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May 26, 2017

International Refugee Assistance Project ("IRAP") v. Trump

    1:21 PM   No comments
RICHMOND, Va. — In a 10-3 ruling, a federal appeals court today ruled President Trump’s revised Muslim ban executive order is unconstitutional (first EO was signed Jan. 27). The full Fourth Circuit Court of Appeals heard the case earlier this month.

The American Civil Liberties Union, ACLU of Maryland, and National Immigration Law Center brought the challenge on behalf of HIAS, the International Refugee Assistance Project, the Middle East Studies Association, and individuals affected by the ban.

Omar Jadwat, director of the ACLU’s Immigrants’ Rights Project who argued the case, had this reaction:

“President Trump’s Muslim ban violates the Constitution, as this decision strongly reaffirms. The Constitution’s prohibition on actions disfavoring or condemning any religion is a fundamental protection for all of us, and we can all be glad that the court today rejected the government’s request to set that principle aside.”

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Case Name
International Refugee Assistance Project ("IRAP") v. Trump     IM-MD-0004
Docket / Court     8:17-cv-00361-TDC ( D. Md. )    
State/Territory     Maryland    
Case Type(s)     Immigration
Presidential Authority
Special Collection     Civil Rights Challenges to Trump Refugee/Visa Order

Attorney Organization     ACLU Chapters (any)
ACLU National (all projects)

Case Summary    On February 7, 2017, several individual U.S. immigrants, the International Refugee Project (IRAP), and HIAS, a refugee resettlement and advocacy organization, filed this class action suit on behalf of all their clients. Represented by the ACLU and the National Immigration Law Center, plaintiffs brought the suit in the U.S. District Court for the District of Maryland. The complaint challenged, in its entirety, President Trump’s January 27, 2017 Executive Order limiting admission to the U.S. for nationals of seven majority-Muslim countries and suspending the U.S. refugee program. IRAP is an organization that provides free legal services to refugees seeking to resettle in the United States. The complaint states that the overwhelming majority of IRAP’s plaintiffs are Muslim. HIAS is a refugee resettlement agency that provides programs and legal services to refugees who have recently resettled in the United States. Many of its clients are from the seven countries listed on the executive order. The case was assigned to Judge Theodore D. Chuang.

The complaint argued that Executive Order was intended and designed to discriminate against Muslims and “does just that in operation.” The complaint focused on the disproportionate impact the executive order had on Muslims and argued that the order’s chaotic and irregular policy changes indicate that it intended to discriminate against Muslims. Plaintiffs alleged that the Executive Order violated the First Amendment Establishment Clause, Fifth Amendment equal protection rights, the Immigration and Nationality Act, the Religious Freedom Restoration Act, the Refugee Act, and the Administrative Procedure Act.

Plaintiffs sought class certification on behalf of all persons “in the United States for whom the Executive Order either interferes with family reunification or the ability to travel internationally and return to the United States.”

The complaint sought a preliminary and permanent injunction enjoining defendants from implementing the executive order. Additionally, the complaint sought a declaration from the court that the entire executive order is unlawful.

On Feb. 22, the plaintiffs filed a motion for expedited discovery and a motion for a preliminary injunction. The preliminary injunction motion sought to "enjoin Defendants from enforcing § 5(d) of President Trump’s January 27, 2017 Executive Order...[which] reduces the annual number of refugees who may be admitted to the United States this year by more than half." The motion argued that "[i]f § 5(d) is not enjoined, no additional refugees can be approved and admitted for resettlement this fiscal year. Thousands of those already approved will not be allowed to resettle in the United States."

In early March, several organizations filed amicus briefs in support of plaintiffs, including the Harvard Immigration and Refugee Clinical Program, the Anti-Defamation League, the American Jewish World Service on behalf of over fifty faith organizations. Those briefs are available below.

Prompted by adverse developments in the Ninth Circuit in another case challenging the Executive Order, in Washington v. Trump, on Mar. 6, 2017, the President rescinded the Jan. 27 Executive Order and replaced it with a narrower one, Executive Order 13780. That day, the government filed notice in this case of the new Executive Order.

