Keeping Score of Trump’s Losing Record Before Federal Courts

Keeping up with the president’s executive orders on immigration is like herding cats. Here is a brief summary from my paper. 

Want it all in one sentence? President Trump is losing most of his cases before courts, and in the process he is eroding the otherwise extraordinary tools of the executive branch as these powers relate to immigration. 

To make the reading a bit more interesting, I’ve color coded Trump wins in green and Trump losses in red.

A.        President Trump’s Executive Orders, Proclamations, and Administrative Actions

1.        Executive Orders

Travel Ban: Early in his administration, Executive Order 13769 banned entry of virtually all persons from seven Muslim countries.  Among its effects, the order affected prospective employment relationships.   After the order was enjoined, the president replaced it with a revised ban. Like the first order, it had many effects including impairment of employment relationships.  This order suffered a setback in Trump v. International Refugee Assistance Project (IRAP), when the Supreme Court partially denied its enforcement. 

On his third attempt at barring entry to many millions of Middle Easterners, the president won a decisive ruling in Trump v. Hawaii.  This ban took the form of a narrower proclamation.   It had no adverse effects on employment or other bona fide relationships.  While the proclamation was upheld, it led to the extraordinary measure of overruling Korematsu.

Following Trump v. IRAP, Executive Order 13815 and a related memorandum resumed the U.S. refugee admissions program, albeit with enhanced vetting.  In apparent disregard of the Supreme Court’s ruling, the Trump administration denied entry to persons with bona prior relationships to people or organizations in the U.S., including an Iraqi former interpreter for the United States military and an Iraqi woman, employed as an interpreter for American companies, who also has close relatives living in the U.S. Relying on the Supreme Court’s recent precedent, Doe v. Trump enjoined that part of the order which extended to refugees with a bona fide relationship with a person in the U.S. The court ruled that the order and memorandum were subject to the notice and comment requirements of the Administrative Procedure Act’s notice and comment requirements for rulemaking, and the Secretary of Homeland Security lacked authority to indefinitely suspend a nondiscretionary statutory duty under INA.

“Hire American” and H-1B Visas: On April 18, 2017, the president issued Executive Order 13788. Titled “Buy American and Hire American,” the order applies to the U.S. technology sector, particularly the IT workforce.  It states a policy to ensure that H-1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.  The technology sector has complained that enforcement of the order has hindered employers who are seeking lawfully to hire these workers. Parts of the order suggest a possible bias against Asian workers. (No rulings yet.)

2.        Rescission of Deferred and Protected Status

DACA: The Trump administration has taken preliminary steps to terminate the DACA (Deferred Action for Childhood Arrivals) program. One aspect would eliminate work authorization for DACA recipients.  The DACA-rescission policy was enjoined in Vidal v. Nielsen on grounds that it likely violated Administrative Procedure Act and Due Process Clause of the Fifth Amendment.  The DACA-rescission policy has led to related lawsuits.

DAPA: President Trump’s Department of Homeland Security rescinded the 2014 DAPA (Deferred Action for Parents of Americans) Memorandum, a policy under the Obama administration to grant deferral status for three years to parents of DACA eligible children and young adults. After twenty-six states filed a lawsuit to challenge the DAPA policy, a Texas district court enjoined it.  

However, the district court in J-M-C-B v. Nielsen dismissed a lawsuit that challenged the Trump administration’s rescission of DAPA.

The president has also terminated TPS (Temporary Protected Status) for approximately 300,000 TPS beneficiaries from Haiti, Sudan, Nicaragua, and El Salvador.  
A district court in Ramos v. Nielsen has enjoined these actions.  TPS rescission means, in part, that these individuals cannot secure work authorization in the U.S.  The court’s injunction is based in part on a finding of the president’s racial animus. 

3.        Blocking of Petitions for Naturalization and Adjustment of Status

CARRP: Wagafe v. Trump, and Jafarzadeh v. Nielsen, challenge a covert immigration program created called Controlled Application Review and Resolution Program. CARRP has no congressional approval. Generated internally within the executive branch, CARRP authorizes immigration officials to deny petitions for citizenship or adjustment of status on national security grounds, even if the individual meets all statutory criteria under the INA.  The program allegedly uses overbroad criteria, such as donations to Muslim charities.  Plaintiffs also claim that the program usurps Congress’s Article I exclusive power to set uniform naturalization laws. Plaintiffs have prevailed in both cases.

Military Expedited Citizenship: In a different matter, the Trump administration has blocked foreign nationals from a completing the naturalization process. Non-citizens in the Army’s Selected Reserve program are allowed by statute to apply for an expedited path to citizenship. The Department of Defense has refused to issue a form that is required to certify military-duty status of petitioners, who claim ongoing exposure to loss of their jobs or removal from the U.S. 

Citing a likely violation of the Administrative Procedure Act, the district court in Kirwa v. U.S. Dep’t of Defense ruled in favor of petitioners’ claims for injunctive relief.  The court found that changes in the certification of honorable service were arbitrary and capricious; guidelines on certification of honorable service were impermissibly retroactive; the Defense Department unlawfully withheld or unreasonably delayed certification of naturalization forms; and these changes caused petitioners irreparable harm.

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The president has lost approximate three out of four cases before courts, and is only 50-50 before a friendly Supreme Court. Courts are serving as a quiet check on presidential overreach, at least up to now.