Tagged: Executive Order

The Latest in Lawsuits: Secrecy and Hijacking

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A new suit requesting declaratory relief, injunctive relief, and mandamus relief has been filed by Citizens for Responsibility and Ethics in Washington (CREW) and the National Security Archive (NSA). (Complaint)

CREW and NSA have brought a civil action against Trump under the Presidential Records Act (PRA), the Declaratory Judgment Act, and Article II, Section 3 of the Constitution (the President has a duty to “take care that the laws be faithfully executed”). The action challenges the actions of Trump, his staff, and the Executive Office of the President that “seek to evade transparency and government accountability.” This is the politest way ever of saying that Trump and his palarounds are liars who are frantically spinning “alternate facts” and trying to hide their actions and information from reporters and the public. More insidious is the notion that the Executive Office of the President is hijacking the roles of executive agencies and, in doing so, avoiding transparency and accountability.

CREW and NSA have two main challenges in their suit.

First, they are challenging the Defendants’ communications practices that allegedly “knowingly prevent the proper preservation of records” that the Defendants either generate or receive when they are carrying out constitutional, statutory, or other official duties of the President. So, basically, the Plaintiffs are arguing that the Trump ’n’ cabal are actively doing things that keeping official records from being properly kept as required by law.

Second, Plaintiffs are asserting the Defendants’ are overstepping the boundaries of their power by usurping agency duties and responsibilities through consolidating power in the White House – if proven, this is also illegal. The Plaintiffs argue that the Executive Orders coming out of the White House are cloaked in secrecy which is preventing federal agencies from being able to comply with their statutory duties under three statutes: the Federal Records Act (FRA), the Administrative Procedure Act (APA), and the Freedom of Information Act (FOIA).

Plaintiffs make the point that their lawsuit is coming at a time of suspect activity in the Executive Office. Some examples of potential misconduct and questionable decision-making that CREW and NSA point at are the pressuring of James Comey to terminate the FBI’s investigation of former National Security Advisor Michael Flynn, as well as Trump’s firing of Comey after Comey refused to terminate the investigation. Plaintiffs argue that the question of whether these actions were illegal may only be resolved through access to contemporaneous records that explain what Trump did and why. Therefore, there is a huge need for transparency right now, specifically.

Our government’s checks and balances include ones that are implemented through congressional and judicial oversight. In order for Congress and the judiciary to keep tabs on what’s going on within the Executive Branch, they need to have access to records of the President’s actions. Compliance with record-keeping responsibilities under the PRA and the FRA is incredibly important for the functioning of our government.

CREW and NSA suggest that Trump and his dudes are either ignoring or just full-on flouting their responsibilities under the two Acts. Plaintiffs allege (based on information they claim to have)that the White House is using certain email messaging applications that destroy messages as soon as they are read, regardless of whether those messages are presidential records. Some of Trump’s tweets, subject to federal record-keeping obligations, have been deleted. Additionally, Plaintiffs assert that Trump has implied that he’s been secretly recording conversations with Administration officials – and who the heck knows whether those recordings are being preserved. There are also allegations, sourced from at least one news report, that when ongoing congressional and FBI investigations were disclosed, White House officials purged their phones of potentially compromising information.

Interjection: YOU GUYS. If this stuff is true, it’s a big deal. If the White House is using software to erase the contents of messages upon their being read, if phones are being purged…this is BAD.

Plaintiffs extend their challenge to the alleged [unconstitutional] consolidation of power in the White House. They argue that the centralization of government decision-making within the White House ensures that decisions normally made or implemented by Executive Branch agencies are able to “evade disclosure under laws like the FOIA, preservation under laws like the FRA, and public review and comment under the APA.”

Essentially, this Trump-power-absorption is wreaking havoc on the order of operations of our government. Records that the public would ordinarily have a right to access under the law (because ordinarily, the records would be agency records subject to disclosure under FOIA) are now improperly cloaked as presidential records subject to the President’s exclusive control and beyond the reach of the public. Additionally, decisions that would ordinarily be subject to review under the APA (for example, when agencies make decisions about propagating or changing regulations, those regulations must go through a public notice and comment period, accessible to the public at large) are also shielded from review as “presidential decisions.”

This is insidious. It is also scary. In simple terms, if what the Plaintiffs are alleging is true, the White House is eradicating a paper trail. They’re enabling themselves to act with impunity because without a trail, it will be very, very, very difficult to demand any kind of accountability.

By acting as they have, Trump’s Troops have prevented federal agencies from complying with the statutory responsibilities. Their actions have also violated the constitutional requirement that the President take care that the law be faithfully executed.

Plaintiffs have a laundry list of facts that they have included in their Complaint.

Included in this list (which you can read yourself in its complete form, beginning on page 13 of the Complaint – along with links to related articles) are:

  • The Executive Office’s issuance of gag orders on federal agencies.
  • Trump requiring congressional staffers to sign non-disclosure agreements before allowing them to help him draft his first Muslim travel ban executive order.
  • Making the White House visitor logs private.
  • Trump’s various claims that he has continued his private sector practice of taping conversations.
  • Trump’s (and his staffers’) heavy use of electronic messaging tools and platforms to conduct presidential and federal business.
  • The Administration’s disregard for the NARA’s guidance on using electronic communication and the use by some staffers of Signal, an encrypted peer-to-peer messaging application, to communicate about presidential or federal business.
  • Signal has a disappearing message function that allows a user to set a timer to delete the message from all devices.
  • Some of Trump’s staffers may be using the chat app Confide, which erases messages as soon as they’re read.
  • There are no policies or procedures in place to record any of these conversations and communications, which are arguably Presidential records.
  • Congress has become concerned with these secret, likely erased, communications. Jason Chaffetz (yeah, that guy) wrote a letter requesting that Trump identify all policies and procedures related to non-official electronic messaging (email, texting, social media, etc.) and official electronic messaging, and policies and procedures related to properly securing and preserving communications and presidential records.
  • Prior to March 24, 2017, Trump’s staff purged their phones because they expected to be subpoenaed in connection to the various investigations in which Trump was embroiled.
  • Trump uses his personal Twitter account, not the President’s account.
  • The White House should be capturing all Tweets from both the personal and Presidential account. It is not, however.
  • Trump has issued at least 43 executive orders. Executive orders are meant to be issued by and signed by the President and the President alone. Government personnel outside of the President and his staff have had significant roles in preparing, reviewing, and commenting on draft executive orders, including executive agencies. (This is important because this suggests that agency rules are masquerading as executive orders in order to circumvent the mandated rulemaking process under the APA.)

The Plaintffs’ claims are as follows:

  1. For a Declaratory Judgment that the knowing use by defendants of messaging apps that prevent the preservation of presidential records violates the Presidential Records Act
  2. For a Declaratory Judgment that the failure of the President, his staff, and the EOP to issue guidelines concerning the use of messaging apps that prevent document preservation violates the Presidential Records Act
  3. For a Writ of Mandamus and Injunctive Relief compelling President Trump, his staff, and the EO to comply with their non-discretionary duties under the PRA
  4. For a Declaratory Judgment that Defendants’ use of the executive order process to remove records and rulemaking from the FRA and FOIA and the APA is contrary to law and violates the President’s constitutional obligation to take care to faithfully execute the law

They want the court to:

  1. Declare that the Defendants’ knowing use of messaging apps that prevent the preservation of presidential records violates the Presidential Records Act;
  2. Declare that the Defendants’ failure to issue guidelines concerning the use of messaging apps that prevent document preservation violates the Presidential Records Act;
  3. Order all Defendants, in the form of injunctive and mandamus relief, to refrain from using methods of communication that destroy records before any determination can be made as to whether they should be preserved as presidential records under the Presidential Records Act;
  4. Declare that the Defendants’ use of the executive order process to remove records from the Federal Records Act and public access under the Freedom of Information Act, and the rulemaking process of the Administrative Procedure Act, are contrary to law and the President’s constitutional obligation to take care that the law be faithfully executed; and
  5. Grant such other and further relief as the Court may deem just and proper.

