as to its constitutionality or other legality. It seems to me that it will be much more difficult to attack legally than the earlier Executive Order. However, I note that the ACLU has already announced that it will oppose the new Executive Order in court. See also the articles on the new Executive Order in the New York Times, Washington Post, and Politico.


message 22: by Alan, Moderator and Author (last edited Mar 07, 2017 05:51PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Today, the Trump administration moved to dismiss its Ninth Circuit appeal (see posts 7, 12-15, and 17-18, above) in the Washington v. Trump case. The Plaintiffs (States of Washington and Minnesota) consented to this motion. The Motion for Voluntary Dismissal can be located here. See also the Politico article regarding this motion. It appears that the Ninth Circuit's precedential opinion against the Government (post 13, above) will remain in place unless the Ninth Circuit sua sponte (on its own initiative) vacates it.

As Politico observes, "The Trump administration has withdrawn its appeal of the injunction against President Donald Trump's first travel ban executive order, despite the president's vow that government lawyers would continue to defend its legality." It is probable that the Government's attorneys persuaded Trump that continuing the appeal of the District Court's stay of the first travel ban would only have resulted in a judicial determination that such appeal was moot. That result would only have caused further embarrassment to the administration.

Of course, only a motion was filed today. But it is certain that the Ninth Circuit will grant the motion, especially when the Plaintiffs-Appellants consented to it.

Trump versus the federal judiciary: 1 for the judiciary, 0 for Trump. Stay tuned for further developments regarding the revised travel ban issued yesterday (see the preceding post). It appears that the Democrats and many left-liberal organizations are going to challenge that one also in the courts. This will be an interesting test of how much deference the courts will give to the national security determinations of the Government. My guess is that the courts will now come down on the side of deference. But it's just a guess; I'm not an expert in either immigration or national security law.


message 23: by Alan, Moderator and Author (last edited Mar 09, 2017 06:07AM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
HAWAII v. TRUMP, United States District Court for the District of Hawaii, Case No. 1:17-cv-0050

The first case to address President Trump's second travel ban (see post 21, above) is Hawaii v. Trump, which was filed in the United States District Court for the District of Hawaii (see following post for filing date). The District of Hawaii is in the Ninth Circuit, and any appeal will be taken to the U.S. Court of Appeals for the Ninth Circuit.

Today (March 8, 2017), the District Court filed a Briefing Schedule Order, which stated, inter alia, that the Plaintiffs are to file their Second Amended Complaint, Motion for a Temporary Restraining Order ("TRO"), and any declarations in support thereof on March 8, 2017; the Government (United States) will file its Opposition to Plaintiffs' Motion for a TRO by 6:00 a.m., Hawaii Standard Time, on March 13, 2017; Plaintiffs will file a Reply by noon, Hawaii Standard Time, on March 14, 2017; and "[a]ll parties will appear at a hearing in this Court with telephonic access available on the morning of March 15, 2017, at 9:30 AM (Hawaii Standard Time)."

The Plaintiffs (State of Hawai'i and Ismail Elshikh) filed a Second Amended Complaint on March 7, 2017.

I have not yet seen the Motion for a TRO. As a result of the paywall (Pacer) for most federal cases, I no longer have complete access to the District Court docket and filings (I did have such access before my 2012 retirement from law practice). However, the significant filings will be reproduced in the media, as are those linked above. See also the current Politico article on this case.

I will comment further after I have had an opportunity to review the Second Amended Complaint.


message 24: by Alan, Moderator and Author (last edited Mar 09, 2017 06:58AM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Addendum to my preceding post:

The Second Amended Complaint in Hawaii v. Trump states that there are two Plaintiffs: the State of Hawaii and Ismail Elshikh, who is an American citizen of Egyptian descent, a resident of Hawaii, and Imam of the Muslim Association of Hawaii.

The Defendants are President Trump, the United States Government, and various federal officials and departments.

The Second Amended Complaint contains about twenty pages of factual allegations regarding the statements and actions of Donald J. Trump and his associates, both before and after Trump became president. Many such statements are set forth in order to show an intent by the Defendants to favor Christianity over Islam.

