Updated date:

State of Washington v. Trump Explained

Deborah Neyens is an educator and attorney with a B.A. in political science and a J.D. from the University of Iowa.


On February 9, 2017, the Ninth Circuit Court of Appeals issued a ruling in the case of State of Washington v. Trump, and the internet exploded. People both for and against the Court's decision took to social media to spout off about what it meant and whether the court even had a right to rule on the matter.

Judging by the mind-boggling level of misinformation that was shared, it was clear to me that America needs a refresher course in civics and a primer in constitutional law. So, as an educator and attorney who has studied both political science and constitutional law, I’m here to help.

American Government 101

“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”

Those words aren’t just the lyrics to a Schoolhouse Rock song: They are the Preamble of the Constitution and set forth the general purposes of the American system of government.

The Constitution is the supreme law of the United States. It establishes the three branches of federal government, gives them certain powers, and lays out the parameters within which their powers must be exercised. Those branches and their respective roles are as follows:

  • The Legislative Branch (Congress): Makes the laws
  • The Executive Branch (the President): Implements the laws
  • The Judicial Branch (the Supreme Court and lower federal courts): Evaluates the laws

The role of the judiciary specifically is to interpret the meaning of laws, to apply the law to the facts of individual cases, and to determine if the laws themselves or the manner in which they are implemented violate the Constitution. If the judiciary decides that a law violates the Constitution, the law cannot be enforced.

The judicial branch has three levels. At the lowest level are the district courts, also known as trial courts. Legal cases typically start at this level, where the parties to a dispute provide evidence to support their respective positions and the court resolves the dispute by determining the facts and applying legal principles. All district court proceedings that are not criminal cases are subject to the Federal Rules of Civil Procedure, which establish the process that the courts and parties must follow throughout the entire case.

The next level is the Court of Appeals. If a party to a dispute is dissatisfied with how the case was resolved at the district court level, the party may appeal to the Court of Appeals in the region where the district court sits. The Court of Appeals doesn’t take new evidence; its job is to determine if the district court correctly applied the law to the facts that were presented during the lower court proceedings.

The Supreme Court is the highest court in the land. If a party to a dispute doesn’t like how the Court of Appeals ruled on the case, the party may ask the Supreme Court to review it by filing a petition for review. The Court will look at the materials presented in the petition for review and vote on whether to accept the case. Four Justices must vote yes for a case to be granted review. The Court will then ask the parties to submit written briefs and make oral arguments to support their positions. Like the Court of Appeals, the Supreme Court does not take new evidence. If a majority of Justices decides that the Court of Appeals incorrectly applied the law to the facts of the case, the Court of Appeals decision will be reversed. In the event of a tie, the Court of Appeals decision stands.

State of Washington v. Trump Dissected

With that quick refresher on how American government works, let’s now take a look at the case that is causing so much consternation.

At issue in State of Washington v. Trump is an executive order that President Trump issued on January 27 temporarily banning people from seven Muslin-majority countries and all refugees* from entering the United States.

(*A refugee is not the same as an “illegal immigrant,” more appropriately referred to as an undocumented immigrant. An undocumented immigrant is someone who chooses to resettle to the United States but who has not followed the established legal process for gaining residency. A refugee is someone who has been forced either to flee his or her home country or face persecution on the basis of race, religion, nationality, membership in a particular social group, or political opinion and is applying to the United States for political asylum.)

An executive order is not a law, which – as we learned during our Civics refresher – is the role of Congress. Rather, the order was issued as an exercise of the President’s authority to implement and enforce existing immigration laws. Indeed, the specific law upon which the executive order relies gives the President broad power to suspend the entry of any class of aliens to the country if their admittance is deemed detrimental to the interests of the United States.

The question at the heart of State of Washington v. Trump is whether the President’s exercise of the power conferred to him by statute was invalid because it violated the Constitution. That issue was not decided by the Ninth Circuit’s ruling on the motion for emergency stay.

So What Was Decided?

After Trump issued the executive order, the States of Washington and Minnesota filed a lawsuit against the President, the Department of Homeland Security, and the Secretaries of State and of Homeland Security claiming that the order was an illegal exercise of executive branch power. Among other things, the States claimed that the order violated both the Due Process Clause of the Fifth Amendment** and the Establishment and Equal Protection Clauses of the First Amendment***. The States then filed a motion for a temporary restraining order (TRO), asking the district court to stop implementation of the executive order until the issue of its legality could be sorted out.

(**The Due Process Clause of the Fifth Amendment of the Constitution prohibits the government from depriving individuals of their life, liberty, or property without due process of the law. Due process includes such things as providing notice and an opportunity for a hearing before someone’s rights can be restricted.)

(***The Establishment Clause of the First Amendment prohibits laws that have a religious purpose or that prefer one religion over another. The Equal Protection Clause prohibits the government from discriminating against people on the basis of their religion.)

The Rules of Civil Procedure set out the process by which a TRO may be granted. A party seeking a TRO generally must meet the following elements:

  • A likelihood that the party seeking the TRO will succeed on the merits of the case.
  • A likelihood that the party requesting the TRO will be irreparably harmed if it is not granted.
  • A showing that the irreparable harm to the moving party if the TRO is not granted outweighs the potential harm to the other party if the TRO is granted.
  • A showing that the TRO is in the public interest.

