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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.

Why the “Muslim Ban” is Still On Hold

In a presidency already jam-packed with sweeping changes and controversial actions, no move has been so contentious as President Trump’s executive order titled “Protecting the Nation From Foreign Terrorist Entry Into the United States;” better known colloquially as the “Muslim Ban.”  The executive order placed a 90-day bar against immigration from seven Muslim-majority countries, a 120-day bar on all refugees, and a permanent bar against refugees coming out of Syria.  The response to the order has been vocal to say the least.  However, the response has not just been protests and outcry–the order has also faced a number of legal challenges.  Just recently, a Washington court placed an emergency injunction on the “Muslim Ban”–a court order temporarily preventing Trump’s executive order from taking effect.

This isn’t the only, or even the first, court place an injunction on the “Muslim Ban.”  Courts in California, New York, and Massachusetts have all issued orders blocking parts of the ban. However, the Washington ruling was the first to stop the entire order in its tracks.

The Washington ruling was quickly appealed to the 9th Circuit Court of Appeals by the Department of Justice with the goal of overturning the injunction.  However, just yesterday, the 9th Circuit came back with a unanimous decision to keep the stay in place.

The Lead Up to the Ruling

In the oral arguments leading up to the decision, the court seemed split but appeared to lean in favor of upholding the ban.  Two of the judges on the three judge panel ruling on the case targeted the attorney for the Department of Justice (DoJ) with sharp questions about what evidence they had to support the need of the ban in the despite its potential for unconstitutional discrimination.  They also questioned the DoJ’s position that they did not have the power to review Trump’s executive order.  The third judge however, an appointee of former President George W. Bush, targeted the lawyer for Washington with equally sharp questions about whether the ban was discriminatory in the first place.

Muslim Ban TrumpA great deal could be read into these questions, and many felt confident that Washington’s injunction would be upheld 2-1.  However, it’s important to remember that questions can be just that–a judge’s job is to challenge both sides of the argument where they see inconsistencies in a pursuit of the truth.  Ultimately, the judges–appointed by a mix of Republican and Democrat presidents, came out with a unanimous 3-0 ruling against the “Muslim Ban.”

Why Did They Rule Against the Order?

Where a law, or executive order as the case may be, discriminates against a protected class (such as race, national origin, or religion) it is held to the highest levels of scrutiny and must be absolutely necessary to a crucial national concern with no other less harsh alternatives before it can be constitutional and thus valid.  My colleague has previously published an excellent article on the constitutionality–or lack thereof–of a immigration ban targeting Muslim majority countries.  While her article focuses on discrimination based on national origin, a very valid concern when we’re talking about an order which singles out people originating from specified nation for worse treatment, Washington’s injunction instead hinges on the argument that the ban singles out Muslims for discrimination.

However, the 9th Circuit’s decision does not go so far as to say that the “Muslim Ban” is or is not discriminatory.  Frankly, it doesn’t need to go that far in order to determine whether to uphold an injunction.  Instead, they need to make a decision based on whether the injunction itself should stand.  This requires them to find that the federal government has provided evidence which establishes that the country would suffer irreparable harm if the “Muslim Ban” were not immediately reinstated.

However, the federal government barely bothered to try to produce evidence on this issue.  Instead, they stuck with an argument that the courts had no power to review President Trump’s executive order when it was made on the subject of immigration.  While immigration is a subject where the President’s executive orders have the most sway, the idea that an executive order would beat out the Constitution is patently ridiculous and without support.  The 9th Circuit said as much in their opinion, stating “The Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections…There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches.’ We are called upon to perform that duty in this case.”  Basically, they told the government that–while executive orders receive deference when it comes to immigration and national security–to say that they are immune to the highest law of the land in the Constitution is a very silly argument indeed.

Thus, with the DoJ focusing on arguing that the Court didn’t have the power to intervene on an unconstitutional executive order, they didn’t really bother to produce any evidence of the danger of keeping the injunction in place.  They produced no evidence of terrorist attacks from refugees out of the named countries, really no evidence at all of dangers presented by keeping the injunction in place.  Thus, they lost 3-0.

