The Department of Justice yesterday urged the Ninth Circuit to reinstate President Trump's executive order banning refugee resettlement in the United States and halting immigration from seven majority-Muslim nations. The move comes just days after a federal judge in Seattle issued a temporary restraining order, stopping enforcement of the EO nationwide.
That TRO, the Justice Department argued in its reply filed yesterday afternoon, is unjustified and "vastly overbroad." Here is a quick look at their arguments.
DOJ Argues to Reinstate EO
"The Executive Order is a lawful exercise of the President's authority over the entry of aliens into the United States and the admissions of refugees," the DOJ's reply begins. As such, it "satisfies any constitutional scrutiny that applies," the government argued, citing a ruling from the U.S. District Court of Massachusetts last Friday. (That case, Louhghalam v. Trump, involved a habeas petition on behalf of two detained permanent residents. There, the court declined to extend a TRO enjoining the executive order.)
But even if the district court in Washington was justified in enjoining enforcement, "the court's sweeping nationwide injunction is vastly overbroad, extending far beyond the State's legal claims to encompass numerous applications of the Order that the State does not even attempt to argue are lawful."
(Side note: The DOJ refers to the lower court's order as an injunction throughout. In its response, Washington has argued that the order is a temporary restraining order, not an injunction, and thus the DOJ's action in the Ninth Circuit is procedurally improper. That argument goes largely unaddressed in the government's reply.)
Will Washington Have Standing?
From there, the government moves to standing, which could be one of the trickiest aspects of Washington State's challenge to the EO. Washington has relied on Massachusetts v. EPA to argue that it has Article III standing. There, the Supreme Court acknowledged a "special solicitude" for States, finding that Massachusetts and 11 other states had standing to sue to force the EPA to regulate carbon dioxide and other greenhouse gasses. Those states, the Supreme Court found, could have standing for an injury to its "quasi-sovereign interests."
But that solicitude doesn't extend to this case, the DOJ argued. Whereas Massachusetts sought to "protect a loss of 'sovereign territory,'" -- the literal loss of territory due to global warming and rising sea levels -- here, Washington's "interest in protecting its own territory is not an issue."
Further, where the Administrative Procedure Act gives states and individuals the right to sue over EPA rulemaking (or the lack thereof), the executive has exclusive power over immigration; there is no procedural right the states can vindicate, as there was in Mass v. EPA. And if an alien has no right to challenge the denial or revocation of a visa, the DOJ argues, it follows "a fortiori" that a state cannot challenge the revocation of those visas either.
Oral Arguments Today
When it came to the merits, the DOJ's brief, like Washington's before it, largely holds to its earlier arguments. Washington's constitutional claims lack merit, the government argues, because the program is religiously neutral and because aliens outside the United States have no due process rights to violate. In suspending the EO, the injunction raises "potential national-security risks and harms" by reinstating procedures the president found worthy or reexamination.
The Ninth Circuit has scheduled telephonic oral arguments for 3 pm, Pacific time, today. You can listen to the live stream below as it occurs, or catch up on the arguments later via the Ninth Circuit's YouTube page.
- Appeals Court Weighs Trump Ban as Travelers Arrive to Tears (The Seattle Times)
- Will Trump Reshape the 9th Circuit? (FindLaw's U.S. Ninth Circuit Blog)
- Resources for Lawyers Offering Pro Bono Services During the Immigration Ban (FindLaw's Strategist)
- Flush With Donations, ACLU Teams up With Y Combinator (FindLaw's Technologist)