In State of Washington v. Trump, the district court granted the TRO based on findings that the executive order was inflicting significant and ongoing harm on a substantial number of people and that the States likely would be able to prove that it was illegally issued in the first place.

Trump then asked the Ninth Circuit Court of Appeals to for an emergency stay of the district court’s order granting the TRO. A stay would have allowed the travel ban remain in effect while the court determined whether it was legal. While TROs generally are not appealable, in this case, the Court of Appeals said it would review the matter anyway.

On February 9, a three-member panel of the Ninth Circuit Court of Appeals issued a decision upholding the district court’s TRO. The keys points of the court’s decision are summarized as follows.

The Ninth Circuit Court of Appeals's Decision

  1. Trump argued that the States did not have standing to sue. The Court found that the States did have standing to sue because the executive order harmed their public universities by restricting faculty and students’ ability to travel for university-related or personal reasons.
  2. Trump argued that the executive order could not be reviewed by the judicial branch. The Court rejected that argument as having no basis in legal precedent and as being “contrary to the fundamental structure of our constitutional democracy.” (See American Government 101 above.)
  3. The Court found that the States likely would win on their claim that the executive order violated the due process rights of the Fifth Amendment. The Court also noted that the lawsuit raised serious allegations regarding First Amendment violations based on evidence of Trump’s own statements of his intent to issue a “Muslim ban,” but said it reserved its right to consider those claims at a later point in the proceedings after the parties had an opportunity to fully brief the issue.
  4. The Court further found that harm caused by the travel ban – which separated families and stranded residents abroad – outweighed the harm to the government by enforcing the district court’s order, which essentially put the country back in the same position it was before the executive order was issued. The Court noted that Trump presented no evidence of a national security threat that required immediate reinstatement of the ban.

What’s Next?

The executive branch has a number of options now that the Ninth Circuit has denied the motion for an emergency stay:

  • It could ask the Supreme Court to review the matter.
  • It could ask a larger panel of judges from the Ninth Circuit to reconsider its request for an emergency stay.
  • It could dismiss its appeal of the district court’s order and continue to litigate the case on the merits at the district court level. As noted above, the issue at the heart of the case is whether the executive order violates the Constitution.
  • It could write a new executive order that corrects some of the due process issues that the Court found to be problematic.

In the meantime, refugees and people from the seven countries targeted by the executive order may continue to enter the country.


On March 8, 2017, Defendants-Appellants voluntarily moved to dismiss the appeal, and the court issued an order granting the motion and dismissing the appeal. The President then revoked the initial executive order and issued a new one with a revised travel ban. That second executive order is subject to ongoing legal challenges.

This content reflects the personal opinions of the author. It is accurate and true to the best of the author’s knowledge and should not be substituted for impartial fact or advice in legal, political, or personal matters.


Brian Leekley from Bainbridge Island, Washington, USA on February 07, 2018:

Eric, I used the phrase you quoted, so I'm guessing you intended to say Brian, not Bill. To my understanding, someone who gives corporations even more inordinate and unconscionable powers is by definition a right-winger. Laws, precedents, and lawyers for the parties to a case give judges the legal niceties to excuse their decisions, whatever their actual motives. I imagine that Supreme Court judges, whatever the details of a case, consider what is needed to promote the general welfare, secure liberty, and insure domestic tranquility from their class perspectives.

Eric Dierker from Spring Valley, CA. U.S.A. on February 06, 2018:

Bill I really like your well stated position. But then you devolved. We all know that parties are plaintiffs. Ideologies can not bring a case to court. You have to have discernible interest and be a party with that interest. Why did you just mess up your reasoned position with this rubbish?: "giving its right-wingers excuses to give corporations inordinate and unconscionable powers." That is not law and reflects no such true position. "Right-Wingers" are not and never will be a party to a lawsuit.

Brad on February 06, 2018:


It is well known that the ninth circuit court is liberal, and most of its decisions have been reversed by the Supreme Court.

What you failed to mention in this article is that the president and not the congress makes the decisions on protecting the country on a daily basis.

The Travel Ban was for ninety days, and that is hardly a burden.

The purpose of the ban was for national safety, something which the liberal ninth circuit cares little about.

The countries covered by the ban were only 6 of 47 Muslim nations, and there cannot be construed as a Muslim ban which is what the ninth circuit court used to make its decision.

These six countries were in the midst of war, and the refugees couldn't be properly vetted as these countries didn't have the records necessary to do the vetting.

What is 90 days versus the possibility of having terrorists embedded in the refugees. And the terrorists even boasted about doing that.

Again, this should be the president's call, and national safety especially in retrospect to the terrorist activity on US soil is valid.

The ninth court took a very liberal view on the standing to sue, using the University. How detrimental could it have been to wait 90 days.

90 days as in Temporary!

The executive branch is an independent branch of the three branches of US government. And there have been little challenges to the executive branch. This can be confirmed as they have to go back to the 1800s to get a precedent on the extent of the powers of the president, as they use Marbury versus Madison.

The ninth circuit court is much like the legal prowess of ex FBI director James Comey. Short on the law but large on politics.

Can you defend his interpretation of Gross Negligence requiring the element of intent or mens rea?


Which amendment was better the 18th, or the 21st?

How about the 13th amendment that changed apportionment as a requirement among the states?

How about the 14th amendment with equal protection, yet it didn't give Blacks the right to vote.

That was partially done by the 15th amendment that gave only Black Men the right to vote.

Women of any color would have to wait 50 years until the 19th amendment was passed.