What the Ruling Means

To put it most simple terms, upholding this injunction means that the entirety of President Trump’s executive order will simply not take effect until the case is fully resolved–immigration from the countries listed and refugees from around the world can continue to seek opportunity in the United States of America.  At a more abstract level, a unanimous ruling from three judges with differing political ideologies sends a message to the world about how strongly the United States values the Constitutional rights it guarantees.

The case is not completely finished, it can and almost certainly will be appealed directly to the Supreme Court of the United States.  However, with large chunks of the executive order designed to end 90 and 120 days after the order was signed it seems likely that these elements will run their course before a decision could come out of the Supreme Court on the issue.  This might require the Trump administration to come out with updates to the order if they want these elements in effect–updates which could face their own legal challenges.

What’s more, the Supreme Court currently has only eight sitting members.  With a very close ideological split in the Supreme Court, as well as a low chance of appointing a ninth member in time to address the issue, it is possible that the Supreme Court may simply deadlock on the issue as they have many times over the last year of inaction on the seat.  This would leave the 9th Circuit ruling in full force.

Still to come is the decision on the actual constitutionality of the order.  The 9th Circuit itself was fairly non-committal on the issue, simply stating that both sides had powerful interests in conflict–the government with an interest in national security and the power of executive orders, the public with an interest in free flow of travel, avoiding separation of families, and freedom from discrimination.  However, what they did rule on the issue was that the courts should consider the past statements of President Trump and his advisers as to whether the immigration ban was meant to target Muslims in a discriminatory fashion.  With President Trump and his advisors frequently declaring, both on the campaign trail and once in office, that an immigration ban targeting Muslims and favoring Christians is on their agenda it seems that this would allow in strong evidence that the “Muslim Ban” is in fact discriminatory and unconstitutional.

Trump Continues his Concerning Disdain for the Court System

As you might have noticed from his argument to the court in this case, President Trump has a penchant for a concerning belief that the he is above the Judiciary Branch of the U.S. Government.  Immediately after the ruling he took to Twitter to again publically blast the decision.  He has repeatedly questioned the intelligence and competence of every judge who has stood in his way.  Just this week he has publically called the courts “disgraceful,” said that they have less understanding than “a bad high school student,” and heavily implied political bias in the entire U.S. Judiciary system.  To say this lack of respect and understanding for the third branch ensuring checks and balances within our government is disturbing would be an understatement.  Even Neil Gorusch, Trump’s own nominee for the Supreme Court, has called his attitude “demoralizing” and “disheartening.”  Hopefully, a unanimous bi-partisan decision such as this will help him understand the importance of law.

Understanding President Trump’s Muslim-Based Immigration Ban

Since President Trump’s inauguration, his presidency has been fraught with controversy. Trump ran his presidential campaign on a platform that pledged he would “Make America Great Again.” Among his promises were to bar immigration from Muslim nations. Now he’s trying to make good on his promise.

As one of his first orders of business, President Trump signed an executive order on Friday that indefinitely suspends admissions for Syrian refugees to the United States. It further banned all refugees from Iraq, Iran, Syria, Sudan, Somalia, Libya and Yemen from entering the United States while prioritizing Christian refugees.

What Exactly Does the Order Do?

Under a guise of protecting Americans from acts of terrorism, President Trump calls his order “extreme vetting” of immigrants. He is careful not to call it a “Muslim Ban.” Instead the order is titled, “Protection of the Nation from Foreign Terrorist Entry into the United States,” and it will restrict entry from countries with a “history of terrorism.”

The order will suspend the entire U.S. Refugee Admissions program for 120 days, thereby blocking all refugees from all countries from resettling in the United States. Additionally, people from Iraq, Syria, Libya, Yemen, Somalia, Sudan and Iran will be barred from entering the United States for 90 days regardless of if they have valid visas. After the 90 days, permanent visa bans could be enacted for those countries and for others. The order also caps the amount of refugees who may be admitted to the United States at 50,000 immigrants, down 60,000 from last year.

Donald Trump

What is an Executive Order?

An executive order is an official statement from the President of the United States regarding how federal agencies are to use their resources. So long as the order is not against any existing laws, they are legally binding for federal agencies. The President is not creating new laws, but instead instructing the government how it must work within the confines of existing law set by the Constitution and Congress. While the Supreme Court may overturn any executive order, it is very rare. Congress may also limit executive orders.

