Jack E. Urquhart Attorney at Law

IMMIGRATION: DACA as of August 31, 2018

2021-08-30T18:54:21Z

IMMIGRATION: DACA as of August 31, 2018 Jack E. Urquhart© September 2, 2018 The States of Texas, Alabama, Arkansas, Louisiana, Nebraska, South Carolina, West Virginia, Kansas, and the governors of Mississippi and Maine sued to rescind DACA. They argue that it violates the Administrative Procedures Act (APA) and the Take Care Clause of the Constitution. See Texas v. United States of America, No. 18-CV-00068 (S. D. Tex. August 31, 2018)(Dkt. Nos. 319 & 320). The States asked for an injunction that would terminate DACA. The Court held that the Plaintiff States demonstrated the likelihood that DACA is unlawful, but denied the State’s request to enjoin DACA. The Court, then, invited the parties to expeditiously appeal its order. Congress, the Executive, and the Courts Current American immigration conflicts feature the power and accountability of all three branches of our Constitutional governance—the Congress, the Executive, and the Judiciary. Congress is the governmental branch assigned the power to make immigration law. The Executive Branch is assigned the power to enforce the immigration laws passed by Congress. The Judicial Branch is assigned very little authority over immigration law—even its power of judicial review is narrowly curtailed in the immigration arena. The DACA controversy, one of many pressing immigration issues, finds its root in Congressional inaction. Congress is the branch of the government accountable for legislating a functioning, safe, and humane immigration system. All troubled by, for example, the number of “illegal immigrants” now in the United States should demand Congress find rational solutions. Congress is branch of our government constitutionally accountable for our immigration laws–successes and failures. But our most controversial immigration issues stem from Executive proclamations—not carefully considered Congressional acts. A highly plausible—though not undisputed—explanation for this is the failure of Congress to do its job. Sensible immigration reform would reduce the justification for Executive decision-making. Executive immigration decision-making inevitably draws the Judiciary Branch into the immigration arena. The Courts, technically without any significant immigration authority, are asked to decide whether Executive proclamations overstep the immigration authority granted the Executive Branch by Congress or the Constitution. When summoned into frays, the federal courts express essentially universal agreement that comprehensive responses to immigration conflicts are the province of Congress. Yet, the sheer number of immigration lawsuits, and the unique and important questions they involve are red flags for a failed or failing immigration system. They are an alert that Congress needs to tend to business. 2012 DACA Begins The Deferred Action for Childhood Arrivals, DACA, was initiated June 15, 2012, by a memorandum signed by the, then, Secretary of the Department of Homeland Security (DHS), Janet Napolitano. DACA allows qualifying applicants to remain in the United States for a two-year period. Assuming all qualifications are met, successful applicants may apply for renewal every two years. Only those who meet the following criteria are eligible to apply for DACA: The applicant must have been younger than 16 before she or he entered the United States; The applicant must have lived continuously in the United States since at least June 15, 2007; The applicant must have been present in the United States when the DACA memo was issued–June 15, 2012; The applicant must have graduated high school or be in school or have been honorably discharged from the United States military; The applicant cannot have been convicted of a felony, a serious misdemeanor, or pose any national security threat; and The applicant must be younger than 30 when applying. Meeting these eligibility requirements alone provides no assurance that an application will be granted. The applicant is further screened and the decision to grant or deny individual applications is at the Government’s discretion. The issue of whether DACA actually permits discretion if the applicant meets the guidelines is disputed in pending litigation. Successful DACA applicants must apply for work permits from the Government. If a DACA application is granted, the successful applicant cannot be deported for a two-year period, and the application can be renewed for successive two-year periods, if renewal qualifications are met. Successful applicants are eligible for some public benefits under legislation other than DACA. 2017 DACA Rescinded September 5, 2017, DACA was rescinded by a memorandum of the, then, Acting Secretary of DHS, Elaine Duke. 2018 DACA Rescission LitigatioFn Four federal courts have ruled on the legality of the 2017 DACA rescission. Three held the rescission illegal, and preliminarily enjoined DACA rescission. One federal court found DACA’s rescission legal. Regents of the University of California v. U.S. Dep’t of Homeland Sec., 279 F. Supp. 3d 1011 (N.D. Cal. 2018), appeal pending, No. 18-15068 (9^th Cir. 2018) was the first DACA rescission court decision. The Court held that the rescission violated the Administrative Procedures Act (APA), because, rather than supported by reasoned decision-making, DACA rescission was arbitrary and capricious. The Court preliminarily enjoined DACA’s rescission. Vidal v. Trump, 279 F. Supp. 3d 401 (E.D.N.Y. 2018), appeal pending, Vidal v. Trump, No. 18-485 (2d Cir. 2018) was the second federal court to find DACA rescission arbitrary and capricious. It preliminarily enjoined the rescission. Casa de Maryland v. U.S. Department of Homeland Security, 284 F. Supp. 3d 758 (D. Md. 2018), appeal pending, No. 18-1522 (4^th Cir. 2018) was the third federal court decision to address the DACA rescission. It held that the DACA rescission was “a carefully crafted decision supported by the Administrative Record.” Id. at 772. NAACP v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018), appeal pending, NAACP v. Trump, No. 18-5243 (D.C. Cir.) was the fourth federal court decision on the DACA . This Court offered the Administration an opportunity to further support its DACA rescission. 2018 DACA Rescission Clarification June 2018 the current Administration’s sixth Secretary of DHS, Kirstjen Nielsen, issued a memorandum clarifying the basis for the DACA rescission. The memo, among other points, clarified that the DACA Rescission does not rely on the conclusion that DACA is illegal. Instead, DHS thinks DACA might be illegal. The NAACP Court, which offered the current Administration the opportunity to better support DACA rescission, found the June 2018 DHS memo did not alter the Court’s conclusion that the DACA rescission was not reasoned decision-making as required APA. Rather, it was grounded on a legal opinion. The Court wrote: Although the [June 2018 DHS Memo] purports to offer further explanation for DHS’s decision to rescind DACA, it fails to elaborate meaningfully on the agency’s primary rationale for its decision: the judgment that the policy was unlawful and unconstitutional. And while the memo offers several additional “policy” grounds for DACA’s rescission, most of these simply repackage legal arguments previously made, and hence are “insufficiently independent from the agency’s evaluation of DACA’s legality” to preclude judicial review or to support the agency’s decision. The Court concluded: Finally, a few words about the nature of the relief being granted by this Court. The Court did not hold in its prior opinion, and it does not hold today, that DHS lacks the statutory or constitutional authority to rescind the DACA program. Rather, the Court simply holds that if DHS wishes to rescind the program—or to take any other action, for that matter—it must give a rational explanation for its decision. See 5 U.S.C. § 706(2). A conclusory assertion that a prior policy is illegal, accompanied by a hodgepodge of illogical or post hoc policy assertions, simply will not do. The Court therefore reaffirms its conclusion that DACA’s rescission was unlawful and must be set aside. May 7, 2018 DACA Challenged DACA’s legality was not challenged in court until May 7, 2018. See Texas v. United States of America, No. 18-CV-00068 (S. D. Tex. August 31, 2018). This challenge came just short of 6 years after DACA began. Guided by Texas v. United States, 809 F.3d 134 (5^th Cir. 2015) (Texas I), the District Court held that DACA exceeds the agency’s statutory jurisdiction, and thus violates the APA. 5 U.S.C. § 706(2). However, the Court denied the Plaintiff State’s request for preliminary injunction, primarily based on the delay in challenging DACA. The Court wrote that DACA could have been challenged in the 2014 lawsuit brought by Texas (Texas I), enjoining related executive actions. In balancing the equities, the Court considered that DACA is the status quo. Plaintiff States, therefore, sought an injunction that would alter that status quo, and inflict immediate hardship on some Defendants. By separate order, the Court encouraged the parties to appeal. As the Court’s opinion was interlocutory—not final and disposing of all issues, it is not normally appealable. However, the Court certified that “an immediate appeal will materially advance the termination of this case and hopefully others.” Texas v. United States, No, 18-cv-0068 (S.D. Tex. August 31, 2018)(Dkt. No. 320). The same order stays the case for 21 days, allowing any party to decide whether it will pursue an interlocutory appeal. The Interlocutory Appeal Order is notable for its candor about the potential for judicial fallibility. The challenges immigration policy presents are largely without clear-cut solutions. They raise issues that transcend partisan quibbles. The current immigration challenges will be met, if at all, by those who acknowledge the need to act expeditiously, but respect the limitations of power protected by the rule of law. Congressional Accountability Joining the growing number of Courts that sound the same clarion call, the United States District Court for the Southern District of Texas wrote: In Casa de Maryland, the court expressed the sentiment that the question of the eligibility of the DACA recipients to remain in the United States and continue contributing their skills and abilities to the betterment of this country is an issue crying out for a legislative solution. This Court agrees. Immigration reform by means other than responsible Congressional legislation will forever be questionably lawful and practically insufficient. DACA Status DACA remains effective. Its rescission has been enjoined. All rescission cases are on appeal to Circuit Courts. The Texas II case held DACA unlawful, but did not enjoin it. Texas II has been certified for expeditious appeal. Uncertainty is a mild word to describe DACA’s future. Uncertainty this vast serves no one well.