Also another reason to have an amendment was the SCOTUS decision of forcing gay marriage.

Marriage is not an explicit right under the constitution, and it was also not a federal function or under a federal law. It was the 10th amendment right of the states where marriages were law, and not that of the federal government. Because it was not part of the federal law, then the US Supremacy Clause could not be used to usurp the rights of the states under the 10th amendment.

In addition, during the last 100 years, the SCOTUS has slowly but surely taken more and more out of the state rights and made it a federal matter. They did most of this by misusing the two sentences found in the Interstate C0mmerce Clause. This clause was valuable to use apportionment to make sure interstate travel wouldn't tax products unfairly as it merely traveled through a state to a final destination.

SCOTUS has also never ruled for any case made against the 13th amendment. And while an amendment by definition cannot be unconstitutional, the application of that amendment can be decided on its constitutionality. As it was done for the death penalty.

The 13th amendment didn't give the Congress the right to tax income, as that was already in the constitution's power to tax. It did however remove the stumbling block that would have prevented the same tax be used across the country, by removing apportionment.

Brian Leekley from Bainbridge Island, Washington, USA on February 06, 2018:

At the center of the dynamics of Constitutional law are we, the people of the USA. Our responsibility is to measure applications of the Constitution against experience and reason. Americans who conclude that something in the Constitution is unreasonable and unjust may, under the principles of the Bill of Rights and the Constitution's amendment process, argue, organize, and peaceably assemble and petition to have that repealed, that is, deleted. For instance, there is currently a social movement for removing the exception (prisoners) from the 13th Amendment abolishing slavery in the US. Or citizens might conclude that an unreasonable and unjust law is on the books because of a hole in the Constitution. An example was the ridiculous premises the Supreme Court used in its Citizens United decision, giving its right-wingers excuses to give corporations inordinate and unconscionable powers. There is a movement to amend the Constitution with clarifying wording. Effective pressure from voters leads to federal and state lawmakers passing amendments to the Constitution.

Deborah Neyens (author) from Iowa on August 09, 2017:

Thank you, Flourish.

FlourishAnyway from USA on March 06, 2017:

Your piece was clear, unbiased and professional. I appreciated your summary.

Brad on February 17, 2017:

The 9th circuit is liberal and they have some of the worst decisions in the country. The issue before the court is really Due Process versus National Security. Putting the American people at risk of future attacks from the same improperly vetted people from these areas, as those for example in the San Bernardino Terrorist Attack is not only wrong but irresponsible.

These refugees don't have a right to demand entry into the country, and they also discriminate against those people that are going through the process following existing immigration laws. 2nd, it is a 90 day suspension on refugees from 7 out of 47 Muslim countries so it is not a Muslim ban, it is necessary for the US to properly vet these people, as the failed in the San Bernardino couple. ISIS has boasted that they will infiltrate these refugees, and the EO purposely didn't give ISIS time to do that. It was the proper thing to do to protect the country and the people here.

People wait years going through the existing immigration process, and then after all that most of them a rejected because of country quotas. These refugees are just going to become financial burdens on the taxpayer. And remember what only 19 terrorists did on 911. So how many terrorists are you will to have come with the millions of refugees. Look what only two improperly vetted immigrants did in San Bernardino?

And all this talk about due process, we don't have due process for the legal immigrants that can't sneak across the border and be treated like de facto Americans, especially in CA, Or, and WA. Driver licenses for illegals, free education, free medical and welfare. Plus tipping the scales with the 14th amendment baby mill American Citizenship.

There is no due process in the Federal Income Tax, and there is no due process under the Patriot Act passed during peacetime.

In the last 100 years the federal courts have diluted the US Constitution to where anyone can actually see anything that inspired the founders of the US to create it.

This is especially true of the SCOTUS and their simple majority 5-4 decisions. They intentionally misinterpreted the Interstate Commerce Clause and allowed the 16th amendment to be applied to Federal Income Tax, and for a small strong central government envisioned by the founders, to be grown beyond recognition into a bloated impotent government that makes everything a federal case, and kills most of the 10th amendment state rights slamming it with the Supremacy Clause.

The abused the 14th Amendment and Equal Protection. This amendment didn't give the Black Men the right to vote, and this amendment didn't give women the right to vote. Neither did any decision of SCOTUS. What gave them the right to vote were two new amendments, the 15th and the 19th. And it took 50 years for women to get the right to vote after it was given to Black Men.

So let us get real on the constitution and the 14th amendment due process and equal protection clause.

We need changes in the federal courts and especially in SCOTUS. The founders made a mistake leaving the details of the federal courts up to congress to build. How do you get checks and balances from the three branches of the government, when one branch, the legislative branch is responsible for the Judicial Branch. History shows that it doesn't work. And improvement would be to take the SCOTUS simple majority vote and change it to something higher like 6-3 or even better 7-2. How can you disregard the opinion of four SC justices and say this decision is the law of the land. Not convincing more than 5 judges cannot possibly put the underlying legal issue to rest. And in the case of Roe v Wade, apparently even a 7-2 decision doesn't resolve the underlying legal issue as it has been brought up in every presidential election since then.

Why aren't you upset with the Patriot Act and its departure from the 4th, 5th, and 14th amendments? Where were all the protests about it?

