Washington AG to court: New travel-pause EO is totally like the old one, even with all the “capitulation”
It begins … or rather, It continues. At least that’s what Washington Attorney General Bob Ferguson hopes by asking a federal court to apply an earlier temporary restraining order to Donald Trump’s new executive order that imposes a 90-day pause on admissions from six high-risk nations:
Washington Attorney General Bob Ferguson, who sued successfully to block President Trump’s first entry ban, asked a federal judge Thursday to affirm that the suspension of the initial ban applies to the new one.
Ferguson said Trump’s new executive order imposes many of the same economic and other harms as the first one in late January, even though it is different in important ways. And he said a federal judge, rather than the administration, should decide whether the original freeze should remain in place.
The problems for both sides in this fight is that they’ve both publicly argued the other side’s claim:
The Justice Department has asserted the new order differs from the old “in critical respects,” although before it was inked, White House senior policy adviser Stephen Miller said on Fox News that it would have “mostly minor technical differences” from the iteration frozen by the courts and that Americans would see “the same basic policy outcome for the country.” Ferguson said previously that the administration “capitulated on numerous key provisions that we contested in court.”
In other words, Trump administration attorneys have to argue that it’s a completely different EO while administration officials have said publicly that it’s functionally the same. Ferguson might have the bigger problem here, because he personally claimed credit for forcing the Trump administration into having “capitulated,” but will have to argue to Judge James Robart that Trump did no such thing. This is one reason that attorneys will tell clients to keep their mouths shut about ongoing cases.
Ferguson will have lots of company in court, the New York Times’ Alexander Burns reports:
President Trump’s executive order banning travel from six predominantly Muslim countries faced a new front of opposition from the states on Thursday, as the attorney general of Washington announced that he would seek to block the order from taking effect next week.
Backed by several fellow Democratic attorneys general, Bob Ferguson of Washington said he would ask a federal district judge, James Robart, to extend an order freezing the first version of Mr. Trump’s travel ban and apply it to the updated restrictions the White House unveiled on Monday. …
Among the attorneys general backing Mr. Ferguson on Thursday were Eric T. Schneiderman of New York and Maura Healey of Massachusetts, both of whom dropped separate litigation against Mr. Trump to join Mr. Ferguson’s suit, and Ellen F. Rosenblum of Oregon. Mr. Ferguson and his colleagues, along with Attorney General Lori Swanson of Minnesota, are expected to file updated complaints aimed at taking down the new travel order in the coming days.
The attorney general of Hawaii, Doug Chin, who is also a Democrat, filed a separate lawsuit earlier this week challenging the constitutionality of Mr. Trump’s adjusted order and asking a different court to prevent it from going into effect.
Will the court extend the TRO to the new EO, and will the 9th Circuit uphold the order if Robart does? It’s tough to guess what judges will do, and Robart didn’t seem to mind the publicity the first time around, so it seems at least a solid possibility that he will. The appellate court might have more trouble upholding it the second time around; at least one of their colleagues took exception to the way the first case was handled, asking for an en banc review which would have proceeded had the White House not withdrawn the EO and replaced it with the current version.
This time, too, the Trump administration has some advantages. First, it’s far more prepared for this fight than they were a few weeks ago, having settled their legal team for the case. Second, this EO actually does address the concerns brought up during the previous round, especially with people who already have permission to be in the US (green-card and approved-visa holders). The grounds left for Ferguson et al fall entirely within the executive branch’s authority to determine criteria for initial entry into the US without any of the other confusion. Even if a district court judge issues a TRO, it’s going to be tough for an appellate court to conclude that the state AGs have a high likelihood to prevail on the merits of their challenge on constitutional grounds, given that applicants to enter the US from abroad don’t have any constitutional standing to challenge a postponement in consideration of their applications. With more expert work by the Trump administration’s legal team, the White House should prevail on the merits, but again, they should have prevailed the first time, too.
Eventually, this will probably end up in the Supreme Court. By the time it gets there, we should have Neil Gorsuch on hand for a clear and precedential decision. The issue might be moot by that time, as the Trump administration improves the vetting procedures for visa applicants and refugees, but it might still be a battle worth settling.