//  10/18/17  //  Quick Reactions

Yesterday I wrote about the temporary restraining order the district court in Hawaii issued in the case challenging “EO-3,” the latest set of entry restrictions. Late last night, Judge Chuang (in the District Court of Maryland) issued a preliminary injunction in another case challenging EO-3.

Some quick analysis of the differences in the two opinions:

Bases for Relief

The district court in Hawaii ruled that EO-3 is likely unlawful for two reasons.  First, it exceeds the scope of the President’s authority under 1182(f), an argument that Marty Lederman has explained several times.  And second, because EO-3 violates section 1152, which prohibits discriminating on the basis of nationality in certain immigration decisions.  (All of these determinations were made in the context of a temporary restraining order, so the district court ruled there was some possibility of success on these claims.)

The district court in Maryland agreed that EO-3 likely violates section 1152, the prohibition on discrimination on the basis of nationality.  But it rejected the plaintiffs’ argument that EO-3 exceeds the scope of the President’s authority under 1182(f), as well as the plaintiffs’ argument that the President impermissibly amended the Visa Waiver Program by imposing conditions beyond the conditions imposed by Congress.

The district court in Maryland also held that EO-3 likely violates the Establishment Clause of the Constitution. Its opinion is lengthy (91 pages), but covers, in considerable detail, the vast array of evidence about the purpose and meaning of the order.

Possibility of Vacatur

I speculated last night that the government might try to obtain a vacatur of the Hawaii district court decision on the ground that the district court relied on the Ninth Circuit’s decision in Hawaii v. Trump, which the Supreme Court will likely vacate once that case becomes moot.  (The case challenges the soon-to-expire suspension of the refugee program that was instituted by EO-2.)

That’s not an option for the government in the Maryland case.  Although the Maryland district court pointed to the Ninth Circuit decision, the district court in Maryland isn’t bound by the Ninth Circuit’s decision (a point that’s evident from the district court’s opinion, which rejected the Ninth Circuit’s interpretation of section 1182). The district court merely used the Ninth Circuit decision as persuasive evidence in support of its conclusion about the meaning of section 1152.

And the Supreme Court had already vacated the Fourth Circuit decision on EO-2. To the extent the district court referenced the earlier proceedings regarding EO-2, it did so to give factual/procedural history of the cases.  So the government won’t be able to get an easy do-over on this litigation.

Remedy 

The district court in Maryland also issued a preliminary injunction, whereas the district court in Hawaii issued a temporary restraining order.  PIs are immediately appealable; TROs are only appealable if they are, in words and effect, PIs. So the Maryland case may move more quickly than the Hawaii one, depending on how the Hawaii decision is construed. 

Scope of Relief

I should have mentioned this last night, but the district court of Hawaii only issued a TRO against the restrictions that apply to Chad, Libya, Iran, Syria, Somalia, and Yemen.  It did not issue any relief against the entry restrictions on Venezuelan government officials or North Koreans.

The district court in Maryland did the same—it too only ordered relief against the restrictions applicable to the countries that were also subject to the restrictions in EO-1 and EO-2 and Chad.

But the scope of relief in the two cases does differ in one respect.  The district court in Maryland issued a nationwide injunction that applies only to “those individuals ‘who have a credible claim of a bona fide relationship with a person or entity in the United States.’”  The district court, in other words, incorporated the standard the Supreme Court had used to modify the scope of the injunctions against EO-2.

The district court clarified:

For individuals, the injunction covers visa applications by individuals with immediate family members, such as parents, children, or siblings, as well as “grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.”

For organizations, the connection must be “formal, documented, and formed in the ordinary course” rather than for the purposes of evading the Proclamation.  For example, [the International Refugee Assistance Project]’s employee or an invited speaker for [the Middle East Studies Association]’s annual meeting or [Iranian Alliances Across Border]’s conference would qualify.   A member of MESA or another membership organization who formally joined the organization before the date of the injunction and seeks to enter the United States for organized activities or meetings of the association would also fall within its scope. Pursuant to the Supreme Court’s stay of the Ninth Circuit’s determination that a refugee with a formal sponsorship assurance from a U.S. resettlement agency has a bona fide connection to the United States, the Court concludes that clients of IRAP and [Hebrew Immigrant Aid Society], and those similarly situated, are not covered by the injunction absent a separate bona fide relationship as defined above.

The district court in Hawaii, however, issued a nationwide temporary restraining order without those limitations.

There’s already been a lot written about how the Supreme Court modified the terms of the injunctions against EO-2. (For some commentary, see here here here here and here.) I won’t add anything now, except to say that, as was true for the district court in Hawaii, the district court in Maryland is clearly trying to make sense of what the Supreme Court said and did in the EO-2 proceedings.  It shows in the court’s lengthy and considered opinion.  The court’s opinion also adds fodder to the plaintiffs’ claim that the meaning of EO-3 isn’t lost on people. As I said last night, I think that’s a good thing.

 

@LeahLitman


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