With Justice Department lawyers making bold claims that President Donald Trump has unchecked power to control who enters the country, the White House is moving swiftly to challenge a federal judge’s nationwide order barring enforcement of new rules strictly curbing immigration.
U.S. District Judge James L. Robart of Seattle on Friday afternoon issued the most sweeping ruling against the Trump Administration to emerge from nine lawsuits across the country challenging the orders. So far, only one judge – in Boston – has rejected such a challenge. The controversy is likely to move quickly to the Supreme Court.
While Judge Robart’s decision was temporary until he can weigh further arguments, he made it clear that he had serious doubts about the constitutionality of the controversial presidential executive order against arrivals of new immigrants seeking refugee status or coming from seven Muslim-dominated Mideast nations.
Not long after the judge acted, White House Press Secretary Sean Spicer said that Justice Department lawyers would move “at the earliest possible time” for a postponement of the ruling. Such a delay request would go first to Judge Robart and then to the U.S. Court of Appeals for the Ninth Circuit, based in San Francisco. After that, the next stop would be the Supreme Court; it would take the votes of five of the eight Justices to grant a delay, if the lower courts had refused.
Press Secretary Spicer initially denounced the Seattle judge’s order as “outrageous,” but in a later statement deleted that word. He argued that the executive order was “lawful and appropriate” and it was within the President’s constitutional authority “to protect the homeland.”
On Twitter, President Trump criticized the ruling. “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned,” Trump stated.
The Trump Administration’s legal defense of the new rules is being made by career Justice Department attorneys under orders from a new Department leader, Acting Attorney General Dana J. Boente. Boente is a career prosecutor who was elevated to that temporary top post after a holdover Department chief, Sally Q. Yates, was fired after she had barred government lawyers from defending the executive order in court, doubting its legality.
On Thursday night, the new legal team filed its first, broad defense of the new rules, in Judge Robart’s court. The filing argued that President Trump’s power to issue the executive order was “at its maximum” because he was using both his own powers over foreign policy and national security under Article II, but also an explicit delegation to him by Congress in federal immigration law of authority to bar the admission into the United States of any foreign nationals whose entry would not be in the national interest.
In that situation, the government lawyers argued, the presidential action was not subject to any review by the courts.
In the judge’s order delaying enforcement of the rules, he did not react directly to those broad claims, but he did find that the two states challenging President Trump – Washington and Minnesota – were likely to win the case when a final decision is made after further review in his court. The judge did explicitly reject two government arguments: that any enforcement delay should not be nationwide but should be limited to only those two states, and that the two states did not have a legal right to sue because they could not prove that they, as states, had suffered any direct injury from the executive order.
The judge thus implicitly accepted the states’ argument that they would lose tax revenues, that businesses in the state would suffer economic harm, and that colleges would be disrupted in dealings with foreign students. He also agreed with their claim that the order should apply uniformly across the nation.
The judge did not say which of the states’ constitutional arguments against the executive order were likely to prevail when the case is decided on the merits. Among those arguments were that the presidential action violated doctrines of religious equality by planning to favor Christian immigrants over Muslims; that it would deny foreign nationals legal equality based upon their nationality; that it would deny foreign nationals fair procedures when they seek entry to the U.S.; and that it would coerce the states into enforcing a national policy in violation of their rights under the Tenth Amendment.
The judge also did not comment specifically on the two states’ claims that the executive order violates federal immigration law, including a law that directly forbids discrimination based on national origin.
In the concluding parts of his order, Judge Robart defended the role of the federal courts in enforcing the Constitution. While he conceded that his order might have “considerable impact” on the federal government and on the nation’s citizens and residents, he contended that it was narrow in scope, going only as far as necessary to fulfill his constitutional duty.
Robart ordered the two sides to propose by Monday a schedule for filing written legal arguments on whether he should make his temporary bar of enforcement more binding. He said he would promptly schedule a hearing, if that seemed necessary.
In the specifics of his order, Judge Robart did not block enforcement of all provisions of President Trump’s immigration restrictions. But he did block five specific parts – the ones that the two states had directly challenged. His order took effect immediately when issued Friday afternoon.
Thus, the government was barred from enforcing these restrictions: first, the 90-day suspension of entry of any immigrants from seven Mideast nations with Muslim majorities; second, the 120-day suspension of admission of foreign nationals seeking refugee status; third, any action by the government that gives favoritism to foreign nationals who follow a religious faith that is a minority in the designated Mideast nations; fourth, deciding on a case-by-case basis which individuals of a minority faith are to be admitted; and, fifth, the indefinite delay of admission of any refugees from Syria.
The Trump Administration has a legal right to appeal the judge’s order, and it apparently will do so. Its most immediate response apparently will be an emergency request for a postponement of the order pending such an appeal.
(This post also appears today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)