The Second Amended Complaint then sets forth eight causes of action:

Count I alleges that the Defendants violated the Establishment Clause of the First Amendment to the U.S. Constitution.

Count II alleges that the Defendants violated the Equal Protection Clause component of the Due Process Clause of the Fifth Amendment to the U.S. Constitution.

Count III alleges that the Defendants violated the substantive due process component of the Fifth Amendment Due Process Clause.

Count IV alleges that the Defendants violated the procedural due process component of the Fifth Amendment Due Process Clause.

Count V alleges that the Defendants violated the Immigration and Nationality Act (INA).

Count VI alleges that the Defendants violated the Religious Freedom Restoration Act (RFRA).

Count VII alleges that the Defendants committed substantive violations of the Administrative Procedure Act.

Count VIII alleges that the Defendants committed procedural violations of the Administrative Procedure Act.

The Second Amended Complaint is very well crafted and quite cogent. As I mentioned above, I am not an expert on immigration and national security law, and it is difficult for me to predict how the District Court will rule. The Plaintiffs will have a more difficult task establishing constitutional and statutory violations arising from this second travel ban as distinguished from the first travel ban. It will be interesting to see whether they will be successful.

It is unclear exactly when this case was filed. It may have been initially filed with regard to the first travel ban. Plaintiffs' Second Amended Complaint was filed on March 8, 2017, which indicates that this case has been on the District Court's docket for some time. As mentioned above, my retirement from law practice has made it impossible for me to access federal court dockets without paying public access fees. When I was employed by a law firm, that firm paid the fees for such access by way of the Pacer program utilized by all the federal courts.

Additionally, the Second Amended Complaint in this case states that it is "(Proposed)." Under Rule 15(a) of the Federal Rules of Civil Procedure, a plaintiff may amend its complaint "once as a matter of course" within 21 days after serving it. "In all other cases, a party may amend its pleading only with the opposing party's written consent or the court's leave." The Plaintiffs in this case probably already utilized the "once as a matter of course" rule in filing a First Amended Complaint. This Second Amended Complaint may have originally been attached as an exhibit to a motion for leave to file a second amended complaint, which accounts for the "(Proposed)" language in its caption (Plaintiffs may have forgotten to delete "(Proposed)" after the court granted them leave to file this pleading). It appears that the court did grant such leave as indicated by the scheduling order referenced in the preceding post. Again, we are constrained by not having free access to the court's docket, which would clarify exactly what occurred. It would seem logical that public electronic access to court dockets and filings should be free, since these are documents of public record. Unfortunately, that is not how it works. The federal courts have decided to charge fees for even electronic access. I suppose some charge is necessary for maintenance of the electronic system. But it is annoying for those researchers who are not employed by a law firm or media company that pays such fees as a cost of doing business. Fortunately, the actual opinions of the federal courts are freely accessible, though the opinions of federal courts other than the Supreme Court are available only in their original "slip opinion" form as distinguished from the version used by most lawyers and judges. The latter versions are published by the privately owned for-profit West Publishing Company, which has substantial charges for access (electronic or otherwise) to its publications.


message 25: by Alan, Moderator and Author (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
For further judicial developments regarding the second travel ban, see this Politico article.


message 26: by Alan, Moderator and Author (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
HAWAII v. TRUMP, United States District Court for the District of Hawaii, Case No. 1:17-cv-0050

Today, the United States District Court for the District of Hawaii, in the above-referenced case, filed a nationwide Order Granting Plaintiffs' Motion for a Temporary Restraining Order regarding the president's second travel ban, discussed above. After I read this 43-page Order, I may comment further on it.


message 27: by Alan, Moderator and Author (last edited Mar 15, 2017 06:56PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Addendum to posts 23, 24, and 26, above (see these posts for background):

Re: HAWAII v. TRUMP, United States District Court for the District of Hawaii, Case No. 1:17-cv-0050

I have now read the 43-page Order Granting Motion for Temporary Restraining Order. All page numbers below are references to the page numbers of this Order, which was linked in the preceding post.

