Trump Issues New, More Targeted Version of Travel Ban

President Trump yesterday issued a Proclamation (full text) (press release) (White House background document) setting out a more targeted version of his travel ban.  The travel restrictions in the prior ban expired yesterday, while the refugee restrictions in the prior ban extend to Oct. 24.  The new ban focuses around a "baseline for the kinds of information required from foreign governments" to allow U.S. vetting of immigrants and non-immigrants. The Administration determined that 7 nations fail to meet these standards: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen, and travel to the U.S. by nationals of those countries is largely banned. (Though restrictions on Venezuela are limited to travel here by government officials.) The Administration also found that Iraq does not meet the baseline standards, but excludes its nationals from new restrictions. A ban is placed on admission of immigrants from Somalia, even though it technically meets the baseline criteria. The Proclamation separately sets out the scope of the restrictions on each of the covered nations, tailoring each to the individual situations. (Fact Sheet; FAQs).

As reported by Reuters, these developments are likely to have an effect on the challenges to the prior travel ban pending in the courts.  The Supreme Court is scheduled to hear oral arguments on those challenges on Oct. 10. (See prior posting.) Yesterday the Administration asked the Supreme Court to consider receiving additional briefs to address the effects of the new Proclamation on the pending cases. Washington Post has additional reporting on the new Presidential Proclamation.

UPDATE: In an Order (full text) dated Sept. 25, the U.S. Supreme Court ruled:

The parties are directed to file letter briefs addressing whether, or to what extent, the Proclamation issued on September 24, 2017, may render cases No. 16-1436 and 16-1540 moot. The  parties should also address whether, or to what extent, the  scheduled expiration of Sections 6(a) and 6(b) of Executive Order No. 13780 may render those aspects of case No. 16-1540 moot.

Trump Issues Jewish High Holy Day Greetings

President Trump yesterday issued a Jewish High Holy Day Message (full text), saying in part:  "On behalf of all Americans, I want to wish Jewish families many blessings in the New Year."

President Holds High Holiday Teleconference With Jewish Leaders, Absent Many Who Boycotted the Annual Event

As reported by the Washington Post, today President Trump (along with Jared Kushner) participated in the traditional annual telephone call with Jewish leaders in advance of Rosh Hashanah. This year, however, leaders of the Reform, Conservative and Reconstructionist denominations boycotted the call in protest of Trump's remarks last month after Charlottesville.  In a statement, these leader charged that "The president’s words have given succor to those who advocate anti-Semitism, racism, and xenophobia." (Background.)  The White House released a transcript of remarks by the President and by Kushner at today's teleconference.  There the President said in part:

I am grateful for the history, culture, and values the Jewish people have given to civilization. We forcefully condemn those who seek to incite anti-Semitism, or to spread any form of slander and hate -- and I will ensure we protect Jewish communities, and all communities, that face threats to their safety.

Congress Sends Joint Resolution Condemning Hate Groups To President

Yesterday Congress gave final passage to Senate Joint Resolution 49 (full text) "condemning the violence and domestic terrorist attack that took place during events between August 11 and August 12, 2017, in Charlottesville, Virginia."  The Joint Resolution, that now goes to President Trump for his signature, reads in part:

Congress ... urges— ... the President and his administration to—

(i) speak out against hate groups that espouse racism, extremism, xenophobia, anti-Semitism, and White supremacy; and (ii) use all resources available to the President and the President’s Cabinet to address the growing prevalence of those hate groups in the United States; and 

[urges] the Attorney General to work with (i) the Secretary of Homeland Security to investigate thoroughly all acts of violence, intimidation, and domestic terrorism by White supremacists, White nationalists, neo-Nazis, the Ku Klux Klan, and associated groups in order to determine if any criminal laws have been violated and to prevent those groups from fomenting and facilitating additional violence....

Politico reporting on the action by Congress adds:

Though resolutions are often passed to offer the sense of the House or Senate on various issues, they rarely head to the president for consideration. But backers of this measure structured it as a "joint resolution," a move ensuring that passage would require Trump to weigh in on an issue that has dogged his presidency for weeks.

