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Federal Judge Halts Trump’s Muslim Travel Ban

law-gavel-lights

Late yesterday, a Federal Judge in Seattle issued an order that at least temporarily halts the most important provisions of President Obama’s Executive Order regarding travel to or from seven majority Muslim countries:

A federal judge in Seattle on Friday temporarily blocked President Trump’s week-old immigration order from being enforced nationwide, reopening America’s door to visa holders from seven predominantly Muslim countries and dealing the administration a humbling defeat.

The White House vowed late Friday to fight what it called an “outrageous” ruling, saying it would seek an emergency halt to the judge’s order as soon as possible and restore the president’s “lawful and appropriate order.”

“The president’s order is intended to protect the homeland and he has the constitutional authority and responsibility to protect the American people,” the White House said. A revised statement released later omitted the word “outrageous.”

And early Saturday morning, Mr. Trump tweeted in defense of his stand.

Courts around the country have halted aspects of Mr. Trump’s temporary ban on travel from the seven countries, but the Seattle ruling was the most far-reaching to date.

Airlines that had been stopping travelers from boarding planes to the United States were told by the government in a conference call Friday night to begin allowing them to fly, according to a person familiar with the call but who declined to be identified because it was a private discussion. The Trump administration, however, could again block the travelers if it were to win an emergency stay.

The federal government was “arguing that we have to protect the U.S. from individuals from these countries, and there’s no support for that,” said the judge, James Robart of Federal District Court for the Western District of Washington, an appointee of President George W. Bush, in a decision delivered from the bench.

The judge’s ruling was temporary, putting Mr. Trump’s policy on hold at least until the government and opponents of the order had a chance to make full arguments, or until the administration won a stay.

“What we’re seeing here is the courts standing up to the unconstitutional ban that President Trump imposed,” said Omar Jadwat, director of the Immigrants’ Rights Project at the A.C.L.U. “There’s obviously more litigation to come, but this is truly good news for the many people both in this country and abroad who have been unfairly targeted on the basis of their religion by this ban.”

It is not unusual for district courts to issue nationwide injunctions blocking executive actions, and the federal government must obey such injunctions even when other district courts have declined to issue injunctions in similar cases.

Judge Robart temporarily barred the administration from enforcing two parts of Mr. Trump’s order: its 90-day suspension of entry into the United States of people from the seven countries — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen — and its limits on accepting refugees, including “any action that prioritizes the refugee claims of certain religious minorities.”

The order had suspended admissions of any refugees for 120 days, and of Syrian refugees indefinitely. The goal, the president said, was to evaluate the process for vetting refugees and other immigrants in order to safeguard the country against terrorism.

The order said that when immigration from the seven countries resumed, persecuted religious minorities would be given preference, and in an interview the day of the signing, Mr. Trump said the United States would give Christians from those countries priority because they had suffered “more so than others.”

Judge Robart made clear that his order applied nationwide, citing a similar nationwide injunction from a federal district court in Texas that had blocked President Barack Obama’s plan to shield some undocumented immigrants from deportation and allow them to legally work in the United States.

Earlier in the day, on the other side of the country, a Federal District Court Judge in Massachusetts issued an opinion that reached the opposite conclusion of Judge Robart:

Shortly before the Seattle ruling, a different federal judge, Nathaniel M. Gorton in Boston, ruled in favor of the government by declining to extend a temporary halt to the order in that jurisdiction.

Judge Gorton, who was appointed to the bench by the first President George Bush, said that while the nation’s immigration history was a source of great pride and that the plaintiffs in that case — Iranian nationals who are academics — had compelling stories, “the public interest in safety and security in this ever more dangerous world is strong as well.”

But that ruling was soon rendered moot, at least for now, by the Seattle ruling.

The administration has been criticized for issuing its order without any warning to refugees and visa holders who were on their way to the United States. Some arrived at airports for flights and were turned away.

The president’s order allowed for exceptions in the “national interest,” but lawyers for some travelers had described getting one as a Kafkaesque exercise, with the State Department’s website warning that no emergency applications would be heard, and Customs and Border Protection agents at United States airports all but unreachable because their clients were not being allowed to board planes.

