It’s never a dull day in Donald Trump’s Washington. There’s a lot to unpack in Saturday’s controversy over the temporary restraining order issued by U.S. District Judge James Robart of the Western District of Washington (based in Seattle) against portions of President Trump’s executive order on refugees, and Trump’s ensuing tweets in response. For now, let’s start with what happened.
Judge Robart’s decision, handed down Friday night, did four things. First, it concluded that the States of Washington and Minnesota had legal standing to challenge the executive order. Judge Robart seems to have accepted the argument that the states could sue as “parens patriae” (a legal concept that basically says the state can sue as if it is the parent of its citizens) on behalf of various groups of their residents – groups that work with refugees, residents who already have visas or green cards, businesses who want to employ refugees, and possibly the refugees themselves. This is questionable on a number of levels, as the asserted “harms” to some of these groups are too attenuated to create standing for them to sue on their own, and others (i.e., refugees who have not been admitted previously to the country) are not Washington or Minnesota residents unless and until federal immigration law says so – begging the entire question. The states were relying largely on a U.S. Supreme Court case that had allowed Puerto Rico to sue on behalf of Puerto Ricans suffering certain types of discrimination by U.S. states, but in that case there was no question that the Puerto Ricans were both residents of the suing government and citizens of the United States with legal rights here. Judge Robart’s decision appears to draw no distinction between green card holders (who aren’t even mentioned in the order and against whom the Administration is no longer trying to enforce it) and people seeking to enter the country for the first time.
Second, it temporarily enjoined the Administration from enforcing Sections 3(c) and 5(a)-(c) of the order (the ones containing a 90-day halt to admissions to the United States from seven specified countries, a 120-day suspension of the refugee admission program, and an indefinite suspension of refugees from Syria in particular). This is a nationwide injunction, which may sound broad, but if a federal court concludes that a national federal policy violates a federal statute or the constitution, it can’t very well leave it in place in some states and not others. The injunction appears to apply to completely restore Obama Administration policy, with the exception that it leaves in place Section 5(d), which imposes a cap of 50,000 refugees overall compared to Obama’s 2017 goal of 110,000 refugees.
Third, it temporarily enjoined Section 5(e) of the order “to the extent Section 5(e) purports to prioritize refugee claims of certain religious minorities.” Section 5(e), the only part of the order to address religion, states among other things that “the Secretaries of State and Homeland Security may jointly determine to admit individuals to the United States as refugees on a case-by-case basis, in their discretion, but only so long as they determine that the admission of such individuals as refugees is in the national interest — including when the person is a religious minority in his country of nationality facing religious persecution…” Taken to its logical conclusion, the idea that the government cannot consider religious minority status in determining who faces persecution requires it to be blind to reality: Judge Robart’s order, if in place in 1943, would have prohibited the United States from considering Jewish refugees from Germany to face a higher threat of persecution than German refugees from Germany. And yet, this is the only part of the order that references religion at all, so it’s hugely important to the legal case against it.
Why? The federal government can act if (1) it has been given the power and (2) that power isn’t restricted by someone’s rights. And the courts can stop an action that exceeds either of these only if (3) someone has standing to challenge the action.
As a matter of power, there is no question that Congress has effectively total power to exclude anyone it wants from the United States, subject to collision with some enforceable rights; Article I establishes that power. And it has a lot of leeway to delegate aspects of that power to the president, either ordering him to enforce rules or empowering him to fill in the gaps. The president currently has a fair amount of authority in this area (not unlimited; President Obama, for example, likely exceeded his authority by a blanket assertion that he could turn “prosecutorial discretion” into an affirmative grant of legal status). It’s debatable whether Trump has been given all the authority he needs to issue this order – Andrew McCarthy says yes, while Patterico says no. In either case, Trump’s order should cause Congress to think hard in the future about delegating such broad powers, explicitly or by implication from ambiguity, to the president.
But if he does have the authority, then the only remaining question is one of rights. Yet, in a line of cases running from the Court upholding the Chinese Exclusion Act in 1889 to a 1972 case effectively holding that prospective Communist immigrants have no right to raise free speech challenges to their exclusion on grounds of political viewpoints, the Court has taken the position that Congress’ plenary power in this area is not restricted by any individual rights, since foreigners have no such rights to enter the country (the 1972 case also held that Americans don’t have constitutional rights to demand the admission of an immigrant).
That seems to leave challengers hanging their entire hat on the idea that any preference for religious minorities in refugee admissions violates the Establishment Clause, on the theory that this is the effective equivalent of turning federal immigration law into a state church. This is a novel argument (its novelty is one reason I think Sally Yates had no good-faith basis to conclude that the order was unenforceable) but it matters for standing-to-sue purposes because the Court has long allowed a much broader array of people (effectively, any taxpayer) to sue over Establishment Clause violations than any other Constitutional violation.
It’s unfortunate that Judge Robart’s decision, like the one handed down last weekend in the Eastern District of New York, includes nearly no legal reasoning or explanation, such that we could judge why he found the order unconstitutional or illegal. Federal district judges often issue very summary orders when they are asked to rule on an emergency basis on a request for a temporary restraining order or preliminary injunction, so expecting a scholarly opinion is unrealistic. But with the order halting a nationwide Executive Branch policy in its tracks and sure to be used as a political club, it should not have been too much to ask the court to provide some clue to its reasoning for just saying “this is illegal.”
Fourth, this is a TRO: it applies only until the court can hold a more complete hearing, which it scheduled for Monday. The Administration has, however, already filed an appeal to the Ninth Circuit (a very large Circuit full of liberal judges but also some very conservative ones and some idiosyncratic libertarians, so until you see the panel you can’t guess what they’ll do). At this point, what Judge Robart does or thinks is likely to quickly become moot. But with the Supreme Court still divided 4-4, it’s possible (depending on the timing of the appeals) that the Ninth Circuit might end up getting the last word nationwide.