Malaysian Prime Minister Urges Trump To Support Moderate Muslim Regimes

Yesterday President Trump welcomed Malaysian Prime Minister Najib Abdul Razak to the White House.  Both leaders spoke briefly (full text of remarks) in the Cabinet Room before their private meeting. Among other things, Razak urged Trump to support progressive Muslim regimes, saying in part:

Daesh, IS, Al-Qaeda, Abu Sayyaf  ... are the enemy of the United States, they are also the enemy of Malaysia, and we will do our part to make sure that our part of the world is safe.

We will also contribute in terms of the ideological warfare because you need to win the hearts and minds.  And the key to it is to support moderate and progressive Muslim regimes and governments around the world, because that is the true face of Islam; that is the authentic face of Islam.  The more you align with progressive and moderate regimes, the better it would be in terms of winning the hearts and minds of the Muslim world.

President Trump responded: "Right".

Jockeying In Travel Ban Litigation Continues In Supreme Court

As previously reported, last week the U.S. 9th Circuit Court of Appeals in State of Hawaii v. Trump affirmed a district court's decision on the scope of President Trump's second travel ban executive order.  The decision essentially found that the executive branch had read an earlier order by the Supreme Court too narrowly both as to the travelers and refugees who could be excluded under the travel ban pending a Supreme Court decision on the merits. In a filing on Sept. 11, the government asked Justice Kennedy, the Circuit Justice for the 9th Circuit, to stay the portion of the 9th Circuit's mandate dealing with refugees who are still covered by the travel ban. The next day, Justice Kennedy issued an order temporarily staying that portion of the 9th Circuit's mandate. Today, the state of Hawaii filed its response, arguing in part:

The Government has returned to this Court, for the third time, to ask that it superintend the application of the injunction in this case. The first time the Government was here ... this Court set forth the legal standard that governs the injunction of Executive Order 13,780 ...: Any foreign national with a “bona fide relationship” with a U.S. entity—that is, a relationship that is “formal, documented, and formed in the ordinary course”—is protected from EO-2’s travel and refugee bans.... The second time, on July 19, 2017, the Court denied the Government’s request to “clarify” that the injunction does not apply to refugees who have received a formal assurance from a refugee resettlement agency, instead directing the Ninth Circuit to resolve the question....

The Ninth Circuit faithfully applied both of those directives. It determined ... that a refugee has a “bona fide” relationship with a resettlement agency that signs a formal, written assurance to provide for her housing, food, and other essentials of life. And the Ninth Circuit rejected the Government’s invitation to treat this Court’s July 19, 2017 stay as the merits decision the Court had declined to issue; instead, it performed the diligent analysis that is expected of an appellate court.

SCOTUSblog reports on developments.

UPDATE: On Sept. 12, the U.S. Supreme Court issued an order (full text) staying the 9th Circuit's mandate as it applies to refugees covered by a formal assurance of placement from a resettlement agency.  Refugees from countries covered by the travel ban whose only connection to the United States is such an assurance of placement will be able to be excluded, at least until the Supreme Court decides on the validity of the travel ban on the merits this term.

Pope Criticizes Trump's Action On DACA

Pope Francis yesterday on his way back to the Vatican from his trip to Colombia was sharply critical of President Trump's recent move to repeal DACA. As reported by Newsweek, the Pope said in part:

The president of the United States presents himself as pro-life, and if he is a good pro-lifer, he understands that family is the cradle of life and its unity must be protected.

9th Circuit Affirms Enforceable Scope of Travel Ban

In State of Hawaii v. Trump, (9th Cir., Sept. 7, 2017), the U.S. 9th Circuit Court of Appeals affirmed a federal district court's decision on the scope of President Trump's second travel ban executive order. The court affirmed the lower court's injunction barring enforcement of the Executive Order against

(1) grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and (2) refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program (“USRAP”) through the Lautenberg Amendment.

Honolulu Star Advertiser has more on the decision.

Trump Declares Sept. 3 As National Day of Prayer For Hurricane Victims

President Trump yesterday issued a Proclamation (full text) declaring Sept. 3 as a "National Day of Prayer for the Victims of Hurricane Harvey and for our National Response and Recovery Efforts." The Proclamation reads in part:

As response and recovery efforts continue, and as Americans provide much needed relief to the people of Texas and Louisiana, we are reminded of Scripture's promise that "God is our refuge and strength, a very present help in trouble."  Melania and I are grateful to everyone devoting time, effort, and resources to the ongoing response, recovery, and rebuilding efforts.  We invite all Americans to join us as we continue to pray for those who have lost family members or friends, and for those who are suffering in this time of crisis.

