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El Paso v. Trump
Throughout the 2016 campaign and his presidency, President Trump has called for the construction of a wall along the entire U.S. border with Mexico. After first failing to get Mexico to pay for it as he’d promised, and then failing to convince Congress to fund it, President Trump declared a national emergency at the Southern border to circumvent Congress and divert military funds to build the wall.
The effect of this move was not only to subvert our constitutional structure by violating the separation of powers so carefully calibrated by the founders, but it also inflicted immediate injuries on the border community whose home had been declared a disaster zone by the President and who faced an array of reputational, economic and other devastating fallout.
On February 16, 2019, on behalf of the County of El Paso and the Border Network for Human Rights, we filed a lawsuit to seek an injunction to block the emergency declaration from taking effect. In filing the case, we assembled a cross-ideological legal coalition including former Acting U.S. Attorney General Stuart Gerson, who served as a top aide to President George H.W. Bush; Harvard Professor Laurence Tribe, one of the nation’s leading constitutional law experts who represented Al Gore in Bush v. Gore; the Niskanen Center, a center-right policy think tank; and the law firms O'Melveny & Myers and Willkie Farr & Gallagher LLP. The case was filed in the U.S. District Court for the Western District of Texas.
The suit argues that President Trump’s proclamation was an unlawful attempt to override Congress’s constitutional power of the purse. The President declared the emergency only after months of failed attempts to obtain additional funding for his border wall culminated in the longest U.S. government shutdown in history. He even publicly acknowledged that there was no urgency, saying “I didn’t need to do this, but I’d rather do it much faster.” The administration then moved to transfer $8.1 billion for border wall construction efforts – $6.7 billion more than the $1.375 billion approved by Congress – in an attempt to sidestep Congress’s constitutional role as the appropriator of government money.
On October 11, 2019, the court ruled in our favor, finding that the emergency proclamation and expenditures of reprogrammed Department of Defense funds were invalid under the Consolidated Appropriations Act. Under the Consolidated Appropriations Act of 2019, Congress appropriated $1.375 billion for border barrier construction. Section 739 of the Act prohibits the administration from increasing that funding beyond what Congress expressly approved. Therefore, the administration’s attempts to use the national emergency proclamation to reprogram military construction funding was prohibited because it sought to override Congress’s decision not to fund further border wall construction.
On December 10, 2019, Judge David Briones issued a nationwide injunction blocking the Trump administration from using Department of Defense military construction funds to build a wall along the Southern border and a declaration that the emergency proclamation was unlawful.
A separate case filed in California by the ACLU and the Sierra Club had previously succeeded in getting an injunction against the President tapping another pot of money for the border wall, but the Supreme Court has stayed the effect of that order. Today, that court issued a further injunction against the Administration’s use of the same pot of money our court enjoined, but it halted the effect of that order while it is appealed. So, at least for now, our case is the only one with an active order blocking construction using military funds.
You can read more about the case here.
City of Seattle v. Department of Homeland Security
On October 25, 2019, the US Department of Homeland Security (DHS) announced changes to the naturalization process that will present significant barriers to citizenship for tens of thousands of non-wealthy applicants each year. Immigrants are typically not eligible to naturalize until they have lived as lawful permanent residents in the United States for five years, speak English, understand U.S. history and civics, and demonstrate a commitment to the U.S. Constitution. There is also a $725 application fee. U.S. Citizenship and Immigration Services currently waives the fee for those who cannot afford to pay it, which is approximately 40% of applicants.
Under rules in place since 2010, lawful permanent residents (also commonly referred to as green card holders) who receive means-tested benefits from another government agency, are automatically entitled to a fee waiver, making the process easy for USCIS to administer and for applicants and service providers to complete. The new policy significantly increased the burden on applicants who wished to apply for a fee waiver, and made it impossible for some poor lawful permanent residents to apply at all. Research from Stanford University’s Immigration Policy Lab suggests that the new rules could have reduced the number of naturalization applications filed each year by as much as 10 percent. In an election year, when citizenship applications historically spike, that would be a reduction with real consequences for our democracy.
