Tag Archives: Ruling

US Federal Appeals Court Upholds Suspension of Trump Travel Ban

Photo credit: Pixabay

Alicia Nicholls

Less than a month after taking office, the Trump Administration received another judicial blow yesterday to one of its major policy actions. The United States’  Court of Appeals for the Ninth Circuit in its decision in State of Washington v Trump dismissed the Government’s motion for a stay pending appeal of an order of the US District Court for the Western District of Washington which had temporarily suspended the travel ban nationwide.

Background

The genesis to the legal dispute was an executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” signed by President Trump on January 27, 2017. Inter alia, the order sought to ban for 90 days entry into the US of all nationals of seven predominantly Muslim countries, namely Iraq, Iran, Sudan, Yemen, Libya, Syria and Somalia, and indefinitely suspended entry of all Syrian refugees into the US. It also sought to suspend the US Refugee Admissions programme for 120 days, with further direction that on recommencement of the programme, the Secretary of State should prioritise refugees of a minority faith in their country (in this case it would be Christians) with claims of religious persecution.

Upon its signature, the executive order’s impact was quick and brutal. Not only were thousands of visas cancelled but US greencard holders were among those who were either stranded at airports, separated from their families or being deported pursuant to the order. Protests erupted across the US and in several other countries. Several legal challenges were filed, including rulings by federal judges in New York and Massachusetts against the ban. Among the chaos, President Trump swiftly fired Acting Attorney General Sally Yates after she refused to defend the constitutionality of the order.

The decisive blow to the travel ban came after the February 3rd ruling of Judge James Robart, federal judge in the United States District Court for the Western District of Washington. In State of Washington v Trump et. al , a challenge brought by the State of Washington, Judge Robart  held that certain actions of the executive order were ultra vires the constitution, enjoining the government from implementing those provisions and granting a temporary nation-wide restraining order. Thereupon, the Department of Homeland Security suspended implementation of the executive order, whilst the Government prepared its appeal.

Issue 

In the instant case, the Court was asked to consider the Government’s request for an emergency stay of the temporary nation-wide restraining order issued by Judge Robart. The Government requested the stay pending appeal of the order.

Arguments

The Government argued that the federal district court lacked authority to enjoin enforcement of the order because the President has “unreviewable authority to suspend the admission of any class of alien” and that his/her decisions on immigration policy and national security are unreviewable even where they contravene constitutionally-enshrined rights and protections. They further submitted that any challenge to such presidential authority by the judicial branch would be a violation of the principle of separation of powers.

Counsel for the Government also argued that the States of Washington and Minnesota had no locus standi in this matter. However, the Court found that by showing the harm caused to their universities’ research and teaching because of the impact of the travel ban on those faculty members and students who are nationals of those countries, the states met the test for standing of “concrete and particularised injury” as was elaborated in Lujan v Defenders of Wildlife.

In their arguments before the lower court, the states had argued that the executive order violated the procedural rights of aliens, including denying entry to greencard holders and non-immigrant visa holders without sufficient notice and without giving them an opportunity to respond. The states had also argued that the damage to their state economies and public universities were in violation of the First and Fifth Amendments to the US constitution and that they violated a wide range of Acts, including the Religious Freedom Restoration Act. Counsel for the states also reminded the court of President Trump’s words during the campaign as support for their argument that it was intended to be a “Muslim ban” and not an act to protect against terrorist attacks by foreign nationals.

In the instant case before the federal appeals court, one of the things the Government had had  to show that it was likely to prevail against the due process claims made by the States.

Judgment

The learned judges, William C. Canby, Richard R. Clifton, and Michelle T. Friedland, considered four main questions in arriving at their decision: likelihood of the Government’s success on the merits of its appeal, whether the applicant would be irreparably injured absent a stay, whether issuance of the stay will substantially injure the other parties interested in the proceedings, and where the public interest lies.

In an unanimous ruling (3-0), the Court denied the Government’s emergency motion for a stay, finding that the Government has neither shown a likelihood of success on the merits of its appeal nor has it shown that failure to enter a stay would cause irreparable injury.

Moreover, in dismissing the Government’s central claim about the unreviewability of the president’s decisions on immigration policy, the court argued that there was no precedent to support this claim and that it is a claim which “runs contrary to the fundamental structure of our constitutional democracy”. The court rightly argued that it was merely exercising its role of interpreting the law. Relying on decided cases, the court held that while courts owe a deference to the executive branch in matters of immigration and national security, this does not mean that the courts lack authority to review compliance of executive branch actions with the constitution.

So what next?

True to form, President Trump used Twitter as his medium of choice to express his displeasure with the verdict. It is likely that the next step for the administration will be to appeal to the US Supreme Court.

The full text of the Court’s judgment may be obtained here.

