How Law Enforcement and the Faith Community Can Work Together for Cities

NLC Senior Consultant Jack Calhoun lays out four steps city leaders can take to build stronger, safer and more caring communities by building links between police and faith-based organizations.

Boston Mayor Marty Walsh speaks to police and members of the clergy during a meeting to address the city’s gun violence at police headquarters in Boston on Aug. 17, 2015. (Keith Bedford/The Boston Globe via Getty Images)

This is a guest post by Jack Calhoun.

Throughout American history, the faith community has played a seminal role in setting our nation’s value base, informing fundamental constitutional beliefs, providing basic services — especially in the medical and educational arenas — and leading seismic social changes including the abolition of slavery, women’s suffrage and the Civil Rights Movement.

Faith-based organizations (FBOs) are not only among the largest, most concentrated groups of activists and volunteers in the nation, but in potentially volatile situations, they play an important connecting role between the community and city authorities like mayors, councilmembers and police. In short, for America’s law enforcement community, FBOs can serve as an essential resource, both quantitatively (thanks to the number of volunteers) and qualitatively (as a trusted communication link).

The faith community can serve as a critical link between police and the citizens they protect and serve — and city leaders can build stronger, safer communities by taking steps to reinforce this connection.

Build a Trusted Link

Religious figures can serve as a powerful calming influence, defusing potentially volatile situations and even garnering a public show of support for the police. At the same time, they can serve as law enforcement’s most trenchant critics. And they can offer this support or criticism via the media, from the church pulpit, on the street corners, or at city hall.

But they can only do so in an effective manner if trust has been built over time, carefully, consciously, in a planned manner. If police turn to the faith community for support following an officer-involved shooting, for example, but no relationship has been built between the two entities over time, this response can be characterized as exploitation — or, at best, a barely-adhering band aid. This invites only suspicion and hostility.

Conversely, cities with embedded partnerships between the faith community and law enforcement or city officials typically do not experience citizen uprisings after officer-involved shootings. The essentials of this partnership: regularly scheduled meetings over months and years, and when an “incident” occurs, speed and full transparency.

Examples: after a recent shooting in Boston, the Reverend Jeffrey Brown noted that “within 24 hours of the shootings, they [the police] had footage of what happened, and they called the community, the clergy and NAACP representatives to look at the footage together. That is the level of transparency that builds trust.” In 2016, both Charlotte, North Carolina, and Tulsa, Oklahoma, reported officer-involved shootings. The situation in Charlotte resulted in public outcry and heavy criticism of the police — but this didn’t occur in Tulsa. Why? The New York Times reported that the Reverend Warren Blakney, pastor of one of Tulsa’s largest black churches and president of the local NAACP, cited community trust in Mayor Dewey Bartlett. Blakney said that the mayor “has worked hard to establish ties with the black community in north Tulsa, attending Sunday services at African-American churches most weekends.”

Start with the Personal

Relationships between law enforcement and the faith community may eventually have to be formalized, but they usually begin on a personal level. Police worship in local churches or sing in local choirs, and peaceful protests in many cities actively involve the police, either as protectors or fellow marchers.

In Baltimore, clergy often ride along with police on duty, providing an ear for officers struggling with the chronic stress than can develop as a result of their daily work. In Boston, cops and clergy visit troubled students from Boston’s public schools. And in Stockton, California, Police Chief Eric Jones shifted town hall meetings to smaller settings, like living rooms, community centers and churches, in an effort to move his department closer to the community. Larger town hall meetings in Stockton had often became raucous and accusatory, but the listening process in these more personal settings confirmed and pinpointed many of the trust gaps and helped move the police force closer to some of its most disenfranchised and suspicious stakeholders.

Move to Larger Programs

Community Renewal International, a social services organization in Shreveport, Louisiana, builds large Habitat for Humanity houses in the town’s most crime-ridden areas. The houses are then staffed by people of faith who serve as mentors, tutors and directors of afterschool programs. Crime has dropped almost 50 percent in Shreveport’s target areas.