The District Court first held that the Plaintiffs have standing to bring this case and that they are not barred by the doctrine of ripeness (15-27).

To obtain a temporary restraining order ("TRO"), a plaintiff must establish the following: (1) that the plaintiff is likely to succeed on the merits, (2) that the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in the plaintiff's favor, and (4) that an injunction is in the public interest. (27-28).

The District Court held that the Plaintiffs are likely to succeed on the merits (28-40). The court focused on the Plaintiffs' Establishment Clause claim. The First Amendment Establishment Clause provides that "Congress shall make no law respecting an establishment of religion . . . ." The Supreme Court and the federal courts generally have held that this prohibition, which is literally directed against Congress, also applies to the actions of the executive branch of the federal government, for example, the president and the federal administrative agencies.

Defendants Trump et al. (the "Government") argued that the Executive Order promulgating the second travel ban was neutral on its face with regard to religion. However, the court cited at length the factual information in the record showing that President Trump was motivated by religious animus against Muslims and that his purported national security grounds were mere pretext for the discrimination against Muslims. The court cited well-established Supreme Court and Ninth Circuit case law, going back several decades, that a facially neutral governmental policy is not immunized from judicial scrutiny as to such discrimination if there is sufficient circumstantial evidence of the discrimination. In this case, the president's own recorded words, as well as those of some of his confederates, establish the discriminatory intent, and such discriminatory purpose is not defeated by a policy that is nondiscriminatory on its face, especially where, as here, there was strong evidence that the second travel ban was designed to achieve the same religious discrimination as the first travel ban. I would recommend reading this entire section of the District Court's opinion (29-40), as it contains several arguments (including responses to the Government's position) that I do not have space to set forth in this comment.

The court also held that the Plaintiffs met the preliminary injunctive relief requirements of irreparable injury, that the balance of equities is in Plaintiffs' favor, and that the public interest would be served by a TRO. (40-42).

Therefore, the District Court ordered that "Defendants and all their respective officers, agents, servants, employees, and attorneys, and persons in active concert or participation with them, are hereby enjoined from enforcing or implementing Sections 2 and 6 of the [second] Executive Order across the Nation. Enforcement of these provisions in all places, including the United States, at all United States borders and ports of entry, and in the issuance of visas is prohibited, pending further orders from this Court." (42). Additionally, "[t]he Court declines to stay this ruling or hold it in abeyance should an emergency appeal of this order be filed." (43).

It is certain that the Government will immediately appeal this Order to the U.S. Court of Appeals for the Ninth Circuit—the same appellate court that upheld the TRO in Washington v. Trump, discussed in earlier posts in this thread. Unless the Ninth Circuit (or the Supreme Court) stays the present order, the Government is prohibited, as discussed above, from attempting to enforce the second travel ban.


message 28: by Alan, Moderator and Author (last edited Mar 16, 2017 06:46AM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Recent Ninth Circuit Court of Appeals Developments in Washington v. Trump (see posts 7, 12-15, 17-18, and 22, above, for background):

In an Order filed March 8, 2017, the U.S. Court of Appeals for the Ninth Circuit granted the Government's unopposed motion for voluntary dismissal of the appeal.

In a March 15, 2017 filing, the Ninth Circuit Court of Appeals denied reconsideration en banc of the earlier panel decision that held that the Trump administration's first travel ban was unconstitutional. The Order filed on behalf of the court majority observed that the matter became moot when the Ninth Circuit granted, on March 8, 2017, the Government's unopposed motion to dismiss the appeal. The Court of Appeals observed that one of the Ninth Circuit judges had called for a vote to determine whether the court should grant en banc reconsideration in order to vacate the published decision denying the stay, but this request "failed to receive a majority of the votes of the active judges . . . ." Attached to this March 15, 2017 Order were the concurring opinion of Judge Reinhardt and the dissent of Judge Bybee, joined by four other judges. Judge Bybee's dissent is twenty-six pages long, and I have not yet read it.

