The Supreme Court appeared likely to uphold Ohio's system for removing voters from its voter rolls following arguments on Wednesday.
Under Ohio's system, a voter who does not vote in a two-year period is sent a notice. If they do not return the notice and fail to vote for the next four years, their voter registration is canceled.
The A. Philip Randolph Institute, represented by Jenner and Block's Paul Smith, argued on Wednesday that Ohio violates federal voting laws by basing its decision to remove voters on their failure to vote.
The state, however, counters that its decision is based on the evidence it obtains over that time — the failure to vote and failure to return the notice followed by more nonvoting — that the person has moved.
Justices Anthony Kennedy and Stephen Breyer joined Chief Justice John Roberts and Justice Samuel Alito in skeptically questioning Smith's arguments for the challengers to Ohio's system.
"What are they supposed to do?" Breyer asked Smith at one point.
Kennedy followed up by asking whether the state could mail the notice to all voters in Ohio, rather than just those who hadn't voted over the past two years, to start the process, which Smith said would violate federal law — just in a different way.
The questions to Ohio Solicitor Eric Murphy, primarily from Justices Elena Kagan and Sonia Sotomayor, did not appear to make a dent in the support for Ohio's process — or at least for Ohio's ability to choose that process from among many options.
Murphy at one point noted that failure to vote "cannot be the sole basis for removal" but that "doesn't mean it can't be used" at all.
The Trump administration had weighed in in support of Ohio's position, with US Solicitor General Noel Francisco arguing that Ohio's process is OK for that very reason — that the "protective process" (as in, the notice mailing) makes Ohio's process different than a "use it or lose it" process where nonvoting could lead to voter registration removal.
That issue formed the majority of Smith's time at the lectern, with Smith arguing that the state not receiving the notice back tells "nothing" about whether the person moved.
Roberts countered that it shows something, and the two — joined at points by Kennedy and Alito — went back and forth, with Roberts finally acknowledging, "I think we're both just repeating ourselves."
Justices Clarence Thomas and Neil Gorsuch did not ask any questions at the arguments. That, combined with the fact that it wasn't necessarily clear whether Breyer's questions at argument represented his primary view of the case, could leave an (unlikely) opening for a narrow victory for the challengers — but the generally tone of the morning suggested otherwise.
J.D. Vance (second from right)
Drew Angerer / Getty Images
J.D. Vance is now seriously considering a US Senate campaign in Ohio and discussing the prospect with Republicans in Washington, following overtures from party donors and leaders who believe he would be their best candidate.
The author of the best-selling memoir Hillbilly Elegy previously had ruled out a bid. But Josh Mandel, who had been the frontrunner in the GOP primary, dropped out last week, citing a health issue involving his wife. His surprise decision has shaken up the race.
“The phone hasn’t stopped ringing since Friday,” said Jai Chabria, an adviser to Vance who joined Vance in Washington this week for meetings with those encouraging his candidacy.
“The amount of support for J.D. Vance is incredible,” Chabria told BuzzFeed News. “People are starting to realize he has the best message to beat [Democratic incumbent] Sherrod Brown. J.D. is giving serious consideration toward this, because there are very serious people asking him to run.”
Ohio Republicans are interested in Vance, too. Several close allies of Gov. John Kasich, who has ruled out a Senate bid, were urging him to run last year, before Vance initially announced he would not be a candidate. With Mandel now out of the picture, a Draft J.D. Vance website appeared Monday, not long after allies of Senate Majority Leader Mitch McConnell revealed that McConnell had spoken with Vance in recent days and was very high on his potential candidacy.
Another name in the mix is US Rep. Jim Renacci, who is running for governor but has received encouragement to move into the Senate race. Renacci, though, has made his Senate candidacy contingent on a blessing from President Donald Trump, who has yet to weigh in on the race.
"If the president would call, I would consider it, because I would need his help really at this late part of the game," Renacci said Tuesday during an interview with Cleveland radio station WTAM. "But again, my commitment is still to try and change the state of Ohio, and if I can do that in a Senate seat with the backing of the president because he wants me to do it, I would clearly consider it only at that time."
It’s not certain the call from Trump will come at all, let alone in time for Renacci to switch gears for a Feb. 7 filing deadline. The White House has not responded to requests for comment. But sources familiar with the conversation said Renacci had a Wednesday meeting at the White House to discuss the race.
Meanwhile, self-funding investment banker Mike Gibbons, who had emerged as Mandel’s strongest primary challenger, remains in the race and is working to convince GOP activists that he would be the party’s best option against Brown in the fall. He has pledged another $5 million to his campaign, and on Wednesday he announced endorsements from a slate of conservative leaders, including two who had served as county chairs for Mandel’s campaign.
Hillbilly Elegy was seen as key to understanding the Appalachian and white working-class voters who carried Trump to the White House. He recently returned to his native Ohio to promote a public policy agenda, fueling speculation about his political future.
