TRUMP HELPING TO ENABLE FAMINE THAT THREATENS LIVES OF MILLIONS!

https://www.washingtonpost.com/opinions/global-opinions/how-trump-is-enabling-famine/2017/08/20/f687dda2-835d-11e7-902a-2a9f2d808496_story.html?hpid=hp_no-name_opinion-card-d%3Ahomepage%2Fstory&utm_term=.69ae0886ac93

Jackson Diehl writes in the Washington Post:

“That’s where the real responsibility of President Trump lies, too. His pathological need to focus attention on himself has created the vortex into which public discourse on vital issues such as this disappears. But his larger offense has been his love affair with the despotic regimes of Saudi Arabia and the United Arab Emirates, which are largely responsible for creating — and perpetuating — the food and cholera crises in Yemen.

The problem is this: About 90 percent of food and medicine for Yemenis is imported through a seaport, Hodeida, which is controlled by Yemeni rebels against whom the Saudis and their allies have unsuccessfully waged war for the past 2½ years. In the name of enforcing an arms embargo, the Saudis have blockaded Hodeida from the sea and also forced the closure of the international airport in the capital, Sanaa. Ships carrying food and approved by the U.N. are supposed to be allowed to dock, but in practice are often held up by the Saudis.

The result, says Joel Charny of the Norwegian Refugee Council USA, is that the Yemen crisis “is not about aid or aid dollars.” It’s about the blockade — and the Trump administration is complicit. It is backing the Saudi war effort with intelligence and military supplies and, says Charny, “failing to pressure the Saudis to do basic things that would remediate the situation.”

 

Two weeks ago, the U.N. Security Council finally took action on this problem, unanimously adopting a statement calling on “all parties” to “facilitate access for essential imports of food.” U.S. Ambassador Nikki Haley issued her own broadside, saying that “we must hold governments and armed groups blocking access accountable.” Unfortunately, as Charny puts it, “that is not actually U.S. policy, if you look objectively at what is going on.” In fact, Trump is, in more ways than one, enabling famine.”

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Read the complete story at the link.

Just another day at the office for a President who lacks compassion and can’t take responsibility for the consequences.

PWS

08-20-17

 

BREAKING: SPLIT DECISION — SUPREMES SAY YES TO GRANDPARENTS, DEMUR ON REFUGEES (FOR NOW)!

Here’s the report from NPR News:

Merrit Kennedy, reporting:

“The Supreme Court has upheld parts of a lower court order that had widened the definition of which citizens from the six Muslim-majority countries covered by the Trump administration’s travel ban are still eligible to travel to the U.S.

The order issued Wednesday leaves in place the action of a U.S. District Court judge in Hawaii who broadened the definition of close family to include categories such as the grandparents and cousins of a person in the U.S.

However, the Supreme Court blocked another part of the lower court order that said citizens with formal assurances from a U.S. refugee resettlement agency are eligible.

Since the travel ban was introduced, defining which citizens from the six countries are exempt has been redefined multiple times.

Last month, as we reported, the Supreme Court ruled that parts of the Trump administration’s ban can take effect while the justices prepare to hear oral arguments on the case later this year.

But the court said people from the six countries — Iran, Libya, Somalia, Sudan, Syria and Yemen — can be exempted from the ban if they have a “bona fide relationship” with a person in the U.S., including close family members.

The legal question here is centered on how to define a “bona fide relationship.” As we reported, the Trump administration argued that assurances from a refugee agency are “not sufficient” to constitute this relationship.

However, the judge in Hawaii rejected this argument. “An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations,” District Court Judge Derrick Watson wrote. “Bona fide does not get any more bona fide than that.”

The Supreme Court justices, however, stayed that portion of the judge’s order without elaborating. It sent the case back to the 9th U.S. Circuit Court of Appeals for a ruling. The Trump administration had asked the high court to settle the dispute, leapfrogging the 9th Circuit, which the justices denied without comment.

The order said Justices Clarence Thomas, Samuel Alito and Neil Gorsuch would have stayed the entire lower court order, including the broadening of close family categories.

Naureen Shah, Amnesty International USA senior director of campaigns, stated that Wednesday’s order “jeopardizes the safety of thousands of people across the world including vulnerable families fleeing war and violence.”

Earlier this week, the State Department released new instructions to U.S. embassies and consulates to implement the Hawaii federal court’s order expanded definition of close family to include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts and uncles, nephews and nieces, and cousins.”

Here is link to copy of the brief per curium order:

https://www.supremecourt.gov/orders/courtorders/071917zr_o7jp.pdf

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Six Justices of the Court appear ready to “just say no” to some parts of the “blanket ban” on the current record. However, they obviously deem “refugees” a closer case, leaving that for the Ninth Circuit to review first. So, there is still a chance that refugees ultimately will prevail. But, as I’ve said many times before, it’s one of the worst times in recent history to be a refugee.

PWS

07-19-17

 

TRUMP ADMINISTRATION ASKS SUPREMES TO INTERVENE (AGAIN) IN TRAVEL BAN CASE!

http://www.huffingtonpost.com/entry/trump-supreme-court-travel-appeal_us_596980fde4b017418627ad08

HuffPost reports:

“The U.S. Justice Department on Friday asked the Supreme Court to block a judge’s ruling that prevented President Donald Trump’s travel ban from being applied to grandparents of U.S. citizens and refugees already being processed by resettlement agencies.

In a court filing, the administration asked the justices to overturn Thursday’s decision by a U.S. district judge in Hawaii, which limited the scope of the administration’s temporary ban on refugees and travelers from six Muslim-majority countries.

The latest round in the fight over Trump’s March 6 executive order, which he says is needed for national security reasons, came after the Supreme Court intervened last month to partially revive the two bans, which were blocked by lower courts.

The Supreme Court said then that the ban could take effect, but that people with a “bona fide relationship” to a U.S. person or entity could not be barred.

The administration had narrowly interpreted that language, saying the ban would apply to grandparents and other family members, prompting the state of Hawaii to ask Hawaii-based U.S. District Judge Derrick Watson to expand the definition of who could be admitted. He ruled for the state late on Thursday.

In the court filing, the Justice Department said the judge’s ruling “empties the (Supreme) Court’s decision of meaning, as it encompasses not just “close” family members but virtually all family members.

The conservative-leaning Supreme Court is not currently in session but the justices can handle emergency requests. The administration’s application could be directed either to Justice Anthony Kennedy, who has responsibility for emergency requests from western states, or to the nine justices as a whole. If the court as a whole is asked to weigh in, five votes are needed to grant such a request.

“The truth here is that the government’s interpretation of the Supreme Court’s stay order defies common sense,” said Omar Jadwat, a lawyer with the American Civil Liberties Union involved in challenging the ban. “That’s what the district court correctly found and the attorney general’s misleading attacks on its decision can’t change that fact.”

In his decision, Watson harshly criticized the government’s definition of close family relations as “the antithesis of common sense.”

