WASHINGTON – The Trump administration broke the law in February when it barred New Yorkers from applying for or renewing their memberships in federal trusted traveler programs such as Nexus and Global Entry.
That's the conclusion that U.S. District Court Judge Jesse M. Furman reached late Tuesday in a decision in lawsuits filed against the Department of Homeland Security by New York Attorney General Letitia James as well as the New York Civil Liberties Union.
Homeland Security ended the New York trusted traveler ban in July after Justice Department lawyers said they could not defend the policy in court because it was made under false premises. Under Furman's ruling, the federal government will not be able to reinstate the ban and will have to correct any lingering effects.
The judge ruled that the trusted traveler ban violated the federal Administrative Procedures Act, which aims to make sure that federal regulations are fair to all citizens and reviewable by the courts.
People are also reading…
"The decision was plainly arbitrary and capricious," Furman wrote, later adding: "Defendants themselves now acknowledge that the TTP Decision 'was premised on an erroneous foundation' and 'is not legally supportable.' ”
Furman also ordered DHS officials to confer with the parties that sued the agency and try to agree on whether "additional remedies" are necessary to account for the ban's harmful effects.
Acting Homeland Security Secretary Chad Wolf announced the trusted traveler ban on Fox News in February, two months after New York's Green Light Law – which allows undocumented immigrants to apply for driver's licenses – took effect. Trump administration officials said the Green Light Law made New York the only state that barred federal officials from reviewing driver's license records, thereby making it a security hazard to allow New Yorkers into trusted traveler programs.
Trump administration officials maintained that pose until July even though it wasn't true.
"Making matters worse, when forced by plaintiffs to defend their decision in court, defendants initially did so by repeating their misleading, if not false, representations, in some instances under oath," Furman wrote.
Justice Department officials who were forced to defend the ban acknowledged in July, however, that they could not do so because it was based on false premises. Several states, two U.S. territories and the District of Columbia have laws that, like New York's Green Light Law, limit how much driver's license information federal officials can see, yet residents of those jurisdictions were never pushed out of the trusted traveler program.
That's just what James, the state attorney general, and Gov. Andrew M. Cuomo had argued all along.
"Our lawsuit against DHS was always about stopping the president’s politically motivated and retaliatory rule, which sought to punish New York for enacting its own state laws," James said in a statement. "Today’s decision will restore Global Entry and other trusted traveler programs to New Yorkers and marks a major victory for travelers, workers, commerce and our state’s economy."
Meantime, Richard Azzopardi, a spokesman for the governor, said: “This confirms what we already knew: a radicalized Department of Homeland Security tried to inflict economic pain on New Yorkers in the name of politics and then lied to the American people about it. Let this be a lesson: You cannot use government for political extortion and the truth will always come out.”
The trusted traveler ban had less impact than it was expected to have, only because the coronavirus crisis and its related travel bans began soon after the Department of Homeland Security decided New Yorkers could no longer apply for programs like Nexus. But federal officials said in February that the trusted traveler ban was expected to bar 175,000 New Yorkers from such programs this year.
In his decision, Furman said the truth about the trusted traveler ban may never have come to light if James and the New York Civil Liberties Union hadn't sued the federal government over the issue.
The civil liberties union was happy to take partial credit for that fact.
"This retaliatory ban was always about punishing New Yorkers for standing with immigrants, not about safety," said Antony Gemmell, a senior staff attorney for the NYCLU. "After initially claiming the TTP ban was necessary for national security, our lawsuit forced DHS officials to admit that their stated justification was a lie."
