WASHINGTON, DC - OCTOBER 24: U.S. President Donald Trump prepares to present automotive businessman and racing legend Roger Penske with the Presidential Medal of Freedom during a ceremony in the Oval Office at the White House October 24, 2019 in Washington, DC. Known by his nickname of 'The Captain,' Penske built one of the most successful auto-racing dynasties, winning championships in IndyCar and NASCAR. (Photo by Chip Somodevilla/Getty Images)
US president Donald Trump: the administration generally provides a legal justification for its decisions © Getty

The administration of President Donald Trump has, periodically, made sweeping decisions designed to deliver on campaign promises to put “America first”. Immigration policies have presented low-hanging fruit and are easy targets for reform.

The Trump White House generally provides a legal justification for its decisions. When the administration moved to eliminate the Temporary Protected Status (TPS) of Haitians, it argued that Haiti was now a safe country to return to. In its attempt to add a question about citizenship to the 2020 US census, it cited the Voting Rights Act (VRA), arguing that it was protecting minority groups from having their voting rights diluted or marginalised.

However, lawyers say these policy changes are designed to have a disproportionate effect on minority or immigrant communities, and their declared rationale is often a veneer for anti-immigrant intent.

Lawyers have been essential in exposing the administration’s underlying motivation for policy changes, using the discovery process to gain access to documents that prove it.

The Trump campaign was explicit about its anti-immigrant sentiment, says Howard Roin, partner at law firm Mayer Brown. Mr Trump reportedly referred to an assortment of nations as “shithole countries” in a closed-door meeting on immigration with lawmakers — a comment the president has denied.

In January 2018, when the administration eliminated TPS for people from Haiti, El Salvador, Nicaragua and Sudan, lawyers were shocked. TPS is a designation applied to countries that, because of war, natural disaster or humanitarian emergency, are no longer considered safe enough for citizens abroad to return to. Haiti received TPS status after the 2010 earthquake that killed an estimated 230,000 people.

While previous administrations have eliminated TPS with little fanfare, “the fact that multiple countries were done at once within a short period of time is what was remarkable, that’s what set off alarm bells,” says Geoffrey Pipoly, a senior associate at Mayer Brown, which filed a legal challenge in the case of Haiti.

There was no legal precedent for challenging the termination of a TPS designation, says Miriam Nemetz, a partner at Mayer Brown. “Terminating TPS requires that it be safe for people to return. The fact is that the conditions in Haiti were terrible.” She adds: “It was clear that something was going on.”

A TPS designation itself cannot be challenged so lawyers turned to the government’s decision-making process and how it established whether the conditions continued to exist for TPS in Haiti. Lawyers used discovery to gain access to the documents that underpinned the TPS decision. This showed, the judge later said: “[Department of homeland security] officials were proactively mad-libbing official documents to reach termination [of TPS].”

When officials first ordered an analysis of conditions in Haiti, the information in the report was overwhelmingly in support of the continued need for TPS. Robert Law — a senior immigration services adviser who had previously worked for an anti-immigration organisation described as a hate group by the Southern Poverty Law Center, a non-profit organisation — said that the subsequent report recommending the continuation of TPS was not what the Trump administration was “looking for”.

Exactly 29 minutes later he sent the letter back to his supervisor, revised to exclude information supporting TPS. He later directed a subordinate to “be creative” in finding data to argue that TPS should be eliminated.

These memos — as well as handwritten notes by Elaine Duke, acting deputy secretary of homeland security, which outlined the decision-making process — were made available to lawyers in discovery. Ms Duke wrote of her rationale for terminating TPS in Haiti: “Don’t know, need to rationalise conflicting info.” US Citizenship and Immigration Services declined to comment.

Lawyers at Mayer Brown argued that in the case of Haiti, the government edited available information in order to engineer the outcome of eliminating TPS rather than basing the decision on facts, as required by law.

