Impeachment is exclusive remedy for Presidential misconduct - Trump says in merits brief to block NY subpoena for tax records

Domain of the khan of Tartary

That the President is "absolutely immune" from any criminal process while in office is` Point I' in the merits brief filed today by Donald Trump in his effort to invalidate the New York District Attorney Vance's grand jury subpoena for his tax and financial records.

The Trump lawyers build on their merits brief in the related cases of congressional subpoenas embracing Judge Neomi Rao's assertion that three Congressional committee subpoenas for Trump's tax and financial records are invalid because the House had not invoked its subpoena power.  In the challenge to the New York grand jury subpoena they claim now that the House of Representatives "sole power of impeachment" is the exclusive remedy for presidential misconduct.  Article I, Section 3 which permits prosecution after impeachment and conviction  is now said to bar even criminal investigation of a President while s/he is in office.  The Trump lawyers assert:

The remedy for wrongdoing by the President is impeachment, not criminal prosecution. U.S. Const. art. II, §§1, 4. That is why the Constitution provides that only after he is “convicted” by the Senate may the President then be “liable and subject to Indictment, Trial, Judgment, and Punishment, according to Law.” Id. art. I, §3. The President is thus “beyond the reach of any other department except in the mode prescribed by the constitution through the impeaching power.” Kendall v. U.S. ex rel. Stokes, 37 U.S. (12 Pet.) 524, 610 (1838). 

Evoking their earlier argument that the New York District Attorney, like the other 2,300 county prosecutors, poses a threat like the Lilliputians did to Gulliver Messrs. Sekulow, et alii further urge:

“No single prosecutor, judge, or jury should be able to accomplish what the Constitution assigns to the Congress.” Brett M. Kavanaugh, Separation of Powers During the Forty-Fourth Presidency and Beyond, 93 Minn. L. Rev. 1454, 1462 (2009). This was also how the Framers understood the Constitution. “The President,” Alexander Hamilton explained, “would be liable to be impeached, tried, and, upon conviction … would afterwards be liable to prosecution and punishment in the ordinary course of law.” Federalist No. 69, at 414 (Clinton Rossiter ed. 1961) (emphasis added). The President is “at all times liable to impeachment, trial, [and] dismission from office,” but any other punishment is to be achieved only “by subsequent prosecution in the common course of law.” Federalist No. 77, at 462-63 (A. Hamilton) (emphasis added).

The rigid limitation of Congressional and state power urged is bold.  The brief was filed as the Senators in the impeachment trial heard from Kenneth Starr who (assisted by now Justice Kavanaugh) subpoenaed a President - Bill Clinton - to testify before a grand jury, examined him, and caught him in a lie denying his sexual relationship with an intern.   Starr now testifies impeachment has been over-used.  It's an odd assertion for a client who now asserts it is the only mechanism by which a President may be investigated and disciplined.

Such a broad immunization from Congressional investigation and bar on state investigation even of pre-presidential financial misconduct is quite breathtaking.   It is the product of a mechanical vision of "separation of powers" which, rigidly enforced, would hobble government and subordinate the Congress to the will of a practically immune President.  It is contrary to Hamilton in Federalist 69 which Sekulow, et al inappropriately cite.  Hamilton sought to emphasize the weakness of the "Chief Magistrate" compared to England's "Hereditary monarch" or the "khan of Tartary".  

The word "afterwards" does a lot of work for Trump's defense.  Like Rao's assertion that impeachment is the only source of Congressional investigatory power over a President, focus on Hamilton's `afterwards' - if embraced as a limiting command - could accomplish what Hamilton and Madison sought to prevent: a monarchical president.  The constitutional plan, according to Hamilton is to be unlike England where the "person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution."

We have good reason to fear that a Supreme Court majority could embrace such literalism as Rao and now Trump propose, to immunize Donald Trump not only from prosecution and removal but also from investigation whether by Congress, or by state authorities whose ordinary jurisdiction empowers them to investigate and punish violations of the law.  - GWC

Trump files brief challenging House Committees right to subpoena his financial records

Donald Trump and his companies have filed their brief in the Supreme Court seeking to block release of his financial data to Congress.  Asserting a rigid division of powers within the federal government Trump challenges the authority of three inquiring committees of the House of Representatives.  Concerned that the President is not an honorable man, the House committees sought to examine his financial records. Subpoenas were issued to the Trump accountants at Mazars, LLP, and Deutsche Bank which financed many of his ventures.   Both subpoenas were upheld by the U.S. Courts of Appeals Courts for the  Second and District of Columbia Circuits.  The Trump brief begins:

QUESTION PRESENTED Whether three committees of the House of Representatives had the constitutional and statutory authority to issue subpoenas to third-party custodians for the personal records of the sitting President of the United States.