Challenge To First Travel Ban Is Settled

A Settlement Agreement (full text) has been reached in Darweesh v. Trump, (ED NY, Aug. 31, 2017), one of the challenges to President Trump's now-superseded first travel ban.  As described by the New York Times:

Under the settlement agreement, the federal government is required to identify and send a letter to every individual who was improperly barred from entering the country under the original travel ban, providing a list of free legal services organizations that can help recipients obtain visas or other entry documents. Approval is not guaranteed, but the government agreed to process their applications in good faith.

Suit Challenges Trump Ban On Transgender Individuals In Military

Yesterday three individuals and two advocacy groups filed a federal lawsuit challenging the constitutionality of the Trump Administration's recently implemented policy on transgender individuals serving in the military.  The complaint (full text) in Karnoski v. Trump, (WD WA, filed 8/28/2017) summarizes the lawsuit:

5. In the evening of Friday, August 25, 2017, President Trump followed up on his tweets and implemented an official federal policy of discrimination against transgender individuals in military service .... Among other things, President Trump has mandated that the U.S. military return to its earlier policy and practice of discrimination against transgender people, including by discharging them. He has also maintained and extended the current bar on accession into the military of individuals known to be transgender.... Last, he has singled out for adverse treatment the health care needs of transgender service members.

6. Dripping with animus, the Ban and the current accessions bar violate the equal protection and due process guarantees of the Fifth Amendment and the free speech guarantee of the First Amendment. They are unsupported by any compelling, important, or even rational justification.

Lambda Legal announced the filing of the lawsuit.

Trump Implements Continued Ban On Transgender Enlistment In Military

Yesterday President Trump issued a Presidential Memorandum (full text) implementing his previously announced intent to bar enlistment of openly transgender individuals in the U.S. military and to authorize the discharge of those already serving.  This action prevents the change in policy initiated by the Obama administration from taking effect.  President Trump's Memorandum reads in part:

In my judgment, the previous Administration failed to identify a sufficient basis to conclude that terminating the Departments' longstanding policy and practice would not hinder military effectiveness and lethality, disrupt unit cohesion, or tax military resources, and there remain meaningful concerns that further study is needed to ensure that continued implementation of last year's policy change would not have those negative effects....

The Secretary of Defense, and the Secretary of Homeland Security with respect to the U.S. Coast Guard, shall:

 (a)  maintain the currently effective policy regarding accession of transgender individuals into military service beyond January 1, 2018, until such time as the Secretary of Defense, after consulting with the Secretary of Homeland Security, provides a recommendation to the contrary that I find convincing; and

 (b)  halt all use of DoD or DHS resources to fund sex reassignment surgical procedures for military personnel, except to the extent necessary to protect the health of an individual who has already begun a course of treatment to reassign his or her sex....

As part of the implementation plan, the Secretary of Defense, in consultation with the Secretary of Homeland Security, shall determine how to address transgender individuals currently serving in the United States military.  Until the Secretary has made that determination, no action may be taken against such individuals under the policy set forth in section 1(b) of this memorandum.

White House Meets With Evangelical Leaders

Christian Post reports that last week the White House Office of Public Liaison held three separate 2-hour listening sessions with almost 100 evangelical Christian leaders. The sessions involved briefings from the Administration and a chance for religious leaders to express their views on various issues.

Trump Administration Reverses Policy Allowing Transgender Individuals To Serve In Military

Last year, Obama Administration Secretary of Defense Ash Carter announced that the ban on transgender individuals serving in the military was being lifted. (See prior posting.) Today, President Trump in a series of three Tweets (1, 2, 3) announced a reversal of that policy, saying:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.