Mr Pipoly says: “You rarely end up being as right as we were in this case.” The release of the documents from within the administration, he says, “is a good illustration of the fact that there are still people in government who are there to do the work of government. People that, when asked to present documents, just do it”.

The Trump administration’s attempt to add a question about citizenship to the 2020 census, citing the VRA, also triggered alarm. “For people who work on [voting rights] for a living it was doubly galling,” says Dale Ho, director of voting rights at the American Civil Liberties Union.

Counted: a protester outside the US Supreme Court, which ruled that the Trump administration did not give an adequate explanation for plans to add a citizenship question to the  census
© Reuters

The constitutional purpose of the census is to count every person in the US at a given moment, regardless of citizenship. The census plays a big role in the US political framework, from establishing government representation and power within states to determining funding allocations. A question about citizenship posed a risk to a fair census count because immigrants feared that the information would be used to enforce immigration rules.

The ACLU worked with law firm Arnold & Porter to pose a legal challenge under a statute that allows aggrieved parties to see how a decision was made. Lawyers believed that the documentation would reveal the true reason the citizenship question was being added.

Legally, any changes to the census must come from outside the Department of Commerce, which controls the census.

By forcing the government to turn over the administrative record, lawyers established that the request was choreographed to look as if it was an independent request from the justice department, when it had in fact come from the political leadership within the commerce department itself. “Every living census director from both political parties said adding this question was a bad idea,” says John Freedman, partner at Arnold & Porter. “[The department] didn’t do anything to test this question when any change to the census questionnaire is usually a 10-year process where they test it repeatedly.”

The discovery process also revealed a smoking gun: documents existed that had not been shared initially.

The government had “curated documents to provide a misleading picture”, says Mr Ho. Lawyers used that information to retrieve previously withheld documents. The final record was more than 10 times as long as the 1,300 pages initially provided by the administration. These documents “allowed us to build this case brick by brick,” says Mr Ho. The Supreme Court blocked the question from being added to the 2020 census. The Department of Commerce said in a statement that it “acted in good faith and in consultation with counsel at the Department of Justice”.

“The only way you can hold those agencies accountable to Congress and the public is if they are transparent and honest about the reasons why they do things,” says Mr Ho. None of the information was publicly available, he adds. “It took litigation to bring all of that to light.”

The table below ranks law firms for the FT Innovative Lawyers North America awards.