Alicia Nicholls, B.Sc., M.Sc., LL.B., is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

Advertisements

UK Government Loses Article 50 Brexit Appeal; Parliamentary Vote Needed

Alicia Nicholls

In its ruling made shortly after 9:30 GMT this morning, the United Kingdom’s Supreme Court by a majority of 8 to 3 dismissed the Government’s appeal against a High Court decision that ruled that the Theresa May-led government must attain parliamentary consent before invoking the EU’s exit clause (Article 50 of the Treaty on European Union – Lisbon Treaty). A second issue which the court was called on to give its ruling upon was whether consultation with the devolved legislatures (e.g: Scotland, Wales, Northern Ireland) was required before Article 50 was triggered.

In a judgment written by the 8 justices in majority and delivered by Lord Neuberger (President of the Supreme Court), the Court held that section 2 of the European Communities Act of 1972 Act did not allow the Government to trigger Article 50 without parliamentary authority.

The main reasons for the Court’s decision were, inter alia, as follows:

  • Section 2 of the European Communities Act makes EU law another source of UK law which can override domestic law and will remain so unless and until Parliament decides otherwise.
  • Once the UK leaves the EU and as such is no longer party to the EU treaties, not only will UK domestic law have changed but the rights enjoyed by UK residents granted through EU law will be affected.
  • Under the UK constitution, parliamentary legislation is required for any fundamental changes to the UK’s constitutional arrangements. Withdrawal from the EU treaties would be such a fundamental change as it would cut off the source of EU law. The justices reiterated that there is “a vital difference between variations in UK law resulting from changes in EU law, and variations in UK law resulting from withdrawal from the EU Treaties”.
  • Parliamentary authority is needed because withdrawal from the EU would remove some existing domestic rights of UK citizens.
  • In regards to the June 23rd 2016 referendum, the Court held that “its legal significance is determined by what Parliament included in the statute authorising it, and that statute simply provided for the referendum to be held without specifying the consequences.”

On the second issue under consideration, the Court unanimously held that the Government is not compelled to consult the devolved Parliaments.

The Court’s ruling is final and it was a decision which was much more expected than the results of the June 23rd Brexit result which precipitated it. It should be emphasised that this ruling was on the legal question of whether the Government could make the Article 50 notification using its prerogative powers and not on the political question of whether Brexit should occur. It is also one of several legal challenges which have been filed since the Brexit vote decision.

In brief remarks following the ruling, the Attorney General, Jeremy Wright, said the Government will comply with the ruling. Even before the ruling, the Government had indicated that in case it lost the appeal, it would present a short Brexit bill to minimise the need for lengthy amendments and debate that would jeopardise Prime Minister May’s end of March timeline for making the Article 50 notification. Once the Article 50 notification is received, the UK and EU would have two years to negotiate a withdrawal agreement, with an extension only possible if agreed to. EU countries had indicated that they would not be engaging in any informal negotiations with the UK prior to the latter’s Article 50 notification.

In her long-awaited  speech last week in which she outlined her 12-point Brexit plan, Mrs. May confirmed that the UK would be pulling out of the single market (a move dubbed a “hard Brexit”) but also indicated that Parliament would be given the chance to vote on the final withdrawal deal negotiated with the EU.

Alicia Nicholls, B.Sc., M.Sc., LL.B., is a trade and development consultant with a keen interest in sustainable development, international law and trade. You can also read more of her commentaries and follow her on Twitter @LicyLaw.

A step towards progress between Haiti and the Dominican Republic?

Alicia Nicholls

The news this week of progress in the talks at Jimani between Haiti and the Dominican Republic to address, inter alia, the long-standing migration issue between the two countries is welcomed news. The fragile diplomatic relationship between the Dominican Republic and Haiti took a sharp turn for the worse in the latter part of last year following a controversial ruling by the DR’s Constitutional Court  on September 23.

The DR’s Constitutional Court had been called on to consider an application made by Ms. Juliana Deguis Pierre that the Electoral Office be ordered to issue her with a national ID card which she had been denied on the basis that she was the child of Haitian parents and not Dominican. Ms. Pierre was born and raised in Los Jovillos, an area in Yamasa municipality (in Monte Plata province) where many persons of Haitian origin live. Denying her request, the Court ruled that Ms. Pierre was not a Dominican citizen but a child born of ‘foreigners in transit’. Using the case as an opportunity to elaborate on Dominican nationality law, the Court applied the restriction on the jus soli principle per Article 18 of the 2010 Constitution, holding that under Dominican law birth on Dominican soil did not automatically confer citizenship on an individual and that for a person born after 1929 to be deemed a citizen of the Dominican Republic, he or she must have been born to at least one parent with legal status in the country. All other persons who did not meet this criterion would be classified as being ‘extranjeros en transito” (foreigners in transit) and therefore as never having had Dominican citizenship.  A copy of the court’s judgment can be read here (in Spanish).

