Court: Trump’s Illegal Consent Procedure for Refugee Resettlement

As discussed in a prior post, on September 28, 2019, President Trump issued an executive order requiring written consents by states and local governments for the federal government’s resettlement of refugees, and other posts have discussed the issuance to date of such consents by at least 40 states.[1]

On January 15, however, the U.S. District Court for the District of Maryland preliminarily ruled that this executive order was invalid and ordered that its enforcement be temporarily halted.[2]

The Court’s Opinion

The court’s opinion on this issue occurred in a civil lawsuit for preliminary and final injunctive relief against this executive order that was brought by three nonprofit refugee resettlement agencies—HIJAS, Inc., Church World Service, Inc. and Lutheran Immigration and Refugee Service [3]—and in the court’s justification for its granting their motion for a preliminary injunction barring enforcement of this executive order while the case proceeds to final judgment.

The court concluded that the well-established principles for preliminary injunction had been established: (1) “the plaintiffs are likely to succeed on the merits;” (2) “they will suffer irreparable harm that is neither remote nor speculative, but actual and imminent if the injunction is not granted;” (3) “the balance of equities favor their position;” and (4) “the relief they seek is in the public interest.” (Memorandum Opinion at 16.) The key issues for the current legitimate public attention to this case are the court’s opinion on the merits and the public interest.

After a careful analysis, the court concluded that the executive order’s “grant of veto power [to state and local governments] over the resettlement of refugees within their borders ”is arbitrary and capricious . . . as well as inherently susceptible to hidden bias” and is “unlawful” based upon “statutory text and structure, purpose, legislative purpose, judicial holdings, executive practice, the existence of a serious constitutional concern over federal preemption, and numerous arbitrary and capricious administrative deficiencies.” (Memorandum Opinion at 17-27.)

The court also concluded that a preliminary injunction against the President’s executive order was in the public interest by “keeping ‘the President from slipping the boundaries of statutory policy and acting based on irrelevant policy preferences,’. . . having governmental agencies abide by federal laws that govern their existence and operations, . . . [and preventing] States and Local Governments [from having] the power to veto where refugees may be resettled –in the face of clear statutory text and structure, purpose, Congressional intent, executive practice, judicial holdings, and Constitutional doctrine to the contrary.” (Memorandum Opinion at 30-31.)

Conclusion

The Federal Government has a right to appeal this decision to the U.S. Court of Appeals for the Fourth Circuit, but has not expressed any intent to do so. In the meantime, officials in the U.S. State Department, state and local governments, the resettlement agencies and refugees themselves are confused about what to do next.

This case arbitrarily was assigned by the District Court’s Clerk to Senior District Judge Peter J. Messitte, who on August 6, 1993, was nominated by President Bill Clinton and on October 18, 1993, confirmed by the U.S. Senate; on September 1, 2008, he assumed senior status. Judge Messitte is a graduate the University of Chicago Law School, where he was a classmate of this blogger. His undergraduate degree is from Amherst College.[4]

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[1] See Latest U.S. Struggle Over Refugees, dwkcommentaries.com (Dec. 11, 2019);   posts to dwkcommentaries.com. relating to refugee resettlement.

[2] Memorandum Opinion, HIJAS, Inc. v. Trump, Civil No. PJM 19-3346 (D. Md. Jan. 15, 2020); Order, Hias, Inc. v. Trump, Civil No. PJM 19-3346 (D. Md. Jan. 15, 2020); Marimow & Sacchetti, Federal judge temporarily halts Trump administration policy allowing local governments to block refugees, Wash. Post (Jan. 15, 2020); Assoc. Press, Judge Halts Trump’s Order Allowing States to Block Refugees, N.Y. Times (Jan. 15, 2020).

[3] The three plaintiff resettlement agencies are members of nine designated “’Resettlement Agencies’ that enter into annual agreements with the Federal Government to provide services to these refugees under the current [U.S.] resettlement program.” (Memorandum Opinion at 1.) The plaintiffs were supported by amici briefs from 12 states, including Minnesota; from the U.S. Conference of Mayors along with 11 mayors and cities, including Minneapolis; and various faith-based organizations with hundreds of affiliates throughout the U.S.  (Id. at 2 (n.2).)

The amici brief for the states asserted the following arguments: (I) The Executive Order Violates the Refugee Act and Interferes with the States’ Sovereign Interests;” (II) “The Refugee Resettlement Consent Process Harms the States’ Refugee Communities;” (III) “The Refugee Resettlement Consent Process Burdens the Staters’ Resources;” (A) Amici States Have Created Highly Effective Refugee Resettlement Systems;” (B) “The Executive Order’s Consent Process Burdens State Refugee Resettlement Programs.” (Brief of the States of California, et al. As Amici Curiae in Support of Plaintiffs’ Motion for Preliminary Injunction, Hias, Inc. v. Trump, Civil No. PJM 19-3346 (D. Md. Dec. 13, 2019).)

[4] Peter Jo Messitte, Wikipedia; U.S. Dist. Ct., Dist, Md, Peter J. Messitte.

