Debating Trump’s Travel Ban: Hawaii’s Argument

On October 5, four Colleges of Law students will debate two of the issues surrounding President Trump’s travel ban. Representing Hawaii will be Paul Sexton and Esmeralda Murillo.

On October 10, the Supreme Court of the United States was scheduled to hear oral arguments regarding President Trump’s Executive Order banning the entry of nationals from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria, and Yemen) and reducing the number of refugees admitted into this country from 110,000 to 50,000.

On September 24, the Court canceled the hearing after President Trump issued a new proclamation revising the previous order. The new order, which indefinitely bans travel from the countries identified in the previous order and adds two additional countries to the list–Venezuela and North Korea–will require fresh legal scrutiny. The Court asked lawyers involved in the original case to present briefs on whether and to what extent the new order renders the case moot.
The original case, Hawaii v. Trump, involves multiple complex statutory and constitutional questions. The United States District Court for the District of Hawaii issued an injunction that was later affirmed, with slight modification, by the Ninth Circuit Court of Appeals. The United States appealed those decisions, among others, to the Supreme Court.
Nonetheless, the Colleges of Law “travel ban” debate will go forward as planned. On October 5, four Colleges of Law students will debate two of the issues raised by the parties in that case. Does the order exceed the president’s authority under the Immigration and Nationality Act and does the order violate the First Amendment’s Establishment Clause by discriminating on the basis of religion? These issues focus on §§ 2 and 6 of the Order. Section 2 initiates a 90-day entry ban to the United States for nationals of six Muslim-majority countries. (Iran, Libya, Somalia, Sudan, Syria and Yemen). Section 6 of the executive order suspends the United States Refugee Admissions Program for 120 days and reduces the number of refugees to be admitted from 110,000 to 50,000 in the fiscal year 2017.
Although President Trump’s new proclamation may alter the trajectory of the case, the students will continue to focus on the original arguments before the court.
Below is a summary of Hawaii’s arguments related to the president’s authority to issue the March 6 executive order. The student authors were assigned a party to represent.

The State of Hawaii

Presented by Paul Sexton and Esmeralda Murillo

Hawaii argues that the executive order exceeds the president’s authority under the Immigration and Nationality Act and that it violates the Establishment Clause of the First Amendment of the United States Constitution.

The Executive Order Violates the INA

Hawaii asserts that the executive order violates three sections of the Immigration and Nationality Act.

A. Section 212 (f) [U.S.C. 1182(f)]

The United States argues that §212(f) gives the president full discretion and limitless power in deciding who is allowed to enter the country and more importantly who is not allowed to enter the country. Hawaii asserts that this is incorrect. The clause gives the president flexible but not limitless power. That power lies with Congress.

The language of section 212 (f) originated in 1918 during World War I. The United States was in a state of emergency so Congress gave the president some authority over immigration that would enable him to respond “swiftly” to threats (albeit hesitantly). The executive branch, with every executive order passed since then, has been careful not to overstep the narrow authority given to it, and has only used this power in times of crisis. The United States, at this time, is not in a state of emergency, therefore there is no need for the president to respond “swiftly” to threats.

Section (f) “borrows its language-and, therefore, takes its meaning- from a series of wartime statutes, proclamations, and regulations,” therefore, the president must comply with the limitations of those statutes, proclamations, and regulations.

When looking at the language of those statutes, they granted the president the power to exclude ‘aliens akin to subversives; and aliens who would undermine congressional policy during an exigency.” Zemel v. Rusk, 381 U.S 1, 17 (1965). The president exceeds his authority because he cannot reasonably claim that the 165 million people from six different countries are all “akin to subversives” or that they will “undermine congressional policy during exigency”.

Hawaii asserts that by interpreting the statute in light of the wartime laws and regulations preserves the separation of immigration powers: Congress retains the exclusive authority to set policy in the normal course, while the president may act to advance that policy in “changeable and explosive” times. This separation of powers is necessary and must be protected. Immigration is a complex subject and Congress has already established an intricate system designed for “identifying, vetting and excluding potential terrorists.” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 375 (2000).

Hawaii further asserts that there is an inherent danger to the United States’ interpretation. Under the United States’ theory, the executive branch would have the power to abolish immigration altogether. The president need only assert that the he deems all foreign nationals as potential “subversives” to end legal immigration completely.