Brad on February 17, 2017:

Who believes that there were NO Terrorist Attacks in the US during the Obama presidency? I believe that the reason that there have been NO Terrorist Attacks in the US since Donald Trump won the election is because it would reinforce the Trump EO temporary 90 day trvl ban on 7 countries that have terrorists boasting they will infiltrate the refugees that Obama started bringing over, and Hillary Clinton wanted even more to come over, but she lost the election.

The rest is stated in my original comment.

James C Moore from Joliet, IL on February 17, 2017:

I appreciate your efforts in writing this timely hub. I especially appreciate the fact that you provided a link to the actual decision. This saved me time from going on line looking for this on Findlaw, LLI or some other resource. I read the case and believe your analysis is accurate. As you mentioned, the decision was about keeping in tact the temporary restraining order requested by the states of Washington and Minnesota. With regard to some other comments I respond briefly:

-No, this isn't a "state's rights" case. Washington and Minnesota first had to demonstrate that they had "standing", the legal right to bring a case in the first place. The court decided they had standing because their state schools would be afflicted by this order.

- One commentator mentioned that due process rights don't extend to non citizens. WRONG! The court in State of Washington v Trump spoke of previous Supreme Court cases that clearly demonstrate everyone is entitled to due process.

-Having said all of this I'm glad this subject is getting public debate in the hub pages forum.

Catherine Mostly from Seattle, WA - USA - The WORLD on February 12, 2017:

Brad, if they are not being vetted properly, then why has there been no terrorists attacks in our country for eight years? You really think terrorists started attacking again after Obama became president JUST because he won the election? I'm pretty sure they would have continued no matter who was voted in. That's just fear-based, right-wing propaganda meant to keep your mind in bondage & fear for GOP agendas.

Our vetting process obviously already works; and our people in those positions have obviously been doing their jobs. Just because refugees are given a fast track does not mean that they are not being vetted. We're not just rounding them up and letting them in - catch a clue.

Brad on February 12, 2017:

Duane, I take the trouble to write a detailed comment and that is all you have to say. I should have wrote a hub. \

The judges were all liberals and just because GW Bush appointed one of them, it was two democrats that got them in. The 9th circuit is liberal city as are the west coast states.

Your comment is that we wait till we see how many terrorists come into the liberal fast track refugee program. The US has been reactive rather than proactive and it resulted in Pearl Harbor and the bombing of the WTC in the 90s, and 911.

The 7 countries are where the terrorists are actively fighting now, and when you say the EO violates the 1st Amendment you must be claiming these are religious countries or what.

Your ideas are what makes this country weak and vulnerable to attack. The terrorists didn't attack after 911 until Barack Obama was president. He is a closet Muslim and terrorists of late in this country were Muslims. And the Muslims in this country say these terrorists, although claiming to be Muslims don't represent Islam. So this not a religious test, but a test to filter terrorists from coming right into our country. They can't be vetted properly under our existing vetting rules, so a temporary 90 days was to develop a more effective vetting process. Seriously, these refugees can't wait 90 days. They don't belong in the country at all. The Middle East is full of Muslims and empty space. Let the UAE spend some of their fortune developing a safe zone there.

bye bye

Catherine Mostly from Seattle, WA - USA - The WORLD on February 11, 2017:

"if 10 terrorists come into the country after the lift of the EO and hijack a plane, or blow up a building... it really is on them, and all this incredibly biased political and reckless effort to make Trump look bad, and ineffective, at every turn."

Right, and where are all the terrorists that Obama has supposedly been freely letting in for eight whole years? One of the reasons for this ruling is that they could not prove that there was a pressing need for it - all they have to bring forth as 'evidence' is the wild speculation & accusations that won him this election.

Judges should be the last ones swayed by Trump's fake news. Trump makes himself look bad at every turn.

Duane Townsend from Detroit on February 11, 2017:

19 terrorists entered the country in 2001 from countries not on Trump's list of 7.

Trump's list of 7 are countries where zero terrorists have originated. None.

The judges, who ruled unanimously, and were appointed by Presidents of both parties, were correct.

Trump's ban was a religious test. It violated the 1st amendment.

Ken Burgess from Florida on February 11, 2017:

Deborah "Ken, I don't see that sort of slippery slope ensuing here. There are some pretty extraordinary facts associated with this case that takes it out of the norm."

I understand that point, in a rational world with rational people, there would be no attempt to take it that next step, to press the advantage...but there are those who will not act rationally or in the best interests of America, that will pursue the worst avenues that countering this EO offers. I understand the decisions made by the courts up to this point fairly well.

But to be clear, the Courts have stepped in and said we have authority to stay the POTUS on a matter related to National Security, that does not directly effect American citizens in any meaningful way.

What is being argued to stop this EO, really is kind of absurd, because the State of Washington doesn't know what the risks are, the Judge who initially stayed the EO didn't know what the reasoning was behind the EO... what does anyone outside of the Executive Office, CIA, NSA, etc. know? Little to nothing. And they aren't going to go out of their way to explain it to a judge who thinks he has the right to decide for the entire nation what is, and is not, a matter of National Security.

So, Trump is exactly right when he says, if 10 terrorists come into the country after the lift of the EO and hijack a plane, or blow up a building... it really is on them, and all this incredibly biased political and reckless effort to make Trump look bad, and ineffective, at every turn.

Duane Townsend from Detroit on February 11, 2017:

Bradmaster...Why didn't you just write your own Hub?


