Author Archive for Ashley Roncevic

Immigration Ban 101: Understanding Trump’s Executive Order

Trump’s executive order on immigration has created mass confusion, waves of legal battles, and incited outrage across the nation.  In the chaos that ensued after the executive order dropped, legal professionals began filing lawsuits that eventually led to a temporary suspension of the ban. Although the initial decision by the Ninth Circuit Court of Appeals is foretelling the executive order would ultimately be held unconstitutional, let’s take a closer look at the immigration policies Trump wants to implement.

Immigration Ban

Who’s Covered?

  • The order suspended new refugee admissions for 120 days, which suggests new vetting procedures were on the way. Although Trump says he wants a heavier regulated process, the U.S. refugee admissions system is already strict.  Refugees typically apply through the Office of the United Nations High Commissioner for Refugees (UNHCR), which then goes through several databases, including the State Department, the National Counterterrorism Center/FBI’s Terrorist Screening Center, the Federal Bureau of Investigation, Interpol, Drug Enforcement Administration, and the Department of Defense.  Currently, it can take anywhere from 18 to 24 months for the vetting process.
  • The order suspended the Syrian refugee system Last year, Trump’s Vice President, Mike Pence, tried to stop resettlement of Syrian refuges into the State of Indiana, but was blocked by an appeals court who ruled his attempt as “nightmare speculation”.  The order also requests review of a state’s right to accept or deny refugees for resettlement in their state, which is no doubt a nod to Pence.
  • The order bans entry into the U.S. from seven majority-Muslim countries for 90 days. Those countries include Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen, but more countries could be added at any point under the discretion of the Department of Homeland Security.  The ban was unclear as to whether the restriction included legal U.S. residents, which created chaos for individuals that were traveling when the order hit.  The Department of Homeland Security later clarified that some legal residents that didn’t pose a legal threat would be allowed in.  I’m not sure you can call that much of a clarification, though, as it’s still vague.
  • The ban included denial of entry of dual-nationals. This means even if you hold a passport from another country, but also one from one of the 7 above-listed countries, you could be banned from entering the U.S.
  • Prioritize refugees based on religion. While Trump claims it isn’t a ban on Muslims, there is a small provision within the executive order that says priority should be given to those of a minority religion, implying those religions other than Muslim will be given preference.
  • Lower the total number of refugees to be accepted from any country in 2017. This isn’t a new concept, as each year the president determines how many refugees will be admitted into the U.S., but the number is down from the previous 110,000.  While the U.S. has traditionally been one of the largest refugee resettlement countries in the world, this could easily change as Trump lowered the number to 50,000.

What Can We Expect to See Next?

While the current executive order was blocked by a federal court, this could all be a moot point as Trump has already announced his plans to rescind the current order and issue a new one that’s tailored around the Ninth Circuit Court of Appeal’s decision.  Sounds like a façade, only to appease the constitutional issues raised by ban, as Trump has made his intentions clear about who he wants to allow in the country.

One of the main arguments against the ban is that it’s unconstitutionally discriminatory based on religion.  Even if a new executive order is issued, it doesn’t seem likely Trump can avoid another lawsuit for discrimination because who he wants to prohibit from entering the country is entirely grounded on a person’s religion and nationality.  At this rate, we’re likely to see a constant stream of legal battles over the next 4 years.

Trump Faces a Record Amount of Lawsuits for a President

In a mere two-week period, Trump faces a slew of lawsuits that already amount to 10 times the average of the three presidents who preceded him.  Over 50 lawsuits have been filed and, at the rate he’s going, it doesn’t look like it will slow down any time soon.  Plaintiffs from 17 different states include religious groups, state attorneys general, doctors, professors, students, refugees seeking help, and Iraqis who have worked for the U.S. military.  While most lawsuits are in reference to Trump’s immigration ban arguing civil rights violations, the President is also facing a financial conflict of interest suit and a lawsuit regarding federal funding.

