Trump Commutes Sentence of Sholom Rubashkin

The White House announced yesterday that President Trump has commuted the prison sentence of Sholom Rubashkin, saying that it was "an action encouraged by bipartisan leaders from across the political spectrum, from Nancy Pelosi to Orrin Hatch." According to the White House's announcement:

Mr. Rubashkin is a 57-year-old father of 10 children.  He previously ran the Iowa headquarters of a family business that was the country’s largest kosher meat-processing company.  In 2009, he was convicted of bank fraud and sentenced thereafter to 27 years in prison. Mr. Rubashkin has now served more than 8 years of that sentence, which many have called excessive in light of its disparity with sentences imposed for similar crimes.

This action is not a Presidential pardon.  It does not vacate Mr. Rubashkin’s conviction, and it leaves in place a term of supervised release and a substantial restitution obligation, which were also part of Mr. Rubashkin’s sentence.

In 2011, the 8th Circuit upheld Rubaskin's conviction and sentence. (See prior posting.) After his bank fraud conviction, charges against Rubashkin of hiring of illegal aliens in his meat packing plant were dropped.  Des Moines Register reports on developments, along with further background.

Trump Nominates Feldblum For Additional Term On EEOC

The White House announced earlier this week that President Trump has sent to the Senate the nomination of Chai R. Feldblum for an additional 5-year term on the Equal Employment Opportunity Commission.  Her current term expires on July 1, 2018.  Feldblum is the first openly lesbian EEOC Commissioner.  The EEOC enforces federal employment anti-discrimination laws, including laws prohibiting religious discrimination. Newsweek reports on the nomination.  The conservative blog Power Line speculates that the nomination is part of a deal to expedite a vote on at least one of two other EEOC nominees previously put forward by Trump: — Janet Dhillon and David Gade.

4th Circuit En Banc and 9th Circuit Hear Arguments In Challenge To Third Travel Ban

On Wednesday, a 3-judge panel of the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in State of Hawaii v. Trump, a challenge to President Trump's third travel ban Proclamation. In the case a Hawaii federal district court-- without reaching the Establishment Clause question-- issued a nation-wide temporary restraining order barring enforcement of most portions of this latest, more focused, version of President Trump's travel ban.  The court (See prior posting.)  The Hill reports on the arguments.

Yesterday, the U.S. Fourth Circuit Court of Appeals, sitting en banc, heard two hours of arguments (audio of full arguments) in International Refugee Assistance Project v. Trump, another challenge to the same travel ban Proclamation.  In the case, a Maryland federal district court held that the Proclamation violates provisions of the Immigration and Nationality Act that prohibit denial of immigrant visas on the basis of nationality, and that, like the prior two bans, the third travel ban also violates the Establishment Clause. (See prior posting.)  The Hill reports on the arguments.

Earlier this week, the U.S. Supreme Court granted a stay of the preliminary injunction while appeals are pending in both cases.  (See prior posting.)

President Hosts Hanukkah Reception At White House

Yesterday evening President Trump and the First Lady hosted a Hanukkah party in the East Room of the White House. In his remarks (full text), the President said in part:

The miracle of Hanukkah is the miracle of Israel. The descendants of Abraham, Isaac, and Jacob have endured unthinkable persecution and oppression.

But no force has ever crushed your spirit, and no evil has ever extinguished your faith. And that is why the Jewish people shine as a light to all nations. And right now I’m thinking about what’s going on and the love that's all over Israel and all about Jerusalem. (Applause.)

On behalf of all Americans, I also want to say how grateful I am for Jewish congregations throughout our country. You cherish your families, support your communities, and uplift our beloved country.

Photos from the reception are posted on the President's Instagram account.

