State of Washington v. Donald J. Trump
Who’s in charge here?
Since 9/11, 72 people from the seven countries covered by Trump’s temporary and now overturned immigration suspension have been convicted of some form of terrorism. This finding came in stark opposition to the claims from the Ninth Circuit District Court of Appeals that said there was “no evidence” that those countries have produced a terrorist.
According to a report out Saturday, February 11th, at least 17 claimed to be refugees, three were “students,” and 25 eventually became U.S. citizens.
The Center for Immigration Studies calculated the numbers of convicted terrorists from the Trump Seven:
Somalia = 20
Yemen = 19
Iraq = 19
Syria = 7
Iran = 4
Libya = 2
Sudan = 1
And here are the 1,000-plus refugees America has allowed into the country from February 3-11, per the Refugee Processing Center and the State Department:
Syria = 402
Iraq = 340
Somalia = 155
Iran = 115
Sudan = 37
The Center's director of policy studies, Jessica M. Vaughan, based her blockbuster report on convicted terrorists on a 2016 report from the Senate Judiciary Committee's Subcommittee on Immigration and the National Interest, then chaired by now Attorney General Jeff Sessions. The report also found that 380 out of 580 people (65%) convicted in terror cases since 9/11 were foreign-born.
These immigrant terrorists lived in at least 16 states, with the largest number living in New York (10), Minnesota (8), California (8), and Michigan (6). Ironically, Minnesota was one of the states suing to block Trump's order to pause entries from these terror-associated countries, claiming it harmed the state. Additionally, at least two of the terrorists were also living in Washington, which joined with Minnesota in the lawsuit to block the order.
And so, Trump’s temporary suspension of immigration from these seven countries was challenged by the attorney general of Washington State with the State of Minnesota joining. At 3 PM on Tuesday, February 7th, a three-judge panel on the Ninth Circuit federal appeals court, in San Francisco, the most overturned by the Supreme Court in the country aside from the federal circuit in DC, heard oral arguments about the Justice Department’s appeal to reinstate President Trump’s immigration halt in the case of the State of Washington v. Donald J. Trump.
Interestingly, the issue at stake was not whether or not the so-called “travel ban” was constitutional or legal, but whether it would remain suspended, as Seattle’s Federal District Court Judge James Robart boldly did on Friday, February 3rd.
President Trump astonishingly said in a tweet that “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” While many legal experts have claimed that Trump is well within his power to order what he did on immigration, many others have called it sloppy, wrong, and un-American. It seems that the president has the right to do what he did, still, the Ninth Circuit Court of Appeals took it upon themselves to stand up for the liberal left Coast of the country, geared up for making a statement against the out-of-the-gate aggressive Trump administration. Though Trump’s order was hastily drafted and sloppily rolled out, much of what I’ve read and heard as objections to the orders have been emotional or political in nature as opposed to legal or constitutional
In response to Judge Robart’s momentous decision suspending the president’s order, the White House said, “The president's order is intended to protect the homeland and he has the constitutional authority and responsibility to protect the American people.”
Oral arguments over the phone
So with all of this, the stage was set for Tuesday’s initial arguments on this divisive and integral issue.
The Ninth circuit court held an emergency hearing via telephone on Tuesday, February 7th. In the matter of the appellants’ motion to stay the temporary order pending appeal, the at-times fumbling August E. Flentje represented President Trump and the U.S. government.
In Mr. Flentje’s opening statement, he reiterated that President Trump’s temporary pause on immigration from selected countries was necessary because these places are hotbeds of terrorism and have been infiltrated by terrorist groups. The determinations of terrorist states were made by the Obama administration in both 2015 and 2016 based on the existence of and links to terrorist organizations.
The executive order was well within the president’s power and constitutional authority, Flentje reminded the three-judge panel. The 90-day pause was needed to ensure adequate screening of incoming individuals from these dangerous countries. And it is the president’s duty to protect the entire country.
The judges still questioned the pressing need for the executive order. Flentje responded with the fact that individuals from these seven countries have been convicted in the U.S. of terrorist-related crimes. The judges denied these facts and quibbled that they had not been properly submitted in the record. One of the judges countered with the point that we already have processes in place to properly screen these people already. Another asked whether there has been any an uptick in risk recently to warrant such an order?