Another example: former Brooklyn, New York, District Attorney Joe Hynes launched his “Youth and Congregations in Partnership” program, which links volunteer mentors from more than 100 churches, mosques and synagogues to certain offenders coming through the courts. According to officials in the district attorney’s office, the program has cut recidivism significantly. Hynes also has a larger goal: to start the healing process for offenders and prevent “those who are hurting [from coming] back to hurt.”

Finally, members of the faith community in Portland, Oregon, intervene to stop sex trafficking in Halladay Park and help the vulnerable young women who are being trafficked. Because of the faith community’s close working relationships with the police, officers will often divert potential arrestees to the interveners as well. The group reports a 50 percent reduction in crime in the park. In gratitude, Portland officials provide the group with raincoats, vests, jackets and umbrellas for their work in the city’s rainy climate.

Incorporate the Faith Community’s Calling

In cities across America, the faith community has opened its facilities for sports, afterschool programs and restorative justice. It has mentored and tutored. Faith-based organizations can be found in the streets working with a city’s most volatile youth, connecting positive adult role models to disconnected youth, and linking community pain to city programs and policy through advisory councils to police and mayors. In this way, the faith community acts as a voice for social justice, speaking truth to power.

City leaders, and the law enforcement communities they oversee, can amplify this voice and benefit from the faith community’s calling to work for social justice and better the world around them. While they employ different strategies, and view their cities from different perspectives, both groups ultimately share the same goal: to build stronger, safer and more caring communities.

For more information on how city leaders can improve police-community relations, read “Building Trust Between Police and the Communities They Serve” and “6 Essential Tenets for Effective Community Policing.”

Jack CalhounAbout the author: John A. “Jack” Calhoun is an internationally-renowned public speaker and frequent media guest and editorial contributor. He currently serves as senior consultant to the National League of Cities and is the founder and CEO of Hope Matters. For more than 20 years, Mr. Calhoun was the founding president of the National Crime Prevention Council, prior to which he served under President Carter as the Commissioner of the Administration for Children, Youth and Families. His new book, Policy Walking: Lighting Paths to Safer Communities, Stronger Families & Thriving Youth, is available now.

Is Your City at Risk of Losing Federal Funding?

There are three main questions that cities need to be aware of when dissecting the political rhetoric around sanctuary cities.

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The Trump administration has directed the Department of Justice (pictured above) and the Department of Homeland Security to withhold funding from sanctuary jurisdictions — an order that raises more questions than it answers for cities. (Getty)

This April recess, NLC is encouraging city leaders to engage with their members of Congress while they are at home in their districts for two weeks. Don’t let Congress leave America’s cities behind — join us this week and next as we #FightTheCuts proposed in the administration’s budget.

This post is part of a series on the 2018 federal budget.

Is your city at risk of losing federal funding following the Trump administration’s sanctuary cities executive order? Despite the rhetoric we are hearing, we think the short answer is no — at least, not anytime soon. Many legal issues would need to be resolved before the federal government could act to withhold grant funding from any so-called “sanctuary” jurisdiction.

The courts must first determine the constitutionality of enforcing President Donald Trump’s executive order directing the Department of Homeland Security and the attorney general to withhold funding from jurisdictions with sanctuary policies. Recently, nearly 300 legal scholars sent a letter to the president that argued the executive order violates the Fourth and Tenth Amendments of the Constitution. The cities of San Francisco and Seattle have already filed injunctions to stay the order, and a decision on the cases is expected shortly.

Let’s be clear. When dissecting the political rhetoric around sanctuary cities, there are three main questions that cities need to be aware of: What is a sanctuary jurisdiction? How do Immigration and Customs Enforcement (ICE) detainers affect a sanctuary jurisdiction? What does cooperation with ICE mean for cities?

First, there is no legal definition of a sanctuary city/jurisdiction. Last year, Congress tried to define a “sanctuary jurisdiction” as a local government that specifically prohibits its government officials from sharing information with federal immigration information officers, which would be a violation of U.S.C. 8 §1373. While the Department of Justice’s inspector general determined that some jurisdictions have policies that limit the types of information local officials collect on immigration status, that did not mean the jurisdictions were in violation of Sec. 1373.

