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Court Challenges to Trump’s Immigration Policies – Where Are They Now?

By Hunter Hallman

Thursday, February 1, 2018

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Once a cornerstone of his presidential campaign, President Trump’s immigration proposals have also taken a central place in his administration. They are also some of his more controversial policy positions and have therefore come under particular scrutiny, including through litigation. As a result of a number of lawsuits filed by state attorneys general, cities, and activist groups, several high-profile court challenges are making their way through federal courts—including the so-called “travel ban,” efforts to take federal funding from sanctuary cities, and the termination of the DACA program and various Temporary Protected Status (TPS) designations. Below is a recap of these cases and where they currently stand.

Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States, or, the “Travel Ban”

After two versions of the president’s executive order temporarily banning citizens of several Muslim-majority countries from entering the United States, and several court challenges and appeals resulting in rulings both for and against the travel ban, the Trump administration has taken their case to the Supreme Court.

In June 2017, the Supreme Court allowed a limited version of the ban was allowed to go into effect, pending full consideration of the case that fall. By December, however, the court had allowed the full revised ban to take effect pending additional rulings by the appeals court. The fully implemented ban listed Syria, Libya, Iran, Yemen, Chad, Somalia, North Korea, and Venezuela as the affected countries. Oral arguments were never made before the court in 2017, due to the ban having been reissued.

Just this month, the Supreme Court agreed to hear the latest challenge to the ban, after the Court of Appeals for the 9thth Circuit upheld the federal district court decision blocking the ban’s rollout. In that case, Hawaii’s state government argues that presidential powers do not extend to banning aliens from the country based on nationality. The administration posits that this argument is a court override on powers granted to the executive and makes the nation less safe. The Supreme Court has agreed to rule on those issues, as well as whether the ban violates the Constitution’s establishment clause by favoring one religion over another. The case will likely be heard in the spring and decided by summer.

Litigation Against the Trump Administration’s Anti-Sanctuary Cities Policies

Various cities have sued the Trump administration over the Department of Justice’s threats to withhold funding from sanctuary cities, or cities that do not comply with federal immigration enforcement. San Francisco and Philadelphia both received injunctions in their favor in November 2017 from federal district courts, with judges in both cases ruling that the Trump administration was in violation of the Constitution in attempting to withhold funds over sanctuary policies. The Justice Department is appealing both rulings.

This month, the city of Chicago made its oral arguments against the administration’s attempt to withhold public grant funding to its jurisdiction through its January 2017 executive order on interior immigration enforcement in yet another federal court. A ruling is anticipated in the next few weeks. It is likely that the Trump administration will take this case all the way to the Supreme Court, in light of the numerous rulings in favor of the cities it is attempting to target—and President Trump himself has tweeted as much. In the meantime, the Justice Department continues to pressure jurisdictions over the issue, recently issuing letters to 23 jurisdictions seeking documents related to immigration enforcement and information sharing, and threatening to issue subpoenas if their request was met with noncompliance.

Litigation Related to the Trump Administration’s Dissolution of the DACA Program

In September 2017, the Trump administration announced its intentions to dissolve the Obama-era policy Deferred Action for Childhood Arrivals, or DACA. On January 9, 2018, a federal judge in San Francisco barred the government doing so anywhere in the United States. As a result, U.S. Citizenship and Immigration Services issued guidance that the agency would again accept renewal applications from DACA recipients whose status expired on or after September 5, 2017.

The administration appealed to the Supreme Court to intervene on its behalf and hear an appeal before the court breaks for summer recess, bypassing the court of appeals. Attorney General Jeff Sessions called the decision to appeal directly to the Supreme Court “a rare step… so that this issue may be resolved quickly and fairly for all the parties involved.” Also known as a “review before judgement,” the court has been known to weigh in ahead of appeals on a small number of cases related to pressing issues including presidential authority. The Supreme Court has agreed to decide on an expedited basis whether to take the case at the administration’s request.

Litigation Related to the Trump Administration’s Termination of Temporary Protected Status for Haitian Immigrants

Lastly, a court case was brought forth in January 2018 by the NAACP over the administration’s decision to rescind TPS from Haitian immigrants in the United States.

TPS is a designation granted by the Secretary of Homeland Security that nationals of a country receive if conditions in that country are deemed dangerous enough to prevent safe return to that country. It is within the power of the administration to rescind the designation when conditions in the country improve. Haiti was granted TPS after a cholera outbreak in 2010 and a hurricane in 2016, which made recovery from the devastating 2010 earthquake more difficult. Pursuant to a decision in December 2017 by the homeland security secretary, Haiti’s designation, and the TPS status of the Haitians, will end in July 2019.

The NAACP’s lawsuit revolves not over whether the president has  authority to revoke TPS, but because of reported comments out of closed-door meetings in which President Trump is alleged to have used disparaging language to describe African and other countries, including Haiti, under TPS designation. The NAACP has called the decision to revoke Haiti’s TPS status “racially motivated,” and has filed suit against DHS over the decision in the U.S. District Court of Maryland, citing news reports on the language used by President Trump. The case has not yet been heard.

Conclusion

Federal courts around the country receive filings on individual immigration cases regularly, and the Supreme Court usually visits a few such cases each year over interpretations of the immigration laws.  However, the high national profile and significance of these cases is that the judiciary is increasingly being asked to navigate between the branches and levels of government over immigration policies on a nationwide basis. These cases have the potential to set far-reaching precedents, and should be watched closely.

KEYWORDS: SUPREME COURT, DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA), SANCTUARY CITIES, PRESIDENT DONALD TRUMP, TEMPORARY PROTECTED STATUS (TPS)