U.S. District Judge James Robart of the Western District of Washington (Credit: Youtube)
On Friday, U.S. District Judge James Robart in Seattle entered a temporary restraining order blocking President Donald Trump’s executive order and setting up an accelerated appellate showdown over the sudden suspension of immigration from seven predominantly Muslim nations.
The U.S. Court of Appeals for the Ninth Circuit denied the government’s request for an immediate stay and set an expedited briefing schedule. Lawyers representing the states of Washington and Minnesota, which are challenging the ban, must respond during predawn hours on Monday and the Justice Department must file its reply Monday evening.
Here are some key exchanges from the hearing that will shape the court fight ahead.
On the motivation for the executive order:
Statements that President Trump made during the campaign about banning Muslims from entering the United States may have bearing on the states’ likelihood of prevailing on claims that the executive order impermissibly targets individuals based on religion. At Friday’s hearing, Robart asked Washington Solicitor General Noah Purcell whether the campaign trail promises should be considered.
JUDGE JAMES ROBART: It seems to me that it’s a bit of a reach to say: The President is clearly anti-Muslim or anti-Islam, based on what he said in New Hampshire in June.
NOAH PURCELL: Well, Your Honor, it might go to the weight to give the evidence, I suppose. But I don’t think it’s sort of off the table, especially given that we’re only a week into—well, two weeks now, I suppose, but the order was issued a week after the campaign— well, after the President took office.
PURCELL: After the inauguration, I’m sorry. So it’s not as though those are completely irrelevant. And moreover—and, again, this is before any discovery—we have the President’s advisor saying on national television that, you know, the President asked him to come up with a Muslim ban—this was after the election—asked him to come up with a Muslim ban in a way that would make it legal. And that that’s what they did.
ROBART: Does the executive order mention the word “Islamic” or “Muslim?” Let’s stay on religious grounds.
PURCELL: No, it does not, Your Honor.
On deference to the executive branch:
A key issue in the argument over Trump’s executive order is how deeply federal judges can dig into determinations made by the president in the area of national security. In this exchange with the government’s lawyer, Michelle Bennett, Judge Robart indicated he would not blindly accept the administration’s statements and said there was “no support” for assertions that individuals from the seven banned nations pose a grave national security threat.
ROBART: You’re here arguing on behalf of someone that says: We have to protect the United States from these individuals coming from these countries, and there’s no support for that.
MICHELLE BENNETT: Your Honor, I think the point is that because this is a question of foreign affairs, because this is an area where Congress has delegated authority to the President to make these determinations, it’s the President that gets to make the determinations. And the court doesn’t have authority to look behind those determinations. They’re essentially like determinations that are committed to agency discretion. … And if the four corners of the executive order offer a facially legitimate and bona fide reason for it, which they do here, that the court can’t look behind that.
ROBART: Well, counsel, I understand that from your papers, and you very forcefully presented that argument. But I’m also asked to look and 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.
On the proper role for the court:
At the core of the government’s appeal is a broad view of executive branch power in the area of immigration and border control. In their motion to the Ninth Circuit, the Justice Department lawyers write that the president has “unreviewable authority to suspend the admission of any class of aliens” and that Robart’s intervention violates the Constitution’s separation of powers. Judge Robart, who ruled from the bench, began with a discussion of the court’s role.
ROBART: The role assigned to the court is not to create policy, and it’s not to judge the wisdom of any particular policy promoted by the other two branches. That is the work of the legislative and executive branches and the citizens who ultimately, by exercising their rights to vote, exercise democratic control over those branches. The work of the judiciary is limited to ensuring that the actions taken by those two branches comport with our laws, and most importantly, our constitution.
On state standing to challenge the travel ban
A key issue for the Ninth Circuit to address is whether the state of Washington has a right to challenge the president’s executive order. Washington, which has been joined in the litigation by Minnesota, asserts that it has standing to sue to protect its residents, businesses and educational institutions. The states rely in part on a 2015 decision from the U.S. Court of Appeals for the Fifth Circuit which allowed a coalition of states to challenge President Barack Obama’s executive order giving lawful status to 4 million immigrants. Judge Robart acknowledged that it’s a sticky area.
ROBART: It is an interesting question in regards to the standing of the states to bring this action. I’m sure the one item that all counsel would agree on is that the standing law is a little murky. I find, however, that the state does have standing in regards to this matter, and therefore they are properly here. And I probed with both counsel my reasons for finding that, which have to do with direct, immediate harm going to the states, as institutions, in addition to harm to their citizens, which they are not able to represent as directly.
On nationwide application of TRO
In its motion for a stay, the Justice Department argues that Robart overstepped by issuing a nationwide injunction. In particular, the government complains that Robart’s nationwide order impermissibly overrides a district judge’s decision in Massachusetts, issued the same day, that allowed the travel ban to remain in place. Robart did not address that decision in Louhghalam v. Trump as he ruled from the bench.
ROBART: I considered the question of the government’s request that the order should be limited to Minnesota and Washington, but I find that such partial implementation of the executive order would undermine the constitutional imperative of a uniform rule of naturalization and Congress’s instruction that immigration laws of the United States should be enforced vigorously and uniformly.