Supreme Court Stays Preliminary Injunction Against Trump's 3rd Travel Ban

The U.S. Supreme Court today granted a complete stay of the preliminary injunction that a Hawaii federal district court had issued against President Trump's third travel ban. The 9th Circuit had lifted the ban in part. (See prior posting.)  But today's order (full text) in Trump v. Hawaii (Sup. Ct., Dec. 4, 2017) stays the injunction completely while the case is being appealed to the 9th Circuit and then to the Supreme Court.  The Supreme Court noted that the 9th Circuit is handling the appeal on an expedited basis.  Justices Ginsburg and Sotomayor indicated that they would have denied the stay application.  Washington Post reports on today's ruling by the Supreme Court. [corrected]

UPDATE: Later today the U.S. Supreme Court issued a similar stay while appeals are pending of a preliminary injunction against the third travel ban that has been issued by a Maryland federal district court. (See prior posting.)  Today's order (full text) comes in Trump v. International Refugee Assistance Project, (Sup. Ct., Dec. 4, 2017).  Again Justices Ginsburg and Sotomayor disagreed with the majority.

Trump's Retweets of Islamophobic Videos Distress British Leaders

The Independent this morning reports that Donald Trump's retweeting of Islamophobic videos first posted by Jayda Fransen, deputy leader of the far-right Britain First movement, has caused consternation among British leaders. 

President Trump's Thanksgiving Proclamation

Today is officially Thanksgiving.  The Thanksgiving Day 2017 Proclamation issued last week by President Trump sets the date.  It also recounts the history of the holiday and then goes on, in part, to say:

Today, we continue to celebrate Thanksgiving with a grateful and charitable spirit.  When we open our hearts and extend our hands to those in need, we show humility for the bountiful gifts we have received.  In the aftermath of a succession of tragedies that have stunned and shocked our Nation -- Hurricanes Harvey, Irma, and Maria; the wildfires that ravaged the West; and, the horrific acts of violence and terror in Las Vegas, New York City, and Sutherland Springs -- we have witnessed the generous nature of the American people.  In the midst of heartache and turmoil, we are grateful for the swift action of the first responders, law enforcement personnel, military and medical professionals, volunteers, and everyday heroes who embodied our infinite capacity to extend compassion and humanity to our fellow man.  As we mourn these painful events, we are ever confident that the perseverance and optimism of the American people will prevail.

...  We also offer a special word of thanks for the brave men and women of our Armed Forces.... As one people, we seek God's protection, guidance, and wisdom, as we stand humbled by the abundance of our great Nation and the blessings of freedom, family, and faith.

US Asks Supreme Court For Full Stay Pending Appeal of Injunction Against 3rd Travel Ban

As previously reported, a week ago the U.S. 9th Circuit Court of Appeals stayed in part the preliminary injunction issued by a Hawaii federal district court against enforcement of President Trump's third travel ban.  Yesterday, the government filed an application (full text) in the case (Trump v. State of Hawaii) seeking to have the preliminary injunction stayed completely while the case works its way through appeals to the 9th Circuit and to the Supreme Court.  According to a report from SCOTUSblog, the Justices have asked the challengers to file a response to the government's application by Nov. 28.

Trump Adds 5 Names To List of Potential Supreme Court Nominees

On Friday, just before White House Counsel Donald F. McGahn delivered the Barbara K. Olson Memorial Lecture at the Federalist Society National Lawyers Convention, the White House issued a release announcing the addition of five names to the President's list of potential Supreme Court nominees. Among the five is Amy Coney Barrett who on Oct. 31 was confirmed for a position on the 7th Circuit after controversy over her views on reproductive rights, abortion, LGBTQ rights, as well as controversy over her statement in a 1988 law review article urging Catholic judges to recuse themselves in capital cases because of Catholic teaching opposing capital punishment. (See prior posting.) Other new names on the President's list are: Britt C. Grant (Georgia Supreme Court Justice); Brett M. Kavanaugh (Judge on the D.C. Circuit);  Kevin C. Newsom (11th Circuit Judge); and Patrick Wyrick (Oklahoma Supreme Court Justice).  The Hill reports on these developments.

New Suit Challenges Latest Limits on Refugees From 11 Countries

A lawsuit was filed yesterday in a Washington federal district court challenging the Oct. 24 Executive Order that resumes the admission of refugees to the United States, but with increased vetting of those from 11 countries. (See prior posting.)  The 44-page complaint (full text) in Jewish family Services of Seattle v. Trump, (WD WA, filed 11/13/2017) contends:

Refugee Ban 3.0 implements defendant Donald Trump’s and his Administration’s often repeated goal of banning Muslim refugees from the country. Of all Muslim refugees resettled in the United States in the last two fiscal years, 80% were from the nine Muslim majority countries whose nationals are subject to this most recent suspension.