IMMIGRATION: Sanctuary Cities, Individual Freedom and Presidential Power

2021-07-28T09:22:07Z

IMMIGRATION: Sanctuary Cities, Individual Freedom and Presidential Power Jack E. Urquhart© August 12, 2018 Many current immigration issues are variations on themes debated long before the founding of the United States of America. Disputes this ancient continue because they are important and solution-resistant. Civilizations and their methods of governance are historically judged by their handling of such stubborn problems. Freezing our current moment in time, the Executive Branch is asserting control over immigration. The wisdom, or lack of it, in a President’s policy choices are important, and attention-grabbing. Less publicized, but at least as significant, are the limits on an American President’s authority to impose his or her policy preferences on the people. Five days after taking office, the current President issued an Executive Order aimed at “sanctuary jurisdictions.” Exec. Order 13,768, 82 Fed. Reg. 8799 (January 25, 2017). The Order empowers the Attorney General and the Secretary of Homeland Security “at their discretion and consistent with law” to:

Designate “sanctuary jurisdictions” by judging whether or not a jurisdiction is willfully refusing to comply with 8 U.S.C. § 1373, and
Ensure sanctuary jurisdictions are not eligible to receive Federal grants, except as deemed necessary for law enforcement purposes.

Further, the Executive Order instructed the Attorney General 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 cross-referenced 8 U.S.C. § 1373 is Congressional legislation prohibiting state and local governments from refusing to share “information regarding the citizenship or immigration status, lawful or unlawful, of any individual.”

In sum, by its plain terms, the Executive Order directs the agencies of the Executive Branch to withhold funds appropriated by Congress in order to further the Administration’s policy objective of punishing cities and counties that adopt so-called “sanctuary” policies.

County of Santa Clara v. Trump, No. 17-17478 (9th Cir. August 1, 2018). The United States Court of Appeals for the Ninth Circuit found this “sanctuary jurisdiction” Executive Order unconstitutional. By issuing the order, the current President violated the Separation of Powers and the Spending Clause of our Constitution. America’s commitment to individual freedom is unique. In most ways and in most times, this is a good thing. In all times, America’s commitment to individual freedom is central to its greatest successes and its worst mistakes. Daily, America and Americans struggle consciously or unconsciously to balance their very real need for individual freedom with the equally real need for limitations on that freedom. While Americans are free to speak and act in ways unthinkable in many other countries, American individual freedom works best when most Americans wisely self-impose boundaries on that freedom. Whatever else may be said about the American Constitution and how it should be interpreted, it reflects individual and collective compromises between the need for a central government and a widely-shared distrust of such a government. Essential to the compromise that enabled our Constitution and the birth of the United States of America were the notions that the power of the central government is limited, and this limited power is not concentrated in the President. By intention, America’s federal government sacrifices the “efficiency” of a “King,” for the “checks and balances” of three separate and independent branches of governance. This Separation of Powers is the cornerstone of America’s system of governance. The failure of any Branch of our government to carry out its assigned responsibilities imperils our Federal Government as a whole. The unlawful infringement by one Branch of our government on the responsibilities assigned other Branches is equally threatens our democracy. Yet, keeping our Federal Government properly balanced and on task is ever-evolving and always imprecise. Conceptually, the ultimate responsibility for protecting our unique constitutional democracy is assigned to American voters. “Immigration policy” is a timely test of how well our constitutional governance is functioning. Immigration policy encompasses a vast array questions that have no clear-cut right or wrong answers. Immigration policy is further complicated, because many, if not most, of the people directly affected by American immigration policy have no vote and few “rights.” But all sovereign governments must have some form of immigration policy. Immigration “control” and sovereignty are practically inseparable. The current President unquestionably has opinions about immigration policy. His Executive Order on “sanctuary jurisdictions” reflects his view that some cities and counties throughout the country are too soft on immigrants, and these “sanctuary jurisdictions” should be punished. As a person, the President is entitled to his opinions and has a right to express his opinions in whatever manner wishes. However, as President, he has no constitutional authority to embargo money duly appropriated by Congress. The President has no authority to cut funds that Congress has directed to San Francisco or any other state or local government regardless of his personal displeasure with those jurisdictions.

