(Cover of The Economist Aug 19-25, 2017 Issue)
TO: Lifting Generations Members (formerly, Women Will Members)
FROM: Deanna Niño, Co-Chair, Legal Affairs Committee
DATE: August 18, 2017
RE: Impeachment Process and Possible Outcomes
This Memorandum outlines the Impeachment Process and the possibility of Impeachment of President Donald Trump as summarized in “Will Donald Trump be Impeached,” by Nate Silver, published in FiveThirtyEight, May 22, 2017.
The Constitution permits removal of a President before the end of his/her term if enough lawmakers vote that the President committed “treason, bribery, or other high crimes or misdemeanors.”
A majority vote by the House of Representatives is needed with respect to one or more articles of impeachment (i.e., they basically need to indict the President).
The Chief Justice of the Supreme Court oversees a “trial” which is conducted by the Senate.
The role of prosecutors is played by a team of lawmakers from the House which they call “Managers.” The president has defense lawyers and the Senate would serve as the Jurors.
At least two thirds (2/3rds) of the Senators would need to find the President guilty. He/she would then be removed and the Vice President (Pence) would take over as President.
There are no set standards or rules in an Impeachment Proceeding. Impeachment proceedings are more of a political process than a legal one. The Senate would pass a resolution which would lay out the trial procedures. However, based on precedents and educated guesses, the following factors will likely need to be considered:
(1)The seriousness of the alleged offenses;
The U.S. Constitution provides: “The president, vice president and all civil officers of the United State, shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.”
It is possible that Trump’s firing of James Comey (Former FBI director) might have constituted obstruction of justice. At this juncture it is probably premature, but we anxiously await Robert Mueller’s (Special Counsel) findings with respect to his investigation into ties with the Trump Campaign and Russia.
On July 12, 2017, Representative Brad Sherman (D-California) and Congressman Al Green (D- Texas) co-sponsored H. Res. 438 (July 12, 2017) introduced Articles of Impeachment against Trump on the basis of Obstruction of Justice.
On August 17, 2017, Congressman Steve Cohen (D - Tennessee) and Ranking Member of the House Judiciary Subcommittee on the Constitution and Justice announced that he will also be introducing Articles of Impeachment Against Trump on the basis of Obstruction of Justice, potential violations of the Emoluments Clause and that he is incapable or unwilling to protect Americans from enemies, foreign or domestic stating “Neo-Nazis and the KKK are domestic terrorists” and “[i[f the President can’t recognize the difference between these domestic terrorists and the people who oppose their anti-American attitudes, then he cannot defend us.”
(2) The partisanship of pivotal votes in Congress;
In the House, the average Republican has sided with Trump 97% of the time and the average Democrat 15% of the time. Democrats have gotten more liberal and Republicans more conservative in there voting patterns. “Thus, it’s reasonable to infer that because Congress is highly polarized on almost every other issue, it probably also would be polarized on impeachment and removal votes.” As stated by the author:
“- Impeachment unlikely because Republicans Control the House.
- It makes impeachment (but not Trump’s removal from office) more likely if Democrats take over the House in 2019. Partisanship might compel Democrats to impeach Trump even if the political or legal rationale for doing so is dubious.
-Even if all 48 Senate Democrats (including the two independent senators who caucus with the Democrats) voted to remove Trump, they’d also need support from 19 Republicans to get to a two-thirds majority. That would require dipping far into the Republican ranks — well past the few moderates in the Senate — and the decisive 67th vote would have to come from a fairly conservative Republican like Missouri’s Roy Blunt or South Dakota’s John Thune instead. This isn’t going to change much in 2019, even if Democrats have a great midterm election.
The bottom line: Partisanship is the biggest protection that Trump has against impeachment. If you see Republicans start to break with Trump in more substantive ways, such as by launching special committees or holding up his replacement for Comey, he might have more reason for concern. But overall this factor substantially reduces the likelihood of Trump being removed from office.”
(3)The President’s popularity;
As of August 18, 2017, forty percent of Americans polled support impeachment of Trump.
The author provides:
“The bottom line: For the time being, this factor contributes only modestly to the likelihood of Trump being removed from office. Trump is unpopular, but his numbers are not unsalvageable (several presidents have come back from similar ratings to win a second term). A further deterioration in his popularity would imply that he is unpopular even in red states, however, and would greatly increase the risk to Trump.” Trump’s statements and reactions to the Charlottesville Rally and events thereafter are resulting in him becoming more and more unpopular.
(4)The President’s relationship with Congress;
The author provides:
“The bottom line: For the time being, this factor doesn’t contribute much to the likelihood of Trump being removed from office. But Trump’s history of escalating conflict and failing to respect boundaries could antagonize Congress and contribute to the likelihood of impeachment in the future, especially if the GOP’s agenda is in disrepair. History suggests that Congress takes that stuff personally, and it probably should, since the impeachment process is part of the Constitution’s system of checks and balances.”
(5)Party control of Congress; and
The author provides:
“The bottom line: A Democratic takeover of the House is not quite a prerequisite for Trump’s impeachment and removal, but it would greatly increase the odds. It would also give the Democrats far greater powers to investigate Trump and to subpoena key materials, which could create additional bases for impeachment charges.”