Flentje made as good a case he could, declaring that the president determined there is a real risk and that this 90-day pause was requested to review existing practices in the name of national defense.
The judges and Mr. Flentje then sparred over the state of Washington’s standing to bring this case to the court in the first place. Trump's attorney did a poor job of convincing the court of the State’s lack of standing.
Noah G. Purcell, Solicitor General in Olympia, Washington represented the State of Washington’s side. He was asked by a judge what irreparable harm was done from the executive order that gives the state standing. Purcell responded that students at state universities were stranded overseas, families were separated, longtime residents were unable to travel to see family abroad, not knowing whether they could return. Lost tax revenue was also referenced as an issue.
The status quo was upset by Trump’s order, declared Mr. Purcell. He reiterated his belief that the federal government has not shown how Washington and Minnesota do not have standing.
A judge tried to drill down on the percentage of Washingtonians affected by the order. The judge suspected it was a very small fraction. However, Purcell countered by saying thousands of people were affected in both Washington and Minnesota.
Another judge asked how this could be a Muslim ban if only about 15 percent of the world’s Muslim population were affected and for only a short amount of time? Furthermore, how can it be religious discrimination of these seven targeted nations have a vast amount of radical terrorist sects?
Purcell responded that only an intent was required in alleging a religious discrimination claim. The whole religious group does not need to be affected for it to be deemed discriminatory. When a judge returned back to the fact that only 15 percent of Muslims were affected for a temporary time, Purcell deflected on that, saying, “he hasn’t done the math on that yet…” The facts still remain clear -- Congress and the previous administration determined these countries have dangerous terrorist elements. And Trump is doing what he thinks best defends the most Americans. That is his job now.
Was it religiously motivated when Obama designated these seven countries as the top exporters of terrorism? Purcell didn’t touch that one, going on to say that this order clearly favored one religious group over another. I suppose he meant Christians over Muslims.
This order was not a ban on all Muslims, Purcell maintains, but he then pointed to when one of Trump’s aides said Donald wanted to do whatever he could that was legal to ban Muslims from entering the country. Many liberals point to the story that Trump asked former New York City mayor Rudy Giuliani how he could legally ban as many Muslims from America as possible. And I suppose that’s a fair point. But the language of the order did not seem to be discriminatory to the Muslim religion in any way. Though perhaps it did prioritize Christians over Muslims in terms of allowing refugees from these war-torn nations.
Do you think the Ninth Circuit Court of Appeals overstepped its role in stopping President Trump’s travel ban?
After this hour-long telephonic hearing on Tuesday, the Ninth Circuit released its opinion on Thursday, the 9th, when the court announced that the emergency motion for a stay pending appeal was denied, in a crushing defeat to the Trump administration.
In terms of the standing issue, the court concluded that “the States have made a sufficient showing to support standing, at least at this preliminary stage of the proceedings.” The court saw that the the States were harmed by the order due to the travel restrictions for certain students and faculty.
For example, “two visiting scholars who had planned to spend time at Washington State University were not permitted to enter the United States; one was informed he would be unable to obtain a visa.” And also, “the University of Washington was in the process of sponsoring three prospective employees from countries covered by the Executive Order for visas; it had made plans for their arrival beginning in February 2017, but they have been unable to enter the United States.”
But let's not forget about Minnesota. The court found that, “Students and faculty at Minnesota’s public universities were similarly restricted from traveling for academic and personal reasons.”
The States therefore have “third party standing,” giving the States the ability to bring this case as a third party, individuals within their state, were directly affected by the ban. Third party standing is generally prohibited in the United States, as detailed in Kowalski v. Tesmer, 543 U.S. 125, 129 (2004), “We have adhered to the rule that a party ‘generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.’” In this case, however, the States were allowed to assert the rights of the students, scholars, and faculty affected by the order.
The court found that “as the operators of state universities, the States may assert not only their own rights to the extent affected by the Executive Order but may also assert the rights of their students and faculty members.” But the court would conclude:
“We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise.”
And so, the court declared that “the States have standing.”