This concludes the Washington v. Trump appeal. However, the Ninth Circuit Court of Appeals will undoubtedly soon be considering an appeal of the Government in Hawaii v. Trump (see two preceding posts).


message 29: by Alan, Moderator and Author (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Addendum to my preceding post:

On March 17, 2017, the Ninth Circuit Court of Appeals filed an Amended Order regarding its denial of en banc review. This Amended Order contains additional concurring and dissenting opinions. The Court of Appeals stated that no further opinions will be filed.


message 30: by Alan, Moderator and Author (last edited Mar 18, 2017 04:56PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Hawaii v. Trump, United States District Court for the District of Hawaii, Case No. 1:17-cv-0050

On March 17, 2017, the Defendants (President Trump et al.) filed a Motion for Clarification of the TRO regarding the second travel ban (see posts 26-27, above). This motion is somewhat technical and gets into the kind of legal weeds in which lawyers flourish. Still, the Court's TRO may have been unclear about some or all of the matters addressed in the motion. I have hyperlinked the motion in the event lawyers or others are interested in reading it. I'm sure that the Defendants will appeal the second TRO, but, to my knowledge, they have not yet done so. Under Rule 4(1)(B), the federal government Defendants have 60 days from the entry of the order in which to file a notice of appeal. To the best of my recollection, a motion for clarification does not toll the time for appeal, but since the Defendants have 60 days (the normal time is 30 days), such deadline should not be difficult to meet. In addition, the principal client, Donald J. Trump in his official capacity as President of the United States, will be anxious to file the appeal as soon as possible. I'm sure his lawyers spent a lot of time explaining to him why this motion for clarification was necessary as a preliminary step.


message 31: by Alan, Moderator and Author (last edited Mar 20, 2017 06:25AM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Hawaii v. Trump, United States District Court for the District of Hawaii, Case No. 1:17-cv-0050

Following up on the preceding post, the Plaintiffs filed their Opposition to the Government's Motion for Clarification on March 18, 2017, and the District Court denied the Motion on March 19, 2017. Although I cannot locate the actual Order (it does not appear on the District Court's website, and I find no articles about these developments in the New York Times or the Washington Post), a Politico article briefly describes the Order and also points out that the Opposition brief (on page 16) argued in part as follows: "Finally, the notion that the Court’s Order would preclude Executive Branch consultation or trench on Executive prerogatives is meritless. The Court’s Order merely prevents Executive branch action under the auspices of an illegal Executive Order. The Government could engage in appropriate consultations independent of this Order; it simply cannot do so as part and parcel of effectuating the President’s promise to implement a Muslim ban." On page 15, the Opposition brief also discussed some very recent comments of President Trump: "As President Trump said himself at a rally after this Court issued its Temporary Restraining Order, the revised Order is just a 'watered down' version of the first Order. Removing any doubt as to whether the taint had been dispelled, President Trump said: 'This is a watered-down version of the first one. This is a watered-down version.' He went on: 'And let me tell you something, I think we ought to go back to the first one.' Later that night, he also told a television interviewer that it was 'very hard' to assimilate Muslims into Western Culture." (Footnotes omitted.) All constitutional lawyers knew immediately when Trump made the aforesaid remarks that they would constitute very contemporary proof that Trump always and still designed his travel ban with the specific purpose of banning Muslims. Rarely does an opposing party continually furnish significant evidence that can be used against him. The Government's lawyers have a client who is totally out of control.


message 32: by Alan, Moderator and Author (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Maryland—Fourth Circuit Case

The United States District Court for the District of Maryland has also ruled against the Government on the Trump administration's second travel ban, and the Government has appealed to the U.S. Court of Appeals for the Fourth Circuit. I cannot locate any court documents in this case, but a Politico article describes it here.


message 33: by Alan, Moderator and Author (last edited Mar 22, 2017 02:21PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
International Refugee Assistance Project v. Trump, 4th Circuit Case No. 17-1351 (Appeal from the U.S. District Court for District of MD)

The above is the caption in the U.S. Court of Appeals for the Fourth Circuit for the appeal by the Government from an adverse decision in the U.S. District Court for the District of Maryland regarding President Trump's second travel ban (see the immediately preceding post).

Today the Government filed a Motion to Expedite Appeal and Set Briefing Deadlines in this Fourth Circuit appeal.