HIAS issued a press release announcing the filing of the lawsuit.

Injunction Against Trump's 3rd Travel Ban Is Lifted In Part

In State of Hawaii v. Trump, (9th Cir., Nov. 13, 2017), the U.S. 9th Circuit Court of Appeals stayed in part the preliminary injunction issued by a Hawaii federal district court against enforcement of President Trump's third travel ban. (See prior posting.)  The 9th Circuit held:

The preliminary injunction is stayed except as to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States....

The injunction remains in force as to foreign nationals who have a “close familial relationship” with a person in the United States.... Such persons include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins.... “As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [Proclamation 9645].”

Reuters reports on the decision.

Trump Sends Holiday Greetings To Sikhs

On Nov. 4, the White House released a statement (full text) from President Trump sending "warm wishes to Sikh Americans and Sikhs around the world as they celebrate the birth anniversary of Guru Nanak Devji, the founder and first guru of Sikhism."

Court Blocks Trump's Memo On Transgender Enlistment And Service In Military

A D.C. federal district court yesterday issued a preliminary injunction barring enforcement of the portions of President Trump's Memorandum on Military Service by Transgender Individuals that would have prevented enlistment and service by transgender persons.  In a 76-page decision in Jane Doe 1 v. Trump, (D DC, Oct. 30, 2017), the court said in part:

As a form of government action that classifies people based on their gender identity, and disfavors a class of historically persecuted and politically powerless individuals, the President’s directives are subject to a fairly searching form of scrutiny. Plaintiffs claim that the President’s directives cannot survive such scrutiny because they are not genuinely based on legitimate concerns regarding military effectiveness or budget constraints, but are instead driven by a desire to express disapproval of transgender people generally. The Court finds that a number of factors— including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the President’s announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of those reasons by the military itself—strongly suggest that Plaintiffs’ Fifth Amendment claim is meritorious.

The court held plaintiffs lack standing to challenge the Memorandum's provisions blocking funds for sex reassignment surgery. New York Times reports on the decision.

Supreme Court Dismisses As Moot Remaining Travel Ban Challenge On Its Docket

Yesterday, as President Trump's prior Executive Order barring admission of refugees expired and a new Executive Order took effect, the U.S. Supreme Court issued an order (full text) in Trump v. Hawaii in which it had previously granted review to decide on the constitutionality of the President's second travel ban.  In the order the Court vacated the judgment below and remanded to the 9th Circuit with instructions to dismiss as moot the challenge to the prior Executive Order.  Justice Sotomayor dissented from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted. The Court earlier dismissed another challenge on similar grounds. (See prior posting.)

Another Court Enjoins Enforcement of Third Travel Ban

In International Refugee Assistance Project v. Trump, (D MD, Oct. 17, 2017), a Maryland federal district court became the second court (see prior posting) to bar enforcement of most of the third version of President Trump's travel ban.  As did the Hawaii federal district court the day before, the Maryland federal court held that the Presidential Proclamation violates provisions of the Immigration and Nationality Act that prohibit denial of immigrant visas on the basis of nationality.  Disagreeing with the Hawaii federal court, it held that the government had made an adequate fining of "detrimental interest" to justify the ban.

Reaching an issue that the Hawaii court had avoided, the Maryland federal court concluded that, like the prior two bans, the third travel ban also violates the Establishment Clause.  It concluded that the third version of the ban is merely "the inextricable re-animation of the twice-enjoined Muslim ban." The court said in part:

... [A] simple check on the demographics of the geographic area affected by the Proclamation, with a combined population that is predominantly Muslim, reveals that its impact closely aligns with religious affiliation....  Likewise, the inclusion of two non-majority Muslim nations, North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the Proclamation. The Venezuela ban is qualitatively different from the others because it extends only to government officials, and the ban on North Korea will, according to Department of State statistics, affect fewer than 100 people....

