analysis

Analysis: Groups Sue Trump re. Transgender Military Service

Declaration 17analysis

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

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

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Travel Ban: Hawaii v. Trump, 2017

Norman Siegelanalysis, immigration, travel ban

On June 12, 2017, a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, in a unanimous decision, affirmed the Preliminary Injunction order that had been entered by the U.S. District Court for the District of Hawai’i (Hawaii v. Trump, 2017 WL 1011673 (D. Haw. Mar. 15, 2017)) against the second “Muslim travel ban” Executive Order (E.O. 13780). The Court stated that “immigration, even for the President, is not a one-person show.

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Emoluments: An Update

Declaration 17analysis, emoluments

Article I, Section 9, Clause 8 of the Constitution of the United States, now commonly referred to as the “Foreign Emoluments Clause,” is the subject of three federal lawsuits which challenge President Trump’s alleged receipt of financial benefits from foreign governments and their representatives. The clause states that “no person holding any office of profit or trust under them, shall, without the consent of Congress, accept of any present, emolument, office, or title of any kind whatever, from any king, prince or foreign state.” In a nutshell, Congressional approval is required when a federal officeholder is offered something of value. There is little controversy that the clause applies to the president.

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Immigration: Constitutionality of Executive Order 13768

Norman Siegelanalysis, immigration

The Constitutionality of Executive Order 13768 Generally

On April 25, 2017, in County of Santa Clara v. Trump, 2017 WL 1459081 (N.D.Cal., 2017), a district court issued a preliminary nationwide injunction (pdf) against enforcing section 9 of executive order 13768, which seeks to withhold Federal grants from sanctuary jurisdictions. The court found that enforcement of section 9 of the order violated the Constitution’s separation of powers, the Tenth Amendment, and the Fifth Amendment’s due process requirements.

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Immigration: Following up on Executive Order 13768

Norman Siegelanalysis, immigration

Following up on the President’s executive order 13768, “Enhancing Public Safety in the Interior of the United States,” the Trump Administration is targeting jurisdictions which as a policy do not honor ICE detainers. ICE was publishing a weekly list of cities refusing to abide by the ICE detainer request to pressure these jurisdictions into detaining persons at the request of ICE. Recently, ICE suspended this practice after two such reports were issued, reportedly due to “errors” in the reports. The ICE detainers give rise to constitutional concerns.

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Travel Ban: Executive Order March 6

Declaration 17analysis, immigration, travel ban

He issued on March 6, 2017 a second Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.” The new EO, among other actions, temporarily suspends from “entry into the United States” certain nationals of Iran, Libya, Somalia, Sudan, Syria and Yemen, and also temporarily suspends the U.S. Refugee Admissions Program.

Like the previous EO, the new EO has been challenged in federal court. On March 15, 2017, in State of Hawaii v. Trump, the court issued a nationwide TRO against implementation of the above-described provisions of the new EO, holding that Hawaii was likely to succeed on its claim that the new EO violates the Establishment Clause of the First Amendment. …

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Church & State: The Johnson Amendment

Declaration 17analysis, church & state

He has declared that his administration would “totally destroy” the Johnson Amendment, thereby enabling tax-exempt churches to endorse or oppose political candidates and to engage in lobbying activities. Courts have held that the Johnson Amendment does not violate the First Amendment.

The Johnson Amendment changed the tax code in 1954 to prevent 501(c)(3) entities—that is, tax-exempt charities, including churches—“from directly or indirectly participating in, or intervening in, any political campaign on behalf of (or in opposition to) any candidate for elective public office.” …

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Immigration: Executive Order “Border Security and Immigration Enforcement Improvements”

Declaration 17analysis, immigration

He signed the Executive Order (EO) entitled “Border Security and Immigration Enforcement Improvements.” The EO declares that it is the policy of the executive branch for a wall along the southern border with Mexico to be built. The EO orders the Secretary of Homeland Security to design and construct the wall, to allocate funding to the wall, and to prepare a Congressional budget request. The Secure Fence Act of 2006 (“SFA”) is one of the statutes this EO relies on. The SFA authorizes the government to act as “necessary and appropriate.” The U.S. Supreme Court has held that under such a statute, “no regulation is ‘appropriate’ if it does significantly more harm than good.”

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Immigration: Executive Order “Enhancing Public Safety in the Interior of the United States”

Declaration 17analysis, immigration

He signed the Executive Order entitled “Enhancing Public Safety in the Interior of the United States.” The EO targets “sanctuary” jurisdictions, stating that it is the policy of the executive branch to “[e]nsure that jurisdictions that fail to comply with applicable Federal law do not receive Federal Funds, except as mandated by law” and “as deemed necessary for law enforcement purposes[.]” Funding conditions not germane to the purpose of the funds raise a serious Tenth Amendment constitutional question.

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