Obviously, the story of the morning on Monday is going to be the rather tumultuous weekend that resulted from the Executive Order on immigration signed by President Trump late Friday afternoon (at least until the news cycle gets overtaken by President Trump’s Supreme Court nominee–the announcement of which has been moved up from Thursday for… well… obvious reasons). In case you’ve had trouble keeping score (I know I have), I thought it would be useful to start the week with a brief post recapping the work of the courts (and the lawyers) on Saturday and Sunday, where things stand as we head into the work week, and what the big questions are for the next few days. Before turning to substance, let me disclaim now any attempt to be comprehensive in my summary of the cases or questions presented; I’m going off of what I’ve been able to piece together as of Sunday night, with help (for which I’m grateful) from Yule Schmidt and Nate Roth at NYU. It’s entirely possible that the five orders discussed below are not the sum total of the work of the federal courts on this subject since yesterday, and I’ll do my best to provide updates as appropriate. For now, though, my goal in chronicling these cases is to help the public and media understand exactly what the courts have ordered, both in general and so that interpretations of government compliance can be more informed and exacting.
I. The Five Orders
At this writing (just before midnight EST on Monday, January 30), there have been at least five orders from five different district courts issuing various forms of temporary relief against the Executive Order. And although the chronologically first order (from Judge Donnelly in Brooklyn) got the most media attention, the most expansive order came later–from Judges Burroughs and Dein in Boston.
The Yale Law School Worker and Immigrants’ Rights Advocacy Clinic, the International Refugee Assistance Project, the National Immigration Law Center, the ACLU Immigrants’ Rights Project, and Kilpatrick Townsend & Stockton LLP together brought this representative habeas action on behalf of all detained travelers from the seven banned countries who were lawful permanent residents, who held valid visas, or who were other individuals from the seven listed countries (Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen) legally authorized to enter the United States. Judge Ann Donnelly of the Eastern District of New York issued an order staying the removal of anyone in the class. While the government initially expressed doubt as to the order’s scope, it later conceded that the order applies nationwide (although there is some controversy about the propriety of such nationwide orders). The order will remain in effect at least through February 21, when the government’s reply brief is due, and almost certainly longer pending a hearing. Critically for present purposes, though, the order is focused only on removal–and says nothing at all about travel to the United States, admission into the United States, or detention at the border of anyone encompassed by the Executive Order.
The ACLU of Massachusetts, together with Demissie & Church and Graves & Doyle, filed habeas petitions on behalf of two lawful permanent residents—both Iranian nationals who are professors at the University of Massachusetts-Dartmouth—who were detained at Logan Airport on their way home from an academic conference. In an order co-authored by District Judge Allison Burroughs and Magistrate Judge Judith Gail Dein, the U.S. District Court for the District of Massachusetts granted what appears to be a nationwide stay of removal (referring to all those who are “similarly situated” to the petitioners) that was superficially similar to the order in the Brooklyn case, but that went several important steps further. Thus, the Massachusetts order provides that the government:
- “[S]hall limit secondary screening to comply with the regulations and statutes in effect prior to the Executive Order, including 8 U.S.C. § 1101(a)(13)(C)”; and
- “[S]hall not, by any manner or means, detain or remove [those covered by the Executive Order] who, absent the Executive Order, would be legally authorized to enter the United States.”
The order is in effect for seven days—through Saturday, February 4.
The Legal Aid Justice Center and Mayer Brown LLP brought this action on behalf of two lawful permanent residents and a group of others detained at Dulles Airport, and challenged the detention of permanent residents on the basis of the executive order. On January 28, Judge Leonie Brinkema issued a Temporary Restraining Order requiring that attorneys be allowed access to all lawful permanent residents detained at Dulles (but not nationwide), and barring the government from deporting such individuals, for seven days from the issuance of the order–i.e., through February 4. Unlike the Brooklyn and Boston orders, Judge Brinkema’s ruling was limited to lawful, permanent residents–who, according to DHS Secretary John Kelly, will not in fact be covered by the Executive Order going forward.
In Seattle, the ACLU of Washington, the Northwest Immigrant Rights Project and the Pacifica Law Project filed a habeas petition and stay motion on behalf of two individuals detained at Sea-Tac airport. The district court granted the emergency stay, setting a hearing for 10am on Friday, February 3 (and therefore applying the stay at least until that date). The Doe stay is the narrowest of the five orders, as it bans the removal only of the two unnamed petitioners pending further order of the court.
