On March 6, President Trump issued a replacement Executive Order (EO) for the previous ones he had issued regarding immigration from several countries. He did this, it seems, to address concerns about constitutionality of the first EO. The Department of Justice immediately filed a “Notice” with the United States District Court in the Western District of Washington, one of the federals court that had issued a nationwide emergency injunction against enforcement of the original EO. This injunction remains in force as I write this post, having been upheld by the Ninth Circuit. The Executive Branch is taking the position that the new EO differs from the old one in ways that mean it can be enforced effective immediately. The Attorneys General of Washington and Minnesota, now joined by Attorneys General from New York and Massachussetts, oppose this for two, related reasons. The AGs argue, on behalf of their respective states, that 1) the new EO largely duplicates the old EO and 2) that the Executive Branch cannot simply deem itself no longer subject to an injunction issued by the Judicial Branch. That second claim is strikingly important even though it does not go to the merits of the first claim or to the question of the ultimate constitutionality of either EO. Rather, the second claim goes to the question of whether the Executive Branch must demonstrate to the District Court that the original injunction does not apply to the new EO based on the law applicable to modifying or removing federal injunction or that such modification or removal should be entered by the District Court. In other words, the AGs claim that President Trump is seeking to free the Executive from the injunction by fiat when in fact he does not have the authority to do this. Below is the Notice filed by the DOJ on behalf of the President and the AGs brief in response, annotated by me to assist nonlawyers in following each side’s arguments.
Notice of Filing of Executive Order
Response to Notice of Filing of Executive Order
On Friday, February 4, the Department of Justice filed a brief in support of an emergency administrative stay of trial court Judge James Robart’s temporary restraining order blocking Donald Trump’s executive orders implementing a Muslim ban. That same day Ninth Circuit appellate court Judges Canby and Friedland denied the request for an immediate freeze on the TRO, and requested briefing from both plaintiff-appellees (the states of Washington and Minnesota) and the defendant-appellants (Trump and other executive branch officials, all represented by the DOJ). Appellees’ brief is due Sunday, February 5, at 11:59 pm PST. Appellants reply is due Monday, February 6, 2017 at 3 pm PST. (Information at the Ninth Circuit’s web page dedicated to the case).
Meanwhile, an important, interesting, and well-crafted amicus brief on behalf of 97 tech companies, listed in Appendix A in the brief, below. I expect that Washington State will tackle the government’s interpretation of precedent and federal statutes in some detail. The job of an amicus brief is slightly different. A amicus writes as a “friend of the court”, stating its interest in the case and offering legal support specifically in favor of its interest. A good amicus brief is selective, surgically intervening in the swirl of arguments and counterarguments made by the main parties to the suit raise.
As I have tried to illustrate with the annotations below, this is precisely what the tech companies’ amicus brief has accomplished. The companies’ brief pinpoints the economic threats to and disruptions of American business caused by the executive order, specifically in virtue of the ways in which it is illegal and unconstitutional. The brief argues that an unreasonable, arbitrarily enforceable, potentially open-ended executive order violates both Congressional statutes and Constitutional provisions requiring that immigration be handled in accordance with Due Process, Equal Protection, general reasonableness standards, and non-discrimination on the basis of national origin. To highlight how the technology amicus brief does this I have annotated the copy below. The actual brief begins at page 7 of 53; the earlier material states the argument for the court to accept the brief.
The list of partners for the Women’s March on Washington is growing fast. Already, before the march even happens, it is teaching a lesson: the next major political and cultural coalition in the US is going to be women led.
It is going to be extremely diverse and highly intersectional. Some of the groups represented organize themselves around traditional U.S. demographic markers, e.g. race, religion, ethnicity. Others organize themselves around a traditional marker and a less usual one, e.g. gender AND tech. Others organize around a causes and interests not generally associated exclusively with a traditional demographic, such as stopping gun violence or ending poverty.
The scores of partners affiliating with the Women’s March have more in common than their opposition to the Trump administration and the Trump-Ryan-McConnell Republican Party. As you learn about each partner, you can see that the group shares a vision of the U.S., and the world. The vision is for a more just, more equitable, highly pluralist, very cosmopolitan polity and culture; a less dangerous, less violent, better educated, better informed citizenry.
This is the politics of The Women Led Coalition. It clearly honors the teachings and commitments of Hillary Clinton. But the reach and aspirations of The Women Led Coalition go beyond any single individual’s portfolio. It is not a coalition to serve a particular politician. It is a genuinely collective coalition, greater than the sum of its parts.
Welcome to the next great force in U.S. politics and culture: The Women Led Coalition.