 

Important Questions for Judge Kavanaugh’s Confirmation Hearing 

                                                                                                                                        Judge Brett Kavanaugh, President Trump’s nominee for the U.S. Supreme Court, is supposed to be an “originalist” or someone who bases judicial decisions on the “original” meaning of the U.S. Constitution and statutes. The logic of this philosophy is impeccable. The framers of the Constitution and its amendments and the Congress in statutes make the law and judges seek to ascertain their original intent and then apply the original intent to decide cases.

Thus, some of the important questions for his confirmation hearing revolve around this question: how do you attempt to determine what the original intent of constitutional words or phrases is?

Important guidance on this problem is provided by a recent decision by the U.S. District Court for the District of Maryland regarding the original meaning of the constitutional word “emolument” and by new searchable databases of various writings from the era of the framers of the Constitution.

The Meaning of the Constitutional Word “Emolument”[1]

On July 25, 2018, the U.S. District Court for the District of Maryland denied President Trump’s motion to dismiss the Amended Complaint alleging that his “actual or potential receipt, directly or indirectly, of payments by foreign, the federal, and state governments  (or any of their instrumentalities) in connection with his and the Trump Organization’s ownership of the Trump International Hotel in Washington, D.C.” violates the Foreign and Domestic Emoluments Clauses of the U.S. Constitution.

The key issue for the court in its 52-page well-reasoned and well-written opinion denying the dismissal motion was the original meaning of the world “emolument” in these two constitutional clauses::

  • The Foreign Emoluments Clause. “And no Person holding any Office of Profit or Trust under them [the United States], shall, without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” (U.S. Const., Art I, sec. 9, cl. 8 (emphasis added).)
  • The Domestic Emolument Clause. “The President shall, at stated Times, receive for his Services, a Compensation, which shall neither be increased nor diminished during the Period for which he shall have been elected, and he shall not receive within that Period any other Emolument from the United States, or any of them.” (U.S. Const., Art II, sec. 1, cl. 7 (emphasis added).)

After first reviewing the parties’ different interpretations of the text of these clauses, the court’s opinion began “with a strong presumption that the term ‘emolument’ should be interpreted broadly to mean ‘profit,’ ‘gain,’ or ‘advantage,’ essentially covering anything of value.” (P. 22.)

The court then turned to the “Original Public Meaning”  of the word since the Supreme Court has held that as the Constitution was “written to be understood by the voters at the time,” it is important to consider “the meaning of the term ‘emolument’ against the backdrop of what ordinary citizens at the time of the Nation’s founding would have understood it to mean.” (Id.) This analysis reinforced the court’s strong presumption from the text that the term had a broad meaning. Important in this regard for the court were the broad use of that term in the following (id. at 22-30):

  • An “article by Professor John Mikhail of Georgetown University Law Center in which, following exhaustive research, he concluded that “every English dictionary definition of ‘emolument’ from 1604 to 1806” includes Plaintiffs’ broader definition.”[2]
  • Drafters of state constitutions;
  • Blackstone’s Commentaries on the Laws of England; and
  • The Framers themselves.

Further support for the court’s conclusion was found in Interpretations of the term by the U.S. Office of Legal Counsel  and Comptroller of the United States.

 The Meaning of the Second Amendment’s Right To “Bear Arms”

The Second Amendment to the U.S. Constitution states the following: “A well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” (Emphasis added.)

The U.S. Supreme Court in  District of Colombia v. Heller, 554 U.S. 570, 576-626 (2008) held, 5-4, that the Second Amendment to the U.S. Constitution protected “an individual right to possess a firearm unconnected with service in a militia, and to use that arm for traditionally lawful purposes, such as self-defense within the home.” The majority opinion in Heller by Associate Justice Antonin Scalia concluded that the phrase “bear arms” in that amendment “was not limited to the carrying of arms in a militia.” (Id. at 586.)

Disagreement with that conclusion has been voiced by Dennis Baron, Professor of English and Linguistics at the University of Illinois at Urbana-Champaign. The basis for this conclusion is the result of a search for the term “bear arms” in the following two new databases compiled by the Brigham Young University College of Law:[3]

  • The Corpus of Founding Era American English is composed of 96,615 texts with nearly 144 million words (as of 07/29/18) in documents used, 1760-1799, by ordinary people of the day, the Founders, and legal sources, including letters, diaries, newspapers, non-fiction books, fiction, sermons, speeches, debates, legal cases, and other legal materials.
  • The Corpus of Early Modern English, which is composed of 40,300 texts with nearly 1.3 billion words from 1475-1800.

The search of the first database yielded 281 instances of the phrase “bear arms” while the second search produced 1,572 instances. After eliminating about 350 duplicates, there were about 1,500 separate occurrences of “bear arms” in the 17th and 18th centuries, and only a handful did not refer to “war, soldiering or organized, armed action.” Therefore, Baron concludes, these databases confirm that the natural meaning of “bear arms” in the framers’ day was connected with militias or the military.

