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.