The United States Constitution exclusively grants the power of the purse to Congress, not the President. U.S. Const. art. I, § 9, cl. 7 (Appropriations Clause); U.S. Const. art. I, § 8. cl. 1 (Spending Clause). As Alexander Hamilton succinctly put it, Congress “commands the purse.” THE FEDERALIST, No. 78. James Madison underscored the significance of that exclusive congressional power, stating, “[t]the power over the purse may [be] the most complete and effectual weapon with which any constitution can arm the immediate representatives of the people.” THE FEDERALIST, NO. 58,

Id.

Simply put, “the President does not have unilateral authority to refuse to spend funds. In re Aiken County, 725 F.3d 255, 261 n.1 (D.C. Cir. 2013). And, “the President many not decline to follow a statutory mandate or prohibition simply because of policy objectives.”

Id. At best, the ice upon which the current President skated when signing an Order to punish perceived “sanctuary jurisdictions” by withholding congressionally legislated funding grants was thin. When the Order was challenged in Federal Court as an abuse of the President’s constitutional power, his Administration made no effort “to show that Congress authorized [the Administration] to withdraw federal grant moneys from jurisdictions that do not agree with the current Administration’s immigration strategies.” Id.

Not only has the Administration claimed for itself Congress’s exclusive spending power, it has also attempted to coopt Congress’s power to legislate.

Id. The President’s lawyers defended the Executive Order in the lawsuit largely by portraying it as a “toothless threat” that would not be enforced. The President’s lawyers argued that since the Executive Order had not been enforced, the City and County of San Francisco had not yet suffered injury. The Court disagreed, and, as has been the case with other legal spats in which the current Administration is enmeshed, the Court reported numerous instances in which the President and members of his Administration publicly contradicted the positions taken by their lawyers in Court. Specifically, the President and members of his Administration were quoted as using defunding as a “weapon” to punish jurisdictions that did not share the Administration views on how their law enforcement resources should be allocated. The Administration has been particularly vocal on its insistence that jurisdictions comply with all Federal “detainer requests.” These are demands from ICE to local law enforcement authorities that they continue to detain individuals after their scheduled release. The “purpose” of the continued detention is to give ICE an opportunity to explore potential immigration issues. This detention would be at the cost of the local authorities, and implicate both federalism and Fourth Amendment concerns.

While the Administration’s statements cannot alter the plain meaning of the Executive Order, Barclays Bank PLC v. Franchise Tax Bd. of Cal., 512 U.S. 298, 329-301 (1994), here the statements confirm what we have learned from the text of the Executive Order—that the Administration intends to cripple jurisdictions that do not assist in enforcing federal immigration policy.

Id. The dissenting judge in this matter interpreted the Executive Order as urged by the President’s lawyers. He read the order as simply providing that local officials “shall assure that a law of the United States shall ‘be faithfully executed.’” The dissent concluded that the case was not “ripe” for decision as the Executive Order has not been enforced, and, if enforced, there is no basis for believing it will be enforced unlawfully. Moreover, the dissent charges the Court’s majority opinion with failing to give the Executive Order “a fair enough reading.” The dissent urges that the majority’s interpretation of the order actually rewrote the order so that it could be enjoined. As for the comments from the President and other administration officials about their actual intent, the dissent found them irrelevant, relying on Trump v. Hawaii, 138 S.Ct. 2392, 2416-23 (2018)(The case involving the Travel Ban Executive Order—revised version 3). The dissent concluded:

In fine, while the Counties may be convinced that the Executive Order loosed a fearsome chimera upon them, that does not mean that the courts should take up arms to vanquish the imagined beast by slaying the Executive Order itself.

So ends this particular chapter in the “sanctuary jurisdiction” saga. The Executive Order, for now, is unconstitutional and remanded to the trial court for further development of appropriate injunctive relief. And on it will go. Over-arching concerns merit consideration. First, a strong argument can be made that Congress, which unquestionably has the authority and responsibility over immigration policy, should earnestly begin the hard and deliberative work necessary to reboot our outdated and confusing immigration systems. This, needless to say, would require cooperation and compromise. Second, Presidents of whatever political stripe should reconsider using Executive Orders they do not intend to enforce. Third, the independence of our Judicial Branch is essential. Disagreement among our judges is expected. Yet, the expression of these disagreements should transcend the rough and tumble of partisan interests. Our judiciary must be widely respected for its reasoned independence. This respect is the foundation of the Rule of Law. Our Judiciary has authorities and responsibilities entirely different from the two political branches of our government. When this distinction is not clear or clearly believable to most Americans, regardless of the reasons, our unique system of governance is imperiled.

