(2/4/17 & 2/5/17 updates at end)
TLDR Upfront: By Friday evening three Federal Judges in three separate hearings issued three different sets of rulings on President Trump’s Executive Order seeking to ban all travel from seven countries for national security reasons. Earlier in the evening the emergency stay prohibiting the ban on visa travel from being implemented was removed, allowing the ban to go into effect. But just hours later was again stayed, nationwide, by a Federal Judge in Seattle. As it stands now the travel ban remains on emergency stay and we know that it impacts 100,000 people world-wide according to a US Attorney. Or 60,000 if you ask the State Department. Because what’s 40,000 people?
Full Context in the Back:
This headline makes it all sound so simple.
Although the rulings appear contradictory and confusing they actually were on different aspects of the Executive Order, which itself was contradictory and confusing. In the first hearing of the day in Virginia two Yemeni brothers detained and returned to Ethiopia while the ban was in place were seeking to have their case overturned. Justice Brinkema presiding allowed the State of Virginia to join the Plaintiff’s legal team and the addition of a Sudanese woman detained and returned on the same flight as the Ethiopian brothers to be added. (1)
During arguments the Attorney for the State of Virginia made the case that the ban had already impacted some 350 students of universities and colleges in the state, including a PhD student unable to defend their dissertation. A US Attorney argued for the government that the case should be dismissed because the Yemeni brothers were going to be issued a special waiver but the addition of the Sudanese woman keeps the case alive. Interestingly, during the case, the US Attorney mentioned that over 100,000 people world-wide are effected by the ban. This was immediately disputed after the hearing by the State Department which was adamant that only 60,000 were impacted.
Putting aside the embarrassment of the Department of Justice and the Department of State not having their act together and arguing these numbers – they are both big numbers. In the chart below I’ve quickly located and compared some uncivil acts in our history of City, State and Federal civil rights or potential civil rights violations. On the X-axis is a timeline, the Y-axis is the degree of just how un-Constitutional an act is. The size of the circle scales to the number of people impacted. President Trump’s acts depending on where they are eventually ruled are actually on part with impact of some of the more famous Constitutional right violations that most people remember. Unfortunately it seems people of color always end up with the largest bubbles on these charts and almost no one seems to remember those, even if they are much more recent in memory. (2)
(3) (See additional comments on chart below in footnotes.)
After hearing arguments from both sides Justice Brinkema extended a temporary restraining order blocking the removal of green-card holders. She also reiterated that any detainee held because of the ban be given proper access to lawyers. Both were shots across the bow of the administration – a broader ruling than just the case in front of her with the Yemeni brothers. The reminder that all classes of visitors were allowed access to lawyers was probably in reaction to various reports of DHS officials denying legal counsel to detainees throughout the week. And the mention of green-card holders makes clear that in the courts view the ‘clarification’ by White House counsel on Wednesday that the ban does not cover green-card holders does not amount to a voluntary option but a Constitutional requirement. (4)
Later in the day a Boston Federal Judge heard arguments to extend a ban put in place last Sunday morning by the same court though a different Judge. (5) Judge Gorton didn’t agree that the ban represented a violation of civil rights as a religious test pointing out that the ban did not even apply to all Muslim Majority countries. He overturned the temporary stay and the travel ban was back in force. DHS officials began issuing instructions to detain and deport individuals from the identified countries.
But even as those orders were being prepared – cases in the rest of the country were being heard. heard. Several hours after Judge Gorton had reinstated the travel ban it was time for a similar case to be heard in a court on the other side of the country. The context of the case was different, even if the request was the same. An emergency stay to prevent the ban from going into effect. In a suit brought by the Attorney Generals representing the States of Washington & Minnesota argued jointly that the ban would create ‘irreparable harm’ to their state economies. Just a little after 6:30pm EST, Judge James Robart granted an emergency stay of the ban, and applied it nationwide. This effectively undid the ruling by Judge Gorton of Boston made only a few hours earlier lifting a different emergency stay. (6) I think. I honestly don’t know how it works when two Federal Judges make competing rulings within hours of one another and both claim national jurisdiction. Pistols at dawn? Can the Federal government appeal to the Judge in Boston to issue a stay against the stay in Seattle? Is this like math where a negative times a negative equals a positive?
However – the competing rulings advance the “ripeness” of the case considerably. Before the Supreme Court will hear a case it has to satisfy a number of conditions – but two very important ones are standing and ripeness. Standing means that the plaintiff must have suffered some actual damage. A case cannot be filed “just because.” Damage has to be incurred by the party making the claim. In this case the standing is quite clear: lives interrupted for individuals, economies harmed for states. “Ripeness” however refers to whether there has been enough time for the law to be fully considered from multiple angles by different districts. If all the District Judges are ruling in one direction, or only one District has ruled, there’s really no reason for the Supreme Court to step in and clarify. It’s unlikely they’ll take the case unless there’s extenuating circumstances. But when Federal Judges begin contradicting each other like they are, and those contradictions begin raising and lowering nationwide constraints on all places of entry. That’s a very clear signal this is going to ripen faster than an avocado you turned your back on.