Vance, who voted for independent Evan McMullin for president in 2016, has been critical of Trump at times — and that could make his GOP path tricky in a state Trump won.
"He used rhetoric that's not in the best interest of the party or country," Vance said in a 2016 interview with cleveland.com. "I happen to think that conservatism, when properly applied to the 21st Century, could actually help everybody. And the message of Trump's campaign was obviously not super-appealing to Latino Americans, black Americans and so forth. That really bothered me. "
Mike Biundo, a strategist for Gibbons, emphasized Vance's past criticism of Trump in a statement to BuzzFeed News.
"Mike Gibbons was a co-chair for President Trump in Ohio and never wavered in his support for the president," Biundo said. "J.D. Vance effectively voted for Hillary Clinton when he voted against President Trump. There's only one candidate in the race who would support the president: Mike Gibbons."
Voters cast their ballots inside the Hawthorne Recreation Center near uptown Charlotte, North Carolina.
Logan Cyrus / AFP / Getty Images
A federal court on Tuesday found North Carolina's congressional map to be an unconstitutional "partisan" gerrymander devised by the state's Republican lawmakers — and ordered the state to submit a new map by the end of the month.
The court gave the state until 5 p.m. Jan. 29 to submit a new map, but also began a process for appointing a special master who would draw a map if the state is unable to do so successfully.
The ruling comes as the Supreme Court is considering how partisan gerrymanders are considered by courts — in cases out of Wisconsin and Maryland — and it is expected that North Carolina lawmakers will ask to put the ruling on hold until the Wisconsin case, which was heard by the justices in October 2017, is resolved.
The possibility for delay, however, will soon run up against February filing deadlines for the North Carolina congressional races.
On Tuesday, the three-judge panel considering the case, in an opinion by Circuit Judge James Wynn, ruled that North Carolina's map violated Equal Protection Clause, the First Amendment, and the Election Clause of Article I of the Constitution. Judge William Britt joined Wynn's opinion. Judge William Osteen Jr. wrote separately, but ultimately agreed that, under current Supreme Court case law, the state's plan was unconstitutional — although he did not agree that it violated the First Amendment.
Although the 205-page ruling went into great detail about the plan, the claims, and the law, the underlying facts were blunt: After the original redistricting plan was struck down as a racial gerrymander, lawmakers asked the person they had redrawing the map to remedy the racial gerrymander and "to use political data ... in drawing the remedial plan."
Rep. David Lewis — the senior chair of the state House's redistricting committee — "acknowledge[d] freely that this would be a political gerrymander," which he claimed was "not against the law," the court noted.
In considering the Equal Protection claim, the court reviewed expert testimony in the case at length. One expert for the plaintiffs computer-generated 1,000 maps using "the non-partisan criteria included in the Committee’s Adopted Criteria: population equality, contiguity, minimizing county and VTD splits, and maximizing compactness."
The expert "found that none of the 1,000 plans yielded a congressional delegation of 10 Republicans and 3 Democrats — the outcome that would have occurred under the 2016 Plan — when he evaluated the sample." (The expert, Dr. Jowei Chen, went on to consider two other 1,000-map simulations to control for different situations — with the same result that none had as partisan a result as the actual map passed by the state.)
The court concluded that "the General Assembly intended to discriminate against voters who supported or were likely to support non-Republican candidates" and that "the 2016 Plan dilutes the votes of non-Republican voters and entrenches Republican control of the state’s congressional delegation."
In ruling the map unconstitutional under the First Amendment, the court looked to several areas of First Amendment law — including viewpoint discrimination ("prohibit[ing] the government from favoring or disfavoring particular viewpoints"), electoral speech dilution (addressing "the First Amendment’s prohibition on laws that disfavor a particular group or class of speakers"), retaliation ("prohibiti[ng] ... burdening or penalizing individuals for engaging in protected speech"), and election regulations (having "the potential to burden political speech or association").
"Against these many, multifaceted lines of precedent, the First Amendment’s applicability to partisan gerrymandering is manifest," Wynn wrote, before concluding the North Carolina plan violated the amendment.
The court also found that the plan violated provisions of Article I of the Constitution — clauses detailing that the "House of Representatives shall be composed of Members chosen . . . by the People" and the Elections Clause, which states that state legislatures have the authority to set the "times, places and manner of holding elections," subject to congressional alterations.
The court found the plan "exceeds the General Assembly’s delegated authority under the Elections Clause" because, in part, it "represents an impermissible effort to 'dictate electoral outcomes' and 'disfavor a class of candidates.'"
"[T]he 2016 Plan’s demonstrated partisan favoritism," the court concluded, "simply is not authorized by the Elections Clause."
Clinton with Buell in 2007.
Paul Sakuma / ASSOCIATED PRESS
One of the Democratic Party's biggest donors says she is reconsidering her support for the women in the US Senate who called for Al Franken’s resignation following multiple allegations of sexual misconduct and inappropriate touching.
