Keeping the Injunction on Trump Travel Ban: Rule of Law Back in Play

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

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Keeping the Injunction on Trump Travel Ban: Rule of Law Back in Play

TRO opinion in Washington State litigation against Muslim ban EOs, explained and annotated

The state of Washington was the first state to file its own lawsuit alleging the unconstitutionality of the Trump bans on immigration. This development was significant because states are uniquely positioned to challenge unconstitutional executive orders. They have standing to litigate on behalf many of their affected  residents (under the U.S. extension of parens patriae doctrine). They also have standing to litigate the unique harms that they as states can suffer, e.g. injury to state university systems or state economic wellbeing. Today, Judge James L. Robart, a federal district court court judge in the Western District of Washington State, issued a temporary restraining order (TRO) against the Trump executive orders and provided an opinion that tees up the sort of ongoing litigation likely to wind up in the U.S. Supreme Court. Below is a copy of Judge Robart’s opinion in support of the TRO. I have highlighted passages to aid in following Judge Robart’s reasoning and indicated with green check marks especially significant findings has made.

TRO opinion in Washington State litigation against Muslim ban EOs, explained and annotated