In an opinion today, a three-judge SDNY panel comprised of Judge Furman and Circuit Judges Wesley and Hall invalidated a Presidential memorandum which stated that, in apportioning Congressional seats, “it is the policy of the United States to exclude from the apportionment base aliens who are not in a lawful immigration status.” (The three-judge structure was triggered by 28 U.S.C. § 2284(b), which governs cases about Congressional apportionment.)

The panel concluded that the memorandum conflicted with a statutory mandate to apportion Congressional seats based on the census results alone:
Continue Reading Three-Judge SDNY Panel Invalidates President Trump’s Directive to Exclude Undocumented Immigrants in Apportioning Congressional Seats

In an opinion last week, Judge Caproni ruled unlawful a memorandum issued by the Department of Interior that interpreted a provision of the Migratory Bird Treaty Act (“MBTA”) that prohibits killing “by any means whatever . . . at any time or in any manner, any migratory bird” to exclude incidental, unintentional killing.

The opinion begins:
Continue Reading Judge Caproni: Agency Cannot Rewrite Statutory Prohibition on Killing Migratory Birds to Carve Out Unintentional Killings

Earlier today, Judge Oetken issued a decision invalidating several provisions of a Department of Labor rule implementing the paid sick leave and emergency family leave provisions of the Families First Coronavirus Response Act. The Labor Department had excluded employees who were unable to work because their employers had no work available for them as a result of the economic downturn caused by COVID-19. It also adopted a broad definition of “health care provider,” which would have allowed “an English professor, librarian, or cafeteria manager at a university with a medical school” to be denied paid leave.
Continue Reading Judge Oetken Strikes Down Labor Department Restrictions on COVID-19 Paid Leave

On Wednesday, Judge Rakoff granted summary judgment in favor of New York State and the Kings County District Attorney in their challenge to a decision by the Immigration and Customs Enforcement Agency (“ICE”) to greatly increase civil immigration arrests in and around courthouses. Plaintiffs had alleged that the directive exceeded ICE’s statutory authority and had been adopted in an arbitrary and capricious manner. See our previous coverage here.

Judge Rakoff agreed, finding that the Immigration and Nationality Act incorporated the “centuries-old common law privilege against courthouse civil arrest.”  He also found that ICE had “offered no rationale other than its misguided reliance” on an Executive Order, which had directed the Department of Homeland Security to prioritize immigration enforcement against broader categories of aliens but was not addressed to courthouse arrests. Judge Rakoff’s ruling also emphasized the that ICE’s policy was compounding the challenges already presented by COVID-19:
Continue Reading Judge Rakoff: ICE Policy of Making Immigration Arrests at Courthouses is Illegal

Earlier today, the Second Circuit reversed a decision by Judge Ramos that had invalidated an executive order targeting “sanctuary cities” that did not cooperate with federal law enforcement on immigration issues (see our previous coverage here).

Judge Ramos had held that the order was arbitrary and capricious under the Administrative Procedures Act, and impinged on the powers of state and local governments.  The Second Circuit disagreed, noting that the federal government has broad power to enforce immigration policy:
Continue Reading Second Circuit Reverses Judge Ramos on “Sanctuary Cities,” Allows Executive Order Cutting Funding

In an order yesterday, the Supreme Court, by a 5-4 vote, stayed a nationwide preliminary injunction Judge Daniels issued against a new rule redefining when those applying for legal residency can be denied admission as a “public charge” (see our prior coverage here).

Justice Gorsuch issued a concurring opinion, joined by Justice Thomas, expressing an interest in resolving the broader procedural question of whether District Judges should issue nationwide injunctions at all:
Continue Reading Supreme Court Stays Judge Daniels’ Nationwide Injunction Against “Public Charge” Rule

In an opinion yesterday, Judge Rakoff refused to dismiss a case brought by New York State and the Kings County District Attorney challenging a policy by the Immigration and Customs Enforcement Agency, or ICE, of arresting suspected unauthorized immigrants when they show up for court proceedings.  The opinion introduces the case as follows:

Courts cannot be expected to function properly if third parties (not least the executive branch of the government) feel free to disrupt the proceedings and intimidate the parties and witnesses by staging arrests for unrelated civil violations in the courthouse, on court property, or while the witnesses or parties are in transit to or from their court proceedings. Accordingly, more than 500 years ago, the English courts developed a common law privilege against civil arrests on courthouse premises and against arrests of parties and other persons necessarily traveling to or from court.

This ancient privilege, incorporated into American law in the early years of our republic by virtually all state and federal courts, has remained largely intact over the centuries. But now, according to the State of New York, [ICE], in implementation of an Executive Order issued by the Trump Administration in January 2017 and a Directive to ICE agents promulgated in January 2018, has increased its civil arrests in or around New York state courthouses by a remarkable 1700 percent and more. By this lawsuit, plaintiff The State of New York, joined by co-plaintiff Eric Gonzalez (the District Attorney of Kings County), demand that these intrusions be halted.

Judge Rakoff rejected the government’s argument (among others) that the immigration laws trump any common law privilege, because there was no “clear” statutory language to that effect:
Continue Reading Judge Rakoff: New York May Challenge ICE Policy of Making Immigration Arrests at Courthouses

In a 147 page opinion today, Judge Engelmayer vacated the so-called “conscience rule” that would have allowed health care providers who receive federal funds to decline to provide services to patients based on religious or moral grounds.  The plaintiffs, a group of state and local governments, challenged the regulation based on improper rulemaking, violations of the Establishment Clause, and because the threat of denying federal funds to health care providers who did not allow employees to decline care based on religious grounds was unconstitutionally coercive.

While Judge Engelmayer declined to invalidate the rule on Establishment Clause grounds, the opinion cited several fatal flaws with how the rule was enacted, including that the alleged reason the rule was drafted in the first place (a spike in health care workers raising “conscience” complaints) was factually untrue.  Given the pervasive nature of the issues, Judge Engelmayer concluded that the rule was so “shot through with glaring legal defects” that it had to be invalidated entirely:
Continue Reading Judge Engelmeyer Vacates HHS “Conscience Rule” In Its Entirety

In an opinion Friday, Judge Daniels preliminarily enjoined a new regulation that would change the framework for determining when those applying for legal residency are denied admission as a “public charge.”  The new proposed rule would have focused on whether the applicant was likely to receive 12 months of public benefits within 36 months.  Judge Daniels concluded that the rule, which was set to go into effect on October 15, was arbitrary, in violation of the Administrative Procedures Act:
Continue Reading Judge Daniels Enjoins “Public Charge” Rule Aimed At Restricting Immigration

In a complaint filed this week, a group of seven states (plus the District of Columbia) sued the SEC for having adopted a rule that allegedly does not comply with the mandate in the 2010 Dodd-Frank law for broker-dealers to make recommendations “without regard to” the broker-dealers’ own interests, similar to the fiduciary obligation investment advisers owe their clients.

The standard the SEC adopted instead — that broker-dealers cannot put their interests “ahead of the interest of the retail customer” — is below the standard required by law, according to the complaint, for multiple reasons:
Continue Reading Group of States Challenge SEC Rule Setting Standard of Care Broker-Dealers Owe Customers