****

To call these subpoenas unprecedented would be an understatement. This is the first time that Congress has subpoenaed private records of a sitting President, and these companion decisions are the first time that courts have upheld congressional subpoenas for any sitting President’s records of any kind. Under the D.C. Circuit’s decision, Congress can subpoena any private records that it wishes from the sitting President on the mere assertion that it is considering legislation that might require presidents to disclose that information. And, in the Second Circuit’s view, Congress may subpoena private records of the sitting President as a “case study” into any legislative issue it might be investigating. The lack of historical precedent for any of these subpoenas should be a strong signal that something is amiss. 

Congress’s authority to issue subpoenas in aid of its lawmaking function is implied—not express. The Court has held that implied powers may not be used to alter the structure of the government or otherwise invoke authority that is so fundamental that it would be found in the Constitution’s text if it existed. There is nothing auxiliary, subordinate, or incidental about a legislative demand for the personal documents of the sitting President. There is every reason to doubt, then, that this is an implied power that Congress may rely on to defend these subpoenas.

“Congress cannot undertake a legislative investigation” of the President “if the ‘gravamen’ of the investigation rests on ‘suspicions of criminality.’”...(quoting Kilbourn v. Thompson, 103 U.S. 168, 193, 195 (1880)). Rather, Judge Rao explained, “allegations of illegal conduct against the President cannot be investigated by Congress except through impeachment.”

Thus, whether the subpoena has “a legislative purpose presents a serious conflict between Congress and the President.”  Judge Rao, dissenting, concluded that this subpoena was not exercising “legislative power” since the Committee explicitly” expressed “a purpose of investigating illegal conduct of the President, including specific violations of ethics laws and the Constitution.” 

At the heart of the President's argument is Trump's embrace of the dissent by recently appointed judge of the District of Columbia Circuit Court of Appeals Neomi Rao.  The former clerk to Justice Clarence Thomas posed an argument that sharply cabins the power of the House of Representatives to investigate presidential misconduct:  Only if the House explicitly invokes its "distinct" and "narrowly circumscribed" impeachment power can it "investigate" a President's misconduct.  Any other investigation, Rao argued, is an abuse of its legislative power which impinges the executive branches law enforcement authority.   To the extent Congress sought information in contemplation of legislation she saw mere pretext because the House had impeachment in mind but had acted without "formally" invoking the impeachment authority. 

The danger posed by Rao's view, now embraced by Donald Trump, is that a divided Congress whose majorities are of different parties is hobbled in its investigatory powers.  That makes the House even more unlikely to charge and the Senate vote to remove a lawless president.  Removal requires a two thirds super-majority of the Senate.  If the remedy of impeachment and removal is unfeasible the Rao/Trump reading of the branches powers effectively immunizes this and future Presidents from the consequences of their misconduct.

- gwc

SCOTUS green lights “public charge” rule pending appeals

updated February 1, 2020
The Department of Homeland Services new "public charge" rule restricting entry to the U.S. by anyone who legally accepts federal benefits such as food stamps or Medicaid  jeopardizes their chances of lawfully entering or remaining in the country.  The Rule was the product of the usual Administrative Procedure Act notice and comment process.  Among its objectives the APA is designed to slow and open the process of executive law-making by Rule. It's procedural requirements compel a record that enables effective judicial review of  agency Rules.  The Trump administration followed the statutory Notice and comment  process here - and was promptly met by a court challenge by the State of New York.