Brad on February 11, 2017:

Wow, citing Marbury vs Madison tells you one thing the Executive Powers have not been tested in the Judiciary for a long time. It wasn't until president Bush and president Obama used the EO in place of the Congress mainly because the Congress was gridlocked or wouldn't agree with their goals.

President Obama took more advantage of it then President Bush but both were uncontested by the courts.

President Obama chose to not enforce the immigration laws and he even took the states that were forced to implement them by themselves to court. Yet, the federal courts didn't seem to care.

It was clear that the DOJ and the FBI were not doing their constitutional duties, but again the courts said nothing.

Now the federal courts are giving favor to refugees and immigrants that have no right to be in the country except through privilege. The courts have given illegal aliens de facto American rights of US citizenship. Here in California they are even given driver's licenses. As well as Los Angeles is a sanctuary city that interferes with deporting illegal aliens that have been convicted and served their criminal punishment in the US.

The 9th circuit federal court has always been a liberal court, and it is not the keep of the US Constitution, it is to favor the liberal agenda. To allow non citizens to have rights that are not even given to American Citizens is not upholding the US constitution and unfortunately the terse writing of the US constitution are not the law of the land. The law of the land is the interpretation of the US Constitution by the SCOTUS. The SCOTUS has a history a very bad decisions, and especially those of the 5-4 court. The Supreme Court as it was implemented is not that of the founders of the constitution. The founders gave congress the job of implementing the SCOTUS and that clearly was a mistake.

FDR has 15 Supreme Court justices during his time, and now we have 9. The problem is the simple majority. shouldn't the law of the land be more decisive than 1 vote. How can 4 SC justices be ignore just because 1 more justice disagreed with them. This flaw has allowed the SCOTUS to make some very bad decisions. A 6-3 or 7-2 even better would produce better more decisive decisions.

How many beneficial decisions can you name in the history of the SCOTUS?

After freeing the slaves, why did we need a 15th Amendment. The constitution should have provided for it, and certainly equal protection would have resolved the issue, but it didn't. And why did it take 50 years and the 19th amendment to get women to be able to vote. Surely they would have been covered by the initial constitution, but they were not.

The equal protection clause was impotent, at least until the liberals wanted to use it for the gay movement. and Gay marriages which was original a state right, but the SCOTUS took it away from the states and made it a federal issue. The point here is that you can't really quote the constitution for an answer, And Stare Decisis is lame.

Back to the Trump EO.

First of all, the states expectation and impact based on non citizens and their families is outweighed by the duty of the president of the US to protect the country.

Next it is a temporary order, and immigrants going through the current immigration laws have had to wait years in many cases. But these refugees that ISIS has vowed and even bragged to infiltrate should be fast tracked and put on the US tab by using the due process clause. That is as lame as Justice Roberts saying the Obamacare was valid because it was a TAX.

We have TSA treating every American citizen as a Terrorist and they are forced to comply with ridiculous regulations and yet there is no cry in the courts for it to be unconstitutional. In addition, how was it constitutional for the congress to pass the Patriot Act in peacetime. Where are are 4th and 5th amendment rights. Where is the equal protection for immigrants that are going through the legal process of entering the US according to the existing immigration laws.

Where is the equal protection in the Roe v Wade when the father has no say in abortion or the life in process. Where is the protection of the constitution that all men are created equal, when the SCOTUS decison allows the creation to be aborted. This is not a religious issue but one of constitutional protection of the other lives, the fetus and the father.

National Security should outweigh the objections to the Travel Ban, as was the passing of the Patriot Act and the TSA regulations.

What happened to the constitution that can put national security as a priority. True the DOJ sent flunkies to the 9th circuit because the US AG had not been confirmed

Nevertheless, the court could have used common knowledge, known also as judicial notice to recognize the San Bernardino, Orlando and other acts by people that came from these countries without better vetting. That is the purpose of the 90 days of the EO to get better vetting for these refugees as these 7 countries don't really have this information for the US to access.

Just as the Supremacy Clause of the US Constitution overrides the States Rights of the 10th Amendment, so does National Security.

It is a mere license at best for foreigners to legally get into this country, and the 9th circuit elevated it to a right. Yet, we routinely for many decades have used quotas for different countries. And the federal courts were silent.

The same principles of due process and equal protection have always been available but not used in these circumstances, why are they now being used.

Just as there is a big difference between supporting a TRO, and a PRO as an injunction, the EO here is Temporary.

The 9th circuit has misinterpreted this case. Additionally, why should the states be given standing to sue on a National Security Issue.

Reading the US constitution is not the same as what it stands for.

The failures of the US constitution have been the result of political leaning by SCOTUS. They have continued to misinterpret the Interstate Commerce Clause allowing the founders vision of a small central government to the expanded bloated and impotent government of today. yet they are the law of the land.

The US constitution was developed on the premise of a small central government. The federal government would deal with the conflicts between the states, and represent the country to the rest of the world. One of the key ingredients in protect us from the states was apportionment. This was nullified when congress allowed the 16th amendment to ignore apportionment for the US income tax. The power to tax was already in the constitution, but it had to be apportioned. Gone thanks to SCOTUS.

The EO designated 7 countries which have active terrorists, not because they were Muslim as there are 47 Muslim countries.

It again is Temporary.

And for National Security. what constitution would deny that EO. Only the one that lives in the minds of liberals who think more of the terrorists than they do of the American Citizens.