The ACLU of Southern California and the Law Offices of Stacy Tolchin brought this habeas action on behalf of a man with a valid immigrant visa who had been denied entry under the Executive Order. After the petition was filed, the petitioner was put on a plane to Dubai and removed from the United States. On January 29, Judge Dolly Gee ordered the government to permit him to return to the United States and to admit him pursuant to his approved visa–and to “communicate the terms of this Court’s order immediately to officers in Dubai, and to authorities in the airport in Dubai holding Petitioner on Respondents’ orders.” The order sets a hearing on the petition for February 10 at 9:30 a.m. (PST).
II. Where Things Stand
As the above summaries should make clear, these orders are both bigger and smaller than they’ve generally been made out to be in the media. The most significant features, of course, are the putatively nationwide temporary bans on the removal of anyone subject to the orders in the Brooklyn and Boston cases (assuming, as noted above, that the Boston order is indeed nationwide in its scope; there’s some room for argument there), and on the detention of anyone subject to the order in the Boston case. The Virginia case is limited to legal permanent residents (LPRs), and may now be moot unless other non-LPR plaintiffs are added; the Seattle case was focused on two specific detainees; and the Los Angeles case, although it imposed the most aggressive relief, was focused on a single detainee. It seems likely that, by the time of the hearings in these cases, the Virginia, Seattle, and Los Angeles cases may well be moot due to the individual circumstances of the petitioners in those cases, leaving the Brooklyn and Boston cases as the key decisions from the weekend.
As for what the orders do, some of that depends on whether they truly apply nationwide. If so, then it is unlawful under the order in the Boston case for any individual who was legally entitled to enter the United States prior to the issuance of the Executive Order to be detained between now and next Saturday. That’s not just those with green cards and other folks with lawful immigration status; that’s everyone potentially impacted by the Order. So if the government (through Noel Francisco, who, as Acting Solicitor General is theoretically in charge of decisions to appeal) is looking for the order that is the most impactful, it seems obvious that it’s Boston.
But let’s also be clear about what the orders don’t do: They don’t resolve the myriad legal challenges to the Executive Order–including claims that the Order is inconsistent with statutory rules for processing visa applications, refugees, and other arriving non-citizens; that it violates the Due Process Clause; that it violates equal protection; and that it violates the Establishment Clause. Although all five orders are predicated on the conclusion that the plaintiffs have a likelihood of success on the merits of their challenges to the Executive Order, the potential for irreparable harm absent judicial intervention in this case weighed so heavily and uniformly in favor of judicial intervention that we ought not to confuse such interim relief with merits-based invalidation of the Executive Order. Nor do these orders have any impact on folks affected by the Executive Order who haven’t been stuck at airports–either because they’re already here in the United States (and now can’t leave), or because they’re somewhere overseas (and now can’t get here). Put another way, a series of very important legal battles were fought this weekend, but in the broader context of this Executive Order, they were but minor skirmishes in comparison to the legal war that’s necessarily coming…
III. What Happens Now?
All of this leads me to the bottom line: We’ll see what happens with the “Airport Cases,” but the real drama has yet to unfold. Soon–perhaps as early as Monday–we should expect a broad-based legal challenge to the entire Executive Order, not from folks in limbo in various international airports in the U.S., but from plaintiffs who are both lawfully present inside the United States and overseas with prior legal authorization to travel here. Those plaintiffs might also seek interim relief, but it will be under circumstances not quite as chaotic as what we saw this weekend, and with more time for the parties (ahem–paging you, Justice Department) to sharpen their legal arguments. Thus, although this weekend was a remarkable reminder of the value of the rule of law (and the role of lawyers), we should be careful not to overstate its practical or legal significance. We still have no definitive resolution of whether congressional statutes or the Constitution itself prohibits the Administration from taking the very steps the Executive Order commands, especially as applied to those non-citizens whose immigration status is less secure than most of the plaintiffs in the Airport Cases, and/or who just happened not to be in international transit this past weekend.
Image: Protesters stand together at the Miami International Airport against the executive order that President Donald Trump signed clamping down on refugee admissions and temporarily restricting travelers from seven predominantly Muslim countries on January 29, 2017 in Miami, Florida. Demonstrators gathered at airports across the country in protest of the order — Joe Raedle / Getty