But in some cases the Trump administration has short circuited the APA via Presidential Proclamations and Emergency Notices.  As the United States Supreme Court green-lights them, overturning adverse District and Circuit rulings as in the asylum act case East Bay Sanctuary,  it cements the "Emergency" rules in place and ratifies the Rules adopted by the usual notice and comment process.   A Democratic administration will have a long row to hoe to reverse the new status quo created by a Supreme Court that lies prostrate before the Trump steamroller. 
As Amy Howe discusses Neil Gorsuch filed an opinion concurring with the stay of the "public charge" rule and took the opportunity to attack the practice of "nationwide" injunctions as unwise.
Surprisingly Ian Millhiser - a frequent and acerbic critic of the Supreme Court of the United States - sided with Gorsuch's criticism.  In an opinion piece at Vox he refers to Gorsuch's "surprisingly good idea".  In Millhiser's view the flood of new Trump appointed judges present forum shopping opportunities that could obstruct a progressive agenda if Trump is defeated this fall.
- gwc

Government gets green light to implement “public charge” rule pending appeals

by Amy Howe
Today a divided Supreme Court granted the Trump administration’s request for permission to enforce a rule known as the “public charge” rule, governing the admission of immigrants to the United States. The government had argued that it would suffer “effectively irreparable harm” if it could not implement the new rule while it appeals a pair of orders by a federal district court in New York. In a brief order, the court temporarily put the lower court’s rulings on hold until the government’s appeals to the U.S. Court of Appeals for the 2nd Circuit and, if necessary, the Supreme Court, are resolved.

The rule that the government will now be able to enforce interprets a provision of federal immigration law that bans noncitizens from receiving a green card if the government believes that they are likely to become a “public charge” – that is, reliant on government assistance. In August 2019, the Department of Homeland Security defined “public charge” to refer to non-citizens who receive a variety of government benefits, including cash, health care or housing, for more than 12 months over a three-year period. The rule also considers factors such as age, employment history and finances to determine whether a noncitizen might become a public charge in the future.

A group of states and immigration groups went to court to challenge the rule, arguing that DHS’s interpretation of the law is not a reasonable one. The district court agreed with the challengers that they were likely to prevail and temporarily blocked the government from enforcing the rule, setting up the government’s request for the Supreme Court to intervene.

Last week the challengers filed briefs urging the justices to turn down the government’s request. They emphasized that the kind of relief that the government was seeking is normally intended to “preserve the status quo,” but allowing the government to enforce the rule would have exactly the opposite effect, because the rule is a “vast expansion” of what it means to be a public charge. Previously, they explained, the term “public charge” had applied only to “individuals who are primarily dependent on the government for long-term subsistence.” Moreover, they added, the government has not suggested that it needs to be able to enforce the rule for public safety or national security reasons.

Justice Neil Gorsuch filed a concurring opinion that was joined by Justice Clarence Thomas. Gorsuch focused primarily on the common practice, illustrated in this case, of district courts issuing what are known as “nationwide injunctions” – relief that goes beyond the parties to a particular dispute and bars the government from enforcing a law or regulation against anyone in the country. Nationwide injunctions, Gorsuch emphasized, “have little basis in traditional equitable practice” and “hardly seem an innovation we should rush to embrace,” because they “tend to force judges into making rushed, high-stakes, low-information decisions.” And so although Gorsuch agreed with the court’s decision to allow the government to implement the public charge rule while it appeals, he also expressed hope that the court “might at an appropriate juncture take up some of the underlying equitable and constitutional questions raised by the rise of nationwide injunctions.”

The court’s four more liberal justices – Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan – indicated that they would have denied the government’s request for a stay.

This post is also published on SCOTUSblog.

Strikeouts

https://youtu.be/kfXRbZtVvxw

OTHERWISE: Biden at Black Baptist Convention - ML King Day 2020

OTHERWISE: Biden at Black Baptist Convention - ML King Day 2020: New Biden Ad has me in tears. pic.twitter.com/3fZtA3RQK3 — ⚖️Bernie Sanders is an Old Bigot⚖️ (@KHiveQueenB) January 20, 2020

Opinion | The Neighborhoods We Will Not Share - The New York Times

The Neighborhoods We Will Not Share - Richard Rothstein - The New York Times

by Richard Rothstein


In the mid-20th century, federal, state and local governments pursued explicit racial policies to create, enforce and sustain residential segregation. The policies were so powerful that, as a result, even today blacks and whites rarely live in the same communities and have little interracial contact or friendships outside the workplace.

This was not a peculiar Southern obsession, but consistent nationwide. In New York, for example, the State legislature amended its insurance code in 1938 to permit the Metropolitan Life Insurance Company to build large housing projects “for white people only” — first Parkchester in the Bronx and then Stuyvesant Town in Manhattan. New York City granted substantial tax concessions for Stuyvesant Town, even after MetLife’s chairman testified that the project would exclude black families because “Negroes and whites don’t mix.” The insurance company then built a separate Riverton project for African-Americans in Harlem.