Trump Lawsuits

Travel & Refugee Ban

Civil rights cases starting flying out of the wood works once Trump signed his executive order restricting travel.  The immigration ban not only restricts access into the United States for those from select black-listed countries, but it halts entrance for refugees seeking political asylum.  Although a federal judge has temporarily blocked the executive order from taking effect, Trump has appealed the lawsuit.  Here’s a closer look at what the executive order will do if Trump prevails his appeal:

  • Suspend the entire U.S. refugee admissions system for at least 120 days.
  • Suspend the Syrian refugee program indefinitely.
  • Ban entry from 7 majority-Muslim countries, including Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen for at least 90 days. This includes dual-nationals that hold passports from other countries as well.
  • Prioritize refugee claims on the basis of religion, with a strong implication that non-Muslim religions would get preference.
  • Lower the total number of refugees to be accepted in 2017 from any country.

The lawsuits allege violations of the 1st, 5th and 14th Amendments, citing religious inequality, due process and equal protection violations, denials of asylum, as well as discriminatory visa processing practices.  Here’s a closer look at the expanding list of who’s suing Trump based on this executive order:

  • Washington state has brought suit on a national level and claims the ban violates both the 1st Amendment and the Equal Protection Clause of the Constitution. The state of Minnesota joined in on the lawsuit, as well as 16 other states who have joined as friends of the court to argue against the ban. At least 127 tech companies have also filed briefs with the U.S. Court of Appeals for the Ninth Circuit in opposition to the ban.
  • The ACLU brought multiple lawsuits by different plaintiffs arguing the ban discriminates against Muslims. Among the plaintiffs are two Iranian national University of Massachusetts-Dartmouth associate professors were detained while returning from an engineering conference and an Iraqi soldier (with a valid visa) was detained in New York while trying to join his family.
  • The Council on American Islamic Relations also brought suit alleging the ban discriminates against Muslims and is unconstitutional on 1st Amendment grounds because it disfavors groups based on their religious faith.

Conflicts of Interest

We’ve been hearing about the numerous ways Trump’s business dealings present conflict of interest issues since his election.  The Citizens for Responsibility and Ethics in Washington (CREW) brought a lawsuit against Trump alleging he violated the Emoluments Clause of the Constitution, which basically says those holding office can’t profit from their power in office.

CREW’s lawsuit alleges because of the payments Trump receives from foreign organizations as through his many businesses, he’s profiting from his presidency.  The argument rests on the notion that these profits limit his ability as President to make unbiased decisions for the benefit of the United States over the betterment of himself.  Although, there’s a good argument CREW doesn’t have standing to win their case, it doesn’t negate the legitimate conflicts of interest.

Withholding Federal Funding

Cracking down on sanctuary cities is a campaign threat Trump followed through on.  In addition to his immigration ban, Trump issued an executive order that would cut federal funding from sanctuary cities that refuse to cooperate with federal immigration officials.  San Francisco, a sanctuary city, has taken a stance and brought a lawsuit arguing the order violates the 10th Amendment.  While the federal government can put conditions on the money they give out, the conditions cannot be coercive, which gives San Francisco a strong argument.

What Happens When a President is Sued?

Qualified immunity can be tricky.  On a general level, public officials are protected from lawsuits alleging they violated a plaintiff’s rights.  Exceptions come into play when there’s an allegation that the official violated a clearly established statutory or constitutional right.  If cases were brought against a president for actions not related to their official capacity, the case would most likely be postponed until their term is over.

There are numerous lawsuits pending against Trump that were filed before his inauguration and don’t relate to his presidency.  The fraud lawsuit regarding Trump University was settled, but most of the other cases will resume once Trump’s time in office is over.   All of the cases filed within the past couple of weeks relate to Trump’s actions as President and pose constitutional violations, so they’ll be able to move forward through the judicial process.

Trump’s Immigration Ban: Domestic and International Rights at Threat

Banning a whole class of individuals based on their nationality is not only hateful, but legal professionals around the globe agree Trump’s immigration ban has a number of constitutional and international human rights issues to overcome.  The immigration ban not only restricts access into the United States for those from select black-listed countries, but it temporarily stops entrance for refugees seeking political asylum and permanently stops entrance for Syrian refugees.

