Trump vs Hawaii

Submitted by

Prabhnoor Guliani

Batch: 2018-2023

Division: E

PRN: 18010223095

Of Symbiosis Law School, NOIDA

Symbiosis International (Deemed University), PUNE

In

January 2019

Under the guidance of

Dr. Kiran Degan

Designation and official address of research guide

 ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to Dr. Kiran Degan for
her explicable support and encouragement throughout this endeavor. I
would also like to thank our Director, Prof. Dr. Chandrashekhar J. Rawandale
who has given me this opportunity to do this important case study on Trump
vs Hawaii. It has indubitively helped me in my research and attain immense
knowledge of the social issues and stigmas associated with them and
offering solutions to how to tackle these problems. I am really thankful to
both of them. Secondly, I would also like to thank my friends who have
helped me completing this project in a limited time frame.
 TABLE OF CONTENTS

Serial no. Heading Page no.

1. Legal maxims and their meanings

2. Abstract of the case

3. Details of the case study

4. The details in terms of all appeals,

petitions and proceedings

5. Bibliography

6. Subjective perceptions
 LEGAL MAXIMS AND THEIR MEANINGS

1. Preliminary Injunction: A preliminary injunction is a court order

made in the early stages of a lawsuit or petition which prohibits the
parties from doing an act in order to preserve the status quo until a
pending ruling or outcome.

2. Temporary Restraining Order: It commands the parties in the case

to maintain a certain status until the court can hear further evidence
and decide whether to issue a preliminary injunction.

3. Amicus Curiae: Friend of the court

4. Court of Appeal: court of law in a federal circuit or state to which

appeals are taken.

5. Certiorari: a writ or order by which a higher court reviews a case tried

in a lower court.

6. Per-Curiam: by or denoting decision of an appellate court in

unanimous agreement, written anonymously.

7. Bona fide: in good faith

8. Summary disposition: wherein the court grants judgment on a

claim, prior to trial, because there is no genuine issue of material fact and
the moving party is entitled to judgment as a matter of law.

9. Partial injunction: Partial ordering by the court on an individual or

party not to do a specific action.

10. Ab-initio: from the very beginning

11. Animus-possidendi: intention to possess

12. De-facto: In fact

13. Ex-cathedra: from the chair or higher authority

14. Extant: existing

15. in curia: in court

16. in haec verba: in these words

17. in situ: In position

18. Jus inter gentes: Law between the people

19. Jus naturale: natural law

20. Lex loci: the law of the place

21. Lex scripta: written law

22. Pendente Lite: while the litigation is pending

23. per curiam: through the court

24. Persona non grata: unwelcome person

25. Pro bono publico: for the public good

26. Ninth Circuit: is a U.S. Federal court with appellate jurisdiction over
the district courts in certain districts.

27. Status quo: the state in which

28. Ultra vires: beyond the powers

29. Plus quam tolerabile: more than tolerable

30. Praesumptio: presumption

 ABSTRACT OF THE CASE

On September 24th 2017, President Donald J Trump issued a presidential

declaration and issued new travel restrictions on individuals who belonged to
the countries that were listed under the ban as most of them were heavily
populated by Muslims. This declaration had been replaced by two earlier
proclamations that were also related to the imposition of travel ban on
Muslims. Plaintiffs who had challenged the earlier order amended their
complaint to include the September 2017 order. The Supreme Court of USA
had ordered an injunction that did not put the decision passed by the lower
courts until the appeal was pending in the higher court. On December 22 nd
2017, the ninth circuit affirmed in part and passed a decision that was the
reverse of the judgement passed by the district court from going into effect.
The ninth circuit issued an injunction which said that the President had
exceeded his authority.