Second, the immigration hawks that are promoting sanctions against sanctuary cities focus their arguments on compliance with voluntary ICE detainer requests. There is no requirement that a local jurisdiction comply with a detainer request. If a jurisdiction does not comply with a detainer request, that does not make them a sanctuary, regardless of what anti-immigration activists argue.

ICE has the authority to issue a detainer request to any law enforcement agency that has in their custody an immigrant charged or convicted of a crime. Compliance with the detainers is voluntary and at the discretion of the local jurisdiction or law enforcement agency. The courts have ruled that detainer requests violate a person’s rights under the Fourth Amendment because they lack probable cause to arrest and keep someone in jail after they have served their time.

The irony in this whole debate is that ICE has broad authority to issue a warrant for arrest for the same immigrant, which would not violate the Fourth Amendment. When asked why ICE continues to issue detainer requests instead of warrants for arrest, the simple answer is that, to do so, they would have to provide probable cause for the warrant. So, while every other local law enforcement officer must show probable cause before arresting someone, ICE seems to believe they are excluded from this constitutional requirement. The courts, however, disagree with ICE’s determination. Several federal courts have ruled in recent years that local jurisdictions can be held liable for violating immigrants’ civil rights if they detain them at the request of ICE without a court order.

Third, local law enforcement agencies cooperate routinely with ICE and other federal law enforcement agencies to arrest and remove the most dangerous immigrants that are part of drug cartels and gangs. Recent enforcement actions by ICE are increasingly focusing on undocumented immigrants who have been in the country for years and have become woven into the fabric of our communities. Their children attend schools with our children. They contribute to the local economy and support local programs.

Local law enforcement works closely with these communities by building trust to keep the public safe. Local governments consider the risk of tearing up immigrant families and communities, disrupting the local economy, and eroding the trust between law enforcement and the communities they serve.

It is the sole responsibility of the federal government to enforce immigration laws. The president, the attorney general and ICE have made it a top priority to enforce immigration deportation for anyone who is in this country illegally, but this does not mean it must be the top priority of local governments. While local governments should not prevent ICE from performing its duties, they are not responsible for enforcing federal immigration laws.

Ultimately, it is the responsibility of Congress to fix our broken immigration system. The National League of Cities (NLC) has a clear policy position on comprehensive immigration reform, and cities need to urge their Congressional delegation to stop the corrosive political rhetoric against cities and fix our broken immigration system.

City leaders are doing their jobs — and now it is time for Congress to do its job.

Learn more about NLC’s efforts to fight back against proposed budget cuts to city funding.

yucel_ors_125x150About the author: Yucel (“u-jel”) Ors is the Program Director of Public Safety and Crime Prevention at the National League of Cities. Follow Yucel on Twitter at @nlcpscp.

Local Governments Sue Over Sanctuary Jurisdictions Executive Order

The executive order is under litigation – but how worried should cities be that the president will actually take away money from sanctuary jurisdictions in the near future?

San Francisco is one of a number of cities that have sued the Trump administration in response to the sanctuary cities executive order, arguing that enforcing federal immigration laws does not relate to federal funding they receive for infrastructure, health care, education or other fundamental systems. (Getty Images)

Five days after assuming office, President Donald Trump signed an executive order threatening to take away federal funding from so-called sanctuary jurisdictions. The executive order leaves it to the Secretary of Homeland Security to define “sanctuary jurisdictions.” Unsurprisingly, a number of cities and counties have sued the president over this executive order, including Santa Clara County, San Francisco and Richmond, California, Seattle, and Lawrence and Chelsea, Massachusetts.

By mid-April, a court will likely grant or deny a preliminary injunction in the Santa Clara County case. We know the legal allegations the cities and counties have made against the president, and the president has responded to the Santa Clara County and San Francisco lawsuits.

