On February 9, 2017 the Federal Court of Appeals directly and unanimously rejected the arguments made by the Trump Administration in favor of its sought travel ban. While the ruling did not specifically hold that the measure itself is wholly unconstitutional (as the decision was based on whether to Stay the Temporary Restraining Order and not the merits of the ban), it made the following important decisions that we believe are troubling results for the Administration to overcome at this time:
• both Washington State and Minnesota State had standing to bring this action;
• the judge did not err in issuing the Temporary Restraining Order;
• despite the Administration’s assertion the President’s authority in National Security matters is absolute insofar as it pertains to visas and entry, it is not;
• the Administration would not be unduly harmed by a Restraining Order – meaning there is no likely harm to the government or its people as the government failed to produce any evidence;
• and perhaps most importantly, that the States had a high likelihood of success on the merits, specifically that the activity limited and intent of the EO was to single out individuals based on a religious ground (that there was a constitutionally protected right).
This decision is a complete rebuke of this failed policy. While the actual decision does not comment on the final issue in front of the courts – “Is this EO ultimately within a President’s Constitutional Authority?” the fact that the TRO was granted and then upheld is a strong signal the courts are not likely to find favor with the EO, as drafted, after a complete review.
On behalf of our clients we ask the President to rescind this EO and allow the continued flow of legal immigration. During the next 90 days he can conduct whatever internal policy review he sees fit and we support any effort to truly make us safer while maintaining our standing in the world.
Given this latest decision the Federal Department of Justice is reviewing its options while the President has vowed to fight the ruling. We know our clients value stability and a clear understanding of whether they can travel without concern, so for this reason we are hopeful this litigation will cease. It is a waste of taxpayer resources and there is no value in appealing to the Supreme Court. Please know that there are additional reports that government lawyers are working on a re-draft of the EO as an additional option, and perhaps a potential alternative to further litigation. It is important to understand that there may be other options for the President to issue an EO that will more narrowly focus his power, and thus perhaps be enforceable.
Our advice to clients remains the same as earlier this week, and is as follows:
1 – currently all consulates and borders are operating under business as usual and all visas as issued are valid (if a visa was cancelled behind the scenes it should have been reissued, and if a problem still exists CBP can remedy at the port of entry) – so everyone should be able to travel as they have before;
2 – we have heard of reports of CBP officers refusing entry to people or giving them a difficult time, and reviewing documents on their computers/phones and social media accounts. CBP has publicly confirmed its ability to review these items. Based on reports we expect that they are looking for Anti-American or Anti-Trump sentiment which is included in the EO which is currently restrained. While we don’t wish to stifle free expression we want people to be aware of this tactic should an individual be subjected to lengthy questioning, and we encourage the report of such questions to counsel, to the ACLU and to the public;
3 – this is a dynamic situation – meaning until we get word that the Administration has dropped this entirely, pay attention to this issue and if you are worried about travelling internationally then consider postponing non-essential travel. At this point our only direct legal concern is people from the 7 listed countries who hold nonimmigrant status – we otherwise expect permanent residents and dual nationals would not be listed in any future EO should the President try to sidestep this court process by issuing another modified EO;
Finally – should any firm client be travelling and wish a contact available should they run into issues, please email our office at firstname.lastname@example.org and provide flight info and time/date and contact information – we will ensure an attorney is available if needed.
** This newsletter/memo is provided for informational and discussion purposes only. It does not act as a substitute for direct legal contact on an individual basis **