What exactly gives the President such powers? Article II of the Constitution gives the President broad powers under “executive actions.” Executive actions generally are known to include executive orders, but they also include presidential memorandums (basically a step below executive powers), proclamations and directives.

Is a Muslim Ban Legal?

People are already questioning the legality of President Trump’s Muslim ban. Executive orders are legal so long as they do not conflict with existing law. Trump cannot, for example, sign an executive order requiring torture of any enemy combatant. Congress issued a law banning torture of U.S. prisoners back in 2015, and any order allowing torture would fly in the face of existing law.

In the 19th Century, the U.S. enacted laws which excluded all Chinese and almost all Japanese from entering the country. Based on this discriminatory history, Congress passed a law more than 50 years ago that outlawed discrimination against immigrants based on national origin. So no, Trump’s discriminatory Muslim-based ban is not legal. Because Trump is targeting Muslim-majority countries while prioritizing Christian refugees, he couldn’t even argue his order does not deliberately discriminate against Muslims, although he will.

On Saturday, the American Civil Liberties Union (“ACLU”) obtained an emergency stay from a federal New York judge which temporarily halts the deportation of refugees detained in the United States after Trump issued his Muslim-ban. This means that any immigrant, and certainly those from Muslim-majority countries, cannot be deported back to their home country despite Trump’s executive order.

Something to Remember

It’s also important to note that President Trump’s proposed list of banned countries does not include Muslim-majority countries where he has business links. Notably absent from the Muslim ban are Turkey, where Trump has two luxury towers, the United Arab Emirates, where Trump has golf courses, and Egypt, the location of two Trump business companies. Surely, this presents a potential conflict of interest where he is electing not to ban certain Muslim-majority countries because of his business ties, even though these countries also have a history of terrorism.

With all the controversy surrounding Trump’s first full week of office and his approval rating going down steadily, only time will tell whether he will hold firm on his Muslim-based immigration ban.

EEOC Fights Mental Health Discrimination

Disabilities come in many shapes and forms, from obvious to the eye to harder to pin down.  Few types of disabilities are less widely understood than mental disorders.  These disabilities encompass a huge variety of illnesses and disorders; mood disorders, schizophrenia, anxiety disorders, panic disorders, OCD, PTSD, autism, and many more.  Greater than one in four Americans older than 18, approximately 26.2%, suffer from some sort mental illness–around 57.7 million people.  In fact, mental disabilities are the cause of disability in the U.S. for people between the ages of 15 and 44.

EEOC Mental HealthGiven how widespread and varied mental disabilities are, it is no surprise that employment discrimination based on such disabilities is an incredibly hot button issue.  Just last month, the Equal Employment Opportunity Commission (EEOC) released a comprehensive publication on the rise of discrimination based on mental health throughout the nation.  This has created heightened focus on an employer’s role in preventing such discrimination throughout the nation.  This heightened focus has been accompanied by a rise in the number of lawsuits alleging employment discrimination based discrimination.  The EEOC said in their publication last month that they alone had handled over 5,000 claims and received around $20M in settlements for mental health discrimination cases in 2016 alone.

With this in mind, it’s never been more important to understand how to approach mental health discrimination as an employer or the understand your rights if you suffer from a mental disability.  So how should a mental disability be handled by an employer?

Understanding Mental Disability Discrimination as an Employer

Federal law bars employers from taking adverse employment action (not hiring somebody, firing somebody, refusing promotions, etc.) based on a protected classification such as race, national origin, religion, gender, veteran status and disability. Specifically, the Americans with Disabilities Act (ADA) protects against discrimination based on an actual or perceived (by an employer) disability. This includes mental disabilities.  Thus, an employer cannot take adverse employment action based on an employee or would-be employee’s mental disability.  What’s more, employers must make reasonable accommodations—any accommodation that would not cause undue hardship for the employer—for the special needs of an employee with some sort of mental disability.