All of the complaints make different arguments and frame the legal issues slightly differently. Here are the three main arguments:

1) Spending Clause

The U.S. Constitution’s Spending Clause allows Congress to place conditions on federal money local governments receive. The local governments argue that Spending Clause authority resides with Congress – not with the president. Even if Congress had the authority to take away federal funding from sanctuary jurisdictions per the Spending Clause, the president lacks the same authority as a matter of separation of powers.

The Supreme Court has ruled that conditioning the receipt of federal funds may not be coercive, and that the conditions must be stated unambiguously and relate to the federal interest in the grant program. The local governments suing President Trump argue that these requirements are not met.

In NFIB v. Sibelius (2012), Chief Justice John Roberts famously described the Affordable Care Act’s requirement to withhold all Medicaid funding if states refused to agree to the Medicaid expansion as a coercive “gun to the head.” In that case, states stood to lose more than 10 percent of their overall budget by not agreeing to the Medicaid expansion. Santa Clara County, for example, claims it will lose 15 percent of its budget if it loses all federal funding.

The Supreme Court has stated that when Congress, using its spending power, imposes conditions on the receipt of federal funds, it must do so “unambiguously.” None of the federal funding local governments receive requires them to participate in enforcing federal immigration laws.

Likewise, the Supreme Court has held that the conditions Congress places on federal grants must be “germane” or “related to” the federal interest in the grant program. The local governments argue that enforcing federal immigration laws does not relate to federal interests in federal funding they receive for infrastructure, health care, education, etc.

2) Fourth and Tenth Amendments

The sanctuary jurisdictions executive order states that the attorney general may take “appropriate enforcement action” against any entity which has in effect a “statute, policy or practice that prevents or hinders the enforcement of federal law.” This language – and the fact that the executive order reestablished Secure Communities and requires the Secretary of Homeland Security to publish a weekly list of jurisdictions that don’t honor Immigration and Customs Enforcement (ICE) detainers – has lead local governments to conclude that the executive order requires local governments to comply with ICE detainers.

In their lawsuits, the local governments claim that complying with ICE detainers violates the Tenth and Fourth Amendments.

When someone is arrested, ICE receives their fingerprints and may request through an ICE detainer that a local government hold the person so that ICE can pick them up and deport them. Numerous courts have held that complying with ICE detainers violates the Fourth Amendment because such detainers are rearrests not supported by a warrant.

Following the sanctuary jurisdictions executive order, Miami-Dade County decided to comply with ICE detainers and was sued. A judge ruled that Miami-Dade County lacks the power under the Tenth Amendment, which reserves powers not delegated to the federal government to the state, to comply with warrantless ICE detainers. Enforcing federal immigration law is the sole responsibility of the federal government.

3) 8 U.S.C. 1373

The sanctuary jurisdictions executive order requires local governments to comply with 8 U.S.C. 1373. This statute bars prohibitions on government entities from maintaining or sharing citizenship or immigration status information.

The local governments suing in this case note that 8 U.S.C. 1373 does not require them to collect information about immigration status. They do not collect this information and are therefore in compliance with 8 U.S.C. 1373, they argue.

San Francisco argues that it complies with 8 U.S.C. 1373 but that the statute violates the Tenth Amendment. The Supreme Court has interpreted the Tenth Amendment to contain an anti-commandeering requirement wherein local governments cannot be required “to enact or administer a federal regulatory program.”

Federal response

President Trump’s response to the Santa Clara County and San Francisco complaints should alleviate any fears that the president intends to take away any money from sanctuary jurisdictions any time soon. The administration’s response to the Santa Clara County complaint describes five steps which would have to occur before any local government will be deprived of federal funds (none of which have yet occurred):

(1) the Attorney General and the Secretary of Homeland Security must determine exactly what constitutes “willful refusal to comply with 8 U.S.C. § 1373;” (2) the Secretary must identify any state or local governments that constitute “sanctuary jurisdictions” and make formal designations to that effect; (3) the Secretary and the Attorney General must decide which federal funding sources are “necessary for law enforcement purposes;” (4) the Secretary and the Attorney General must then determine how to “ensure” that sanctuary jurisdictions are ineligible to receive the relevant grant funds; and (5) the Secretary and the Attorney General must determine how to implement those actions “consistent with law.”