“It’s quite clear it was not all that thought out,” Judge Leonie Brinkema of Federal District Court in Alexandria, Va., said in yet another court hearing held Friday. “As a result there has been chaos.”

Protests over the policy continued on Friday, including a large group that gathered in a parking lot of Kennedy International Airport in New York for the Friday Prayer.

One big question surrounded the number of people who were affected by the travel ban.

Besides barring refugees and other visa holders from the seven countries from entering the United States, the administration also revoked, at least temporarily, all visas from the seven countries, including those for people currently living in the United States. The revocations, which were not publicly announced but were revealed during court proceedings, meant that anyone who lost their visa would be unable to re-enter the United States if they left.

In the Virginia courtroom, spectators gasped when a lawyer for the government told Judge Brinkema, an appointee of President Bill Clinton, that more than 100,000 visas had been revoked as part of President Trump’s order. A State Department official later contradicted that number, saying that it mistakenly included diplomatic visas that were untouched by the ban as well as expired visas.

The true figure was “fewer than 60,000,” said William Cocks, a spokesman for the department’s Bureau of Consular Affairs.

As noted above, President Trump was up early responding to the Court on Twitter with some of the same contempt for the judiciary that he exhibited when he attacked the Judge presiding over the class actions against Trump University during the Presidential campaign:]

Trump’s response is, of course, entirely unsurprising and entirely disrespectful toward a sitting member of a co-equal branch of government who was appointed by President George W. Bush who was unanimously confirmed by the U.S. Senate. In another era, an attack by a sitting President on the legitimacy of a Federal Judge who ruled against him would be shocking and something that caused major headlines. In the Trump Era, it’s just business as usual from a man who regularly attacks people who disagree with him and who now sits at the top of the Federal Government. To say that we’ve fallen very far very fast is an understatement. it comes after the Department of Justice announced last night that it intends to appeal Judge Robart’s decision, although it does not appear that anything has been filed as of yet so it is unclear if we’ll get any ruling on a potential stay against the District Court’s Order before Monday or later in the week. In the meantime, the United States and American air carriers are operating as if the

Trump’s rant against Judge Robart comes after the Department of Justice announced last night that it intends to appeal Judge Robart’s decision, although it does not appear that anything has been filed as of yet so it is unclear if we’ll get any ruling on a potential stay against the District Court’s Order before Monday or later in the week. In the meantime, the United States Government and American air carriers are operating as if the status quo prior to the issuance of Trump’s is back in effect. This means that people overseas with visas and Green Cards who were barred from traveling are now free to come to the United States and that those similarly situated who are in the U.S. are free to go home. The problem that both groups face, of course, is that there could be stay issued against this order pending final resolution and appeal and that they could end up being trapped wherever they are at the time. Indeed, it’s possible that the situation could change while the people to whom this order applies are in transit and that they could end up landing only to find that they can’t go anywhere, not unlike the plot of the 2004 Tom Hanks movie The Terminal. For this reason, it’s likely that this issue will move as rapidly as possible through the Court system.

From here, the case goes to the Ninth Circuit Court of Appeals, which happens to be one of the more liberal-leaning Circuits in the country. This doesn’t necessarily mean that it’s guaranteed that Judge Robart’s ruling will be upheld, though. For one thing, as demonstrated by the fact that a Federal Judge in Massachusetts reached the opposite conclusion from Judge Robart on the same day indicates, this is by no means a slam-dunk case for the Plaintiffs and a losing case for the government. Both Federal law and the Constitution grant the President broad authority to control immigration in cases where he believes that doing so would be in the national interest. The question in this case is whether this is what the President’s Executive Order has done, or whether the order goes too far in barring all immigration from a select group of nations for even a short period of time while at the same ignoring the fact that other nations not included in the order have been a far more common source of terrorist attacks in the United States than those covered by the ban. This is especially true given the case that the law does not include travelers from nations such as Saudi Arabia, Pakistan, and the United Arab Emirates, all of whom have been the actual homes of terrorist who have attacked the United States dating back to the first attack on the World Trade Center in 1993. Additionally, there is the fact that Trump long intended his ban to be a ban on the immigration of the adherants of a specific religion, something that seems clearly prohibited by both existing law and the Constitution. How the Ninth Circuit decides this issue is likely to have nationwide implications since the current makeup of the Supreme Court makes it likely that we’ll end up with a 4-4 tie that lets the decision of the Ninth Circuit stand.