In balancing the hardships and the public interest, the Ninth circuit determined that the federal government “has not shown that a stay is necessary to avoid irreparable injury.” They do at least recognize the Trump administration’s authority in “combating terrorism” and that this “is an urgent objective of the highest order,” still the Court then said, “the Government has done little more than reiterate that fact.”
Amazingly, the court found that there was no evidence “that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States,” despite much evidence to the contrary. So we have to wait for a terrorist attack to happen for it to be a real threat?
Apparently the courts are now involved in our foreign policy and can override the executive branch in decisions of national security.
Finally, the public interest:
“Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages. On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.”
At least the judges recognize Trump as “an elected president.”
A select few concur with the court’s ruling
The media outcry to this issue has been swift and most have been appalled by the decision. But let’s remember that eight out of ten cases from the Ninth Circuit reviewed by the Supreme Court are overruled, according to a 2010 analysis published by the American Bar Association.
After the opinion was announced on the evening of the 9th, Joe Getty of the hilariously awesome Northern California-based libertarian-conservative news radio show tweeted out, “I'm telling you: by the 9th's standard, POTUS has NO authority in matters of immigration unless every judge in USA agrees w the policy.” Judicial activism hard at work on the West Coast!
Ilya Shapiro, Senior Fellow of Constitutional Studies at the libertarian Cato Institute probably put it best though when he tweeted: “The court order is a dog's breakfast ruling on a dog's lunch. Bad lawyering all around.” Beautiful!
Stefan Molyneux, an Irish-born Canadian self-published libertarian writer and podcaster tweeted on the morning of Friday, February 10: “Yeah. Trump is insane to suggest immigration restrictions from a country where people chant ‘death to America.’” Below that was a Daily Mail link with an image of hundreds of thousands of Iranians celebrating their revolution and chanting, “Death to America” while burning American and Israeli flags.
President Trump tweeted out very early on the morning of the 10th: “LAWFARE: ‘Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute.’ A disgraceful decision!” It does a leave a sour taste in one’s mouth.
British journalist and television personality, and no right-winger, Piers Morgan tweeted on the night of the 10th: “I don't agree with the travel ban but it's not a Muslim ban if 85% of the world's Muslims aren't affected.” The editor-at-large of the UK’s Daily Mail took a beating for making sense of Trump’s recent actions and putting things in perspective on Bill Maher’s liberal bomb-chucking show on HBO.
David B. Rivkin Jr. and Lee A. Casey, both practicing attorneys in constitutional and appellate law in Washington, having served in the White House Counsel’s Office and U.S. Justice Department during the Reagan and George H.W. Bush administrations, found that the Ninth Circuit's decision ignored past precedent and in turn had threatened national security.
“The Ninth U.S. Circuit Court of Appeals violated both judicial precedent and the Constitution’s separation of powers in its ruling against President Trump’s executive order on immigration. If the ruling stands, it will pose a danger to national security.” Rivkin and Casey did not mince words. They let their stance be known, going on to write that the decision was based on a muddled understanding of the pivotal theory of standing, pointing out that “aliens have no constitutional right to enter the U.S. In hiring or admitting foreigners, universities were essentially gambling that these noncitizens could make it to America and be admitted. Under the theory of standing applied in this case, universities would be able to sponsor any alien, anywhere in the world, then go to court to challenge a decision to exclude him.” This is indeed a dangerous precedent for the courts to set if this is indeed not reversed by the Supreme Court.
Is the Ninth Circuit merely doing its job or taking it to the president?
The courts are wholly incapable of determining what is right and wrong in terms of our foreign policy. They do not have the requisite resources and are supposed to be involved in determining what is legal and what is not as opposed to what they think is right or wrong. Rivkin and Casey would clarify that, from past precedents, “the judiciary is institutionally incapable of analyzing the complicated matrix for foreign-policy determinations that support such actions. Judges lack access—or any right to demand access—to the full range of information, classified and otherwise, available to the president. They also lack the political accountability that would support taking risks with the security of the American people.” Still, it now appears that a federal judge in Seattle is able to determine our immigration policy in defiance of an elected president. Is this our checks and balances in work? Or is the court stepping in here where it does not belong?