A few aspects of the administration’s response to the Santa Clara County and San Francisco complaints are noteworthy.

First, both responses avoid defending the constitutional claims; instead, the administration argues that, because no federal funding has been taken away from either local government, the cases aren’t yet ready to be reviewed by a court.

Second, the administration disavows the notion that all federal funding can be taken away from sanctuary jurisdictions. More specifically, in the Santa Clara County complaint, the administration argues that only jurisdictions that “willfully refuse to comply” with 8 U.S.C. 1373 become “not eligible to receive Federal grants.” But as Santa Clara County points out in its response, “it is telling that the administration neither identifies a single grant that imposes that condition nor addresses the numerous bills to do so that Congress considered and rejected.”

Finally, both administration responses conspicuously avoid any acknowledgement that the executive order may require local governments to comply with warrantless ICE detainers.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations, including the National League of Cities, representing state and local governments. She is a regular contributor to CitiesSpeak.

Why the City of New Orleans Just Ended Cash Bail for Low-Risk Crimes

A new policy promises to save the city money and enable the court to tailor conditions to an individual rather than relying on a person’s ability to pay.

By choosing to reserve pretrial jail detention only for those who pose a real public safety or flight risk, the city of New Orleans is leading the way toward more fair and effective justice system policies in Louisiana. (Getty Images)

In the past, low-income defendants who were charged with minor municipal offenses in New Orleans faced a quagmire. People with charges such as loitering or public intoxication could face up to a month in jail before they even went to trial simply because they could not afford bail. Sometimes, these charges would not have resulted in any jail time even if the individual was found guilty. On any given day, three out of 10 jail beds were filled by people incarcerated simply because they could not afford to pay their bail or fines and fees. In New Orleans, as in many other cities, the problems within the system disproportionately affected minority communities. In 2015, black New Orleanians, who comprise roughly 59 percent of the population, paid $5.4 million in bond premiums, or 84 percent of the $6.4 million total.

Losing a primary caregiver or earner to jail for even three days can devastate a family with few resources, leading to a cascade of problems including eviction, job loss and possibly intervention from child protective services.

Jailing people only because they cannot afford bail not only hurts families but costs cities money as well. In 2015, New Orleans spent $6.4 million detaining people who were jailed simply because they could not pay. This equates to 3,947 people who spent a total of 199,930 days in jail.

In response to these issues, the city of New Orleans recently passed an ordinance which ends the use of cash bail for municipal offenses for low-risk crimes. While the legislation eliminates the practice of cash bail for most municipal offenses, it also meets public safety needs by providing exceptions for charges such as simple battery and domestic abuse violence. In these cases, the municipal court makes a decision to impose non-financial release conditions or, in rare cases, preventative detention. The new policy also provides exceptions for people who get rearrested or fail to appear for their court date.

Starting in April, people charged with minor municipal offenses, regardless of their ability to pay, will be able to return to their families and take care of their responsibilities while waiting for their case to come before a judge. Passed unanimously by the city council in January, the ordinance has the support of both law enforcement and community advocates.

Support from the Pretrial Justice Institute, the Vera Institute of Justice, and the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge helped the city accomplish this crucial change to our local justice system. As the lead sponsor of the legislation, I prioritized this reform to make sure New Orleans uses its resources wisely, reduces harm to families and communities, and protects public safety.

Read more about NLC’s efforts to support criminal justice reform.

About the author: Councilmember Susan Guidry was elected to the New Orleans City Council as the District A representative in March 2010, and was elected to a second term in 2014. Guidry has served as chair of the council’s Criminal Justice Committee throughout her tenure.

