Here Are the Biggest Legal Challenges Facing Trump’s Agenda in 2018

And the status of each.

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The Trump administration’s lawyers have had quite the year. Between lawsuits claiming the president illegally accepted gifts from foreign governments and a defamation case from an Apprentice alumna who has accused Donald Trump of sexual misconduct, the White House legal team has faced one battle after another during the president’s first year in office.

Trump’s big policy changes this year are no different: Each has faced a gauntlet of legal challenges. And months after he introduced them, several of his key policies—including the ban on transgender people in the military and the rollback of birth control coverage—have been held up by court dates, revisions, and political maneuvering and have yet to go into effect.

“The Trump administration has shown a willingness to disregard basic constitutional principles in order to placate his base,” David Cole, the national legal director of the American Civil Liberties Union, told Mother Jones. “The courts have stepped up to the plate.”

With a seemingly endless stream of litigation against the Trump administration, it can be hard to keep up. Heres a refresher on lawsuits facing four of Trump’s signature policies, and what to expect in 2018:

Muslim Travel Ban

Background: In January, just a week after taking office, Trump issued an executive order temporarily blocking travel from seven majority-Muslim countries—Iraq, Iran, Syria, Yemen, Libya, Sudan and Somalia. Chaos at airports and protests across the country ensued. The ban was met with several lawsuits, including one from the ACLU on behalf of two Iraqi men detained at John F. Kennedy airport in New York. The ACLU argued that the ban, which the administration denied was targeted at any specific religious group, was a poorly disguised version of the Muslim ban Trump had promised during his campaign. The ban was soon blocked by a federal judge.

Trump announced a second version of the ban in March. The new ban was also blocked. In June, the Supreme Court permitted a limited 90-day version of that ban to take effect, and it expired in September.

Travel Ban 3.0 was announced in September, as the second version of the policy was set to expire. The ACLU challenged the ban in a Maryland federal court, seeking to amend its existing lawsuit against the second ban, which became a moot point after the third version was announced. The new ban was, once again, blocked by federal judges. 

The question at the center of the ACLU lawsuit and others is whether the travel ban discriminates against Muslims. The ACLU argues that the ban fulfills Trump’s campaign promise for a “total and complete shutdown of Muslims entering the United States,” and that the discriminatory intent of the ban is therefore clear. The Trump administration says the list of banned countries was decided based on security, not religion.

Status: On December 4, the Supreme Court allowed the third iteration of the ban, which indefinitely bars entry for most or all nationals of seven countries—Iran, Libya, Somalia, Syria, Yemen, Chad, and North Korea—to temporarily go into effect while the ACLU’s lawsuit against the ban is pending. The current version also prohibits certain Venezuelan officials from entering the United States.

Oral arguments in the ACLU’s case against the ban were heard December 8 in front of the 4th Circuit Court of Appeals. And on December 22, a three-judge panel of the 9th Circuit Court ruled that the ban violates the law, but put their decision on hold until the Supreme Court can weigh in.

During the December hearing, the judges drilled in on Trump’s recent retweets of several anti-Muslim videos posted by a far-right British activist. “Do we just ignore reality and look at the legality to determine how to handle this case?” said Judge James A. Wynn Jr.

Transgender Military Ban

Background: Trump took to Twitter in July to first announce the proposed ban, writing, “After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military.”

The proposed ban was formally announced in a presidential memorandum in August, and it was set to go into effect in March. Multiple lawsuits were filed both before and soon after Trump made the formal announcement, including one on behalf of five transgender service members. The lawsuit, filed by two LGBT advocacy groups, argues “separation from the military would have devastating financial and emotional consequences” for the plaintiffs, and that Trump’s order is discriminatory and violates the service members’ due process. A similar lawsuit was filed in late August by the ACLU on behalf of six transgender service members.

In October, Colleen Kollar-Kotelly, a US District Court judge in Washington, DC, issued an injunction preventing the White House from moving forward with the change. “The court finds that a number of factors—including the sheer breadth of the exclusion ordered by the directives, the unusual circumstances surrounding the president’s announcement of them, the fact that the reasons given for them do not appear to be supported by any facts, and the recent rejection of these reasons by the military itself—strongly suggest the Plaintiffs’ Fifth Amendment claim is meritorious,” Kollar-Kotelly wrote.

Less than a month later, a federal judge in Maryland issued a second injunction and ruled that the military must continue funding sex reassignment surgery for transgender soldiers.

Status: Transgender people can enlist in the military starting January 1, thanks to a second Kollar-Kotelly ruling instructing the military to accept transgender recruits while the ban is on hold. The Pentagon confirmed in December that it will allow openly transgender people to enlist. On December 21, a federal appeals court denied a request from the administration to stop the January 1 date, meaning the Department of Justice may turn to the Supreme Court in a final effort to stop transgender recruits from enlisting.