(6)The line of succession.
The author provides:
“The bottom line: If the theory is that you shouldn’t hire a well-qualified understudy because he makes your job more vulnerable, then Trump made a mistake in picking Pence as his running mate. Pence isn’t popular with everyone, but he’s likely to be broadly acceptable to Republicans in the House and Senate, and they’re the ones with impeachment votes.”
The 25th Amendment provides another mechanism for removing a President. The Vice President and the majority of the Cabinet members tell Congress that the President is “unable to discharge the powers and duties of this office.” The Vice President would then immediately become the acting President.
Representative Zoe Lofgreen (D - California) introduced Legislation on August 18, 2017 calling for Vice President Mike Pence and the Cabinet to ask for President Trump’s resignation questioning Trump’s mental stability. She requests that under the 25th Amendment deliberations that they secure medical and psychiatric professionals to examine Trump’s fitness and mental capacity.
1 FiveThirtyEight, sometimes referred to as 538, is a website that focuses on opinion poll analysis, politics, economics, and sports blogging. In August 2010, the blog became a licensed feature of The New York Times online.
2 Poll conducted August 2 - 8, 2017 by Public Religion Research Institute prior to the violent rally in Charlottesville. They surveyed 2,024 Americans with a margin error of plus or minus 2.7%.
TO: Lifting Generations Members (formerly, Women Will Members)
FROM: Deanna Niño, Co-Chair, Legal Affairs Committee
DATE: August 18, 2017
RE: Updated Summary of Significant Cases Filed Against the Trump Administration Categorized By Topic, as well as Significant Case Law, Legislation and Actions Affecting Our Causes from April through August of 2017 (Memo #2)
Lawsuits and Proposed Legislation Against the Trump Administration
Judge Ruled Plausible that Trump Incited Violence:
Nwanguma, et. al, v. Trump, et. al., U.S. District Court for the Western District of Kentucky, Louisville Division - 6th Circuit
This lawsuit was filed by three protestors who attended the March 1, 2016 Louisville, KY Trump rally and were attacked at such rally. The plaintiffs allege assault and battery against the three Trump supporters and incitement to riot, negligence, gross negligence and recklessness against the Trump Campaign.
Judge Hale ruled that speech which incites violence is not protected speech under the 1st Amendment. He also noted that there was lots of evidence that the plaintiffs’ injuries were a “direct and proximate result of Trump’s words.” Judge Hale further stated, “[i]t is plausible that Trump’s direction to ‘get ‘em out of here’ advocated the use of force” and that “[i]t was an order, an instruction, a command.” In addition, Judge Hale stated that Trump’s words were “particularly reckless.”
As such, the Judge ruled it was plausible that Trump incited violence and that the case may more forward against him, his campaign and three of his supporters. Judge Hale rejected the notion that Trump’s words were free speech and that Trump did not request his supporters to use force.
Sanctuary City Lawsuits:
City and County of San Francisco v. Trump, 3:17-cv-00485-WHO ( N.D. Cal. )
California is the first state to sue the Trump Administration over its anti-sanctuary cities policy. In August of 2017, California joined a lawsuit which was filed by the City of San Francisco against the Trump Administration alleging that placing conditions on funding to sanctuary cities and withholding monies to such cities if those conditions are not met is unconstitutional and violates citizens rights. “It’s a low blow to our men and women who wear the badge, for the federal government to threaten their crime-fighting resources in order to force them to do the work of the federal government when it comes to immigration enforcement,” stated California Attorney General Xavier Becerra.
Commonwealth of Massachusetts v. Lunn, SJC-12276 (Supreme Judicial Court and Appeals Court of MA, July 24, 2017)
Massachusetts Supreme Judicial Court ruled that state court officers are not legally permitted to comply with ICE detainers thereby making Massachusetts a sanctuary state.
Lawsuit Brought Against Trump Administration Alleging Outside Scope of Power:
The Protect Democracy Project, Inc. v. U.S. Department of Justice et al., 1:17-cv-01607 (D.D.C., 2017)
The watchdog group, Protect Democracy, filed a lawsuit against the Trump Administration alleging that the launch of attack on Syrian government targets which took place on April 6, 2017, were not within the scope of Trump’s power. They allege that such power and approval would need to come from Congress or U.N. Security Council and dispute the notion that those attacks fell within the justification of “self-defense” as stated by the Trump Administration. They have requested information regarding the basis of the attack in a FOIA request to the Department of Justice.
Mr. Florence, the Protect Democracy Legal Director and Former White House Lawyer under the Obama Administration, stated with regard to the Trump Administration’s silence on this topic, that either they are trying: “ to prevent informed debate and oversight of the president’s ability to take the country into a new armed conflict with another country,” or it “ never rigorously made an assessment about the legality of the Syria strikes” in the first place.