Supreme Court Midterm Review for Local Governments 2017

The Supreme Court’s 2016-2017 docket is now set – and a number of cases will directly impact local governments.

photo - Supreme Court in Spring with Fountain

The Court may decide to rehear tied (4-4) cases next term, when a new Justice will presumably join the bench. (Getty Images)

This article covers cases of interest to local governments which the Court accepted after September 15, 2016 and agreed to hear this term. (Here is a summary of cases of interest to local governments which the Court agreed to hear before September 15, 2016.) The Court is still down a Justice, but has accepted as many cases as usual (about 75) on its 2016-2017 docket. In theory, all the cases discussed below will be decided by June 30, 2017.

The Supreme Court’s decision from this term most likely to receive significant media attention involves a transgender student who wants to use the bathroom consistent with his gender identity. However, Gloucester County School Board v. G.G. will not directly affect local governments.

Provocation

In Los Angeles County v. Mendez,* the Supreme Court must decide whether to accept or reject the Ninth Circuit’s “provocation” rule. Per this rule, “where an officer intentionally or recklessly provokes a violent confrontation, if the provocation is an independent Fourth Amendment violation, he may be held liable for his otherwise defensive use of deadly force.”

It is undisputed that police officers used reasonable force when they shot Angel Mendez. As officers entered, unannounced, the shack where Mendez was living they saw a silhouette of Mendez pointing what looked like a rifle at them. Yet the Ninth Circuit awarded him and his wife damages because the officers didn’t have a warrant to search the shack, thereby “provoking” Mendez.

The Mendezes also argue that, putting the provocation theory aside, the officers are liable in this case because their unconstitutional entry “proximately caused” them to shoot Mendez. Many Americans own guns, so the Court argued it is reasonably foreseeable that, if officers barge into a shack unannounced, the person in the shack may be holding a gun.

Qualified Immunity

United States Border Patrol Agent Jesus Mesa, Jr., shot and killed Sergio Adrian Hernandez Guereca, a fifteen-year-old Mexican national, who was standing on the Mexico side of the U.S.-Mexico border. At the time of the shooting, Agent Mesa didn’t know that Hernandez was a Mexican citizen.

One question in Mesa v. Hernandez is whether qualified immunity may be granted or denied based on facts unknown to the officer at the time of the incident, such as the victim’s legal status. The Fifth Circuit granted Agent Mesa qualified immunity based on the fact that Hernandez was a Mexican citizen even though Agent Mesa didn’t know that at the time of the shooting.

Given the rapid pace of police work, it is not unusual for officers to learn a variety of information after they have used force, which supports their qualified immunity claim (i.e. the person they shot had a gun, had threatened another officer or citizen, etc.). Considering this kind of after-the-fact information in the qualified immunity analysis would be favorable to officers.

But the question in this case is whether qualified immunity may be granted or denied based on facts discovered later. In some cases, officers may learn after-the-fact information that undermines their claim for qualified immunity (i.e. the person they shot stated he had a weapon but did not, had been mistakenly perceived to have threatened another officer or citizen, etc.). Considering this kind of after-the-fact information in the qualified immunity analysis would be unfavorable to officers.

Free Speech

During the fall, the Supreme Court accepted three First Amendment free speech cases. This is not good news for local governments, as the Supreme Court routinely and sometimes unanimously votes against states and local governments in First Amendment free speech cases.

Packingham v. North Carolina* is probably the First Amendment case of most interest to local governments as the Supreme Court is likely to discuss whether the statute at issue in the case is content-based or content-neutral.

The issue in this case is whether a North Carolina law prohibiting registered sex offenders from accessing commercial social networking websites, where the registered sex offender knows minors can create or maintain a profile, violates the First Amendment.

Lester Packingham was charged with violating the North Carolina statute because he accessed Facebook. In the posting that got him in trouble, Packingham thanked God for the dismissal of a ticket.

If a statute limits speech based on content, it is subject to strict (nearly always fatal) scrutiny. In Reed v. Town of Gilbert, Arizona (2015), the Supreme Court held that the definition of content-based is very broad.

The North Carolina Supreme Court concluded that the statute is a “content-neutral” regulation because it “imposed a ban on accessing certain defined commercial social networking websites without regard to any content or message conveyed on those sites.”