Watson also ruled that the assurance by a resettlement agency to provide basic services to a newly arrived refugee constitutes an adequate connection to the United States because it is a sufficiently formal and documented agreement that triggers responsibilities and compensation.”

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Read the complete article at the link.

Wow, for a group that despises and disses Federal Judges on a regular basis, the Trumpsters seem to be always calling on them for help!

Hard to see what the “emergency” would be that can’t wait till October.

PWS

07-14-17

 

BREAKING: GRANDPARENTS, REFUGEES WIN, TRUMP LOSES (AGAIN) — JUDGE WATSON EXPANDS TRAVEL BAN EXCEPTIONS!

Here’s U.S. District Judge Derrick Watson’s full opinion:

https://assets.documentcloud.org/documents/3894503/Hawaii-v-Trump-Motify-Injunction-Order.pdf

KEY EXCERPTS

“PREDETERMINED AND UNDULY RESTRICTIVE:”

“First, the Government’s utilization of the specific, family-based visa provisions of the INA identified above constitutes cherry-picking and resulted in a

predetermined and unduly restrictive reading of “close familial relationship.” Other, equally relevant federal immigration statutes define a close family in a much broader manner.”

“ANTHESIS OF COMMON SENSE:”

“In sum, the Government’s definition of “close familial relationship” is not only not compelled by the Supreme Court’s June 26 decision, but contradicts it.

Equally problematic, the Government’s definition represents the antithesis of common sense. Common sense, for instance, dictates that close family members be defined to include grandparents. Indeed, grandparents are the epitome of close family members. The Government’s definition excludes them. That simply cannot be. See generally Klayman v. Obama, 142 F. Supp. 3d 172, 188 (D.D.C. 2015) (noting that courts should not “abandon all common sense” when considering injunctive relief).”

“BONA FIDE DOES NOT GET ANY MORE BONA FIDE THAN THAT:”

“Nothing in the Supreme Court’s decision requires a refugee to enter into a contract with a United States entity in order to demonstrate the type of formal relationship necessary to avoid the effects of EO-2. An assurance from a United States refugee resettlement agency, in fact, meets each of the Supreme Court’s touchstones: it is formal, it is a documented contract, it is binding, it triggers responsibilities and obligations, including compensation, it is issued specific to an individual refugee only when that refugee has been approved for entry by the Department of Homeland Security, and it is issued in the ordinary course, and historically has been for decades. See Slip Op. at 12. Bona fide does not get any more bona fide than that.11 Accordingly, Plaintiffs’ Motion is granted with respect to this specific request for injunctive relief.”

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PWS

07-14-17

N. RAPPAPORT IN HUFFPOST: ESTABLISHMENT CLAUSE SHOULDN’T BE AN ISSUE IF SUPREMES EVER REACH MERITS OF TRAVEL BAN CASE!

http://www.huffingtonpost.com/entry/5956805de4b0f078efd9894c

Nolan writes:

“May not need to state a reason at all.

In Kleindienst v. Mandel, the Court observed that, without exception, it has sustained Congress’ “plenary power to make rules for the admission of aliens.” And, “The power of Congress …. to have its declared policy in that regard enforced exclusively through executive officers, without judicial intervention, is settled by our previous adjudications.” (Page 408 U. S. 766).

Mandel held that when Congress has made a conditional delegation of its plenary power over the exclusion of aliens to the Executive Branch, and the Executive Branch exercises this power “on the basis of a facially legitimate and bona fide reason,” the courts will not look behind the exercise of that discretion.

The next sentence in Mandel indicates that it may not be necessary to state the reason. “What First Amendment or other grounds may be available for attacking [an] exercise of discretion for which no justification whatsoever is advanced is a question we neither address nor decide in this case.” (Page 408 U. S. 769-70).

No basis for finding religious discrimination in the language of the order.

But the travel ban order does state a reason, and the District Court for the District of Hawaii found no basis in the stated reason or elsewhere in the language of the order for suspecting that the real purpose of the ban was religious discrimination:

It is undisputed that the Executive Order does not facially discriminate for or against any particular religion, or for or against religion versus non-religion. There is no express reference, for instance, to any religion nor does the Executive Order — unlike its predecessor — contain any term or phrase that can be reasonably characterized as having a religious origin or connotation (page 30).
Does it matter if other explanations for the travel ban are possible?

The district court nevertheless went on to find that religious discrimination was the real reason for the ban. In other words, the court finds two reasons, the stated one, which does not reflect religious discrimination, and the real reason, which was found in Trump’s calls for a Muslim ban when he was still campaigning.

Other areas of immigration law do require a weighing of conflicting reasons. An alien is not eligible for an immigration benefit on the basis of a sham marriage, which is defined as a marriage that was entered into for the primary purpose of circumventing the immigration laws. But if the primary reason was that the couple was in love and wanted to spend their lives together, the fact that they got married so the alien spouse could stay in America does not make the marriage a sham.

In the present case, however, the Court will not be weighing reasons to determine which one is primary. It will be interpreting an unambiguous statutory provision that does not require the stated reason to be the primary one. It doesn’t even require the president to say why he made the finding. Section 212(f) has no requirements at all. The president just has to proclaim that he has found that that “the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States.”

If opponents of the travel ban find this unacceptable, their only recourse is to lobby Congress to revise section 212(f).

Nolan Rappaport was detailed to the House Judiciary Committee as an executive branch immigration law expert for three years; he subsequently served as an immigration counsel for the Subcommittee on Immigration, Border Security and Claims for four years. Prior to working on the Judiciary Committee, he wrote decisions for the Board of Immigration Appeals for 20 years.”

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Man, Nolan is prolific, appearing not only in The Hill on an almost weekly basis, but in HuffPost and other publications as well! And, it’s all “original stuff.”  I have a hard time just keeping up with posting his articles!

Nolan might be right, if Trump can keep from shooting off his mouth and undermining his own case, as he has done in the past. But, that’s a big “if!” And to date, I’ve seen nothing to indicate that 1) Trump possesses the quality of self control, or 2) that anyone else can impose it on him. So, I wouldn’t underestimate Trump’s ability to screw this up. Perhaps, Nolan is just hoping that Trump will show some restraint.

PWS

07-01-17

TRUMP ADMINISTRATION’S NARROW, INSENSITIVE DEFINITION OF “FAMILY” SURE TO PROVOKE NEW ROUND OF TRAVEL BAN LITIGATION! — GRANDPARENTS DISSED!

https://www.washingtonpost.com/world/national-security/travel-ban-to-take-effect-as-state-department-defines-close-family/2017/06/29/03eb8a8e-eba6-4749-9fa2-79117be89884_story.html?hpid=hp_rhp-more-top-stories_no-name%3Ahomepage%2Fstory&utm_term=.703d0cc8aeea

As reported by Carol Morello in the Washington Post:

“A cable sent to consular officials worldwide Wednesday provided a narrow definition of close family: a parent, spouse, child, an adult son or daughter, son-in-law, daughter-in-law or sibling, as well as stepfamily relationships.