IMMIGRATION: Asylum-seekers Can Insist that the Government Follow its Own Rules

2021-07-28T09:22:08Z

IMMIGRATION: Asylum-seekers can insist that the Government follow its own rules. Jack E. Urquhart© July 21, 2018 Damus v. Department of Homeland Security, No. 18-578 (D.D.C. July 2, 2018) certifies a class of asylum-seekers and grants a preliminary injunction, requiring the Government to comply with the ICE Parole Directive when making parole decisions. In short, the Court orders the Government to follow its own rules. Without detracting from the many important issues this case tackles, the opinion joins the growing judicial teaching that everyone will benefit from sensible immigration reform. At this point, even a sensible discussion of immigration reform would be a helpful departure from the prevailing chaos. Back to reality 2018, the following summarizes one Court’s struggle with the American immigration maze to reach a seemingly obvious determination that, when the Government does adopt rules to guide decision-making, it should follow those rules. INTRODUCTION Damus is an opinion out the United States District Court for the District of Columbia. The opinion was authored by Hon. James E. Boasberg. He was appointed to the District Court by President Barack Obama. In addition, Judge Boasberg serves on the United States Foreign Intelligence Surveillance Court. He was appointed to that Court by Hon. John Roberts, Chief Justice of the United States Supreme Court. Damus granted class action relief to certain asylum-seekers detained or who will be detained in federal custody while awaiting the result of their asylum applications. All granted relief is limited to five Immigration and Customs Enforcement (ICE) Field Offices located in Detroit, El Paso, Los Angeles, Newark, and Philadelphia. The opinion focuses on the claim that the Government violated The Administrative Procedures Act by abandoning its own binding policies and procedures for resolving asylum-seekers’ applications for parole. Specifically, the claim is that the Government abandoned a 2009 ICE Parole Directive, and replaced it with blanket parole denials. As phrased by the Court: “At the heart of Plaintiffs’ suit is their assertion that, under the current administration, parole practices at the five Field Offices have drastically departed from the policies and protections enshrined in the 2009 ICE Directive.” Damus v. Department of Homeland Security, No. 18-578 (D.D.C. July 2, 2018). Violation of this Directive, claimants assert, violates the Administrative Procedures Act. In granting the preliminary injunction, the Court observes its opinion “does no more than hold the Government accountable to its own policy, which recently has been honored more in the breach than the observance. Having extended the safeguards of the Parole Directive to asylum-seekers, ICE must now ensure that such protections are realized.” CLASS CERTIFICATION The Court certified a class action. Class certification requirements, like many topics addressed in Damus, are well-known to some. For many, these topics are new, complex, and deathly boring. An effort will made to simplify without distorting meaning or omitting topics necessary for accuracy. The Class The class certified by the Court is made up of all arriving asylum-seekers who are found to have a credible fear of persecution or torture and who are, or will be, detained by ICE after having been denied parole under the authority of the five ICE Field Offices. The Lead Plaintiff The lead claimant is Ansly Damus. A few details of his alleged circumstances explain nature the class members common claim. Ansly Damus, an ethics teacher in Haiti, entered the United States October 2016, seeking asylum from persecution. Entering the United States was the only way he could make an asylum claim. This is true of most asylum-seekers: They cannot make an asylum claim without “unlawfully” reaching American soil. An asylum officer conducted a credible fear interview. A credible fear interview is a formal step in the asylum process. An asylum officer questioned Mr. Damus to judge whether he believed Mr. Damus’ claimed fear of persecution or torture if returned to Haiti. Mr. Damus fear was believed. Following the judgment that his fear was credible, Mr. Damus was detained in the ICE Detroit Field Office. Since then, Mr. Damus has been granted asylum twice. Both times, the Government appealed. Mr. Damus applied for parole. His application was denied. He has been continuously detained for more than 20 months. Mr. Damus claims that in making the decision on his parole application the Detroit Field Office did not follow the ICE Parole Directive. Instead, that office systematically denied all or virtually all parole applications. Common Class Characteristics: All class Plaintiffs share these characteristics: They entered or will enter the United States seeking asylum from persecution in their countries of origin. Asylum officers found or will find their fear of persecution or torture credible. They are or will be indefinitely detained in one of the five ICE Field Offices. Their parole applications were or will be denied. More information on this class certification is provided below. 2009 ICE Parole Directive Congress is armed with the ultimate Constitutional authority and responsibility to determine immigration policies and practices. The Executive has broad authority to implement Congressional intent. Asylum is one among many immigration issues lacking clear guidance from Congress or the Executive. It is clear that non-citizens arriving in the Unites States may apply for asylum. It is relatively clear that the first step in the asylum process is the credible-fear interview. The method for conducting this interview is not at all clear. However, if the interviewer is satisfied that the asylum-seeker’s fear of persecution or torture is believable, he or she will be detained until the full asylum process is complete. This detention, however, is subject to a right to apply for parole. Parole is available to asylum-seekers who are neither security nor flight risks. With no formal guidance from Congress or the Executive on the procedures for making parole determinations, the ICE Parole Directive was implemented in 2009. The Directive establishes “a set of minimum protections for those seeking asylum, including an opportunity to submit documentation, the availability of an individualized parole interview, and an explanation of the reasons for a parole denial. The Parole Directive provides that the public’s interest is not served by the continued detention of a non-citizen seeking asylum who establishes his or her identity and presents neither a security nor flight risk. See “Parole of Arriving Aliens Found to Have a Credible Fear of Persecution or Torture,” issued by Immigration and Customs Enforcement; ECF No. 22-1 (ICE Directive 11002). The Parole Directive affirms that parole decisions are discretionary, but also establishes minimum procedures and protections required when making parole decisions. The Government stated during the oral argument that the ICE Parole Directive is binding. Plaintiffs’ assert, however, that the five Ice Field Offices have ignored the Directive under the current administration. Instead, these Field Offices systematically deny all or virtually all parole applications. Plaintiffs supported this assertion with evidence that is more fully discussed below. The Government did not produce any convincing rebuttal evidence. THE GOVERNMENT’S JURISDICTIONAL ATTACK The Government argues that federal courts are stripped of jurisdiction to review discretionary decisions affecting non-citizens by 8 U.S.C. § 1252(a((2)(B)(ii). The Court agrees it lacks jurisdiction to challenge specific parole decisions. On the other hand, the Court finds it has jurisdiction to ensure the Government complies with its own policies and procedures. The Court cannot question the outcome of a parole decision, but it can question the method of decision-making. See Zadvydas v. Davis, 533 U.S. 678 (2001); R.I.L-R v. Johnson, 80 F. Supp. 3d 164 (D.D.C. 2015): Abdi v. Duke, 280 F. Supp. 3d 373, 385 (W.D.N.Y. 2017). The Government also argues the Court does not have jurisdiction to issue classwide injunctive relief. The Court finds that 8 U.S.C. § 1252(f)(1) does preclude courts from enjoining the operation of the INA detention statutes, but Plaintiffs do not seek this relief. Rather, Plaintiffs only seek an order requiring the Government to comply with its own rules when making parole decisions. The Court denied the Government’s jurisdictional arguments. THE GOVERNMENT”S STANDING ATTACK The Government attacks the standing of the proposed class members who have not yet experienced the alleged harm. It urges that this alleged harm is speculative. The Court rejects this argument. Plaintiffs claim that their detention is the direct result of the Field Offices’ current departure from the protections of the ICE Parole Directive in favor of de facto detention, and this claim is “robustly supported by statistics and other record evidence.