Violation of Emoluments Clause Lawsuits:
Richard Blumenthal, et al. v. Donald J. Trump, No., 1:17-cv-01154 (D.D.C. 2017)
Two hundred Democratic Lawmakers filed a lawsuit against President Trump alleging that Congress was not given the chance to weigh in on whether Trump should be allowed to accept foreign payments to the Trump Organization (his Company). The Emoluments Clause states that Congress must approve any foreign payments and gifts to federal employees and to date no such approval has been given.
The District of Columbia and the State of Maryland v. Trump, No. 8:17-cv-01596 (D.D.MD 2017)
The States of Maryland and the District of Columbia have also filed lawsuits against Trump stating that foreign leaders who want to get in the “good graces” of the President have provided him with gifts and benefits in violation of the Emolument Clauses.
Citizens for the Responsibility and Ethics In Washington v. Trump (U.S. District Court for the Southern District of New York) - Second Circuit
This case alleges conflicts of interest and violations of the Emoluments Clause of the Constitution which prohibits a President from receiving payments from foreign governments. The main focus of the case is the convoluted and entangled business dealings of the Trump Entities with various foreign governments and nations. Additionally, this suit alleges that his businesses have benefitted from him becoming President. For example, the Trump Mar-a-Lago membership dues doubled after he was elected and his Washington Trump Hotel is being leased by the Government Services Administration.
H.R.2414 - SWAMP Act of 2017 (“Stop Waste and Misuse by the President Act”)
The “Stop Waste and Misuse by the President Act” (“SWAMP”) Act was proposed by Rep. Ted Lieu, D- Calif. would require Trump to reimburse the Federal Government for public dollars which he has spent on travel to hotels and properties which he owns. When discussing the monies spent on travel to Trump hotels, Lieu stated “[it] results in the American taxpayer effectively subsidizing the president’s businesses.”
Allocation of Funds for Legal Counsel in Deportation Hearings:
On April 4, 2018, New York State became the first state to allocate funds in their budget to provide legal counsel for deportation hearings (approximately $4 million). This is critical because undocumented immigrants and refugees have no legal right to representation in immigration court and no person should have to face a legal proceeding without being represented by counsel.
Additionally, the City of Seattle has also created a total of $1.3 million in funds to provide legal defense in immigration courts. According to the Seattle City Council’s website, President Donald Trump’s executive orders “will dramatically increase the number of people seeking legal representation in courts.”
FOIA Request Lawsuit:
Muslim Advocates v. U.S. Department of Homeland Security, 1:17-cv-00820 ( D.D.C. ).
Muslim Advocates filed two lawsuits against the Department of Homeland Security (“DHS”) over its failure to respond to FOIA requests. The FOIA requests made by the Muslim Advocates were of documents relating to discriminatory policies and procedures which they allege are being used by DHS against the Muslim population.
Denver Fights Deportation By Simple Change in the Law:
Denver City Council Bill 0513
In May of 2017, Denver passed an ordinance which helps protect legal immigrants that might otherwise be deported for low level crimes. In an attempt to help sanctuary cities, Denver passed a law which restructures the sentencing of crimes into three categories. Under the new law, the crimes which are minor and punishable for less than 365 days will no longer be flagged by ICE and risk deportation.
Prior to the enactment of the new law, an offender of a low-level crime (i.e., like blocking the sidewalk) could receive the same sentence as the perpetrator of a violent crime (i.e., like sexual assault). Both of those offenses would trigger ICE and possibly deportation, even though the perpetrator might receive a sentence of less than a year anyway despite the fact that it would trigger ICE. Under the new laws, minor offenses like the one described above would not trigger immigration enforcement and thereby protect families and legal immigrants from the fear of deportation for minor offenses.
State of Hawaii v. Trump (U.S. District Court for the District of Hawaii, February 3, 2017 and Amended March 6, 2017) - Ninth Circuit
Hawaii was the first state to file a lawsuit against the Revised Order and argued that the Revised Order will harm the Muslim population, tourism and the economy of Hawaii, the educational institutions and foreign students of Hawaii and is incompatible with the freedom of religion protections of the federal and state Constitutions. This case includes an individual plaintiff (Ismail Elshikh) along with the State of Hawaii which many legal scholars believe is important because some question a state’s standing to challenge the ban.
This lawsuit alleges violations of the 1st Amendment Establishment Clause, 5th Amendment equal protection and due process rights, the Administrative Procedure Act, and the Immigration and Nationality Act.
Judge Watson issued a temporary injunction and blocked the Revised Order stating it likely violates the Establishment Clause of the Constitution by disfavoring Muslims. His ruling was broader in that it blocked both the travel ban and the refugee portion of the Order. Judge Watson found legal precedent from the Supreme Court for using Trump’s statements about Muslims during the Presidential Campaign to question the constitutionality of the Revised Order.
The Trump Administration appealed to the Ninth Circuit Court which held that by barring individuals from six majority-Muslim nations from entering the US and suspending the refugee program, Trump had “exceeded the scope of authority delegated to him by Congress.” The Appeals court stated, “[i]mmigration, even for the President, is not a one-person show,” the justices wrote in their joint opinion. This ruling upheld the District Court of Hawaii’s injunction which ceased the Executive Order prior to its effective date (March 16, 2017).