However, it explicitly excluded other family relationships: grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-law and sisters-in-law, fiances and other “extended” family relations.

. . . .

It was not clear how the State Department came up with its narrow definition of family, which was quickly criticized by some advocates and lawyers.

“Defining close family to exclude grandparents, cousins, and other relatives defies common sense,” said Johnathan Smith, legal director of Muslim Advocates, a civil rights group that plans to send monitors to Dulles Airport Thursday night.

Cornell University Law School professor Stephen Yale-Loehr, who has written volumes of legal books on immigration law, said more than half of all refugees have no close family ties in the United States. Among past refugees who would be barred from entering today, he said, are the Lost Boys of Sudan and children orphaned by famine and war.”

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Wow! These Dudes just can’t help themselves. Mean-spirited, unreasonable administration of immigration and refugee laws is just in their blood.

Of course, as a grandparent 7x over about to connect with all of them over the next several weeks, I’m insulted. And, I’m sure that all the grandparents we know who essentially provide free full or part time child care for the grandchildren so the parents can work are pretty surprised to find out that they have been “booted” from the family unit!

And the Supremes “reward” for cutting Trump some slack — a poke in the eyes with a sharp stick.

Full employment for lawyers!

PWS

06-29-17

READ RAPPAPORT’S LATEST FROM THE HILL: Why The Travel Ban Might Become A “Moot Case!”

http://thehill.com/blogs/pundits-blog/immigration/339825-travel-ban-will-be-moot-before-it-reaches-supreme-court-heres

Nolan writes in The Hill:

“The six travel-ban countries will be subject to the new ban if their governments refuse to cooperate with the new vetting system, or they will not be subject to it if their governments agree to cooperate. In either case, they will no longer be subject to the 90-day travel ban. This will moot the travel ban issues before the court reconvenes to hear arguments on the merits of the case.

The new ban 

The original travel ban order was hastily issued one week after Trump’s inauguration without an interagency review. The new one will be based on a worldwide review and interagency input.

According to DHS Secretary John Kelley, in addition to the six countries on the travel ban list, 13 or 14 other countries also have very questionable vetting procedures and not all of them are predominantly Muslim countries.

This ban will depend entirely on a country’s willingness to cooperate with the new vetting system, and it will not apply categorically to every alien from a country with an uncooperative government. It only will apply to appropriate categories of aliens from those countries.

Therefore, it should be easier to defend if it is challenged in court.”

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Go over to The Hill to read Nolan’s complete article.

I agree with Nolan that the temporary Travel Ban is likely to become moot. I think this is actually the result that the six Justices who went along with the Court’s “per curium” opinion would prefer.

I also agree with him that a type of “customized” Travel Ban flowing directly from the results of the Executive study should be easier for the Government to defend.

PWS

06-28-17

 

NO CHAOS: Matt Zapotosky Summarizes Supreme’s Travel Ban Decision — Former DOJ Immigration Litigator Leon Fresco Says Case Likely To Resolve Itself Before Argument In Fall!

https://www.washingtonpost.com/world/national-security/what-the-supreme-courts-travel-ban-ruling-means/2017/06/26/5e86e1cc-5a7e-11e7-9fc6-c7ef4bc58d13_story.html?utm_term=.13c35f5c2033

Zapotosky writes in the WashPost:

“The Supreme Court’s decision to allow portions of President Trump’s travel ban to take effect is a win for the administration, but the impact will be far less severe than President Trump’s initial version of the measure.

That is because the high court effectively allowed Trump to ban from coming to the United States only citizens of six majority-Muslim countries “who lack any bona fide relationship with a person or entity in the United States.” It also nudged the president to complete his promised review of vetting procedures, which might mean the issue is resolved by the time the court is set to fully consider the ban in its October term.

For now, if you are not a U.S. citizen and have a relative here, have been hired by a U.S. employer or admitted to an American university, you can still probably get a visa. But if you’re applying cold as a visitor or through the diversity visa program, you probably can’t.

. . . .

The Supreme Court wrote that the government now should be able to do its work. “We fully expect that the relief we grant today will permit the Executive to conclude its internal work and provide adequate notice to foreign governments within the 90-day life of [the order],” the justices wrote.

The court said it would take up the travel ban fully in its October term; their ruling Monday only partially lifted lower courts’ stays on the measure. By that time, the 90-day period will have run, and Fresco said the administration will be pressed to come up with good reasons for imposing a ban.

“If there is not an answer to the question on the first day of oral arguments about why this ban is still in place, that is going to make the court much more skeptical about the government’s reasons for having this ban,” Fresco said.”

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Read the complete analysis at the link.

According to this analysis, the six Justices in the majority apparently have skillfully maneuvered the Trump Administration into a “put up or shut up” situation. They have alleviated the greatest hardships caused by the ban by allowing individuals with bona fide connections to the U.S. to continue to come. At the same time, they have pressured the Trump Administration into completing its “study” before Fall and lifting the “temporary ban,” thus largely mooting the case. As Fresco points out, if the Administration attempts to continue the ban after its scheduled expiration, they will likely have to come up with a much more convincing explanation that they have provided to date. Otherwise, the whole thing is going to look like a “pretext” for a blanket “Muslim ban,” which is what the plaintiffs have been arguing all along. Actually, sounds to me like the kind of practical solution that Chief Justice Roberts sometimes devises to avoid ugly showdowns between the three branches of Government. Interesting.

PWS

06-26-17

 

BREAKING: SUPREMES GRANT CERT., ALLOW TRUMP’S TRAVEL BAN TO GO INTO EFFECT — WITH IMPORTANT EXCEPTIONS — CASE DOCKETED FOR OCT. — MIGHT BE “MOOT” BY THEN!

Here’s the Court’s complete “per curiam” (unsigned) opinion with separate concurring and dissenting opinion by Justices Thomas, Gorsuch, & Alito:

SCTravelBan16-1436_l6hc

The Supreme Court handed the Trump Administration at least a partial victory on the controversial “Travel Ban 2.0” which had been enjoined by the Ninth and Fourth U.S. Circuit Courts of Appeals. The Court: 1) granted the petitions for certiorari filed by the Solicitor General in behalf of the Trump Administration and scheduled the case for Oral Argument at the beginning of the October 2017 Term; and 2) granted in part the Solicitor General’s request to stay the lower courts’ injunctions pending review.

However, in partially lifting the injunctions, the Court left in effect a significant  part of those injunctions: the Travel Ban may not be applied to a) “foreign nationals who have a [pre-existing] credible claim of a bona fide relationship with a person or entity in the United States,” and b) “an individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States.”

The dissent would have stayed all parts of the lower courts’ injunctions. Justice Thomas, joined by Justices Alito and Gorsuch, criticized the majority for having cerated a non-statutory category of individuals who can “credibly claim a bona fide relationship with a person or entity in the United States.” He fears that the meaning of these exceptions will itself become a fertile ground of additional litigation before the Court can resolve the merits of these cases.