Waters of the U.S.

The Supreme Court has agreed to decide whether federal courts of appeals versus federal district courts have the authority to rule whether the “Waters of the United States” (WOTUS) regulations are lawful in National Association of Manufacturers v. Department of Defense.

Per the Clean Water Act, a number of decisions by the Environmental Protection Agency (EPA) Administrator must be heard directly in federal courts of appeals, including agency actions “in issuing or denying any permit.”

A definitional regulation like the WOTUS regulation does not involve the issuing or denying of a permit. Nevertheless, the Sixth Circuit Court of Appeals concluded that it has jurisdiction to decide whether the WOTUS regulations are lawful.

Judge McKeague, writing for the court, relied on a 2009 Sixth Circuit decision National Cotton Council v. EPA, holding that this provision encompasses “not only… actions issuing or denying particular permits, but also… regulations governing the issuance of permits.” The definition of WOTUS impacts permitting requirements.

…and more

The work of the Supreme Court never ends. The Court has already accepted one case for next term involving a local government. In District of Columbia v. Wesby, the Supreme Court will decide whether, when the owner of a vacant house informs police he has not authorized entry, an officer assessing probable cause to arrest those inside for trespassing may discredit the suspects’ claims of an innocent mental state.

*Indicates a case where the SLLC has filed or will file an amicus brief.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center (SLLC), which files Supreme Court amicus curiae briefs on behalf of the Big Seven national organizations representing state and local governments. She is a regular contributor to CitiesSpeak.

What’s Next for President Trump’s Travel Ban

The executive order on refugees has had a significant impact on America’s cities – but it could also be an indicator of how the president’s executive orders will generally be interpreted throughout the legal system moving forward.

(Getty Images)

Litigation will likely continue regarding President Trump’s travel ban, which prohibits refugees and other visitors from predominantly Muslim countries from entering the United States. (Getty Images)

On February 9, the Ninth Circuit Court refused to stay a district court’s temporary restraining order disallowing President Donald Trump’s travel ban from going into effect. The executive order prevents people from seven predominately Muslim countries from entering the United States for 90 days.

The states of Washington and Minnesota sued President Trump, claiming their public universities are harmed because students and faculty of the affected countries cannot travel for research, academic collaboration, or personal reasons. A wide swath of people are affected by this executive order, including refugees, legal residents, and visa holders who may have different rights and legal claims based on their status.

The government argued that the president has “unreviewable authority to suspend admissions of any class of aliens.” The Ninth Circuit disagreed, stating “there is no precedent to support this claimed unreviewablity, which runs contrary to the fundamental structure of our constitutional democracy.”

The Ninth Circuit agreed with the district court that the states are likely to succeed on the merits of their claim that the executive order violates the due process rights of lawful permanent residents, non-immigrant visa holders, and refugees. More specifically, the executive order provides no notice and hearing before restricting a person’s right to travel and “contravenes the procedures provided by federal statute for refugees seeking asylum.”

Technically speaking, no court has yet ruled on the merits of this case – instead, the courts have only temporarily prevented the executive order from going into effect based on their view that the government is likely to ultimately lose. The purpose of a temporary restraining order is to stop a likely unlawful activity until a full briefing can occur to determine if unlawful activity is in fact occurring.

In response to the temporary restraining order, the president Tweeted, “SEE YOU IN COURT.” We have every reason to believe the litigation in this case will continue, so what are the president’s options?

A run-of-the-mill case would now go back to the district court where the legal issues would be fully briefed. The district court would then issue an opinion determining definitively whether the executive order is unconstitutional. That ruling could then be appealed back to the Ninth Circuit and ultimately the U.S. Supreme Court. However, President Trump has two other options.

First, he can ask the U.S. Supreme Court to stay the district court’s temporary restraining order while the case is being fully briefed at the district court. This request would go to Justice Anthony Kennedy, who oversees emergency appeals from the Ninth Circuit. Justice Kennedy could rule on this issue alone or ask the entire Court to rule (which is probably more likely). Five votes from the current eight Justices would be needed to temporarily reinstate the ban. As Amy Howe of SCOTUSblog notes, “if the government can’t get those votes – which could be difficult, given the temporary and relatively narrow nature of the court’s ruling – the ban could remain on hold while its full merits are litigated in the lower courts.”

