Category Archives: Litigation in the News

Understanding and preserving sanctuary cities in the age of Trump

From the abstract of Understanding ‘Sanctuary Cities,’ Boston College Law Review, Forthcoming, by Christopher Lasch et al:

This Article is a collaborative project authored by law professors specializing in the intersection between immigration and criminal law. In it, we set forth the central features of the Trump administration’s mass deportation plans and his recently-announced campaign to “crack down” on “sanctuary cities.” We then outline the diverse ways in which localities have sought to protect their residents from deportation by refusing to participate in the Trump immigration agenda. Such initiatives include limiting compliance with immigration detainers, precluding participation in joint operations with the federal government, and preventing immigration agents from accessing local jails. Finally, we analyze the legal and policy justifications for sanctuary that local jurisdictions have advanced with increasing intensity since Trump’s election. These insights have important implications for how sanctuary cities are understood and preserved in the age of Trump.

As a complement to this Article, we have created a public online library of sanctuary policies that includes all the policies cited here and many more we considered in our research.

— Joe

Trump’s tweets in court

Three Washington Post stories cover judicial notice of President Trump’s tweets on topics litigated in court: sanctuary cities, travel ban and transgender military ban cases. — Joe

DC court blocks transgender ban in military [Text of Ruling]

A federal judge issued an injunction Monday against President Donald Trump’s ban against transgender people serving in the military. The Court’s order blocks the ban as it pertains to current service members and the recruitment of a transgender individuals, but it keeps in place the president’s prohibition on coverage for sexual-reassignment surgery. Here’s the text of the ruling. — Joe

Read the charges against Paul Manafort

Manafort, the president’s former campaign chairman, and his longtime associate Rick Gates, surrendered to the FBI on Monday. The special counsel, Robert S. Mueller III, said Manafort laundered more than $18 million to buy properties and services. Read the charges here. — Joe

CRS report: Overview of “Travel Ban” Litigation and Recent Developments

From Overview of “Travel Ban” Litigation and Recent Developments (Oct. 23, 2017 LSB10017):

This Sidebar provides an overview of the series of three executive actions (the first two taking the form of executive orders, and the third issued as a presidential proclamation) commonly referred to as the “Travel Ban,” which restrict the entry of specified categories of non-U.S. nationals (aliens) into the United States, and the litigation related to those executive actions.

To date, none of the three iterations of the Travel Ban has fully gone into effect as a result of court orders limiting their implementation. The most recent version of the Travel Ban did not alter an earlier version’s 120-day pause on refugee admissions into the United States (currently set to expire on October 24). However, the newest iteration modified the scope and duration of travel restrictions on foreign nationals from five countries covered by earlier versions of the Travel Ban (Iran, Libya, Somalia, Syria, and Yemen) and imposed new travel restrictions on certain aliens from three additional countries (Chad, North Korea, and Venezuela).

For background see Overview of the Federal Government’s Power to Exclude Aliens (Sept. 27, 2017 R44969). — Joe

CRS Report: Congressional Redistricting Law: Background and Recent Court Rulings

Following up on LLB’s SCOTUS tackles constitutionality of partisan gerrymandering, here’s a snip from the summary for Redistricting Law: Background and Recent Court Rulings (March 23, 2017 R44798):

In addition to various state processes, the legal framework for congressional redistricting involves constitutional and federal statutory requirements. Interpreting these requirements, in a series of cases and evolving jurisprudence, the U.S. Supreme Court has issued rulings that have significantly shaped how congressional districts are drawn and the degree to which challenges to redistricting plans may succeed. As the 2020 round of redistricting approaches, foundational and recent rulings by the Court regarding redistricting are likely to be of particular interest to Congress. This report analyzes key Supreme Court and lower court redistricting decisions addressing four general topics: (1) the constitutional requirement of population equality among districts; (2) the intersection between the Voting Rights Act and the Equal Protection Clause; (3) the justiciability of partisan gerrymandering; and (4) the constitutionality of state ballot initiatives providing for redistricting by independent commissions.