After the new Executive Order was signed, defendants conferred with plaintiffs to discuss whether they planned to rescind their motion for preliminary injunction. Plaintiffs declined to rescind the motion because the new EO still substantially reduced refugee admission. Instead, on Mar. 10, plaintiffs filed an amended complaint. The complaint argued that "the March 6 Order was motivated by the same anti-Muslim purpose that motivated the January 27 Order, and continued to seek to prevent the entry of Muslims into the United States. The amended complaint sought declaratory and injunctive relief on the basis that the new executive order violates the Establishment Clause, Fifth Amendment equal protection and due process rights; the Religious Freedom Restoration Act, the anti-discrimination provisions of the Immigration and Nationality Act, the Refugee Act of 1980 as amended, and the Administrative Procedure Act. Concurrently, plaintiffs filed a motion for a temporary restraining order and/or preliminary injunction and a supplemental motion to expedite discovery "so that the Court may have the benefit of additional evidence bearing on the central question of the March 6 Order’s discriminatory intent."

On Mar. 11, plaintiffs filed an amended motion for a temporary restraining order. The defendants responded two days later, arguing that the no emergency existed. The defendants also filed a brief in opposition to the plaintiff's motion for expedited discovery. On Mar. 13, plaintiffs filed a response in support of the temporary restraining order motion. Plaintiffs argued that they had standing because the revised executive order directly harms plaintiffs as organizations that serve refugees. The executive order, plaintiffs argued, had forced HIAS and IRAP to divert substantial resources away from their core missions of providing free legal services to refugees as well as scale back the number of new clients they can take on. Additionally, plaintiffs argued that they met the requirements for asserting third-party legal standing on behalf of the thousands of refugee clients they are currently serving.

Additionally, on Mar. 13 a group of former national security, foreign policy and intelligence officials filed an amicus brief in support of plaintiffs. The authors of the brief argued that the executive order serves no national or security purpose and that it will do long-term damage to national security and foreign policy interests.

On March 16, the morning after a hearing, Judge Chuang granted a nationwide preliminary injunction against the travel ban portion of the second Executive Order.

In response, the defendants appealed to the U.S. Court of Appeals for the Fourth Circuit. Immediately, defendants moved for an expedited hearing, citing national security concerns and noting that several other courts adjudicating challenges to the executive order have expedited review. The court agreed to an expedited schedule. Defendants then also filed a motion for a stay pending the appeal. The court then asked both parties to submit their positions on initial en banc review--that is, whether the case should be heard by the full set of Fourth Circuit judges, not just the ordinary panel of three. Defendants quickly responded in support. Plaintiffs followed suit, finding that "although the government views the issues in this case through a different lens," en banc review was appropriate in light of the case's importance.

The other issue on appeal was a stay of the preliminary injunction, while the appeal proceeded. On Mar. 31, plaintiffs filed their opposition to the government's motion for a stay; defendants replied on Apr. 5. On Apr. 14, the plaintiffs filed their response to the defendants' opening merits appellate brief, arguing that the government improperly "urges this Court to look away...[and] blind themselves to the ample, public, and uncontested evidence of improper purpose—even in the President’s post-election statements—and instead accept, without question, whatever the government said its purpose was in the revised Order." Defendants filed their reply brief on Apr. 22.

(Three days after the defendants filed their reply brief, a plaintiff from Sarsour v. Trump moved to intervene in the appeal. Defendants opposed that motion in a brief submitted on Aprl. 27 on the grounds that the motion is untimely and seeks to introduce a new issue.)

Meanwhile, back in the district court, several procedural updates occurred. Judge Chuang held a telephone status conference on Mar. 21. On that day, plaintiffs also filed notice of intent to file a new motion for a preliminary injunction as to the new EO's provision regarding the U.S. Refugee Admissions Program. Plaintiffs' brief was filed Mar. 24 and Defendants' on Mar. 31. On Apr. 5, plaintiffs filed a response to defendant's brief. On Mar. 22, plaintiffs filed a notice withdrawing their motion for expedited discovery. The court then denied without prejudice the various pending motions for further relief, in light of the pending appeal and the nationwide injunction resulting from Hawai'i v. Trump.

Back in the appeals court, oral arguments took place on May 8, with the court sitting en banc. On May 11, the court granted plaintiffs' unopposed motion to supplement the record to support one of the plaintiff's standing argument (John Doe #3).