On June 26, 2017, the Supreme Court partially reversed the Ninth Circuit Court and the District Court, holding that the travel ban could take effect but needed to be narrowed to provide that individuals from the six banned countries who could establish a close familial relationship with a person or entity in the United States would be exempt from the ban. The Supreme Court directed the Department of Homeland Security (“DHS”) to further define “familial relationship.” The DHS immediately defined a close familial relationship to include “a parent (including parent-in-law), spouse, child, adult son or daughter, son-in-law, daughter-in-law, sibling, whether whole or half, including step relationships.” The definition excluded “grandparents, grandchildren, aunts, uncles, nieces, nephews, cousins, brothers-in-laws and sisters-in-law, fiancés and any other ‘extended’ family members.” On July 14, 2017, the District Court of Hawaii held that the travel ban did not prevent grandparents and that the DHS had failed to comport with the directives of the Supreme Court. The Justice Department has sought review of this ruling by the Supreme Court.
LGBT Civil Rights Lawsuits:
Kimberly Hively v. Ivy Tech Community College, No. 15-1720 (7th Cir., April 4, 2017)
In April of 2017, the Seventh Circuit Court of Appeals ruled that “discrimination on the basis of sexual orientation is a form of sex discrimination.” As such, the Court found that Title VII of the Civil Rights Act of 1968 includes protections based on sexual orientation. This is an extremely important ruling because it clearly tells employers that they are not allowed to discriminate based on sexual orientation. This was the first ruling of its type by a federal appeals court and essentially reverses a previous decision made by the same Court in July of 2016. This case is in direct conflict with other Circuit Court of Appeals (such as the 11th Circuit Court of Appeals) which ruled that Title VII does not protect discrimination based on sexual orientation.
Due to the split decisions of the Appeal courts in this area, this issue is likely to be decided by the Supreme Court in the future.
Stewart v. Heineman, 296 Neb. 262 (Neb. 2017)
On April 7, 2017, the Nebraska Supreme Court struck down a state policy which banned LGBT couples from becoming foster parents. The Court compared the foster care parent ban from being LGBT to a "a sign reading 'Whites Only' on the hiring-office
California Bans State Travel to Texas:
The state of California bans state funded travel to states that have discriminatory laws. As such, California’s Attorney General, Xavier Becerra, in June of 2017 banned travel for state employees from California to Texas because of Texas House Bill 3859 which allows “foster care agencies to discriminate against children in foster care and potentially disqualify LGBT families from the state’s foster and adoption system.”
"While the California DOJ works to protect the rights of all our people, discriminatory laws in any part of our country send all of us several steps back," said Xavier Becerra. "That's why when California said we would not tolerate discrimination against LGBTQ members of our community, we meant it."
Additional States Banned by CA:
“ALABAMA: HB 24 allows state-funded, faith-based adoption and foster agencies to refuse to place children with same-sex couples.
KENTUCKY: SB 17, a bill to protect religious expression in schools, would make it harder for school officials to regulate how student organizations select their members, which LGBT advocates argue will foster discrimination.
SOUTH DAKOTA: Like Alabama’s new law, SB 149 gives legal protection to adoption and foster agencies who refuse to place children in homes with same-sex couples.
TEXAS: HB 3859 also allows faith-based foster and adoption agencies, including those that are state-funded, to refuse to place children with same-sex couples.”
LGBT Conversion Therapy Legislation:
On March 17, 2017, the New Mexico Legislature passed a bill banning “conversion therapy” for minors. New Mexico joins the following states which have also banned these dangerous practices: California, Illinois, New Jersey, Oregon, Vermont, New York and Washington, DC. Studies show that these practices are extremely detrimental and are based on the false premise (which has been debunked by all medical and mental health professionals for decades) that being LBGT is a mental illness which needs to be cured.
In May of 2017, Nevada and Connecticut also passed bills banning “conversion therapy.”
Transgender Individuals and Military:
On July 26, 2017, Trump abruptly announced on Twitter that the Military would no longer allow transgender individuals to serve since according to him it creates “tremendous medical costs and disruption.” This ban was a reversal of the Obama administration which permitted transgender individuals to serve. “We need to have a hearing, not a tweet,” stated Senator Lindsey Graham, Republican of South Carolina. “Let the military tell us about the policy change, what it does, does it affect the people currently serving and what is the recommendation.”
On July 27, 2017, Gen. Joseph F. Dunford Jr., the chairman of the Joint Chiefs of Staff in a letter to the Military stated transgender people can still serve in the military for now until the White House sends the Defense Department new rules and the secretary of defense issues new guidelines. In a backlash, the cities of Houston, Austin, Aurora (Colorado) and Cincinnati have encouraged transgender people to apply to their police departments. In the cities of Austin, San Diego and Seattle transgender officers already serve openly.
Doe v. Trump, 1:17-cv-01597 (D.D.C. 2017)
On August 9, 2017, a lawsuit was filed by GLBTQ Legal Advocates & Defenders (GLAD) and the National Center for Lesbian Rights (NCLR) on behalf of five transgender service members with nearly 60 years of combined military service alleging violations of the Fifth Amendment equal protection and due process clauses 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.”
