City Bar’s Response to Travel Ban and Attacks on the Judiciary – by John S. Kiernan

President’s Column, February 2017

President Trump’s January 27 issuance of Executive Order 13,769 entitled “Protecting the Nation from Foreign Terrorist Entry into the United States,” and the events that followed from it, prompted a tremendous reaction from the New York City Bar Association’s members, and significant action by the Association. That action has taken two primary forms. First, the City Bar sought to leverage its opposition to the Executive Order into a national platform, by sponsoring a Resolution and Report of the American Bar Association that, among other points, urged the President to withdraw the Executive Order. With exceptional speed, that Resolution was developed, presented to the ABA House of Delegates and passed by an overwhelming vote on February 6, less than ten days after issuance of the Executive Order. Second, a team of immigration experts coordinated by the City Bar Justice Center, alongside attorneys and legal professionals from the organized bar, spent the weekend of January 27 at Kennedy Airport, offering legal help to detainees in the period before a Seattle court’s temporary restraining order – still in place after the Ninth Circuit’s February 9 decision – halted application of the Executive Order.

The City Bar co-authored the ABA Resolution and Report in a highly collaborative effort coordinated by our Immigration and Nationality Law Committee (Farrin Anello, Chair) and the ABA’s Section of International Law. The Resolution goes beyond urging withdrawal of the Executive Order to urge further that the Executive Branch, in issuing future executive orders relating to border security, immigration and terrorism, respect the bounds of the Constitution and laws (including international law obligations) and not use religion or nationality as a basis for barring otherwise eligible individuals from entry into the United States. The Resolution also urges the Executive to facilitate “a transparent, accessible, fair and efficient system of administering the immigration laws and policies of the United States, including the adjudication of visa applications, applications for immigration benefits, and applications for entry into the United States; and ensure protection for refugees, asylum seekers, torture victims and others deserving of humanitarian refuge.” A companion resolution sponsored by the Connecticut Bar Association urges similar efforts by Congress.

We can be proud that as a result of the City Bar’s collaborative efforts with the ABA, these resolutions now embody the formal policy of the ABA’s 400,000-member organization representing all fifty states and a broad range of political beliefs and sensibilities. The legal profession has stood together on this important issue and, as events continue to unfold on a nearly daily basis, the Resolution can serve as an important guidepost for action going forward.  The text of the approved Resolution and Report can be found here.

The Report accompanying the Resolution addressed two other areas of concern related to the Executive Order. The first pertains to the important role the judiciary plays in providing checks and balances in relation to the political branches, a topic that has galvanized the legal profession since January 27 as it has responded to the President’s comments in connection with court rulings affecting the Executive Order. On this point, the City Bar and the ABA expressed “grave concern” about the President’s comments regarding the district judge who issued the temporary restraining order blocking the further implementation of the Executive Order. That same grave concern applies to the President’s later comments about the Ninth Circuit, made after the Report was finalized. As the Report observed, in a statement that reflects core beliefs of the City Bar and its membership, “Respect for the judiciary is a fundamental cornerstone of American democracy, constitutional separation of powers, and the rule of law.” These comments, not consistent with prior Presidents’ restraint in commenting about individual judges and plainly aimed in part at influencing the independent judgment of the judiciary and the public’s perception of the trustworthiness and correctness of the court’s rulings, were not proper. Lawyers nationwide should continue to speak out in defense of the judiciary if the President or members of his Administration continue to make such comments going forward. 

Second, the Report addressed the manner of the Executive Order’s development and roll-out. The Order was unaccompanied by clear directions to the thousands of immigration officers and other officials charged with implementing it even on such basic questions as whether it would apply to lawful permanent residents and what precisely should be done with people already in transit who had previously obtained legal authorization to enter the country. This caused unnecessary chaos, denials of rights and hardships to thousands of people who had been legally authorized to enter and were acting completely in compliance with the law. That kind of indifference to the human costs of disorderly and unplanned implementation of major changes of policy should not be considered tolerable, particularly when the harms are being imposed by people wearing the uniform of the United States.

The Executive Order generated an enormous surge of offers for volunteer help from our membership, including those who turned to the City Bar to offer their involvement because of the Association’s non-partisan approach to these issues. Because of the extremely accelerated nature of the legal effort, and the short turnaround period before the Executive Order was held in abeyance, the main category of assistance needed was the expertise of experienced immigration practitioners, and many of these volunteers were deployed through the Justice Center in the days immediately after January 27. The surge of volunteers provided a powerful reminder, though, that the City Bar has enormous resources in the form of volunteer sensibilities of its membership, and those resources allow us to be nimble in addressing emergencies calling for legal assistance. Our membership has demonstrated, time and again, that we are stronger collectively than we can be individually.

John S. Kiernan is President of the New York City Bar Association.