B. Section 202 [8 U.S.C. 1152]

Hawaii also argues that the Order violates §202(a) of the INA. This section states that there can be no discrimination based on nationality in the issuance of visas. The order violates this statute in section 2(c) stating that aliens cannot receive immigrant visas if they are “nationals of the six listed countries.” This language directly contradicts the statute.

The United States argues that section 2(c) of EO-2 is lawful because it discriminates in “entry”, not visa issuance. This argument fails because the sole purpose of visa is to allow entry. As the United States concedes in its brief, if the United States denies visas, they deny entry.

C. Section 207 [8. U.S.C. 1157]

Hawaii also claims that the order violates section 1157(a)(2). That provision states “The number of refugees who may be admitted in any fiscal year shall be such number as the President determines, before the beginning of the fiscal year and after appropriate consultation”.

In September 2016, before the beginning of the fiscal year, President Obama set the number of refugees at 110,000. In January, months after the fiscal year began, President Trump changed the number of refugees allowed to enter the country 50,000.

Congress spoke clearly in the statute about when the number must be identified. While President Trump is free to alter that number for the next fiscal year, he does not have the authority to change it in the middle of the fiscal year.

The Order Violates the Establishment Clause

Hawaii argues that the order was enacted for the unconstitutional purposes of excluding Muslims.

The Establishment Clause of the First Amendment to the United States Constitution states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….” (U.S. Const., 1st Amend.) Therefore, “the Establishment Clause creates both an individual right and a structural constraint on governmental power.” Brief of Respondents -Appellee at p. 32, Trump v. International Refugee Assistance Project, No. 16-1540 (Supreme Ct. Sep. 11, 2017) Ultimately, the Establishment Clause “mandates governmental neutrality between religion and religion, and between religion and nonreligion.” Epperson v. Arkansas, 393 U.S. 97, 104 (1963). “When the government acts with the ostensible and predominant purpose of advancing religion, it violates that central Establishment Clause value of official religious neutrality, there being no neutrality when the government’s ostensible object is to take sides.” McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 860 (2005).

In this case, Hawaii alleges that sections 2 and 6 of President Trump’s second executive order violate the Establishment Clause because they structurally deviate from the “central…value of official religious neutrality” by banning immigrants from six Muslim-majority countries. Id. They state that “excluding immigrants of a dissenting faith [is] a prime means of establishing a religion.” Brief of Respondents -Appellee at 22, Trump v. International Refugee Assistance Project, No. 16A-1191 (Supreme Ct. June 12, 2017). In essence, they assert that President Trump’s executive order serves to uphold the established, religious majority in America by limiting the admittance of immigrants from Muslim-majority countries. To support this claim, Hawaii points to religiously biased statements made by the President in regard to banning Muslims while he was campaigning and while he was in office to show that his executive order lacked neutrality and thus violated the Establishment Clause. Then-candidate Trump asserted that “Islam hates us” and that “we’re having problems with the Muslims, and we’re having problems with Muslims coming into the country.” (Brief of Respondents -Appellee at 2, Trump v. International Refugee Assistance Project, No. 16-1540 (Supreme Ct. Sep. 11, 2017). Hawaii is urging the Supreme Court to consider the President’s purpose, as illustrated by his statements, in creating the executive order. Such a consideration, in their view, is necessary to establish the actual intent of the order and that the President’s actual intent was to create an executive order disfavoring Muslim immigration based on religion which would violate the First Amendment.

President Trump contends that these statements are inadmissible and cannot be considered by the courts in determining whether his executive order violates the Establishment Clause. To support his contention, he relies on a Supreme Court decision that held, when the “Executive exercises this power…on the basis of a facially legitimate and bona fide reason, the courts will [not] look behind the exercise of that discretion….” Kleindienst v. Mandel (1972) 408 U.S. 753, 770.

In essence, President Trump maintains that the courts cannot look behind the exercise of his discretion in implementing his executive order because the executive order was enacted in the name of national security, and was expressed on the basis of nationality and not on the basis of religious animus. Therefore, he asserts the courts below have abused their authority by relying on statements he made while campaigning and while in office to determine the validity of his order, instead of limiting the scope of their interpretation to the plain meaning of the executive order itself.

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America’s “Access to Justice” Crisis: Does Cuba Hold the Answer?

While President Trump has proposed a budget that completely eliminates federal funding for a program that provides legal services to people who can’t afford it, Cuba continues to make legal representation available to all of its citizens.  Is it possible for the U.S. to borrow ideas from the Cuban system to address the access to justice crisis?

