Take Care  //  3/15/17  //  Daily Update

Last night, a federal judge in Hawaii issued a nationwide temporary restraining order against President Trump's revised entry ban, concluding that it likely violates the Establishment Clause. Hours earlier, the Ninth Circuit Court of Appeals declined to rehear en banc its ruling on Trump's original entry ban, though its decision prompted dueling opinions. In other news, President Trump ordered a review of Obama-era vehicle emissions standards.

We'll start with the biggest story of the past 24 hours:  President Trump's revised entry ban has been blocked on the ground that it is rooted in anti-Muslim prejudice.

IMMIGRATION

U.S. District Court Judge Derrick K. Watson (Hawaii) issued a nationwide temporary restraining order (TRO) yesterday blocking enactment of President Trump’s revised entry ban just before it was set to take effect (NYT) (Washington Post) (WSJ).

o   Here is a copy of Judge Watson’s order.  The complaint can be found here.

o   Judge Watson ruled that both the State of Hawaii and an individual (Dr. Ismael Elshikh) had standing to challenge the entry ban; that their claims were ripe; that they had established a likelihood of success on their Establishment Clause claim; and that all other relevant factors supported a TRO.  The NYT provides highlights.

o   Before the decision, Josh Blackman argued (Lawfare) that the Establishment Clause has not historically “applied with full force to immigration law” and that the revised entry ban should be upheld.

o   Responding to the decision, Eric Posner emphasizes that “Trump’s religious animus is a matter of record.”

o   Additional analysis comes from Lyle Denniston, Religion Clause, and The Hill.

President Trump denounced the ruling, calling it “unprecedented judicial overreach,” and promised to fight it all the way to the Supreme Court.

o   Here is a video of his remarks (NYT).

The 9th Circuit also released an order denying en banc rehearing of the three-judge panel decision in Washington v. Trump, which denied the government’s request to stay a district court’s TRO against President Trump’s original entry ban (Just Security).

o   The order can be found here.  Eugene Volokh has analyzed it (Volokh Conspiracy).

o   Judge Reinhardt concurred in the denial of rehearing en banc: “I am proud to be a part of this court and a judicial system that is independent and courageous, and that vigorously protects the constitutional rights of all, regardless of the source of any efforts to weaken or diminish them.

o   Judge Bybee, joined by four judges, dissented: “We are judges, not Platonic Guardians.  It is our duty to say what the law is, and the meta-source of our law, the U.S. Constitution, commits the power to make foreign policy, including the decisions to permit or forbid entry into the United States, to the President and Congress."

o   Notably, Judge Bybee rebuked President Trump for his criticism of judges: “Such personal attacks treat the court as though it were merely a political forum in which bargaining, compromise, and even intimidation are acceptable principles. The courts of law must be more than that, or we are not governed by law at all.”

Federal judges in Maryland and Washington State also heard argument on whether the revised entry ban should be allowed to take effect; their opinions are pending.

o   U.S. District Court Judge James Robart (Washington) heard argument on a private suit brought by legal immigrants who fear the new order will prolong their separation from family members who are attempting to obtain U.S. visas.  The amended complaint can be found here and the emergency motion for relief can be found here.  David Golove (Just Security) has analyzed whether the Washington State plaintiffs have standing to challenge the entry ban.

o   U.S. District Court Judge Theodore Chuang (Maryland) also heard argument on the entry ban.  The Economist reports that his case focuses on the plight of refugees.  The complaint can be found here; the motion for relief can be found here.

Addressing President Trump’s threat to punish sanctuary cities, Jane Chong (Lawfare) tackles whether he can constitutionally condition federal grants to sanctuary cities on compliance with a single, substantively narrow statutory provision.

DEMOCRACY

The Trump administration is being held accountable through a combination of checks, balances, and leaks, Jack Goldsmith argues in the NYT.

The legality of publishing a president’s tax returns is analyzed by Adam Liptak (NYT)

JUSTICE & SAFETY

Addressing how the government handles encryption, and writing in response to a recent Department of Justice brief contending that the government should not have to disclose the identity of the entity that successfully unlocked the iPhone of the San Bernardino shooter, Susan Landau (Lawfare) points out that the Department of Justice and the FBI weaken their argument for backdoors into encrypted software.

To secure federal networks, the Trump Administration plans to development metrics through which to assess agency compliance with a cyber security program (The Hill)

The possibility that President Trump might expand targeted killings abroad are described and condemned by Hina Shamsi (ACLU)

Attorney General Jeff Sessions’s recent call for aggressive enforcement of drug laws is analyzed by Douglas Berman (Sentencing Law & Policy Blog)

REGULATION

In a sign of further cutbacks on environmental protections, the Trump Administration has begun reviewing Obama-era emissions standards for vehicles (The Hill, Vox, Ars Technica).  Blue-state AGs may swiftly seek to block Trump’s rollback (The Hill).

This post reflects the hard work and diligence of Alexandra Widas and Britany Riley.

And that's our update today!  Thanks for reading.  We cover a lot of ground, so our updates are inevitably a partial selection of relevant legal commentary.  

If you have any feedback, please let us know here.