Children at the Parkchester housing development in the Bronx, in 1942.Credit...Alfred Eisenstaedt/The LIFE Picture Collection, via Getty Images
Image
A family at the Riverton Houses in Harlem, in 1954.Credit...Schomburg Center for Research in Black Culture, New York Public Library


A few years later, when William Levitt proposed 17,000 homes in Nassau County for returning war veterans, the federal government insured his bank loans on the explicit condition that African-Americans be barred. The government even required that the deed to Levittown homes prohibit resale or rental to African-Americans. Although no longer legally enforceable, the language persists in Levittown deeds to this day.

As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins The Fight | Cato @ Liberty

OTHERWISE: As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins The Fight | Cato @ Liberty: As Supreme Court Considers Several Qualified Immunity Cases, A New Ally Joins The Fight | Cato @ Liberty 

 By  Jay Schweikert  and  Clark Neily

Dissecting Brett Kavanaugh’s ‘Supreme Ambition’ - The New York Times

Dissecting Brett Kavanaugh’s ‘Supreme Ambition’ - The New York Times

Review by Adam Cohen

SUPREME AMBITION
Brett Kavanaugh and the Conservative Takeover

By Ruth Marcus

Brett Kavanaugh had a confirmation hearing like none other, because of the extraordinary testimony of one woman. Christine Blasey Ford, a psychology professor, told the Senate Judiciary Committee that Kavanaugh had sexually assaulted her at a high school party decades earlier. “Brett got on top of me,” she said, and “began running his hands over my body and grinding his hips into me.” He groped her, she said, and tried to take her clothes off. When she yelled, she said, he put his hand over her mouth. “It was hard for me to breathe,” she said, “and I thought that Brett was accidentally going to kill me.”


Blasey Ford’s testimony was precise and measured — and credible. Even many of Kavanaugh’s supporters thought it sounded the death knell for his nomination. On Fox News, the anchor Chris Wallace called her account “a disaster for the Republicans.” When Republican senators caucused, the mood was gloomy. “Almost all of us were saying, ‘It’s over,’” recalled Jeff Flake, then a senator from Arizona.


It was not over, of course, and today Kavanaugh sits on the highest court in the land. How he overcame Blasey Ford’s testimony — and allegations of sexual misconduct from other witnesses — is the subject of “Supreme Ambition,” by Ruth Marcus, a deputy editor of The Washington Post’s editorial page. Marcus’s book is impressively reported, highly insightful and a rollicking good read. It also adds another dispiriting data point — as if one more were needed — that the American Republic is seriously ailing.
keep reading
















Imag

Chaos in the Immigration Courts - AP

Stewart Detention Center - Georgia - 1,650 male detainees

Chaos in the immigration courts - AP

By KATE BRUMBACK, DEEPTI HAJELA and AMY TAXIN
January 15, 2020

LUMPKIN, Ga. (AP) — In a locked, guarded courtroom in a compound surrounded by razor wire, Immigration Judge Jerome Rothschild waits -- and stalls.

A Spanish interpreter is running late because of a flat tire. Rothschild tells the five immigrants before him that he’ll take a break before the proceedings even start. His hope: to delay just long enough so these immigrants won’t have to sit by, uncomprehendingly, as their futures are decided.

“We are, untypically, without an interpreter,” Rothschild tells a lawyer who enters the courtroom at the Stewart Detention Center after driving down from Atlanta, about 140 miles away.

In its disorder, this is, in fact, a typical day in the chaotic, crowded and confusing U.S. immigration court system of which Rothschild’s courtroom is just one small outpost.

Shrouded in secrecy, the immigration courts run by the U.S. Department of Justice have been dysfunctional for years and have only gotten worse. A surge in the arrival of asylum seekers and the Trump administration’s crackdown on the Southwest border and illegal immigration have pushed more people into deportation proceedings, swelling the court’s docket to 1 million cases.

“It is just a cumbersome, huge system, and yet administration upon administration comes in here and tries to use the system for their own purposes,” says Immigration Judge Amiena Khan in New York City, speaking in her role as vice president of the National Association of Immigration Judges.

“And in every instance, the system doesn’t change on a dime, because you can’t turn the Titanic around.”