The San Francisco–based donor, Susie Tompkins Buell, 75, has given millions of dollars to Democratic causes since the 1990s. She is best known as a staunch supporter of Hillary Clinton, but has also contributed for decades to Democratic women senators, hosting a regular spring fundraiser for the lawmakers in California called "Women on the Road to the Senate."
Buell said she is weighing whether to continue her financial support after the calls for Franken's exit last month. The charge for his resignation — led by Sen. Kirsten Gillibrand of New York and followed almost immediately by a string of statements from other prominent female Democratic senators — came on Dec. 6, before the conclusion of an official Senate Ethics Committee inquiry.
Franken was accused by at least six women of inappropriate touching and kissing, and was the subject of a photograph in which he appeared to jokingly grab the breasts of a sleeping woman. He made his resignation official earlier this week. The governor of Minnesota appointed former Lt. Gov. Tina Smith, a Democrat, to fill the vacant seat.
In two interviews this week, Buell described the push for Franken’s departure as "unfair," "cavalier," and somewhat politically motivated — "a stampede," "like a rampage," she said, speaking in stark terms about senators she has backed for years, naming Gillibrand in particular.
"They need to know that some of their biggest supporters are questioning why they did that," Buell said. "We have to do things conscientiously and fairly. He didn't have the chance to defend himself."
The critique marks a somewhat significant departure for Buell, who is a mainstay in Democratic donor circles and has cultivated a reputation over the years as a fierce and vocal supporter of Democratic women.
During the 2016 election, the New York Times reported this week, Buell contributed to an unsuccessful effort by attorney Lisa Bloom to make public sexual misconduct claims against then-candidate Donald Trump. According to Bloom, the funds would have been used to defray costs of security and relocation for women seeking to come forward with allegations against Trump.
Since 1991, Buell has contributed to nearly every one of the 17 Democratic women currently serving in the Capitol's upper chamber, according to campaign filings. She has given the most to Gillibrand and her PAC, Off the Sidelines, a group dedicated to supporting other female candidates.
In 2014, at the California fundraising event she hosts for female Senate candidates, Buell made a point of praising Gillibrand's year-long push to change military sexual assault policies. At the podium, she chided Sen. Claire McCaskill, another Democratic senator, for voting against Gillibrand's bill. "'There's a special place in hell for women who don't help other women.' And I believe that," she said at the time, citing a phrase famously attributed to Madeleine Albright.
This week, Buell described Franken's case differently.
"These are senators that almost unanimously said he should have his opportunity to explain himself with the Ethics Committee," she said. "Then, within hours of each other, they said he should resign. It was clearly, clearly highly organized."
Franken is one of several members of Congress to resign or announce they will not run for reelection after reported allegations or disclosed settlements, joining the growing list of men felled amid a nationwide reckoning with sexual assault, misconduct, and sexism in the workplace.
Still, Buell's comments this week also come as some Democratic senators have expressed regret about Franken's exit.
Sen. Patrick Leahy of Vermont, who joined the rush of calls for a resignation on Dec. 6, has since said that he and others in the Senate acted too hastily. "I have stood for due process throughout my years as a prosecutor and in chairing the Judiciary Committee," Leahy told the Burlington Free Press on Dec. 18. "I regret not doing that this time. The Ethics Committee should have been allowed to investigate and make its recommendation."
That same week, another Democrat in the Senate, Joe Manchin of West Virginia, said in an interview with Politico that the move by Franken's Democratic colleagues was "hypocritical" and "atrocious." In addition to Leahy, Politico reported at the time, two of the other senators who had called for Franken to step down earlier that month said the decision had been rushed. Franken himself was defiant in his resignation speech, saying both that "we are finally beginning to listen to women" and that some of the allegations against him "are simply not true."
Buell said she has no "personal relationship" with Franken. In 2007 and 2008, she contributed at least $4,300 to his Senate campaign.
Buell declined to elaborate on the extent to which she planned to reduce her financial support. "I'm just taking a look at where I put my energy and money," she said. "I won't be doing it to the degree I did before. I'm just too upset and discouraged by the way they did this."
Zach Gibson / Getty Images
President Trump isn’t complaining publicly about the other former White House official who’s been quoted making provocative observations in a forthcoming book — in fact, prominent Trump allies are publicly standing by Katie Walsh, the former White House deputy chief of staff.
A Thursday report from Axios had Trump administration officials debating whether Walsh should be fired from a nonprofit advocacy group that operates with Trump’s blessing after a book excerpt quoted her as characterizing the president as an indecisive “child.” But several top-ranking officials with the nonprofit, America First Policies, quickly came to Walsh’s defense and made clear she is in no danger of losing her job as a senior adviser, a sign of how well Walsh has navigated the tricky politics of 2018.