In the meantime, the lawsuits against the ban will continue to make their way through the courts. As with the other cases the ACLU is involved in, Cole said, its lawsuit is pending. And as my colleague Samantha Michaels has reported, the Trump administration isn’t done fighting to keep trans people out of the military. 

Deferred Action for Childhood Arrivals Repeal

Background: In September, Attorney General Jeff Sessions announced an end to the Deferred Action for Childhood Arrivals program, or DACA, an Obama administration policy that protected hundreds of thousands of young undocumented immigrants from deportation. The decision was swiftly met with a handful of lawsuits, including one filed by six Dreamers (a term for DACA recipients) that argued the decision “was motivated by unconstitutional bias against Mexicans and Latinos.” Fifteen states and the District of Columbia also filed suit, employing a similar argument and claiming the move violates the Due Process Clause of the Constitution.

Just days after his attorney general’s announcement, and at the request of House Minority Leader Nancy Pelosi (D-Calif.), Trump tweeted that Dreamers do not need to worry about being deported for another six months. The delay effectively left it up to Congress to decide the fate of the Dreamers. Shortly after the tweet, Trump met with Democratic congressional leaders and announced they would reach a compromise on immigration.

But in October, Democrats threatened to force a government shutdown by refusing to vote on a spending bill if it doesn’t include protections for Dreamers. By mid-December, however, Democrats had backed away from that pledge, according to the Washington Post.

The legal cases over the end of DACA quickly devolved into a battle over whether the administration must turn over internal documents revealing why it nixed the program. A US District Court Judge in San Francisco had ordered the White House to release all its records related to the decision, which Department of Justice lawyers said would require a review of more than 1.6 million potentially relevant documents. The administration took the fight to the Supreme Court in early December. The court ruled in Trump’s favor, allowing the administration to temporarily shield documents regarding the DACA shutdown.

Status: Five of the lawsuits filed over the DACA repeal, including the case filed by six Dreamers, faced a hearing in federal court in San Francisco on December 20. Judge William Alsup defended the program during the hearing, saying Dreamers faced a “palpable” hardship from its end, but Alsup has yet to make a decision on the issue. Mark Rosenbaum, a lawyer representing the Dreamers in Garcia v. United States, told Mother Jones it’s likely a decision won’t be made until early in the new year.

Congress has until March 5 to pass a replacement bill. Cole said the fate of the lawsuits depends on the contents of the legislation. “If [Congress] extends DACA, those lawsuits may no longer be necessary,” he said. As for the Dreamers, those with permits set to expire before March 5 were allowed to submit an application for a final two-year permit by October 5. (Under Obama, the program allowed unlimited renewals.)

David Leopold, an immigration attorney and former president of the American Immigration Lawyers Association, told Mother Jones he is skeptical that Congress will take action to replace DACA. “I’m hopeful they’ll do the right thing, but do I have a lot of faith in Republicans when it comes to doing the right thing? No, I do not,” he said. “What I do have a lot of faith in is the righteousness of the cause and the Dreamers. They’re a force to be reckoned with.” 

Contraceptive Coverage Rollback

What happened: In October, the Trump administration issued a rule diminishing an Obama-era federal requirement that most employers include free birth control coverage in their health insurance plans. The Trump rule expanded the types of employers that can opt out of the coverage mandate, allowing virtually any organization to deny free coverage if they feel it violates their religious or “moral convictions.”

The ACLU and other organizations, as well as the attorneys general of Massachusetts and California, filed lawsuits immediately. Pennsylvania and Washington filed separate lawsuits soon after, and Delaware, Maryland, New York, and Virginia joined California’s lawsuit in November. The complaints contend that the rule illegally restricts women’s access to health services. Some states also argue it will create an unnecessary financial burden for states that now have to cover contraceptives in place of employers. The National Women’s Law Center, which also sued the Trump administration on behalf of five women, estimates the rule would affect 62.4 million women who have free birth control coverage under the Affordable Care Act. 

“It’s obviously a form of sex discrimination,” Sunu Chandy, legal director of the NWLC, told Mother Jones. “Whether or not your health care needs are paid for should not depend on the religious views of your boss. We’re confident that that will be found to be illegal.” 

Status: The rule has been put on hold while various lawsuits wind their way through the courts. On December 15, a federal judge in Pennsylvania issued a preliminary injunction blocking the rule nationwide. In a 44-page opinion, Judge Wendy Beetlestone wrote, “It is difficult to comprehend a rule that does more to undermine the Contraceptive Mandate or that intrudes more into the lives of women.” On December 21, a federal judge in California also temporarily blocked the rule. 

Top image credit: Chris Kleponis/ZUMA; serggn/Getty


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