Additionally, the Court noted that since the bar on internal review of procedures relating to visa issuance was lifted on June 14, 2017, and the Government has represented that the review will be completed within 90 days, the case with respect to visa issuance to non-refugees might well be moot before the Court can get to the merits. The court instructs the parties to brief that issue.

“Quickie Analysis”

The Trump Administration can legitimately view this as a much-needed (from their standpoint) victory. All nine Justices appear to be prepared to rule that the Executive has virtually unbridled authority to bar the admission, at least temporarily, of foreign nationals with no connections to the United States.

It also appears that Justices Thomas, Gorsuch, and Alito would find that the Executive’s essentially unreviewable authority extends even to individuals who have a connection with the United States.

However, those challenging the Travel Ban have some reason to hope because at least six Justices seem to remain open to the possibility of engaging in some type of meaningful judicial review of Executive decisions regarding foreign nationals abroad who have established some connections to the U.S.

There may also be mootness issues with respect to some or all of the injunction with respect to refugee admissions. The new fiscal year for refugee admissions begins on October 1, 2017, before the Court will have heard argument in these cases. Before the beginning of the fiscal year, the Trump Administration must under the Refugee Act of 1980  “consult” with Congress on the number and allocation of refugee admissions for fiscal year 2018.  “Statutory consultation” was one of the things that the Trump Administration neglected to do before purporting to suspend refugee admissions and dramatically slash the number of fiscal year 2017 refugee admissions established by the Obama Administration after undertaking the required statutory consultation.

The lack of any reasonable rationale by the Trump Administration for reversing the  prior statutory determination made by the the Obama Administration after consultation with Congress was cited by the Ninth Circuit in upholding the original injunction. But, that issue should also be moot before the Court decides theses cases on the merits.

PWS

06-26-17

 

NEW FROM THE HILL: Nolan Rappaport Critiques Canada’s Refugee Stance!

http://thehill.com/blogs/pundits-blog/immigration/338561-trudeau-tweets-not-the-answer-to-canadas-refugee-issues?mobile_switch=standard

Nolan writes:

“The day after President Donald Trump issued his first travel ban order, Canadian Prime Minister Justin Trudeau tweeted a message to aliens “fleeing persecution, terror & war.” In addition to the inappropriateness of accusing the president of the United States of religious discrimination, his tweet made a promise that Canada will not be able to keep.

His tweet was an unqualified invitation to the 65.6 million aliens worldwide who have been displaced from their countries by conflict and persecution. Canada almost certainly will have to turn away many of the aliens who accept the invitation and come to Canada relying on it.

Some will be disqualified by Canada’s Safe Third Country Agreement with the United States, which requires asylum seekers to apply for asylum in the United States if they enter that country before entering Canada, with some exceptions.

Also, his invitation includes aliens who are fleeing terror and war, and despite their very real need for refuge, they are not likely to be able to establish eligibility for refugee status or asylum on that basis.  According to UNHCR figures, only 22.5 million of the 65.6 million displaced persons are refugees.

Trudeau’s tweet reminds me of President Jimmy Carter’s invitation to Cuban refugees when he was asked what the government was going to do about the Mariel Boat Lift. On April 20, 1980, Cuban President Fidel Castro announced that he would permit Cubans wishing to leave Cuba to go to the United States. Two weeks later, Carter said that the United States would “welcome the Cuban refugees with open arms and open hearts.”

But the boat lift was not limited to refugees. Castro forced the boat owners who participated in the boat lift to take approximately 8,000 criminals and hundreds of mentally-ill persons. The boat lift was a financial disaster for the ship owners. Despite Carter’s promise to welcome the Cuban refugees, his administration fined the boat owners $1,000 for each of the estimated 110,000 Mariel refugees they brought here in violation of section 273 of the Immigration and Nationality Act.”

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Read Nolan’s complete op-ed, which also contains a description of Canada’s Refugee Program, over on The Hill at the above link.

Several thoughts.  Most of the world’s refugees have no way of getting to Canada. Many victims of war an terror are, in fact, refugees under a proper application of Convention standards. Our “Safe Third Country Agreement” with Canada has very limited applicability. Also, regardless of the wisdom of accusing President Trump of religious discrimination, nearly all Federal Courts to consider the two Travel Bans to date have found that the President indeed had improper motives for imposing the ban, including religious discrimination.

Given Trump’s highly problematic attitude and actions towards refugees, I’d be hesitant to throw too many stones at other nations who are at least trying to show the spirit of generosity embodied in the U.N. Convention and Protocol. Wise or not, Trudeau’s heart is in the right place. That’s more than I can say for Trump.

PWS

06-20-17

THE HILL: Professor Andy Schoenholtz Of Georgetown Law On Why Americans Should Be Grateful To The 9th Circuit For Upholding The Rule Of Law Against Executive Overreach!

 

http://thehill.com/blogs/pundits-blog/civil-rights/337955-9th-circuit-on-travel-ban-president-must-respect-congress

Professor Schoenholtz concludes:

“In fact, had the president focused on asking America’s civil servants to build on the progress achieved since 9/11 and try to find new ways of identifying security threats among those who seek visas, that work would have been accomplished by now, according to the schedule set by both the first and second EO’s.

If the Supreme Court decides at some point to hear a case regarding the EO, they will now be asked to consider not only whether the President has violated the Establishment Clause but also whether he has exceeded his statutory authority. As determined by the Supreme Court in the late nineteenth century, Congress has the constitutional authority to establish the immigration laws.

It has done just that by statute. The president has broad authority to implement that statutory system, but does the president have the power to stop admitting immigrants from six countries? From sixty? From all countries? Where does this end, and where would that leave Congress and the equilibrium established by the Constitution? We should thank the Ninth Circuit for raising that issue clearly and thoughtfully.

Andrew I. Schoenholtz is a Professor from Practice at Georgetown Law and the author, with Professors Jaya Ramji-Nogales and Philip G. Schrag, of “Lives in the Balance: Asylum Adjudication by the Department of Homeland Security.”

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Read Andy’s entire analysis at the link.

I’m still somewhat skeptical that the Supremes will take this case given the problems caused by the President’s out of court statements and tweets. Future Chief Executives likely will be more “Presidential” and act with more prudence and thoughtfulness. So, why take a case that hopefully will turn out to be more or less “sui generus?” If I were the Supremes, I would let the lower courts sort through this mess and make a complete record before approaching the legal questions. But, we’ll see.  Very soon!

PWS

06-19-17

BREAKING: Trump’s Travel Ban 2.0 Loses Again In 9th Circuit!