"As the chairman of the board of America First and a longtime friend of the Trump family, I say with the utmost confidence that Katie Walsh’s work ethic, loyalty, and commitment to the president are incomparable,” Tommy Hicks Jr., a Trump fundraiser, said in a statement provided to BuzzFeed News. “We are proud to have her on the team at America First."
Brian O. Walsh, the president of America First Policies (and no relation to Katie Walsh), also was unequivocal in his support for her. “Katie Walsh is a political professional who has navigated the DC Swamp with skill and grace and worked tirelessly to help launch our new president and his administration on a path to success,” he said. “She is a pivotal part of our team at America First, and there has been no discussion about any change in her role.”
Walsh has denied making some of the comments the book attributes to her.
“It is the honor of my lifetime to work for President Trump, as I have on his campaign, during the transition, in his White House and continue to do so every day because I believe in the president and I believe in his leadership,” Walsh told BuzzFeed News in an emailed statement. “I look forward to when we can get back to talking about the stunning economic comeback our country is experiencing because of the tremendous vision of President Trump.”
The response is starkly different from the fire trained on Steve Bannon: His criticism of Trump in Michael Wolff’s Fire and Fury: Inside the Trump White House has burned bridges at a White House where he once served as chief strategist and possibly within the populist Republican political movement that he sees as his creation. On Thursday, influential Republican donor Rebekah Mercer publicly said that she does not support his “recent actions and statements.” Meanwhile, the Breitbart board is reportedly considering taking some action regarding Bannon, the right-wing news site’s executive chairman.
Brian Walsh’s point about “skill and grace” helps explain why Walsh appears to be on safe ground while Trump uses official White House statements to declare that Bannon has “lost his mind.” With her Republican National Committee background and subsequent assimilation into the political organization built from the remnants of Trump’s anti-establishment campaign, Walsh has friends — and business interests — in all corners of today’s GOP. That’s not the easiest of feats in a party fractured by Trumpism.
A St. Louis native, Walsh had a traditional upbringing in national Republican politics. She was a regional fundraising director for John McCain’s 2008 presidential bid and then moved on to roles with the National Republican Senatorial Committee and the RNC, where during the 2016 cycle she served as chief of staff under then-chair Reince Priebus. The RNC’s data operation played a substantial role in Trump’s victory and put Walsh in close contact with two of Trump’s top advisers: son-in-law Jared Kushner and digital director Brad Parscale.
Walsh followed Priebus to the White House, where she became his deputy chief of staff. But she lasted only two months. Some viewed Walsh’s departure as symptomatic of a West Wing shakeup following the collapse of a health care bill. Priebus, who would last only a few more months himself, sent Walsh to help turn around America First, which had been criticized for not providing enough advertising support for Trump during the administration’s early days.
"No one can fix this problem better than Katie Walsh,” Priebus said at the time.
After Walsh joined, America First became more more visible, particularly on health care messaging and on behalf of special election candidates Trump supported last year. The nonprofit, which is not required to disclose its donors, has counted several core Trump allies among its team of advisers, including Parscale, who remains close with Walsh.
Walsh also returned to the RNC as a senior adviser for data. She’s not on the payroll, but the party paid her consulting firm, the Laymont Group, $135,000 last year, according to Federal Election Commission filings. And Walsh’s husband, Mike Shields, has a new consulting firm that worked extensively with one of those special election candidates — Trump-endorsed Karen Handel in Georgia — and the National Republican Congressional Committee last year.
“Katie has worked tirelessly for the party and is a valuable asset to the RNC as we head into the midterm elections,” RNC spokesperson Ryan Mahoney said Thursday.
The perception among several GOP sources who spoke with BuzzFeed News is that Walsh has thrived financially and professionally in the Trump era without attaching herself too firmly to Trump’s brand. It’s a notion that’s undermined a bit by her brief White House tenure and prominent role with the main outside group responsible for promoting Trump’s agenda.
But excerpts from Wolff’s book suggest Walsh was no Trump acolyte. Walsh comes off as the type of operative you’d expect to find in a typical Republican White House, thrown into a White House that was anything but — and as someone who bailed out of the job early because she had had enough. Wolff portrays her sympathetically, as a frustrated aide struggling with the competing interests of Priebus, Bannon, and Kushner, and with the whims of Trump. The killer quote attributed to Walsh compares managing Trump to “trying to figure out what a child wants.”
Elsewhere in the book, Walsh is quoted saying that Trump “fundamentally wants to be liked. He just fundamentally needs to be liked so badly that it’s always … everything is a struggle for him.”
According to Wolff, Walsh was an equal-opportunity critic in her quest to achieve White House order, fuming about advisers of all ideologies. She is quoted as disapproving of “Bannon’s Breitbart shenanigans"; observing that getting Gary Cohn “to take a position on something is like nailing butterflies to the wall”; and predicting that Dina Powell “will expose herself as being totally incompetent.” As for Kushner and his wife, Ivanka Trump: “If they tell [the president] the whales need to be saved, he’s basically for it,” Walsh reportedly said.
