2017 was a tumultuous, stressful and painful year for the many Americans who believe we are all created equal and that we possess natural and constitutional rights that include freedom, justice, liberty, equality, fairness and opportunity.
January 2017 began inauspiciously when President Trump and his administration removed all references to civil rights, LGBT rights, climate change and Spanish language content from the White House website. Later in January, President Trump issued Executive Orders mandating that a wall be built along our Southern border with Mexico, targeting sanctuary cities and creating a travel/Muslim ban prohibiting entry into the United States.
These initial actions by the Trump administration were a bellwether of policies that would spark a chorus of objections from concerned Americans. Yet, as we begin a new year, the president’s agenda to “Make America Great Again” continues to present a clear and present danger as certain policies and practices of the administration are antithetical to constitutional rights and core American values.
In response, many Americans joined together in declaring our independence from the policies and practices of President Trump. See, declaration17.com. And, we have continued to report on the major federal lawsuits challenging the president and his administration.
As we have observed throughout the year, the federal district courts and the U.S. Court of Appeals have consistently and steadfastly resisted and overruled over reaching aspects of the Trump agenda.
Note well that provisions of our Constitution including the separation of powers, the First Amendment and the due process and equal protection components of the Fifth Amendment have been and must continue to be a roadmap, a safety valve intended to uphold and preserve our democratic form of government.
Following Donald Trump’s inauguration on January 20, 2017 approximately 30 major federal lawsuits were filed against the president and his administration challenging: travel bans I, II, and III, financial prohibitions on sanctuary cities, a transgender military ban, repealing DACA, the Presidential Advisory Commission on Electoral Integrity, the violation of the Emoluments Clauses and birth control coverage under the Affordable Care Act. These lawsuits have produced approximately 38 major court decisions/orders (8 from the Second, Fourth and Ninth Circuits and 30 from federal district courts in New York, Maryland, District of Columbia, California, Washington, Pennsylvania, Illinois, Massachusetts, Virginia and Michigan).
Of these 38 federal court decisions/orders, the Trump administration has substantially prevailed in only one, a recent New York federal district court decision/order dismissing the Emoluments Clause challenge to President Trump and his business activities associated with the Trump Organization.
The U.S. Supreme Court has not ruled on the merits of any of the challenges to date. The Supreme Court has rendered two decisions/orders concerning discovery document issues in DACA cases and approximately five decisions/orders concerning travel bans, the latter effectively granting the Trump administration the right to enforce travel ban III, with limitations, pending decisions on the appeals in the circuit courts. The Supreme Court also left open the possibility that it would decide the legality of travel ban III. Decisions by the Court on these critical issues are being watched closely.
Federal courts have rejected the Trump administration’s arguments, repeatedly holding that the president cannot act unilaterally when fundamental rights are affected. There are, they maintain, limitations on presidential powers. For example, with regard to the travel bans, the Ninth Circuit said “immigration, even for the president is not a one-person show. The president’s authority is subject to certain statutory and constitutional restraints. We conclude that the president, in issuing the Executive Order, exceeded the scope of the authority delegated to him by Congress.” In a case concerning sanctuary cities a district court in California stated” [t]he Constitution vests the spending powers in Congress not the President, so the Order cannot constitutionally place new conditions on federal funds.”
Finally, in a case that challenged the transgender military ban, the District of Columbia district court stated “there is absolutely no support for the claim that service of transgender individuals would have any negative effect on the military at all.”
Federal courts have been fulfilling their constitutional mandate. They are holding President Trump and his administration accountable to our Constitution and the rule of law. We, the public, need to acknowledge the Judiciary’s salutary role and derive hope from it.
We cannot give up, minimize or trivialize the importance of America’s democracy and its rich history of supporting fundamental rights. We as a nation have prevailed against previous threats to these rights, and will in the future by upholding core American principles and values.
Norman Siegel is a civil rights lawyer at the law firm Siegel Teitelbaum & Evans.