Donald Trump

  • March 16, 2017
    Guest Post

    by Joshua Matz, Publisher of Take Care

    Since Donald J. Trump took office, we have all been drinking from a fire hose trying to keep up with the latest legal news. He has besieged the rule of law in so many ways at once that the American public can barely grasp the latest havoc before Trump causes yet another disaster. We have even had to learn new words—like “emoluments”—to capture all this illegality.

    As a result, the legal left has struggled to keep pace with the president, and there is a pressing need for new resources and institutions to protect our legal order.

    Rising to the occasion, over fifty of the nation’s foremost legal scholars have now joined together to ensure that the president “shall take Care that the Laws be faithfully executed.”  At Take Care (@ShallTakeCare), they will cover the major legal issues of our time, from immigration and healthcare to conflicts of interest, civil rights, free speech and more. Contributors include Larry Tribe, Walter Dellinger, Marty Lederman, Dawn Johnsen, Daniel Tokaji, Douglas NeJaime, Leah Litman and Jamal Greene, among many others. 

    In addition, Take Care has created—and will continue to create—resources useful to lawyers, journalists, policymakers and citizens. To start, it offers a daily update, which pulls together legal analyses of Trump Administration policies from around the web. Take Care also hosts dozens of topic pages, which will evolve into curated archives of first-rate legal commentary. The end result will be a veritable arsenal of progressive ideas and insights.

  • March 13, 2017
    Guest Post

    by Shoba Sivaprasad Wadhia, Samuel Weiss Faculty Scholar & Clinical Professor of Law; Director, Center for Immigrants’ Rights Clinic, Penn State Law

    On March 6, 2017, President Donald Trump issued a “revised” Executive Order titled “Protecting the Nation from Foreign Terrorist Entry in the United States” in an attempt to avoid the catalogue of lawsuits brought against the first. However, the revised EO suffers from the same legal and policy flaws as the first by shutting the door on Muslims and refugees. Every country targeted by the revised EO is comprised of Muslim majority populations: Iran, Libya, Somalia, Sudan, Syria and Yemen. While the revised EO no longer lists “Iraq,” nationals from the country are singled out for special review in another section of the EO. Whether the list of countries is six or seven, Muslims remain the target.

    The revised EO applies specifically to those outside the United States without a valid visa at 5:00 p.m. on Jan. 27, 2017 and on the effective date, which begins one minute after midnight on March 16, 2017. The revised EO makes a few adjustments to the first by carving out exceptions for select people like green card holders, dual nationals and those already granted refugee-related protection. It also creates a waiver process for nationals of the six countries who seek entry during the 90-day ban. Waivers may be issued on a case-by-case basis for those who at a minimum prove that denial of entry would cause “undue hardship,” entry would not pose a threat to national security and entry would be in the “national interest.” How these waivers will be implemented is unknown but the revised EO lists nine scenarios where a waiver may be appropriate like those with previous “significant” contacts,” business, or professional obligations in the United States and those coming to visit a close family member. Despite the long list of examples contained in the EO there is no assurance that people will actually receive waivers or that agencies will be equipped to adjudicate them. The revised EO maintains the 120-day suspension to the refugee program and slash in the total number of refugees by over one-half from 110,000 to 50,000. Exceptions are available on a case-by-case basis for qualifying refugees through a “national interest” formula. Unlike the first EO, the revised version no longer contains an exemption for religious minorities or an indefinite ban on Syrian refugee admissions. Notably, all refugees, including those from Iraq and Syria are affected by the revised EO.

  • March 9, 2017
    Guest Post

    by Rep. Jerrold Nadler

    On Tuesday, Feb. 28, 2017, the House Judiciary Committee, voting along party lines, rejected my Resolution of Inquiry, H.Res. 111 directing the Department of Justice to provide the House of Representatives with any and all information relevant to an inquiry into President Trump and his associates’ conflicts of interest, ethical violations—including the Emoluments Clause—and connections and contacts with Russia. The Resolution of Inquiry, which was reported unfavorably out of the House Judiciary Committee in a party-line vote of 18-16, was the first time Members of Congress had a recorded vote on legislation concerning an investigation of Donald Trump's conflicts and Russia ties.