As they say, stay tuned.

Here’s Judge Robart’s opinion:

State of Washington Et Al v. Trump Et Al by Doug Mataconis on Scribd

And, by way of contrast, here’s the opinion of Judge Nathaniel Hawthrone denying a different Plaintiff’s request for a TRO:

Louhghalam Et Al v. Trump Et Al by Doug Mataconis on Scribd

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About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May, 2010 and also writes at Below The Beltway. Follow Doug on Twitter | Facebook

Comments

  1. Stormy Dragon says:

    Judge Gorton, who was appointed to the bench by the first President George Bush, said that while the nation’s immigration history was a source of great pride and that the plaintiffs in that case — Iranian nationals who are academics — had compelling stories, “the public interest in safety and security in this ever more dangerous world is strong as well.”

    That’s supposed to be a legal argument?

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  2. michilines says:

    And here we go. It’s never the Republican president’s responsibility. Obama was president in 2008, so all of that economic mess was his fault. Bill Clinton was president in 2001, so 9/11 was his fault. Obama’s still president, so the Muslim ban is on him.

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  3. Yuck says:

    It is misleading to say that Judge Robart, the staunchly liberal judge who issued the TRO, was appointed by Bush, since he was effectively forced on Bush by liberal Senators Patty Murray and Maria Cantwell.

    As Liberty Unyielding notes, Bush was essentially forced to pick liberal judges in that area by Senator Patty Murry (D-Wash.) and Senator Maria Cantwell (D-Wash.), who exercised their “blue slip” prerogative to veto trial judges they disliked to block the appointment of conservative trial judges in Washington State:

    http://libertyunyielding.com/2017/02/04/g-w-bush-appointee-federal-bench-blocks-trumps-immigration-halt/

    Bush did manage to appoint conservative appellate judges in the region, since appellate judges are not subject to the “blue slip” veto by senators.

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  4. Just 'nutha ig'rant cracker says:

    @Stormy Dragon: I think it’s sort of like Ford’s definition of “high crimes and misdemeanors”–it’s a legal argument if the judge making it says that it is.

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  5. Yuck says:

    Trump’s order was stupid, but Judge Robart’s temporary restraining order against it may make things even worse in the long run, and had no basis in law.

    The judge’s temporary restraining order is harmful — it bans giving priority in asylum claims to Yazidi and Christian applicants, even though they are the ones who face a high risk of being killed in Iraq and Syria. (It bans “proceeding with any action that prioritizes the refugee claims of certain religious minorities,” see Order at pg. 5, paragraph 1). This ban is perverse, because under U.S. law and international treaties, asylum is SUPPOSED to be given to members of groups facing persecution based on religion, and the threat of genocide faces only certain religions. The judge provided NO REASONING AT ALL for his assertion that the constitution might be violated by the executive order, and lawyers like Scott Johnson have noted that the judge’s order had no real legal basis.

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  6. Mebane says:

    Judge Robart, the oddball judge who issued that TRO against the executive order, is the same guy who issued the bizarre college sexual assault ruling that Robbie Soave wrote about earlier at Reason Magazine.

    He ruled a falsely-accused male student could not depose or obtain relevant documents from the female student who got him expelled because that would traumatize her (never mind that it was SHE who performed a sex act on him when he was blacked out, meaning that if anyone was guilty of sexual assault it was HER). Reason’s article about it can be found here:

    http://reason.com/blog/2017/01/31/amherst-student-expelled-for-sexual-misc

    John Sexton wrote about here:

    http://hotair.com/archives/2017/01/31/judge-student-expelled-for-sexual-misconduct-may-not-ask-accuser-to-testify-in-lawsuit-against-the-school-as-it-might-traumatize-her/

    Robart also bellowed “Black Lives Matter” in open court, as the Daily Caller noted (in a context in which it made little sense).