So what steps can you take as an employer to ensure your business doesn’t run afoul of the law?  The EEOC’s first recommendation is, as with any disability, always act on facts as opposed to stereotypes about a mental disability.  An anxiety disorder, for instance, should not automatically disqualify an applicant for a position that is particularly stressful.  Instead, an employer should only take adverse action where they have actual evidence that a mental condition disclosed by an applicant would make them incapable of performing a jobs duties.  Additionally, where there is evidence that a mental disability would cause an applicant to create a serious safety risk–regardless of reasonable accommodations–an employer may fire or refuse to hire that person based on their mental disability.

We’ve mentioned reasonable accommodations a couple times now, and it’s worth explaining how they work.  They’re basically exactly what they sound like, you need to make changes to workplace environment, work schedule, etc. so long as they aren’t so costly as to put a serious burden on an employer.  Some examples from the EEOC include altering work schedules to allow an employee to attend therapy sessions, providing quiet work spaces, specific shift assignments, etc.

Obviously an employer does not need to make any and all accommodations, sometimes the cost of such an accommodation will simply make it a bridge too far.  However, it’s important to understand that you must at least attempt accommodations for an employee before taking action unless you’re eager for a discrimination lawsuit.

What Does That Mean for You?

We’ve established that an employer can’t usually take adverse employment action based on any mental disability you may have–this includes firing you, refusing to hire you, denying you promotions or raises, forcing you to take leave, or even relegating you to worse duties or shifts than your peers.

Generally, you are allowed to keep your condition private and an employer may only ask about any condition you have in certain specific situations.  First, if you ask for accommodations–more on that later.  Second, after it has made you an actual job offer but before you start work.  Third, when they are engaged in some sort of affirmative action in hiring–focusing on tracking employing people with disabilities.  Finally, when there is some objective evidence that you either pose a danger or are incapable of performing your duties due to your condition. 

There may be situations where you choose to disclose any condition you may have, such as where you need specific accommodations in order to perform your duties.  You may also want to disclose in order to establish that you should receive benefits through other laws such as the Family and Medical Leave Act–a federal law requiring employers to provide employees with a certain amount of unpaid leave for medical reasons or to take care of family members.  As a rule, it is better to disclose a condition and receive accommodations or benefits before they become necessary.

Any disability qualifies under the ADA which, without treatment, would substantially limit, for example, your ability to communicate, care for yourself, concentrate, interact with other people or make your duties harder, more uncomfortable, or particularly time-consuming.  This is true even if you have the condition under control via treatment.  It is important to understand that a mental condition does not need to be extremely severe or even permanent in order to receive protection and accommodations under the ADA.  In fact, temporary mental conditions are more likely to merit accommodations such as leave because they will eventually pass.  The question in whether a temporary mental condition will qualify is not necessarily how frequently it could limit you, but instead how restrictive they are on what you can do when you are afflicted. 

How to Protect Your Rights as an Employee with a Mental Disability

If you think an employer has violated your ADA rights, reporting the situation to the EEOC will allow them to advise you on the situation and begin an investigation of their own.  You should also report to the EEOC if you are harassed in the workplace over your condition, and an employer fails to take steps to correct this despite being informed of the issue.  It is also illegal for an employer to retaliate against you for reporting to the EEOC or bringing an action against them.  Remember that there is a time limit on bringing suits such as these, generally 180 days after the violation occurs, so know your rights and if you think you are mistreated–act before it is too late.

Movement to “Ban the Box” Surges Across the Nation

An estimated 70 to 100 million people in the U.S. currently have some sort criminal background.  That’s between one in three and one in four people in the whole United States.  These criminal records, no matter how minor the offense, can be a real hurdle when looking for a job.  There is a real potential that an employer, seeing a prospective employee checked a box on their application indicating criminal history, would reject that application on that basis alone.

If the goal of our criminal justice system is to rehabilitate, barring ex-criminals from gainful employment out of hand is obviously far from ideal.  With this in mind, a movement to “Ban the Box” has swept across the nation.  24 states, many passing laws just this year, have passed laws barring public employers, private employers, or both from inquiring about criminal background on a job application.  To make matters even more complicated, more than 150 individual cities and counties have passed similar laws that apply just in those smaller jurisdictions.