My guess is that the Government wishes to have a decision by the Fourth Circuit Court of Appeals before the Ninth Circuit has an opportunity to rule in the Hawaii case discussed in previous posts. The Government has not yet taken an appeal from the adverse decision in the U.S. District Court for the District of Hawaii. This may be due to the fact that the Ninth Circuit Court of Appeals has already shown, in the Washington v. Trump appeal from an injunction against the first travel ban, that it will probably rule against the Government. The Ninth Circuit is famously (or infamously, depending on one's point of view) the most liberal (progressive) U.S. Court of Appeals in the country. The Fourth Circuit, though recently sometimes ruling in a more liberal direction (perhaps as a result of Obama appointees), is historically more conservative.

There is an ancient Chinese curse: "May you live in interesting times." Needless to say, we certainly live in interesting times, especially those of us living in the United States. We are participating in a live, developing civics lesson. I don't recall a situation (also involving many other events) like this since Watergate.


message 34: by Mimi (new)

Mimi | 96 comments It's the ugliest civics lesson I ever endured!


message 35: by Alan, Moderator and Author (last edited Mar 24, 2017 06:32PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Sarsour v. Trump, U.S. District Court for the Eastern District of Virginia, Case No. 1:17cv00120

Today, in the above-captioned case, Judge Anthony J. Trenga of the United States District Court for the Eastern District of Virginia denied Plaintiffs' Emergency Motion for Temporary Restraining Order and/or Preliminary Injunction regarding the president's second travel ban. Judge Trenga's 32-page Memorandum Opinion concluded:

"For the above reasons, Plaintiffs have not established that (1) they are likely to succeed on the merits of their case, (2) the balance of hardships tips in their favor, or (3) immediate relief would be in the public interest. Accordingly, they have not established that they are entitled to obtain the extraordinary remedy of an injunction enjoining the enforcement of EO-2 [the second travel ban]. Plaintiffs' Motion is therefore denied."

A Politico article describes this Memorandum Order and also states that the Plaintiffs' counsel have represented that they will appeal this ruling to the U.S. Court of Appeals for the Fourth Circuit. As observed in post 33, above, that appellate court already has before it an appeal by the Government from the grant of injunctive relief by the U.S. District Court for the District of Maryland.


message 36: by Alan, Moderator and Author (last edited Mar 30, 2017 09:05AM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Hawaii v. Trump, United States District Court for the District of Hawaii, Case No. 1:17-cv-0050

In a March 29, 2017 Order, the U.S. District Court for the District of Hawaii converted its temporary restraining order (see posts 26-27, above) to a preliminary injunction. For a discussion of the March 29, 2017 Order, see this Politico article. This nationwide preliminary injunction prohibits the Government from implementing any part of the second travel ban pending final determination of this case.

The Defendants (Donald J. Trump et al.) can appeal this preliminary injunction to the Ninth Circuit Court of Appeals, and I expect they will do so.


message 37: by Alan, Moderator and Author (last edited Mar 31, 2017 04:45PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
On March 30, 2017, the Government (Defendants Donald Trump et al.) filed an appeal from the preliminary injunction granted on March 29, 2017 (see preceding post) by the U.S. District Court for the District of Hawaii. The appeal goes to the Ninth Circuit Court of Appeals, the same appellate court that affirmed the temporary restraining order against the Government in the Washington v. Trump case (see posts 13-14, above). Precedent established by the Ninth Circuit Court of Appeals is binding on the U.S. District Court for the Western District of Washington (the court that issued the temporary restraining order) and the U.S. District Court for the District of Hawaii.

In the Washington case, which is on remand to the Western District of Washington from the Ninth Circuit Court of Appeals, the Government also filed on March 30, 2017, a Motion to Stay District Court Proceedings Pending Resolution of Appeal in Hawaii v. Trump. The Plaintiffs in that case had amended their complaint to attack the second travel ban Executive Order and were now getting ready to conduct discovery (written interrogatories, requests for production of documents, depositions, and so forth). In its March 30 Motion, the Government argued that a stay would promote judicial economy because the Ninth Circuit's decision in Hawaii is likely to provide guidance on forthcoming issues in the Washington case, that, absent a stay, the Plaintiffs' anticipated discovery will impose a heavy burden on the Government and the court, and, finally, that Plaintiffs will not be harmed by a brief stay.