Nebraska Bills: HB 1083/CH28 and SB1081/CH 810
The state of Maryland passed a bill making it the first state to guarantee funding for Planned Parenthood if the federal government cuts such funding. Maryland has in effect agreed to reimburse Planned Parenthood only if a federal cutoff was enacted. Maryland’s funding of Planned Parenthood would essentially establish a “state family planning program to ensure continued funding of services provided under Title X of the federal Public Health Service Act.”
According to the bill's House sponsor, Del. Shane Pendergrass, "[t]he need for these services could not be met by existing providers if Planned Parenthood were eliminated from the market." The above measure protects access to preventative care services for almost 25,000 people, if the federal government cuts funding. The measure reallocates $2 million from Maryland's Medicaid budget and $700,000 from the state's general fund for family-planning services.
Oregon’s The Reproductive Health Equity Act:
The Reproductive Health Equity Act requires insurers to cover abortions as well as many other reproductive care items (i.e., contraception, STD screenings, vasectomies and post-natal care). This law covers all patients including undocumented immigrants. This law effectively provides abortion rights in Oregon even if Roe v. Wade is overturned.
Four Civil Rights Abortion Lawsuits:
Hopkins v. Jegley et al, 4:17-cv-00404 (Arkansas Eastern District Court, June 20, 2017); Reproductive Health Services v. Marshall, 2014cv01014 (M.D. Ala., 2016); Planned Parenthood of the Great Northwest, et al. v. State of Alaska, Supreme Court Nos. S-15010/15030/15039 (Alaska, 2016); and Coffey v. Public Hospital District. No. 1, Case No. 15-2-00217-4 (Supreme Court of Washington, 2015).
Abortion activists are celebrating four major victories in Alabama, Arkansas, Alaska and Washington after federal judges blocked a series of laws that would place an undue burden on women seeking abortions.
Climate & Environmental Issues:
Cal. Chamber of Commerce v. State Air Resources Brd., No. C075930 (Cal. Ct. App. Apr. 6, 2017)
The California Appeals Court upheld California’s Cap and Trade Program through at least 2020 which requires companies to buy permits to release greenhouse gases into the atmosphere. The opponents of this Program argued that the tax is an unconstitutional tax and appealed to the California Supreme Court. The California Supreme Court declined to consider the appeal.
“This is great news for one of the world’s most ambitious climate programs and one of the best tools to solve climate change globally," said Erica Morehouse, a lawyer with the Environmental Defense Fund.
"With this Supreme Court victory, now its up to us to take action extending California’s cap-and-trade system on a more permanent basis," California Governor Jerry Brown stated.
Center for Biological Diversity v. Ryan Zinke et al, No. 1:2016cv00738 - Document 18 (D.D.C. 2017)
The Trump Administration is being sued in the District Court of Anchorage, AL by the Center for Biological Diversity (the “Center”) challenging the constitutionality of the Congressional Review Act of 1996 which allows legislatures to repeal federal regulations adopted in the last few months of the previous administration. On April 3, 2017, Trump signed legislation allowing wolves and their pups to be killed in their dens, bears to be slaughtered at their bait stations and shooting bears from airplanes (all previously prohibited by the Obama Administration).
“The Congressional Review Act throws the balance of power out of whack and opens the door for politicians in Congress to meddle in decisions that ought to be made by experts at federal agencies,” stated Collette Adkins, a Center attorney and biologist. “By law the Fish and Wildlife Service must protect biological diversity on Alaskan wildlife refuges. But the Act makes it more difficult for agency officials to carry out their legal duty to protect wolves and bears.”
In Re Pesticide Action Pesticide Action Network and the Natural Resource Defense Council, Inc. v. EPA, 14-72794 (9th Cir, June 5, 2017)
On June 5, 2017, the states of New York, Maryland, Vermont, Washington, Massachusetts and the District of Columbia joined a lawsuit filed by the Pesticide Action Network and the Natural Resource Defense Council against Scott Pruitt of the EPA for reversing a ban on a toxic pesticide chlorpyrifos which the EPA had previously determined to be “unsafe” and said is linked to damage of children’s nervous systems. "It is EPA's responsibility to protect Americans from unsafe chlorpyrifos residues on food because of the potential neurodevelopmental and other adverse health effects caused by exposure," stated the attorneys suing Pruitt. "Citizens of the proposed state intervenors consume foods grown throughout the United States and the world that contain chlorpyrifos residues.”
State of California v. EPA, 1:17-cv-01626 (D.D.C, 2017)
On August 11, 2017, the State of California filed a lawsuit against the EPA, alleging it failed with a FOIA request that might indicate whether Scott Pruitt (the Agency Administrator) has a conflict of interest.