Daayyum.

Keep an eye on this one, guys. It’s not headline news yet, but CREW’s and NSA’s assertions run deep and are weighty claims. If their allegations are true, then Trump is hijacking the government in a very, very serious way, and erasing the paper trail as he does it.

***

Some “Brief” (because there’s no such thing as truly brief where laws are concerned) Background on the Laws at Issue

(I’ve also included citations to the laws, so anyone interested can sift through. Otherwise, just skip right over ‘em.)

Presidential Records Act

The PRA was enacted in 1978 in response to Watergate. It is meant to establish public ownership of presidential and vice presidential records, impose record-keeping requirements on the President and Vice President, and to the National Archives and Records Administration (NARA) to preserve presidential records and make them publicly available. The PRA states that “[t]he United States shall reserve and retain complete ownership, possession, and control of Presidential records[.]” 44 U.S.C. § 2202.

The Act directs the President to “take all such steps as may be necessary to assure that the activities, deliberations, decisions, and policies that reflect the performance of his constitutional, statutory, or other official or ceremonial duties are adequately documented and that such records are maintained as Presidential records[.]” 44 U.S.C. § 2203(a). In other words – the President is to document everything. Period.

“Presidential records” is broadly defined to include documentary materials “created or received by the President, the President’s immediate staff, or a unit or individual of the Executive Office of the President whose function is to advise or assist the President” in conducting activities related to the President’s constitutional, statutory, or ceremonial duties. 44 U.S.C. § 2201(2). In other words…all the President’s elbow-rubbers are included here. Excluded from presidential records are “personal records” which are defined as those “of a purely private or nonpublic character” unrelated to the President’s constitutional, statutory, or ceremonial duties. 44 U.S.C. § 2201(3). I imagine that if a President wanted to write Harry Potter fan fiction under a pseudonym, it would fall under “personal records.”

“Documentary materials” is also broadly defined and includes “electronic or mechanical recordation’s.” 44 U.S.C. § 2201(1). The PRA’s legislative history explains that Congress intended the scope of “Presidential records” to be “very broad since a great number of what might ordinarily be construed as one’s private activities are, because of the nature of the presidency, considered to be of public nature, i.e., they effect the discharge of his official or ceremonial duties.” (So maybe that HP fanfic would be a Presidential record after all, depending on its contents.) The broad definition of “documentary materials” also helps ensure that the President and NARA preserve records that have or, maybe more importantly, are later found to have, great historical value. This way, documents default to “Presidential records” – save first, ask questions later.

There’s also a whole process under the PRA for the destruction of presidential records. The only way the Prez gets to destroy his or her non-personal records is after s/he has affirmatively determined that the records “no longer have administrative, historical, or evidentiary value[.] 44 U.S.C. § 2203(c). After a President has made this determination, s/he must then obtain the written views of the Archivist of the United States that the Archivist does not intend to take action to the contrary. 44 U.S.C. § 2203(c)(1)-(2). The Archivist must then state, in writing, that s/he has no intention of taking action with respect to the destruction of the specified presidential records.

We’re not done yet.

After al of this, then the President has to notify the appropriate congressional committee sixty days before the proposed disposal date of the President’s intention to dispose of the records. 44 U.S.C. § 2203(d). For anyone keeping count this is a four-step, and pretty lengthy, process. In writing the PRA, Congress wanted to guarantee that records were only destroyed after multiple entities deliberated and weighed-in.

(By the way, the Archivist is in charge of the records after the conclusion of the President’s term and must make those records publicly available as “rapidly and completely as possible consistent with provisions of this chapter.” 44 U.S.C. § 2203(g)(1).)

Anyway, as technology has advanced, obviously the PRA has had to evolve as well. In 2014, Congress amended the Act to expand the scope of means of communication. The 2014 amendment prohibits the President, his staff, and the EOP from using non-official electronic message accounts unless they: (1) copy one of the President’s official electronic messaging accounts, or that of his staff or EOP, or (2) forward a complete copy of the presidential record to an official electronic messaging account of the President, his staff, or EOP. 44 U.S.C. § 2209(a)(1)-(2). The President must comply with this requirement within twenty days after the presidential record in question is created or transmitted. An intentional violation means being subject to disciplinary action. 44 U.S.C. § 2209(b).

It should be a given, but “electronic messages” means “electronic mail and other electronic messaging systems that are used for the purposes of communicating between individuals.” 44 U.S.C. § 2209(c)(2).

That Presidential Twitter account, though.

One last thing worth noting is that although presidential records aren’t subject to the FOIA while the President is in office, most records become subject to FOIA requests five years after the President has left office.

The Federal Records Act

The FRA is like the PRA but for federal agencies. Congress enacted and amended the FRA to assure “[a]ccurate and complete documentation of the policies and transactions of the Federal Government,” and [j]udicious preservation and disposal of records.” 44 U.S.C. § 2902(1), (5). The head of each federal agency is charged with keeping track of and saving just about everything that relates to the agency’s actions. 44 U.S.C. § 3101. Further, the head must “establish safeguards against the removal or loss of records [the federal agency head] determines to be necessary and required by the regulations of the Archivist.” 44 U.S.C. § 3105.

Unlike the PRA, the public or other interested parties may request the disclosure of these records through FOIA.

The Administrative Procedure Act

Ah, the APA. Brings back stressful law school flashbacks. The APA governs the internal rule making procedures of federal agencies. 5 U.S.C. §§ 551-559. In short, a federal agency creates a rule that is subject to the APA when it seeks to “implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4).

As I briefly mentioned above, the APA requires agencies engaging in rule making to provide public notice of a proposed rule making in the Federal Register, to provide interested persons with a meaningful opportunity to comment on the proposed rule, and to engage in reasoned decision making, considering all public comments. One rules or made, they are subject to judicial review and must be consistent with the statutory text authorizing the agency to promulgate regulations.

Freedom of Information Act

FOIA was enacted in 1966 and established a statutory right of public access to information held by Executive Branch agencies upon request. Congress wanted to “ensure an informed citizenry, vital to the functioning of a democratic society, needed to check against corruption and to hold the governors accountable to the governed.” NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214, 242 (1978). The Act carries a “strong presumption in favor of disclosure,” U.S. Dep’t of State v. Ray, 502 U.S. 164, 173 (1991), and its “limited exceptions do not obscure the basic policy that disclosure, not secrecy, is the dominant objective of the Act.” Dep’t of the Air Force v. Rose, 425 U.S. 352, 361 (1976).

In short, the government should be transparent and the public should have access to its decisions and various decision-making processes. This is important in order to keep corruption in check and to hold those in charge responsible for their actions.

Under FOIA, just about every single record created by a federal agency must be made publicly available. There are a few specific exemptions however. Included in the government entities that fall outside of the APA’s definition of “agency” is the Office of the President, which is not subject to FOIA.

The Constitution

At issue in CREW’s and NSA’s complaint is Article II, Section 3, which is the “Take Care Clause.” The Take Care Clause says that “[the President] shall take care that the laws be faithfully executed[.]” U.S. Const., art. II, § 3. The Supreme Court has interpreted the Take Care Clause as imposing a “duty” or “obligation” on the President to ensure that Executive Branch officials comply with Congress’ law. Kendall v. United States ex rel. Stokes, 37 U.S. 524, 613 (1838).

(So the President can’t just run amok, usurping agency responsibilities, ignoring Acts aimed at the Executive Office, etc. etc.)

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Spark Notes: Trump v. Judge Orrick (Or Trump’s Newest Loss in Federal Court)

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Keep shutting it down, Federal Courts, keep shutting it down.

As I’m sure you all know by this point (because typing up summaries puts me at a severe time disadvantage, it seems – I clearly need to make friends with all the clerks), earlier today, Judge William H. Orrick “lolnoped” Trump’s executive order pertaining to sanctuary cities. And he did it in 49 pages, so it’s clear that Trump really got his goat with this kingly “I SHALL TAKE ALL THE MONIES FROM YOU, YOU PLEBES” mentality.

