The Patriot Post® · 3 Critical Immigration Legal Battles Faced by the Second Trump Administration
Since returning to the Oval Office on January 20, President Donald Trump has issued hundreds of executive orders, rescinded actions taken by the previous administration, and moved to reform and downsize clumsy and bloated federal agencies. On his first day back in the White House, the president signed at least 100 executive orders, part of a “flood the zone” strategy developed in concert with one of his top advisors and policy architects, White House Deputy Chief of Staff for Policy Stephen Miller, who intended to overwhelm progressive opponents and stagger any litigative response.
Of course, litigation did follow, and many of the president’s orders and actions, ranging from federal workforce reductions to immigration law enforcement to dismantling woke workplace policies, have been challenged in federal court over the past 12 months. Nearly 600 lawsuits have been filed to block the second Trump administration’s actions, yielding over 110 injunctions (not including temporary restraining orders or TROs) to slow the president’s agenda.
Federal courts issued six nationwide injunctions over the course of George W. Bush’s eight-year presidency, 12 over the course of Barack Obama’s eight years in the White House, 14 during Joe Biden’s single four-year term, and 64 over the course of Trump’s first four years in the White House. The vast majority of legal challenges against the Trump administration’s agenda target the president’s immigration policy, from mass deportations to ending temporary protected status (TPS) for so-called refugees to defunding “sanctuary” cities, and far more. Of the 112 injunctions restricting the Trump administration’s agenda, nearly 80 have targeted immigration enforcement and reform efforts.
The surge of legal challenges against the president’s agenda has prompted the White House to fill the U.S. Supreme Court’s emergency docket on numerous occasions, requesting stays of what the administration argues are illegal decisions by inferior courts. While some of the cases against the second Trump administration have been resolved, many are still ongoing. Below are three critical challenges the Trump administration faces to its immigration agenda.
1. Washington v. Trump
Executive Order No. 14160 proved to be one of the president’s most controversial and was one of the first to be challenged in federal court. Issued on his first day back in the White House and entitled, “Protecting the Meaning and Value of American Citizenship,” the executive order blocks U.S. citizenship from being automatically rewarded to those born to illegal immigrant parents or noncitizen parents in the U.S. on temporary provisions, such as student or tourist visas. The presidential order relies on the Fourteenth Amendment, which states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,” arguing that illegal immigrants and those only in the U.S. temporarily are not “subject to the jurisdiction” of the U.S.
The executive order prompted a wave of litigation and was quickly blocked by a federal court earlier this year. The case worked its way to the U.S. Supreme Court, which issued a landmark ruling in Trump v. CASA, striking down the injunction imposed against the executive order and barring lower courts from issuing universal or nationwide injunctions. However, the Supreme Court did not issue a ruling on the executive order itself, instead allowing litigation on that issue to percolate in the lower courts.
The Fourteenth Amendment was initially intended to extend U.S. citizenship to the children of freed slaves and to counter the Supreme Court’s decision in Dred Scott v. Sandford, which de jure nationalized slavery and denied the descendants of slaves the privileges of the Constitution. The Supreme Court’s 1898 United States v. Wong Kim Ark decision interpreted the Fourteenth Amendment broadly, granting U.S. citizenship to the children of foreigners born on U.S. soil, provided that the child is “subject to the jurisdiction” of the U.S. In his executive order reversing the extension of birthright citizenship, the president argued that the children of illegal immigrants and those only in the U.S. on temporary visas are not “subject to the jurisdiction” of the U.S. and are therefore excluded from being given automatic U.S. citizenship.
The states of Washington, Arizona, Illinois, and Oregon, joined by a handful of expectant foreign mothers filed a lawsuit against the executive order, with the states alleging that the provision would reduce federal reimbursements for programs like Medicaid and other welfare initiatives, and the mothers charging that their children would not be able to participate in such programs. Judge John C. Coughenour of the U.S. District Court for the Western District of Washington barred the executive order from going into effect in February. The U.S. Court of Appeals for the Ninth Circuit largely upheld Coughenour’s decision, agreeing that the states involved had standing and could demonstrate imminent harm, but deeming the complaints of the mothers to be covered by another similar lawsuit filed in New Hampshire and therefore moot, Barbara v. Trump.
Washington v. Trump and Barbara v. Trump were consolidated into one case, alongside several others challenging the president’s executive order on birthright citizenship, in the administration’s Supreme Court emergency appeal challenging the broad use of universal injunctions by inferior courts, yielding the Supreme Court’s ruling in Trump v. CASA. Now, Washington v. Trump has once again been consolidated with other challenges to Executive Order No. 14160 and will appear before the Supreme Court, this time centered on the executive order itself. The Supreme Court’s decision will determine whether or not the Fourteenth Amendment’s citizenship clause grants the privileges of U.S. citizenship to the children of those who violate America’s federal immigration laws and evade federal law enforcement officials.