“ As the current administration’s near-uniform detention of asylum-seekers results in a significant increase in the likelihood of parole denial for all asylum seekers at these five Field Offices, an injunction requiring the Field Offices to follow their own Parole Directive will reduce the probability of harm to future asylum-seekers. The harm is “in no sense speculative“ for future asylum-seekers sent to these five Field Offices, therefore, they have Article III standing. THE GOVERNMENT’S ATTACK ON CLASS CERTIFICATI Numerosity, adequacy of representation, typicality and commonality The Government does not seriously challenge class certification on numerosity or adequacy of the class representation. The Government does assail Plaintiffs’ alleged failure to meet class action typicality and commonality requirements. The Court denies these challenges. Contrary to the Government’s argument, Plaintiffs’ claim does not require an examination of each parole denial. To the contrary, Plaintiffs do not question any individual parole decision. They claim the ICE Parole Directive is ignored and replaced with a program of blanket denials. Plaintiffs ask this Court to determine only whether, as a general matter, the five Field Offices are following the Directive or are instead systematically denying parole. Plaintiffs, therefore, meet the typicality and commonality tests for class certification. Rule 23(b)(2): Cohesive interests of class members The Government’s final attack on class certification is Plaintiff’s alleged failure to demonstrate that the class members’ interests are cohesive. The Government argues all claimants do not warrant the same relief for the same reason. Once again, the Court finds that the Government misinterprets what is in dispute. The issue is not whether individual parole decisions are flawed. The issue is whether the ICE Parole Directive, which requires individualized decisions, is ignored and replaced with blanket denials of essentially all parole requests. “Plaintiffs ask only that the Court address an alleged systematic harm—the failure of the Field Offices to comply with the directive.” THE MERITS OF PLAINTIFFS’ CLAIM The Court finds Plaintiffs will likely succeed in proving the five Field Offices are violating the Administrative Procedures Act by failing to follow the Parole Directive. The Accardi Doctrine. Plaintiffs invoke the Accardi Doctrine as the foundation for their position that the Government is violating the Administrative Procedures Act. The Accardi doctrine stands for the proposition that agencies may not violate their own rules and regulations to the prejudice of others. See United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954); Morton v. Rule, 415 U.S. 199 (1971). In the immigration context, courts have extended the Accardi Doctrine beyond formal regulations. See Montilla v. INS, 926 F.2d 162 (2d Cir. 1991); Zhang v. Slattery, 840 F. Supp. 292 (S.D.N.Y. 1994). The Court concludes that the Third Circuit applies the Accardi Doctrine to agency pronouncements that the agency intends to be binding on them. This intent is determined by both the substance and agency intent and whether the pronouncement confers individual protections or privileges. In this case, the Government admitted in its argument that the ICE Parole Directive is binding and must be followed. The Court held the APA empowers Plaintiffs to challenge agency action that is arbitrary, capricious, and an abuse of discretion. See Torres v. U.S. Dep’t of Homeland Security1, 2017 WL 4340385 (S.D. Cal. Sep.29, 2017.) The allegation that ICE violated the Parole Directive would be unlawful if proven. ICE NO LONGER FOLLOWS THE DIRECTIVE The Numbers Plaintiffs produced written evidence that from February to September 2017, ICE El Paso, Philadelphia, and Newark Field Offices denied every single parole application. During the same period, ICE Los Angeles Field Office denied 92% of all applications and the Detroit Field Office denial rate was 98%. These numbers include every parole request made to the five Field Offices during the first 8 months of current administration—more than 800 cases. The Government had no contrary evidence. The Government offered no explanation for the “dramatic departure in parole-grants” since the current administration took office. The Government admitted that “there had been no significant change in the “type of asylum-seekers” since the new administration took office. February 2017 John Kelly—then DHS Secretary—stated the Directive was still in effect and the Government repeated the same representation to the United State Supreme Court. The Court finds the Government’s position that is following the Directive is “untenable.” The Government cannot believably claim it follows the Directive without some explanation for the stark increase in parole denial rates—approximately 90% parole grants prior to the new administration and almost complete parole denial after the administration change. The sworn declarations Plaintiffs also produced sworn declarations that ICE officials admitted, “No more parole.” Experienced immigration practitioners swore in produced declarations that ICE now denies parole to individuals who would be granted parole under the Directive. Government declarations relied on records not submitted to the Court and were from people who “largely did not have direct involvement with the specific adjudications.” If given full weight, those declarations do nothing to counter the “overwhelming evidence presented by Plaintiffs.” Indeed, Government declarations often support Plaintiffs’ claims. A declaration, for example, said an individual’s parole was denied because she was “a recent entrant and thus presented a flight risk.” Virtually all asylum-seekers are “recent entrants.” Using this fact as the sole basis for concluding that an asylum-seeker is a flight risk is not consistent with the Directive. Actually, this is more consistent with blanket denial. Irreparable harm The Court finds it is evident that the Government’s failure to follow the Parole Directive results in continued detention. The Government argued that the Plaintiffs are not harmed by indefinite detention, because they can seek a redetermination of their parole request. The Court finds this argument meritless. Having uniformly denied parole in violation of its own policies, the Government is hard pressed to believably argue that reconsideration is meaningful relief. Government is “enjoined” to follow its own rules The Court succinctly wrote: “To be clear, in finding that injunctive relief is warranted in this case, this Court is simply ordering Defendants to do what they already admit is required—follow the ICE Directive when adjudicating asylum-seekers’ detention.” While anything is possible, it strains the imagination that anything other than a change in policy can explain 90% parole grants prior to the new administration and almost 100% parole denials after the new administration took office. Moreover, it strains reason that the Government does not admit the change or at least attempt to explain it. A new administration has broad rights to change policies. Congress can rewrite all our immigration laws. If change is desired by the political branches of government, they have the right to make or attempt to make the change in publically. In so doing they can appropriately be held accountable for the changes and the consequences of those changes. The public is best served by candor. The public is poorly served by duplicity. Immigrants and immigration issues fall in the arena of marginalized people and marginalized concerns. Gross missteps will attract at least fleeting attention. The steady deprivation of immigrant rights or the long-term neglect of needed immigration reform will likely pass unnoticed for dangerously long periods. The current immigration turbulence offers an opportunity for sensible reform. Strange and ill-formed Executive fiats are inadequate substitutes for long overdue Congressional and formal rule-making reform. Practically, the Constitution grants control of immigration policy to the political branches of our federal government—Congress and the Executive. Realistically, it is the American Judiciary—whose control over immigration policy is extremely limited—that is shining the brightest light on the many flaws in our immigration system. Yet, the circle of responsibility for sound immigration reform returns to the voters. In the end, we get the policies we deserve.

