Thursday, June 15, 2017

Ninth Circuit Rejects Latest Version of Trump’s Muslim Ban on Statutory Grounds, Stating: “Immigration, Even for the President, is Not a One-Person Show”

On Monday, the U.S. Court of Appeals for the Ninth Circuit upheld the Hawaii district court’s nationwide preliminary injunction against President Trump’s revised “travel ban.” This travel ban was Trump’s second attempt at delivering on his bigoted and callous campaign promise to prevent Muslims from entering the United States: it sought to deny entry to all nationals of six majority-Muslim countries and to impose draconian restrictions on refugees, including temporarily banning the entry of all refugees and reducing the cap on refugees for fiscal year 2017 by more than fifty percent.

The revised travel ban largely followed the original Muslim ban’s template, except that it does not include Iraq in its list of majority-Muslim countries, it does not apply to current visa-holders, it does not contain explicit preferences for non-Muslim refugees, and it provides for case-by-case waivers at the discretion of consular or border control officers. Nonetheless, the intent of the revised travel ban is clear, as Trump has repeatedly referred to it as a continuation of his efforts to deny entry to Muslims.
Notably, the Ninth Circuit rejected the travel ban because it overstepped the President’s authority as delegated by Congress under the Immigration and Nationality Act (“INA”), which includes a prohibition on national origin discrimination. This approach stands in contrast to the Ninth Circuit’s prior ruling on the original Muslim ban and the Fourth Circuit’s ruling on the revised ban, which both affirmed lower-court injunctions on constitutional grounds. By avoiding the constitutional questions and deciding the case on statutory grounds, the Ninth Circuit highlighted an alternate legal theory to defeat the travel ban, based on canons of statutory interpretation rather than the more overtly political process of constitutional analysis. No doubt the unanimous three-judge panel of the Ninth Circuit had the conservative-majority Supreme Court in mind when it took this more unassuming approach.

In addition to constitutional claims based on the Establishment Clause of the First Amendment and the Due Process Clauses of the Fifth and Fourteenth Amendment, Plaintiffs the State of Hawaii and Dr. Ismail Elshikh also alleged that the revised travel ban ran afoul of the INA by: (1) discriminating on the basis of nationality; (2) ignoring and modifying the statutory criteria for denying entry based on terrorism-related concerns; and (3) exceeding the scope of statutory authority delegated to the President by Congress. 

Article I, section 8 of the Constitution grants Congress the power to “establish a uniform rule of naturalization,” but Congress has delegated some of that authority to the President under the INA. That delegation, however, requires that the President make a finding that the entry of a “class of aliens . . . would be detrimental to the interests of the United States” before denying entry to that group. The Court correctly observed that the Trump Administration had made no such finding that the 180 million nationals of the six countries were inherently dangerous based on their nationality alone. It cited to one of Trump’s tweets to support the position that Trump intended to target countries, not individuals from those countries who had, for example, engaged in terrorist activities or other dangerous behavior. It also cited to leaked Homeland Security reports which had concluded that excluding individuals based on nationality would be ineffective in preventing terrorist attacks. As to the refugee ban, the Court noted that refugees already undergo the most lengthy and involved vetting process of anyone seeking admission to the United States, and determined that the Trump Administration had provided no justification for how suspending or dramatically reducing the number of refugees admitted would promote public safety. By failing to make any such a finding of detriment – beyond xenophobic conjecture – Trump exceeded the authority Congress granted to him under the INA.

Similarly, the revised travel ban was found to violate the INA’s prohibition on national-origin discrimination, enacted in 1965 to eliminate the prior immigration system based on racial quotas – i.e., favoring immigrants from northern Europe and heavily restricting immigration from Asia and Africa. As discussed above, the ban’s emphasis on nationality as the sole criterion for exclusion, as opposed to culpable conduct, could not satisfy the INA’s nondiscrimination mandate, “because it would enable the President to restore discrimination on the basis of nationality that Congress sought to eliminate.” The Ninth Circuit also addressed the fact that the INA contains detailed provisions governing terrorism-related admissibility, which require reasonable grounds to believe that an individual alien is likely to engage in terrorist activity, which would be rendered superfluous by the revised travel ban.

Finally, the Court took a broad view and addressed the scope of the President’s authority under the tripartite framework established by Justice Jackson’s concurrence in the Steel Seizure Case. The Ninth Circuit concluded that “the President took measures that were incompatible with the expressed will of Congress, placing his power ‘at its lowest ebb.’”