In the appeals court, a series of amici filed briefs, including: On Mar. 31, the following entities filed briefs in support of the plaintiffs: a U.S. resident of Yemeni descent, numerous higher education institutions, numerous states, numerous cities, former national security officials, Americans United for Separation of Church and State, Bend the Arc, Southern Poverty Law Center, and the American-Arab Anti-Discrimination Committee. The same day, the following entities filed briefs in support of the defendants: U.S. Justice Foundation, Citizens United, Citizens United Foundation, English First Foundation, English First, Public Advocate of the United States, Gun Owners Foundation, Gun Owners of America, Conservative Legal Defense and Education Fund, U.S. Border Control Foundation, Policy Analysis Center, Immigration Reform Law Institute, American Civil Rights Union, Southeastern Legal Foundation, and the American Center for Law and Justice. On Apr. 4, New York University filed an amicus brief in support of the plaintiffs. On Apr. 13, the MacArthur Justice Center filed a brief in support of the plaintiffs. On Apr. 17, international law scholars and nongovernmental organizations filed a brief in support of the plaintiffs. Numerous briefs were filed on Apr. 19 in support of the plaintiffs from:
•    Medical Institutions, Advocacy Organizations, and Individual Physicians
•    Tahirih Justice Center, The Asian Pacific Institute on Gender-Based Violence, Casa de Esperanza, and National Domestic Violence Hotline
•    Interfaith Group of Religious and Interreligious Organizations
•    Oxfam America, Inc.
•    Americans United for Separation of Church and State, Bend the Arc and Southern Poverty Law Center
•    Constitutional Law Professors
•    The American Jewish Committee
•    Immigration Law Scholars and Clinicians
•    Cato Institute; Muslim Advocates, American Muslim Health Professionals, Muppies, Inc., National Arab American Medical Association, Network of Arab American Professionals
•    The American Alliance of Museums, The College Art Association, and 94 Art Museums
•    American Professional Society on the Abuse of Children
•    Advocate for Human Rights, Asian Law Alliance, Asian Pacific American Network of Oregon, CASA, Community Refugee & Immigration Services, Immigrant Law Center of Minnesota, Immigrant Rights Clinic of Washington Square Legal Services, Inc., Integrated Refugee and Immigrant Services, The Southeast Asia Resource Action Center
•    Airport Attorneys Coalition
•    The American-Arab Anti-Discrimination Committee
•    and Massachusetts Technology Leadership Council.
On May 25, 2017, the en banc court affirmed the preliminary injunction in its entirety, except that it held that President Trump was not personally enjoined. (The court noted, however, that Presidential action remained unreviewable, in suits against the officers assigned to enforce the President’s directives. "Even though the President is not 'directly bound' by the injunction, we 'assume it is substantially likely that the President . . . would abide by an authoritative interpretation” of Section 2(c) of the Second Executive Order.")

Jamie Kessler - 05/12/2017
Virginia Weeks - 05/10/2017
Ava Morgenstern - 02/15/2017
- 05/25/2017
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Jan 26, 2017

What is the legal definition of "Obscenity"?

    5:40 PM   No comments
As defined by Miller v. California’s three prong test, to be obscene material must (1) be a work that the average person, applying contemporary community standards would find, taken as a whole, appeals to the prurient interest and (2) the work must depict or describe, in a patently offensive way, sexual conduct specifically defined by the applicable obscenity law, and (3) the work, taken as a whole, must lack serious literary, artistic, political or scientific value.

Definition of "True Threats"

    5:36 PM   No comments
True threats are defined as “statements where the speaker means to communicate a serious expression of an intent to commit an act of unlawful violence to a particular individual or group of individuals.” 

To be a true threat, “the speaker need not actually intend to carry out the threat.” True threats are distinguishable from political hyperbole, which is protected political expression. Intimidation “is a type of true threat, where the speaker directs a threat to a person or group of persons with the intent of placing the victim in fear of bodily harm or death.”

What is the legal meaning of "Fighting Words"

    5:34 PM   No comments
Fighting words are a narrow category of unprotected speech that are defined as words spoken in a face to face exchange such as personal insults or epithets which by their very utterance are likely to cause the person to whom they are addressed to respond with violence directed at the speaker.

Fighting words must be insults personally directed at the person they are addressed to and not political statements that the hearer finds deeply offensive to his or her beliefs. Therefore, it is necessary to distinguish between provocative political speech that is fully protected and unprotected fighting words.

Categories of Unprotected Speech

    5:29 PM   No comments
Categories of Unprotected Speech in US Constitution:

        Obscenity
        Blackmail
        Defamation (i.e., libel, slander)
        Child pornography

        Fighting words
       Incitement to imminent lawless action
        Perjury
        Solicitations to commit crimes