According to Baron, further support for this conclusion is found in the fact that the phrase “bear arms” “has never worked comfortably with the language of personal self-defense, hunting or target practice.” Here, Baron referred to this 1995 comment by historian Garry Wills: “One does not bear arms against a rabbit.”

And in 1840, said Baron, in an early right-to-bear-arms case, the Tennessee Supreme Court stated: “A man in the pursuit of deer, elk and buffaloes, might carry his rifle every day, for forty years, and, yet, it would never be said of him, that he had borne arms, much less could it be said, that a private citizen bears arms, because he has a dirk or pistol concealed under his clothes, or a spear in a cane.”

Moreover, Baron pointed out that in the oral arguments  in the Heller case itself, U.S. Solicitor General Paul D. Clement, who was advocating for the invalidity of the District of Colombia gun law, initially said that “bear arms” was meant to carry them outside the home. But he was interrupted by Associate Justice David Souter, who said, “But wait a minute. You’re not saying that if somebody goes hunting deer he is bearing arms, or are you?” Clement responded, “I would say that and so would [James] Madison and so would [Thomas] Jefferson.” But Souter was not persuaded and asked, “In the 18th century, someone going out to hunt a deer would have thought of themselves as bearing arms? I mean, is that the way they talk?” Clement finally retreated with this statement: “Well, I will grant you this, that ‘bear arms’ in its unmodified form is most naturally understood to have a military context.” Obviously the phrase is not modified in the Second Amendment.

New Databases of Written Materials from Framers’ Era

In addition to the previously mentioned databases compiled by the Brigham Young University College of Law, a similar project is being undertaken by a legal historian at the University of Chicago Law School, Alison LaCroix , and a linguist, Jason Merchant, the Lorna Puttkammer Straus Professor, Department of Linguistics and Humanities at the University of Chicago. Their project seeks to utilize the vast collection of historical texts available through Google Books to enable users to study in a more rigorous and sophisticated way how language and meaning have changed. This project, Professor LaCroix, said, “meets originalism on its own terms.”[4]

Questions for Judge Kavanaugh

Therefore, this blogger suggests that at the confirmation hearing, Judge Kavanaugh be asked at least the following questions:

  1. How do you attempt to determine the original meaning or intent of a word or phrase in the U.S. Constitution?
  2. What sources do you use in such attempts?
  3. Do you use computer databases of written materials from the framers’ era?
  4. If so, which ones? Why those? How many texts are in those databases?
  5. If not, why not?
  6. Have you ever used the BYU Law School’s Corpus of Founding Era American English?
  7. If not, why not?
  8. If yes, for what issue? Result?
  9. Have you ever used BYU Law School’s Corpus of Early Modern English?
  10. If not , why not?
  11. If yes, for what issue? Result?
  12. If you were confirmed to be an Associate Justice of the Supreme Court, would you be reluctant to overrule one of its own precedents that, in your judgment, erroneously interpreted the original intent or meaning of a constitutional word or phrase?
  13. If you had been on the Court in the 1950’s, for example, would you have been reluctant to overrule Plessy v. Ferguson?
  14. If you are confirmed, would you be reluctant to overrule the Supreme Court’s interpretation of the Second Amendment’s “bear arms” phrase in District of Columbia v. Heller?

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[1] Order, District of Columbia v. Trump, Case No. 8:17-cv-01596-PJM (D. Md. July 25, 2018); Opinion, District of Columbia v. Trump, Case No. 8:17-cv-01596-PJM (D. Md. July 25, 2018);  LaFraniere, In ruling against Trump, Judge Defines Anticorruption Clauses in Constitution for First Time, N.Y. Times (July 25, 2018); Racine, Frosh & Eisen, Trump’s Emoluments Trap, N.Y. Times (July 26, 2018); Marimow, O’Connell & Fahrenthold, Federal judge allows emoluments case against Trump to proceed, Wash. Post (July 25, 2018); Barbash, Trump’s ‘emoluments’ battle: How a scholar’s search of 200 years of dictionaries helped win a historic ruling, Wash. Post (July 27, 2018); Editorial, The framers worried about corruption. Their words may now haunt the president, Wash. Post (July 27, 2018). The judge in this case, Senior District Judge, Peter J. Messitte, holds a B.A. degree from Amherst College (1963) and a J.D. degree from the University of Chicago Law School (1966), where he was a classmate of this blogger. He was appointed to the District Court by President Clinton in 1993. In 2008 he took senior status, but carried a full caseload through 2011.

[2] Mikhail, Abstract: The Definition of ‘Emolument” in English Language and Legal Dictionaries, 1523-1806 (June 30, 2017).

[3] Baron, Antonin Scalia was wrong about the meaning of ‘bear arms,’  Wash. Post (May 21, 2018); Brigham Young University Law School, Corpus of Founding Era American English; Brigham Young University Law School, Corpus of Early Modern English; Baron, Guns and Grammar: the Linguistics of the Second Amendment.

[4]  Allen, Alison LaCroix Leads New Law and Linguistics Project, Univ. Chicago Law School News (Feb. 2, 2015).