Exploring Cuba

During the summer session, the faculty at the Colleges of Law are leading a study abroad course to Cuba. Culminating in a one-week trip to Havana, students will be introduced to the Cuban law and legal system—examining their constitutional framework, electoral system, court system, and government structure.

In preparation for the course, I visited Havana in early March. There I learned about Cuba’s approach—making legal representation available to all of its citizens regardless of income level. After I returned home, I wondered if the U.S. could adopt some lessons from the Cuban system.

The “Access to Justice” Crisis Defined

For many that live in the U.S., affording adequate legal representation is difficult if not completely out of reach. And the number of people and populations that are affected by this lack of access is quickly growing—creating an “access to justice” crisis.

President Trump’s proposed 2018 budget will only deepen this crisis. It also shines an important light on the growing access to justice gap in our country and highlights a distinction between how Cuba and the U.S. approach legal services for its citizens.

Legal Services Corp. (LSC)—an independent nonprofit established by Congress in 1974 to provide financial support for civil legal aid to low-income Americans—is among the 19 programs in line for total elimination of federal funding. LSC regularly provides free legal services to 1.9 million individuals every year who live in households with incomes at or below 125 percent of the federal poverty guidelines (or about $591 per week for a family of four).

In addition, LSC also:

  • Helps veterans secure housing
  • Protects seniors from fraud
  • Delivers legal services to rural areas
  • Protects victims of domestic abuse
  • Helps disaster survivors

Due to the rising costs of legal services, dependency on the LSC has increased significantly in recent years.

Here are a few statistics:

  • One in five Americans qualify for civil legal assistance funded by LSC
  • In the last decade, the number of people qualifying for civil legal aid has increased by more than 10 million
  • Even with LSC in place, 80 percent of low and moderate-income Americans have struggled to afford basic legal services

All of this points to a legal system that does not address the need for all of its citizens to have access to affordable legal representation. Cuba, on the other hand, has found a different way.

The Cuban Approach

There are no private attorneys in Cuba.

Instead, they transformed legal services from a market-based privilege for the wealthy to a public right. All Cuban citizens have access to legal services through offices of “La Organización Nacional de Bufetes Colectivos” (ONBC) or “National Organization of Collective Law Offices.”

Informally, the bufetes colectivos started shortly after the Cuban Revolution by lawyers who were sympathetic to the egalitarian goals of the revolution. Their goal was to ensure public access to legal services. More than a decade after the revolution, the National Assembly codified the informal collectives into the ONBC.

The Ministry of Justice sets the fees that the bufetes colectivos can charge based on the complexity of the case, the level of court hierarchy, and number of appeals.

The fees are incredibly low—ranging from 50 cents to $40. Further, if an individual is unable to afford even these low fees, legal services are provided for free. The lawyers receive a flat salary from the government and, at the end of the year, a percentage of the fees collected by the bufetes colectivos.

Can the Cuban System Translate to the U.S.?

The American legal market is changing, albeit slowly. An increasing number of lawyers are already experimenting with innovative alternative fee and service delivery models in an effort to make legal services more accessible and affordable.

Here are just a few examples:

  • Open Legal Services, a Utah-based nonprofit, was built to “bridge the justice gap by providing affordable legal services to low- and moderate-income people.” It charges a sliding scale fee based on income.
  • Janelle Orsi, an Oakland-based attorney, has developed an entire practice dedicated to the sharing economy and uses a flat fee scale based on complexity. Her law firm is a worker-owned cooperative.
  • allows individuals to consult with an attorney for just $39 and then obtain an attorney at a “fixed price.”
  • Rocket Lawyer allows people to download standard legal forms and receive “quick answers from qualified attorneys” on relevant issues.
  • Likewise, Legal Zoom provides a fast and efficient way to find a vetted attorney with flat-fee pricing.

While these groups are making a significant impact, there are still several questions that need to be answered:

  1. Can we combine the market-based innovation of the U.S. with the egalitarian legal services model of Cuba to create community-based “lawyer cooperatives” here?
  2. Can the American system pivot to a system that provides legal services to everyone regardless of income; to a system where quality legal representation is a right rather than a privilege?

These are not easy questions. And the solutions are even more difficult to implement and will take many passionate people to execute. This summer, as students and local attorneys from the Colleges of Law explore Cuba and its legal system, we can at least begin the conversation. Let’s see where we can go from here.

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