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What's Happened and What's Ahead in Washington v. Trump

By Casey C. Sullivan, Esq. on February 06, 2017 | Last updated on March 21, 2019

It's been a busy weekend for lawyers fighting over President Trump's immigration ban. On Friday, a federal judge in Seattle issued a nationwide temporary restraining order pausing the enforcement of ban. While the President took to Twitter to decry the outcome (and the judge), Department of Justice lawyers moved quickly for an emergency stay in the Ninth. Then, on Sunday morning, the Ninth rejected the government's request, allowing the TRO to stand for the time being.

Here's what has happened so far, and what you can expect in the days ahead.

Washington Gets, and Keeps, TRO

On Friday, January 27th, President Trump signed an executive order barring immigration from seven specific majority-Muslim countries and suspending the acceptance of refugees generally. (With so much legal back and forth, it's almost hard to believe that Trump's controversial executive order is little over a week old.) Protestors soon took to the nation's streets and airports, while lawyers rushed to the courts -- and airports. That included lawyers for Washington State.

While civil liberties and immigrant rights groups had early success with individual habeas petitions filed on behalf of detainees, Washington State took a more aggressive legal stance.

It sued the Monday after Trump's EO went in to effect, arguing that the EO harmed Washington residents, the state's economy, and the state's "sovereign interest in remaining a welcoming place for immigrants and refugees." Asserting that the EO violated both the Constitution and federal law, the state sought an injunction and TRO against the enforcement of much of the EO's provisions.

Just days later, and now joined by Minnesota, the state got what it wanted.

On Friday, Judge James L. Robart issued a brief opinion finding that Washington met the requirements needed for a TRO, pausing enforcement of the ban throughout the nation while the state's case moves forward.

Acknowledging that the court's role "is limited to ensuring that the actions taken by the other two branches" of the government "comport with our country's laws, and more importantly, our Constitution" the court concluded that "the circumstances brought before the it today are such that it must intervene to fulfill its constitutional role in our tripart government."

Saturday morning, the President tweeted out his disapproval:

Meanwhile, Department of Justice lawyers were seeking to do just that. In a motion for an emergency stay of Judge Robart's order, the government argued for an expansive reading of the president's power to set immigration policy.

The president had "unreviewable authority to suspend the admission of any class of aliens," the government argued." The district court had "improperly second-guessed the president's national security determinations," the DOJ said, and for a party that wasn't subject to the EO and thus lacked standing to sue.

On Sunday, the Ninth denied the government's motion for an emergency administrative stay pending appeal, in a brief, two-sentence order.

The Fight Over a Stay Continues

The denial of the emergency administrative stay does not settle the matter. The federal government continues to pursue a stay in the Ninth.

Washington, now with Hawaii joining its suit alongside Minnesota, filed its response to the government's stay motion Sunday night. Since the lower court issued only a TRO, rather than a preliminary injunction, appealing now is procedurally improper, the state argues.

Further, the states have standing to sue under Massachusetts v. EPA and the doctrine of parens patriae. In Mass. v. EPA, the Supreme Court recognized states as "not normal litigants," who could establish standing when a government program harmed their proprietary and "quasi-sovereign" interests. The Fifth Circuit, Washington noted, had relied on that logic to allow Texas to sue the Obama administration over its immigration policies.

As for the merits, the state's claims were largely unchanged. The EO violated the Due Process, Equal Protection, and Establishment Clauses, as well as federal immigration and administrative law. The government would be unlikely to prevail against those arguments, the state asserted.

Washington's filing is joined by a handful of amicus briefs, from the American Civil Liberties Union, the Korematsu Center, and 97 technology companies including Microsoft, Facebook, Google, and more. (A few non-tech companies, like Levi Strauss, are also included.)

The government is expected to file its reply in support of its emergency motion later today.

Meanwhile, the government has begun complying with the TRO, allowing entry to refugees and immigrants who would otherwise be barred. How long that continues could depend on the outcome of the legal battles in the Ninth Circuit and Western District of Washington.

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