Rule of Law and Access to Justice
RankLaw firmDescriptionOriginalityLeadershipImpactTotal
STANDOUTArnold & PorterWon a case in the US Supreme Court to prevent the Trump administration adding a citizenship question to the 2020 census. The change would have lowered participation from immigrant groups and altered the allocation of federal funds. The firm showed the motivation behind the move to add the citizenship question was to maintain Republican power rather than the stated intention of enforcing the Voting Rights Act. This is the first time the Supreme Court has struck down an executive branch decision based on pretext. Commended: John Freedman89926
STANDOUTCrowell & MoringRepresenting Ashley Overbey, who signed a gagging order after being beaten by police officers in 2012, and news outlet Baltimore Brew, the firm won its case that gag orders in government settlements are a violation of the First Amendment. Commended: Daniel Wolff89825
STANDOUTWalden, Macht & Haran Represented 23 parents in a class action suit against the New York Department of Education for failure to enforce anti-bullying rules in public schools. The settlement resulted in the implementation of new anti-bullying protocols, reporting systems and a requirement that incidents be investigated within 10 days. Commended: Jim Walden89825
HIGHLY COMMENDEDFreshfields Bruckhaus DeringerBrought a class action against Congress for its delay in processing special visas for Afghans and Iraqis who assisted the US military. Delays could last up to five years, while these individuals face threats in their home countries. 78823
HIGHLY COMMENDEDGoodwin ProcterSuccessfully argued that “notice to appear” documents must include a date and place if they are to stop noncitizens accruing time towards eligibility to stay in the US as permanent residents. The case could allow thousands of immigrants to apply to remain. Commended: David Zimmer78823
HIGHLY COMMENDEDHausfeldWith South African lawyer Charles Abrahams, filed the largest class action lawsuit in South Africa against gold mining companies for conditions that caused thousands of workers to contract lung disease. 77923
HIGHLY COMMENDEDKirkland & EllisIn the first class action addressing this question, the firm is representing a class of unaccompanied immigrant teenagers who were put into detention facilities by ICE when they turned 18. It has secured the release of the class and the trial is expected in December 2019.78722
HIGHLY COMMENDEDLatham & WatkinsRepresenting Riana Buffin, who lost her job after being held in jail for two days before being released without charge, the firm secured a decision that San Francisco’s cash bail policy violates the constitutional rights of the poor. Commended: Sadik Huseny77822
HIGHLY COMMENDEDOrrickThe firm argued that US Navy veteran Alfred Procopio Jr was entitled to the same benefits as other Vietnam war veterans who were exposed to Agent Orange. As a result, approximately 90,000 navy veterans are now entitled to benefits previously only awarded to those who had "boots on the ground".77822
HIGHLY COMMENDEDPaul, Weiss, Rifkind, Wharton & GarrisonWorked with the American Civil Liberties Union (ACLU) and other NGOs to repurpose ediscovery technology to aid the reunion of families split at the Mexican border in 2018. Nearly 200 families have been reunited so far.77822
COMMENDEDDavies Ward Phillips & VinebergThe firm represented Égale Canada Human Rights Trust in its intervention to overturn 11 entries in the civil code that infringed the rights of transgender, intersex and non-binary individuals. The code prohibited non-citizens from legally changing their name or sex designation, compelled non-binary and intersex people to identify as either male or female and required that all trans, non-binary and intersex parents identify their gender on the birth of their children. 77721
COMMENDEDMayer BrownSecured a preliminary injunction to extend the temporary protected status of Haitians after an attempted termination by the Department of Homeland Security. The injunction allowed 50,000 Haitians to remain in the US for the time being.68721
COMMENDEDWhite & CaseRepresented anti-corruption organisation Mexicanos Contra la Corrupción y la Impunidad in suing the Mexico City Congress for failing to fill the position of commissioner of the Transparency Institute, which meant 2,000 freedom of information requests had not been fulfilled.67821
COMMENDEDEversheds Sutherland & Hogan LovellsWhen hundreds of immigrant parents failed their “credible fear” interviews because of the trauma of being separated from their children at the US border, the two firms obtained a joint settlement with the ACLU entitling a class of parents to a second “credible fear” interview, to prevent their immediate deportation. 67720
COMMENDEDKasowitz Benson TorresAfter the First Union Baptist Church of the Bronx filed for bankruptcy, the firm negotiated an agreement for a property developer to pay off the Church’s debts in return for the right to use part of the property for rental housing. 77620
COMMENDEDMcGuireWoodsWorked with the Legal Aid Justice Center to abolish a practice that suspends the driving licences of those who fail to pay their court fees in Virginia.77620
COMMENDEDMcGuireWoodsPartnered with the American Bankruptcy Institute’s Task Force on Veterans and Servicemembers Affairs to pass legislation that excludes disability benefits as part of income for veterans when applying for bankruptcy. 77620
COMMENDEDMorrison & FoersterWon a ruling prohibiting Georgia from using paperless direct-recording voting machines. From 2020 paper ballots must be used, protectin Georgia's voting system from the risk of cyber attack. 67619
COMMENDEDPaul HastingsSecured Lamont McKoy a hearing to overturn his wrongful conviction for murder. There was a lack of DNA evidence, a deciding factor in most overturns.67619
COMMENDEDPillsbury Winthrop Shaw PittmanHelped fashion H. Con. Res. 72, a bill designed to protect children from violence and abuse by their parents. The bill encourages state courts to prioritise family violence claims and risks to children during custody battles.67619

Get alerts on Law when a new story is published

Copyright The Financial Times Limited 2020. All rights reserved.
Reuse this content (opens in new window)

Follow the topics in this article