That’s because the real impact of this rule is to create a wealth test for citizenship—and, crucially, for the right to vote. Most of the applicants for this fee waiver already live in our communities as legal green card holders. They work, pay taxes, and participate in almost all ways in our civic life, except one: they have limited political rights. Citizenship is the way we convey those political rights and responsibilities. If wealthier and predominantly white green card holders are able to more easily become citizens, while poorer and predominantly nonwhite green card holders cannot, we would in effect be creating two classes of political rights holders, separated largely by race. That’s not how a fair democracy should work, and it’s why we decided to stop this rule.
On October 30, 2019, working alongside Advancing Justice-AAJC, the Seattle City Attorney’s Office, and Mayer Brown LLP, we filed suit in California on behalf of organizations and communities who will be irreparably harmed by the proposed changes to the naturalization process. The plaintiffs are the City of Seattle and five naturalization legal service providers who serve low-income, citizenship-eligible legal permanent residents: Catholic Legal Immigration Network, Inc. (CLINIC), Central American Resource Center of California (CARECEN), Immigrant Legal Resource Center (ILRC), OneAmerica, and Self-Help for the Elderly.
On November 6, 2019, we asked for a nationwide preliminary injunction to immediately bar USCIS from implementing the changes until the pending lawsuit is resolved. We also added new claims to the case, asking the court to find that Ken Cuccinelli’s installation as acting head of USCIS was unlawful and that the proposed new rules are invalid as a result. Cuccinelli was placed in the role of acting director in violation of the Federal Vacancies Reform Act (FVRA), which governs the process for filling a vacant executive branch position that is subject to Senate confirmation.
On December 9, 2019, Judge Maxine Chesney of the Northern District of California issued from the bench a nationwide injunction barring USCIS from implementing the changes. Judge Chesney ruled that Plaintiffs were likely to succeed in their claim that USCIS failed to properly engage in the notice-and-comment rulemaking required by the Administrative Procedure Act and that the agency’s new rules making it much harder for low-income residents to apply for fee waivers for naturalization and other immigration benefits are invalid as a result.
You can read more about the case here.
Inglis v. South Carolina GOP
On September 7, 2019, the South Carolina GOP’s Executive Committee voted to cancel the 2020 Republican presidential primary. The vote was not unanimous, and faced immediate rebuke from within the Republican Party. According to the South Carolina Republican Party’s rules, the state party can only change its nomination process at a state convention. The state party did not change the process at the 2019 state convention. Accordingly, as observers have noted, canceling the primary through an executive committee vote violates Republican Party rules. It also violates South Carolina election law, which requires political parties to obey their own rules.
On October 1, 2019, working alongside our co-counsel Sowell & DuRant, a South Carolina litigation firm, we filed a lawsuit alleging that the Executive Committee of the South Carolina Republican Party illegally canceled its presidential primary in violation of its own rules and state law. We brought the suit on behalf of former South Carolina Republican Congressman Bob Inglis of Greenville County and Frank Heindel of Charleston County.
In 2007 and again in 2013, the Republican-led South Carolina legislature changed state election law, making it harder to cancel primaries. Analogies to past instances of primary cancellation in 1984 and 2004—when Presidents Reagan and Bush were running—are flawed both because the law was entirely different and because the incumbent presidents faced no opposition in South Carolina. In a 2014 party resolution, the South Carolina GOP recognized the value of its presidential primary, stating that “anything other than a fair and legitimate primary where state party staff and officers avoid even the appearance of intervention could irrevocably damage the integrity of our primary process and inadvertently affect our ‘First in the South’ presidential preference status.”
Unfortunately, however, the judge ruled against us on the motion to dismiss earlier today. She determined that South Carolina law permits party executives to cancel a primary election and throw the party's support behind their handpicked candidate. We firmly believe that the cancelation of the primary by a small handful of party insiders is antidemocratic because it denies every other South Carolina Republican their voice in defining what the Republican Party is and who it supports. We are examining all of our options to help ensure that every South Carolina Republican has a voice this primary season.
You can read more about the case here.
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