— Joe

CRS Report: Overview of the Federal Government’s Power to Exclude Aliens

From the summary of Overview of the Federal Government’s Power to Exclude Aliens (Sept. 27, 2017 R 44969):

The Supreme Court has determined that inherent principles of sovereignty give Congress “plenary power” to regulate immigration. The core of this power—the part that has proven most impervious to judicial review—is the authority to determine which aliens may enter the country and under what conditions. The Court has determined that the executive branch, by extension, has broad authority to enforce laws concerning alien entry mostly free from judicial oversight. Two principles frame the scope of the political branches’ power to exclude aliens. First, nonresident aliens abroad cannot challenge exclusion decisions because they do not have constitutional or statutory rights with respect to entry. Second, even when the exclusion of a nonresident alien burdens the constitutional rights of a U.S. citizen, the government need only articulate a “facially legitimate and bona fide” justification to prevail against the citizen’s constitutional challenge.

The merits of these so-called “Travel Ban” cases raise significant questions about the extent to which the rights of U.S. citizens limit the executive power to exclude aliens. It seems relatively clear that, under existing jurisprudence, the “facially legitimate and bona fide” standard should govern the Establishment Clause claims against the revised executive order. However, Supreme Court precedent does not clarify whether that standard contains an exception that might permit courts to test the government’s proffered justification for an exclusion by examining the underlying facts in particular circumstances. Nor does Supreme Court precedent resolve whether the standard governs U.S. citizens’ statutory claims against executive exercise of the exclusion power, or even whether such statutory claims are cognizable. The outcome of the Travel Ban cases would likely turn upon these issues, if the Supreme Court were to decide the cases on the merits rather than on a threshold question such as mootness (a key issue in light of a presidential proclamation modifying the entry restrictions at issue in the cases).

— Joe

SCOTUS tackles constitutionality of partisan gerrymandering

Yesterday, the Supreme Court heard oral arguments in Gill v. Whitford. Here’s the transcript. See also Amy Howe’s Argument analysis: Cautious optimism for challengers in Wisconsin redistricting case? on SCOTUSblog and Professor Ruthann Robson’s SCOTUS Hears Arguments on Constitutionality of Partisan Gerrymandering on Constitutional Law Prof Blog. — Joe

Public Knowledge files amicus brief in ASTM v. Public Resource

From the press release:

Public Knowledge filed an amicus curiae brief in the case ASTM v. Public Resource. The case concerns Public Resource’s copying of model building codes and educational testing codes, which had been enacted into federal law and regulations. The standards organizations sued Public Resource for copyright infringement based on the copying of those legally-enforceable codes. The case is currently on appeal before the U.S. Court of Appeals for the District of Columbia Circuit. The case is expected to be argued next year.

The amicus brief, filed on behalf of a coalition of 62 organizations, companies, former government officials, librarians, innovators, and professors of law, asks the appeals court to permit Public Resource’s copying of the text of model codes enacted into law and not find it to be a copyright infringement.

Text of amicus curiae brief. Text of complaint in ASTM v. Public Resource.

H/T to beSpacific. — Joe

Sixth Circuit holds against University of Cincinnati in Title IX case

The Sixth Circuit Court of Appeals decided the case of John Doe v. University of Cincinnati (16-4693) today.  The case concerns whether a preliminary injunction against a penalty of suspension imposed in a Title IX case should be upheld.  The Court agreed with Doe that his due process rights were violated as he had no way to cross examine the accuser in his case.  The Court notes that educational institutions are not in the judicial business, meaning that their hearings do not have to model trials and their rules of procedure.  Nonetheless, they have to provide a level of due process to the accused.  The fact that the University failed “to provide any form of confrontation of the accuser made the proceeding against John Doe fundamentally unfair.”

The process the University subscribes to in its administrative hearings for Title IX violations allows for accuser and accused to submit written questions which the administrative committee would review and ask each of the parties.  This did not happen in this hearing because the accuser, Jane Roe, did not attend the hearing.  University rules did not, in fact, require any of the parties to attend.  The panel made its decision on the basis of the written statements each party submitted, the Title IX Officer’s report, and statements Doe made in his defense at the hearing.  They decided to impose a two year suspension that was later reduced to one year on administrative appeal.

Doe took his case to the District Court which found in his favor.  The University could only decide based on the submissions from each party, basically one’s word against another.  The Court stated that cross examination was “essential” to due process in these circumstances.  The District Court also noted that the University’s code allowed for notarized statements from the accuser.  Roe’s statements were not notarized and the Court said that this significant departure from the institution’s own procedures could also amount to a violation of due process.