The constitutional attorneys writing in The Wall Street Journal concluded:
“The Ninth Circuit’s decision represents an unprecedented judicial intrusion into the foreign-affairs authority of Congress and the president. The stakes transcend this particular executive order and even immigration issues generally. By removing restrictions on standing and other limitations on the exercise of judicial power, the Ninth Circuit would make the courts the ultimate arbiters of American foreign policy. The ruling risks creating both a constitutional and a security crisis. It must be reversed.”
Only time will tell whether this ruling gets overturned or not or how the Trump administration will deal with this initial blow. Is it more important to get his Supreme Court pick Neil Gorsuch on the highest court in the land to gain a conservative advantage? Or is it more pressing for him to duke this immigration battle out further in the courts?
Julian Zelizer wrote in CNN how Trump just discovered the limits of his power the hard way. She references one article in Politico that concluded how in “interviews, nearly two dozen people who've spent time with Trump in the three weeks since his inauguration said that his mood has careened between surprise and anger as he's faced the predictable realities of governing.” It must be jarring to move from the big business, real estate, and entertainment into the morass that is federal government work. An immovable bureaucracy. A political wasteland. Good luck, Donald.
While Trump’s moves on immigration might play extremely well with his base supporters, “it is a model of presidential leadership that is bound to run into trouble,” according to Zelizer. She went on to write that the courts “have already offered Trump the first check and balance.” How Trump responds to this initial blow will likely be a key insight into how he will be as a president.
“If Trump refuses to adjust and recalibrate on some key issues, there will be a tipping point where he can't overcome the institutional limits of his power, particularly given his weak standing in the national polls.” Will Trump moderate in light of his recent defeat in the courts? Or will he continue down a more combative path?
Speaking of polls, a Morning Consult/Politico poll released on Wednesday, February 8th showed that 55 percent of registered voters supported Trump’s travel ban, compared with just 38 percent who did not support it. The poll was conducted from February 2-4 and surveyed nearly 2,000 voters.
Trump has signaled that he will not appeal to the Supreme Court, instead opting to draw up another executive order aimed at restricting immigration. During a surprise session with reporters on Air Force One, Trump said a “brand new order” could be signed as early as Monday or Tuesday, a Valentine’s Day treat!
“We are actively considering changes or other executive orders that will keep our country safe from terrorism,” a White House official said. The official did leave open the option of appealing to a federal district court, however, without involving the Supreme Court.
According to NBC News, the administration has been working on a new executive order in the several days before the Thursday decision by the Ninth Circuit.
Trump’s alternatives to drafting another executive order are initiate action to reverse the judicial rulings against him overturned by the Ninth Circuit again in an emergency hearing or appeal to the Supreme Court in an emergency hearing. Either result could very well result in further defeat. Whatever decisions Trump makes to press forward with his plans in the coming days and weeks on this, he will likely again be challenged in court.
How is Trump doing so far? A Public Policy Polling (PPP) survey released Friday, February 10th and conducted from February 7-8, revealed that 53 percent of respondents disapproved of President Trump’s performance so far. The PPP survey further showed that 43 percent approved of the president so far, which is up from 35 percent approval two weeks ago. In this same poll, an astonishing 46 percent of respondents favored impeachment and 46 percent were opposed to impeachment of a president just three weeks into his new job.
Has the Trump train finally begun to derail? Or has it simply slowed down for a bit? Guess we’ll find out.
In Review of The Ban, The Arguments, and The Opinion of the Ninth Circuit
- Trump’s order was hastily assembled and rolled out quite sloppily, however, he was well within his rights as the chief executive and commander in chief and he was following through on promises he was making to his base supporters on the campaign trail
- The Ninth Circuit Court of Appeals’ ruling in upholding the stay on Trump’s travel ban was politically motivated and will likely be overturned by the Supreme Court if Trump decides to go down that route
- The media on both the Left and the Right see the court’s decision as a horrific precedent, the courts clearly do not have the authority to determine our immigration policy or to question the president’s foreign policy decisions especially regarding national security
- Trump could very well sign another executive order in the coming days or he could do what he tweeted out after the Ninth’s decision, when he said, “SEE YOU IN COURT”