Trump Immigration Ban

First Amendment

The Establishment Clause of the 1st Amendment guarantees religious equality and restricts the government from establishing (or supporting) any one particular religion.  While Trump’s team insists the immigration ban is not a blanket ban targeting Muslims, it’s hard to refute that argument based on Trump’s previous campaign statements.

On its face, the text of the order doesn’t exclude Muslims, but the text of the ban does state priority is to be given to refugees of a minority religion.  Since the ban affects 7 Muslim-majority nations, this language strongly indicates a preference for non-Muslim religions.  I can’t stress enough how much this practice would be in direct contradiction to the establishment clause.

Fifth & Fourteenth Amendment

Trump’s executive order singles out individuals based on both their nationality and religion and encourages discriminatory visa processing procedures, all of which raise discrimination issues that violate due process rights.

Due Process rights under the 5th and 14th Amendment require fair treatment, both procedurally and substantively.  Both the way the law pans out and the way the law is written matter.  Not only must the government provide fair and sufficient notice before denying someone their life, liberty, and property, the government cannot enact laws it doesn’t have the authority to enact.  While executive orders have been traditionally accepted, presidents don’t have the authority to enact laws that are discriminatory and contrary to the principles of the Constitution and laws of our nation.

Trump’s blanket ban provides no processes or procedures for denying entrance into the U.S., which left many stranded, including legal visa holders.  There’s a strong argument those travelers were denied their procedural due process rights.  They were given no notice or chance to make alternative travel plans.  Attorneys scrambled to file writs of habeas corpus demanding that, as asylum seekers on U.S. soil, the government was required under the Immigration and Nationality Act to at least grant asylum hearings, something the order didn’t allow for.

U.N. Experts Say Ban Violates International Human Rights Obligations

In the midst of lawsuit upon lawsuit demanding a halt on the immigration ban for constitutional violations, a group of U.N. human rights experts have weighed in and say the United States is now in violation of its international human rights obligations.  Under non-refoulement principles, the U.N. has long held that nations cannot expel or return a refugee to an area where their life or freedom are threatened.

Will the Ban Hold Up in Court?

After multiple lawsuits were filed, judges across the country issued injunctions blocking certain aspects of the executive order.  The state of Washington filed suit on the order as a whole and U.S. District Judge James Robart blocked the order in its entirety.  Although Trump appealed the decision, normal screening procedures commenced and will remain in effect until a decision is handed down.

Despite Trump’s offensive tweets that questioned Judge Robart’s opinion, Trump seems to be a minority on this one.  Sixteen other state attorney generals have joined the lawsuit.  Massachusetts, New York, Pennsylvania, California, Connecticut, Delaware, Illinois, Iowa, Maryland, Maine, New Mexico, Oregon, Rhode Island, Vermont, Virginia, and the District of Columbia have filed a brief as “friends of the court” to argue against the ban.  At least 127 tech companies have also filed briefs in opposition to the ban.

Trump cited a need to protect our nation from terrorist threats as the basis for the executive order, but it’s arguable the ban will do nothing to actually prevent future attacks.  Media attention has focused on the fact that none of the most recent attacks in the U.S. have originated from the countries on Trump’s list.  Certainly, national security interests can undoubtedly outweigh constitutional protections, but that should only be on a case-by-case basis and not a blanket ban based on nationality.  While courts traditionally have given the executive branch great leeway when it comes to immigration policy, it’s not likely this particular order will pass constitutional muster.

TPP: Trump Backs Out of the Trans-Pacific-Partnership

Trump is no stranger to making controversial headlines and his recent decision to withdraw the United States from the Trans Pacific Partnership agreement is no different.  Obama spent the last 7 years negotiating the deal, so the decision comes as a blow to those loyal to the Obama administration.

