Has the White House decided to start over on its executive order on the “pause” involving visas and refugees from seven high-risk nations? After last night’s setback at the Ninth Circuit, some wondered whether the Trump administration should keep fighting to defend its original version, or moot the lawsuits under consideration by withdrawing the first EO and replacing it with a more defensible version that accounts for the judicial criticisms received by the first. Joe Scarborough reported on Morning Joe earlier that the White House has begun to work on that strategy.
Let’s call it moot & reboot:
— Morning Joe (@Morning_Joe) February 10, 2017
In the previous hour, Alan Dershowitz laid out why the original order should prevail … but that the legal fight would take far too long to fight. “National security has to trump ego,” Dershowitz said, pun intended, and advised the White House to either write a completely new order or issue a supplemental order dealing with the legal challenges:
Judges refuse to reimpose travel ban… Harvard Law professor emeritus Alan Dershowitz gives his take https://t.co/LNcY70KjYQ
— Morning Joe (@Morning_Joe) February 10, 2017
This would almost certainly moot the current lawsuits, but it seems like a no-brainer that more would follow. A new lawsuit might not land in Judge James Robart’s court, but plaintiffs would no doubt do some of the venue-shopping noted by the Morning Joe panel in the first clip to get another TRO, along with another appeal to a circuit court. Perhaps, though, a new EO will have better preparation and more bullet-proof language to avoid those tripwires, pushing courts into having little choice but to acknowledge the broad jurisdiction of the executive branch on entry policies.
If the original order and the TRO went to the Supreme Court, Dan McLaughlin argues that the Trump administration would still have a good chance of overturning the TRO, if it wants to take the time to do so:
[T]he court concluded that the States of Washington and Minnesota had legal standing under Article III of the Constitution to bring a court case to challenge the order. Federal courts require that a party bringing a lawsuit have some personal stake in it; in general, you cannot literally make a federal case out of something that doesn’t affect you directly. The court wisely avoided ruling on the states’ flimsy claim to “parens patriae” standing to represent every citizen of their state and then extend that to non-resident aliens, a theory foreclosed by Supreme Court precedent dating back to 1923. It focused more narrowly on the states’ claim to represent state universities that were affected when current or planned faculty or students from the seven countries covered by the 90-day suspension in Section 3(c) of the order. That’s a reasonable enough ruling, as far as it goes, but it would normally not give them standing to challenge other aspects of the executive order in which they have no concrete interest, such as the 120-day suspension of the refugee program (Section 5(a)), the indefinite ban on Syrian refugees (Section 5(c)), or the provisions of the order requiring future consideration of religious-minority status for refugees claiming religious persecution (Sections 5(b) and 5(e)). Given that the appellate court upheld the injunction against all of those provisions, it had a duty under the Supreme Court’s decision in DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006), to decide whether each plaintiff has standing to challenge each government action. It did not.
The Ninth Circuit panel also concluded, without citing any support whatsoever, that the states had standing to challenge “religious discrimination” under the Establishment Clause of the First Amendment. More on this below, but it is worth noting that the court did not actually end up concluding that the Trump Administration had engaged in religious discrimination; it just found that it didn’t have enough time and evidence to justify reversing the district judge on that issue. A more considered appeal on this question would probably involve a more serious attempt to grapple with the extreme novelty of the argument that the Establishment Clause limits the scope of federal immigration law.
Be sure to read it all, as it includes some criticism of the Trump administration’s presentation to the Ninth Circuit. The question, though, is what will be the most efficient way in which to deal with the legal challenges — to keep fighting them head-on, or to do an end run around these initial obstacles by creating a new EO that sheds some of the potential vulnerabilities. The moot & reboot strategy looks like the smarter way to go, egos notwithstanding.
Update: My good friend Scott Johnson at Power Line argues that moot & reboot is precisely what needs to happen, as the Trump administration has gotten itself boxed into a dead end on the existing EO:
The jurisdictional issue is not frivolous. No appeal lies from a temporary restraining order. The administration should have taken a deep breath and put its case together for a hearing on the preliminary injunction that the States of Washington and Minnesota seek in the district court. The Ninth Circuit holds that the temporary restraining order is equivalent to an appealable preliminary injunction in this case. The Ninth Circuit eagerly wades into the legal issues raised by the States’ claims. …
The Ninth Circuit emphasizes that its ruling only denies a stay of the pending appeal. It pretends not to have decided the case on the merits and reserves its ruling on the religious discrimination claim after making noises supporting it. Don’t hold your breath on that one.
So long as the issues are framed as an appeal of Judge Robart’s restraining order, I find it hard to see a path to victory for the Trump administration. I think the administration would be well advised to pull the plug on the executive order itself or to make a substantial record before Judge Robart in further proceedings that would give rise to an appealable order as soon as possible.
John Hinderaker adds that he will write more along the same lines later today, so — as always — keep your eyes on Power Line.