The principle in Dominican immigration law of “foreigner in transit” is not new as it was included in the Constitution of 1929 and in subsequent constitutional reforms, including as recently as in Article 18.3 of the reformed constitution of January 26, 2010. However, prior to the 2010 Constitution, citizenship in the Dominican Republic was conferred on an absolute jus soli basis as evidenced by the language used in previous constitutions, which excluded any reference to the requirement of being born of Dominican parentage. The Court’s retroactive ruling which applies the jus sanguinis principle, established in Article 18 of the 2010 Constitution, to those born after 1929 (and not just to those born after 2010) leaves several generations of Dominicans of foreign descent in a legal limbo as to their status. The retroactive application by the Court of Article 18 to this case seems especially harsh given that the 2010 constitution itself does not indicate that it is meant  to apply retroactively, evidenced by Article 18.2. which states that “Dominicans [also] include those who enjoyed nationality before the entry into force of the Constitution”. A copy of the 2010 Constitution may be found here (in Spanish).

While persons born to parents of other nationalities will be affected, it is persons of Haitian descent who make up the overwhelming majority of persons to whom this ruling would apply.  Some human rights groups estimate that as many as 200,000 persons of Haitian descent may be affected by the ruling. Haiti and the Dominican Republic, which share the Caribbean island of Hispaniola, have always had a tense and complicated relationship which has its roots in the colonial era and in subsequent historical events. These events include the 22-year Haitian occupation of the Dominican Republic in the immediate post-colonial period before the latter attained its independence, and the slaughter of thousands of Haitians by the Trujillo dictatorship in 1937. The socioeconomic disparities between the two states and their cultural, religious, linguistic and racial differences, a legacy of colonialism, have only helped to further deepen the gulf between these two sister nations. A constant source of tension between the two states has been undocumented Haitian migration to the Dominican Republic. Ever since the 1920s when Haitian workers were actively recruited to work in the Dominican Republic’s sugar industry, the Dominican Republic has been an attractive employment market for seasonal and long-term Haitian workers searching for a better life for themselves and their families. Many of those affected by the ruling include Haitians who had been brought in to work on Dominican farms during the 1920s and their descendants born and raised in the DR.

Haitian emigration to the Dominican Republic has helped to foment anti-Haitian sentiment among some Dominicans, a sentiment which is also boosted because of the Dominican Republic’s own racially stratified society where darker skin is still synonymous with being poor and uneducated.

The immigration policy of states is always a touchy subject because of the importance it has for national security. Indeed, it is no doubt that inherent in being a sovereign nation is the right of the state to protect its borders. Both customary international law and the Montevideo Convention of 1933 provide that no state has the right to intervene in the internal or external affairs of another. Further, international law gives states the right to dictate their own policies in regards to conferring nationality.

However, these rights are not absolute as they are subject, inter alia, to the various international human rights treaties which States, like the DR, have acceded to, and by which they agree to respect human rights and to be held accountable for any violation thereof. The human rights implications of the constitutional court’s ruling cannot be overlooked on the basis that the ruling is solely in the province of the DR’s internal affairs. The ruling has been condemned by CARICOM states (of which Haiti is a member) and by various human rights groups as being ‘racist’ and ‘xenophobic’ in nature and with potentially devastating human rights consequences.

Although Dominican authorities deny that the ruling leaves anyone stateless and argue that a plan for naturalisation of affected persons would be implemented, the Court’s retroactive application of Article 18 of the 2010 Constitution does have the effect of stripping those affected of citizenship, depriving them of the rights inherent with nationality, such as the right to vote, the ability to get married and the right of access to basic services such as education, employment and health care, and bringing with it the possibility of expulsion from the land of their birth. Like Juliana Deguis Pierre, many of those three generations of Haitians who are affected were born in, and have lived in the Dominican Republic all their lives, have little or no ties to Haiti and speak no Haitian creole.  In light of the ruling, CARICOM has agreed to indefinitely defer consideration of the Dominican Republic’s longstanding application to accede to CARICOM.

Happily, it appears tentatively that some progress is being made to address this unfortunate state of affairs. Both countries have agreed to establish a Joint Commission to discuss not just issues relating to migration, but also matters of trade, the environment, security, among others. The Dominican Republic has stated that it will as shortly as February 27th bring legislation to address the situation of those born in the Dominican Republic but who currently have no documentation. It is hoped that such legislation will undo the human rights injustice which this ruling portends, affirming the right of those affected to Dominican nationality and being a needed step towards addressing and correcting  the discrimination which many native born Dominicans of Haitian  descent continue to face.

Alicia Nicholls is a trade policy specialist and law graduate. She can be followed on Twitter at @Licylaw.