The agreement was designed with the hope of eventually creating a single market, which would be similar to that of the European Union.  Since Trump has pulled the U.S. out of the agreement, the TPP will be nearly impossible to ratify as is; the agreement required all 12 countries to ratify within a 2-year period.  For those nations wanting to renegotiate a trade deal without the U.S., other key players, such as Japan, say U.S. participation was the carrot on the stick.

What is the Trans Pacific Partnership Agreement?

The TPP was a trade agreement between nations consisting of 40% of the world’s trade market: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, Vietnam and the United States.

If you’re not familiar with trade agreements, they’re treaties between two or more nations agreeing on terms of trade between them.  These agreements are typically aimed at reducing or eliminating tariffs, quotas, and other trade restrictions.  The intention is to grow economies by increasing the trade of goods and services between the nations party to the agreement.

TPPOf course the TPP agreement focused on reducing tariffs, but it went beyond the standards of the World Trade Organization and focused on negotiating labor, environmental and intellectual property protections as well.  Here’s a few highlights of what the TPP would have done:

  • Trade barriers. The TPP agreement would have cut over 18,000 tariffs on all U.S. manufactured goods and farm products.  The agreement also would have mandated expedited customs procedures.
  • Environmental protection. The TPP is argued by some to be the most environmentally friendly trade deal ever negotiated, as the agreement requires signatories to commit to take appropriate measures to protect and conserve wildlife.
  • Good governance. The TPP agreement required all signatories to join the United Nations Convention Against Corruption, which is focused on criminalizing bribery of public officials and the general governance enforcing anti-corruption laws.
  • Intellectual property. The TPP would have required signatories to establish uniform standards for patentability and copyright
  • Labor standards. The agreement would have enforced obligations to protect the freedom to form unions, as well as enforce fair labor practices.
  • Investor-state arbitration. The TPP would have granted investors the right to sue foreign governments for violating the treaty.

The Good and the Bad

Of course there’s two sides to every story.  Critics of the TPP applauded Trump for withdrawing from the agreement, arguing withdrawing will bring jobs back to America.  Proponents of the TPP feel the withdrawal will give China more control over the Asian market.

Since tariffs would have been reduced on industrial goods, Japanese car companies such as Toyota and Honda would have had cheaper access to the U.S., while vehicles exported from the U.S. could have increased because of new access to markets such as Vietnam.  Cuts on poultry, beef, dairy, sugar, wine, rice and seafood would have benefited several agricultural companies.

International labor laws were negotiated as part of the agreement, which is a major benefit for less developed countries, however, many argue this would have resulted in job losses from developed countries like the U.S.  The agreement is said to not be favored by pharmaceutical companies because the intellectual property rights were too lenient.  Additionally, those against the agreement urge it would have driven up prescription costs and, thus, left many without the means to afford life-saving drugs.  Decreased global roaming charges seems like a great idea, however, this could lead to increased competition between telecommunication companies and end up resulting in higher prices for consumers.

What’s Next for the U.S. and Trade?

As part of his “America First” stance, Trump promised throughout his campaign to be more aggressive against foreign competitors and backing out of the TPP agreement draws a stark line.  This global cooperation attitude risks doing more harm than good.  There’s been threats of increasing tariffs up to 10% on all foreign imports, not to mention Trump’s most recent plan to tax Mexican imports 20% in order to pay for construction of the border wall, which risks starting a trade war with other countries that could ultimately result in a financial spike in consumer goods.

Trump Presidency, Day 3: Possible Constitutional Violation?

With all the criticism surrounding Trump prior to his inauguration, it doesn’t come as a surprise that it only took a matter of days before a lawsuit against him was filed.  The Citizens for Responsibility and Ethics in Washington (CREW) filed a lawsuit against Trump claiming payments received by foreign organizations violate the constitution; more specifically, the Emoluments Clause.

Remember when we discussed the issue of why a blind trust was so important?  It all comes down to conflict of interest issues.  CREW is a nonprofit, nonpartisan organization aimed at reducing the influence of money in politics in order to foster an ethical and accountable government.  The concern is that the conflicts of interests created from Trump’s business portfolio are too great.