Catherine Mostly from Seattle, WA - USA - The WORLD on February 11, 2017:

Thank you so much, Deborah. I remember basic HS history classes & talking about the 3 branches of government and the checks & balances they were meant to provide for each other. It is why the President gets to veto what comes through Congress, if he wants to. I was beginning to wonder if they worked until this court case came up, ha!

I haven't followed the case closely, I'm pretty much trusting people in state or federal governments to do their jobs. But, I was surprised to find myself reading your entire hub - which is not normal for me with detailed law explanations. Thanks for making things easier to read & understand.

Please don't put too much into the biased accusations. I don't think its possible for T-fans to look at anything objectively, anymore. This hub was about a Trump thing that went south - of course its going to be seen as you being biased. I've been especially surprised with Eric's extreme attitude flip. I swear he's been taken over by an alien, ha! (jk)

I hope you keep these up throughout the next four years. I have a feeling there will be more situations like this. Many of us are far more interested in what's going on than we used to be. We're gonna need more, preferrably not from an inexperienced amateur accidentally creating more fake news.

Larry Douglas Clifton from Tampa Bay area on February 11, 2017:

Just another anti-Trump rant from a Democrat.

Duane Townsend from Detroit on February 11, 2017:

A well constructed, well written Hub.

Deborah you've provided a valuable public service.

Thank you for your time and patience to spell this issue out.

Eric Dierker from Spring Valley, CA. U.S.A. on February 11, 2017:

I was trying to check but it was my impression that it was a "de Novo" type hearing. Is the order on a TRO in a lower court presumed correct? Apparently that was the test applied here.

I think we flushed out the issues in the case at hand.

On a structural basis this has me a bit worried. If the test is balancing on the harm to states' citizens, but only a court can preliminarily decide what a "clear and present" danger is to the nation, that seems lopsided in our separation of powers notion.

I understand that this is very much just temporary and the harm is minuscule in the fed gov waiting because they can do it other ways.

But something does not set well. Like, do courts have a right to review military action in Iraq prior to us taking action? Or could a district judge halt deployment of naval forces out of Breverton because of harm to families of the deployed? Or even harm to the economy because

thousands of sailors leave.

Marie Flint from Jacksonville, FL USA on February 11, 2017:

Wow. I've never cared for the legal process . . . this is right . . . this is wrong . . . bicker, bicker, bicker. However, Deborah held my interest and presented the case in a systematic analysis. Kudos!

Being a second generation American from a small, rural town, the idea of banning immigrants is a concept still foreign to me. My father read the Swedish newspaper to his grandmother as a boy, and my maternal grandfather wrote letters in Slavic to at least one friend in Czechoslovakia. Yet, I can understand the President's concern. How do you screen students for possible criminal intent? Maybe hire the top known psychic readers to evaluate each individually for aggressive potential? Still there is free will. A student, regardless of background, can choose to stand for peace (or not) at any time.

The whole scenario brings to mind the old saying, "You catch more flies with honey than with vinegar." What is the potential of being a nation with a positive influence in the world by welcoming those who want to come here warmly and with respect? Are we so unsure of ourselves that we fear harm from the interaction of another culture? We have to get out of that fear vibration and look toward the future.

As for the State of Washington, I wonder whether this is really an argument about any kind of right, or whether this is again fear, only of not having the money these foreign students bring.

I'm glad I'm neither the President nor one of the students being delayed, but if I were, I'd remind myself, "Patience . . . all is working in accordance with a higher purpose."

Deborah Neyens (author) from Iowa on February 11, 2017:

Nicely summarized, Uncle Pat. Thank you. :)

Pat Clark on February 11, 2017:

I am the author's uncle, and not a lawyer.

I appreciate what you have written. However, so many people suffer from reading comprehension issues, that I summarize your summary as follows:

The court did not say the Order was illegal. It said it might be - let's slow down and figure it out.

Deborah Neyens (author) from Iowa on February 11, 2017:

Eric, I may be mistaken on the burden of proof since it's been awhile since I reviewed the finer points of procedure, but I think the burden was on the government because they were seeking to stay the district court's order. Now the burden will shift back to the plaintiffs (the states on behalf of their universities, et al.) to prove their case on the merits.

Eric Dierker from Spring Valley, CA. U.S.A. on February 11, 2017:

I think this catch 22 language is probably fair. (succeeding on the merits - is backwards as the burden is on the state not the Gov.)

"nor has it shown that failure to enter a stay would cause irreparable injury". Yes indeed the Fed. Admin. can prevent entry and suspend until full vetting any individual. So there really is no harm in temporarily enjoining the action. The circuit court decision may stand although it only has a statistical 14%? chance of succeeding through SCOTUS.

I have always thought that the test of harm to the actor is fair.

One of the cool things about an EO is that it can literally be taken back and filled with another. What was that "overs" in volleyball?

Deborah Neyens (author) from Iowa on February 11, 2017:

Thanks peoplepower73. I added the link to the order at the top of the article, but it's in text and a little difficult to spot. It's always good for people to read the court's actual words. I hope other people go back and read it themselves after reading my explanation.

Mike Russo from Placentia California on February 11, 2017:

Deborah: Thanks. I didn't know what to call them. It is somewhat redundant with what you wrote, but I found it very interesting and thought it might add some additional understanding, by reading the actual language of the findings. Here is the actual link to the ruling, if you are interested.


Deborah Neyens (author) from Iowa on February 11, 2017:

Thank you, Eric. I am enjoying our discussion.