QUICK AND DIRTY (with more in-depth summary following)

(Also, here’s the full opinion: https://www.scribd.com/document/346375526/Sanctuary-City-Order and here’s the executive order in question: https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united)

Essentially, two California counties and a city challenged Executive Order 13768 (specifically Section 9), “Enhancing Public Safety in the Interior of the United States.” The Order outlines a number of immigration enforcement policies and also purports to yank funds to the extent that funds can be yanked (without otherwise violating other federal laws…) from sanctuary cities. Additionally, the Order establishes a procedure that makes sanctuary cities ineligible to receive federal grants.

Well, the counties of Santa Clara and San Francisco, and the city of San Francisco were stirred up and challenged Section 9 of the Executive Order as facially unconstitutional [i.e. no digging needs to be done to turn up the unconstitutional stuff] and have also brought motions for a preliminary injunction seeking to enjoin its enforcement [i.e., slam the big red “STOP” button].

The counties-plus-a-city had four main arguments as to why the EO shouldn’t be enforced and I’ll list them:

(1) It violates the separation of powers doctrine in the Constitution because Trump’s trying to improperly wield congressional spending powers (Executive can’t do the job of the legislature or judiciary and vice versa);

(2) It’s way, way, way overbroad and equally as coercive – to that point that even IF the President got to have spending powers, the Order would still exceed them and violate the Tenth Amendment’s prohibition against commandeering local jurisdictions (could fill a class on this, but basically, the federal government can’t come in and force local governments to enforce federal mandates. For example, a case about the Brady law that went to the Supreme Court resulted in the Supreme Court saying, “no, fed. gov’t, you can’t make local officials enforce your federal law – you need your own people to do it.” [Also, THIS IS A GROSS SIMPLIFICATION OF THE DOCTRINE. Look it up for a real summary!.]).

(3) Not only is it obscenely broad and coercive, it’s wildly vague and adrift without standards to the point that it violates the Due Process Clause of the 5th Amendment, and is void for its vagueness.

(4) It seeks to deprive local jurisdictions of congressionally allocated funds without any notice or opportunity to be heard, which means that it violates the procedural due process requirements of the 5th Amendment as well.

The Government, in true Government form (at least as of late), sidesteps the counties-plus-a-city’s arguments and instead makes ye olde tired standby argument of “THEY AREN’T ALLOWED TO SUE US” aka that the counties-plus-a-city lack standing. The Governments says that this is because the EO didn’t change any existing law and the counties-plus-a-city aren’t “sanctuary jurisdictions” pursuant to the Order (aka “they ain’t got skin in the game, can’t complain). In even truer Government form, they started going for the whacked out arguments next and claimed that the EO is actually just an exercise of the President’s “bully pulpit” and was meant to highlight a changed approach to immigration enforcement. (Which sounds a lot like the Government is trying to get out of having their shenanigans shut down by saying “we didn’t want this to do anything, anyway!”) The Government further emphasizes this position by essentially saying that the Order is just a repetition of already existent law and ran backwards from the possibility that the EO was unconstitutional by firmly asserting that the EO certainly couldn’t affect any of the billions of dollars in federal funds that the counties-plus-a-city receive every year beyond three federal grants in DOJ and DHS that have conditions requiring compliance with immigration law.

Judge Orrick is like, “Great work, guys, glad you remember Con Law 101 and that the Order can’t do anything more than enforce whatever law is already on the books” to whatever poor schmuck Government lawyers had to take this thing to oral argument.

Buuutttttt Judge Orrick also points out that the section of the EO in question was apparently written someone without that Con Law 101 understanding because its plain language “attempts to reach all federal grants, not merely the three mentioned at the hearing.” Plus, thanks to President Tweets-a-lot and Attorney General Missed-the-part-where-Hawaii-is-a-state, public comments have basically undermined and eroded any semblance of narrow scope. President Tweets-a-lot called it a “weapon” to used against jurisdictions that disagree with his preferred policies of immigration enforcement (and good ol’ Sean Spicer was quick to back him up). And Attorney General Missed-the-part-where-Hawaii-is-a-state got very self-important and warned that noncompliant jurisdiction would suffer “withholding grants, termination of grants, and disbarment or ineligibility for future grants” and the “claw back” (literally said claw back, that’s Sessions, not the Court) of any funds previously awarded. So thanks to the EO’s language and the loudmouths in government, the Court doesn’t think the section is “reasonably susceptible to the new, narrow interpretation offered at the hearing.” (Note: this “new, narrow interpretation” only surfaced for the first time AT the hearing, suggesting the poor Government lawyers knew they were doomed.)

Judge throws in a line about the implausibility of the Government’s “new interpretation” for good measure.

However, given this “new interpretation” the Government and the counties-plus-a-city appeared to be in rough agreement about the EO’s constitutional limitations. This wasn’t really helpful, however, because there are still potential Constitutional issues. Under the Constitution, Congress gets the spending power, not the President, so the EO can’t constitutionally place new conditions on federal funds. The Tenth Amendment mandates that any conditions on federal funds be TOTALLY CLEAR and also made in a timely fashion. They also have to have some relation to the funds at issue and the incentive can’t be coercive. I.e., federal funding that has zilch to do with immigration enforcement can’t get yanked just because El Jefe disapproves of a jurisdiction’s immigration strategy.

The Court found that the counties-plus-a-city succeeded in their motions. They demonstrated that they were likely to face immediate irreparable harm if they didn’t get their injunction, that the were likely succeed on the merits of the case (basically, that their four arguments held water like a rugged camelback), and that the balance of harms and public interest weighed in their favor. Therefore, the Court granted the preliminary injunction.

MORE IN-DEPTH SUMMARY

Trump issued Executive Order 13768 on January 25, 2017. It’s very puffed-up with self-righteous language “Sanctuary jurisdictions across the United States willfully violate Federal law in an attempt to shield aliens from removal from the United State.” (Anyone else picturing little green people?) It also states that the policy of the executive branch is to “ensure that jurisdictions that fail to comply with applicable Federal law do not receive Federal funds, except as mandated by law.” Then Section 9 gets into more detail (and also includes the establishment of that public “comprehensive list of criminal actions committed by aliens and any jurisdiction that ignored or otherwise failed to honor any detainers with respect to such aliens” that we all heard so much about back in January. It’s so gross). More on point, Section 9 refers to Section 1373 of Chapter 8 of the US Code, which prohibits local governments from restricting government officials or entities from communicating immigration status information to ICE.

The Court gets into a lot of detail (ok some) with respect to this as well as with respect to civil detainer requests (which is what ICE civil detainers make when they want a local law enforcement agency to keep someone locked up for up to 48 hours after that person’s scheduled release – several courts have held this to be in violation of the 4th Amendment), but I’m not digging into all of this here, so feel free to read-up elsewhere.

The counties-plus-a-city all have policies and practices with respect to federal immigration enforcement and those policies and practices are at odds with the EO. Basically, they’re trying to create trust and respect between law enforcement and residents, foster cooperation, and ensure community security” and the EO…isn’t. The counties-plus-a-city also all receive federal funding. Santa Clara got about $1.7 billion in the 2015-16 fiscal year, which made up about 35% of its total revenues. Most of that money goes towards providing residents with essential services. In support of its motion, Santa Clara pointed out that losing any substantial amount of federal funding would result in substantial cutbacks to safety-net programs and would require the county to lay off thousands. San Francisco gets about $1.2 billion from the federal government (out of a $9.6 billion total yearly budget). If it lost a substantial amount of that federal money, residents would be waving good by to medical care, social services, meal programs, and infrastructure maintenance.