Walsh has denied making the “what a child wants” comment and told Jon Ward of Yahoo News that Wolff misattributed some Bannon quotes to her. Walsh declined to respond Thursday when asked by BuzzFeed News if she denied giving any of the other quotes attributed to her.
The comments, which have not gotten as much attention as Bannon’s assertion that a 2016 meeting with Russians at Trump Tower was “treasonous,” nonetheless caused a stir among GOP operatives. Some doubted Walsh would say such things on the record. Others doubted she could keep her place in the Trump orbit if she can’t convincingly prove that she didn’t.
Chip Somodevilla / Getty Images
President Trump has dissolved his election integrity commission, with the White House blaming states for refusing to turn over voter data as well as the lawsuits that have dogged the commission since Trump announced it in May.
The White House announced Trump's decision late Wednesday and sent the text of the executive order revoking the May order that created the commission soon after.
In a statement, press secretary Sarah Huckabee Sanders repeated Trump's oft-made claim of voter fraud, but said that "rather than engage in endless legal battles at taxpayer expense," Trump had ended the commission and asked the Department of Homeland Security to take up the review of US election systems.
On Thursday morning, Trump tweeted that the "system is rigged" and called for a move toward "voter ID."
"Many mostly Democrat States refused to hand over data from the 2016 Election to the Commission On Voter Fraud. They fought hard that the Commission not see their records or methods because they know that many people are voting illegally. System is rigged, must go to Voter I.D.," he tweeted.
He followed that up with another tweet asking Americans to "push hard for voter identification."
Democrats and civil rights groups criticized the commission from the start, accusing the administration of using it as a pretext for suppressing minority voters. The Trump administration faced a string of lawsuits challenging the legality of the commission itself as well as its efforts to collect voter data from states.
Most recently, the commission was sued by one of its own members, Maine Secretary of State Matthew Dunlap, a Democrat, who claimed he was blocked from getting information about the group's activities. In the lawsuit, Dunlap's lawyers said that the commission's "superficial bipartisanship has been a facade."
A judge on Dec. 22 had ordered the commission to provide Dunlap with some of the materials he had requested. Dunlap said in a statement on Wednesday evening that the president's order dissolving the commission "came without warning."
'“The lack of transparency brought nothing but suspicion onto the work of the commission, which bankrupted it of any chance at public legitimacy. While this chapter is now closed, I am committed to remaining vigilant on the front of election integrity and the transparent, free, and fair conduct of elections," Dunlap said.
In a phone interview with BuzzFeed News later in the evening, Dunlap said that although he didn't get advance notice of the president's decision, he wasn't surprised by the announcement.
"I wondered if they might not go in this direction simply because of the court order and everything seemed to be working in a pretty dysfunctional way from the beginning," he said.
Dunlap provided BuzzFeed News with a copy of an email time-stamped at 6:49 p.m. on Wednesday from the commission's designated federal officer, Andrew Kossack, notifying the commission members about the president's decision to dissolve the group. The White House sent out the public release around the same time. Kossack in the email advised the commission members that because there were still lawsuits pending, they should continue to preserve records concerning the commission. "Thank you for your service," Kossack wrote. The email's subject line was "Dissolution of the Commission."
BuzzFeed News / Via Matthew Dunlap
American Oversight, a government transparency advocacy group representing Dunlap along with lawyers from the law firm Patterson Belknap Webb & Tyler, said in a statement that it would continue to fight in court for access to records about the commission's activities.
"It’s no coincidence that the president dissolved the commission once it became clear it wouldn’t be permitted to operate in the shadows," American Oversight Executive Director Austin Evers said in the statement. "Secretary Dunlap deserves our gratitude for stepping into the breach to take on adversaries of democracy. We intend to continue to fight for his right to access to the commission’s secret communications. President Trump can dissolve the commission, but the law doesn't allow him or the commission to slink away from view and avoid accountability.“
The commission was chaired by Vice President Mike Pence, but its driving force was Kansas Secretary of State Kris Kobach. It was Kobach who sent a letter to states in June seeking information from their voter rolls. The majority of states — including some led by Republican state officials — refused to fully comply with the request, although many did provide information that was already public, according to press reports.
Kobach told the Topeka Capital-Journal last week that although the commission's work had been delayed because of the lawsuits, it would meet in January. The group's last meeting was in September.
Dunlap's case was one of eight pending lawsuits against the commission. Shortly after the White House announced that Trump had dissolved the commission on Wednesday, the Justice Department filed notices in each of the cases alerting judges to the development.
A spokeswoman for Kobach did not immediately return a request for comment.