Paris Climate Agreement:
Despite that fact that Trump pulled the United States out of the Paris Climate Agreement, the states of California, New York, Washington, Oregon, Minnesota, Washington, DC and Virginia have creating an alliance to comply with such Agreement. Montana, Colorado, Ohio, Pennsylvania and North Carolina are strongly considering becoming members of the above alliance. In addition, the City of Los Angeles has decided to do the same. “Cities and states are already where most of the action on climate is,” stated Eric Garcetti, the Mayor of LA. “Our message is clear to the world: Americans are with you, even if the White House isn’t.… Trump’s move is going to have unintended consequences of us all doing the opposite of what the president wants. It will in many ways greatly backfire,” stated Garcetti.
Additionally, four Native American Nations (the Standing Rock Sioux Tribe, the Quinault Indian Nation , the Swinomish Indian Tribal Community and the Central Council of the Tlingit and Haida Indian Tribes of Alaska) have agreed to uphold the Paris Climate Agreement.
Climate Change Data Deleted By EPA:
Climate change is a real issue that cannot be sensibly denied. Climate scientists have spent years and years of research and time compiling concrete data demonstrating the ways in which our weather and our planet is significantly impacted by increased greenhouse gas emissions. Prior to the appointment of Scott Pruitt as the new chief of the EPA, the agency used to have the climate change data posted on their website for all to see. As a vocal disbeliever that carbon dioxide is the primary contributor to global warming in contradiction to the belief of the EPA itself, NASA and the National Oceanic and Atmospheric Administration, Mr. Pruitt unilaterally removed this precious and important data from the EPA website. Thus, the public is now denied access to this crucial data. The gravity of this act is exemplified by Senator Harris, in stating that, "[i]t's telling when you're at odds with @NASA, the National Oceanic and Atmospheric Administration, and science generally."
In response to the EPA deleting the above referenced data off of their website, the cities of Seattle, Portland, San Francisco, Atlanta, Houston, New Orleans, Milwaukee, Philadelphia, Boston, St. Louis and Chicago (which instigated the protest) and Burlington, Vermont have posted the deleted EPA climate change data on their websites so that the years and years of important information does not disappear. By doing so, scientists can continue to build on this information to combat climate change and fight this ever important battle to ensure the welfare of our children and our planet.
EPA Reverse Course on Ozone Delay
On August 2, 2017, the EPA reversed course on delaying an ozone rule (rule requiring reduction of ground-level ozone (i.e., “smog”)), a day after a lawsuit was filed in the Washington, D.C. Appeals Court by that states of New York, CA, CT, Delaware, Illinois, Iowa, Maine, Massachusetts, Minnesota, New Mexico, Oregon, Rhode Island, Pennsylvania, Vermont, Washington, District of Columbia. In June of 2017, the EPA stated that it was delaying the new Obama-era ozone pollution rules for one year.
Twenty-eight legislative districts in North Carolina were struck down by the US Supreme Court which held that the state engaged in an unconstitutional racial gerrymandering. "The North Carolina Republican legislature tried to rig congressional elections by drawing unconstitutional districts that discriminated against African-Americans and that's wrong," stated North Carolina Gov. Roy Cooper. The ruling requires the state legislature to redraw the districts and will most likely significantly impact the 2018 midterm elections.
Sixteen lawsuits were filed challenging the “voter integrity” committee on the basis of transparency, privacy, and administrative policy grounds.
Countering America’s Adversaries Through Sanctions Act:
President Signs Sanctions Bill Against Russia, Iran and North Korea:
H.R.3364 - Countering America’s Adversaries Through Sanctions Act
On August 2, 2017 President Trump signed into law the “Countering America’s Adversaries Through Sanctions Act”, which imposes new sanctions on Russia, Iran and North Korea.
Thanks to Deanna Niño, Attorney at Law, of our Legal Affairs Committee, we have a memorandum on significant cases filed against the Trump administration. The cases are promising and divided into categories: Executive Orders, Financial Conflicts of Interest, Federal Funds to Sanctuary Cities, Climate, and Civil Rights Lawsuits. Please read these brief case summaries to educate yourself on current legal resistance to the Trump agenda.
TO: Women Will
FROM: Deanna Niño
DATE: April 7, 2017
RE: Summary of Significant Cases Filed Against the Trump Administration Categorized By Topic __________________________________________________________________
The cases filed against the Trump Administration fall into several categories as detailed below. This memorandum focuses on the most significant cases in each category.
Executive Order (Travel Ban & Refugees):
See the attached extensive list of cases filed against the Trump Administration listed by Circuit as obtained by LawFare. These “Travel Ban” cases are being filed based on alleged violations of the 1st Amendment (Establishment Clause - religious equality), 5th Amendment (due process) and 14th Amendment (equal protection under the law) and denials of asylum and discriminatory visa processing. The following cases detailed below are the most notable to date.
1. Darweesh v. Trump (U.S. District Court for the Eastern District of NY, January 28, 2017)1 - Second Circuit
-This case was filed by the American Civil Liberties Union (“ACLU”), National Immigration Law Center (“NILC”) and the International Refugee Assistance Project (“IRAP”) on behalf of two Iraqi refugees who were detained at the JFK airport after the First Executive Order2 was issued by the Trump Administration and were threatened deportation despite having valid U.S. visas. Both plaintiffs had ties to the U.S. government and were fearful (along with their families) of remaining in Iraq.
