Case of the Day: Washington v. Trump

Statue of the Authority of the Law
Credit: Ferrylodge

Here’s a quick take on the Ninth Circuit’s per curiam decision in Washington v. Trump, the government’s motion for a stay of the temporary restraining order enjoining enforcement of Executive Order 13769, the ban on the entry into the United States of Syrian refugees and all nationals of several majority-Muslim countries. As you probably have read by now, the court denied the motion, which means the TRO stays in place pending the government’s appeal.

In my prior post on the executive order, I suggested that while the executive order is immoral, un-American, unwise, and unjust, parts of it might well be legal. I suggested that the real legal problems with the order were how it treated legal permanent residents who are nationals of the countries in question and how it treated aliens in the United States (as distinguished from aliens outside the United States seeking to enter the country). After today’s decision the other aspects of the decision may or may not be in legal jeopardy, but the reasons the court gave for finding that the government had not shown a likelihood of success on the merits were aligned with the concerns I raised. Yes, the White House Counsel issued a document stating that the Executive Order did not apply to legal permanent residents, but the judges felt, quite rightly, that a White House Counsel can’t simply make an Executive Order mean something other than what it says. This is a great illustration of the haste and lack of care that the administration showed in issuing such a major order so quickly, with so little review by the relevant departments. The judges also focused on a point I hadn’t considered: aliens in the country now, lawfully or unlawfully, might still be affected by the order, since it impacts their ability to travel. Because the order does not provide due process to lawful permanent residents and other affected aliens in the United States now, the government hadn’t made its case.

In light of its decision on the due process piece of the case, the court didn’t address the religious discrimination aspect of the claim under the First Amendment, reserving the question for decision later. The Order is facially neutral; but the President’s own outrageous comments, and the comments of advisors like Rudy Giuliani, create a factual basis for asserting that the order violates the Establishment Clause by disfavoring Muslims.

Perhaps the most interesting aspect of the order is procedural. The court ruled, first, that it had the power to review the constitutionality of the Executive Order even though it involved the exercise of powers Congress had delegated to the President in the area of immigration. Of course the court has the power to hear a challenge, at least as to the rights of people in the United States. (The case discusses standing at some length, but I’ll leave that issue aside here). I still do think, as I suggested in the prior post, that an individual alien seeking a visa in a foreign country has no justiciable claim if the visa is denied. Whether someone could assert a claim about the legality the government’s overall policy for the issuance of visas, as opposed to a particular alien’s claim that a visa was wrongfully denied, will be an interesting piece of the litigation to come.

One other interesting point, which arose in the context of weighing the harms: the court rejected the notion that the government can simply wave its hands and say “we know things. Super-secret things. If you knew these things, you’d agree with us.” There are procedures in place for the submission of confidential information to the courts. So the government can’t simply point to the boogeyman and expect the courts to fall in line.

Yesterday’s decision is a welcome reminder that we do have strong institutions that were designed to check a wayward executive and that have the will and the ability to check the executive, even one who demeans and implicitly threatens them, like President Trump.

About Ted Folkman

Ted Folkman is a shareholder with Murphy & King, a Boston law firm, where he has a complex business litigation practice. Folkman also serves as an arbitrator and is a member of the Commercial and Consumer Panels of the American Arbitration Association. He is the author of International Judicial Assistance (MCLE 2d ed. 2016), a nuts-and-bolts guide to international judicial assistance issues, and of the chapter on service of process in the ABA's treatise on International Aspects of US Litigation (J. Berger, ed. 2017), and he is the publisher of Letters Blogatory, the Web's first blog devoted to international judicial assistance, which the ABA recognized as one of the best 100 legal blogs in 2012 and 2014 - 2016.

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