Hans Von Spakovsky, a member of the commission and a senior legal fellow at the conservative Heritage Foundation, said in an email to BuzzFeed News that he was disappointed with the commission's dissolution, but understood Trump's reason for doing it, citing the refusal of states to provide data and the pending lawsuits. Von Spakovsky said he wasn't consulted in advance about the president's decision to dissolve the commission and found out about it from the same email that Dunlap and other commission members received.
"The obstacles and impediments used to hinder the work of the Commission is evidence that there are many politicians and activists who want to prevent the American people from finding out the truth," Von Spakovsky wrote.
Here is the executive order that Trump signed on Jan. 3 revoking the executive order that created the commission:
BuzzFeed News / Via The White House
This is a developing story. Check back for updates.
Former Trump campaign official Rick Gates leaves federal court on Dec. 11 in Washington, DC.
Brendan Smialowski / AFP / Getty Images
Rick Gates, the defendant in one of the cases brought by special counsel Robert Mueller against associates of President Trump, will not be able to leave his house to ring in the new year.
A seemingly exasperated US District Judge Amy Berman Jackson denied his Thursday request to travel with his family for New Year's Eve events in a short, terse order on Friday.
"After all of that," Jackson wrote of the repeated prior requests regarding holiday travel filed by Gates, "defendant Gates filed yet another motion, with a new plan for New Year's celebrations . . . Given the untimely filing of the current motion, it will be denied."
Read the order:
Chip Somodevilla / Getty Images
President Trump's third attempt at implementing his travel ban — issued via a September proclamation — again violates federal law, a panel of the US Court of Appeals for the 9th Circuit ruled on Friday.
The court, however, will keep Friday's ruling on hold pending the outcome of any Supreme Court review sought by the Justice Department.
The 9th Circuit ruled in a lengthy decision that "the Proclamation’s indefinite entry suspensions constitute nationality discrimination in the issuance of immigrant visas," a ruling the panel concluded shows the challengers — including the state of Hawaii — had shown a likelihood that they would succeed in their lawsuit.
The court, which heard arguments earlier this month, narrowed the district court's prior injunction — which barred all enforcement of the travel ban against people from the six majority Muslim nations affected — to people from those six nations with "a credible bona fide relationship with the United States."
Those affected are people from Chad, Iran, Libya, Somalia, Syria, and Yemen. Although North Korea and Venezuela also are included in the president's latest proclamation, the district court injunction did not halt enforcement of the ban against those from those countries, so they are not at issue in Friday's decision.
Because the underlying injunction itself is stayed pending the outcome of any petition for certiorari — under a prior Supreme Court order — the 9th Circuit likewise ruled that its Friday decision will remain stayed "pending Supreme Court review."
The case, as with other prior iterations of the ban, was considered before Judges Michael Daly Hawkins, Ronald Gould, and Richard Paez. The opinion was issued per curiam, or for the court, and not under the name of a specific judge.
In issuing their decision, the court ruled solely on the basis that Trump's order violated the Immigration and Nationality Act's nondiscrimination provision — and that the president "lacks independent constitutional authority to issue the Proclamation" under current circumstances.
Because it ruled on the statutory issue, the panel also held that "we need not and do not consider th[e] alternate constitutional" argument made by the challengers that the ban violates the Establishment Clause as a type of religion-based discrimination.
That issue — and Trump's tweets on the topic — were front and center in the other appellate arguments held on the third attempt at the travel ban. The US Court of Appeals for the 4th Circuit heard its arguments en banc, or before the full court, two days after the 9th Circuit's arguments. The 4th Circuit is yet to issue its decision.
Friday's opinion was not issued without a hitch. A little more than an hour after the 9th Circuit's press office sent out the decision, the court sent a follow-up notice that the first opinion had been withdrawn and replaced. The ultimate resolution did not change, although there were slight changes made throughout the opinion.
It was not immediately clear all of the distinctions, but the first paragraph of the opinion, for example, was changed from stating that that court was addressing Trump's effort to bar "over 150 million nationals of six Muslim-majority countries" to "over 150 million nationals of six designated countries."
Chip Somodevilla / Getty Images
The Justice Department wiped a wide swath of "guidance documents" off the books on Thursday, withdrawing 25 documents — including one addressing integration of people with disabilities in state and local government programs and another on standards for assessing citizenship status discrimination.
The Justice Department, in announcing the move, stated the 25 documents were "unnecessary, inconsistent with existing law, or otherwise improper." Several — though not all of them — were issued during President Barack Obama's administration.
The move follows a February executive order from President Donald Trump seeking a broad review of regulatory actions across the federal government and a follow-up November memo from Attorney General Jeff Sessions focused on guidance documents — which the department criticized as being used to "evad[e] required rulemaking processes" too often.
"[A]ny guidance that is outdated, used to circumvent the regulatory process, or that improperly goes beyond what is provided for in statutes or regulation should not be given effect," Sessions said in a statement on Thursday. "That is why today, we are ending 25 examples of improper or unnecessary guidance documents identified by our Regulatory Reform Task Force led by our Associate Attorney General Rachel Brand."
