Archives

Is the Third Travel Ban Likely to be Reviewed by the Supreme Court?

Posted in Case Notes Commentary Roundup on By Lann McIntyre

If Attorney General Jeff Sessions has his way the answer will be yes he told the Senate Judiciary Committee shortly after two federal district courts temporarily prevented the third travel ban from going into effect.

The president’s March 6 executive order (the second travel ban) prevented people from six predominately Muslim countries from entering the United States for 90 days. In June, the Supreme Court temporarily prevented the ban from going into effect against those with a “bona fide relationship with a person or entity in the United State” until the Court could hear the case on the merits in early October.

The second travel ban was set to expire on September 24. That day the President issued a presidential proclamation (the third travel ban) indefinitely banning immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen. Persons from some of these countries and Venezuela also may not receive particular non-immigrant visas. Following the presidential proclamation, the Supreme Court dismissed the case challenging the second travel ban.

Shortly before the third travel ban was supposed to go into effect federal district courts in Hawaii and Maryland issued temporary injunctions blocking it.

Continue reading →

 

Supreme Court to Rule on Travel Ban

Posted in Case Notes Commentary on By Lann McIntyre

On its last opinion day of the term, the Supreme Court announced that it would rule on the constitutionality of the Trump administration’s revised travel ban. In the meantime, to the extent the executive order prevents foreign nationals and refugees “who lack any bona fide relationship with a person or entity in the United States” from entering the United States, it may go into effect until the Supreme Court rules on the merits of this case.

The president’s first executive order prevented people from seven predominantly Muslim countries from entering the United States for 90 days, froze decisions on refugee applications for 120 days, and capped total refugee admissions at 50,000 for fiscal year 2017.

The Ninth Circuit temporarily struck it down, concluding this executive order was not religion-neutral, and that it likely violated the due process rights of lawful permanent residents, nonimmigrant visa holders, and refugees.

The president’s second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days, but only applies to new visa applicants and allows for case-by-case waivers, and contains the same provisions regarding refugees as the original travel ban.

The Fourth Circuit concluded the revised travel ban likely violates the Establishment Clause, noting that its “text speaks with vague words of national security but in context drips with religious intolerance, animus and discrimination.” It temporarily prevented the portion of the executive order regarding admission to the United States for 90 days from going into effect.

The Ninth Circuit concluded that the revised travel ban likely exceeds the power granted to the President by Congress in the Immigration and Nationality Act. It temporarily prevented all of the provisions mentioned above from going into effect, including those affecting refugees. Continue reading →

 

Travel Ban Headed to the Supreme Court?

Posted in Case Notes Commentary on By Lann McIntyre

The Department of Justice (DOJ) has filed a brief asking the Supreme Court to review the Fourth Circuit’s recent decision temporarily preventing the President’s revised travel ban from going into effect. Numerous states supported both side as amici in the litigation. Numerous local governments supported the challengers.

 The President’s first executive order prevented people from seven predominately Muslim countries from entering the United States for 90 days. The Ninth Circuit temporarily struck it down concluding it likely violated the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees.

 The President’s second executive order prevents people from six predominately Muslim countries from entering the United States for 90 days but only applies to new visa applicants and allows for case-by-case waivers.  Continue reading →

 

Sanctuary Jurisdictions Executive Order Struck Down

Posted in Commentary on By Lann McIntyre

A federal district court has issued a nationwide preliminary injunction preventing the Trump administration from enforcing the sanctuary jurisdictions portion of the Enhancing Public Safety in the Interior of the United States executive order (EO).

The court was asked to accept two very different versions of what this EO means to determine whether it had jurisdiction to hear this case. The most important dispute between the parties is how much federal funding is on the line. The judge chose the Santa Clara and San Francisco version, accusing the Department of Justice (DOJ) of trying to “read out all of Section 9(a)’s unconstitutional directives to render it an ominous, misleading, and ultimately toothless threat.”

Section 9 of the EO says that jurisdictions that refuse to comply with 8 U.S.C. 1373 are ineligible to receive federal grants. On its face, Section 1373 prohibits local governments from restricting employee communication of immigration status information to Immigration and Customs Enforcement (ICE). Continue reading →

 

WOTUS to Stay at SCOTUS

Posted in Case Notes Commentary on By Lann McIntyre

The Trump administration asked the Supreme Court to hold “in abeyance” litigation over whether a federal district court or a federal court of appeals has jurisdiction to rule whether the current 2015 Waters of the United States (WOTUS) definitional rule violates the Clean Water Act. On April 2, 2017 the Supreme Court denied the motion, allowing the litigation to proceed.

President Trump’s February 28, 2017 executive order Restoring the Rule of Law, Federalism, and Economic Growth by Reviewing the “Waters of the United States” Rule calls for the “rescinding or revising” of the WOTUS rule. Many state and local governments objected to the broad nature of this rule, in particular to the expansive definition of ditches and the ambiguous definition of tributaries.  Continue reading →

 

What Will Happen Now to the Clean Power Plan Litigation?

Posted in Case Notes Commentary on By Lann McIntyre

While President Trump’s executive order (EO) on Promoting Energy Independence and Economic Growth merely calls for the “review” of the Clean Power Plan (CPP), it has been widely viewed as the President’s first step to dismantle President Obama’s signature climate change measure. The EO goes on to say that after review, the Environmental Protection Agency (EPA) “if appropriate, shall, as soon as practicable, suspend, revise, or rescind the guidance, or publish for notice and comment proposed rules suspending, revising, or rescinding those rules.”

According to the CPP, by 2030 carbon pollution from the power sector is supposed to be 32 percent below 2005 levels. State-by-state targets are to be accomplished by increased production of renewable energy.

A number of states sued the Obama administration claiming the CPP regulations exceeded EPA’s authority under the Clean Air Act. In February 2016, the Supreme Court prevented the CPP regulations from going into effect until the D.C. Circuit Court of Appeals (and the Supreme Court, if it chooses to) rules on the regulations. Continue reading →

 

Travel Ban: What’s Next?

Posted in Commentary on By Lann McIntyre

On February 9 the Ninth Circuit refused to stay a district court’s temporary restraining order disallowing the President’s travel ban from going into effect. The executive order prevents people from seven predominately Muslim countries from entering the United States for 90 days.

 Washington and Minnesota sued President Trump claiming their public universities are harmed because students and faculty of the affected countries cannot travel for research, academic collaboration, or personal reasons. The residents of cities and counties and their families have been affected as well by this executive order.

 The government argued that the President has “unreviewable authority to suspend admissions of any class of aliens.” The Ninth Circuit disagreed stating: “There is no precedent to support this claimed unreviewablity, which runs contrary to the fundamental structure of our constitutional democracy.” 

 The Ninth Circuit agreed with the district court that the states are likely to succeed on the merits of their claim that the executive order violates the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees. More specifically, the executive order provides no notice and hearing before restricting a person’s right to travel and “contravenes the procedures provided by federal statute for refugees seeking asylum.” Continue reading →