IMMIGRATION: “Where do the children play? Yusuf Islam

2021-07-28T09:22:09Z

IMMIGRATION: “Where do the children play? Yusuf Islam JACK E. URQUHART© July 11, 2018 The American immigration system is an incomprehensible jungle governed by ramshackle “rules” ranging from Congressional legislation to memoranda of policies and practices. These “rules” are in constant flux, tossed about in a turbulent sea stirred by disruptive partisan wars. The resulting chaos inflicts daily humanitarian harm without perceptible benefit. Sound immigration reform seems a shared goal for all American citizens. Problem-solvers, however, seem drowned out by nosily interesting incendiaries. Congress and the Executive Branches have almost unlimited authority over the immigration arena. Correspondingly, Congress and the Executive have the responsibility to sensibly and constitutionally improve our failed immigration system. The challenge is considerable. Meeting the challenge requires leadership actually committed to improving the American immigration system rather than using non-citizens as pawns in partisan bickering. A measure of the increasing chaos in our immigration system is the rise in Judicial review of immigration decisions made by Congress and the Executive. In stark contrast to the immigration decision-making authority the Constitution grants Congress and the Executive Branches, the Judicial Branch has quite limited authority over immigration policy. In general terms, Court immigration authority is a check on whether Congressional or Executive immigration decisions are unlawful. As expected, Courts historically defer to Congress and the Executive, and rarely find that Congress or the Executive has acted unlawfully in their control over immigration. Two quite recent cases, however, are characteristic of recent cases in which Courts have found immigration decisions made by Congress, the Executive, or both, are illegal. A common thread is Executive action that is ill-conceived and excessive. July 9, 2018, a United States District Court forcefully rejected the Attorney General’s attempt to alter the terms of a 1997 agreement on the terms of detaining non-citizen children. June 20, 2018, America’s President blasted out an Executive Order, demanding the Attorney General promptly petition the Court to change the terms of a federal court consent decree—the Flores Agreement. Following orders, the Attorney General filed for the change the very next day. The change desired by the President and the Attorney General was to alter the Flores Agreement to permit ICE to indefinitely detain non-citizen minors in unlicensed ICE family residential facilities. The Attorney General described these changes as “limited.” The Court disagreed. The Attorney General, the Court wrote, actually wanted to “light a match to the Flores Agreement and ask this Court to upend the agreement by judicial fiat.” The Attorney General’s request was for the Court to permit the Government to clearly breach the Flores Agreement that protected children from indefinite detention and limited detention in state licensed facilities. The Court found the Attorney General’s court filing “a cynical attempt, on an ex parte basis, to shift responsibility to the Judiciary for over 20 years of Congressional inaction and ill-considered Executive action that have led to the current stalemate.” Flores v. Sessions, CV-85-4544 (C.D. Cal. July 9, 2018), appeal pending, No. 18-56204 (9th. Cir. 2018). A few weeks earlier, the United States Court of Appeals for the Third Circuit found that the “jurisdiction-stripping” provisions of the Immigration and Nationality Act as applied by the Attorney General violated our Constitution. Martinez, et al. v. Attorney General of the United States of American, No. 17-2159 (3rd Cir. June 18, 2018). By way of background, four non-citizen children and their mothers fled from El Salvador and Honduras to the United States in 2015. Within hours of crossing the border they were arrested by the Border Patrol. They were briefly detained in Texas, and, then, transferred to a detention facility in Leesport, Pennsylvania. Employing expedited removal proceedings, the children’s asylum claims were denied, and they were ordered removed. The children, ages 3, 4, 7 and 16, apparently, were denied asylum at the credible fear screening stage. The immigration officials who decided their fate, did not doubt that the children had a credible fear of abuse and persecution in their respective countries of origin. Instead, the immigration officials felt the children could not establish that they were persecuted for reasons itemized in the asylum-worthy laundry list, like race or religion. Shortly after their detention, the children asked for the federal courts to review the conduct of their credible fear screening. The imagination does wonder just how a 3-year-old is screened for credible fear and is expected to establish precisely why he or she is persecuted. Regardless, the children’s initial claims were not reviewed by a federal court because the Immigration and Nationality Act strips the courts of jurisdiction to review the merit of the immigration officials’ decisions. Moreover, the children had no constitutional rights at all, because they did not have “sufficient connections” with this country at the time of their arrest. The children were held in the Pennsylvania detention center for over two years. While detained, the children applied for Special Immigrant Juvenile status. SIJ status was legislated by Congress in 1990 to safeguard abused, abandoned or neglected immigrant children who meet rigorous eligibility requirements. The children met all those requirements and were granted SIJ status. Their SIJ status required and received the consent of the Secretary of the Department of Homeland Security. Reversing years of policy, the current Attorney General ignored the children’s SIJ status, continued the children’s detention, continued prosecuting their expedited removal, and continued to insist the SIJ children had no rights under our Constitution. Never before has any administration taken these positions. After earning SIJ status, the children, again, invoked a constitutional right to Writ of Habeas Corpus. With SIJ status, they urged the right to have a federal court determine whether their detention and denial of asylum was lawfully decided by immigration officials. The Attorney General persisted in the claim that the children had no constitutional rights, and therefore, no right to invoke the Writ of Habeas Corpus. The Third Circuit detailed the seemingly obvious reasons that a denial of any constitutional rights to a child who was within a “hair’s breadth” of Lawful Permanent Resident status “eviscerates” the purpose for which Congress created SIJ status. As applied by the current Attorney General, the jurisdiction-stripping provision of the INA was unconstitutional. It violated the First Amendment’s protection of the Writ of Habeas Corpus. The power of Congress and the Executive over immigration is unquestionably broad. However, it is not limitless. The Judiciary retains the responsibility to ensure adherence to our Constitution. Our constitutional democracy will forever struggle with obstacles unknown and perhaps even unimaginable to more authoritarian regimes. These obstacles may even appear farcical to autocrats who impose their will without serious restraint. America’s immigration system is and has been flaw-ridden. It needs serious rehabilitation. But as H.L. Mencken reminds us through the ages: “For every complex problem there is an answer that is clear, simple, and wrong.” Sound immigration reform will not be achieved by bullying, posturing, and dehumanizing. Grandstanding displays that are both impractical and inhumane are unhelpful regardless of which partisan group they may delight. Our Constitution must be read for its living warmth of heart and transcendent values. Problem-solvers are sorely needed. Such people instinctively know that children must never be used as toys by adults playing partisan games. A final irony emerges from the two cases just discussed: No one did or could argue that the children posed any threat to any American citizen. Nor did anyone question that their arduous journey to and across our border was driven by persecution in their home countries. America must protect its borders. America cannot open its borders to all who suffer. Taking that as a given, America will not achieve sound immigration reform by making a mockery of its abiding commitment to human rights and the rule of law. Our values-however differently we may view them—abhor child abuse.

Travel Ban: Words That Bind Are Words That Last

2022-05-23T14:25:53Z

TRAVEL BAN: WORDS THAT BIND ARE WORDS THAT LAST Jack Urquhart© June 26, 2018 Today, the United States Supreme Court denied injunctive relief to those opposing the third edition of the President’s travel ban, restricting admission and visa rights to nationals of eight countries. The majority opinion in Trump v. Hawaii, No. 17-965 (June 26, 2018) was supported by the unquestioned power Congress has delegated to a President to restrict entry into this country. Practically, entry can be restricted whenever the President deems such entry “would be detrimental to the interests of the United States.” Why did the travel ban case ever reach our highest Court? WORDS. When running for the Presidency, and as President, the current Executive vilified a single religion. His travel ban, therefore, plausibly violated the Constitution’s First Amendment Establishment Clause. Arguably, the travel ban reflected religious animus, rather than legitimate concern about national security. Now, the Court has spoken. Winners and losers can be identified. The Court can be praised or demonized. The dissenters can be shamed or glorified. I choose to single out the concurring opinion of Justice Kennedy as worth reading and remembering. In all events, it is appropriate to make this further observation. There are numerous instances in which the statements of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials may say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and promise. The First Amendment prohibits the establishment of religion and promises the free exercise of religion. From those safeguards, and from the guarantee of freedom of speech, it follows there is freedom of belief and expression. It is an urgent necessity that officials adhere to these constitutional guarantees and mandates in all their actions, even in the sphere of foreign affairs. An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts. He gave his vote to the majority. Without his vote, the travel ban would be dead and gone. Yet, Justice Kennedy WORDS resonate. They are hopeful and humane. They give us reason to persevere in the face of battles lost along the way.