The Justice Department formally announced that Sessions was withdrawing the more than two dozen "guidance" documents following a Washington Post report on the decision earlier Thursday evening.
The department did not state why each of the 25 were specifically selected to be withdrawn.
Ten of the withdrawn documents relate to the Americans With Disabilities Act; six are documents issued by the Bureau of Alcohol, Tobacco, Firearms and Explosives; and the remaining nine cover a range of topics — including a 2016 Obama-era effort highlighted in the Post's reporting "that asked local courts across the country to be wary of slapping poor defendants with fines and fees to fill their jurisdictions’ coffers."
One of the withdrawn ADA documents addressed the application of the "integration mandate" in the part of the ADA addressing state and local governments. The chair of the US Commission on Civil Rights, Catherine Lhamon, criticized the move on Twitter.
Another withdrawn Obama-era document was a 2012 letter that provided "some general guidelines regarding compliance with the anti-discrimination provision of the Immigration and Nationality Act" regarding legal permanent residents.
The news comes as President Trump continues to focus on cutting regulations — along with this week's passage of the tax bill and judicial confirmations — as key accomplishments in his first year in office.
According to the list provided by the Justice Department on Thursday evening, the following "guidance documents" have been withdrawn in 2017:
- ATF Procedure 75-4.
- Industry Circular 75-10.
- ATF Ruling 85-3.
- Industry Circular 85-3.
- ATF Ruling 2001-1.
- ATF Ruling 2004-1.
- Southwest Border Prosecution Initiative Guidelines (2013).
- Northern Border Prosecution Initiative Guidelines (2013).
- Juvenile Accountability Incentive Block Grants Program Guidance Manual (2007).
- Advisory for Recipients of Financial Assistance from the U.S. Department of Justice on Levying Fines and Fees on Juveniles (January 2017).
- Dear Colleague Letter on Enforcement of Fines and Fees (March 2016).
- ADA Myths and Facts (1995).
- Common ADA Problems at Newly Constructed Lodging Facilities (November 1999).
- Title II Highlights (last updated 2008).
- Title III Highlights (last updated 2008).
- Commonly Asked Questions About Service Animals in Places of Business (July 1996).
- ADA Business Brief: Service Animals (April 2002).
- Prior Joint Statement of the Department of Justice and the Department of Housing and Urban Development Group Homes, Local Land Use, and the Fair Housing Act (August 18, 1999).
- Letter to Alain Baudry, Esq., with standards for conducting internal audit in a non-discriminatory fashion (December 4, 2009).
- Letter to Esmeralda Zendejas on how to determine whether lawful permanent residents are protected against citizenship status discrimination (May 30, 2012).
- Common ADA Errors and Omissions in New Construction and Alterations (June 1997).
- Common Questions: Readily Achievable Barrier Removal and Design Details: Van Accessible Parking Spaces (August 1996).
- Website guidance on bailing-out procedures under section 4(b) and section 5 of the Voting Rights Act (2004).
- Americans with Disabilities Act Questions and Answers (May 2002).
- Statement of the Department of Justice on Application of the Integration Mandate of Title II of the Americans with Disabilities Act and Olmstead v. L.C. to State and Local Governments' Employment Service Systems for Individuals with Disabilities (October 31, 2016).
Saul Loeb / AFP / Getty Images
A federal appeals court denied the Trump administration's request to halt a Jan. 1 start date for allowing transgender military recruits, a decision announced in a brief ruling on Thursday.
The order from the US Court of Appeals for the 4th Circuit brings the question closer to the Supreme Court, where the Justice Department could now turn in a last-ditch effort to stop transgender people from being allowed to join the military if they meet certain conditions starting in the new year.
The case, Stone v. Trump, is one of several challenging President Trump's transgender military ban order, which itself came out of his July morning tweets announcing his position on the topic.
Asked for comment on the ruling and whether the Justice Department would ask the Supreme Court for a stay, Justice Department spokesperson Lauren Ehrsam wrote, "We disagree with the Court’s ruling and are currently evaluating the next steps."
On Friday, the US Court of Appeals for the DC Circuit issued an order in a separate but similar case also denying the administration's request for a delay to the Jan. 1 start date.
"In the balancing of equities, it must be remembered that all Plaintiffs seek during this litigation is to serve their Nation with honor and dignity, volunteering to face extreme hardships, to endure lengthy deployments and separation from family and friends, and to willingly make the ultimate sacrifice of their lives if necessary to protect the Nation, the people of the United States, and the Constitution against all who would attack them," the DC Circuit panel wrote.
This issue making its way through the courts on a somewhat expedited basis currently is the specific question of transgender military recruits. The other parts of Trump's order — about retention and promotion of current service members who are transgender and about surgery coverage — also are enjoined currently, and that litigation will continue in the new year, but the accession question must be resolved because the start date for that, prior to Trump's ban, was to be Jan. 1.