The spread of these laws is still on the rise, just around a week ago Los Angeles County passed their own Ban the Box ordinance.  Connecticut has recently passed a Ban the Box law that will take effect January 1, 2017.  On November 30th, the federal government and the Obama administration even finalized regulations preventing the federal government from asking about an applicants’ criminal background before a job has been offered.  With the upsurge in “Ban the Box” laws, the question becomes fairly simple.  What do these laws mean for employers and employees?

Ban the Box Explained

While the details of any given Ban the Box law vary slightly from law to law, they all have the same basic goal.  They make it illegal for the type of employers named by the law to include questions or check-boxes on employment applications asking about the criminal background of an applicant.  They don’t, by themselves, prevent an employer from asking about criminal history altogether.  However, an employer must raise these questions later in the hiring process.  While violations of Ban the Box rules don’t generally allow for private lawsuits from applicants, applicants can report violations to the state who will then follow up with fines or a lawsuit of their own.

As mentioned above, with so many different places creating their own Ban the Box rules the exact boundaries of those rules can vary from place to place.  Depending on where an employer operates, there can be exceptions "Ban the Box"to Ban the Box rules for certain types of jobs—usually positions that are especially safety sensitive.  However, exactly what positions are considered “safety sensitive” is in and of itself a complicated legal concept that varies from state to state.  Employers seeking to avoid the legal troubles of a Ban the Box violation should speak to an employment law attorney to learn whether there is a Ban the Box law in effect where they operate and if there are any exceptions for the type of positions they are offering.

Beyond the Box: Other Employer Restrictions Regarding Criminal Backgrounds

Ban the box is the tip of the iceberg for state to state differences in how employers must approach an employee’s, or potential employee’s, criminal background.  Different states, and even cities and counties within those states, have their own wildly varying laws placing restrictions on either private employers, public employers, or both when it comes to approaching a job applicant or employee’s criminal background.

Depending on where they are an employer may be restricted as to asking about arrests that did not result in a conviction, criminal records which have been sealed or expunged, older criminal records (usually allowing for records no more than five to seven years old), certain types of crimes, or criminal convictions unrelated to the actual position sought.  While these laws have not seen the same rapid spread in recent years as Ban the Box, they continue to be passed nationwide.

In fact, earlier this year, Pennsylvania passed one of the most sweeping laws on the issue to date—albeit with a slightly different approach.  Pennsylvania’s new law requires law enforcement to remove records of arrests after three years have passed without a conviction.  It also allows individuals to petition to limit access to most non-felonies—with an exception for misdemeanors such as sex offenses, child abuse, or witness intimidation—on their criminal records after ten yeas free from arrest or imprisonment.  This law, coupled with the fact the Pennsylvania already bars all employers from inquiring about arrests that don’t lead to convictions, have left Pennsylvania with some of the nation’s strongest employment protections for former criminal offenders.

Are These Laws for the Best?

Ultimately, these laws are put in place to prevent returning criminal offenders from being shut out of employment opportunities before they get a chance to show their merits.  Those opposed to the spread of Ban the Box argue that employers are best suited to knowing their own employment needs and these sorts of restrictions needlessly increase the costs associated with hiring.  They argue that, especially in light of other restrictions on accessing criminal backgrounds, these laws can leave employers in situations where they are left without information they would consider crucial to a hiring or employment decision.

However, despite these objections, it seems more likely that the only way this would truly save costs when hiring for any position that wouldn’t be subject to the common exceptions is if the employer used criminal background as a quick way to disqualify candidates.  Where an employer uses criminal history in this way, it creates a serious roadblock to the rehabilitation and reintegration into society of former criminal offenders.

There is nowhere that employers are totally banned from inquiring into criminal history.  Ban the Box rules are exclusively a timing related restriction, preventing applications asking about criminal history.  Although there are limitations on how background checks can be used a check made as a contingency to employment will likely reveal any criminal history that could be an issue.  However, as seen in Pennsylvania, the limitations on criminal background checks are becoming further reaching.  There is a real push and pull between the interests of an employer in making informed employment decisions and the interests of a former criminal offender—and society as a whole—in a system that provides the best possible chance for rehabilitation.  That being said, a system where an offender is denied that chance outright before the word go is almost certainly not the right one.