After addressing the State of Things, the Court gets into Justiciability (aka Can It Hear This Case?). Government is all “this is not justiciable because the counties-plus-a-city cannot establish an injury-in-fact, which they need to in order to establish standing, AND ALSO these claims aren’t ready to be listened to yet.” Court thinks about it and disagrees. Judge Orrick: “I conclude that the Counties have demonstrated Article III standing to challenge the Executive Order and that their claims are ripe for review.”

Standing (aka concrete and particularized injury that is actual or imminent which is traceable to the defendant and can be fixed by a favorable decision from the court):

The Government persists in insisting no standing because (1) the EO doesn’t change the law, just directs the AG and Secretary to enforce existing law; and (2) the counties-plus-a-city’s claims of injury are not sufficiently “concrete” or “imminent” because they aren’t designated as “sanctuary jurisdictions” and the Government has not withheld any federal funds.

Court: No.

Haha, actually though, Judge Orrick thinks the Government is full of it. To make its first argument, it essentially has to read out ALL THE MEANING from all the words used in the EO. Because the EO *does* change the law. The Court goes into a very detailed analysis of the language in the order and the rules of construction to demonstrate exactly why the Government is so wrong. The Court states, “the defunding provision is entirely inconsistent with law in its stated purpose and directives because it instructs the Attorney General and the Secretary to do something that only Congress as the authority to do – place new conditions on federal funds.” (Basically, the Court is like, “guys, you can’t defend a meaning that can only exist if it exists outside the entire context of the Order and the language of the section itself.) At the end of the day, “the Government’s construction is not reasonable. It requires a complete rewriting of the Order’s language and does not ‘save’ any part of Section 9(a)’s legal effect. There is no doubt that Section 9(a), as written, changes the law.”

The Counties-plus-a-city: We’re allowed and you’re dumb.

The counties-plus-a-city say they absolutely have standing because they have demonstrated a well-founded belief that the EO will be enforced against them.There is a line of cases that allows for “pre-enforcement standing” when a plaintiff can show that it has an intent to engage in course of conduct (arguably with constitutional interest) that is proscribed by statute, and that there is a credible threat of prosecution [of the plaintiff] under the statute. The Government [once again, as is its recent habit] mischaracterizes the law on this and tries to argue that this exception only applies in situations involving criminal penalties or First Amendment issues. Judge Orrick sets it straight though and gives the REST of the relevant case law which establishes that “where threatened action by government is concerned, we do not require a plaintiff to expose himself to liability before bringing suit to challenge the basis for the threat.”

And, yes, the counties-plus-a-city have pre-enforcement standing because their policies are proscribed by the language of the EO and they are likely to be designated “sanctuary jurisdictions” based on the meaning contained within the EO. Additionally, the Government has already indicated an intent to enforce the EO generally, and against the counties-plus-a-city more specifically. (Remember President Tweets-a-lot’s statements mentioned above?) This isn’t the first time, and likely won’t be the last time, that Trump’s mouth undermines whatever argument the Government is trying to make in court. Trump actually went so far as to threaten California specifically in February. Finally, the counties-plus-a-city’s claims implicate a constitutional interest: the rights of states and local governments to determine their own local policies and enforcement priorities pursuant to the Tenth Amendment. (NO COMMANDEERING ALLOWED.) The counties-plus-a-city all have policies that “reflect local determinations about the best way to promote public health and safety,” which stand in stark contrast to the EO’s assertion that sanctuary jurisdictions are a “public safety threat[].” The fact that they have policies in place and the EO [they argue] seeks to undermine their judgment and compel them to change their policies to enforce the Federal government’s immigration laws implicates a constitutional interest: violation of the Tenth Amendment.

That the counties-plus-a-city are threatened with the loss of federal grants presents an injury in the form of budgetary uncertainty. The Court reminds everyone that a “loss of funds promised under federal law [] satisfies Article III’s standing requirement.” [As a lawyer myself, I can’t imagine what sort of knots all the Federal lawyers are having to tie themselves into – they keep being forced into cases where they are so overtly on the wrong side of the law it leaves an onlooker incredulous.] The counties-plus-a-city need to be able to plan ahead and mitigate potential sudden loss of federal funds. They can’t make decisions without knowing what their monetary future holds. Do they need to cut certain services? Do they need to change local policies? Much of the federal money received is in the form of reimbursements for services already provided. If that money is suddenly cut off, the counties-plus-a-city will face significant debt. TL;DR the counties-plus-a-city adequately demonstrated that budgetary uncertainty of the type threatened by the EO can constitute an injury-in-fact for Article III standing.

Altogether? The counties-plus-a-city meet the requirements for pre-enforcement standing. BOOM. Pack up yo lunch, Government, cause you’re not welcome at this table.

Next, the Court turns to “ripeness” which is basically “is it time for us to listen to this grievance and make a decision?” In legalese: “A claim is fit for decision if the issues raised are primarily legal, do not require further factual development, and the challenged action is final.” The Government here is going “no, no, no, no” because according to it, lots of Section 9 is dependent on contingent future events, including clarification of terms. (Lol, because they’ve just realized that it’s a mess.) The Government cites a case, Judge Orrick promptly is unconvinced (you know the drill by now). This time, mostly because the Government is being redundantly dumb again and forgetting that “contingent future events” must always be at issue in a pre-enforcement case – before actual enforcement occurs, the enforcement agency must determine what the statute means and to whom it applies. The Court points out that under the Government’s line of reasoning, basically every single pre-enforcement case would be kept out of courts. As far as Judge Orrick is concerned, the counties-plus-a-city’s claims “do not require further factual development, are legal in nature, and are brought against a final Executive Order. They are fit for review.”

The Court concludes that the counties-plus-a-city established standing.

I think that table in that dark, back corner might be open?

Finally, the Court addresses whether the counties-plus-a-city’s are putting forward strong arguments that have a likelihood of success if the case were to go to hearing (because no court should grant an injunction on the basis of a water-in-a-fishnet argument). The Court says yes.

The EO’s attempt to place new conditions on federal funds is an improper attempt to wield Congress’s exclusive spending power and is a violation of the Constitution’s separation of powers principles. Further, the EO probably violates at least three of the restrictions on Congress’s spending power. (I mentioned them in the top part – no ambiguity and can’t be imposed after funds have been accepted; nexus between funds at issue and purpose of federal program; no coercion.) The Court then analyzes how and why the EO violates these three restrictions. As far as Judge Orrick is concerned, the EO is about as violative as it could be – weird shadow threats with a who-knows-when implementation timeframe, at risk are ALL THE FEDERAL FUNDS EVERRR; and um, ok, highly coercive (we’ll take away your money, make you cut fundamental services to your citizens, and publicly shame you on our list if you don’t do exactly what we say).

The EO is also probably violative of the Tenth Amendment because (1) it’s trying to compel states and local jurisdictions to enforce a federal regulatory program through coercion; and (2) it’s trying to compel states and local jurisdictions to comply with ICE civil detainers by directing the AG to “take appropriate enforcement action against any entity that violates 8 U.S.C. 1373, or which has in effect a statute, policy, or practice that prevents or hinders the enforcement of Federal law.” The Court states, “[b]y seeking to compel states and local jurisdictions to honor civil detainer requests by threatening enforcement action, the Executive Order violates the Tenth Amendment’s provisions against conscription.” Basically, the Federal government can incentivize states as much as it wants to get them to voluntarily adopt federal programs, it can’t use methods that are so coercive as to compel, and the EO is attempting to use coercive methods to circumvent the Tenth Amendment’s direct prohibition against conscription.

The EO is way vague. Sort of like when you don’t want to hang out with someone, but you also don’t hate them, so you’re just sort of wishy-washy about the date and time and all the other information one might need to actually hang out. That kind of vague. Under the Fifth Amendment, a law is unconstitutionally vague and void if it fails to be [crystal] clear about what conduct is actually prohibited and exactly how it will be enforced. As far as Judge Orrick is concerned, the EO gets a big fat “x” in both of those boxes. It’s impossible to say exactly what conduct might subject a state or local jurisdiction to enforcement action, it doesn’t define “sanctuary jurisdictions” (ooo, fun fact: back in February, the DHS Secretary himself said that he “do[esn’t] have a clue” how to define “sanctuary city” despite the EO giving him unlimited discretion to make such designations), and who the heck knows what “appropriate enforcement action” means. The Court asks, “What does it mean to ‘hinder’ the enforcement of federal law? What federal law is at issue: immigration laws? All federal laws? The Order offers no clarification.” (Yes, the law is this pedantic and yes, it needs to be.)

