Saturday, February 4, 2017

Federal District Judge Enjoins "Muslim Ban" in Washington v. Trump

In a Temporary Restraining Order, United States District Judge James Robart enjoined the federal government from enforcing sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban." 

Judge Hobart's Order is brief and concludes that there is a likelihood of success on the merits, although it does not specify which of the claims is likely to succeed.  Washington State's complaint contains 7 counts claiming violations of constitutional guarantees of Equal Protection, Establishment Clause, and Procedural Due Process, as well as statutory violations of the Immigration and Nationality Act (2 counts), Foreign Affairs and Restructuring Act, the Administrative Procedure Act (2 counts), and the Religious Freedom and Restoration Act (RFRA).

Mt. Baker, Washington, by Murray Foubister via

The Judge's finding that Washington faces the "immediate and irreparable injury" requirement for preliminary relief might also be a comment on the merits of Washington's standing (which we first discussed here) to bring the suit, and would be pertinent to the standing of the state of Hawai'i, which has also sued. Judge Robart found:

The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders.  In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive 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.

Additionally, in the Order's one paragraph Conclusion, Judge Robart implicitly invokes the Marbury v. Madison aspects of the controversy.  Here is the entire last paragraph:

Fundamental to the work of this court is a vigilant recognition that it is but one of   three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and of the citizens of this   country who ultimately exercise democratic control over those branches. The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution. The narrow question the court is asked to consider today is whether it is appropriate to enter a TRO against certain actions taken by the Executive in the context of this specific lawsuit. Although the question is narrow, the court is mindful of the considerable impact its order may have on the parties before it, the executive branch of our government, and the country’s citizens and residents. The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government. Accordingly, the court concludes that entry of the above-described TRO is necessary, and the States’ motion (Dkt. ## 2, 19) is therefore GRANTED.

 The morning after the Judge's Order, the President from his vacation home "tweeted" his disapproval, maligning the judge but seemingly committed to pursue further judicial process.

Courts and Judging, Current Affairs, Due Process (Substantive), Equal Protection, Establishment Clause, Federalism, First Amendment, Free Exercise Clause, Fundamental Rights, Opinion Analysis, Procedural Due Process, Race, Separation of Powers, Standing | Permalink


One thing about the TRO that jumps out is it says the state’s public universities and tax base suffered potential harms. Those are two things that the due process clause wasn’t included in the Constitution to protect. Fifth Amendment jurisprudence is thin – at best – in the area of a state suing because of alleged harms to its universities and tax base due to an Executive Order.

AG Ferguson's brief fleshes out the state’s arguments:

The state claims the E.O. is “tearing families apart.” The AG’s office refers to the 7,000 noncitizen immigrants from effected countries living in this state, who may have personal and family travel plans that now could be uncertain. The brief also lists complaints of local companies that have additional costs (Expedia is helping some customers deal with changed travel plans, and Microsoft uses labor from some of the countries at issue), and that university students and employees are impacted.
Anyone want to discuss the legal arguments related to the procedural due process claim set out in section 3(a.)? It looks like it has merits – the right to travel is a protected liberty interest cognizable under the due process clause. Again, no individual claims injury, the state just sets out a parade of horribles of what might happen to some of its residents, some non-citizens, and the future potential injuries to its universities/tax base). This claim is the Fifth Amendment’s due process clause was violated because insufficient process was afforded prior to infringing on the fundamental “right to travel.”

Let’s start with the “standing” basics. The state claims it has standing because some of its residents’ may have travel plans impacted. Is that sufficient? A jurisdictional requirement is that a real case or controversy must be present. Is there one of those here? The affidavits from Microsoft, Expedia and Amazon raise concerns, but those could not provide the sole basis for subject matter jurisdiction – any constitutionally-protected travel plans those corporations have weren’t infringed, even though some of their employees’ travel plans may have been.

Posted by: Art Cowen | Feb 4, 2017 8:33:36 AM

I'm not a lawyer, so the procedure for forum selection confuses me. The day before, a Boston federal judge ordered the Boston TRO lifted. What happens if judges in different fora disagree? Is it the case that any one judge can issue a prelim injunction even after many other judges have refused one?

Posted by: Eric Rasmusen | Feb 4, 2017 10:55:31 AM

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