Here’s the text of the unanimous “per curium” decision by a panel consisting of Circuit Judges Michael Daly Hawkins, Ronald M. Gould, & Richard A. Paez:

https://www.nytimes.com/interactive/2017/06/12/us/politics/document-Read-the-Ninth-Court-of-Appeals-Ruling-on-Trump.html

And, here’s the related story in the NY Times, reported by Ronald Liptak:

https://www.nytimes.com/2017/06/12/us/politics/trump-travel-ban-court-of-appeals.html

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This order was more or less expected by most legal observers. The 9th Circuit did lift the part of the District Court’s injunction preventing the President from directing an internal review of vetting procedures. Also interestingly, the 9th Circuit found that the President’s attempt to “cut” FY 2017 refugee admissions from 110,000 to 50,000 exceeded his authority, to a large extent because he failed to undertake the “advance consultation with Congress” required by the INA.

The Supreme Court presently is deciding whether or not to review a similar case from the Fourth Circuit Court of Appeals upholding the injunction against Travel Ban 2.0.

The Ninth Circuit case is State of Hawaii v. Trump.

PWS

06-12-17

BREAKING: Another Defeat For Travel Ban — Maryland Federal Judge Also Slams Administration — Get Full Opinion Here!

Here’s the key “Establishment Clause” portion of Judge Theodore D. Chuang’s decision in International Refugee Assistance Project v. Trump:

B. Establishment Clause

Plaintiffs assert that the travel ban on citizens from the Designated Countries is President Trump’s fulfillment of his campaign promise to ban Muslims from entering the United States. They argue that the Second Executive Order therefore violates the Establishment Clause. The First Amendment prohibits any “law respecting an establishment of religion,” U.S. Const. amend. I, and “mandates governmental neutrality between religion. and religion, and between religion and nonreligion,” Epperson v. Arkansas, 393 U.S. 97, 104 (1968). When a law does not differentiate among religions on its face, courts apply the test articulated in Lemon v. Kurtzman, 403 U.S. 602 (1971). See Hernandez v. C.IR., 490 U.S. 680, 695 (1989). Under the Lemon test, to withstand an Establishment Clause challenge (1) an act must have a secular purpose, (2) “its principal or primary effect must be one that neither advances nor inhibits religion,” and (3) it must not “foster’ an excessive government entanglement with religion. ‘” Id. at 612-613 (quoting

Walz v. Tax Comm’n, 397 U.S. 664, 674 (1970)). All three prongs of the test must be satisfied. Edwards v. Aguillard, 482 U.S. 578, 583 (1987).

The mere identification of any secular purpose for the government action does not satisfy the purpose test. McCreary Cty. v. Am. Civil Liberties Union a/Ky., 545 U.S. 844,860,865 n.13

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(2005). Such a rule “would leave the purpose test with no real bite, given the ease of finding some secular purpose for almost any government action.” Id. (“[A]n approach that credits any valid purpose . . . has not been the way the Court has approached government action that implicates establishment.” (emphasis added)). Thus, although governmental statements of purpose generally receive deference, a secular purpose must be “genuine, not a sham, and not merely secondary to a religious objective.” Id. at 864. If a religious purpose for the government action is the predominant or primary purpose, and the secular purpose is “secondary,” the purpose test has not been satisfied. Id. at 860, 862-65; see also Edwards, 482 U.S. at 594 (finding a violation of the Establishment Clause where the “primary purpose” of the challenged act was “to endorse a particular religious doctrine”).

An assessment ofthe purpose of an action is a “common” task for courts. McCreary, 545 U.S. at 861. In determining purpose, a court acts as an “objective observer” who considers “the traditional external signs that show up in the text, legislative history, and implementation of the statute, or comparable official act.” McCreary, 545 U.S. at 862 (internal quotation marks omitted) (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 308 (2000)). An “understanding of official objective” can emerge from “readily discoverable fact” without ”judicial psychoanalysis” of the decisionmaker. Id.

Plaintiffs argue that the Second Executive Order fails the purpose prong because there is substantial direct evidence that the travel ban was motivated by a desire to ban Muslims as a group from entering the United States. Plaintiffs’ evidence on this point consists primarily of public statements made by President Trump and his advisors, before his election, before the issuance of the First Executive Order, and since the decision to issue the Second Executive Order. Considering statements from these time periods is appropriate because courts may

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consider “the historical context” of the action and the “specific sequence of events” leading .up to it. Edwards, 482 U.S. at 594-95. Such evidence is “perfectly probative” and is considered as a matter of “common sense”; indeed, courts are “forbid[ den] … ‘to tum a blind eye to the context in which [the] policy arose.”’ McCreary, 545 U.S. at 866 (quoting Santa Fe Indep. Sch. Dist. v. Doe, 530 U.S. 290, 315 (2000)); cf Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 267-68 (1987) (including the “historical background of the decision,” the “specific sequence of events leading up [to] the challenged decision,” and “contemporary statements of the decisionmaking body” as factors indicative of discriminatory intent), cited with approval in Edwards, 482 U.S. at 595.

One consequence of taking account of the purpose underlying past actions is that the same government action may be constitutional if taken in the first instance and unconstitutional if it has a sectarian heritage. This presents no incongruity, however, because purpose matters.

McCreary, 545 U.S. at 866 n.l4.
Specifically, the evidence offered by Plaintiffs includes numerous statements by

President Trump expressing an intent to issue a Muslim ban or otherwise conveying anti-Muslim sentiments. For example, on December 7, 2015, then a Republican primary candidate, Trump posted a “Statement on Preventing Muslim Immigration” on his campaign website “calling for a total and complete shutdown of Muslims entering the United States until our representatives can figure out what is going on.” J.R. 85. In a March 9, 2016 interview with CNN, Trump professed his belief that “Islam hates us,” and that the United States had “allowed this propaganda to spread all through the country that [Islam] is a religion of peace.” J.R. 255-57. Then in a March 22, 2016 Fox Business interview, Trump reiterated his call for a ban on Muslim immigration, explaining that his call for the ban had gotten “tremendous support” and that “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.”

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into the country.” J.R. 261. On December 21, 2016, when asked whether a recent attack in Germany affected his proposed Muslim ban, President-Elect Trump replied, “You know my plans. All along, I’ve proven to be right. 100% correct.” J.R.245. In a written statement about the events, Trump lamented the attack on people “prepared to celebrate the Christmas holiday” by “ISIS and other Islamic terrorists [who] continually slaughter Christians in their communities and places of worship as part of their global jihad.” J.R. 245.