This Politico article discusses the foregoing and other developments, though its description of the March 31 Motion in the Washington case is incomplete.


message 38: by Alan, Moderator and Author (last edited Apr 04, 2017 09:01PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Hawaii v. Trump, U.S. Court of Appeals for the 9th Circuit, Case No. 17-155589

An April 3, 2017 Ninth Circuit Order granted the Appellants' (U.S. Government's) unopposed motion to expedite the briefing and consideration of this case and specified that the Government's opening brief and motion to stay the District Court's preliminary injunction pending appeal are due April 7, 2017; the Plaintiffs-Appellees' answering brief and the response to the motion to stay pending appeal are due April 21, 2017; and the Government's optional reply brief and the reply in support of the motion to stay pending appeal are due April 28, 2017. Any amicus (friend-of-the court) briefs are due April 21, 2017.

Per a Politico article updated on April 4, 2017, the oral argument will occur May 15, 2017, in Seattle, Washington, with the argument scheduled to take forty minutes.

It is likely that any decision in this appeal as well as any decision in the Fourth Circuit appeal (see above posts regarding the Maryland case) will be appealed to the Supreme Court. The Supreme Court has discretion whether or not to take any such appeal, but it is likely that the Court will accept one or more appeals in these cases considering the importance of the issues. It now appears certain that Judge Neil Gorsuch will be confirmed by the U.S. Senate on or before Friday, April 7, 2017. Since the Republican proponents of the Gorsuch confirmation have a majority of votes necessary for confirmation but lack the sixty votes needed for cloture (stopping the Democratic filibuster of the nomination), Senate majority leader Mitch McConnell has announced that the Republican majority will abolish the filibuster rule for Supreme Court nominations. Accordingly, Gorsuch will be confirmed, and he will take his seat on the Supreme Court soon after his confirmation. This means that the Supreme Court will have its full complement of nine justices if and when it hears any appeals regarding the second travel ban.


message 39: by Alan, Moderator and Author (last edited Apr 11, 2017 10:52AM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
International Refugee Assistance Project v. Trump, 4th Circuit Case No. 17-1351 (Appeal from the U.S. District Court for District of MD)

UPDATE TO POSTS 32-33, ABOVE:

On April 10, 2017, the Fourth Circuit Court of Appeals granted en banc review of the Government's appeal in this case. This means that the entire court of fifteen Fourth Circuit judges on active status (not including judges on senior status) will hear and determine the appeal. According to an April 10, 2017 Politico article, the Fourth Circuit’s active bench "has nine Democratic appointees, five Republican appointees and one judge who was nominated to the court by both a Democratic president and a Republican one." The case is calendared for oral argument on May 8, 2017, in Richmond, Virginia. This procedure expedites the time for a petition for certiorari to the U.S. Supreme Court by whomever loses in the Fourth Circuit. Since Neil Gorsuch has now been sworn in as the ninth justice of the Supreme Court, the full Supreme Court bench of nine justices will hear any appeal on these issues if and when they grant certiorari for such appeal. I would venture to predict that the Supreme Court will accept an appeal given the overwhelming importance of the issues and the need for uniformity among the circuits. I cannot predict the eventual ruling of the Supreme Court, as this kind of case is rarely before the Court.


message 40: by Alan, Moderator and Author (last edited Apr 26, 2017 06:28AM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
County of Santa Clara v. Trump, United States District Court for the Northern District of California, Case No. 17-cv-00574

On January 25, 2017, President Trump promulgated Executive Order 13768, "Enhancing Public Safety in the Interior of the United States," which provided inter alia, that jurisdictions failing to comply with applicable federal immigration law (often called "sanctuary jurisdictions") are ineligible to receive federal grants. On April 25, 2017, the United States District Court for the Northern District of California filed a nationwide preliminary injunction prohibiting the executive branch of the federal government from enforcing this Executive Order except to the extent already embodied in legislation passed by the Congress and signed by the president. This Politico article includes a summary of the preliminary injunction and a discussion of the historical background. I may have further comments after I have had an opportunity to study further the Executive Order and the preliminary injunction.