Trump Meets With Supportive Evangelical Leaders

CNN reports that President Trump on Monday met in the Oval Office with a group of evangelical religious leaders.  These leaders comprise his Evangelical Advisory Board. Attendees included Johnnie Moore, a former senior vice president at Liberty University, Jack Graham, the pastor of the Prestonwood Baptist Church in Plano, Texas, and former Minnesota representative Michele Bachmann.  Vice President Pence also attended the meeting.  Photos posted by participants in the meeting show Trump with his head bowed in prayer surrounded by the religious leaders, some of whom have their hands on his shoulders.  Johnnie Moore told CNN:

We similarly prayed for President Obama but it's different with President Trump.  When we are praying for President Trump, we are praying within the context of a real relationship, of true friendship.

In yesterday's White House Press Briefing (full text) by Deputy Press Secretary Sarah Sanders, the following exchange about the President's meeting with faith leaders took place:

 Q    On the meeting with the Faith Advisory Board, someone tweeted out a picture of the meeting the other day, and there was a -- the picture showed people, faith leaders laying their hands on the President as they were praying.  And I think there was an inference or implication from that photo coverage that they were praying for him because of a political crisis.  Could you explain a little bit more about how the meeting came about and what it meant to the President to have them there?

MS. SANDERS:  The idea that somebody would only pray when they're in crisis I think makes you miss the entire point of what prayer is about.  You should do that every day, and that's -- I think you can do that in the best of times and the worst of times.  So I think it would be ridiculous to suggest the only time you might do that is in a time of crisis.

Q    How did the meeting come about?  And what did it mean to the President?

MS. SANDERS:  It’s his Faith Advisory Board, and they meet from time to time to speak about issues that are important to that community.

Supreme Court Grants Review and Partially Lifts Injunctions Against Trump's Travel Ban

The U.S. Supreme Court today in a per curiam opinion in Trump v. International Refugee Assistance Project, (Sup. Ct., June 26, 2017), granted certiorari and partially lifted the outstanding injunctions against enforcement of President Trump's second travel ban Executive Order.  Under the Court's decision, the 90-day ban on entry of nationals from 6 Muslim-majority nations:

may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2.

The Court gave illustrations of the line it was drawing:

For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member ... clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

The Court similarly partially lifted the injunction against enforcement of the suspension of refugee admissions and the lowering of the cap on refugees, saying:

An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded. As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, ... the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.....

.... Section 6(a) may not be enforced against an individualseeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States. Nor may §6(b); that is, such a person may not be excluded pursuant to §6(b), even if the 50,000- person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.

The Court also ordered that oral arguments in the case be heard during the first session of the October term of the Court. Justice Thomas, joined by Justices Alito and Gorsuch, in a separate opinion dissenting in part said that they would have stayed the preliminary injunctions in full and predicted extensive litigation over what constitutes a bona fide relationship. Washington Post reports on the decision.

Trump Extends Effective Date of Travel Ban To Prevent Case From Becoming Moot

President Trump yesterday issued a Memorandum (full text) designed to prevent a dismissal on mootness grounds of the government's attempt to obtain Supreme Court review of the constitutionality of his second travel ban Executive Order.  The major provisions of the travel ban imposed a 90-day suspension of entry into the country of nationals of six Muslim-majority nations, and a 120-day suspension of the entry of refugees, both to be measured from the March 16, 2017 effective date of the Order.  The new Memorandum issued June 14 provides:

In light of questions in litigation about the effective date of the enjoined provisions and in the interest of clarity, I hereby declare the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision.  To the extent it is necessary, this memorandum should be construed to amend the Executive Order.

Lyle Denniston has more on the President's action.

9th Circuit Upholds Most Of Injunction Against Second Travel Ban Without Reaching Establishment Clause Issue

Yesterday in an 86-page per curiam opinion in State of Hawaii v. Trump, (9th Cir., June 12, 2017), the U.S. 9th Circuit Court of Appeals upheld most of the injunction previously issued by an Hawaii federal district court barring enforcement of the major provisions of President Trump's second travel ban Executive Order.  Summarizing its holding the 9th Circuit panel said:

we affirm the injunction as to Section 2(c), suspending entry of nationals from the six designated countries for 90 days; Section 6(a), suspending USRAP for 120 days; and Section 6(b), capping the entry of refugees to 50,000 in the fiscal year 2017.

However the court vacated the injunction to the extent that it prevented the government from conducting inter-agency reviews that do not impact third parties. The court also limited the injunction to government officials other than the President himself.

