Trump’s refugee order lands in the courts

UPDATE: Monday night, acting Attorney General Sally Yates told Department of Justice (DOJ) attorneys not to defend President Donald Trump’s immigration executive order in court. Trump had asked Yates, a longtime U.S. attorney who rose to deputy attorney general in 2015 under President Barack Obama, to lead the DOJ while Sen. Jeff Sessions, R-Ala., awaited confirmation as attorney general.

“I am responsible for ensuring that the positions we take in court remain consistent with this institution’s solemn obligation to always seek justice and stand for what is right,” Yates wrote in a letter to attorneys that leaked to the press. “At present, I am not convinced that the defense of the executive order is consistent with these responsibilities nor am I convinced that the executive order is lawful.”

She notably did not argue the order was unconstitutional, just that it was not “lawful.” Many of the legal challenges to the order are based on constitutional rather than statutory grounds.

Within two hours of the letter’s publication, the White House announced the president had fired Yates. A White House statement said Yates “betrayed” the DOJ by refusing to enforce an order approved by the White House Office of Legal Counsel. The statement said Yates “is weak on borders and very weak on illegal immigration.”

Trump named U.S. Attorney Dana Boente to fill the role of acting attorney general, and Boente said he would defend the executive order in court.

OUR EARLIER REPORT (1/30/17, 2:45 p.m.): NEW YORK—The lawsuits began flying almost as quickly as crowds formed at New York’s John F. Kennedy International Airport last weekend to protest President Donald Trump’s executive order on refugees and immigrants. The Trump administration now has a battle on several fronts: in the press, in Washington as a number of Republicans have questioned the action, and in the courts.

A federal judge in Brooklyn, N.Y., became the first to issue a broad, and somewhat vague, emergency stay on the detention of refugees and immigrants who had already legally arrived in the United States. District Judge Ann Donnelly wrote that removing those who had arrived would “violate their rights to due process and equal protection guaranteed by the United States Constitution.” Absent an emergency stay, the judge wrote, there would be “substantial and irreparable injury” to refugees and others who had been granted legal status.

Lawyers from the American Civil Liberties Union and Yale Law School filed the Brooklyn case on behalf of an Iraqi translator who served the U.S. government and contractors for a decade and was detained at JFK. Donnelly’s stay applied not just to him, but nationwide. Three other federal judges elsewhere in the country followed, issuing stays on detention and deportation for specific individuals arriving in their jurisdictions.

Most of those detained in airports have been released, but the legal fight over Trump’s controversial order is just beginning. The order is sure to face additional lawsuits as legal groups find appropriate plaintiffs for their cases—plaintiffs whose personal experiences of harm from the order would best advance the challengers’ cases.

The Trump Department of Justice (DOJ) has until Feb. 10 to respond to Donnelly’s ruling. With the emergency stay already in place, the ongoing case has been randomly assigned to another district judge, Carol Bagley Amon (incidentally a George H.W. Bush appointee). The DOJ could appeal the emergency stay to the 2nd U.S. Circuit Court of Appeals, or go directly to the currently short-handed U.S. Supreme Court.

On Monday, Washington state Attorney General Bob Ferguson, a Democrat, filed a lawsuit challenging the order on constitutional grounds. It’s an interesting turn of events after Republican state attorneys general argued that former President Barack Obama had abused executive power in an immigration executive order the Supreme Court effectively struck down.

In the meantime, the Trump administration is still hashing out publicly the details of the order for green card holders and others, including military translators who would be blocked from immigrating due to the country-specific bans. A New York Times report indicated the White House did not consult lawyers and leaders of the key agencies involved prior to the order, which, if true, could signal a rocky road for the order in court.