The Associated Press visited immigration courts in 11 different cities more than two dozen times during a 10-day period in late fall. In courts from Boston to San Diego, reporters observed scores of hearings that illustrated how crushing caseloads and shifting policies have landed the courts in unprecedented turmoil:

California Decision said to threaten "millions of arbitration agreements : National Law Jornal

California law provides an expeditious, virtually free administrative remedy for a worker seeking wages owed but unpaid.  But an employment agreement presented to Ken Kho by his employer OTO, LLC faced him with a mandatory arbitration clause that deprived him of that remedy.  The California Supreme Court, 6-1, found it "substantively unconscionable" in OTO, LLC v, Kho, 447 P.3d 680 (2019).  OTO - represented by the Paul Weiss firm - has filed a petition for certification.  It presents employers with an opportunity to again turn back the California Supreme Court which has proven determined to preserve state contractual remedies.  Employers hope to persuade the United States Supreme Court to declare that the Federal Arbitration Act preempts such a ruling.  A similar argument - that the Kentucky Supreme Court had targeted arbitration for unequal treatment - carried the day in Kindred Nursing v. Clerk, 137 S. Ct. 1421 (2017).

The central point that the company asserts is that California has developed a doctrine that is particularly hostile to arbitration of labor disputes.  The issue is of great importance because California' legislature has in Assembly Bill 5 acted to deny gig  economy employers like Uber the ability to classify their solo drivers as independent contractors.  That classification deprives employees of  the benefit of the employer's share of social security, workers compensation, overtime pay, the ACA insurance obligations of large employers, and a raft of other protections of workers rights such as collective bargaining.

The California Supreme Court attacks the OTO agreement saying that Kho, a native Chinese speaker was confronted with a document entitled “Comprehensive Agreement—Employment At-Will and Arbitration.”  He signed it. The Court explains

As the Court of Appeal observed, “Notwithstanding its designation as a ‘comprehensive’ employment contract, the one and one-quarter page contract is merely an arbitration clause grafted onto an acknowledgment of at-will employment.”The contract's arbitration clause is contained in a dense, single-spaced paragraph, written in a very small typeface that fills almost an entire page. Subject to limited exceptions, nearly any employment-related claim made by either party must be submitted to binding arbitration. Class or collective proceedings are generally prohibited. Arbitrations must be conducted before a retired superior court judge, pursuant to the California Arbitration Act (Code Civ. Proc., § 1280 et seq.), with full discovery permitted (see Code Civ. Proc., § 1283.05). Furthermore, “[t]o the extent applicable in civil actions in California courts,” the agreement requires adherence to “all rules of pleading (including the right of demurrer), all rules of evidence, all rights to resolution of the dispute by means of motions for summary judgment, judgment on the pleadings, and judgment under Code of Civil Procedure Section 631.8.” The allocation of arbitration costs is not addressed explicitly. Instead, the agreement refers to Code of Civil Procedure section 1284.2, which generally provides that parties to an arbitration must bear their own expenses. But the agreement also states that “controlling case law” or statutes will prevail over Code of Civil Procedure section 1284.2 if there is a conflict.

 OTO'a petition, if granted, will pose a major threat to the authority of the California Supreme Court which is a particularly strong source of worker and consumer protective legal doctrine. - gwc

California Decision said to threaten "millions of arbitration agreements : National Law Journal
by Mike Scarcella

A California Supreme Court ruling in a wage dispute threatens to undermine “millions of arbitration agreements” and more broadly highlights the state’s “recalcitrance” against allowing employers and their workers to resolve some workplace complaints out of court, lawyers for an auto dealer asserted in a new U.S. Supreme Court petition on Monday.

The petition, filed by a team from Paul, Weiss, Rifkind, Wharton & Garrison, said a series of California rulings against arbitration agreements have made the state a “serial offender” of U.S. Supreme Court decisions upholding mandates of the Federal Arbitration Act.

“The message has not gotten through,” Paul Weiss partner Kannon Shanmugam told the justices on behalf of OTO LLC, which does business as One Toyota of Oakland. Paul Weiss represents the auto dealer with the law firm Fine, Boggs & Perkins.

The Supreme Court over the last decade has issued a number of rulings strengthening the Federal Arbitration Act, and the new petition gives the justices a fresh opportunity to weigh the contours of the law. The justices last term passed up a chance to take a California arbitration case, as the high court, without comment, refused to touch a state ruling that said a former Winston & Strawn partner could sue the firm for alleged bias.