-This lawsuit alleges violations of their 5th Amendment procedural and substantive due process rights as well as U.S. immigration statutes.
-The State of New York joined the above suit. The New York Attorney General Eric Schneiderman called the executive order “unconstitutional, unlawful, and fundamentally un-American.”
1 This was the first case filed challenging the First Executive Order.
2 The First Executive Order 13769 entitled the “Protecting Of The Nation From Foreign Terrorist Entry Into The United States” issued on January 27, 2017 (“First Order”) excluded refugees from Syria indefinitely due to the nation’s ongoing civil war and Nationals from seven predominantly Muslim Countries (Iraq, Syria, Iran, Sudan, Libya, Somalia and Yemen) from traveling to the U.S. for 90 days.
Page 1 of 5
-Judge Donnelly issued an injunction on January 28, 2017 halting the deportation of any detainees. This ruling was very broad and applied nationally. However, this injunction did not apply to all lawful permanent residents or VISA holders who were oversees while the First Order was signed.
2. Aziz v. Trump (U.S. District Court for the Eastern District of Virginia, January 28, 2017) - Fourth Circuit
-Class action suit filed on behalf of two Yemeni brothers who arrived at Dulles airport with green cards (planning to join their father in MI) but were detained and placed on return flights to Eastern Africa. This suit includes 60 lawful permanent residents of the U.S. who were detained and suffered similar situations at Dulles airport and were denied access to counsel.
-Alleged violations of the 5th Amendment equal protection and due process rights, the 1st Amendment Establishment Clause, the Administrative Procedure Act, the Immigration and Nationality Act, and the Religious Freedom Restoration Act.
-The State of Virginia intervened in this lawsuit stating its universities were being harmed by the First Order.
-Judge Brinkema issued an injunction limited to the affected parties (pointing to the nationwide temporary restraining order from WA v. Trump).
3. Sarsour v. Trump (U.S. District Court for the Eastern District of Virginia, January 30, 2017) - Fourth Circuit
- Large class action lawsuit which was filed by the Committee of American-Islamic Relations (“CAIR”) on behalf of more than 20 plaintiffs (many plaintiffs of whom are public figures, one plaintiff who is a pregnant wife who was barred from entering the US, and another plaintiff who is a critical care physician that works in an underserviced area in the U.S. which would cause great harm to that area if he is not permitted to stay in the U.S.)
- The complaint alleges the purpose of the First Order is to “initiate the mass expulsion of immigrant and nonimmigrant Muslims lawfully residing in the United States by denying them the ability to renew their lawful status or receive immigration benefits afforded to them under the Immigration and Nationality Act.” In addition, the lawsuit states that the First Order applies only to Muslims.
-The lawsuit alleges violations of the 1st Amendment (Establishment Clause and right to freedom of religion), 5th Amendment (equal protection rights), and the Administrative Procedure Act.
-This lawsuit is still ongoing and no order has been entered to date.
4. International Refugee Assistance Project v. Trump (U.S. District Court for the District of Maryland, February 7, 2017) - Fourth Circuit
-The ACLU and National Immigration Law Center (“NILC”) on behalf of the International Refugee Assistance Project (“IRAP”) filed a lawsuit against the
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Trump Administration stating the First Order and the Revised Order3 violates 1st Amendment and the 5th Amendment.
-Judge Chuang issued a nationwide preliminary injunction on a portion of the Revised Order which blocks the travel ban from six predominately Muslim countries. Judges in Hawaii and Maryland used the language in the Trump Campaign to demonstrate the intent and unlawful purpose of the Muslim Travel Ban. Judge Chuang noted that “the history of public statements continues to provide a convincing case that the purpose of the Second Executive Order remains the realization of the long-envisioned Muslim ban.”
-The Trump Administration has appealed the ruling to the 4th Circuit of
5. Washington v. Trump (U.S. District Court for the Western District of Washington) - Ninth Circuit
-Washington was the first state to sue over the First Order alleging violations of Equal Protection under the Constitution and the 1st Amendment Establishment Clause and the right to Due Process. Judge Robart issued a broad injunction halting the First Order nationwide.
-The States of Oregon and Minnesota joined the case.
-The following states filed Briefs in support of the WA initial lawsuit: CA, CT, DE, IL, IO, ME, MD, NM, PA, RI, VT and VA.
-Numerous businesses (i.e., Expedia and Amazon) filed Declarations of Support outlining harm to each company in this case.
-The State of Washington intends to ask the Judge to rule that the temporary restraining order against the First Order applies to the Revised Order.
6. State of Hawaii v. Trump (U.S. District Court for the District of Hawaii, February 3, 2017 and Amended March 6, 2017) - Ninth Circuit
-Hawaii was the first state to file a lawsuit against the Revised Order.
-Hawaii argues that the Revised Order will harm the Muslim population, tourism and the economy of Hawaii, the educational institutions and foreign students of Hawaii and is incompatible with the freedom of religion protections of the federal and state Constitutions.