Andrew R. Arthur, resident fellow in law and policy at the Center for Immigration Studies, told The Washington Stand that the issue is a significant one “because it removes an incentive that aliens have to come to the United States illegally and give birth here. We know in Yuma Sector in particular, under Biden, a large number of pregnant women, late-term pregnant women, would cross illegally and give birth as soon as they got to the United States.” He continued, “It’s clearly an incentive for people to come illegally and have children or, alternatively, to come on a non-immigrant visa legally and give birth in this country, because once that child turns 21, if they’re a citizen, then they can petition for the parent to get a green card to come to the United States lawfully.”
“All of this comes down to an interpretation of the first line in the Fourteenth Amendment,” Arthur noted, adding that the matter is “an open legal question,” since the only Supreme Court precedent on the issue is the 19th century Wong Kim Ark ruling. “The whole idea is that United States citizenship is special and that there have been many attempts in recent years to water down citizenship. In fact, you used the word ‘non-citizen.’ That’s not a real word. Alien is a real word,” Arthur observed. “And yet, there has been an effort to sort of cloud the distinctions between those who are here lawfully and those who aren’t here lawfully, those who are entitled to all of the rights under the Constitution and those who aren’t,” he continued. “So it’s essentially beyond any dispute that United States citizens are entitled to every right provided in the Bill of Rights and the Constitution generally, but the question becomes to what degree do we extend that to people simply based upon the fact that they were born in this country.”
2. J.G.G. v. Trump and W.M.M. v. Trump
Another controversial move by the president was the invocation of the Alien Enemies Act (AEA) of 1798. The AEA grants the president sweeping authorities to arrest, detain, and deport foreign males over the age of 14 who hail from a nation deemed to be an “enemy,” which includes nations with which the U.S. is at war and those involved in “any invasion or predatory incursion” against the U.S. The president issued a proclamation in March classifying the actions of the Venezuelan-based international criminal gang and foreign terrorist organization (FTO) Tren de Aragua (TdA) to constitute an “invasion or predatory incursion,” subsequently invoking the Alien Enemies Act as a means to lawfully arrest, detain, and deport large numbers of Venezuelan nationals affiliated with TdA.
The president’s use of the AEA proved almost immediately controversial. In the cases of J.G.G. v. Trump and W.M.M. v. Trump, Chief Judge James Boasberg of the U.S. District Court for the District of Columbia issued a TRO blocking the president and his administration from deporting over 250 Venezuelan nationals identified as TdA affiliates. Controversy escalated when the Trump administration refused to comply with Boasberg’s TRO, citing both the AEA’s provision exempting its use by the president from judicial review and the fact that the Venezuelan nationals had already been deported: their flight was nearly at its destination, a maximum security prison in El Salvador, when Boasberg’s TRO was handed down.
The Supreme Court ultimately vacated Boasberg’s TRO, pointing out that the AEA is exempt from judicial review, save in the realm of habeas corpus petitions, which must be filed in the jurisdiction in which the petitioner is detained. However, the nation’s top court then proceeded to embroil itself in the ensuing habeas proceedings, in a manner which Justices Samuel Alito and Clarence Thomas described as “unprecedented and legally questionable.” The Supreme Court temporarily halted the president’s use of the AEA, shortly after rebuking Boasberg for doing the same, amidst unsubstantiated claims that the Trump administration was rushing deportations so as to deny detained Venezuelan nationals the opportunity to file habeas petitions. That halt was itself later moderated, with the Supreme Court tasking the relevant district court with determining how much notice detainees were due before deportation, deeming 24 hours’ notice insufficient time to allow detainees an opportunity to file habeas petitions.
On remand from the Supreme Court, a three-judge panel of the U.S. Court of Appeals for the Fifth District issued an injunction in September temporarily barring the Trump administration from conducting deportations under the auspices of the AEA, following in the Supreme Court’s footsteps and “punting” the question of how much notice detainees are due prior to deportation back to the district court level. In essence, the appellate court determined that, short of further fact-finding at the district court level, it had little evidence to support the president’s claim that the AEA’s use is justified under an “invasion or predatory incursion.” The decision was made by Judges Leslie Southwick, a George W. Bush appointee, and Irma Carrillo Ramirez, a Joe Biden appointee. Trump-appointed Judge Andrew Oldham dissented, arguing in favor of greater deference to executive branch discretion.
Just a few weeks later, the U.S. Court of Appeals for the Fifth District vacated its own injunction, with a majority of the court’s judges agreeing to rehear the case en banc — in other words, all 17 judges of the U.S. Court of Appeals for the Fifth District will sit in judgment on the case. Southwick dissented from the decision to rehear the case en banc, arguing that the appellate court had already heard the matter and that it should be elevated to the Supreme Court in order to avoid any “delay.” Judge James C. Ho, a Trump appointee, responded to Southwick’s argument, “But the
burden of any delay falls on the Government. And the Government asked for rehearing en banc, rather than seek certiorari in the Supreme Court.” He observed, “Perhaps we could have minimized delay by declaring last year in United States v. Abbott … that the Judiciary has no business telling the Executive that it can’t treat incursions of illegal aliens as an invasion. But we are where we are. The issue is obviously compelling.”