Can Trump represent the interests of the people of the United States impartially while continuing to profit from his business portfolio?

You Can’t Profit from Power

What is the Foreign Emolument Clause?  In short, governmental officials can’t take money or other nonmonetary benefits stemming from their position in power.  Specifically, the Clause says,

“no Person holding any Office of Profit or Trust under [the United States], shall, without the Consent of the Congress, accept any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.”

President Donald TrumpAn emolument is a salary, fee, or profit from employment or office.  Notice the Clause doesn’t just preclude emoluments, but prevents one from receiving “presents” as well.    Historically, it was standard diplomatic practice to give expensive gifts, but when the drafters of the Constitution got together at the Philadelphia Convention to debate what would be the framework of our country, they decided to include a provision aimed at preventing corruption.

The Constitution does also include a Domestic Emoluments Clause, which has the same general concept, but allows the president to receive compensation for his services in office.  No other emoluments are to be received from the U.S. or any individual state, though.

How Is Trump Violating the Emoluments Clause?

Trump’s attorney has eluded to the fact that the Emoluments Clause doesn’t apply to him, stating “…fair value exchanges …have absolutely nothing to do with an office holder”.  CREW urges otherwise, arguing it’s widely acknowledged the clause does in fact include the president.

What actions does the lawsuit claim violate the Constitution then?  CREW claims that Trump has violated and “…is poised to do so continually” the Emoluments Clause in a number of ways:

  • leases held by foreign-government-owned entities in New York’s Trump Tower;
  • room reservations and the use of venues and other services and goods by foreign governments and diplomats at Trump’s Washington D.C. hotel;
  • hotel stays, property leases, and other business transactions tied to foreign governments at domestic and international establishments owned by Trump;
  • payments from foreign-government-owned broadcasters related to foreign versions of the television program “The Apprentice” and its spinoffs; and
  • property interests or other business dealings tied to foreign governments in numerous other countries, including current projects in China, India, United Arab Emirates, Indonesia, Turkey, Scotland, Philippines, Russia, Saudi Arabia, and Taiwan.

What’s the short version?  Basically, any payments (not just profits) received that come from a foreign state (or its agent) violate the Emoluments Clause because it creates too great of a conflict of interest, not allowing Trump to be impartial in the decisions he inevitably has to make as president.  Trump’s plan to have his sons take over the leadership and management, without relinquishing ownership or establishing a blind trust, without receiving consent from Congress, is, according to the organization, inadequate.

As far as the Domestic Emoluments Clause goes, CREW argues payments and/or benefits received from domestic governments through Trump’s numerous properties and businesses are a violation as well.

Will CREW Win Their Case?

The Emoluments Clause isn’t an area that’s been widely litigated.  Traditionally, past presidents have chosen to divest themselves from interests that create conflicts.  Earning profits from an established business that happens to be a hotel with foreign diplomats as guests doesn’t equate to profiting from a government-held position.  These profits were all there before Trump was even elected.  Does it create a conflict of interest, though?  Absolutely, yes.  Does it risk a greater chance of corruption by foreign influence?  It certainly could.

The purpose behind including the Emoluments Clause in the Constitution was to prevent corruption.  Just as CREW points out in their lawsuit, Trump’s business interests create unprecedented conflicts of interests and unprecedented risks of influence by foreign governments.  So while the profits may not have originated from Trump’s political influence as president, Trump’s business portfolio certainly has the capacity to create future conflicts.

Imagine, for example, hotel stays by foreign government officials skyrocket in the hopes of getting a more favored political outcome from the owner of said hotel.  Even the most honest-intended person would have trouble making decisions that affect their personal financial interests.  Even so, while Trump’s vast business portfolio definitely creates numerous conflict of interest issues, I imagine, even if found unconstitutional, it wouldn’t be too hard for him to get Congressional approval since the GOP controls by majority.



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