3 On March 6, 2017, President Trump rescinded the January 27, 2017 Executive Order and replaced it with a narrower one, Executive Order 13780 (the “Revised Order”). This Revised Order was the same as the First Order except it removed: (1) the preference for refugees who are religious minorities; (2) gave exemptions for green-card holders, legal permanent residents and people with valid visas already issued; and (3) Iraq from the list of countries whose Nationals could not travel to the U.S. Basically, the Revised Order is harder to challenge in a court of law since it is drafted more narrowly than the First Order, however it still arguably has the same meaning and intent, i.e., a “Muslim Ban.” Several Judges are noting the Trump Campaign statements in their rulings (i.e., the Maryland and Hawaii courts)
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-This case includes an individual plaintiff (Ismail Elshikh) along with the State of Hawaii which many legal scholars believe is important because some question a state’s standing to challenge the ban.
-This lawsuit alleges violations of the 1st Amendment Establishment Clause, 5th Amendment equal protection and due process rights, the Administrative Procedure Act, and the Immigration and Nationality Act.
-Judge Watson issued a temporary injunction and blocked the Revised Order stating it likely violates the Establishment Clause of the Constitution by disfavoring Muslims. His ruling was broader in that it blocked both the travel ban and the refugee portion of the Order. Judge Watson found legal precedent from the Supreme Court for using Trump’s statements about Muslims during the Presidential Campaign to question the constitutionality of the Revised Order.
-The Trump Administration will likely appeal to the Ninth Circuit Court.
Financial Conflicts of Interest (Emoluments Clause):
Citizens for the Responsibility and Ethics In Washington v. Trump (U.S. District Court for the Southern District of New York) - Second Circuit
- This case alleges conflicts of interest and violations of the Emoluments Clause of the Constitution which prohibits a President from receiving payments from foreign governments. The main focus of the case is the convoluted and entangled business dealings of the Trump Entities with various foreign governments and nations.
Federal Funds to Sanctuary Cities:
The following cities have sued the Trump Administration over the directive to withhold federal funds from sanctuary cities: Santa Clara, San Francisco, City of Seattle, City of Chesea, City of Lawrence and the City of Richmond, CA.4
On April 3, 2017, the California Senate passed the Sanctuary State Bill5 which bars law enforcement from using their resources to help federal immigration enforcement.
4 Santa Clara v. Trump, San Francisco v. Trump, City of Seattle v. Trump, City of Chelsea & City of Lawrence v. Trump and theCity of Richmond v. Trump.
5 Senate Bill 54, which unofficially has been called a "Sanctuary State Bill,” bars state and local law enforcement agencies from using their resources to help with immigration enforcement.
* Massachusetts, Oregon, New York and Washington stated theywill follow Hawaii in challenging President Trump's Revised Order, stating it is an unconstitutional ban on Muslims.
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Kelsey Cascade Rose Juliana v. United States (U.S. District Court for the District of Oregon) - 9th Circuit
- This lawsuit was filed by 21 plaintiff children (ranging from the ages of 9 - 20 years old currently) and James Hansen, an acclaimed NASA climate scientist whose granddaughter is among the 21 young plaintiffs.
-The lawsuit argues that the federal government violated the Constitutional rights of the 21 children to a healthy climate system.
-If won, the suit requires “an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and will depend.”
-The case was filed during the Obama Administration, but has been inherited by the Trump Administration.
-Judge Aiken denied the Motions to Dismiss by the government and fossil fuel industries and is allowing the case to go forward stating “this lawsuit is not about proving that climate change is happening or that human activity is driving it. For purposes of this motion, those facts are undisputed.” She also stated, “Federal courts too often have been cautious and overly deferential in the arena of environmental law and the world has suffered for it.”
-Similar suits have been brought and have prevailed in the Netherlands, Austria, Pakistan and South Africa requiring governments to cut carbon emissions.
*New York State Announced in a Press Release dated April 3, 2017 that is plans to sue the Trump Administration for violating federal laws by delaying energy efficiency standards for several common consumer and commercial products.6
Nwanguma, et. al, v. Trump, et. al., U.S. District Court for the Western District of Kentucky, Louisville Division - 6th Circuit
-This lawsuit was filed by three protestors who attended the March 1, 2016 Louisville, KY Trump rally and were attacked at such rally. The plaintiffs allege assault and battery against the three Trump supporters and incitement to riot, negligence, gross negligence and recklessness against the Trump Campaign.
-Judge Hale ruled that speech which incites violence is not protected speech under the 1st Amendment. He also noted that there was lots of evidence that the plaintiffs’ injuries were a “direct and proximate result of Trump’s words.” Judge Hale further stated, “[i]t is plausible that Trump’s direction to ‘get ‘em out of here’ advocated the use of force” and that “[i]t was an order, an instruction, a command.” In addition, Judge Hale stated that Trump’s words were “particularly reckless.”
-As such, the Judge ruled it was plausible that Trump incited violence and that the case may more forward against him, his campaign and three of his supporters. Judge Hale rejected the notion that Trump’s words were free speech and that Trump did not request his supporters to use force.
6 Such as ceiling fans, portable air conditioners, walk in coolers and freezers, commercial boilers and more.
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