Deborah Neyens (author) from Iowa on February 11, 2017:

Thanks for pulling out those excerpts, peoplepower. To be clear, those aren't the states' summaries of the EO. Rather, they are the court's findings on the issues before it.

Mike Russo from Placentia California on February 11, 2017:

Deborah: First let me say that I thought your article was very informative and clearly written. It inspired me to find the actual ruling. Below are the States' pertinent summaries on the EO.

Reviewability of the Executive Order -

"The Government contends that the district court lacked authority to enjoin enforcement of the Executive Order because the President has “unreviewable authority to suspend the admission of any class of aliens.” The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches—an uncontroversial principle that is well-grounded in our jurisprudence."

Legal Standard -

"Our decision is guided by four questions: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”

Due Process -

"The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Claus."

Religious Discrimination Order -

"The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating."

The Balance of Hardships and the Public Interest -

"The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above"

Eric Dierker from Spring Valley, CA. U.S.A. on February 11, 2017:

Ms. Neyens it is a pleasure learning from you as we go. You are clearly a very bright legal mind. Absolutely no rancor or ill will. Youngsters should learn much from your decorum.

Deborah Neyens (author) from Iowa on February 11, 2017:

Eric, civil rights and states rights are two different legal concepts. And, what does "suspend entry" mean if not temporarily ban?

Deborah Neyens (author) from Iowa on February 11, 2017:

Ken, I don't see that sort of slippery slope ensuing here. There are some pretty extraordinary facts associated with this case that takes it out of the norm. It will be interesting to see how this case plays out. I've always been a constitutional law buff, so seeing this play out in real time (versus the dusty tomes of the law) is fascinating to me.

Eric Dierker from Spring Valley, CA. U.S.A. on February 11, 2017:

On the societal issue we have rulers who were appointed rather than elected.

So Bush appoints a man to the bench. Now this Jurist can go against the Executive branch without a state right to do so? No one has even pled that the order exceeds the POTUS authority. They are furthering this case on the basis of state civil rights vs the United States - The President et al. These State attorneys even labeled it "civil rights". State of Washington vs. Donald J. Trump, et al, Case Number 17-CV-00141-JLR, TRO Hearing, Civil Rights Case, 02/3/2017.

Where and when did the word "ban" come from. There is absolutely no such language in the EO, The court made it up. 100% they made it up. It makes for headlines but is exactly fake news that the 9th circus bit into.

Ken Burgess from Florida on February 11, 2017:

ErikDierker "Just harm to it's citizens is just the damage caused. If that was the test any declared military hostilities could be prevented. What "violation" caused it? The only possible violation the State can argue is exceeding United State's authority."

Exactly the point I was trying to make... there can't be any validity to the position of the State, for IF there is, then EVERYTHING... ICE/Feds deporting illegal aliens, the President taking any type of military action, anything and everything coming from the executive office is fair game, and will fail the test based on the precedence this would set.

It isn't this particular EO, or this particular President, that is the primary concern... it is where it goes from here, and what it sets up for the future.

Democratic politics means that “the people” deliberate and decide that question. In America the people do that through debate, elections, and representative political institutions. "Elections have consequences." And for the past 8 years now, the balance has shifted from Democrats having the majority in Congress and the Presidency... to the Republicans. The people chose.

When the Judiciary steps in and counters the Executive Branch, not on a permanent law, not on a issue regarding citizens even, but on a short termed ban for the purposes of National Security... the judiciary has in effect declared that judges claim greater knowledge and exercise the power to decide, to supersede the President. In all matters.

The citizens , indeed the President, of this democratic republic are deemed to lack the competence for self-government, by their act to do so.

Deborah Neyens (author) from Iowa on February 11, 2017:

Thank you, Bill. I wanted to present a balanced overview because polarity does not lead anyone to greater understanding.

Bill Holland from Olympia, WA on February 11, 2017:

Great summary, Deb, and in no way did I feel you were biased in your summary of the applicable law.

Deborah Neyens (author) from Iowa on February 11, 2017:

Hi Eric. I added a link to the decision at the top of the page so people can read it for themselves if they are so inclined (and I presume you already have). The Court did address the issue of the states' standing to sue pretty extensively. Here are a couple of excerpts: "The States argue that the Executive Order causes a concrete and particularized injury to their public universities, which the parties do not dispute are branches of the States under state law." And, "Under the “third party standing” doctrine, these injuries to the state universities give the States standing to assert the rights of the students, scholars, and faculty affected by the Executive Order." Hope that helps your understanding of the issue.

Eric Dierker from Spring Valley, CA. U.S.A. on February 11, 2017:

I was working off this as the rule; "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

And then I was figuring that the only way the State of Washington could object to a seemingly lawful order by the federal gov. (United States) is that the United States had infringed on a right reserved to the states.

Otherwise what is the standing of the State to object.

Just harm to it's citizens is just the damage caused. If that was the test any declared military hostilities could be prevented. What "violation" caused it? The only possible violation the State can argue is exceeding United State's authority.

Deborah Neyens (author) from Iowa on February 11, 2017:

Eric, a states' rights case is one in which the issue is whether a particular political power is reserved to the states under the Tenth Amendment or within the province of the federal government. This case has nothing to do with states rights. It's about whether the POTUS properly exercised his power under the immigration act or whether that exercise of power violated the Constitution (specifically, the First and Fifth Amendments). In this case, the states filed as aggrieved parties who claimed they were adversely impacted (by harm to their state universities) as a result of the executive order. Just as the states filed a lawsuit, a company that was harmed because its workers were stranded overseas by the order could have filed a similar claim. (And maybe some have; I know there were several dozen lawsuits filed around the country as a result of the order. This one just happened to be the first one to make it to a TRO ruling.)