The University appealed to the Sixth Circuit which agreed with the District Court and upheld the preliminary injunction against suspension.  The Court largely agreed with the District Court’s reasoning.  The Court of Appeals set out the required process:

While the exact outlines of process may vary, universities must “at least” provide notice of the charges, an explanation of the evidence against the student, and an opportunity to present his side of the story before an unbiased decision maker. Id. (citing Heyne v. Metro. Nashville Pub. Sch., 655 F.3d 556, 565–66 (6th Cir. 2011)).

Both parties agreed that Doe’s property interest (not being suspended) is significant.  The Court said that the right to cross examine in one form or another is required by due process in the most serious of cases and the accusation of sexual misconduct is one of these cases.

Given the parties’ competing claims, and the lack of corroborative evidence to support or refute Roe’s allegations, the present case left the ARC panel with “a choice between believing an accuser and an accused.” Flaim, 418 F.3d at 641. Yet, the panel resolved this “problem of credibility” without assessing Roe’s credibility. Id. (citation omitted). In fact, it decided plaintiff’s fate without seeing or hearing from Roe at all. That is disturbing and, in this case, a denial of due process.

The Court held that the cross examination need not take the form of direct confrontation.  The question and answer format identified in the University Rules would work as would other variations such as appearances via Skype.  At the very least, the accuser will have to participate somewhat more actively in the hearing.

I wrote a book review recently of Laura Kipnis’ book, Unwanted Advances:  Sexual Paranoia Come to Campus, which is about this very issue.  Professor Kipnis highlighted some of the more egregious violations of due process in the book’s stories.  It’s well worth reading in light of this decision.

Mark

California files a federal lawsuit to block Trump’s wall along the Mexico border [text of complaint]

Yesterday California Atty. Gen. Xavier Becerra filed a Complaint for Declaratory and Injunctive Relief [text of complaint][press release] on behalf of the state that will challenge President Trump’s proposal to build a wall at the U.S.-Mexico border. The lawsuit, which includes the California Coastal Commission as a plaintiff, states its purpose:

The People bring this action to protect the State of California’s residents, natural resources, economic interests, procedural rights, and sovereignty from violations of the United States Constitution, the National Environmental Policy Act and the Administrative Procedure Act occurring as a result of the actions of the United States of America, the United States Department of Homeland Security (“DHS”), former DHS Secretary John Kelly in his official capacity, Acting DHS Secretary Elaine Duke in her official capacity, the United States Customs and Border Protection (“CBP”), and Acting CBP Commissioner Kevin K. McAleenan in his official capacity (together Defendants”), with respect to the planning and construction of a border wall and related border barrier projects along the southern border of the United States, including sigificant projects (“Border Wall” or “Border Wall Projects”).

For background, see Patrick McGreevy and Jazmine Ulloa, California to sue Trump administration over plan for U.S.-Mexico border wall, Los Angeles Times, Sept. 20, 2017. — Joe

New York v. Trump: Text of attorneys general complaint in DACA lawsuit

Democratic attorneys general filed the suit Wednesday in retaliation to the administration’s announcement a day earlier that it would end the program created by former President Barack Obama, unless Congress provided a legislative fix by March 2018. From the text of the complaint for declaratory and injunctive relief:

The States of New York, Massachusetts, Washington, Connecticut, Delaware, District Of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, and Virginia (the “States”) bring this action to protect the States—including their residents, employers, regulatory systems, and educational institutions—against the illegal actions of the President and the federal government.

Ending DACA, whose participants are mostly of Mexican origin, is a culmination of President’s Trump’s oft-stated commitments—whether personally held, stated to appease some portion of his constituency, or some combination thereof—to punish and disparage people with Mexican roots. The consequence of the President’s animus-driven decision is that approximately 800,000 persons who have availed themselves of the program will ultimately lose its protections, and will be exposed to removal when their authorizations expire and they cannot seek renewal.

