Rally to give women voice, 5 pm, 2/8/2017 US Capitol

Yesterday, in the course of speaking against Jeff Sessions’ appointment to the post of Attorney General, Senator Elizabeth Warren attempted to read into the record testimony originally given by Coretta Scott King in opposition to Sessions’ 1986 appointment to the federal bench. The Senate Majority leader, along with all other Republican Senators in attendance, refused to permit Senator Warren to finish her remarks, banishing her for allegedly inappropriately insulting a fellow Senator. Details of this episode here

In short, a woman, using other another woman’s words, to question a man was told, by a man, to shut up.

Today four male Democrat Senators read from Mrs. King’s testimony in the ongoing debate of Sessions’ suitability as Attorney General. They were all permitted to speak. 

The Senate Republicans may have prevented Senator Warren from entering Mrs. King’s words into the record, but they cannot prevent other women from entering those words into public discourse. Tonight, beginning at 5 pm at the Capitol Building, on the South side of the Senate building, women – and men – are invited to join in reading aloud the testimony of Coretta Scott King regarding Jeff Session’s fitness to uphold civil rights for all Americans.

This will be a peaceful gathering of ordinary people, assembling to exercise their rights under the First Amendment of the United States Constitution. 

Rally to give women voice, 5 pm, 2/8/2017 US Capitol

Tech companies amicus brief in 9th Circuit case of Washington v. Trump, annotated, explained

On Friday, February 4, the Department of Justice filed a brief in support of an emergency administrative stay of trial court Judge James Robart’s temporary restraining order blocking Donald Trump’s executive orders implementing a Muslim ban. That same day Ninth Circuit appellate court Judges Canby and Friedland denied the request for an immediate freeze on the TRO, and requested briefing from both plaintiff-appellees (the states of Washington and Minnesota) and the defendant-appellants (Trump and other executive branch officials, all represented by the DOJ). Appellees’ brief is due Sunday, February 5, at 11:59 pm PST.  Appellants reply is due Monday, February 6, 2017 at 3 pm PST. (Information at the Ninth Circuit’s web page dedicated to the case).

Meanwhile, an important, interesting, and well-crafted amicus brief on behalf of 97 tech companies, listed in Appendix A in the brief, below. I expect that Washington State will tackle the government’s interpretation of precedent and federal statutes in some detail. The job of an amicus brief is slightly different. A amicus writes as a “friend of the court”, stating its interest in the case and offering legal support specifically in favor of its interest. A good amicus brief is selective, surgically intervening in the swirl of arguments and counterarguments  made by the main parties to the suit raise.

As I have tried to illustrate with the annotations below, this is precisely what the tech companies’ amicus brief has accomplished. The companies’ brief pinpoints the economic threats to and disruptions of American business caused by the executive order, specifically in virtue of the ways in which it is illegal and unconstitutional. The brief argues that an unreasonable, arbitrarily enforceable, potentially open-ended executive order violates both Congressional statutes and Constitutional provisions requiring that immigration be handled in accordance with Due Process, Equal Protection, general reasonableness standards, and non-discrimination on the basis of national origin. To highlight how the technology amicus brief does this I have annotated the copy below. The actual brief begins at page 7 of 53; the earlier material states the argument for the court to accept the brief.

Tech companies amicus brief in 9th Circuit case of Washington v. Trump, annotated, explained

What happens when federal litigation on related questions booms-as now with Trump executive orders

(Warning: this is a primer, oversimplifications ahead.)

Various people have brought different lawsuits against Donald Trump and his administration, claiming the unconstitutionality and illegality of Trump’s executive orders restricting travel, colloquially known as “the Muslim ban.”  Because these lawsuits raise federal constitutional questions and claim Trump has violated federal statutes, the cases have all been brought in federal court. But there isn’t just one big “federal court.” There is the federal court system. It has both a horizontal and a vertical dimension.  Horizontally, the federal judicial system is divided into circuits and then sub-circuits. When a plaintiff sues in federal court, she starts in a trial court in a particular sub-circuit. Which one usually depends upon either where she resides or where the injury she is alleging happened. When a cause of harm manifests in many places-like a nationwide ban on immigration ordered by the President-it often triggers multiple suits, each one brought by a different plaintiff or group of plaintiffs seeking relief for the specific injury the harmful conduct has caused her or them. Because of differences in the factual circumstances and differences in the legal theories each plaintiff sues upon, the initial trial court decisions at the horizontal level will vary in meaning even if all of them temporarily restrain the governmental action in question.

As trial court orders are appealed, the vertical dimension of the federal judicial system kicks in. A federal district court judge’s decision can be appealed. If it is, the case is generally reviewed by a panel or subset of that district’s appellate judges. For example,  a decision of the court in the Western District of Washington, in Seattle, can be appealed to the Ninth Circuit (not every trial court order or decision is immediately appealable, but for purposes of this discussion, I am oversimplifying). When that subset or panel rules, the losing party can request review of the entire group of appellate judges for the circuit (en banc). Finally, a party who loses a case upon en banc review can petition for review by the U.S. Supreme Court. There is no right to Supreme Court review. The Court decides whether to take any given case.

In a situation like the current one, where the losing party (Trump in his official capacity and the Executive Branch officials implementing the orders) is the same across the original trial court orders, whether and which vertical next moves are made are the choice of the losing party. The Department of Justice, which represents the Executive Branch of the U.S. Government, has to decide which orders to appeal, considering the content or significance of an individual case and the likelihood of winning on appeal. So far, Trump’s DOJ has fought, and won, one effort to renew a TRO (not an appeal of the original TRO), in Massachusetts; and today has decided to appeal the most wide-reaching and, in my opinion, forceful ruling staying the executive orders, which was issued in Seattle, by the Judge James Robart of the Western District of Washington State. Judge Robart had scheduled argument as to whether to make the temporary restraining order permanent, but since the Executive Branch has decided to appeal the temporary order those arguments may be postponed.