There have been many issues ranging from this judgement because there
has been massive debate regarding the revised order violating the Establish
Clause of the first amendment. And if it is violating the principal act then this
would mean that the President has superseded his power and authority. On
a vote of 5-4 the ruling of the Ninth Circuit was removed by the Supreme
Court. The Supreme Court came to the conclusion that the plaintiffs could
not show the likelihood of success on the merits because the subject of
immigration and immigrant status falls under the massive power of the
President. Thus the plaintiffs were not allowed to a preliminary injunction.
The court remanded the case for further proceedings.
 DETAILED STUDY OF THE CASE

On January 27th 2017, the President of United States of America, Donald J

Trump issued a presidential declaration putting out new travel constraints for
people who belonged to the countries of Chad, Iran, Libya, North Korea,
Syria, Venezuela, Yemen and Somalia. Basically he was trying to ban most
of the Muslim countries from entering United States. On March 6th 2017,
President Trump proclaimed a second order, which made a number of
revisions though they seemed minor and they continued to discriminate and
target Muslims.

A federal district court in Hawaii issued a preliminary injunctive relief and

tried to prevent the enforcement of Trump’s revised orders and at the same
time sue the Trump administration. The Common Access Card (CAC) filed for
an Amicus Curiae on behalf of Congress and commending the court of
appeals to affirm the district court’s decision and the court of appeal did just
that. The Trump administration approached the Supreme Court to see the
matters of the case. The Supreme Court agreed to do so and partially stayed
the injunction pending appeal Pendite Lite.

The CAC again filed an amicus curiae brief on part of the Congress urging
the Judges to remove the ban on Muslims’ entry in the country but before
the Judges could decide over the matter of the ban of a particular religious
group President Trump issued a third travel ban and restricted the travel of
people who belong to one of the eight countries mentioned above. Since the
new order superseded the old order the case in the Court was declared
moot.

Later the plaintiffs filed an amended complaint and tried to challenge the
third travel ban and sought injunctive relief. The Hawaii district issued an
injunction and enjoy the new order that the government appealed. (The
Supreme Court subsequently stayed the injunction pending disposition of the
Government’s appeal and disposition of the Government’s petition for a writ
of certiorari if it ultimately filed such a petition.)

CAC then filed another amicus curiae on behalf of members of congress to

support Hawaii. Our brief first argued that the President’s sweeping order
exceeds the President’s delegated powers under the Immigration and
Naturalization Act and violates our Constitution’s system of separation of
powers. This order issued by Trump discriminates against the laws issued by
the first amendment and the Congress has already carefully chosen the
specific criteria for exclusion of those people from their country who are
susceptible to terrorist activities and infringing the Congress policy on
nationality based prohibitions in the issuance of immigrant visas. The
President’s powers though are very broad does not allow him to supersede
his powers and interfere with the immigrants who want to enter US.

Secondly, even if the matter of immigration falls on the plate of President’s

delegated authority (which it does not) it would violate the First Amendment
Clause, which forbids the laws that point the disfavored religious minority for
discrimination purposes due to personal biases. As the history has
witnessed, the framers were acquainted with colonial religious
establishments that were trying to keep out disfavored religious believers.
The First amendment does not allow the federal government to incorporate
this kind of religious discrimination into law. President Trump is infected by
anti-Muslim personality and Islamophobia which violates the first
Amendment. In a 5-4 decision, the Supreme Court supported President
Trump’s travel ban. For the President they are persona non grata

In haec verba of Justice Sotomayor, writing for herself and Justice

Ginsburg, wrote that “the United States of America is a Nation built upon the
promise of religious liberty” and that “the Court’s decision fails to safeguard
that fundamental principle.” She further explained that “Congress has
already erected a statutory scheme that fulfills the putative national-security
interests” the government used to justify the ban. In closing, she stated that
“our Constitution demands, and our country deserves, a Judiciary willing to
hold the coordinate branches to account when they defy our most sacred
legal commitments” and that the Court’s decision “repeats tragic mistakes of
the past and denies countless individuals the fundamental right of religious
liberty.”