Employment Arbitration Agreements Reach Epic Status

2021-07-28T09:22:09Z

Employment Arbitration Agreements Reach Epic Status Jack Urquhart Employees who contractually agree to resolve employment disputes in an individualized arbitration waive all rights to class actions or any other collective dispute process. The United States Supreme Court buried any reasonable doubt that arbitration agreements in employment contracts providing for individualized arbitration preclude class actions or any other form of collective resolution process. The May 21, 2018 Epic Systems Corp. v. Lewis decision cements the rule that employees must go it alone in arbitration if the employment contract so provides. The Federal Arbitration Act “savings clause” will not defeat contractual arbitration provisions in most realistically imaginable disputes. The Epic teaching is clear: Federal courts must enforce contractual arbitration provisions as written. The exceptions are few and diminishing—perhaps limited to the rare express Congressional preclusions of arbitration. The Epic court was divided 5-4. The dissent was vigorous, and persuasive. Yet, the rule of law is clear—no group claim resolution actions will be permitted when the contract requires one-on-one arbitration. End of story. Beyond employment contracts, Epic heartily embraces a broad-perhaps essentially boundless-interpretation of the Federal Arbitration Acts’ requirement to arbitrate. The Epic Rule: Congress instructs federal courts to enforce arbitration agreements according to their terms, and the FAA’s “savings clause” offers little, if any, basis for defeating contractual arbitration. Federal courts may never allow “contract defenses to reshape traditional individualized arbitration” unless the contracting parties agree. According to Epic, this restrictive reading of the “savings clause” is the “essential insight” of AT&T Mobley LL v. Concepcion, 563 U.S. 333 (2011). The Epic dissent urged that the majority forgot the labor market imbalance that gave rise to the National Labor Relations Act and ignored the destructive consequences of diminishing employees’ right to band together when confronting its employer. An argument more masterful than the dissent’s is unlikely. As the dissent’s argument was also futile, an employee who has signed an agreement providing for one-on-one arbitration should understand that his or her right to class action is waived. The employees’ recourse, if any, is to Congress rather than the Court. The dissent urged a dramatically different position: Class action “waivers” it argued are unfair labor practices and are legally unenforceable. The dissenters challenged the existence of an agreement, noting that the arbitration provisions were emailed to employees with the requirement that the employees sign as a condition of their further employment. The glaring contrast in the overall approach to this issue between the opinion of the Court and the dissent underscores the challenge “neutrals” so often face. Neither the Epic majority nor the dissent are appropriately described as “biased.” Yet, they certainly do not think alike. To the contrary, the chasm separating them is greater than the result reached in this case. It is fair to describe their separate writing in Epic as “advocacy.” A “neutral”—for example, an arbitrator deciding a one-on-one employee breach of a fair wage claim—may well shoulder a heavier burden than do Supreme Court Justices. A neutral—unlike a judge—should wrestle with his or her every predisposition before even agreeing to serve as an arbitrator. A true neutral should never be as outcome predictable as are many judges. Acceptable predispositions in a judge performing his or her official duties may well be a disqualifying bias in a neutral.

Constructively Addressing the Instability of the Individual Health Insurance Market

2022-05-23T14:26:28Z

Constructively Addressing the Instability of the Individual Health Insurance Market Jack Urquhart The individual health insurance market requires stabilizing. Without stability, it will continue to deteriorate–premiums will drastically increase, and the number of insurance companies and healthcare providers participating will continue to decrease. The “impossible dream” is a concerted, non-partisan, and constructive approach to fulfilling the promise of the individual health insurance market by improving its stability. The individual health insurance market offers a realistic means for individuals, the self-employed and small businesses to obtain decent insurance coverage without unreasonable premiums. This market is vital to rebuilding the “middle class.” Difficult as it is to address the individual health insurance market without casting partisan blame, this is the path–the only path–to stabilizing these markets. It must be done now as 2018 enrollment is fast approaching. Yesterday, Republican Senator Lamar Alexander of Tennessee, chairman of the Senate health committee, reacted uniquely to his party’s decision to pull back a vote on the repeal and replacement of the ACA. Senator Alexander simply announced that his committee would hold public hearings on stabilizing the individual health insurance markets. This is a potentially powerful statement, and one too easily drowned out by partisan anger or gloating. A market place in which private insurance for individuals, the self-employed, and small businesses offers good coverage at affordable premium rates is achievable. To get there, every stakeholder needs to be heard and must be prepared to compromise. As importantly, the effort must be guided by problem-solvers who can rise above obstructive self-interest. Stabilizing the individual health insurance market demands resolution of a few–but thorny–issues. For example, health insurers can not participate meaningfully in a program fraught with partisan uncertainty. Similarly, consumers can not withstand this same uncertainty. A successful program requires broad acceptance. Broad acceptance will never result from fringe ideologues. Many have given up on health care reform, because, before that, they gave up on the government’s ability to govern. This surrender is understandable, but hopefully not entirely accurate. When a politician, like Lamar Alexander, makes a reasonable proposal, we should wish him or her well and jump on the opportunity to meaningfully work on stabilizing the individual health insurance market. The unquestioned need for market stability is too important for us all to leave to the grand-standers in either major party who have no demonstrable ability to concretely resolve real problems, and, instead, focus primarily on advancing their own self-interest. Senator Alexander may be playing us, but his response to “defeat” in a hard fought legislative battle is darn sure better than those grabbing the headlines.

Trumpcare: Can it get more absurd?

2021-07-28T09:22:09Z

Trumpcare: Can it get more absurd? Jack Urquhart With each attempt, Trumpcare becomes more ridiculous. I realize the GOP agenda is guided by their visceral distaste for and repressed envy of President Obama rather than actual policy, but today’s Senate proposal is a real laugher. The bill attempts to placate the oh so ALL-American Cruz-Lee combo by taking even more from the most needy. The GOP figures American’s are way too stupid to realize that driving the most needy to ERs for basic care costs us all money. Guess who pays the bills the less fortunate simply can’t pay? The hospitals? Big Pharma? Insurance companies? Of course not. The big players just pass it on to consumers. And, of course, the GOP could care less about anyone unable or unwilling to make big time political contributions or engage big time lobbyists. Trumpcare dumps the basic care coverage requirements demanded by the ACA. Rips health insurance from millions. Does nothing to stabilize the insurance markets. Guarantees large premium increases for all but the most wealthy. Jeopardizes all with pre-existing conditions. Strips consumers of ACA protections. Rips away the ACA’s commitment to tie healthcare costs to the value of the care provided. Trumpcare has nothing for anyone except those with assets so great they can pay for their healthcare needs out of their pocket change. The bill has no provision whatever to address rising healthcare costs and rising insurance premiums. Its sole benefit to all but the mega-wealthy is repeal of the ACA that the GOP demonizes as a matter of its sacred ideology. The bill replaces the ACA with a patch-work quilt of pork designed to win passage with no regard for America’s real healthcare needs. How bad is Trumpcare? After years of bashing the ACA and bragging about their wonderful plans for healthcare reform, the GOP Senate leadership is in turn threatening and groveling to get the votes to pass it.