In its decision, the court did not reach the Establishment Clause arguments. Instead, it relied on statutory grounds:

we conclude that Plaintiffs have shown a likelihood of success on the merits at least as to their arguments that EO2 contravenes the INA by exceeding the President’s authority under § 1182(f), discriminating on the basis of nationality, and disregarding the procedures for setting annual admissions of refugees.

The 3 judges deciding the case were all Clinton appointees. The Justice Department previously asked the Supreme Court to suspend the district court's injunction as the case moves through the entire appellate process.

Trump Speaks To Faith & Freedom Coalition Conference

Last Thursday, President Trump delivered a nearly 35-minute speech (full text) to the Faith and Freedom Coalition's Road to Majority Conference held in Washington, D.C.  Much of the address focused on campaign promises that Trump had made to Christian evangelical groups as well as on more general campaign promises.  Here are a few excerpts from his address:

Your voices will resound across the halls of our Capitol, and across the world.  We recite today the words of Isaiah Chapter 1, Verse 17:  “Learn to do right; seek justice.  Defend the oppressed.  Take up the cause of the fatherless; plead the case of the widow.”

The entrenched interests and failed, bitter voices in Washington will do everything in their power to try and stop us from this righteous cause, to try to stop all of you.  They will lie.  They will obstruct.  They will spread their hatred and their prejudice.  But we will not back down from doing what is right.  Because, as the Bible tell us -- (applause) -- we know that the truth will prevail, that God’s glorious wisdom will shine through, and that the good and decent people of this country will get the change they voted for and that they so richly deserve.  (Applause.) ....

As long as I'm President, no one is going to stop you from practicing your faith or from preaching what is in your heart and from preaching -- and really, this is so important -- from the bottom of my heart -- from preaching from the people that you most want to hear and that you so respect.  So we have taken a very, very strong position, and you picked a winner.  (Applause.)   

So we want our pastors speaking out.  We want their voices in our public discourse.  And we want our children to know the blessings of God.  (Applause.)  Schools should not be a place that drive out faith and religion, but that should welcome faith and religion with wide, open, beautiful arms.  (Applause.)  Faith inspires us to be better, to be stronger, to be more caring and giving, and more determined to act in selfless and courageous defense of what is good and what is right.  It is time to put a stop to the attacks on religion.  (Applause.)....  

Last month, I traveled to Saudi Arabia to speak to the leaders of more than 50 Muslim and Arab countries, and to rally them in the common fight against the terrorism, which is a menace to people of all religions....

Finally, because my administration is deeply committed to the right of religious believers everywhere to be free from persecution, I called on these leaders to protect Muslims, and Christians, and Jews, and people of all faiths.  Because you know what’s going on there.  And it’s horrible -- horrible.  Terrorism is a threat, and it is a big threat to religious liberty around the world.  And all responsible nations must protect the right of people to live and worship according to their conscience.  (Applause.) 

Justice Department Seeks Supreme Court Review and Stay In Travel Ban Cases [UPDATED]

As reported by the Washington Post, the Justice Department yesterday in two filing with the U.S. Supreme Court sought to overturn lower court decisions invalidating President Trump's second travel ban executive order.  The U.S. filed a petition for certiorari (full text) in Trump v. International Refugee Assistance Project, asking the Supreme Court to grant review of the 4th Circuit's en banc decision (see prior posting) upholding an injunction against enforcement of Section 2(c) of the Executive Order which imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen. It also filed a motion (full text) asking the Supreme Court to stay the lower court's injunction while the appeal to the Supreme Court is pending, and asking for expedited consideration of the cert. petition.  Responding to the request for expedited consideration, the Supreme Court on June 2 issued an order calling for respondents to file a response by June 12.

The government also filed an Application for Stay Pending Appeal (full text) in Trump v. State of Hawaii.  The Application asks the Court to stay the preliminary injunction (see prior posting) issued by a Hawaii federal district court while the appeal of that decision is being considered by the 9th Circuit, and to stay it further while any government appeal to the Supreme Court thereafter is pending.The Hawaii decision enjoined enforcement of both Section 2 of the Executive Order (90 day ban on entry into U.S. of nationals of six Muslim-majority nations) and Section 6 (120 day suspension of entry of refugees).