— Joe

ACLU seeks relief from Trump’s transgender ban [Text of complaint]

In response to a presidential directive banning transgender individuals from military service, the ACLU has filed a complaint for declaratory and injunctive relief on the grounds that the transgender ban violates the constitutional guarantees of equal protection and substantive due process by singling out transgender individuals for unequal and discriminatory treatment. — Joe

Two LGBTQ-rights groups respond to Trump’s transgender ban with lawsuit (Complaint)

The National Center for Lesbian Rights (NCLR) and GLBTQ Legal Advocates & Defenders (GLAD) filed the suit, Doe v. Trump, in response to President Donald Trump’s recent tweets calling for a full ban on transgender people serving in the United States military. The complaint, which can be viewed here, rests on claims of equal protection, due process and estoppel, based on the inequity of the reversal of military policy after thousands of service members followed protocol and informed their chain of command that they are transgender. — Joe

City of Chicago sues DOJ over sanctuary cities conditions (Text of Complaint)

On July 25, 2017, the DOJ announced that it will no longer award criminal justice grants to cities and states that refuse to cooperate with  federal agents in detaining undocumented immigrants. This week, the City of Chicago sued the DOJ over the Department’s new conditions. [Text of Complaint] See Sanctuary jurisdictions will only receive DOJ criminal justice grant funds if cities and states cooperate in detaining undocumented immigrants, LLB, July 27, 2017.

In his Constitutional Law Prof Blog post, Steven D. Schwinn writes “Chicago challenges DOJ-added conditions on the Byrne Justice Assistance Grant program that, it says, exceed DOJ authority, violate federalism principles, and interfere with the City’s long-standing and effective Welcoming Policy, now codified as the Welcoming City Ordinance.” — Joe

Ensuring the President ‘shall take Care that the Laws be faithfully executed’: Update on the emoluments litigation

“Ensuring the President ‘shall take Care that the Laws be faithfully executed'” is the mission of Take Care. Recently, Take Care complied a list of its coverage of all emoluments issues addressed by the bloggers at Take Care. The posts are divided into six topical categories:

  1. History & Theory of Emoluments
  2. CREW Lawsuit
  3. Maryland & DC Lawsuit
  4. Members of Congress Lawsuit
  5. Examples of Corruption & Emoluments
  6. Citizen Activism & Emoluments

Here’s the link. Recommended.

Last Friday,  Citizens for Responsibility & Ethics in Washington (CREW), the plaintiffs in CREW v. Trump, filed their brief opposing President Trump’s motion to dismiss. CREW’s filing explains how the President is violating both of the Emoluments Clauses, and why the plaintiffs’ claims against him must be decided on the merits. Text of the brief and related materials. — Joe

Complaint available in the Fox News Seth Rich lawsuit

Headlines are blaring everywhere about the lawsuit filed by Rod Wheeler against Fox News involving a Fox story, later retracted, about the death of Seth Rich as part of a plan to distract from the Russia investigation involving President Trump.  See Lawsuit Asserts White House Role in Fox News Article on Seth Rich from the New York Times as an example.  If anyone is interested, the complaint in the case is available from the Deadline news site, here. Another source is from Document Cloud. —Mark

Fourth Circuit upholds injunction against President Trump’s travel ban

Here’s the text of the opinion. For an analysis, see this Constitutional Law Prof Blog post. — Joe

A check on Trump’s executive power: 134 lawsuits filed in federal court against Trump since the inauguration

On May 5, 2017, The Boston Globe published a report indicating that President Trump has been sued in federal court 134 times since he was sworn into office. While some suits are frivolous, the plaintiffs in most cases vary from green card holders who were blocked from entering the U.S. as a result of Trump’s travel ban to sanctuary cities that sued after the Trump administration threatened to withhold federal funding. In Trump has been sued 134 times in federal court since inauguration, Boston Globe, May 5, 2017, Matt Viser writes “The dramatic uptick in litigation — Barack Obama faced 26 suits at this point in his first year, while George W. Bush had seven, and Bill Clinton, 15 — is further evidence of the unsettled era ushered in by Trump’s election and the intense fallout stemming from his early executive actions. Court filings may not be as visible as demonstrations on the National Mall, but they ultimately could exert a more lasting check on his executive power.” — Joe

Ousted Cincinnati Law Dean Jennifer Bard sues university, seeks reinstatement

The complaint, filed late last week, asserts the interim provost and the University of Cincinnati illegally placed Jennifer Bard on administrative leave in March immediately following her response to local media reports about financial deficits at the College and faculty members’ responses to her efforts to reduce those deficits. The complaint also asserts Bard was denied due process of law under the Fourteenth Amendment when she was summarily placed on administrative leave, suffered First Amendment retaliation for speaking to the press on matters of public concern, and that the university breached both its contract with her and an agreed upon 6-month plan to restore mutual trust and communication. TaxProf Blog has the complaint.  — Joe