The latest stage in this process began on Nov. 27, when US District Judge Colleen Kollar-Kotelly ruled that the Pentagon could not move the Jan. 1 deadline for allowing transgender recruits. On Dec. 11, the judge ruled against the Trump administration again — denying a request for a partial stay of her earlier order. The Trump administration appealed to the DC Circuit.
At the same time, two other similar cases led to similar injunctions against Trump's ban — one in Maryland and another in the state of Washington. In both cases, the Trump administration has asked the district court judge to clarify their ruling to allow the Pentagon to move the Jan. 1 date or to issue a partial stay of that part of the injunctions. They also appealed both cases, to the US Courts of Appeals for the 4th Circuit and 9th Circuit, respectively.
Although the one case was pending before the DC Circuit, it was the 4th Circuit that issued the first appellate ruling on the subject, stating, without more explanation, that "the court denies the motion for administrative stay and partial stay pending appeal" in Thursday's order.
The 4th Circuit panel hearing the request was made up of Judges Diana Motz, Albert Diaz, and Pamela Harris. Motz was nominated to the bench by President Clinton, and Diaz and Harris by President Obama. Their order came two days after challengers to the ban submitted in court a Dec. 8 Defense Department memorandum laying out the department's policies for allowing transgender recruits — and the conditions they must meet — starting on Jan. 1.
The DC Circuit panel hearing that request was made up of Judges Judith Rogers, David Tatel, and Patricia Millett.
Later still on Friday, a federal district court in California — hearing yet another challenge to the ban — issued a fourth injunction against the ban. Judge Jesus G. Bernal ruled that the "Plaintiffs have demonstrated their Equal Protection claim will likely succeed on the merits."
Read the relevant court documents from all three cases:
Yuri Gripas / Reuters
The Supreme Court on Wednesday tossed out a trial court's order that the Trump administration turn over internal documents relating to the decision to end Deferred Action for Childhood Arrivals (DACA), ruling that other issues must first be resolved before even considering whether such an order is appropriate.
In an unsigned opinion with no noted dissents, the Supreme Court ordered the district court hearing the challenges to the Trump administration's DACA decision to first consider whether the decision of then-Acting Secretary of Homeland Security Elaine Duke to rescind DACA is reviewable and, if it is, whether the district court has jurisdiction to hear the case in light of restrictions in the Immigration and Nationality Act.
"Either of those arguments, if accepted, likely would eliminate the need for the District Court to examine a complete administrative record [by obtaining the additional documents]," the ruling stated.
Even if the action is reviewable and the court has jurisdiction, the opinion continued, further litigation would be necessary because "the District Court may not compel the Government to disclose any document that the Government believes is privileged without first providing the Government with the opportunity to argue the issue."
The Supreme Court noted that Wednesday's ruling "does not suggest any view on the merits of respondents’ claims or the Government’s defenses."
The Justice Department took the case to the Supreme Court on Dec. 1, and the court granted a temporary stay while the justices considered the Justice Department's request.
Read the ruling:
Jonathan Ernst / Reuters
Military officials have had a policy in place for "processing transgender applicants for military service" since Dec. 8, a new memorandum shows.
The document, made public by lawyers challenging the ban on Tuesday night, comes as the Justice Department continues to fight in court to put off a Jan. 1 deadline for the Pentagon to start allowing transgender military recruits.
The memorandum, signed by Navy Capt. David Kemp, was submitted on Tuesday in exhibits in all three of the cases challenging President Trump's military ban that are pending currently before appellate courts.
It was first submitted by Washington state's lawyers in the litigation out of that state currently before the US Court of Appeals for the 9th Circuit and subsequently filed in the cases out of Maryland and DC before the US Courts of Appeals for the Fourth Circuit and DC Circuit, respectively.
The policy applies to all United States Military Entrance Processing Command personnel and activities, per the memo, and lays out the process for moving forward to allow transgender recruits who meet specific criteria laid out in the memo.
"The guidance thus further contradicts the government’s claim here that 'the military will "not be adequately and properly prepared to begin processing transgender applicants" by January 1,'" Paul Wolfson, one of the lawyers in the DC-based case, wrote in the filing to the DC Circuit.
In filings on Wednesday morning, the Justice Department responded, claiming the Dec. 8 memorandum shows the "military is scrambling to comply" with the courts' injunctions and submitting a Dec. 19 "clarifying" memo in which the Justice Department asserted that "the military established a framework for providing responses to medical inquiries from recruiters '[d]ue to the complexity of this new medical standard.'"
Justice Department appellate attorney Catherine Dorsey continued, "Obviously, it would be preferable to thoroughly train recruiters, rather than point them to a medical hotline. In short, our armed forces should not be prejudiced by attempting to do all that they can to comply with a court order on a rushed deadline."
Read the memo: