Dat Rundown of WTF is Happening with the EO Travel Ban

(Check out the EO and annotations to familiarize yourself with what it says; also check out PBS’s timeline of what’s happened since the EO was signed and implemented. Also this is broad strokes; take time to do your own delving.)

If you haven’t already, take a quick skim of my First Blog Post for a quick and dirty summary of the Executive Order that’s resulted in a quick hustle up the federal court chain.

Here’s the deal. Washington [state] won a Temporary Restraining Order (“TRO”) against enforcement of Trump’s now-infamous anti-immigration Executive Order and the administration was decidedly Not Happy with Judge Robart. Trump even got on the Twitter machine to cast doubt over the judiciary, and everyone started quoting an old version of a law that was later updated to include anti-discriminatory language. Now there’s lots of bickering about how to interpret it, and some great analysis, too. The 9th Circuit heard oral arguments (over the phone!) this evening and by the time you’re reading this post, maybe we’ll know whether the TRO is still in effect or not.

Without further ado, here’s a quick highlight reel.

Judge James Robart’s decision (U.S. District Judge in Seattle) :

  • Found standing for the states due to alleged harm to the state’s universities and tax revenue from tourists.
  • Did not directly address whether/why the ban was illegal or unconstitutional (the Washington argued that the order violated ‘due process of law’ because it changed the rules without warning for foreign travelers, and discriminated based on religion and national origin.
  • During a February 3 hearing, Judge Robart suggested that he was unconvinced the ban was necessary for national security. He told the DOJ attorney that he had to “determine if the executive order is rationally based. And rationally based to me implies that to some extent I have to find it grounded in facts as opposed to fiction.” (Throwing some serious shade, there.)

Trump Team Arguments:

  • LACK OF STANDING (i.e., States aren’t the proper plaintiffs to bring the case – they ain’t got no dog in this fight): States lack standing to challenge EO (Minnesota and Washington):
    • A similar argument made by the Obama Administration was unsuccessful in the 5th Circuit, however, when the Administration tried to block challenges from states who asserted Obama’s executive order shielding a number of so-called Dreamer immigrants from deportation was overreach.
    • “The states claim that they are harmed by virtue of the damage that implementation of the order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the states’ operations, tax bases, and public funds. …These attenuated and speculative alleged harms are neither concrete nor particularized.”
  • VIOLATION OF SEPARATION OF POWERS (The court was a meddling busy-body. In my newbie lawyer opinion, this is a Bad Argument): The TRO is a violation of separation of powers/infringes on executive office:
    • “The injunction contravenes the constitutional separation of powers; harms the public by thwarting enforcement of an Executive Order issued by the nation’s elected representative responsible for immigration matters and foreign affairs; and second-guesses the President’s national security judgment about the quantum of risk posed by the admission of certain classes of aliens and the best means of minimizing that risk.”

States’ Arguments (Washington and Minnesota):

  • RUNNING ROUGHSHOD OVER THE CONSTITUTION: Constitutional violations: due process, equal protection, and religious freedom:
    • “Even if the Order did not make suspect classifications, it would be illegal because ‘its sheer breadth is so discontinuous with the reasons offered for it that the [Order] seems inexplicable by anything but animus toward the class it affects.’ Romer v. Evans, 517 U.S. 620, 632 (1996). For several months it bans all travelers from the listed countries and all refugees, whether they be infants, schoolchildren, or grandparents. And though it cites the attacks of September 11, 2001, as a rationale, it imposes no restrictions on people from the countries whose national carried out those attacks. ‘It is at once too narrow and too broad,’ Id. at 633, and cannot withstand any level of scrutiny. See, e.g., United States v. Windsor, 133 S. Ct. 2675, 2693 (2013) (‘The Constitution’s guarantee of equality must at the very least mean that a bare [legislative] desire to harm a politically unpopular group cannot justify disparate treatment of that group.’).
  • FLOUTING PRECEDENT: Compared Trump’s action with previous cases involving actions of past presidents involving immigration to argue that Trump is way overreaching:
    • “Second, Defendants cite Kleindienst v. Mandel, 408 U.S. 753 (1972), and Kerry v. Din, 135 S. Ct. 2128 (2015), for the proposition that so long as the President gives a facially legitimate reason for excluding an alien, the courts will not look behind that reason. But those cases dealt with the President’s power to exclude ‘an unadmitted and nonresident alien.’ i.e., someone who had no legal right to be here. Mandel, 408 U.S. at 762; Din, 135 S. Ct. at 2131. This case, by contrast, involves longtime residents who are here and have constitutional rights. Moreover, Justice Kennedy’s controlling opinion in Din held that courts should look behind the stated motives for exclusion even as to a nonresident alien if the plaintiff ‘plausibly alleged with sufficient particularity’ ‘an affirmative showing of bad faith.’ Id. at 2141. See also Cardenas v. United States, 826 F.3d 1164, 1171 (9th Cir. 2016) (same). Here, the State has plausibly alleged with sufficient particularity that the President acted in bad faith in an effort to target Muslims. Thus, courts have both the right and the duty to examine Defendants’ true motives.”

In addition to the angry states and angry Trump, there are angry businesses. At least ninety-seven of them. The companies, including Microsoft, Twitter (lol ironic), Google, and Apple, are making an economic argument in favor of the injunction. They cite the incredible role immigrants have played in the US in obtaining patents and winning Nobel prices. The companies argue that if left in place, the ban could force industry overseas in order to ensure the availability of talent from around the world. Trump campaigned to keep jobs in the US and this move may well have the opposite effect:

  • “The Order effects a sudden shift in the rules governing entry into the United States, and is inflicting substantial harm on U.S. companies. It hinders the ability of American companies to attract great talent; increases costs imposed on business; makes it more difficult for American firms to compete in the international marketplace; and gives global enterprises a new, significant incentive to build operations — and hire new employees — outside the United States.”
  • “The Order violates the immigration laws and the Constitution. In 1965, Congress prohibited discrimination on the basis of national origin precisely so that the Nation could not shut its doors to immigrants based on where they come from. Moreover, any discretion under the immigration laws must be exercised reasonably, and subject to meaningful constraints.”

There are also some former national security and intelligence officials argued that the travel ban posed a threat to safety of Americans. At least ten of them. And they’re probably right. And they don’t even get into how wildly successful a propaganda tool for ISIS recruitment this thing is.

  • “The Order will endanger U.S. troops in the field. Every day, American soldiers work and fight alongside allies in some of the named countries who put their lives on the line to protect Americans. For example, allies who would be barred by the Order work alongside our men and women in Iraq fighting against ISIL, [the militant group Islamic State]. To the extent that the Order bans travel by individuals cooperating against ISIL, we risk placing our military efforts at risk by sending an insulting message to those citizens and all Muslims.”
  • “The Order will disrupt key counterterrorism, foreign policy, and national security partnerships that are critical to our obtaining the necessary information sharing and collaboration in intelligence, law enforcement, military, and diplomatic channels to address the threat posed by terrorist groups such as ISIL. The international criticism of the Order has been intense, and it has alienated U.S. allies. It will strain our relationships with partner countries in Europe and the Middle East, on whom we rely for vital counterterrorism cooperation, undermining years of effort to bring them closer. By alienating these partners, we could lose access to the intelligence and resources necessary to fight the root causes of terror or disrupt attacks launched from abroad, before an attack occurs within our borders.”

Some seventeen states are challenging the EO. The ultimate outcome of the dispute may rest on where the Supreme Court places the limits on Executive Power. Historically, the law on immigration and related matters has favored the president – legal precedent affords the chief executive nearly unchecked power to deny admission to the US to any foreigner. The Supreme Court has stated “The exclusion of aliens is a fundamental act of sovereignty…inherent in the executive power.”

But there are some trip-ups and missteps here, on the part of Trump and his administration, that chiefly begin with Trump’s attachment to Twitter. Trump’s campaign promised to ban Muslims, he recently attacked the judge who ruled against him (appointed by the GOP), and the implementation of the EO was disastrous to say the least. Trump tweeted on Sunday, “The opinion of this so-called judge, which essentially takes law enforcement away from our country, is ridiculous and will be overturned. Just cannot believe a judge would put our country in such peril. If something happens blame him and court system.” (Not even gonna touch the fear-mongering right there. Not right now, anyway.)

Courts take the full record into account when rendering decisions, and Trump’s tweets throw a wrench into a normal reading of immigration and Constitutional law, primarily because they disclose an agenda separate and apart from “national security” and paint in discriminatory strokes. Although Administration officials argue that the ban doesn’t target Muslims (and under a plain reading of the EO, they may be correct – it does not say “Ban all Muslims” anywhere in it), but Trump’s past statements, including one in 2015 in which he called for “a total and complete shutdown of Muslims entering the US” cast doubt on his motives. And constitutionally, motives matter.

There is no clear sense yet whether the 8-justice Supreme Court will hear the case if the 9th Circuit upholds Judge Robart’s injunction. (Again, oral argument!)


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