Thus, while Defendants assert that the Proclamation’s travel ban was arrived at through the routine operations of the government bureaucracy, the public was witness to a different genealogy, one in which the President—speaking “straight to the American people,” ... announced his intention to go back to and get even tougher than in EO-1 and EO-2.... 

The reasonable observer using a “head with common sense” would rely on the statements of the President to discern the purpose of a Presidential Proclamation.... Here, those statements do not offer “persuasive” rejection of the President’s prior calls for a Muslim ban, or his stated intention to use a ban on certain “dangerous territory” to effectuate a Muslim ban, ... nor do they show that the stated intention to impose a Muslim ban has been “repealed or otherwise repudiated” 

The court, while issuing a nationwide injunction, limited its injunction to visa applicants who have a credible claim of a bona fide relationship with a person or entity in the United States, ad defined in prior litigation on the President's travel bans.  It also excluded travelers from Venezuela or North Korea. CNN reports on the decision.

Court Bars Enforcement of Most of Trump's Third Travel Ban

In State of Hawaii v. Trump,(D HI, Oct. 17, 2017), a Hawaii federal district court issued a nation-wide temporary restraining order barring enforcement of most portions of the latest, more focused, version of President Trump's travel ban. (See prior related posting.)  This version, set out in a Presidential Proclamation  and scheduled to take effect today, covers travel to the U.S. by nationals of eight countries.  The court banned enforcement of the Proclamation ("EO-3") against nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia.  Plaintiffs had not sought a ban on enforcing the provisions barring travelers from North Korea and some travelers from Venezuela.  The court summarized:

Ignoring the guidance afforded by the Ninth Circuit that at least this Court is obligated to follow, EO-3 suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be “detrimental to the interests of the United States,” a precondition that the Ninth Circuit determined must be satisfied before the Executive may properly invoke Section 1182(f). Hawaii, 859 F.3d at 774. And EO-3 plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to both Section 1152(a) and the founding principles of this Nation. Hawaii, 859 F.3d at 776–79.

As with the 9th Circuit's earlier decision (see prior posting), this approach allowed the court to avoid reaching plaintiff's argument that the Proclamation amounts to an unconstitutional "Muslim ban."  Anticipating an appeal, the court also ruled that it would not stay its Order pending any appeal.  CNN reports on the decision.

UPDATE: On Oct. 20, the court converted the TRO to a preliminary injunction. (Full text of order.)

Trump Addresses Values Voter Summit

Yesterday, President Trump gave a 30-minute address (full text) to the 2017 Values Voter Summit in Washington, D.C., becoming the first sitting President to address the annual event.  His remarks focused largely on themes of faith and of religious liberty. Here are some excerpts:

George Washington said that “religion and morality are indispensable” to America’s happiness, really, prosperity and totally to its success.  It is our faith and our values that inspires us to give with charity, to act with courage, and to sacrifice for what we know is right. 

The American Founders invoked our Creator four times in the Declaration of Independence -- four times.  (Applause.)  How times have changed.  But you know what, now they're changing back again.  Just remember that.  (Applause.) 

Benjamin Franklin reminded his colleagues at the Constitutional Convention to begin by bowing their heads in prayer. 

Religious liberty is enshrined in the very first amendment of the Bill of Rights.  And we all pledge allegiance to -- very, very beautifully -- “one nation under God.”  (Applause.)  

This is America’s heritage, a country that never forgets that we are all -- all, every one of us -- made by the same God in Heaven.  (Applause.) ....

We have also taken action to protect the conscience rights of groups like the Little Sisters of the Poor.  You know what they went through.  (Applause.)  What they went through -- they were going through hell.  And then all of the sudden they won.  They said, how did that happen?  (Laughter.) 

We want to really point out that the Little Sisters of the Poor and other people of faith, they live by a beautiful calling, and we will not let bureaucrats take away that calling or take away their rights.  (Applause.)

We are stopping cold the attacks on Judeo-Christian values.  (Applause.)  Thank you.  Thank you very much.  And something I've said so much during the last two years, but I'll say it again as we approach the end of the year.  You know, we're getting near that beautiful Christmas season that people don't talk about anymore.  (Laughter.)  They don't use the word "Christmas" because it's not politically correct.  You go to department stores, and they'll say, "Happy New Year" and they'll say other things.  And it will be red, they'll have it painted, but they don't say it.  Well, guess what?  We're saying “Merry Christmas” again.  (Applause.)