Second, instead of going directly to the Supreme Court, President Trump could ask the entire Ninth Circuit to stay the district court’s temporary restraining order while the case is being briefed at the district court.

Two other technical points about this case that could affect whether and how it is litigated are noteworthy. First, the travel ban only lasts for 90 days, so at some point very soon the litigation in this case could be moot unless the president extends the travel ban. Second, President Trump could modify the executive order to cure the due process problems the Ninth Circuit pointed out. However, this might not be enough. Washington and Minnesota raised numerous claims in addition to due process which the Ninth Circuit did not rule on for the sake of expediency. However, the Ninth Circuit went out of its way to describe, but not rule on, the states’ religious discrimination claim – which at the very least implies that the court thought this claim might be valid as well.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.

Refugee Executive Order Faces Legal Challenges

Judges in New York and Boston, among other cities, have prevented parts of the executive order on refugees from going into effect temporarily, citing possible violations of the U.S. Constitution’s Due Process and Equal Protection Clauses.

(Wikimedia Commons)

Protestors have gathered at airports across the country, such as the Metropolitan Airport in Detroit (above), to protest President Trump’s executive order barring refugees and other visitors from predominantly Muslim countries from entering the United States. (Wikimedia Commons)

President Donald Trump’s refugee executive order has resulted in confusion and lawsuits which will continue to be resolved in the upcoming months. On Monday night, acting Attorney General Sally Yates directed Justice Department attorneys not to defend the executive order in court. President Trump quickly fired her. Dana Boente was promptly sworn in, and has instructed DOJ lawyers to “defend the lawful orders of our president.”

Cities preparing to receive Syrian refugees and others are having to change plans. Additionally, cities have been affected by protests, airports have been overrun, and 16 attorneys general have spoken out against the executive order.

While not all aspects of the executive order are entirely clear, it includes the following:

  1. People from the following countries may not enter the United States for the next 90 days: Iraq, Syria, Iran, Libya, Somalia, Sudan, and Yemen
  2. Syrian refugees are banned from the United States indefinitely
  3. No refugees will be allowed into the United States for the next 120 days
  4. Only 50,000 (versus 110,000 last year) refugees will be allowed in the United States in 2017
  5. Refugees with religious-based persecution claims will be prioritized where they are of a minority religion in their country of origin

Judges in New York, Boston, Virginia, and Seattle have issued temporary injunctions against various aspects of this executive order, citing a variety of legal grounds.

A wide swath of people will be affected by this executive order, including refugees, legal residents, and visa holders who may have different rights and legal claims based on their status. Adding to the complexity, the Immigration and Nationality Act appears contradictory. It gives the president of the United States broad power to ban classes of people for periods of time “as he shall deem necessary” – yet it also states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”

Numerous legal theories have been relied on and are being discussed as grounds for challenging this executive order.

Judges in New York and Boston prevented parts of the executive order from going into effect temporarily, citing possible violations of the U.S. Constitution’s Due Process and Equal Protection Clauses. Due process generally requires that a person is afforded an opportunity to be heard (for example, at a hearing before an impartial decision-maker) before they are deprived of a right. Equal protection requires that the government not treat people differently on the basis of race, ancestry, or religion.

David Cole, Legal Director for the American Civil Liberties Union (ACLU), sees this executive order as essentially a Muslim-only ban on immigration which violates the Constitution’s Establishment Clause. While it doesn’t explicitly ban anyone on the basis of religion, the fact that it applies to seven Muslim-majority countries and creates, practically speaking, preferences for Christians, is enough to make it unconstitutional, Cole argues.

lisa_soronen_new_125x150About the author: Lisa Soronen is the Executive Director of the State and Local Legal Center and a regular contributor to CitiesSpeak.