So where we stand now, as of posting at least, is that there is currently a nationwide stay on the implementation of the travel ban. This makes clear the arbitrary nature of the ban. At some point today it was down to the timing of departure and prevailing winds whether one landed and passed through customs (pre-Gorton), was detained and returned upon arrival (post-Gorton) or again passed through customs (Robart). Never has a gate delay become so important. One could forgive passengers watching this unfold on wifi as they crossed the Atlantic begging their pilots to do a few more laps on approach prior to landing to wait for a more favorable ruling.
(2/4/17 Update: I’ve obtained a copy of Robart’s order included in footnote (7) below. In addition to granting an emergency stay on the travel ban it imposes a Temporary Restraining Order on the portions of the Executive Order which would’ve banned refugee entry. This is listed on pg5 of the order and refers to Sec5a-e. In summary that removes the ban on refugees in general, removes the ban on Syrian refugees in specific, prohibits prioritization of refugees based on religion and removes the yearly cap on refugees. The specific text can be found in the EO which is linked in footnote 1 of the InfoMullet: Judge Not. The text makes clear that the emergency stay and temporary restraining were granted because the Judge found that States were likely to succeed on the merits of their case and would suffer irreparable harm while the trials proceeded.)
(2/5/17 Update: The Trump administration filed an emergency appeal with the 9th Circuit Court of Appeals Saturday evening. These emergency filings are made to a three-judge panel that is a subset of the full court for which the actual appeal will be heard. Interestingly one of the Trump’s administration arguments was that the States do not have standing to bring this case. However the precedent set in Texas v. US, mentioned InfoMullet: Judge Not clearly shows that they do. Meaning a case ultimately decided by a 4-4 split Supreme Court continues to gain in importance.(8) Late Saturday in a one page ruling the emergency appeal was denied, meaning that the emergency stay on the travel ban and temporary restraining order on dismantling the refugee program remained in effect. The first hearings are scheduled for Monday 2/6/17.) (9) It’s not just the rulings of the cases that have enormous impact, but the timing that is being very closely watched as at any moment the overturning of the Seattle Judge’s ruling could “bar-the-door” to anyone attempting to enter the country, even if they are on-approach as it happens. This creates a climate that as Politico explains where:
“…the most-minute details of scheduling of the case are being closely watched by immigration advocates, employers and family members of individuals directly impacted by Trump’s action last week restricting travel to the U.S. from Iran, Iraq, Libya, Somalia, Sudan, Yemen and Syria, suspending virtually all refugee admissions for 120 days and indefinitely halting the arrival of refugees fleeing the fighting in Syria.
Every day the travel ban remains lifted allows more of those covered by the order to enter the country, nothwithstanding Trump’s warnings that those immigrants and travelers — all previously approved by the U.S. government—pose a grave risk to the U.S.”
(2) I originally pulled out my copies of the DoJ Reports on Ferguson and Balitimore but decided to leave just the NYPD Stop & Frisk data, lest the entire right half of the chart be one big overlapping series of bubbles. But, those wishing further reading (and sleepless nights) can peruse here: https://www.justice.gov/opa/file/883366/download https://www.justice.gov/opa/pr/justice-department-announces-findings-two-civil-rights-investigations-ferguson-missouri
(3) Any chart like this is perilous to produce because not only can it be somewhat subjective – but by its very nature it’s going to be both selective and easily run the risk of overlooking the obvious. Because a chart has relatively few dimensions it can’t capture all the way these events can be compared so I’ve only selected a few arbitrary dimensions. It took me a bit longer than I thought to get the chart settings to where the comparative nature was working in the way I wanted too with the proportionality correct. A full and meaningful comparative analysis could easily take up the scope of a dissertation – I did it in about 45-minutes in between researching the other elements of this InfoMullet. So if you think I’ve overlooked a key civil rights specific event and wish to see it added – leave a comment down below with a citation that makes the number impacted clear. I reserve the right of editorial control – I won’t post anything that by its very nature will make everything else on the chart disappear such as “Native American Treatment: 1600-2017” or “Slavery: 1617-1865.” This isn’t a contest, but a tool to put in context and comparison what may seem prominent in the minds of some I also may not have time to put things up based on what else is going on. The current citations for data on the chart are:
Lincoln’s numbers aren’t very well researched, but this source indicates that this is the lowest currently accepted estimate. https://quod.lib.umich.edu/j/jala/2629860.0005.103/–lincoln-administration-and-arbitrary-arrests?rgn=main;view=fulltext#note_3
The Internment of Japanese American is variably cited at between 110,000-120,000. https://en.wikipedia.org/wiki/Internment_of_Japanese_Americans
New York numbers are based on NYPD stop date multiplied by the rate where no convictions occurred (90%). http://www.nyclu.org/content/stop-and-frisk-data To prevent confusion stop & frisk is a Constitutional practice as determined by Terry v. Ohio, but the way in which the NYPD carried out stop & frisk was determined to be un-Constitutional at multiple court levels in David Floyd et. al. v City of New York http://ccrjustice.org/sites/default/files/assets/files/Floyd%20v%20City%20of%20New%20York%20-%20July%2030%202014%20Opinion%20and%20Order.pdf .