Significantly, the record also includes specific statements directly establishing that Trump intended to effectuate a partial Muslim ban by banning entry by citizens of specific predominantly Muslim countries deemed to be dangerous, as a means to avoid, for political reasons, an action explicitly directed at Muslims. In a July 24, 2016 interview on Meet the Press, soon after becoming the Republican presidential nominee, Trump asserted that immigration should be immediately suspended “from any nation that has been compromised by terrorism.” J.R. 219. When questioned whether his new formulation was a “rollback” of his call for a “Muslim ban,” he described it as an “expansion” and explained that “[p]eople were so upset when I used the word Muslim,” so he was instead “talking territory instead of Muslim.” J.R. 220. When President Trump was preparing to sign the First Executive Order, he remarked, “This is the ‘Protection of the Nation from Foreign Terrorist Entry into the United States.’ We all know what that means.” J.R. 142. The day after the First Executive Order was issued, Mayor Giuliani appeared on Fox News and asserted that President Trump told him he wanted a Muslim ban and asked Giuliani to “[s]how me the right way to do it legally.” J.R. 247. Giuliani, in consultation with others, proposed that the action be “focused on, instead of religion … the areas of the world that create danger for us,” specifically “places where there are [sic] substantial

evidence that people are sending terrorists into our country.” J.R.247-48. These types of public

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statements were relied upon by the Eastern District of Virginia in enjoining the First Executive Order based on a likelihood of success on an Establishment Clause claim, Aziz, 2017 WL 580855, at *11, and the Ninth Circuit in concluding that an Establishment Clause claim against that Order raised “serious allegations” and presented “significant constitutional questions.” Washington, 847 F.3d at 1168.

These statements, which include explicit, direct statements of President Trump’s animus towards Muslims and intention to impose a ban on Muslims entering the United States, present a convincing case that the First Executive Order was issued to accomplish, as nearly as possible,

. President Trump’s promised Muslim ban. In particular, the direct statements by President Trump and Mayor Giuliani’s account of his conversations with President Trump reveal that the plan had been to bar the entry of nationals of predominantly Muslim countries deemed to

constitute dangerous territory in order to approximate a Muslim ban without calling it one- precisely the form of the travel ban in the First Executive Order. See Aziz, 2017 WL 580855, at *4 (quoting from a July 17,2016 interview during which then-candidate Trump, upon hearing a tweet stating “Calls to ban Muslims from entering the U.S. are offensive and unconstitutional,” responded “So you call it territories. OK? We’re gonna do territories.”). Such explicit statements of a religious purpose are “readily discoverable fact[s]” that allow the Court to identify the purpose of this government action without resort to “judicial psychoanalysis.” McCreary, 545 U.S. at 862. They constitute clear statements of religious purpose comparable to those relied upon in Glassroth v. Moore, 335 F.3d 1282 (lith Cir. 2003), where the court found that a Ten Commandments display at a state courthouse was erected for a religious purpose in part based on the chief justice stating at the dedication ceremony that “in order to establish justice, we must invoke ‘the favor and guidance of Almighty God. ‘” Id. at 1286, 1296 (“[N]o

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psychoanalysis or dissection is required here, where there is abundant evidence, including his own words, of the Chief Justice’s purpose.”).

Relying primarily on this record, Plaintiffs asks this Court to issue an injunction against the Second Executive Order on Establishment Clause grounds. In considering this request, the same record of public statements by President Trump remains highly relevant. In McCreary, where the Court was reviewing a third attempt to create a courthouse display including the Ten Commandments after two prior displays had been deemed unconstitutional, it held that its review was not limited to the “latest news about the last in a series of governmental actions” because “the world is not made brand new every morning,” “reasonable observers have reasonable memories,” and to impose such a limitation would render a court “an absentedminded objective observer, not one presumed familiar with the history of the government’s action and competent to learn what history has to show.” McCreary, 545 U.S. at 866.

The Second Executive Order, issued only six weeks after the First Executive Order, differs, as relevant here, in that the preference for religious minorities in the refugee process has been removed. It also removes Iraq from the list of Designated Countries, exempts certain categories of individuals from the ban, and lists other categories of individuals who may be eligible for a case-by-case waiver from the ban. Despite these changes, the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban. The Trump Administration acknowledged that the core substance of the First Executive Order remained intact. Prior to its

issuance, on February 16, 2017, Stephen Miller, Senior Policy Advisor to the President, described the forthcoming changes as “mostly minor technical differences,” and stated that the “basic policies are still going to be in effect.” J.R. 319. When the Second Executive Order was

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signed on March 6, 2017, White House Press Secretary Sean Spicer stated that “[t]he principles of the [second] executive order remain the same.” J.R. 118. The Second Executive Order itself explicitly states that the changes, particularly the addition of exemption and waiver categories, were made to address ‘judicial concerns,” 2d Order S1(i), including those raised by the Ninth Circuit, which upheld an injunction based on due process concerns, Washington, 847 F.3d at 1156.

The removal of the preference for religious minorities in the refugee system, which was the only explicit reference to religion in the First Executive Order, does not cure the Second Executive Order of Establishment Clause concerns. Crucially, the core policy outcome of a blanket ban on entry of nationals from the Designated Countries remains. When President Trump discussed his planned Muslim ban, he described not the preference for religious minorities, but the plan to ban the entry of nationals from certain dangerous countries as a means to carry out the Muslim ban. These statements thus continue to explain the religious purpose behind the travel ban in the Second Executive Order. Under these circumstances, the fact that the Second Executive Order is facially neutral in terms of religion is not dispositive. See Bd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687, 699-702 (1994) (holding that a facially neutral delegation of civic power to “qualified voters” of a village predominantly comprised of followers of Satmas Hasidism was a “purposeful and forbidden” violation of the Establishment Clause); cf Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534, 542 (1993) (holding that a facially neutral city ordinance prohibiting animal sacrifice and intended to target the Santeria faith violated the Free Exercise Clause because “the Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination” and action

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targeting religion “cannot be shielded by mere compliance with the requirement of facial neutrality”).

Defendants do not directly contest that this record of public statements reveals a religious motivation for the travel ban. Rather, they argue that many of the statements may not be considered because they were made outside the formal government decisionmaking process or before President Trump became a government official. Although McCreary, relied upon by Defendants, states that a court considers “the text, legislative history, and implementation” of an action and “comparable” official acts, it did not purport to list the only materials appropriate for consideration? 545 U.S. at 862. Notably, in Green v. Haskell County Board of Commissioners, 568 F.3d 784 (10th Cir. 2009), the United States Court of Appeals for the Tenth Circuit considered quotes from county commissioners that appeared in news reports in finding that a Ten Commandments display violated the Establishment Clause. Id. at 701. Likewise, in Glassroth, the United States Court of Appeals for the Eleventh Circuit found an Establishment Clause violation based on a record that included the state chief justice’s campaign materials, including billboards and television commercials, proclaiming him to be the “Ten Commandments Judge.” 335 F.3d at 1282, 1284-85, 1297.

Although statements must be fairly “attributed to [a] government actor,” Glassman v. Arlington Cty., 628 F.3d 140, 147 (4th Cir. 2010), Defendants have cited no authority concluding

2 In Hamdan v. Rumsfeld, 548 U.S. 557, 624 n.52 (2006), cited by Defendants, the Court criticized a dissent’s reliance on press statements by senior government officials, rather than the President’s formal written determination mandated by the Uniform Code of Military Justice, to provide justification for the government’s determination that applying court-martial rules to a terrorism suspect’s military commission was impracticable. Id. at 624 & n.52. It did not address what facts could be considered in assessing government purpose under the Establishment Clause, where courts have held that facts outside the specific text of the government decision may be considered. See Edwards, 482 U.S. at 594-95.

