On June 26, 2017, the Supreme Court finally weighed in on President Trump’s contentious travel ban by partially lifting several injunctions put in place by lower courts and agreeing to hear arguments on the subject in October of 2017. The order has sent paralegals across the country scrambling to prepare for both the potential upcoming Supreme Court battle and the inevitable intermediate fallout among immigrants during the three month interval.
The Trump Administration has been a shot of adrenaline for immigration lawyers and paralegals almost from the moment the president took office in January 2017.
Seven days later, President Trump signed Executive Order 13769, formally called Protecting the Nation from Foreign Terrorist Entry into the United States but known to just about everyone simply as the travel ban.
The order directed cabinet secretaries and certain executive departments, including the Department of State and Department of Homeland Security (DHS) to prohibit entry of foreign nationals from seven different countries—all of them predominantly Muslim.
This was in line with candidate Trump’s campaign promises to exclude Muslims from immigrating to the United States. It was this very position and the words used to describe it that immediately complicated the administration’s efforts to uphold the ban—petitioners argued in court that the language of the order was a transparent effort to circumvent First Amendment provisions prohibiting discrimination on the basis of religion.
The response from immigrant and civil rights groups was fierce and immediate. By January 28, the day after the order was signed, volunteer groups of paralegals and attorneys had set up makeshift offices in airports around the country to provide free representation to the more than 200 individuals that had been detained and the hundreds more who were prevented from boarding flights overseas, despite holding green cards or having been previously issued visas. More than 50 lawsuits were filed in one day on their behalf according to the ACLU.
Federal courts were quick to issue temporary restraining orders blocking the executive order. Paralegals and attorneys quickly put together arguments and gathered declarations from companies like Google, Amazon, and Expedia opposing the ban. This strong backing helped earn them success on appeals to the Fourth and Ninth Circuits.
The Travel Ban Case Touches On Multiple Paralegal Specialties
The work put into crafting the various cases leading up to the Supreme Court challenge spanned a number of different legal specialties, drawing on the expertise of paralegals and attorneys that work in these areas of law…
- Constitutional law paralegals were involved in crafting arguments on the basis of violating the Equal Protection Clause of the 14th Amendment and the Establishment Clause of the 1st
- On the immigration law front, paralegals found language in the Immigration and Nationality Act that the order appeared to violate, calling attention to legal questions the courts hadn’t addressed yet.
- And because the ban was implemented through executive order rather than changes in statutory provisions, administrative law paralegals challenged the order on the basis of apparent violations of the Administrative Procedures Act, which governs all agency-based rule making.
Lawyers and paralegals working for organizations like the ACLU (American Civil Liberties Union) and IRAP (International Refugee Assistance Project) continued to spar with Department of Justice attorneys, particularly after an incomplete version of the order missing key points was released on March 16th. Still, most of them knew that the main event was going to come when the Supreme Court took up the case, as it finally did when the government made a writ of certiorari ordering the case to be put before the court for review.
When the Supreme Court response came, it was a unanimous per curiam opinion, showing that a majority of the justices agreed the case should be brought before the court. The case was moved to the docket for October, and in the meantime granted some of the administration’s request for stays of the lower court injunctions blocking the ban.
This meant immigrants from six of the seven countries named (Iraq, the seventh, had been removed from the list in the revision) could be denied entrance into the U.S. if they did not already have some credible bona fide relationship with a U.S. citizen or institution. This essentially means that immigrants that don’t happen to have family with U.S. citizenship or a job with an American company, aren’t going to be allowed to enter.
Reading the Supreme Court Tea Leaves in a Complicated Case
The decision can be read in more political than practical terms. As it often does, the Supreme Court effectively split the issue with this decision. Neither party is particularly pleased with the outcome…
The Trump administration would argue that this makes the order toothless and would present the fact that some of the 9/11 hijackers had jobs and families in the U.S. and would not have been prohibited from entering based on the way the law reads. The obvious counterpoint to that argument, however, is that none of the countries those attackers came from were actually named in the travel ban anyway.
And from the perspective of immigration attorneys and paralegals standing in opposition to the ban, refugees fleeing war and persecution represent the group least likely to have family and jobs in the U.S., and for that very reason are the group that is most in need of assistance.
The Biggest Question Raised Receives The Least Attention
But the per curiam opinion also calls into question whether or not the court ever intends to actually hear the case. Not mentioned in the opinion was a curious feature of the original ban: a built-in 90-day delay for implementation of the order. This window effectively placed an expiration date on the order.
This expiration date happened to be June 14th—a week before the Supreme Court opinion was even handed down. IRAP’s response to the application for the stay called this out, but the Trump administration responded that the clock never started ticking since the executive order for the ban was never actually implemented.
The administration stated that the original purpose for that built-in 90-day window was to allow for a period of necessary research and investigation into immigration processes… tasks that could have moved forward just as easily with or without the actual ban in effect. In fact, it seems likely that this will be turned against the Trump administration at the Supreme Court, since it seems to show that the actual purpose and urgency of the ban was not as stated. This is exactly what opponents to the ban have argued the entire time, that the order was not an urgent and immediate action necessary to protect the U.S. so much as it was an unconstitutional religious test.
Based on the administration’s own logic, once the Supreme Court gave it’s opinion the clock on that 90-day window would start. Now that the Supreme Court has effectively started the clock ticking, the new expiration date has been pushed out to September 27, 2017—five days before the Court is scheduled to hear arguments on the matter. So, we’re right back where we started with an expiration date that lands before the court is even scheduled to hear the case.
At that point, the Court could point to the expiration, which would make most of the case moot. There is, however, another less-cited provision in the order dealing explicitly with refugees that has a 120-day expiration, which would buy more time on that particular matter.
Volunteer Paralegals Will Continue to Do the Heavy Lifting
Lawyers and paralegals defending refugee rights are bracing for whatever might come from the Supreme Court’s hearing … assuming it holds a hearing at all.
Despite what seems like a cunning maneuver, court-watchers cannot predict exactly how the justices will handle the matter or how the Trump administration might present its arguments come October. Now, lawyers and paralegals on both sides of the case will dive into preparing for the ultimate showdown in the highest court in the land. The load has fallen particularly heavily on paralegals, many of whom are volunteers working at non-profits like ACLU and IRAP that are handling much of the grunt-work doing research and communicating with clients on the case.
In any event, the next three months will be busy whether the Supreme Court hearing happens or not.
The order is likely to set off a fresh cascade of lawsuits from feisty legal professionals at IRAP and other immigrant legal assistance groups over the meaning of “bona fide” in the particular context of individual cases. The government could quickly find itself swamped in legal red tape as it attempts to defend particular decisions to exclude immigrants under the order.
In fact, Justice Clarence Thomas filed a separate opinion (along with Justices Alito and Gorsuch) that the compromise would become essentially unworkable due to this flood of litigation.
The next few months will determine the accuracy of that prediction. As they have been for the past several months, immigration law paralegals will continue to be in the thick of the debate.