Cancer Treatment Advance?

2021-07-28T09:22:09Z

Cancer Treatment Advance? Jack Urquhart Its not that I oppose medical advances–far from it. I am just not a fan of the current drug approval process. The drug industry, the FDA and the healthcare community in general are overly influenced by hype and the chase for the next billion dollar blockbuster drug. If the overblown cancer center advertisements don’t bother you, they should. And why are these “great institutions” spending so many bucks on competitive ads anyway? Are they research centers or commonplace marketing machines? A little of both, I think. The Novartis drug on the fast track to become the first approved “gene therapy” deserves–at this point–both praise and a great deal of skepticism. Patients who take it are guinea pigs. This isn’t criticism. But it is the truth. The Novartis drug–not yet even approved–is heralded as responsible for “scores” of remissions and “possibly cures” of otherwise fatal lymphoblastic leukemia. Cancer is a horrid disease. Cancer treatments are almost always painful, disabling and commonly ineffective. This is no reason to put the brakes on research and innovation. It is a reason no one with a financial interest in a new drug should ever over-promote the drug by making claims that exaggerate even slightly what is actually known about the drug. “Scores”of claimed successes is really just empty hype as are testimonials from a handful of patient’s who improved after using an experimental drug. This anecdotal marketing should be reserved for the latest and greatest supplement that promises a better sex life or your money back and is endorsed by the Adult Film Industry. Serious researchers should never resort to crass marketing. They do, because big, big money is at stake whether or not the drug actually stands the test of time. The drug will be approved based on a study of 63-yes 63-patients. I congratulate Novartis for its work on this promising drug. I ask they tone down the hype as they begin to experiment on human lives on a much larger and longer scale.

Washington v. Trump: What a mess!

2022-05-23T14:26:53Z

Washington v. Trump: What a mess! Jack Edward Urquhart© Today, February 7, 2017, the United States Court of Appeals for the Ninth Circuit heard arguments on whether to overturn a temporary hold on two provisions of Trump’s immigration ban. What a mess! No one should envy the federal courts as they attempt to unscrew the poorly written and implemented Trump Executive Order on Immigration. A President’s power in the arena of foreign policy has few limits. This and this alone, may save his Executive Order. However, Trump’s notion that his power is limitless, and his inattention to significant detail is painfully wrong. Trump did not help his cause by campaigning on a promise to prevent all Muslims from U.S. entry. Trump’s lawyer was forced to concede he had no to evidence to support a single act of terrorism in the U.S. by an immigrant from any of the countries covered by Trump’s ban. When asked whether the order as written applied even to Legal Permanent Residents, the only truthful answer was, yes. Trump has backed away from that position. However, as one member of the court politely suggested, the order should then be revised. The procedural posture of the case is a nightmare. Trump demands an emergency stay to rectify an order he considers outrageous by a Federal Judge he has personally insulted. Trump, of course, offered no evidence that anyone would be irreparably harmed if the lower court’s order stands, and the case follows routine injunction and appellate procedures. The chaos created by Trump’s order and its implementation cannot be questioned. The arguments made by business leaders about the economically harmful results of Trump’s order makes it clear that little thought and planning went into the order. What a mess! The mess has ended up on the desks of overworked Federal Judges. Specifically, Federal Judge James Robart incurred Trump’s wrath when he granted the State of Washington’s motion to partially prevent enforcement of Trump’s orders. Judge Robart temporarily halted the ban on refugees entering the United States through lawful programs, and the entry into the United States by all immigrants from 7 predominantly Muslim countries. Presidential Power The President has almost unlimited power over foreign policy. “Aliens” have almost no U.S. Constitutional protection. Any attempt to limit a Presidential order on foreign policy faces miles of rough road. Trump’s immigration order, however, has run into a storm of resistance. Judge Robart is not alone in concluding that – as hard as it is to do – Trump may well have found a pathway to an unconstitutional Executive Order on foreign policy. Trump’s Appeal Trump expressed his total disdain of both Judge Robart’s ruling and the Judge himself. Trump demanded an “emergency” stay of the order. Earlier, Trump fired the Acting U.S. Attorney General when she too questioned Trump’s immigration order. Trump wants Judge Robart’s order out. The stated reason is Trump’s concern about the threat to U.S. security. He denies the order targets specific nationalities, or the Muslim religion. No immigrant from the 7 countries singled out by Trump has committed an act of terror in the U.S. Trump offered no evidence that immigrants from the 7 countries posed a security risk to the U.S. He did campaign, however, on a promise to ban Muslim immigration all together. And his lawyer was forced to concede that Trump actually made that statement. The State of Washington sought to halt Trump’s order because it violated the Establishment and Equal Protection Clauses of the U.S. Constitution, and caused economic and human harm that cannot be “repaired’ at a later date with monetary damages. Washington has been formally joined by Minnesota, and a growing number of other states are lending specific legal and factual support. Chaos Washington and supporting filings from a broad array of other sources are filled with evidence of the chaos and disruption caused by the order and its inconsistent enforcement. Much of the harm from the chaos is human, and ranges from the merely inconvenient, to the tragic, to the absurd. Surprisingly, the harm extends to injury to businesses, small and large. Ninety-seven well known businesses filed an informative brief describing the immediate and long-term negative impact of Trump’s order. We also know that Trump’s interpretation of his own order has curiously bounced around. For example, Trump now says, contrary to written order that the ban did not apply to legal permanent residents. Business Thoughts – Leaders Ninety-seven leading businesses, including Apple, e-Bay, Facebook, Google, Levi Strauss & Co., and Microsoft, oppose Trump’s ban. These companies agree that Trump’s order “effects a sudden shift in the rules governing entry into the United States,” and is inflicting substantial harm to United States companies – it hinders attracting talent, increases costs, makes it more difficult for firms to compete internationally, and gives global companies a significant incentive to operate outside the United States. These business leaders cautioned that the “march of time” has discredited efforts, like Trump’s, to display intolerance toward immigrants, and Trump’s order will harm attracting talented workers, increase business costs, decrease U.S. companies ability to compete, and invite retaliation, The Result The Ninth Circuit is expected to rule quickly. It has at least a couple of ways to avoid a merit-based decision. It can return the case to the district court. It can find that the states have no standing – or right – to sue. The likelihood of anyone “winning” this long-long-legal slog is unlikely. What a mess! And from a fellow who rode into town promising to drain the swamp.