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Ninth Circuit Court Rules Against Key Provisions of Executive Order Regarding Travel Suspension

As detailed in our previous alert on this issue, on May 15, 2017, the United States Court of Appeals for the Ninth Circuit heard oral arguments relating to the legality of Sections 2 and 6 of the “Executive Order Protecting the Nation from Foreign Terrorist Entry into the United States” issued on March 6, 2017, (the “new E.O.”).

On June 12, 2017, a three-judge panel of the Ninth Circuit unanimously affirmed the United States District Court for Hawaii’s March 29, 2017, nationwide preliminary injunction as to key provisions of the new E.O. The court analyzed the legality of the new E.O. under the Immigration and Nationality Act of 1965, as opposed to weighing constitutional considerations, which other courts have done. Specifically, the court held that the identified reasons for the travel suspensions under the new E.O. do not support the conclusion that the entry of nationals from the six designated countries would be harmful to national interests. The court concluded that the President, in issuing the new E.O., exceeded the scope of the authority delegated to him by Congress, and noted that “immigration, even for the President, is not a one-person show.” State of Hawaii, et al. v. Trump at p. 2. Notably, the court held that the District of Hawaii erred by enjoining the entirety of Sections 2 and 6 of the new E.O., particularly the portions that pertain to interagency review. Accordingly, the court vacated the portion of the injunction that prevents the United States government from conducting internal reviews. The court also modified the scope of the injunction by lifting it as to the President, concluding that the extraordinary remedy of enjoining the President in the performance of his official duties was not appropriate.

During a June 12, 2017, press briefing, the White House Press Secretary, Sean Spicer, indicated that the administration is reviewing the Ninth Circuit’s decision and expressed continued confidence that the new E.O. is lawful and ultimately will be upheld by the United States Supreme Court.

As noted in our previous alert on this issue, the Fourth Circuit on May 25, 2017, also ruled against the new E.O. On June 1, 2017, the United States Department of Justice filed an emergency request to the United States Supreme Court asking that it reinstate the new E.O. and hear the Government’s appeal of the Fourth Circuit’s ruling against the new E.O. On June 14, 2017, the President issued a Presidential Memorandum in which he clarifies that the effective date of Section 2 and 6 of the new E.O. will be the date and time at which the injunctions are lifted or stayed.

© 2017 Andrews Kurth Kenyon LLP

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Marc D. Katz, Labor Law Attorney, Andrews Kurth Law Firm
Partner

Marc is the Chair of the firm's Labor & Employment section and focuses his practice on management-side labor and employment litigation and counseling. His experience includes drafting, negotiating and litigating non-competition and confidentiality agreements, trade secret litigation, state and federal employment discrimination cases, wage and hour issues, medical leave, FMLA and ADA compliance issues, class action employment cases, wrongful discharge, and defamation litigation.

Marc develops workplace policies and advises corporate clients on mass layoffs, reductions in force,...

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Isabel Crosby
Partner

Isabel has experience representing employers as the first or second chair litigator in both state and federal courts and in administrative actions before the Department of Labor’s Office of Administrative Law Judges, the Occupational Safety & Health Review Commission, the Texas Education Agency, and the National Labor Relations Board.

Her practice focuses on negotiating settlements in anticipation of and during litigation and advising and counseling management on labor and employment issues, including those arising under Title VII, the ADA, the FLSA, the FMLA, OSHA, and the NLRA. Isabel also represents management at grievance hearings, board of trustee hearings, and internal meetings and has drafted responses to the EEOC and other government agencies. In addition, she provides management training on topics including workplace violence, the ADA, rightful discharges, the electronic workplace, wellness programs, effective documentation, and collective bargaining agreement compliance.

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Jayde Ashford Brown, Andrews Kurth, management side labor litigation lawyer, employment matters attorney
Associate

Jayde Ashford Brown represents corporate clients in management-side labor and employment matters arising under federal and state law, including, but not limited to Title VII, the FLSA, the FMLA, the ADA, the ADEA, and workers compensation under Section 451 of the Texas Labor Code. In addition to litigation, Jayde counsels clients on best practices relating to hiring and termination decisions, employment policies and employee investigations, and the OFCCP and related AAP obligations for federal contractors and subcontractors. Jayde also prepares and negotiates separation...

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