message 41: by Alan, Moderator and Author (last edited Apr 26, 2017 05:30PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Addendum to my preceding post:

Re: County of Santa Clara v. Trump, United States District Court for the Northern District of California, Case No. 17-cv-00574

I have now read the Executive Order and the 49-page preliminary injunction order referenced and linked in the preceding post. The Politico article linked in that post summarizes the order, and I do not have time right now to set forth a more detailed explanation of what the order said. I recommend that those who are interested in this subject read the actual order; it is not necessary to be trained as a lawyer to understand it. To my mind, the order is a masterpiece of constitutional and legal reasoning. It is exactly what is meant by "rule of law" in this era of loose rhetoric and "alternative facts." Interestingly, it relies on the Tenth Amendment and cites well-established Supreme Court case law holding that the federal government cannot require, directly or indirectly, states and localities to participate in federal programs; it can only offer incentives for them to do so. The District Court invoked, among many other cases, the 2012 Supreme Court decision in National Federation of Independent Business v. Sebelius holding, in part, that the Affordable Care Act's provision of withholding Medicaid funds from states that refused the Act's Medicaid expansion was an unconstitutional coercion of them.

For those not well-versed in U.S. constitutional law, the Tenth Amendment to the U.S. Constitution provides: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." It is quite ironic that left-liberal opinion in the United States is beginning to see the wisdom of that amendment, and of states' rights generally, in opposing the nationalistic rhetoric and programs of the Trump administration.


message 42: by Alan, Moderator and Author (last edited May 10, 2017 10:33AM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
UPDATE TO POST 39, ABOVE:

This article summarizes the May 8, 2017 oral argument in the Fourth Circuit Court of Appeals regarding the president's second travel ban. As observed in post 39, above, the Fourth Circuit is sitting en banc in this appeal, with thirteen judges present at the oral argument. Two other judges recused themselves, one of them being the father-in-law of Acting U.S. Solicitor General Wall, who presented argument on behalf of the U.S. Government.

An audio recording of the oral argument can be accessed here.


message 43: by Alan, Moderator and Author (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Pars Equality Center v. Trump, United States District Court for the District of Columba, Case No. 17-cv-0255

On May 11, 2017, the United States District Court for the District of Columbia filed an Order stating that the court was inclined to agree with the plaintiffs in this and a companion case (Universal Muslim Association of America v. Trump, Case No. 17-cv-0537) "that they are likely to succeed on the merits of their claims with respect to Sections 2 and 6 of the Second Executive Order [second travel ban regarding certain Muslim-majority nations]." The court stayed resolution of the plaintiffs' motions for preliminary injunction, however, because both the Fourth and Ninth Circuits are actively considering whether District Court nationwide preliminary injunctions in those circuits should be affirmed. The May 11, 2017 Order further stated: "In the event that both existing injunctions are overturned, this court is prepared to issue a ruling without delay."


message 44: by Alan, Moderator and Author (last edited May 25, 2017 02:44PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
International Refugee Assistance Project v. Trump, 4th Circuit Case No. 17-1351 (Appeal from the U.S. District Court for District of MD)

Today, the U.S. Court of Appeals for the Fourth Circuit, sitting en banc (full court), affirmed the District Court's decision striking down President Trump's second travel ban. The 205 pages of opinions (which I have not yet read) can be located here. This Politico article describes the decision, though I cannot vouch for its accuracy. For example, it describes the decision as being 10 to 3, but an examination of the first page of the case indicates that there were additional judges not counted in the Politico article.