Supreme Court Dismisses One Travel Ban Case As Moot

In an Order (full text) issued yesterday, the U.S. Supreme Court dismissed as moot Trump v. International Refugee Assistance Project, the challenge to President Trump's second travel ban. As explained by a USA Today report:

"We express no view on the merits," the justices said in a one-page order.

The decision effectively wipes the record clean in the U.S. Court of Appeals for the 4th Circuit, one of two federal appeals courts that had struck down major portions of Trump's travel ban. That case began in Maryland.

A separate case from the 9th Circuit, based in California, remains pending because it includes a ban on refugees worldwide that won't expire until later this month. But the Supreme Court is likely to ditch that case, which began in Hawaii, as well....

Justice Sotomayor dissented, saying that instead she would dismiss  the writ of certiorari as improvidently granted. This would have maintained the 4th Circuit's opinion as precedent.

FOIA Lawsuit Seeks Information On Case-By-Case Waiver of Travel Ban

Last week a Freedom of Information Act lawsuit was filed by three advocacy groups-- Muslim Advocates, Americans United for Separation of Church and State, and Southern Poverty Law Center-- seeking information on the waiver provisions of President Trump's second travel ban executive order.  The complaint (full text) in Muslim Advocates v. U.S. Department of State, (D DC, filed 10/5/2017) reads in part:

On June 27, 2017, Plaintiffs submitted a FOIA request ... seeking specific information related to the waiver provisions of Executive Order 13,780 ... allowing the Commissioner of CBP to determine on a case-by-case basis whether a national from one of the six majority Muslim countries identified in the Second Executive Order may gain entry into the country. These documents and information are critical to Plaintiffs’ ability to assist and advise affected travelers, and to understand the scope of the Second Executive Order’s waiver provision and the extent to which the government has implemented or is implementing its policies in a discriminatory or unconstitutional manner.

President Trump's Sept. 24 Proclamation revising the travel ban contains a similar waiver provision. Muslim Advocates issued a press release announcing the filing of the lawsuit.

Suit Challenges New Version of Trump's Travel Ban As Establishment Clause Violation

Yesterday a lawsuit was filed challenging President Trump's newest iteration of his administration's travel ban.  The complaint (full text) in Iranian Alliances Across Borders v. Trump, (D MD, filed 10/3/2017), contends that the new ban set out in a Presidential Proclamation still targets Muslims in violation of the Establishment Clause, provisions of the Immigration and Nationality Act, and other provisions of the 1st and 5th Amendments.  The complaint alleges in part:

5. In a continuation of his unlawful Muslim ban, on September 24, 2017, President Trump issued the Proclamation, which suspends categorically and indefinitely, without a specified expiration date, the entry into the United States of nationals of five of the six countries included in the Second Executive Order (Iran, Libya, Syria, Yemen, and Somalia), as well as yet another Muslim-majority country (Chad). In an effort to disguise the Proclamation’s targeting of Muslims, the Proclamation adds North Korea, even though virtually no North Korean nationals travel to the United States, and adds Venezuela, but then imposes only limited restrictions on the non-immigrant entry of just a small group of Venezuelan government officials and their immediate family members.

6. Despite President Trump’s attempts to cloak this latest iteration of his Muslim ban in religiously neutral garb by invoking a national security review and including North Korea and Venezuela, the purpose and effect of the Proclamation remain unchanged: to keep Muslims from entering the United States.

In a related lawsuit filed this week, plaintiffs sought to enforce a FOIA request for copies of reports submitted to the President by the Secretary of the Department of Homeland Security.  The reports are cited in the President's Proclamation as the basis for determining which countries should be covered by the new travel ban.  Here is the complaint in the lawsuit, Brennan Center for Justice v. U.S. Department of State, (SD NY, filed 10/2/2017).

Americans United issued a press release announcing the filing of the lawsuits.  The press release includes links to other relevant documents as well.