By Michael Bournas-Ney On December 14, 2018, Judge Reed O’Connor of the Northern District of Texas ruled that the entire Affordable Care Act (ACA), unofficially known as “Obamacare,” is unconstitutional. However, he later issued a stay of his own ruling, which thus clarified that the […]
A few days before the Christmas holiday, the United States Supreme Court voted to maintain a ban on new immigration restrictions proposed by the Trump administration. The December 21 vote, in which Chief Justice Roberts joined Justices Breyer, Ginsburg, Kagan and Sotomayor, blocked new rules that would limit applications for asylum by those seeking to enter the United States.
A decision by Judge Jon S. Tigar on November 19 imposed the nationwide injunction on the proposed restriction, which would affect asylum seekers entering the United States solely through “designated ports of entry.” Judge Tigar found that this proposed rule contravened the language of the Immigration and Naturalization Act, which permitted asylum applications to be filed by immigrants who arrive in this country “whether or not at a designated port of arrival.”
U.S. District Judge Emmet G. Sullivan on December 17, 2018 blocked several Trump administration policies that made it more difficult for victims of gang and domestic violence to seek asylum in the United States. In a 107-page opinion, the Court rules that the policies are “arbitrary and capricious and contrary to law” and orders the government to cease their implementation
In late November, a District Court judge handed a victory to defenders of immigrants’ rights in their challenge to Trump-era restrictions on criminal justice funding. Seven states and the City of New York had argued that new Department of Justice requirements for information-sharing and “access” to undocumented detainees in local facilities exceeded federal authority and violated states rights.
Since 2006, states and localities have been eligible to apply for federal funding under the Edward Byrne Memorial Justice Assistance Grant (“JAG”) program for grants to support criminal justice programs in various categories, including law enforcement, crime prevention, mental health, victim and witness services, drug treatment and technology. These funds are allocated according to a formula based upon a particular jurisdiction’s population and violent crime statistics. On July 25, 2017, for the first time in the history of the program, the United States Department of Justice and the Attorney General (collectively “Defendants”) announced that they would be imposing three immigration-related conditions on applicants for JAG funds.
On September 5, 2017, then-U.S. Attorney General Jeff Sessions announced that the government was terminating the Deferred Action for Childhood Arrivals (DACA) program. That same day, then–Acting Secretary of Homeland Security Elaine Duke issued a memorandum confirming the change. Multiple lawsuits challenging the Trump administration’s actions to terminate DACA were filed across the country. On January 9, 2018, Judge William Alsup of the U.S. District Court for the Northern District of California issued a preliminary injunction requiring the federal government to maintain the DACA program on a nationwide basis.
On November 8, 2018, the Ninth Circuit issued a decision (hereafter DACA II) affirming the lawfulness of the preliminary injunction. The Ninth Circuit first ruled that Acting Secretary Duke’s decision to rescind the DACA program is reviewable under the APA, because the Acting Secretary based the rescission of DACA solely on a belief that DACA was beyond the authority of DHS. It also ruled that INA Section 1252(g) does not deprive courts of jurisdiction to review the DACA rescission order.
On November 9, 2018, the Departments of Justice and Homeland Security published a Rule that placed an additional restriction on the right of asylum, namely that an asylum seeker would be ineligible for asylum if he or she entered the country in violation of a presidential Proclamation issued on or after that date. On the same day, President Trump issued a proclamation that suspended for 90 days the right of asylum seekers to enter the country across the U.S.-Mexico border except through officially designated ports of entry.
In response, various social service and legal organizations that assist immigrants filed a federal lawsuit in United States District Court (Northern District of California) against President Trump and others to seek a Temporary Restraining Order (TRO) to prevent the Rule from taking effect. On November 19, 2018, District Court Judge Jon S. Tigar issued a lengthy decision in which he scheduled a hearing on this matter for December 19, 2018, and imposed a nationwide TRO pending that hearing.
After Maryland’s challenge to Matthew Whitaker’s appointment as Acting Attorney General, on November 19, 2018, Sens. Richard Blumenthal (CT), Sheldon Whitehouse (RI), and Mazie Hirono (HI), filed a suit in DC Federal District Court against Matthew Whitaker and Donald Trump.
On November 13, 2018, Maryland Attorney General Brian E. Frosh filed a motion challenging the appointment of Matthew G. Whitaker as Acting Attorney General, as part of the state’s lawsuit, Maryland v. U.S. et al. The motion asks the court to declare that Deputy Attorney General Rod Rosenstein should be Acting Attorney General and represent the United States in this case.
On October 16, 2018, PEN American Center, Inc. filed a complaint at the United States District Court, Southern District of New York, against Donald Trump in his official capacity as President of the United States. PEN America is an association of writers and other literary and media professionals, including journalists who “work for, or with, the Washington Post, Time Warner, CNN, NBC, the White House press corps, and other entities against whom Trump has used, or threatened to use, the machinery of government to retaliate for or suppress their critical speech.”
In the Complaint, PEN America alleges that Donald Trump “directed his threats and retaliatory actions at specific outlets whose content and viewpoints he views as hostile.” (Compl. para 2.) PEN America argues that “President Trump has First Amendment rights and is free to criticize the press vehemently, but he is not free to use the power and authority of the United States government to punish and stifle it.”
On September 28th, 2018, Judge Emmet G. Sullivan of United States District Court for the District of Columbia denied-in-part President Trump’s Motion to Dismiss and found that the plaintiffs have standing to sue in Senator Richard Blumenthal et al., v. Donald J. Trump, in his official capacity as President of the United States. The plaintiffs, 201 minority members of Congress led by Senator Richard Blumenthal, allege that President Trump violated the Foreign Emoluments Clause, which states that “no person holding any office of profit or trust under them, shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State”
Judge Sullivan ruled that “each time the President allegedly accepts a foreign emolument without seeking congressional consent, plaintiffs suffer a concrete and particularized injury—the deprivation of the right to vote on whether to consent to the President’s acceptance of the prohibited foreign emolument—before he accepts it. And although the injury is an institutional one, the injury is personal to legislators entitled to cast the vote that was nullified.” Thus, Judge Sullivan ruled that plaintiffs have standing to bring the claims because they adequately alleged that their injury-in-fact can only be “redressed by a favorable judicial decision”—not a legislative remedy.