Since this case was decided en banc, the remaining step for the Government is to file a petition for certiorari to the U.S. Supreme Court, requesting that Court to take an appeal of the case. It is probable, given the significance of the case, that the Supreme Court will grant certiorari and take the appeal. Justice Gorsuch will be able to participate in the Supreme Court's determination of the appeal, so the Court now has a full bench of nine justices. The result will be very interesting.


message 45: by Alan, Moderator and Author (last edited Jun 12, 2017 12:13PM) (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Hawaii v. Trump, U.S. Court of Appeals for the 9th Circuit, Case No. 17-155589

Today, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit filed a 78-page Opinion affirming, in substantial part, the District Court's preliminary injunction against President Trump's second travel ban. A New York Times article contains a good summary of this decision. See also the article in the Washington Post.

The Government can decide whether to request en banc review by a larger panel of the Ninth Circuit judges or, alternatively, file a petition for certiorari in the U.S. Supreme Court. Since the Ninth Circuit is not favorable to the Government's position, I think it is probable that they will skip a petition for Ninth Circuit en banc review and instead file a petition for certiorari in the Supreme Court. A petition for certiorari is already pending in the Supreme Court from a Fourth Circuit decision against the second travel ban.


message 46: by Jessica (new)

Jessica | 5 comments I don't know a ton about the second travel ban but it seems to me that what is going to happen, is that courts are going to keep blocking it from actually coming to happen. What honestly makes more sense is to simply rework the current immigration laws and adjust to work with the times, and decrease the danger that this ban was trying to prevent.


message 47: by Alan, Moderator and Author (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Jessica wrote: "I don't know a ton about the second travel ban but it seems to me that what is going to happen, is that courts are going to keep blocking it from actually coming to happen. What honestly makes more..."

The issues surrounding the president's second travel ban will probably be decided by the Supreme Court in their next term, which starts in October 2017 and will last until June 2018. It is difficult to predict how the Supreme Court will rule. Congress could, of course, amend the current immigration laws, but they have shown no inclination to get into that issue, and it is difficult to figure out what exactly what, if anything, they could or should do.

Thank you for your comment. I recall that you said earlier that you are in high school. It's always good to see young people participate in these discussions.


message 48: by Jessica (new)

Jessica | 5 comments Yes. This definitely seems like the kind of thing that will continue to be up in the air unless current immigration laws are changed.


message 49: by Robert (new)

Robert Wess | 413 comments Since Circuit Courts have agreed in rejecting the ban, there is no need for the Supreme Court to take the case.

Furthermore, the ban was temporary, only for 90 days, supposedly to allow time for a review of procedures. More than 90 days have already passed.

I think the Supreme Court should let the Circuit Court decisions stand.


message 50: by Alan, Moderator and Author (new)

Alan Johnson (alanejohnson) | 3675 comments Mod
Robert wrote: "Since Circuit Courts have agreed in rejecting the ban, there is no need for the Supreme Court to take the case.

Furthermore, the ban was temporary, only for 90 days, supposedly to allow time for ..."


Good points, but I think it is possible, in view of the overwhelming importance of the constitutional and legal issues and the perceived need for a "final" adjudication of same ("We are not final because we are infallible, but we are infallible only because we are final" wrote Justice Robert Jackson in his concurring opinion in Brown v. Allen, 344 U.S. 443, 537 (1952)) that the Supreme Court will grant certiorari to consider an appeal in the Fourth and/or Ninth Circuit cases. It takes only four of the nine justices on the Supreme Court to grant a writ of certiorari. Justices Thomas and Alito will likely vote in favor of granting certiorari. Chief Justice Roberts, Justice Kennedy, and/or Justice Gorsuch may also vote for certiorari, though it is difficult to predict how these last three would vote on the merits. Justices Ginsburg, Breyer, Sotomayor, and Kagan may vote against certiorari, though it is possible that one or more of them may think there is too much at stake to let the cases linger in the lower courts without definitive resolution of the constitutional and legal issues. If the Court accepts the appeal, the eventual outcome may well depend on the positions of Chief Justice Roberts and Justices Kennedy, Breyer, and Gorsuch. An analysis of the Guantanamo cases of the last decade might provide clues as to the expected positions of Chief Justice Roberts and Justices Kennedy and Breyer. Since I have not recently studied those cases, however, I cannot predict how Roberts, Kennedy, and Breyer would vote in the present cases. Gorsuch, of course, is an unknown quantity on such issues.


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