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Title: Trump Illegal Alien Executive Orders - Follow the Litigation Bouncing Ball
Source: SCOTUS, 9th Circuit, and DC Hawaii
URL Source: [None]
Published: Sep 11, 2017
Author: nolu chan
Post Date: 2017-09-11 22:20:17 by nolu chan
Keywords: None
Views: 2633
Comments: 17

Trump Illegal Alien Executive Orders - Follow the Litigation Bouncing Ball

nolu chan
September 11, 2017

Today, the Trump Administration filed an Application with SCOTUS for a Stay of a recent 9th Circus opinion which upheld a District Court of Hawaii opinion. Today's application for a stay asserted of the 9th Circus, "Despite this Court’s rulings, last Thursday the Ninth Circuit affirmed the entire modified injunction. The court of appeals did not even attempt to reconcile its decision with this Court’s July 19 Order. Instead, the court of appeals deferred to the district court’s interpretation of this Court’s June 26 stay ruling."

In short order, today Justice Anthony Kennedy issued an Order stating, "IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case No. 17-16426, is hereby stayed with respect to refugees covered by a formal assurance, pending receipt of a response, due on or before Tuesday, September 12, 2017, by 12 p.m., and further order of the undersigned or of the Court. "

That is harsh, requiring a response by noon tomorrow. It may be that Justice Kennedy is not amused by the antics of the 9th Circus upholding the District of Hawaii on the basis of the District interpretation of the U.S. Supreme Court's interpretation.

http://law.justia.com/cases/federal/district-courts/hawaii/hidce/1:2017cv00050/132721/270/

Hawaii v. Trump, DCHI 17-cv-00050 (29 Mar 2017)

ORDER GRANTING MOTION TO CONVERT TEMPORARY RESTRAINING ORDER TO A PRELIMINARY INJUNCTION

On March 15, 2017, the Court temporarily enjoined Sections 2 and 6 of Executive Order No. 13,780, entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States,” 82 Fed. Reg. 13209 (Mar. 6, 2017). See Order Granting Mot. for TRO, ECF No. 219 [hereinafter TRO]. Plaintiffs State of Hawai‘i and Ismail Elshikh, Ph.D., now move to convert the TRO to a preliminary injunction. See Pls.’ Mot. to Convert TRO to Prelim. Inj., ECF No. 238 [hereinafter Motion].

Upon consideration of the parties’ submissions, and following a hearing on March 29, 2017, the Court concludes that, on the record before it, Plaintiffs have met their burden of establishing a strong likelihood of success on the merits of their Establishment Clause claim, that irreparable injury is likely if the requested relief is not issued, and that the balance of the equities and public interest counsel in favor of granting the requested relief. Accordingly, Plaintiffs’ Motion (ECF No. 238) is

GRANTED.

https://www.supremecourt.gov/opinions/16pdf/16-1436_l6hc.pdf

Trump v. Intl Refugee Assistance Project, et al, (16436), (16A1190); Trump v. Hawaii, et al, (16-1540) (16-A1191), S. Ct. 582 U.S. ____ (26 June 2017), per curiam,

These cases involve challenges to Executive Order No. 13780, Protecting the Nation From Foreign TerroristEntry Into the United States. The order alters practicesconcerning the entry of foreign nationals into the United States by, among other things, suspending entry of na­tionals from six designated countries for 90 days. Re­spondents challenged the order in two separate lawsuits.They obtained preliminary injunctions barring enforce­ment of several of its provisions, including the 90-day suspension of entry. The injunctions were upheld in largemeasure by the Courts of Appeals.

The Government filed separate petitions for certiorari,as well as applications to stay the preliminary injunctions entered by the lower courts. We grant the petitions for certiorari and grant the stay applications in part.

http://cases.justia.com/federal/district-courts/hawaii/hidce/1:2017cv00050/132721/322/0.pdf

Hawaii v. Trump, DCHI 17-cv-00050 (6 July 2017)

ORDER DENYING PLAINTIFFS’ EMERGENCY MOTION TO CLARIFY SCOPE OF PRELIMINARY INJUNCTION

http://cdn.ca9.uscourts.gov/datastore/uploads/general/cases_of_interest/17-15589%20per%20curiam%20opinion.pdf

Hawaii v. Trump, 17-16426 (9th Cir., 7 Sept. 2017), per curiam,

"enjoins the Government from enforcing Executive Order 13789 against (1) grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and (2) refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program (“USRAP”) through the Lautenberg Amendment.