The auto dealer’s petition challenges a divided California Supreme Court opinion that invalidated an arbitration agreement in a dispute involving a former service technician. The auto dealer’s lawyers unsuccessfully tried to stop a California labor agency hearing, and the company also lost its bid to compel arbitration through the courts. The California Labor Commission awarded the former employee, Ken Kho, $150,000 in unpaid wages, liquidated damages, interest and penalties.

The California Supreme Court concluded the arbitration agreement at question was “substantively unconscionable.” Arbitration, the court said, “is premised on the parties’ mutual consent, not coercion.”

The justices in the majority said that by signing the arbitration agreement, Kho surrendered a “full panoply” of administrative procedures and assistance and got in return access “to a formal and highly structured arbitration process that closely resembled civil litigation if he could figure out how to avail himself of its benefits and avoid its pitfalls.”

“Employees who agree to arbitrate claims for unpaid wages forgo not just their right to litigate in court, but also their resort to an expedient, largely cost-free administrative procedure,” the California Supreme Court said. The ruling described Kho’s arbitration agreement as “opaque.” Sentences in the agreement “are complex, filled with statutory references and legal jargon. The second sentence alone is 12 lines long.”

GAO: OMB Unlawfully withheld Ukraine Security Assistance

Mick Mulvaney and others need to testify to establish at whose direction the OMB took this unlawful action.  The Senate has to decide if we should just "get over it". - gwc

Government Accountability Office (GAO) B-331564, Office of Management and Budget—Withholding of Ukraine Security Assistance

In the summer of 2019, the Office of Management and Budget (OMB) withheld from obligation funds appropriated to the Department of Defense (DOD) for security assistance to Ukraine. In order to withhold the funds, OMB issued a series of nine
apportionment schedules with footnotes that made all unobligated balances unavailable for obligation.
Faithful execution of the law does not permit the President to substitute his own policy priorities for those that Congress has enacted into law. OMB withheld funds for a policy reason, which is not permitted under the Impoundment Control Act (ICA).
The withholding was not a programmatic delay. Therefore, we conclude that OMB violated the ICA.

State, local officials cannot block refugee admissions in their jurisdictions, federal judge rules, halting Trump administration policy - The Washington Post

Three non profit immigrant aid organizations have challenged the Trump Administration's Order empowering states to bar refugees seeking asylum.  The three plaintiff organizations are federally designated "Resettlement Agencies".

HIAS (founded  in 1881 as the Hebrew Immigrant Aid Society), the Church World Service, and the Lutheran Immigration and Refugee Service, Inc. have sued Donald Trump and his agency and department heads.  United States District Judge Peter J. Messite has granted a preliminary injunction (Order) against enforcement of Executive Order 13888, 84 Fed. Reg. 52,355 (Sept. 26, 2019).  Messite's memorandum opinion  explains that the Executive Order breaches the President's duty to follow Congress's plain directives.  Rather than engage in consultation to so as to implement a coherent policy respectful of local conditions, the Trump order would improperly delegate to States and Local Governments "the power to veto [resettlement], by refusing to consent to, the resettlement in their respective jurisdictions of certain refugees from around the world."
The Executive Order authorized the Secretary of State and the Department of  Health and Human Services to develop a system to determine "whether the State and locality both consent, in writing, to the resettlement of refugees within the State and locality, before refugees are resettled within that State and locality under the Program." 
Mark J. Hetfield, President and CEO, HIAS: 

“This ruling shows the country how this administration was wrong to attempt a state-by-state refugee ban. Judge Messitte found it likely that the executive order is unlawful, and we are grateful for the clarity of this injunction. An overwhelming majority of governors and municipalities have already expressed their desire to continue welcoming refugees. To those few who have not, we say not only is it unkind and un-American to ban refugees from your states and towns, but it is unlawful. HIAS will continue our work resettling refugees who have come to our shores looking to restart their lives in safety.”

HIAS was backed by many states and service organizations as friends of the court.

State, local officials cannot block refugee admissions in their jurisdictions, federal judge rules, halting Trump administration policy - The Washington Post

...State and local officials cannot block refugees from being resettled in their jurisdictions, a federal judge ruled Wednesday, finding the Trump administration’s new refu­gee policy is likely to be “unlawful” and “does not appear to serve the overall public interest.”

U.S. District Judge Peter J. Messitte of Maryland in HIAS, et al. v. Trump temporarily halted President Trump’s executive order requiring governors and local officials nationwide to agree in writing to welcome refugees.