    Each day, more questions arise concerning President Trump’s foreign business entanglements and his inexplicably cozy relationship with Russia. Each day, Democrats on this Committee, and on other committees, have requested hearings and investigations into these serious issues. And yet, each day, with a few exceptions, we have been met with a deafening silence from our Republican colleagues.

    But my resolution was only a first step to demand accountability from this administration. It must be followed by similar resolutions in other committees. Every day there are new revelations that reveal deeper conflicts. Already, Attorney General Sessions has been forced to recuse himself from any investigation into Russian contacts with the Trump campaign. That recusal does not relieve Congress of its independent obligation to do its job as an independent check on the executive. We must keep up the pressure.

  • March 2, 2017
    Guest Post

    by Catherine Y. Kim, Associate Professor of Law, University of North Carolina School of Law

    Last week DHS issued new guidelines implementing President Trump’s Executive Order on Border Security, announcing a policy of mandatory detention for noncitizens apprehended at the border.

    When a noncitizen arriving at the border is charged with removability, Section 212(d)(5) of the Immigration and Nationality Act grants immigration officials discretion to release her on parole pending the outcome of removal proceedings. For decades, officials considered factors such as the individual’s age, health, family ties in the United States and the hardship that detention would cause, in determining whether detention was warranted. Last year, DHS reported detaining only 352,882 of the 805,071 noncitizens placed in removal proceedings last year.       

    Under the new guidelines, discretionary grants of parole are prohibited unless the Deputy Director of ICE or the Deputy Commissioner of CBP provides written authorization for the individual’s release; individuals who demonstrate a credible fear of persecution for asylum purposes remain eligible for discretionary parole without such written authorization. The guidelines explicitly preclude grants of parole on a categorical basis, for example, to all children, or pregnant women, or individuals over the age of 80. Moreover, they appear to preclude consideration of alternatives to detention, such as electronic monitoring.     

    Last year, DHS apprehended 690,637 noncitizens at or between ports of entry. This figure includes 415,816 individuals, including 59,757 unaccompanied children and 77,857 family units, apprehended by U.S. Border Patrol, plus an additional 274,821 individuals denied entry by U.S. Customs and Border Protection’s Office of Field Operations. Some of these individuals arriving through the southern border may be repatriated immediately to Mexico without a hearing, assuming the Mexican government agrees to accept them. Some will be able to establish a credible fear of persecution and thus become eligible for discretionary parole. Under the new guidelines, however, virtually all other noncitizens apprehended will be detained.

  • March 1, 2017
    Guest Post

    by Lauren A. Khouri, Associate Attorney, Correia and Puth

    This past week, the U.S. Departments of Education and Justice, under the direction of President Trump, withdrew guidance to schools that receive federal funding that Title IX requires transgender students the right to use bathrooms consistent with their gender identity. In withdrawing the guidance on transgender rights, the Trump administration showed neither an understanding of the laws that protect against sex discrimination nor the key role of government in protecting students’ civil rights.

    First and foremost, the Trump administration’s actions do not change the law. Title IX of the Education Amendments of 1972 – like Title VII of the Civil Rights Act of 1964 – has long protected the rights of transgender students to use restrooms and facilities consistent with their gender identity. By its language, Title IX prohibits schools that receive federal funding from discriminating “based on sex.” Over the past two decades, federal courts and agencies have recognized with near unanimity that federal laws prohibiting sex discrimination, including Title IX, prohibit discrimination against transgender persons. For example, the Supreme Court long ago recognized that it is illegal for an employer to deny employment opportunities or permit harassment because a woman does not dress or talk in a feminine manner, because this is discrimination based on sex. Likewise, federal trial and appellate courts have found that it is impossible to consider someone’s gender identity – a person’s innate identification of one’s gender – without considering his or her sex. Indeed, transgender people are defined by the fact that their gender identity does not match the biological sex given to them at birth. Therefore, courts have reasoned, discriminating against someone based on their gender identity is synonymous with sex discrimination prohibited under the law.