For the reasons that follow, we conclude that in modifying the preliminary injunction to preserve the status quo, the district court carefully and correctly balanced the hardships and the equitable considerations as directed by the Supreme Court in Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2088 (2017), and did not abuse its discretion. We affirm.

http://www.scotusblog.com/wp-content/uploads/2017/09/17A275-Trump-v.-Hawaii-App.-Stay-1.pdf

Trump v. Hawaii, S. Ct. 16-1540, APPLICATION FOR A STAY of the Mandate of the United States Court of Appeals for the Ninth Circuit Affirming the Modified Prelminary Injunction (11 Sept. 2017)

More than two months ago, on June 26, 2017, this Court granted certiorari to review two nationwide preliminary injunctions barring enforcement of Executive Order 13,780, 82 Fed. Reg. 13,209 (Mar. 9, 2017) (Order). Only the injunction in this case barred enforcement of the refugee restrictions in Section 6(a) and (b) of the Order. As relevant here, the Court partially stayed that injunction to allow the Order’s refugee provisions to “take effect,” except as applied to refugees who have a bona fide “relationship with” a U.S. individual or entity. Trump v. International Refugee Assistance Project, 137 S. Ct. 2080, 2089 (2017) (per curiam) (IRAP). Several weeks later, when the district court in this case modified its injunction and severely undermined this Court’s stay as to the refugee provisions, the Court again intervened and unanimously granted a second stay. 16-1540 Order (July 19, 2017) (July 19 Order). In so doing, the Court necessarily determined that the government was likely to succeed in challenging the modification of the injunction with respect to refugees. See Nken v. Holder, 556 U.S. 418, 434-435 (2009).

Despite this Court’s rulings, last Thursday the Ninth Circuit affirmed the entire modified injunction. The court of appeals did not even attempt to reconcile its decision with this Court’s July 19 Order. Instead, the court of appeals deferred to the district court’s interpretation of this Court’s June 26 stay ruling. The Ninth Circuit thus upheld the district court’s determination that a refugee is exempt from the Order if a U.S. resettlement agency has made a promise to the federal government (known as an “assurance,” Addendum (Add.) 25) to provide services to the refugee when the refugee arrives in this country, notwithstanding that such agencies typically do not have any pre-arrival contact with the refugee himself. That conclusion effectively reads out of this Court’s June 26 stay ruling its requirement that the refugee have a “relationship with” a U.S. entity, IRAP, 137 S. Ct. at 2089, and it requires the admission of refugees who have no connection to the United States independent of the refugee-admission process itself.

http://www.scotusblog.com/wp-content/uploads/2017/09/17A275-Trump-v.-Hawaii-Temp-Stay-Resp-Order-9-11-17.pdf

Supreme Court of the United States

No. 17A275

DONALD J. TRUMP, PRESIDENT OF THE UNITED STATES, ET AL.,
Applicants
v.
HAWAII, ET AL.

O R D E R

UPON CONSIDERATION of the application of counsel for the applicants,

IT IS ORDERED that the mandate of the United States Court of Appeals for the Ninth Circuit, case No. 17-16426, is hereby stayed with respect to refugees covered by a formal assurance, pending receipt of a response, due on or before Tuesday, September 12, 2017, by 12 p.m., and further order of the undersigned or of the Court.

/s/ Anthony M. Kennedy
Associate Justice of the Supreme
Court of the United States

Dated this 11th
day of September, 2017.

... To be continued.

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Begin Trace Mode for Comment # 6.

#1. To: nolu chan (#0)

That is harsh, requiring a response by noon tomorrow. It may be that Justice Kennedy is not amused by the antics of the 9th Circus upholding the District of Hawaii on the basis of the District interpretation of the U.S. Supreme Court's interpretation.

Actually, it's months overdue. What took him so long?

I'd prefer that Texas and the other dozen states had moved ahead to have DACA stricken down. It was a mistake to let Trump give himself another six months extension on 0bama's unconstitutional power grab. And in 6 months, he'll almost certainly extend it again. So he'll end up being just as big a scofflaw as 0bama was.

Tooconservative  posted on  2017-09-11   22:59:07 ET  Reply   Untrace   Trace   Private Reply  


#2. To: Tooconservative (#1)

It was a mistake to let Trump give himself another six months extension on 0bama's unconstitutional power grab. And in 6 months, he'll almost certainly extend it again. So he'll end up being just as big a scofflaw as 0bama was.