        True threats

Jan 9, 2017

SOURCES OF THE LAW

    12:38 PM   No comments
SOURCES OF THE LAW: By this expression is understood the authority from which the laws derive their force.
2. The power of making all laws is in the people or - their representatives, and none can have any force whatever, which is derived from any other source. But it is not required that the legislator shall expressly pass upon all laws, and give the sanction of his seal, before they can have life or existence. The laws are therefore such as have received ala express sanction, and such as de-rive their force and effect from implication. The first, or express, are the constitution of the United States, and the treaties and acts of the legislature which have been made by virtue of the authority vested by the constitution. To these must be added the constitution of the state and the laws made by the state legislature, or by other subordinate legislative bodies, by virtue of the authority conveyed by such constitution. The latter, or tacit, received their effect by the general use of them by the people, when they assume the name of customs by the adoption of rules by the courts from systems of foreign laws.
3. The express laws, are first, the constitution of the United States; secondly, the treaties made with foreign powers; thirdly, the acts of congress; fourthly, the constitutions of the respective states; fifthly, the laws made by the several state legislatures; sixthly, laws made by inferior legislative bodies, such as the councils of municipal corporations, and general rules made by the courts.
4. - 1. The constitution is an act of the people themselves, made by their representatives elected for that purpose. It is the supreme law of the land, and is binding on all future legislative bodies, until it shall be altered by tho authority of the people, in the manner, provided for in the instrument itself, and if an act be passed contrary to the provisions of the constitution, it is, ipso facto, void. 2 Pet. 522; 12 Wheat. 270; 2 Dall. 309; 3 Dall. 386; 4 Dall. 18; 6 Cranch, 128.
5. - 2. Treaties made under the authority of the constitution are declared to be the supreme law of the land, and therefore obligatory on courts. 1 Cranch, 103. See Treaty.
6. - 3. The acts and resolutions of congress enacted constitutionally, are of course binding as laws and require no other explanation.
7. - 4. The constitutions of the respective states, if not opposed to the provisions of the constitution of the United States, are of binding force in the states respectively, and no act of the state legislature has any force which is made in contravention of the state constitution.
8. - 5. The laws of the several states, constitutionally made by the state legislatures, have full and complete authority in the respective states.
9. - 6. Laws are frequently made by inferior legislative bodies which are authorized by the legislature; such are the municipal councils of cities or boroughs. Their laws are generally known by the name of ordinances, and, when lawfully ordained, they are binding on the people. The courts, perhaps by a necessary usurpation, have been in the practice of making general rules and orders, which sometime affect suitors and parties as much as the most regular laws enacted by congress. These apply to all future cases. There are also rules made in particular cases as they arise, but these are rather decrees or judgments than laws.
10. The tacit laws, which derive their authority from the consent of the people, without any legislative enactment, may be subdivided into 1st. The common law, which is derived from two sources, the common law of England, and the practice and decisions of our own courts. It is very difficult, in many cases, to ascertain what is this common law, and it is always embarrassing to the courts. Kirl. Rep. Pref. In some states, it has been enacted that the common law of England shall be the law, except where the same is inconsistent with our constitutions and laws. See Law.
2d. Customs which have been generally adopted by the people, have the force of law.
3d. The principles of the Roman law, being generally founded in superior wisdom, have insinuated themselves into every part of the law. Many of the refined rules which now adorn the common law appear there without any acknowledgment of their paternity, and it is at this source that some judges dipt to get the wisdom which adorns their judgments. The proceedings of the courts of equity and many of the admirable distinctions which manifest their wisdom are derived from this source. To this fountain of wisdom the courts of admiralty owe most of the law which governs in admiralty cases.
4th. The canon law, which was adopted by the ecclesiastical courts, figures in our laws respecting marriage, divorces, wills and testaments, executors and administrators and many other subjects.
5th. The jurisprudence, or decisions of the various courts, have contributed their full share of what makes the law. These decisions are made by following precedents, by borrowing from the sources already mentioned, and, sometimes by the less excusable disposition of the judges to legislate on the bench.
11. The monuments where the common law is to be found, are the records, reports of cases adjudicated by the courts, and the treatises of learned men. The books of reports are the best proof of what is the common law, but owing to the difficulty of finding out any systematic arrangement, recourse is had to treatises upon the various branches of the law. The records, owing to their being kept in one particular place, and therefore not generally accessible, are seldom used.

Legal definition of "SOCIETY"

    12:34 PM   No comments
SOCIETY. A society is a number of persons united together by mutual consent, in order to deliberate, determine, and act jointly for some common purpose.
2. Societies are either incorporated and known to the law, or unincorporated, of which the law does not generally take notice.
3. By civil society is usually understood a state, (q. v.) a nation, (q. v.) or a body politic. (q. v.) Rutherf. Inst. c. 1 and 2.
4. In the civil law, by society is meant a partnership. Inst. 3, 26; Dig. 17, 2 Code, 4, 37.

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