Washington v. Trump for non-lawyers

by Michelle Mumford

Michelle Mumford explains the court case related to President Trump’s Executive Order on Immigration for those of us who don’t have time to get a law degree, clerk for the 10th Circuit, and read all of the associated court filings. In other words, she’s done the heavy lifting so you can sound smart around the water cooler.

Or on Twitter.


President Trump’s Executive Order on Immigration (“EO”) generally accomplishes three things: (1) it prohibits entry of citizens from seven majority-Muslim countries (Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen) for 90 days; (2) it halts the influx of refugees for 120 days in order to review procedures; and (3) it prohibits all Syrian refugees until further notice. The Administration later clarified that the EO does not affect United States citizens or green-card holders living in the seven named countries.

President Trump cites the Immigration and Nationality Act for his authority to issue the EO. This statute provides:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.8 U.S.C. § 1182(f).

8 U.S.C. § 1182(f).

The courts have granted presidents broad authority under this statute. For example, President Reagan issued an order prohibiting immigration by all Cuban nationals.

A second statute, though, seems to contradict the broad powers given in 1182(f). Section 1152(a)(1) provides:

(A) Except as specifically provided in paragraph (2) and in sections 1101(a)(27), 1151(b)(2)(A)(i), and 1153 of this title, no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.

(B) Nothing in this paragraph shall be construed to limit the authority of the Secretary of State to determine the procedures for the processing of immigrant visa applications or the locations where such applications will be processed.

Private parties, mostly travelers with valid visas, permanent legal residents with green cards, and refugees already in transit, have challenged the EO in multiple states and jurisdictions, including New York, Virginia, and Massachusetts. Washington and Minnesota were the first states to sue.

So how are the proceedings in State of Washington v. Trump in the 9th Circuit different than earlier proceedings in other jurisdictions? The district court in Washington granted a temporary restraining order (“TRO”) stopping implementation of the EO on a nationwide basis, not just as applied to certain immigrants with valid visas or those who were already in transit to the United States. The federal government requested the 9th Circuit stay – or stop – implementation of this TRO. While the 9th Circuit refused an emergency stay of the district court’s TRO, it scheduled a telephonic hearing on the issue for Tuesday, February 7.

The plaintiff states in Washington v. Trump argued:

  1. 7,000 noncitizen immigrants were affected in Washington state – “husbands were separated from wives;”
  2. the EO threatens state economic interests, including sales tax revenue from travelers and recruitment efforts by companies;
  3. the EO caused immediate harm to public universities because hundreds of faculty, staff, and students are from the affected countries;
  4. a procedural argument that TROs are not appealable and the court, therefore, has no jurisdiction (that the parties should wait until the hearing for a preliminary injunction to argue the merits of the case);
  5. application of the EO against lawful permanent residents and visa holders violates due process, and the EO is not clear as to its application to legal permanent residents;
  6. the EO violates the Establishment Clause by favoring one religion and attacking one religion; and
  7. a nationwide TRO was necessary to ensure uniform enforcement of immigration policies.

The federal government argued:

  1. the states had no standing to sue based on alleged injuries to its citizens;
  2. the EO was necessary to ensure the nation’s security;
  3. separation of powers prohibits the courts from reviewing the President’s motives behind the EO;
  4. the President has the statutory and constitutional authority to issue broad orders relating to immigration; and
  5. states cannot invoke due process on behalf of its citizens, nor does the Fifth Amendment apply to unadmitted and nonresident immigrants.

On the question of whether the states were facing immediate and irreparable injury, an element necessary to obtain a TRO, the district court found that the EO would adversely affect residents of the states in “areas of employment, education, business, family relations, and freedom to travel,” and that the state acted as the parens patriae, or legal protector (“parent of the nation”), over its citizens. The district court also found that the states were harmed by damage to “the operations and missions of [the] public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds.”

During the 9th Circuit oral argument hearing, the appellate court focused its questions to counsel on: (1) whether the states had standing to sue; (2) whether the court should decide the status of the TRO or the underlying request for preliminary injunction, and thus whether a TRO was even appealable; (3) the proprietary nature of Washington’s interests and how the EO would harm its public universities; (4) whether the Establishment Clause was really at issue where the vast majority of Muslims worldwide were not affected by the EO; and (5) whether the plaintiff-states could really deny the fact that the seven countries were countries with ties to terrorism.

The state of Washington’s strongest argument was that the court should not even review the TRO. The federal government’s strongest argument was that the court should not second-guess the President in deciding what is and is not a security risk, or at the very least limit the TRO.

If the federal government loses at the 9th Circuit, it could go to the Supreme Court for an emergency application for a stay, but would need five of the eight justices to agree to stay the TRO. Or, the government could decide to appeal to the Supreme Court for a stay of the TRO and a petition for certiorari before judgment on the merits, which only requires four justices to grant. Regardless, it seems likely that for now the 9th Circuit will keep the district court’s nationwide TRO, and therefore the status quo before the EO, in place.

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