Finally, the EO is premised on yanking money willy-nilly with no kind of procedural due process (as required under the Fifth Amendment) whatsoever for that yankage. State and local governments have a legitimate claim of entitlement to congressionally appropriated funds. Those funds are very much like those owed on a contract. The counties-plus-a-city have a legitimate property interest in the federal funds that Congress has already appropriated and that the counties-plus-a-city have accepted. Meanwhile, the EO apparently strives to make the counties-plus-a-city ineligible for their funds through some vague (see above), discretionary and undefined process. The EO has no instructions! No guidance! No process! The Court thinks that the counties-plus-a-city would likely succeed on this claim.

At the end of all of this, the Court also determines that the counties-plus-a-city will suffer both an irreparable harm from budgetary uncertainty and constitutional injury. The Government tried to stick it out with a weird argument about the counties-plus-a-city failing to allege a “deprivation” but rather alleging a violation of constitutional structure. The Court is quick to reject this. First, the Ninth Circuit, which is where this case is unfolding, doesn’t recognize a distinction between personal and structural constitutional rights (seriously, why doesn’t the Government DO ITS HOMEWORK). Second, even if the Court did recognize that distinction, the counties-plus-a-city have alleged a deprivation of their personal constitutional rights – hellooooo Tenth Amendment argument; what is UP Fifth Amendment Due Proces argument.

As the final cherry topper – the counties-plus-a-city hit a full preliminary injunction jackpot when the Court also decides that the balance of harms and public interest weighs in favor of an injunction – because the harms to be suffered by counties-plus-a-city might also be suffered nationwide.

IT IS SO ORDERED.

What’s actually in Trump’s Anti-Environment Executive Order

manhattan20smog

Toxic Smog in Manhattan on November 24, 1966

 

What’s the rundown on Trump’s climate change executive order? What’s it say, subsection by subsection? Where can you go read it for yourself? All the important questions. Here are the spark notes. (Short story: Trump has gutted environmental protections in a horrific way.)

The executive order is titled, “Promoting Energy Independence and Economic Growth” which sounds really nice, but the order doesn’t actually promote either of those things. In fact, the US economy will probably take a hit thanks to our backsliding on climate issues. Read it here.

Section 1 – Policy

(a) The devil is in the details here. Initially, it sounds pretty hunky dory: there’s some talk of promoting clean and safe development, of encouraging economic growth, but what this policy section is actually saying is significantly less than hunky dory. Basically: yeah, we want to cleanly and safely develop our country’s energy resources buuuut we can’t have regulation getting in the way. Fun fact: regulation is what keeps things clean and safe. Without regulation, industry can act carte blanche. In other words, “clean and safe” are great buzz words, but have no bearing on what this order is actually doing. There’s also a line in this subsection about how the development of the natural resources is essential to ensuring geopolitical security. This is kind of a joke, though, because coal, for example, is not going to ensure any kind of geopolitical security in this day and age.

(b) This subsection actually alludes to renewable resources, but in sort of a throwaway way. It essentially states that it is in our national interest to make sure electricity is affordable, reliable, safe, secure, and clean. YAY! But wait…the order is also saying it’s in our national interest that it can be “produced from coal, natural gas, nuclear material, flowing water, and other domestic sources, including renewable sources.” The problem here is that there are some real issues with including coal, natural gas, and nuclear material in a list describing energy sources that are supposedly “safe, secure, and clean.” This is double-talk. Orwell would be proud.

(c) Here, Trump directs the executive departments and agencies to “immediately review” existing regulations that “potentially burden the development or use of domestically produced energy resource.” After this, those departments/agencies are to “appropriately suspend, revise, or rescind those that unduly burden the development of domestic energy resources beyond the degree necessary to protect the public interest or otherwise comply with the law.” Scary stuff. Almost every single regulation in place that encourages the development of clean energy is putting a damper on “dirty” energy industries. For example, emission controls on coal power plants? That’s a burden. And keep in mind that the EPA is now headed by a man who has been embroiled in lawsuits against EPA and is currently trying to undo our clean air regulations. (So how closely do you think EPA is going to be looking at our health and safety?) It also bears noting that this subsection does not talk about our health and safety. Instead, it refers to “public interest.” “Public interest” is a notoriously vague phrase that can be imbued with almost anyone’s particular view and agenda. Its presence here is not reassuring.

(d) Subsection (d) is another piece of policy fluff and includes the following statement, “[A]ll agencies should take appropriate actions to promote clean air and clean water for the American people, while also respecting the proper roles of the Congress and the States concerning these matters in our constitutional republic.” The sentence starts out sounding like encouragement for environmental protection and ends with a dog collar.

(e) This sets up a cost-benefit analysis that is probably rarely going to come out in favor of the environment or our health, given the subject nature of “benefit.” Verbatim (the bad grammar is the order, not me): “It is also the policy of the United States that necessary and appropriate environmental regulations comply with the law, are of greater benefit than cost, when permissible, achieve environmental improvements for the American people, and are developed through transparent processes that employ the best available peer-reviewed science and economics.” Presumably, environmental improvements will only happen “when permissible” (awkward comma placement; shoulda been a semicolon), which is pretty deplorable because that means that environmental improvements are a bonus, not a goal. Also, don’t forget that if Congress passes the HONEST Act (Honest and Open New EPA Science Treatment Act – boy, if that’s not a loaded and creepy title, I don’t know what is), the EPA would be banned from using scientific studies and methods that are not yet publicly available in order to write and put in place new environmental regulations. The quick and dirty? If passed, the Act will handcuff EPA and sever it from much of the scientific evidence on which it relies. To the untrained ear, requiring only the use of information that is “publicly available online in a manner that is sufficient for independent analysis and substantial reproduction of research results” SOUNDS great. But here’s the catch, some valuable and important research cannot be made public by law. Research premised on medical records, for example. Then there’s another catch – the Act has an astronomical price tag but a tiny budget: it would cost around $250 million/year, but only has $1 million allotted to it. The upshot of all of this? EPA won’t be able to research improvements to our environment, even if it wanted to.

Section 2 – Immediate Review of All Agency Actions that Potentially Burden the Safe, Efficient Development of Domestic Energy Resources

(a) This subsection directs all heads of agencies to review existing regulations, orders, guidance documents, policies, etc. that “potentially burden the development or use of domestically produced energy resources with particular attention to oil, natural gas, coal, and nuclear energy resources.” Yes, that is correct. The agencies are to pay special attention to our dirtiest resources and our non-renewable resources and be sure that they are protected from being burdened.

(b) We finally get a definition of “burden.” It means “to unnecessarily obstruct, delay, curtail, or otherwise impose significant costs on the siting, permitting, production, utilization, transmission, or delivery of energy resources.” All I have to say is that environmental lawyers everywhere had better be jumping on that “unnecessarily” because that word is going to be where all of the argument unfolds. Without that word, just about nothing can be done that has any sort of unwelcome or negative impact on the coal, oil, natural gas, or nuclear energies.

(c) 45-day deadline for turning in plans to carry out the aforementioned review.

(d) 120-day deadline to submit draft final reports detailing agency action with respect to review. The reports all must include “specific recommendations that, to the extent permitted by law, could alleviate or eliminate aspects of agency actions that burden domestic energy production.” Honestly, I hope some smartass agency submits a report that says dirty energy is a burden to the production of clean energy. “We find that the long shadows of coal plants are directly impeding the development and installation of solar farms across the US. They are burdening not just energy production but jobs that would be created from this clean energy resource. We therefore recommend a complete shutdown of all such plants and have included a detailed plan of how this is to be achieved.”