Power grab? Trump is actually attempting to realign US Constitutional objectives stripped away from Presidential Orders.

buckeroo  posted on  2017-09-11   23:26:15 ET  Reply   Untrace   Trace   Private Reply  


#5. To: buckeroo (#2) (Edited)

Trump is actually attempting to realign US Constitutional objectives stripped away from Presidential Orders.

Actually, DACA does not involve a presidential order. It was implemented by a DHS Memorandum signed by Janet Napolitano.

nolu chan  posted on  2017-09-12   1:00:06 ET  Reply   Untrace   Trace   Private Reply  


#6. To: nolu chan (#5)

Didn't 0bama issue an executive memorandum telling Napolitano to implement DACA?

I don't see anything in Napolitano's memo that authorizes SS to issue SS numbers to these illegals. Or to issue work permits. Or to collect the self-funding DACA application fee (around $500). Or anything about a 2-year renewal of the DACA work/school permit, etc.

There is a lot more to DACA implementation than just this one memo from Napolitano.

We hear of DACA being implemented by executive order. This is an order to a cabinet official or agency to implement a particular policy and the onus falls on the president and a cabinet official or agency head who defies an executive order can expect to be fired for insubordination to the president. There are also executive memos, which are more like an authorization by the president for a cabinet official or agency to implement a policy but which does not directly order them to take that action. Then there is the rather vague "executive action" which seems like a very ver gray area of presidential power.

I think DACA was in the realm of "executive action" across a number of agencies. ICE, DHS, SSA and others were affected by this.

I kinda hate even mentioning this since it drags us further off-topic but the question does arise when you understand that 0bama never did issue an executive order in June 2012 to authorize DACA. You can find no end of articles telling us that he did so but no matching DACA EO in the Federal Register. The Federal Register only records executive orders, not executive memos or "executive actions".

Tooconservative  posted on  2017-09-12   7:59:29 ET  Reply   Untrace   Trace   Private Reply  


Replies to Comment # 6.

#9. To: Tooconservative (#6)

Here are some links that may be useful for searching:

https://www.uscis.gov/archive/2014-executive-actions-immigration

https://www.whitehouse.gov/briefing-room/presidential-actions/executive-orders

http://www.presidency.ucsb.edu/executive_orders.php?year=2017&Submit=DISPLAY

Didn't 0bama issue an executive memorandum telling Napolitano to implement DACA?

Not that I know of. He made an announcement in the Rose Garden informing the press of the implementing memorandum issued by Janet Napolitano.

We hear of DACA being implemented by executive order.

We sure do. We also hear of DREAMERs and the DREAM Act. There is not, and never has been, a DREAM Act. On three seperate occasions, a DREAM bill failed in Congress and never became an Act. Technically, DACA is Napolitano's Homeland Security effort. As you have pointed out, finding an actual authorization for many Obama Administration actions is a challenge.

I think DACA was in the realm of "executive action" across a number of agencies.

It just depends on how generically the term executive action is used. DACA is most definitely a policy of the Executive branch. At its core, that is all that DACA is — a policy statement. A memo from the Secretary of Homeland Security is an executive action. That is quite distinct from a Presidential Executive Order, or Presidential Executive Memorandum or Presidential Proclamation.

Consider the DHS implementing memo,

This memorandum confers no substantive right, immigration status or pathway to citizenship. Only the Congress, acting through its legislative authority, can confer these rights. It remains for the executive branch, however, to set forth policy for the exercise of discretion within the framework of the existing law. I have done so here.

It is all smoke and mirrors.

I kinda hate even mentioning this since it drags us further off-topic but the question does arise when you understand that 0bama never did issue an executive order in June 2012 to authorize DACA. You can find no end of articles telling us that he did so but no matching DACA EO in the Federal Register. The Federal Register only records executive orders, not executive memos or "executive actions".

I provided a link, above, where you can find Presidential Executive Orders, Presidential Memoranda, and Presidential Proclamations easier than mucking about in the Federal Register.

There is no Presidential Executive Order for DACA. It really was a policy statement of the Department of Homeland Security.

nolu chan  posted on  2017-09-12 16:09:04 ET  Reply   Untrace   Trace   Private Reply  


End Trace Mode for Comment # 6.

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