Lee v. Trump

Background

David Lee, proceeding without a lawyer, moved for two temporary restraining orders concerning the coronavirus pandemic. The first motion challenged the federal travel ban as applied to travel from China, including the Centers for Disease Control and Prevention’s refusal to issue waivers allowing Lee’s family members to travel to the United States. The second motion sought to prevent President Donald Trump from using “Chinese virus,” “China virus,” and similar phrases. Lee alleged violations of the Administrative Procedure Act and equal-protection rights under the Fifth and Fourteenth Amendments. The court had previously denied an earlier motion concerning the travel ban on March 23, 2020.

Legal standard

The court explained that temporary restraining orders and preliminary injunctions are governed by the same standard in the Second Circuit. Lee had to show a likelihood of success on the merits, likely irreparable harm without an injunction, that the balance of hardships favored him, and that an injunction would serve the public interest.

Travel-ban waiver

The court concluded that Lee had not shown a likelihood of success concerning the refusal to issue travel-ban waivers. It held that the President is not an “agency” covered by the Administrative Procedure Act, so the President’s actions could not be reviewed under that statute. The court also stated that Lee’s constitutional claims were based on executive decisions concerning the China travel ban and were likely foreclosed by the Supreme Court’s decision in Trump v. Hawaii.

Presidential language

The court acknowledged the force of Lee’s argument that phrases such as “Chinese virus” and “Kung flu” could promote racial hostility, and it described “Kung flu” as racially insensitive, if not racist. But the court concluded that Lee had not shown a likely successful equal-protection claim under existing law. Although discriminatory intent is necessary for an equal-protection violation, the court explained that the Supreme Court generally recognizes such claims when a racial classification directly affects the plaintiff. Lee’s allegations that he and his wife lived in fear because of racial hatred were too indirect to establish the required direct and immediate effect.

The court also concluded that the public interest would not support an injunction prohibiting the President from using “Chinese virus” or similar language. It reasoned that even offensive government speech can contribute to public discussion by revealing government preferences and adding to debate. The court emphasized the distinctive legal and political status of presidential speech and quoted the principle that the response to disfavored speech on public issues is generally more speech, not less.

Disposition

Judge James Oetken denied Lee’s second and third motions for temporary restraining orders. The clerk was directed to close the motions listed at Docket Numbers 8 and 9. The opinion does not state that the underlying claims were finally resolved beyond the denial of the requested temporary relief.