In short, once more, Trump and his inexperienced team of white nationalists and corporate cronies have failed to achieve one of their goals because they could not be bothered to do their homework. And the Ninth Circuit – like the Fourth Circuit and various district courts – once again affirmed the role of the judicial branch to ensure that we remain a nation of laws which do not wither in the face of an impulsive, unprincipled, and uninformed Executive.

Given the nationwide injunction and the importance of these issues, the Supreme Court is likely to confront the revised travel ban – possibly in the next three weeks before the end of the current term. When it does, the High Court may find that the Ninth Circuit’s example of constitutional avoidance and rigorous interpretation of the INA is the most prudent way to dispose of the Muslim Ban once and for all.

Thursday, June 8, 2017

Trump Administration Withdraws Guidance to Protect Workers

Trump won the White House by invading the traditional Democratic base – working Americans – promising them greater wages and job security. Renegotiated treaties, clamping down on job exporters, investing in infrastructure-related job creation – these were just a few of his signature promises that attracted the working class Wisconsin, Pennsylvania, and Michigan voters who made President Trump.


Now that Trump is in office, he is singing a different tune – the same old, Republican tune that is only music to the ears of the richest Americans (like Trump and his family). This week, the Trump administration announced that his Department of Labor (DOL) has withdrawn Obama-era administrative guidance which made it more difficult for employers to avoid their responsibilities to workers.


The 2015 guidance adopted an expansive definition of employment under the Fair Labor Standards Act (FLSA) so that most workers would be covered employees, not misclassified as independent contractors. It specifically abandoned the “common law control” test, which focuses on the employer’s control over the employee, in favor of the broader “economic realities” test, which focuses on an employee’s economic dependence on the employer. As a result, most workers were covered under the FLSA and had access to important protections including minimum wages, overtime pay, worker’s compensation, and unemployment insurance.

The Obama administration issued additional guidance in 2016 for joint employers. It broadly defined the scope of joint employment, making it harder for corporations to play a shell game with workers who are just trying to get their hard-earned pay. It specifically required joint employers to aggregate the total hours employees worked for joint employers. Joint employers could no longer claim that an employee worked for Company A for 30 hours per week and Company B for 25 hours per, just to avoid paying her overtime each pay period. Instead, the employee was entitled to receive 15 hours overtime as she actually worked 55 hours per week for the joint employer.

Misclassification affects 10-20 percent of employees and costs them – and states –  hundreds of millions of dollars in unpaid wages and taxes. It affects workers in every industry, from domestic workers to truck drivers. Recent court cases highlight the pervasiveness of misclassification. FedEx settled for $228 million dollars after the Ninth Circuit found that 2,300 delivery drivers had been misclassified as independent contractors. Lyft is paying up $27 million to settle misclassification claims. The Obama administration’s guidance was an essential step to combat this massive problem and protect all workers.  

Withdrawing the guidance will affect middle-class people nationwide. The DOL has now signaled that employee misclassification will no longer be a priority. Employers will again more easily be able to misclassify employees as independent contractors, to avoid paying workers properly and protecting their safety and health. It will also be more difficult to establish a joint employer relationship, and therefore to hold all the involved parties responsible, where workers’ rights are violated. Big corporations love the Trump administration’s withdrawal of the Obama-era guidance – it puts more money in the executives’ pockets, at the expense of their workers.

Moving forward, workers and employment attorneys should pay attention to whether and how DOL enforces misclassification cases and who Trump appoints to the two open spots on the National Labor Relations Board (NLRB). In a 3-2 decision, the Obama-era NLRB adopted the broad interpretation of joint employer. If the DOL does not aggressively enforce misclassification cases, and the NLRB returns to a narrow interpretation of which companies are responsible to workers, everyone will begin to feel the effects of Trump’s abandonment of American workers.  

Monday, June 5, 2017

Seventh Circuit Holds that Discrimination against Transgender Student is Cognizable Sex Discrimination under Title IX and the 14th Amendment

The U.S. Court of Appeals for the Seventh Circuit has affirmed a preliminary injunction requiring a Wisconsin high school to permit a transgendered male student to use the boys’ bathrooms. (Link to the landmark opinion in Whitaker v. Kenosha Unified School District here.) In affirming the preliminary injunction, the Court ruled that the student – Ash Whitaker – could state a claim for sex discrimination based on his transgender status under Title IX of the Education Amendments Act of 1972 and the Equal Protection Clause of the 14th Amendment. The decision has wide-ranging implications outside the context of education, particularly for employment law, as the Court described the close relationship between Title IX and Title VII (of the Civil Rights Act of 1964, prohibiting employment discrimination), and largely relied on case law developed under Title VII to reach its conclusion. The ruling is also significant because it comes on the heels of the Trump Administration’s cruel decision in February 2017 to rescind President Obama’s administrative guidance stating that schools should permit students to use bathrooms consistent with their gender identity.

