Border Security and Immigration

Most of the Trump administration’s disagreements over protecting undocumented immigrants have been with local governments. But on March 6 the Trump administration filed a complaint against the State of California. The administration claims three California statutes aimed at protecting undocumented immigrants are preempted by federal immigration law. The administration asks the court to issue a preliminary injunction disallowing California from enforcing the statutes.

The Supreme Court will not be involved in the DACA litigation—for now.  

The Supreme Court denied the Trump administration’s request for it to review a California federal district court decision temporarily putting the administration’s decision to terminate DACA on hold. To get relief, the Trump administration must now appeal the district court decision to the Ninth Circuit. The Trump administration had asked the Supreme Court to get involved in this case before the Ninth Circuit had a chance to rule. The Supreme Court does not usually rule on federal district court decisions.

While the Supreme Court has agreed to review the constitutionality and legality of the third travel ban, the Fourth Circuit has joined the Ninth Circuit in striking it down. The Fourth Circuit concluded it likely violates the Establishment Clause because its primary purpose is to discriminate against Muslims.

Per a December 2017 Supreme Court order, the third travel ban is currently in effect regardless of the Ninth and Fourth Circuit rulings.    

On September 24, 2017, President Trump issued a presidential proclamation (the third travel ban) indefinitely banning immigration from six countries:  Chad, Iran, Libya, North Korea, Syria, and Yemen. Lawsuits were brought immediately in the Ninth and Fourth Circuits.

Just a few days before the Supreme Court may decide whether to review a temporary nationwide injunction issued by a federal court in California requiring the Trump administration to maintain much of the Deferred Action for Childhood Arrivals (DACA) program, a federal district court in New York issued a similar temporary nationwide injunction.

The courts’ reasoning in both decisions is similar. Both courts were clear the Trump administration may “indisputably . . . end the DACA program.” But it must offer “legally adequate reasons” for doing so.  New York and 15 other states brought the case decided by the New York court.    

In Trump v. Hawaii the Ninth Circuit temporarily struck down President Trump’s third travel ban. The Supreme Court has agreed to review the Ninth Circuit decision.

An opinion in this case should be issued no later than the end of June 2018. Per a Supreme Court order issued in December 2017, the third travel ban is currently in effect regardless of the Ninth Circuit ruling.    

The Court has agreed to decide four issues. First, whether the case is justiciable, meaning whether the legal issues are “fit for review.” Second, whether the third travel ban exceeds the President’s authority under the Immigration and Nationality Act (INA). Third, whether the Ninth Circuit nationwide injunction was overbroad. Fourth, whether the travel ban violates the Establishment Clause.

A federal district court has issued a temporary nationwide injunction requiring the Trump administration to maintain much of the Deferred Action for Childhood Arrivals (DACA) program. Four states (California, Maine, Maryland, and Minnesota) and two local governments (San Jose and Santa Clara County) are among the plaintiffs who sued the Department of Homeland Security (DHS).

DACA was established through a DHS Memorandum during the Obama presidency. The program allows undocumented persons who arrived in the United States before age 16 and have lived here since June 15, 2007, to stay, work, and go to school in the United States without facing the risk of deportation for two years with renewals available.

DHS rescinded DACA on September 5, 2017, after receiving a letter from the Attorney General stating the program was unconstitutional and created “without proper statutory authority.”

The Ninth Circuit opinion temporarily striking down President Trump’s third travel ban was met with little fanfare likely for two reasons. The decision came down right before Christmas (December 22). And in early December the Supreme Court allowed the third travel ban to go into effect until the Supreme Court rules on it, even if the Ninth Circuit (or Fourth Circuit) were to strike it down in the meantime.   

The Supreme Court has allowed the third travel ban to go into effect at least temporarily while two federal circuit courts of appeals review decisions from lower courts temporarily blocking enforcement of the travel ban. Even if the government loses before the appeals courts the travel ban will remain in effect until the Supreme Court rules on it or refuses to rule on it (unless the government doesn’t appeal to the Supreme Court).

The president’s second travel ban prevented people from six predominately Muslim countries from entering the United States for 90 days. In June the Supreme Court temporarily prevented it from going into effect against those with a “bona fide relationship with a person or entity in the United State” until the Court could hear the case on the merits in early October.

In April a federal district court issued a nationwide preliminary injunction preventing the Trump administration from enforcing the sanctuary jurisdictions portion of the Enhancing Public Safety in the Interior of the United States executive order (EO). The same court has made that injunction permanent. 

Section 9 of the EO says that jurisdictions that refuse to comply with 8 U.S.C. 1373 are ineligible to receive federal grants. On its face Section 1373 prohibits local governments from restricting employee communication of immigration status information to Immigration and Customs Enforcement (ICE).

Congress created the Edward Byrne Justice Assistance Grants (Byrne JAG) in 2005 to provide “flexible” funding for state and local police departments. In April 2017 the Department of Justice (DOJ) required Philadelphia (and eight other jurisdictions) to provide documentation that it complies with 8 U.S.C. 1373, which prohibits states and local governments from restricting employees from sharing immigration status information with federal immigration officials.

Philadelphia sued Attorney General Jeff Sessions arguing that the City complies with 8 U.S.C. 1373. A federal district court in Philadelphia agreed and issued a preliminary injunction preventing Sessions from denying the City Byrne JAG grant funding.

Among other things, Sessions objected to a Philadelphia policy of not responding to Immigration and Customs Enforcement (ICE) civil immigration detainer requests asking the City to hold an arrested, undocumented person until ICE can pick them up, unless the request is accompanied by a judicial warrant.