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that a court assessing purpose under the Establishment Clause may consider only statements made by government employees at the time that they were government employees. Simply because a decisionmaker made the statements during a campaign does not wipe them from the “reasonable memory” of a “reasonable observer.” McCreary, 545 U.S. at 866. Notably, the record in Glassroth also included the fact that the state chief justice, before securing election to that position, had made a campaign promise to install the Ten Commandments in the state courthouse, as well as campaign materials issued by members of his campaign committee. Glassroth, 335 F.3d at 1285. Because the state chief justice was the ultimate decisionmaker, and his campaign committee’s statements were fairly attributable to him, such material is appropriately considered in assessing purpose under the Establishment Clause. See id. at 1285; Glassman, 628 F.3d at 147. Likewise, all of the public statements at issue here are fairly attributable to President Trump, the government decisionmaker for the Second Executive Order, because they were made by President Trump himself, whether during the campaign or as President, by White House staff, or by a close campaign advisor who was relaying a conversation he had with the President. In contrast, Defendants’ cited case law does not involve statements fairly attributable to the government decisionmaker. See, e.g., Glassman, 628 F.3d at

147 (declining to consider statements made by members of a church that was alleged to have benefited from government action); Weinbaum v. City of Las Cruces, 541 F.3d 1017, 1031 (lOth Cir. 2008) (declining to consider statements by the artist where the government’s display of artwork is challenged); Modrovich v. Allegheny Cty., 385 F.3d 397, 411 (3d Cir. 2004) (declining to consider statements by a judge and county residents about a Ten Commandments display where the county government’s purpose was at issue).

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Defendants also argue that the Second Executive Order explicitly articulates a national security purpose, and that unlike its predecessor, it includes relevant information about national security concerns. In particular, it asserts that there is a heightened chance that individuals from the Designated Countries will be “terrorist operatives or sympathizers” because each country is “a state sponsor of terrorism, has’ been significantly compromised by terrorist organizations, or contains active conflict zones,” and those governments are therefore less likely to provide necessary information for the immigrant vetting process. 2d Order ~ 1(d). The Order also references a history of persons born abroad committing terrorism-related crimes in the United States and identifies three specific cases of such crimes. The Order further states that more than 300 persons who entered the United States as refugees are currently the subjects of counterterrorism investigations.

Plaintiffs argue that the stated national security rationale is limited and flawed. Among other points, they note that the Second Executive Order does not identify examples of foreign nationals from Iran, Libya, Sudan, Syria, or Yemen who engaged in terrorist activity in the United States. They also note that a report from the Department of Homeland Security, Office of Intelligence and Analysis, concluded that “country of citizenship is unlikely to be a reliable indicator of potential terrorist activity” and that “few of the impacted countries have terrorist groups that threaten the West.” l.R. 158. Furthermore, they note that the 300 FBI investigations are dwarfed by the over 11,000 counterterrorism investigations at anyone time, only a fraction of which lead to actual evidence of illegal activity. Finally, they note that Secretary of Homeland Security Kelly stated that there are additional countries, some of which are not predominantly Muslim, that have vetting problems but are not included among the banned

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countries. These facts raise legitimate questions whether the travel ban for the Designated Countries is actually warranted.

Generally, however, courts should afford deference to national security and foreign policy judgments of the Executive Branch. Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010). The Court thus should not, and will not, second-guess the conclusion that national security interests would be served by the travel ban. The question, however, is not simply whether the Government has identified a secular purpose for the travel ban. If the stated secular purpose is secondary to the religious purpose, the Establishment Clause would be violated. See McCreary, 545 U.S. at 864, 866 n.14 (stating that it is appropriate to treat two like acts differently where one has a “history manifesting sectarian purpose that the other lacks”). Making assessments on purpose, and the relative weight of different purposes, is a core judicial function. See id. at 861-62.

In this highly unique case, the record provides strong indications that the national security purpose is not the primary purpose for the travel ban. First, the core concept of the travel ban was adopted in the First Executive Order, without the interagency consultation process typically followed on such matters. Notably, the document providing the recommendation of the Attorney General and the Secretary of Homeland Security was issued not before the First Executive Order, but on March 6, 2017, the same day that the Second Executive Order was issued. The fact that the White House took the highly irregular step of first introducing the travel ban without receiving the input and judgment of the relevant national security agencies strongly suggests that the religious purpose was primary, and the national security purpose, even if legitimate, is a

secondary post hoc rationale.

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Second, the fact that the national security rationale was offered only after courts issued injunctions against the First Executive Order suggests that the religious purpose has been, and remains, primary. Courts have been skeptical of statements of purpose “expressly disclaim(ing] any attempt to endorse religion” when made after a judicial finding of impermissible purpose, describing them as a “litigating position.” E.g., Am. Civil Liberties Union of Ky. v. McCreary Cty., 607 F.3d 439, 444, 448 (6t~ Cir. 2010). Indeed, the Second Executive Order itself acknowledges that the changes made since the First Executive Order were to address “judicial concerns.” 2d Order S l(i).

Third, although it is undisputed that there are heightened security risks with the Designated Countries, as reflected in the fact that those who traveled to those countries or were nationals of some of those countries have previously been barred from the Visa Waiver Program, see 8 U.S.C. S 1187(a)(12), the travel ban represents an unprecedented response. Significantly, during the time period since the Reagan Administration, which includes the immediate aftermath of September 11, 2001, there have been no instances in which the President has invoked his authority under S1182(f) or S1185 to issue a ban on the entry into the United States of all citizens from more than one country at the same time, much less six nations all at once. Kate M. Manuel, Congo Research Serv., R44743, Executive Authority to Exclude Aliens: In Brief (2017); l.R. 405-406. In the two instances in which nationals from a single country were temporarily

stopped, there was an articulable triggering event that warranted such action. Manuel, supra, at 10-11 (referencing the suspension of the entry of Cuban nationals under President Reagan after Cuba stopped complying with U.S. immigration requirements and the revocation of visas issued to Iranians under President Carter during the Iran Hostage Crisis). The Second Executive Order does not explain specifically why this extraordinary, unprecedented action is the necessary

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response to the existing risks. But while the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban. Thus, it is more likely that the primary purpose of the travel ban was grounded in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban. Accordingly, there is a likelihood that the travel ban violates the Establishment Clause.