(e) Reports to be finalized within 180 days.

(f) The Office of Management and Budget and the Assistant to the President for Economic Policy will work together to coordinate the recommended actions that the agencies included in their final reports.

(g) Agencies should work fast to suspend, revise, rescind, etc. any actions identified that are burdensome to domestic energy production.

Section 3 – Rescission of Certain Energy and Climate-Related Presidential and Regulatory Actions. THIS is the whammy. Bet you were reading through those earlier sections thinking “ok, this isn’t great, but maybe there are workarounds… It doesn’t seem as bad as the media made it out to be.” That’s because the media was specifically talking about Section 3. Section 3 is awful. Section 3 is a big “up yours” to the earth.

(a) Revokes the following Presidential actions: “Preparing the United States for the Impacts of Climate Change” (Executive Order 13653. November 1, 2013); “Power Sector Carbon Pollution Standards” (Presidential Memorandum, June 25, 2013); “Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment” (Presidential Memorandum, November 3, 2015); and “Climate Change and National Security” (Presidential Memorandum, September 21, 2016). If you have the time and interest and don’t mind spiking your blood pressure/diving headlong into rage and despair, I definitely recommend checking out the texts of those documents on the Federal Register website.

(b) Revokes the following reports: “The President’s Climate Action Plan” (Report of the Executive Office of the President of June 2013) and “Climate Action Plan Strategy to Reduce Methane Emissions” (The Report of the Executive Office of the President of March 20140).

(c) And the hits just keep coming. This subsection orders the Council on Environmental Quality to rescind its final guidance entitled, “Final Guidance for Federal Departments and Agencies on Consideration of Greenhouse Gas Emissions and the Effects of Climate Change in National Environmental Policy Act Reviews.” This one hits really close to home because during a summer internship, I wrote a memo on why the Federal Energy Regulatory Commission should consider greenhouse gas emissions in their Environmental Impact Statements on pipeline projects. It referred to documents and memos by the CEQ. This rescission is really bad. Really, really bad.

(d) Direct more agency review of any actions implicated by subsections a, b, or c (above) and to suspend, revise, or rescind them.

Section 4 – Review of the Environmental Protection Agency’s “Clean Power Plan” and Related Rules and Agency Actions. This section seems to be here just to really make sure that no pesky environmentally friendly regs sneak through.

(a) Pruitt is supposed to eliminate (ok, “suspend, revise, or rescind”) the final rules and guidances issued pursuant to them addressed below in subsection (b).

(b) The rules to which we should all wave goodbye: “Carbon Pollution Emission Guidelines for Existing Stationary Sources: Electric Utility Generating Units;” “Standards of Performance for Greenhouse Gas Emissions from New, Modified, and Reconstructed Stationary Sources: Electric Utility Generating Units;” and “Federal Plan Requirements for Greenhouse Gas Emissions from Electric Utility Generating Units Constructed on or Before January 8, 2014; Model Trading Rules, Amendments to Framework Regulations; Proposed Rule.”

(c) Pruitt is to review and suspend, revise, or rescind the “Legal Memorandum Accompanying Clean Power Plan for Certain Issues” which was published in conjunction with the Clean Power Plan.

(d) Pruitt has to let Jeff Sessions know what actions he’s taking so that Sessions can go ahead and gear up for legal battles.

Section 5 – Review of Estimates of the Social Cost of Carbon, Nitrous Oxide, and Methane for Regulatory Impact Analysis. Oh boy you guys, this section is bad, too.

(a) The lip-service here is to ensuring sound regulatory decision making and making sure that analyses of costs and benefits are based on the best available science and economics. (Almost sounds like a joke at this point.)

(b) This subsection disbands the Interagency Working Group of Social Cost of Greenhouse Gases and have the following documents withdrawn as no longer representative of governmental policy: “Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis (May 2013);” “Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis (November 2013);” “Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis (July 2015);” “Addendum to the Technical Support Document for Social Cost of Carbon: Application of the Methodology to Estimate the Social Cost of Methane and the Social Cost of Nitrous Oxide (August 2016);” and “Technical Update of the Social Cost of Carbon for Regulatory Impact Analysis (August 2016).” The EPA still has its page up on the IGW: https://www.epa.gov/climatechange/evaluating-climate-policy-options-costs-and-benefits. It did good things. You can also access the August 2016 report here: https://www.epa.gov/sites/production/files/2016-12/documents/sc_co2_tsd_august_2016.pdf. I can’t imagine that either will be long for this world.

(c) Requires agencies to follow a 2003 guidance when monetizing the value of changes in greenhouse gas emissions resulting from regulations. They should also consider domestic versus international impacts and appropriate discount rates.

Section 6 – Federal Land Coal Leasing Moratorium: Trump’s lifted the moratoria on Federal land coal leasing activities. YAY! Bring back smog and smoke and a dying industry.

Section 7 – Review of Regulations Related to United States Oil and Gas Development

(a) Pruitt is to review “Oil and Natural Gas Sector: Emission Standards for New, Reconstructed, and Modified Sources,” which is a final EPA rule, and any rules or guidances issued pursuant to it. He is then to take actions directed by Section 1 (above) and suspend, revise, or rescind as necessary.

(b) The Secretary of the Interior also must review a list of final rules in accordance with Section 1 (above) and suspend, revise, or rescind asap. Here are the rules: “Oil and Gas; Hydraulic Fracturing on Federal and Indian Lands;” “General Provisions and Non-Federal Oil and Gas Rights;” “Management of Non Federal Oil and Gas Rights;” and “Waste Prevention, Production Subject to Royalties, and Resource Conservation.”

(c) Pruitt or the Secretary of the Interior must alert Jeff Sessions to any actions taken so that, once again, Sessions can prepare to do legal battle.

Section 8 – General Provisions. This is the normal disclaimer that is in every Executive Order. I’m not going to summarize it, but you can go read it if you’re interested.

“DAMN, DANIEL!” but directed at that stupendous three-judge panel of the 9th Circuit

HEYO. It was unanimous. Not a single one of the judges thought Trump (okay, actually Bannon-the-ghost-writer) was within his executive power to put our border on lockdown in the way that he did.

“On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this… The emergency motion for a stay pending appeal is denied.”

Trump, for his part, got quite bent out of shape and had his usual Twitter tantrum (twittrum?). IN ALL CAPS THOUGH, SO YOU KNOW HE MEANS BUSINESS.

screen-shot-2017-02-09-at-6-57-30-pm

But the Court had its reasoning (and in my novice lawyer opinion, it was darn good reasoning). Here’s a rundown of the opinion (which you can read here):

Court considered several factors:

  1. Whether the government has shown that it is likely to succeed on the merits (because you need to show that your case is probably gonna win in order to be granted a stay – the Government moved for an emergency stay of the enjoined Executive Order. Basically, everyone is just hollering “STOP” from all sides.)
  2. The degree of hardship caused by either the stay or its denial.
  3. The public interest in granting or denying the stay.

Court recognized that it didn’t have a whole lot of information to sift through at this stage (because discovery hasn’t really happened because everyone has just been scrambling around and hollering “STOP.” See above.)

Court was also mindful that its analysis of hardships and public interest involved “particularly sensitive and weighty concerns on both sides.”

Buuuutttttttt…“Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.” Boom.

The legal breakdown:

Jurisdiction (the states argued that the Court didn’t have jurisdiction because a Temporary Restraining Order is not usually appealable – Court was like, “nah, we totally have jurisdiction because this situation is weird and extraordinary because it ‘possess[es] the qualities of a preliminary injunction.’” (And those are appealable.)

Standing (because, remember, the Government argued that the states couldn’t bring the case because they didn’t have enough skin in the game. Basically.) – States argued that they absolutely had enough skin in the game because their public universities were harmed by the EO (stranded students, trapped faculty, affected research, trouble recruiting, etc.). The Court was on-board and decided that the states had third-party standing and it could hear the case.