Ash, a high school senior who has just graduated, first came out as a transgender male to his family in eighth grade and began to publicly transition shortly thereafter, a process that included hormone replacement therapy and a legal name change. Ash and his mother repeatedly requested permission for him to use the boys’ bathroom while at school. The school repeatedly denied the requests, telling Ash he could only use the girls’ bathrooms or a staff-only gender-neutral bathroom located far from his classes. Ash did not want to undermine his transition by using the girls’ bathroom, and did not want to draw further attention to himself as the only student with access to the staff-only bathroom (not to mention the fact that using the staff-only bathroom made it impossible to get to class on time).

Ash alternated between restricting his water intake, resulting in adverse health effects, and sneaking into the boys’ bathroom. Ash and his mother continued to ask the school for relief, without results. The school demanded medical documentation, which Ash provided, but, ultimately, the school stated that it could not honor the request unless Ash completed a surgical transition, notwithstanding that the procedure is prohibited for minors. At one point, the school instructed its security guards to monitor Ash’s bathroom use, and he was removed from class for failing to comply with the school’s unwritten and inconsistent policies. Throughout this course of events, Ash’s symptoms of depression worsened, leading to suicidal ideation.

Ash filed suit the summer before his senior year, and obtained a preliminary injunction from the district court which required the school to allow Ash to use the boys’ bathroom and prevented the school from further monitoring his bathroom use. The school then appealed the preliminary injunction to the Seventh Circuit.

The Court (in a unanimous decision authored by Judge Anne Claire Williams) first determined that Ash had made a showing of irreparable harm and that no adequate remedy at law existed, casting aside the school’s argument that monetary relief could make him whole, stating: “We cannot say that this potential harm – his suicide – can be compensated by monetary damages.” The Court then addressed the likelihood of success on the merits in the underlying lawsuit and the balance of harms.

As to Ash’s Title IX claim, the Court looked to the development of sex-discrimination based on sex-stereotyping under Title VII, starting with the Supreme Court’s 1989 Price Waterhouse v. Hopkins decision, in which an employer was found to have discriminated against a female employee because she was perceived as too masculine. The Seventh Circuit also looked to its own en banc decision earlier this year, which established that Title VII also prohibits sexual orientation discrimination based on a sex-stereotyping theory. The argument is straight forward: if discrimination based on an individual’s lack of conformity to established gender norms is sex discrimination, then it follows that discrimination based on lack of conformity to one’s gender assigned at birth also qualifies. The Court noted that both the 11th and 6th Circuits had previously applied Price Waterhouse to determine that transgender discrimination qualifies as sex discrimination.

With respect to the Equal Protection Clause, the Court explained that, because transgender discrimination is sex discrimination, heightened scrutiny rather than rational basis review applies. Sex-based stereotypes are an insufficient basis to meet this heightened scrutiny, and thus the Court found a likelihood of success as to the 14th Amendment claim as well. The Court did not decide whether discrimination based upon transgender status is per se entitled to heightened scrutiny across the board.

Finally, in considering the balance of harms, the Court eviscerated the school district’s privacy arguments as entirely speculative. The Court also pointed to the fact that Ash had used the boys’ restroom for a six-month period without any student complaints (it was a teacher who eventually reported Ash) as evidence that the privacy argument was based on conjecture alone. The argument that transgender individuals’ presence in public bathrooms not matching their birth gender poses a heightened risk to the safety and privacy of other bathroom users has been advanced by opponents of transgender rights as an unsubstantiated scare tactic. As stated by the Court: “Common sense tells us that the communal restroom is a place where individuals act in a discreet manner to protect privacy and those who have true privacy concerns are able to use a stall.”

Although not the first appellate-court decision to recognize this theory of transgender discrimination as sex discrimination, Whitaker is a significant step in the fight to expand school, workplace, and other civil rights protections for transgender individuals and the LGBTQ community generally. School administrators and employers must not stigmatize transgender individuals based on speculation about the harms to other students and employees. The fact that the decision followed the Trump Administration’s rescinding of the Obama Administration’s bathroom guidance – and declined to consider or mention it – shows that despite the current Administration’s bigoted attempts to roll back the clock on LGBTQ rights, the critical statutory and constitutional framework for protecting those rights already exists. Protections will continue to become more robust through subsequent judicial decisions like this one.

Supreme Court review of transgender bathroom access appears inevitable, whether through this case, Gavin Grimm’s case in the Fourth Circuit, or another. Once again, all eyes will turn to Anthony Kennedy, who will have another opportunity to cement his unique legacy with respect to LGBTQ rights.