THE DETAILS IN TERMS OF ALL APPEALS, PETETIONS AND

PROCEEDINGS

To explain this case we need start from ab-initio. On June 26th 2017, the US
Supreme Court issued a per curiam in which the court ordered a partial
stay of the decision passed by Justice Watson. The court ruled that section
2(c), there will be a ban of ninety days from six countries who could not be
enforced against any foreign nationals who have a credible claim of bona
fide relationship with a person or entity in the US. The relationship must be
formal, documented and formed in ordinary course instead of the animus
possidendi of political control or property. De-facto with regard to Section
6(a) and 6(b) specifically the provisions allowing the government to suspend
certain refugee admissions and to establish a restriction of only fifty
thousand refugees. The court then issued a writ in the ninth circuit.

On June 1st 2017, President Trump became the plaintiff and initiated
proceedings in Supreme Court of United States in filing of the application.
The appeal remained pending to Justice Kennedy. On June 26 th 2017, the
President’s application was granted a partial certiorari and by consolidating
the arguments that rose in Trump vs International Refugee Assistance
Project. On September 25th 2017 the court removed the arguments in the
case from the court’s calendar and pending a further order from the court.

On September 24th 2017, Trump issued his third executive order on

immigration and revising his March order. The plaintiffs in Trump vs Hawaii
amended their lawsuit to include a challenge to his third particular order.

On October 24th 2017, the court issued a summary disposition in the case in
which court had to remove the judgement of the district court or ninth circuit
with Trump’s March order and remanded the matter back to lower court and
provided them instructions to render the case as moot.

The plaintiffs asked for a temporary injunction to stay the effect of Trump's
September executive order while the litigation was pending. On October 20,
2017, the federal district judge ruled in their favor, and the government
appealed to the Ninth Circuit. The Ninth Circuit upheld a partial injunction,
and the government again appealed to the United States Supreme Court.

On December 22, 2017, the Ninth Circuit affirmed in part and reversed in
part a district court's ruling enjoining the September 2017 order from going
into effect. The Ninth Circuit issued an injunction against part of the order,
concluding that the president had exceeded his authority in situ of
President.

BIBLIOGRAPHY

1. www.quimbee.com

2. Ballotpedia.org/

3. Harvardlawreview.org
 SUBJECTIVE PERCEPTIONS

It is abundantly clear that President Trump’s decision to ban certain

countries was because of his own bias towards the Muslims and not for pro
bono publico and maintain peaceful status quo. By the maxim of ex
cathedra extant in United States and also has a profound influence in
curia of law. It is Ultra vires in hands of the people who were against
Trump’s policy to even allow political refugees from the countries listed by
the President Trump’s government and this violates Jus naturale because it
is the natural right of any person to be able to move freely from one place to
another.

This order passed by the Supreme Court of USA has also been incorporated
into the Lex scripta and is put into question regarding its violation of the
First Amendment and is an extremely discriminatory policy. Most of the
countries that are banned under this order are heavily populated by the
Muslim community and are the countries where most political refugees come
from. By just calling them as a terror threat the US Supreme Court has
banned the entry of the people who did not want to go there for settling
down purposes but for seeking a life of civil rights and liberty. This
judgement also goes against the culture that has been formed by Americans
that is of ‘no culture’ because most of the people residing in America are
descendants or are the first generation who moved into the states. There is
no such thing as an American culture as in the people whose ancestors have
always lived in America.

In countries where there is no Lex Loci America has always provided a

place of shelter to the refugees who were affected by the political havoc but
the order passed is the exact opposite of what America has always been
famous for and used to serve as a hero but now even America has shut
doors to help the people from these countries where prevalent violence is
making life hard for people.

We can make a proper Praesumptio the people coming from these

countries are plus quam tolerabile and are not susceptible to terrorist
activities that may damage the great nation. It is only because of racist mind
and Islamophobia which is why President Donald Trump has banned the
entry of people from major Muslim countries. US court could have changed
this approach of the President and make reasonable restrictions that were
already defined in the written law but because of the political authority of
the President the position is being abused.

Lastly, to put forward a personal opinion I can say that I do not agree with
the judgement passed by the Supreme Court and I believe that there should
be a judicial review to see if the court has made the right decision or was
made because of the political power of President.