  • More specifically: “[The states’] proprietary interests [are] traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.”
  • The Court felt pretty confident that states’ issues would be solved if they obtained what they wanted: chiefly, a declaration that the EO violates the Constitution, and an injunction keeping it from being enforced.

Whether the Court had the Power to Review the Executive Order (because the Government [editorial comment: so full of shit; I’m surprised they tried it] argued that “the President has unreviewable authority to suspend the admission of any class of aliens.”)

  • Court got really offended here, actually. You can just tell. It would have been down with the principle that great deference is owed to immigration and national security policy determinations of the political branches. SO DOWN. But that’s not where the Government went.
  • INSTEAD, Government took it further and argued that all of the President’s decisions about immigration policy (especially if they had to do with national security concerns) were flat out UNREVIEWABLE. Even when those decisions were unconstitutional. Government said that “it violates the separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.”
  • Court was offended. Court, in a more polite and courtly way, said “Yeahhh…no….gtfo and stop making up laws, guy.” What it actually said was, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches.’ We are called upon to perform that duty in this case.” (i.e., you pulled that whole line of argument out of your ass; what were you thinking? That is LITERALLY OUR JOB and we are going to do it right now.)
  • Then the Court gives lots of examples about all the times it came in and reviewed executive actions (really hammering that Government attorney into a hole). It’s pretty clear that the 9th Circuit is making a very clear record, on the off-chance the Supreme Court takes the case, that precedent is WAY AGAINST the Government on this one.
  • The Court also calls out the Government for making the rookie mistake of NOT INCLUDING THE WHOLE QUOTE AND LEAVING OUT THE BITS THAT CONTRADICT ITS ARGUMENT. So that was cringey. Court told Government that it was just…wrong. And not only was it wrong, but the case it was wrong about didn’t actually even apply, anyway.
  • This section goes on for a very long time – I recommend reading it if you have the time – as the Court seems very keen on letting the Government know that it is the Court and it does get to review things and the Government better sit down and stop talking while it’s ahead.
  • I wouldn’t be surprised if, in retrospect, the Government is thinking that maybe it shouldn’t have made this argument. (Although, it’s honest to God so bad that it makes me wonder if someone in DOJ was trying to pull off some intentional sabotage.)
  • Seriously, this section takes up most of the opinion, I’m pretty sure. Just the Court telling the Government how wrong it is. About everything. (Schadenfreude at its very finest!)

The Legal Standard of Review – Just the Court discussing how it analyzes a motion to stay. Significantly less thrilling than the former section.

  • Four questions: (1) Whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) Whether the applicant will be irreparably injured absent a stay; (3) Whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) Where the public interest lies. The first and second factors are the most critical.
  • Court’s like, “We conclude that the Government has failed to clear each of the first two critical steps.”

Likelihood of Success – Due Process (Government cannot deprive individuals of life, liberty, or property without due process of law. That’s the Fifth Amendment, folks.)

  • The Court didn’t think the Executive Order provides what due process requires (“notice and an opportunity to respond”) such as “notice and a hearing prior to restricting an individual’s ability to travel.”
  • It then points out that the Government didn’t even try to argue that the Order did such a thing but rather argued that most of all of the individuals affected by the Executive Order have no rights under the Due Process Clause.
  • Aaaand again, the Court points out just how wrong the Government is when it states, “The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they ‘appl[y] to all ‘persons’ within the United States, including aliens,’ regardless of ‘whether their presence here is lawful, unlawful, temporary, or permanent.’” (Guys, it’s actually really weird how wrong most of the Government’s arguments are. Like…REALLY weird. Maybe Bannon wrote them, too.)
  • The Court then gives a long list of all of the things that the Government failed to establish that it should have established in order to show that it had a likelihood of success.
  • My favorite is when the Court throws some serious shade at Trump (who, let’s be honest, probably won’t pick up on it because nuance isn’t his thing) and the White House counsel: “Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments.” (Basically the Court is saying “why the heck are you listening to Trump? Who cares? He doesn’t know what he’s talking about.)
  • Then the Court calls out the Government for its “shifting interpretations” of the EO, which effectively undermined the Government’s ability to show that the allegedly wrongful behavior could not reasonably be expected to recur.
  • Just to cover its butt, the Court went ahead and also said that even if the due process claims of lawful residents were no longer a part of the case, the Government would still fail and that, no, the TRO was not overbroad, thankyouverymuch.

Likelihood of Success – Religious Discrimination (No law respecting an establishment of religion may be made. That’s the First Amendment, guys! Aka Establishment Clause.)

  • Any law that has a religious, not secular, purpose violates the First Amendment. This includes any sort of “preference” to a religion because that sends the message to anyone outside of that religion that they are not full members of the political community.
  • The Equal Protection Clause also prevents Government discrimination based on religion.
  • The states obviously brought in all the tweeting Trump has done over the past year in support of their argument that the EO violates the Establishment and Equal Protection Clauses, because what lawyer worth her salt WOULDN’T bring them in?!
  • They also drew the Court’s attention to the part of the Order that gave favoritism to “minority” religions. (Sections 5(b) and 5(e)).
  • The Court could consider these things because courts are allowed to consider evidence of purpose that exists outside of the text of the challenged law when dealing with Establishment and Equal Protection Clause claims.
  • Court determined that the States’ claims raised “serious allegations and present[ed] significant constitutional questions.” But it held off on saying whether the Government had a likelihood of success because it had already failed to meet its burden on the due process claim and the Court wanted more information.

Balancing Hardships and Public Interests

  • Court: “The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” (LOUDER FOR THE PEOPLE IN THE BACK. The people from the banned countries are not responsible for attacks against the US and the Government couldn’t counter that!)
  • Court again (the Court doesn’t need my help here): “Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.” (LOLZ, Court already covered that one earlier.)
  • Basically, the Court suggests that the Government is a whiny baby and has a pathetic claim next to the public who will suffer all kinds of harms (students separated from families, students and employees stranded, etc., etc.), plus an impingement on the interest in free flow of travel, freedom from discrimination, etc. – “We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.”

“For the foregoing reasons, the emergency motion for a stay pending appeal is DENIED.”

What’s in Trump’s Executive Order…What’s an Executive Order?

[Of note: this post was originally a Facebook thing I made on January 29 – news stories are up to date as of THEN. I have not gone through and added/amended, but I am including it here as a reference point for the post that follows.]

HERE IS WHAT FOLLOWS: (1) An overview of executive orders generally; (2) a brief summary of Trump’s immigration/refugee executive order; (3) recent developments; and (4) a more in-depth breakdown of exactly WHAT the order says, section by section. This post is a NOVEL; I’m sorry. There was a lot of important information to wade through. Cheers to anyone who makes it through it!

(1) First of all, to get a handle on all of this, it helps to understand some background on what a presidential executive order is and how it functions.

  • There is no Constitutional provision or statute that explicitly provides for or creates executive orders.
  • However, the Constitution instructs the president to “take Care that the Law be faithfully executed” in Article II, Section 3, Clause 5, and typically, most executive orders are rooted in this Constitutional reasoning as the authorization for their issuance as part of the President’s sworn duties.
  • The idea behind this is that executive orders are meant to help the direct officers of the U.S. Executive carry out their delegated duties, in addition to carrying out the normal operations of the federal government.
  • Executive orders MUST be Constitutional – they must be grounded in either a clause that grants the president a specific power OR in a delegation of power by Congress to the President.
  • President Franklin D. Roosevelt issued the most executive orders at a whopping 3,522. Most recently, Obama issued 279 during his eight-year tenure (by far not a contender for most issued); Trump has issued 4 as of today, January 29, 2017. (Per the Federal Register’s website.)
  • The Supreme Court may overturn executive orders, as may Congress by (1) passing legislation that invalidates it or (2) refusing to provide funding necessary to carry out the order. The President has the power to veto.
  • However, Congress may also override the veto of legislation invalidating an executive order by means of a 2/3 majority vote.
  • Executive orders require no action by Congress in order to take effect.

(2) The content of Trump’s executive order, titled “Protecting the Nation From Foreign Terrorist Entry Into The United States”: It has eleven sections and, as I think we all know at this point, it bars all people hailing from seven countries (Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen) from entering the US for at least 90 days. Additionally, the order has stopped the admission of ALL refugees into the US for four months. Finally, it calls for a review into suspending the Visa Interview Waiver Program for travelers from 38 countries, including close allies. IT ALSO:

  • Lays the groundwork for a database;
  • Contains language that suggests the prioritization of Christian refugees;
  • Indefinitely prohibits all Syrian refugees from entering the U.S., period;
  • Caps refugees entering the U.S. at 50,000;
  • Implements a biometric entry-exit tracking system;
  • • Sets up some seriously creepy information collection and publication of foreign nationals in the U.S. – like what crimes immigrants commit

(3) Some important takeaways –

None of the countries whose citizens have actually be responsible for terrorism on U.S. soil have been banned. Do with that what you will, but also please note that they also happen to be countries with which Trump has strong business ties. Do with THAT what you will. (http://www.npr.org/…/trumps-immigration-freeze-omits-those-…)

Further, refugees coming into this country undergo an INCREDIBLY rigorous screening process and to argue otherwise is to side-step documented fact. (https://www.nytimes.com/…/why-it-takes-two-years-for-syrian…; http://time.com/4116619/syrian-refugees-screening-process/; http://www.usatoday.com/…/syrian-refugees-trump-e…/97043442/; https://obamawhitehouse.archives.gov/…/infographic-screenin…; http://www.politico.com/…/i-went-through-americas-extreme-v…)

The Pope is calling us out, HARDCORE. (http://usuncut.com/…/pope-francis-cannot-reject-refugees-c…/)

Protests are erupting at airports around the country. (http://www.usatoday.com/…/protests-erupt-us-airpo…/97201416/)

Several Federal judges have issued a stay on the executive order, due to constitutional concerns, but the Department of Homeland Security appears to be ignoring this, in flagrant violation of the law. (http://www.cnn.com/…/2-iraqis-file-lawsuit-after-being-det…/; http://www.businessinsider.com/a-federal-judge-issued-a-sta…; http://www.npr.org/…/arrivals-to-u-s-blocked-and-detained-a…; https://www.dhs.gov/…/department-homeland-security-response…

John McCain and Lindsey Graham are not having it. (http://www.mccain.senate.gov/publ…/index.cfm/press-releases…)

And now it looks like Department of Homeland Security is backing up a bit… Keep fighting! It has an effect. (http://thehill.com/…/316790-kelly-entry-of-lawful-permanent…)

Two Philly-area Republican Representatives have broken with the rank and file and come out against the ban. Word is, they’re catching a lot of flack from the Republican leadership. We should all be applauding them. (http://www.philly.com/…/Two-Philly-area-Republicans-break-w…)

The ACLU is booming. “From Saturday to late Sunday more than 290,000 donors had sent the ACLU $19 million—the organizations typical annual average is $3 million. That figure, as well as the growth in membership, was “unprecedented,” according to Anthony Romero, the ACLU’s executive director.” (https://www.theatlantic.com/…/todays-news-ja…/514865/14273/…)

(4) TRUMP’S EXECUTIVE ORDER UNPACKED

THE SECTIONS (I’m summarizing, I suggest reading the full text of the order if you’d like to get it in its full form – http://www.cnn.com/…/text-of-trump-executive-order-nation-…/; https://www.nytimes.com/…/annotating-trump-immigration-refu… – annotation)

SECTION 1: Lays out the purpose of the order. Specifically, it discusses the threat of terror from foreign nationals and further suggests that terrorists will pretend to be refugees in order to infiltrate the country (more on this later). It also states, “In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law. In addition, the United States should not admit those who engage in acts of bigotry or hatred (including “honor” killings, other forms of violence against women, or the persecution of those who practice religions different from their own) or those who would oppress Americans of any race, gender, or sexual orientation.”

SECTION 2: Defines the underlying policy: “It is the policy of the United States to protect its citizens from foreign nationals who intend to commit terrorist attacks in the United States; and to prevent the admission of foreign nationals who intend to exploit United States immigration laws for malevolent purposes.”

SECTION 3: Suspends the issuance of visas and other immigration benefits to “nationals of countries of particular concern.” This section gives instruction to the Department of Homeland Security and bans the entry of people from the seven countries listed above for 90 days. It also states that the Secretary of Homeland Security may submit the names of additional countries whose people should be treated similarly.

SECTION 4: Implements uniform screening standards for all immigration programs. Specifically, “the development of a uniform screening standard and procedure, such as in-person interviews; a database of identity documents proffered by applicants to ensure that duplicate documents are not used by multiple applicants; amended application forms that include questions aimed at identifying fraudulent answers and malicious intent; a mechanism to ensure that the applicant is who the applicant claims to be; a process to evaluate the applicant’s likelihood of becoming a positively contributing member of society and the applicant’s ability to make contributions to the national interest; and a mechanism to assess whether or not the applicant has the intent to commit criminal or terrorist acts after entering the United States.” **If this sounds like an allusion to a database, it is.**

SECTION 5: Suspends the U.S. Refugee Admittance Program for 120 days. Applicants already mid-process may be admitted after completion of revised procedures (which are to be determined by the Secretary of State and Secretary of Homeland Security). After 120 days, “the Secretary of State shall resume USRAP admissions only for nationals of countries for which the Secretary of State, the Secretary of Homeland Security, and the Director of National Intelligence have jointly determined that such additional procedures are adequate to ensure the security and welfare of the United States.” ALSO:

  • Secretaries of State and Homeland Security are to prioritize refugee claims made on the basis of religious-based persecution, provided that the religion of the individual is a minority religion in that individual’s country of nationality. **If this sounds like a way to prioritize Christian refugees, you are correct.**
  • Syrian refugees are prohibited from coming to the U.S. until Trump says otherwise.
  • No more than 50,000 refugees may under the U.S. until Trump says otherwise.

SECTION 6: Suggests that the Secretaries of State and Homeland Security rescind the exercises of authority in Section 212 of the INA relating to terrorism grounds of inadmissibility. (I’m digging to try to figure out what this means, as the Immigration and Nationalities Act already prohibits those with terrorist ties/past from entering the US.)

SECTION 7: Orders the Secretary of Homeland Security to expedite a BIOMETRIC ENTRY-EXIT TRACKING SYSTEM for all travelers to the U.S., and to submit reports to the President.

SECTION 8: Suspends the Visa Interview Waiver Program indefinitely.

SECTION 9: Order Secretary of State to make sure that immigrants’ home countries have reciprocity with the US in terms of a visa’s validity period and fees. If they don’t, then the US will adjust its visa validity period/fee schedule/treatment to match that of the foreign country.

SECTION 10: Order information collection and publication on:

  • Number of foreign nationals in U.S. who have (a) been charged with terrorism-related offenses while in the U.S.; (b) removed from the U.S. based on terrorism activity, affiliation, or material support to a terrorism-related organization; or (c) ANY OTHER NATIONAL SECURITY REASONS since the date of the order.
  • Information on the number of foreign nationals in the U.S. who have been radicalized/engaged in terrorism-related activities, provided support to terrorism-related organizations.
  • Information regarding the number and types of acts of gender-based violence against women, including honor killings, in the U.S. by foreign nationals.
  • ANY OTHER INFORMATION (how vague) relevant to public safety and security as determined by the Secretary of Homeland Security and the Attorney General, INCLUDING INFORMATION ON THE IMMIGRATION STATUS OF FOREIGN NATIONALS CHARGED WITH MAJOR OFFENSES.

SECTION 11: Lays out the parameters of the law of the order.