Finally, Defendants argue that because the Establishment Clause claim implicates Congress’s plenary power over immigration as delegated to the President, the Court need only consider whether the Government has offered a “facially legitimate and bona fide reason” for its action. See Mandel, 408 U.S. at 777. This standard is most typically applied when a court is asked to review an executive officer’s decision to deny a visa. See, e.g., Din, 135 S. Ct. at 2140 (Kennedy, J., concurring); or in other matters relating to the immigration rights of individual aliens or citizens, see Fiallo v. Bell, 430 U.S. 787, 790 (1977). The Mandel test, however, does not apply to the “promulgation of sweeping immigration policy” at the “highest levels of the political branches.” Washington, 847 F.3d at 1162 (holding that courts possess “the authority to review executive action” on matters of immigration and national security for “compliance with the Constitution”). In such situations, the power of the Executive and Legislative branches to create immigration law remains “subject to important constitutional limitations.” Zadvydas v. Davis, 533 U.S. 678, 695 (2001) (quoting INS v. Chadha, 462 U.S. 919,941-42 (1983)).

Even when exercising their immigration powers, the political branches must choose “constitutionally permissible means of implementing that power.” Chadha, 462 U.S. at 941. Courts have therefore rejected arguments that they forgo the traditional constitutional analysis

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when a plaintiff has challenged the Government’s exercise of immigration power as violating the Constitution. See, e.g., Zadvydas, 533 U.S. at 695 (rejecting deference to plenary power in determining that indefinite detention of aliens violated the Due Process Clause); Chadha, 462 U.S. at 941-43 (stating that Congress’s plenary authority over the regulation of aliens does not permit it to “offend some other constitutional restriction” and holding that a statute permitting Congress to overturn the Executive Branch’s decision to allow a deportable alien to remain in the United States violated constitutional provisions relating to separation of powers); Washington, 847 F.3d at 1167-68 (referencing standard Establishment Clause principles as applicable to the claim that the First Executive Order violated the Establishment Clause). Thus, although “[t]he Executive has broad discretion over the admission and exclusion of aliens,” that discretion “may not transgress constitutional limitations,” and it is “the duty of the courts” to “say where those statutory and constitutional boundaries lie.” Abourezk, 785 F.2d at 1061.

Mindful of “the fundamental place held by the Establishment Clause in our constitutional scheme and the myriad, subtle ways in which Establishment Clause values can be eroded,” Lynch v. Donnelly, 465 U.S. 668, 694 (1984), the Court finds that the Plaintiffs have established that they are likely to succeed on the merits of their Establishment Clause claim. Having reached this conclusion, the Court need not address Plaintiffs’ likelihood of success on their Equal Protection Clause claim.

Read the full decision here:

https://assets.documentcloud.org/documents/3518169/Read-the-federal-judge-s-ruling-in-Md-on-Trump-s.pdf

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PWS 03/16/17

 

 

BREAKING: ENJOINED AGAIN! NATIONWIDE TRO! Judge in Hawaii Says Travel Ban Violates Establishment Clause! Trump Administration Basically Found “Not Credible” On Immigration/National Security Claims — Trump’s Own Statements & Those of Giuliani, Miller Used To Show Bias!

http://www.huffingtonpost.com/entry/trump-travel-ban-blocked_us_58c99d18e4b00705db4bc38f

Report from HuffPost:

“A federal judge in Hawaii has placed a nationwide hold on key aspects of President Donald Trump’s second attempt at a ban on travel ― a scaled-back version that targeted all non-visa holders from six Muslim-majority countries, as well as a halt on the U.S. refugee resettlement program ― just hours before the new restrictions were to take effect.

U.S. District Judge Derrick Watson said sections of the new travel order likely amounted to a violation of the First Amendment’s establishment clause, which forbids the government from disfavoring certain religions over others.

Watson gave short shrift to the Trump administration’s argument that the new restrictions applied to a “small fraction” of the world’s 50 predominantly Muslim nations ― and thus could not be read to discriminate Muslims specifically.

“The illogic of the Government’s contentions is palpable,” Watson wrote. “The notion that one can demonstrate animus toward any group of people only by targeting all of them at once is fundamentally flawed.”

The judge also discarded the government’s defense that the text of the new executive order was silent on religion, supposedly solving constitutional defects identified by courts with the first order.

“Any reasonable, objective observer would conclude … that the stated secular purpose of the Executive Order is, at the very least, secondary to a religious objective of temporarily suspending the entry of Muslims,” Watson wrote.”

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Here is Judge Watson’s written decision in State of Hawaii v. Trump:

http://www.hid.uscourts.gov/files/announcement142/CV17-50%20219%20doc.pdf

More bad news for the Administration — the Third Circuit has enjoined the removal of an Afghani interpreter with a visa who was denied admission and allegedly “withdrew” his application. Read about it in the WashPost here:

https://www.washingtonpost.com/national/immigration-authorities-to-deport-afghan-man-who-helped-us-government/2017/03/15/a7eecb9a-098e-11e7-a15f-a58d4a988474_story.html?hpid=hp_rhp-banner-main_travelban1010am:homepage/story&utm_term=.051c21ef8afe

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It’s early in the game on the Administration’s uncompromisingly hard line approach to immigration issues. So far, however, they have racked up an impressive string of losses from coast to coast from Article III Judges all across the spectrum.

In other words, the bombastically inappropriate statements made by Trump and his advisors have “poisoned the well,” and the Administration is probably going to find it difficult to “un-poison” it. And, as long as guys like Bannon, Sessions, Miller, and Kobach are calling the shots, that might never happen.

As some have suggested, perhaps the President and his advisors need a type of “Executive Miranda Warnings” before they shoot off their mouths (or their Twitters) in public: “Everything you say (or Tweet) can and will be used against you.”

The next stop for “Travel Ban 2.0” probably will be the 9th Circuit. But, since the Administration already lost there on its appeal of the TRO in State of Washington v. Trump, I wouldn’t hold my breath waiting for the 9th Circuit to lift the TRO. Like President Obama with the “DAPA Fiasco,” President Trump is learning that U.S. District Judges wield considerable power in our system.  As one of my colleagues once said, “U.S. District Judges are the last living potentates.”

None of this bodes well for the Administration’s next ill-advised plan — to ramp up removals, increase the use of immigration detention, maximize “expedited removal,” and reduce what’s left of the U.S. Immigration Court to the equivalent of two-shift assembly line workers churning out removal orders. Chances are that the Article III Courts are going to have something to say about that too. And, unless the Administration moderates its approach, it’s not likely to be anything they like.

PWS

03/15/17

 

 

NYT WORLD: “Where Refugees Come From” by Adam Pearce

https://www.nytimes.com/interactive/2017/03/06/world/where-refugees-come-from.html?em_pos=small&emc=edit_up_20170315&nl=upshot&nl_art=4&nlid=79213886&ref=headline&te=1

“President Trump signed a new executive order on Monday [March 6] to ban all refugees from entering the United States for 120 days. The order also cuts the refugee program in half, capping it at 50,000 people for the 2017 fiscal year, down from the 110,000 ceiling put in place under President Obama.

The United States accepted 84,994 refugees from 78 different countries in 2016. The order also temporarily halts new visas for six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen.”

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There is an “interactive map/chart” in the full article at the link.

PWS

03/15/17