In his comments to TWS, Arthur pointed out that the authorities granted the president under the AEA are different than the more standard powers afforded his office by the Immigration and Nationality Act (INA). “So the question in those cases is how much process must an alien receive to be removed under the Alien Enemies Act?” Arthur observed. “It’s probably not much, but the administration forced the issue by taking a bunch of known or suspected TdA members into custody and sending them to El Salvador. So it really comes down to the question, ‘How much process are they due?’”
3. State of Maryland v. DOJ
Earlier this year, in response to the president’s proposed mass deportation agenda, the U.S. District Court for the District of Maryland implemented a novel standing order, automatically issuing an injunction blocking the deportation of any illegal immigrant who files a habeas petition with the court, prompting a novel response from the Trump administration. The U.S. Department of Justice (DOJ) promptly filed a lawsuit challenging the standing order, classifying it as gross judicial overreach and a violation of legal norms, turning injunctive relief into a matter of right and presuming that foreign nationals need to be defended against the president.
The DOJ argued that centuries of American legal history “teach that injunctive relief ‘is an extraordinary equitable remedy that is never awarded as of right,’ even where a plaintiff claims or shows that he will suffer irreparable harm without one…” (Internal quotation marks removed.) The lawsuit added, “And injunctions against the Executive Branch are particularly extraordinary because they interfere with that democratically accountable branch’s exercise of its constitutional powers — including, as relevant here, the core Article II powers to enforce the Nation’s immigration laws and shape and manage its relationships with foreign nations.”
“Despite these elementary principles, in recent months and years, district courts have used and abused their equitable powers to interfere with the prerogatives of the Executive Branch to an unprecedented degree,” the DOJ continued. “The challenged Orders here do precisely what the Supreme Court has forbidden: make equitable relief a ‘matter of right’ in the District of Maryland.” The Maryland-based court’s standing order, the DOJ charged, issues injunctions automatically, preventing the executive branch from enforcing federal immigration law and therefore encroaching on “core Executive Branch powers” delegated to the president by Article II of the U.S. Constitution. Furthermore, the standing order does not assess merits, irreparable harm, balance of equities, or public interest, contravening Federal Rules of Civil Procedure and Supreme Court precedents like 2008’s Winter v. Natural Resources Defense Council, or even assessing whether or not injunctive relief is needed.
In his comments to TWS, Arthur stressed, “If any alien who is facing removal from the United States files a habeas petition with the District Court of Maryland under the standing order, they automatically get a 48-hour reprieve from removal. The issue is that travel documents and plane tickets are generally time sensitive documents. So, you know, a plane ticket is good for a certain time and a certain place.” He continued, “Many of the travel documents that we get are not necessarily a passport, but, you know, more of a permission to send somebody within a very limited period of time.”
“By granting that reprieve, it hinders [the Department of Homeland Security’s] ability to remove people under final orders of removal from the United States. And more importantly, it ignores the rather strict standards for injunctive relief in most civil cases,” Arthur observed. “So in order to get the reprieve, you don’t have to show anything. You don’t have to show a likelihood of success or harm or that your harm outweighs the government’s harm. You don’t have to show any of that. You just automatically get it,” he continued. “And one thing that’s clear is that Congress has attempted to cut district courts out of the judicial review process in immigration cases. Now, they do still have habeas jurisdiction, but what that rule does, what that order does, is it essentially stays any removal for a period of time, notwithstanding the merits of the claim.”
All 15 judges of the Maryland district court recused themselves from the case, which was assigned by the U.S. Court of Appeals for the Fourth Circuit to Judge Thomas Cullen of the U.S. District Court for the Western District of Virginia, who was appointed by Trump in his first term. Ultimately, Cullen dismissed the case, although he did not pass judgment on its merits; instead, the Trump appointee ruled on procedural grounds, noting that the executive branch’s filing of a lawsuit against an entire district court in that district represented a threat to the separation of powers.
As Arthur explained at the time, Cullen did not endorse Maryland judges’ standing order, but actually offered “a roadmap for DOJ to follow to achieve its goals.” According to Cullen’s ruling, the Trump DOJ simply chose the wrong venue for bringing its challenge: “the proper forum was not the D. Md. but rather the appellate Fourth Circuit,” Arthur summarized, “either on a direct appeal of one of the habeas cases the orders focus on or ‘by petitioning the Judicial Council of the Fourth Circuit, which has the authority to rescind or modify local court rules.’”
As of the time of writing, the case remains dismissed and has not been appealed, perhaps because the DOJ has decided to follow Cullen’s advice and appeal a habeas petition to the Fourth Circuit. The Maryland district court’s standing order still stands.
S.A. McCarthy serves as a news writer at The Washington Stand.