Meanwhile, the government may file appeals in other cases in circuits other than the Ninth , and the plaintiffs in Massachusetts (who lost the renewal of the TRO) may decide to appeal that ruling. If there are simultaneous appeals proceeding vertically, the different circuits could end up with different results on the constitutionality or legality of the Executive Orders, in what is called a circuit split. Sometimes the Supreme Court decides to consolidate several appeals from the circuits to resolve a split, sometimes the Court chooses one case because deciding it would effectively decide the split, and in some instances (though certainly not this one), the Supreme Court does not resolve a circuit split, meaning that the opinions of the appellate courts in each circuit control the law in that circuit.

Scholars and analysts have much to say about the pros and cons of the horizontal and the vertical dimensions of the federal judiciary. Setting aside these larger debates, what matters for now is whether there will be a relatively quick decision at the appellate level of any circuit and then whether the loser will appeal the case to the Supreme Court and then whether the Supreme Court takes that case or waits to see what, if any, splits or consensus emerges among the various circuits.

Should Trump withdraw the Executive Orders or should Congress take action to negate them, the current wave of lawsuits would stop or stall. The federal courts would not become involved again unless or until the Executive promulgated new orders which could be litigated or the Executive chose to challenge the constitutionality of any Congressional action that might be taken.

What happens when federal litigation on related questions booms-as now with Trump executive orders

TRO opinion in Washington State litigation against Muslim ban EOs, explained and annotated

The state of Washington was the first state to file its own lawsuit alleging the unconstitutionality of the Trump bans on immigration. This development was significant because states are uniquely positioned to challenge unconstitutional executive orders. They have standing to litigate on behalf many of their affected  residents (under the U.S. extension of parens patriae doctrine). They also have standing to litigate the unique harms that they as states can suffer, e.g. injury to state university systems or state economic wellbeing. Today, Judge James L. Robart, a federal district court court judge in the Western District of Washington State, issued a temporary restraining order (TRO) against the Trump executive orders and provided an opinion that tees up the sort of ongoing litigation likely to wind up in the U.S. Supreme Court. Below is a copy of Judge Robart’s opinion in support of the TRO. I have highlighted passages to aid in following Judge Robart’s reasoning and indicated with green check marks especially significant findings has made.

TRO opinion in Washington State litigation against Muslim ban EOs, explained and annotated

A win for Grab Your Wallet, a win for resistance, a win for activism

Before the Women’s March, before the airport and other protests, before Donald Trump won the Electoral College, people began participating in #GrabYourWallet (more background here). This boycott of retailers who sell Ivanka Trump or Donald J. Trump brands was one of the first forms of grass-roots consumer activism against the Trump administration. Today, February 2, 2017 Nordstrom announced it will not continue to carry Ivanka Trump merchandise. Nordstrom does not officially reference #GrabYourWallet in its announcement but it does reference “brand performance” as its metric for dropping or adding brands. Of course, a boycott of a retailer will affect “performance” of brands sold there.

Whether it be closing your bodega in New York City, switching from Uber to Lyft, or participating in grabyourwallet, you can vote every day through the choices you make as a business owner or as a shopper.

A win for Grab Your Wallet, a win for resistance, a win for activism

Emoluments Clause Violation Cited in New Complaint Filed Against Muslim Ban EOs

A new complaint alleging injury to specific plaintiffs – U.S. citizens and their Yemini relatives – has been filed in federal district court in California. This complaint adds an interesting ingredient to those already filed against Trump’s Muslim ban Executive Order: It specifies that Donald Trump’s breach of the Emoluments Clause directly motivated his decision about which countries to include in (and exclude from) the Executive Orders banning entry into the U.S. If this ground of the complaint is ultimately upheld, and the case is decided against Trump on this basis, it would establish in federal court that Donald Trump’s unconstitutional violation of the Emoluments Clause is directly harming U.S. citizens. That’s some hefty “ifs” and we won’t have resolution of the case any time soon. But just spelling out how Trump’s unconstitutional acceptance of gifts and favors from foreign entities is influencing his administration, and causing harm to specific individuals, shows how private individuals might well have standing to sue Trump on this issue.

Below, I’ve annotated the complaint with non-lawyer readers in mind. I’ve paid special notice to the development of the grounds and argument connecting Trump’s breach of the Emoluments Clause, the content of his Muslim ban Executive Orders, and how that combination yields discrete injury to distinct individuals.

Emoluments Clause Violation Cited in New Complaint Filed Against Muslim Ban EOs

Adding 1st Amendent, RFRA to fight against “extreme vetting”: Complaint in Massachusetts Federal Court annotated

Late yesterday, another complaint was filed seeking injunctive relief against the executive orders prohibiting reentry into the US of lawful US residents who are also foreign nationals from certain countries. Below is the complaint filed in federal district court in Massachusetts, annotated by me to highlight legal bases for declaring these orders unconstitutional and unlawful that were not already asserted in other complaints filed, such as the one in federal court in New York. The Massachusetts complaint asserts that the EOs violate the First Amendment and the Religious Freedom Restoration Act. By providing additional bases for overturning the EOs, this complaint paves the way for the broadest possible number of objections to be considered by higher courts in the upcoming fights over the final status of the orders.

Adding 1st Amendent, RFRA to fight against “extreme vetting”: Complaint in Massachusetts Federal Court annotated