President Donald Trump’s controversial executive order restricting refugee admissions is now facing broad new legal challenges with the filing Monday of multiple far-reaching lawsuits possibly destined for the Supreme Court.
Five different federal courts have already weighed in, each targeting part of the order. On Monday, the Council on American-Islamic Relations challenged the entire order in federal court in Northern Virginia. Though filed on behalf of named individuals, including Sacramento, California, resident Basim Elkarra, the 35-page CAIR lawsuit casts a wider net.
Washington state Attorney General Bob Ferguson said Monday he, too, was taking legal action against the Trump administration, declaring that “no one is above the law, not even the president.” These suits will be followed quickly by a similar suit planned by the American Civil Liberties Union and its allies.
“I think that is something you’ll likely see in the very near future,” Lee Gelernt, deputy director of the Immigrants Right Project at the American Civil Liberties Union, said in an interview Monday, adding that “the situation is very fluid.”
By the time it all gets sorted out, the nationwide legal fight now unfolding across multiple courts could help define the Trump presidency, clarify future executive authority, confront Trump’s own judicial nominees with tough choices and, not least, determine what happens to untold numbers of refugees.
Many Muslims lawfully in the United States that are targeted by the Muslim Exclusion Order . . . will be forced, as a result of the Muslim Exclusion Order, to return to their home countries, where they will likely face persecution, torture and even execution.
Council on American-Islamic Relations, Jan. 30, 2017, lawsuit
So far, the courts have uniformly ruled against the executive order, which Trump signed last Friday. The rulings, in Brooklyn, Boston, Seattle, Northern Virginia and Los Angeles, have focused primarily on stopping deportations of those who reached the United States after the Trump’s order took effect.
In each case, the judges concluded that the individuals faced imminent risk of harm by government action, and were likely to succeed in ultimately proving that their deportation under Trump’s order would violate the law, the Constitution or both. The five straight legal defeats for Trump’s Justice Department, handed down by both Republican and Democratic appointees, could foreshadow more rocky times ahead for the executive order.
The Seattle, Los Angeles and Northern Virginia court decisions over the weekend were relatively limited, zeroing in on specific individuals. The Boston case and the Brooklyn case can reach further, though neither challenges the overall order.
In her Saturday night ruling, Brooklyn-based U.S. District Judge Ann M. Donnelly imposed a temporary nationwide freeze on all government deportations of individuals affected by the executive order. She will decide on whether to extend the deportation freeze after the Justice Department and ACLU file legal briefs, starting with the government’s on Feb. 12.
Donnelly, appointed to the federal bench by President Barack Obama, said the people suing “have a strong likelihood of success” in showing their ordered deportation would violate their constitutional due process and equal protection guarantees.
The Boston-based, Obama-appointed U.S. District Judge Allison D. Burroughs reached a similar conclusion Sunday. Although the Boston case was not explicitly filed as a class action, its language is more sweeping, blocking nationwide the detention or removal of individuals with approved refugee applications, visas, lawful permanent resident status or those from the seven targeted Muslim countries.
Burroughs also ordered Customs and Border Enforcement officers to inform airlines with planes landing at Boston’s Logan Airport about the ruling and emphasize that passengers with valid U.S. documents from the seven countries are allowed to travel to the U.S.
“These lawsuits are only the first step,” Nicholas Espiritu, staff attorney with the National Immigration Law Center, said Monday
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The upcoming ACLU lawsuit, like the CAIR lawsuit filed Monday challenging the overall order, will argue in part that the presidential directive favors one religion over another, Gelernt said. Part of the order blocks citizens of seven Muslim-majority countries from entering the United States for 90 days, whether or not they are refugees.
Once overall refugee admissions are resumed after a separate 120-day freeze, another part of the order gives preferential treatment to those identified with “minority religions” in their country of origin. Trump told the Christian Broadcasting Network last Friday that he intended the edict to aid Christians.
“They’ve been horribly treated,” Trump said, adding that “we are going to help them”
Advocates might also contend the government’s action is arbitrary, expressed in an order some say was sloppily drafted.
Gelernt indicated that attorneys had not yet determined in which court the ACLU suit will be filed. Part of the attorneys’ work includes identifying injured plaintiffs on whose behalf the new suit can be brought; tactically, attorneys like to find sympathetic individuals who have a powerful story to tell.
The class-action case filed in federal court in Brooklyn early Saturday identified as one plaintiff a 53-year-old trained electrical engineer from Iraq named Hameed Khalid Darweesh, who worked as an interpreter for the U.S. 101st Airborne Division. Elkarra, the Sacramento resident named in the CAIR lawsuit, is identified as a member of the City of Sacramento Community Police Commission.
Hannah Allam contributed to this report.
Michael Doyle: 202-383-6153, @MichaelDoyle10