Deborah Neyens (author) from Iowa on February 11, 2017:

The Constitution establishes a system of checks and balances so that no one branch of government has unfettered power. Yes, the executive branch has broad authority on matters of national security, but the judicial branch is in place to ensure that power is not abused. It isn't even a close question on whether the action is reviewable by the courts.

Eric Dierker from Spring Valley, CA. U.S.A. on February 11, 2017:

Deborah, perhaps it is me who is mistaken. A state files a lawsuit to prevent what the federal government is doing to their state without their consent and that is not a state's right's case?

I would see more clearly had the citizens of Washington filed the complaint but the executive of the state filed it against the executive of the federal.

A state mandating through the court how the federal government is run.

Ken Burgess from Florida on February 10, 2017:

I see your point(s) and trust me, I have heard very similar arguments, and read similar arguments, by smarter people than me, lawyers, former AGs, Judges...

But none wants to tackle head on that this was an executive decision, dealing with national security, dealing with non-citizens. So in essence, it isn't in the realm of some court to stick its nose into the matter and stay anything of this nature.

If this stands, then essentially the same argument can be made, against ANY executive decision, for any reason.

More importantly, projecting into the future, where CAN this lead?

Should the POTUS lose on this matter, it will invite, embolden, plenty more opposition to his legal powers and authority, this will lead to de-facto power going to the courts, eventually... and this in turn will aid in the facilitation of the International Court of Justice (the U.N), the ISDS, and other International bodies having ultimate authority and rule over all things in America.

The continued deterioration and demise of the three pillars of our government, and the continued erosion of sovereign rights, nationality, and liberties that go with it.

Deborah Neyens (author) from Iowa on February 10, 2017:

Eric, I've read your comment a couple of times and still am not understanding what you are trying to say. This isn't a states rights case, for one thing.

Deborah Neyens (author) from Iowa on February 10, 2017:

Ken, sorry if I came across to you as biased. I wasn't trying to opine on the correctness of the court's order, but simply to summarize the basis on which it ruled. The question yet to be determined is whether the POTUS executed his powers in a lawful manner.

Eric Dierker from Spring Valley, CA. U.S.A. on February 10, 2017:

That is very well done and your position becomes more clear. Truly you do not cite Marbury. Marbury is wonderful in this time. Admonishing folks to stay on their 1/3 part of government. Not on all fours even close. Nothing to do with states rights. It seems that maybe some of our legal folks have been quoting this case so long that they forgot what it really stood for. Marbury is 100% Fed on fed. Absolutely no state's interest issues.

Deborah Neyens (author) from Iowa on February 10, 2017:

Thanks for sharing your perspective, Eric. However, I stand by what I wrote. The order uses phrases like "suspend entry into the United States" for a period of 90 days or 120 days. The meaning is the same as "temporarily banning them from entering," the words I used. Also, as for the judiciary being responsible to interpret the meaning of laws, that is absolutely their role. That principle goes back to 1803 and the decision in Marbury v. Madison written by Chief Justice Marshall: "It is, emphatically, the province and the duty of the judicial department to say what the law is. Those who apply the rule to particular cases must of necessity expound and interpret that rule." Even the government's own website states that it is the role of the courts to interpret laws.

Ken Burgess from Florida on February 10, 2017:

While not inaccurate in any definitive means on any particular point, there is certainly bias in your break down of the matter, as an argument could just as easily be made that none of those rights mentioned extends to NON Citizens, and included in the NON factor are those who have Visas which can at any time be banned by the President, as he sees fit. Per § 215 of the Immigration and Nationality Act of 1952. 8 U.S. Code § 1182 - Inadmissible aliens, 8 U.S.C. § 1185, it is unlawful for a United States citizen to enter or exit the United States without a valid United States passport.

The countries referred to in the EO are simply too messed up to ensure proper Visas and Passports, which lends validity to the need for new vetting procedures, and hence, the 90 day ban. 90% of appeals from the ninth get reversed. If POTUS can not execute his duties on the administration of lawful federal acts regarding immigration, border security, national security, etc. who can?

Eric Dierker from Spring Valley, CA. U.S.A. on February 10, 2017:

I was really hoping to get a nice mini-syllabus or hornbook on the law. Just a cheat sheet or squibs would have been nice. But you make two glowing incorrect statements that destroy this piece.

This not "the" role of the judiciary. It just is not. While there are steps to follow the first one is to take the plain meaning of the "law". Not interpret it, just accept it. Unless there is real ambiguity - then down more steps.

"The role of the judiciary specifically is to interpret the meaning of laws,"

Is just plain false.

Then you must of failed to read the complaint as it is really rather mundane. Nowhere does it cite a law or order suggesting a ban. It just does not. The allusion is from campaign rhetoric, not what is in the perfectly lawful order.

"issued on January 27 temporarily banning people from seven Muslin-majority countries and all refugees* from entering the United States."

You can read the order from about 70 sources to date. There is no anything like a ban.

Until you clean up these glaring important, relevant and material misrepresentations you should yank this and edit and republish.

Related Articles