Symbolic war broke out between the Judicial and Executive branches shortly before 9pm on Saturday evening, when federal judge Ann Donnelly in the Eastern District of New York in Brooklyn issued an emergency stay halting Trump's executive order banning immigrants from seven mostly Muslim nations entering the US, and temporarily letting people who landed in U.S. with valid visa to remain on US territory, saying removing the refugees could cause "irreparable harm".
Stay of ban removals pic.twitter.com/jZjtidm2IF
— Omar C. Jadwat (@OmarJadwat) January 29, 2017
Here is copy of the federal court order granting nationwide stay of removal. #MuslimBan @ACLU pic.twitter.com/7rWe5bJ4Yi
— Jamil Dakwar (@jdakwar) January 29, 2017
The court's ruling was in response to a petition filed on Saturday morning by the ACLU on behalf of the two Iraqi men who were initially detained at JFK International Airport on Friday night after Trump's ban, and were subsequently granted entry into the US.
Nationwide injunction - no one can be removed - govt must provide list of names of ppl affected
— Dale Ho (@dale_e_ho) January 29, 2017
WATCH: ACLU Executive Director Anthony D. Romero coming out of the court where the ACLU just argued and won block of Trump's Muslim ban. pic.twitter.com/kvWDgWiUIn
— ACLU National (@ACLU) January 29, 2017
The ACLU issued the following statement following the court ruling:
A federal judge tonight granted the American Civil Liberties Union’s request for a nationwide temporary injunction that will block the deportation of all people stranded in U.S. airports under President Trump’s new Muslim ban. The ACLU and other legal organizations filed a lawsuit on behalf of individuals subject to President Trump's Muslim ban. The lead plaintiffs have been detained by the U.S. government and threatened with deportation even though they have valid visas to enter the United States.
Lee Gelernt, deputy director of the ACLU’s Immigrants’ Rights Project who argued the case, said:
“This ruling preserves the status quo and ensures that people who have been granted permission to be in this country are not illegally removed off U.S. soil.”
ACLU Executive Director Anthony D. Romero, had this reaction to the ruling:
“Clearly the judge understood the possibility for irreparable harm to hundreds of immigrants and lawful visitors to this country. Our courts today worked as they should as bulwarks against government abuse or unconstitutional policies and orders. On week one, Donald Trump suffered his first loss in court.
However, while some media reports present the court ruling as a wholesale victory over Trump's order, the stay only covers the airport detainees and those currently in transit, and it does not change the ban going forward.
Clarification:Stay covers the airport detainees and those currently in transit. Doesn't change ban going forward. Prev unclear tweet deleted
— Jessica Huseman (@JessicaHuseman) January 29, 2017
In summary, the state of affairs as of this moment is that the executive order is now frozen for the next few days, until the case can be briefed. The court has ruled that no one who is currently being held can be sent back to their country of origin, but it remains unclear if they will be released is unclear.
Judge Donnelly has ordered the federal government to provide a list of all people currently held in detention. Where the stay falls short is that according to the ACLU's lawyer, there still can be no new arrivals from countries under the ban, but the ACLU and other organizations are working to file additional suits to roll back other portions of the order.
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A detailed read of Judge Donnelly's ruling, per Josh Blackman, reveals that the order states that petitioners have shown a “strong likelihood of success” and that their removal would violate the Due Process and Equal Protection clause, and cause irreparable injury. (Note, this order only applies to those already in the country, and thus protected by the Constitution; the same analysis does not apply to those outside the United States).
As a result, the court issues what is effectively a nationwide stay, enjoining all of the named respondents, including President Trump, Secretary Kelly, and the acting director of the CBP, from the “commission of further acts and misconduct in violation of the Constitution as described in the Emergency Motion for Stay of Removal.”
The key part is what they are enjoined from doing:
ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen, legally authorized to enter the United States.
Further, the court orders the Marshal for the Eastern District of New York to “take those actions deemed necessary to enforce the provisions and prohibitions set forth in this Order.”
What will disappoint civil rights advocates, is that this opinion only affects the small number of people who were in-transit when the order was issued, and arrived after it went into effect. The Constitution attaches to their status, and they cannot be held in violation of the Due Process Clause. The same analysis does not apply to aliens outside the United States.
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We now look forward to Trump's reaction to this act of defiance by a US Court which has partially - and painfully - voided his most controversial executive order to date, and whether the Supreme Court will be forced to opine on this most divisive of topics in the coming days. If anything, the risk to the latter may accelerate the prompt appointment of a conservative SCOTUS judge to fill the vacant Scalia spot.