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  7. Gustopher says:

    How hard would it be to game the system to get one of these cases to fall onto Judge Gorsuch’s lap? I have no idea whether it would hurt or help his nomination, but it would be the proper, dramatic turn of events that we have come to expect in this administration.

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  8. Pch101 says:

    @Mebane:

    Reason = Strike 1
    HotAir = Strike 2
    Daily Caller = Strike 3

    You’re out.

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  9. michilines says:

    Late yesterday, a Federal Judge in Seattle issued an order that at least temporarily halts the most important provisions of President Obama’s Executive Order regarding travel to or from seven majority Muslim countries:

    Doug — he’s gone. You can’t hang this mess on him.

    Also:

    It is misleading to say that Judge Robart, the staunchly liberal judge who issued the TRO, was appointed by Bush, since he was effectively forced on Bush by liberal Senators Patty Murray and Maria Cantwell.

    See, it’s not Bush’s fault.

    This will never end.

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  10. Just 'nutha ig'nint cracker says:

    @Yuck:

    The judge’s temporary restraining order is harmful — it bans giving priority in asylum claims to Yazidi and Christian applicants

    Since it’s a temporary restraining order, it is less likely to be in effect for as long as the 120 day unilateral and all-inclusive ban–which also included Yazidi and Christian applicants seeking asylum–so your objection doesn’t make any sense.

    Thanks for playing. There’s a carton of Rice-a-Roni (the San Francisco treat!) waiting for you with the producer’s assistant if you want to pick it up on your way out.

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  11. wr says:

    @michilines: “See, it’s not Bush’s fault.”

    Well, we all know that every “real” conservative is actually driven by a fear of gurls, so it’s no wonder that Bush would have been so scared of these two women he would have appointed this closet Kenyan Marxist Muslim as a judge just so he could overturn Trump’s noble attempt to protect Real Americans.

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  12. HarvardLaw92 says:

    @Pch101:

    I’ve seen these exact same “opposition” postings – and I mean verbatim – on several sites now. I think OTB must have come up on the Imhotep’ers attack list today.

    Basement Dwelling “Conservatives” Patrol – attack!

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  13. HarvardLaw92 says:

    I’d love to be a fly on the wall at the White House today. Something like this will send him spiraling into a rage & force him to step on his whang (again).

    Somebody call up central casting and tell them to cue up paranoid, alcoholic Nixon. It’s going to be an entertaining four years.

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  14. al-Ameda says:

    @HarvardLaw92:

    Somebody call up central casting and tell them to cue up paranoid, alcoholic Nixon. It’s going to be an entertaining four years.

    While waiting in line to catch the early morning ferry to San francisco, on the flat screen mounted above the waiting area I watched Trump speak at the National Prayer Breakfast, and at any moment I expected him to start mumbling something about ‘strawberries.’ It’s always about him, he cannot control his ego and his need to be acknowledged as special. This was especially cringe-y (not a word but you get the point)

    That’s when I really said — but we had tremendous success on The Apprentice. And when I ran for president, I had to leave the show. That’s when I knew for sure that I was doing it. And they hired a big, big movie star, Arnold Schwarzenegger, to take my place. And we know how that turned out.
    The ratings went down the tubes. It’s been a total disaster and Mark will never, ever bet against Trump again. And I want to just pray for Arnold if we can, for those ratings, OK?

    One of my sisters, who voted for him, thinks Trump has a serious personality disorder. So why did she vote for him?
    She said it’s because America needs a new direction and although Trump is a boor, he will, with a Republican Congress get things done. So, there you go, that’s what I think we’re dealing with. A lot of Republicans held their noses and said to themselves, he sucks but Congress will get it done, this is our chance.

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  15. Scott O says:

    This is too funny. The undoubtedly fair and balanced web site libertyunyielding.com referenced by Yuck above has another article, A strange ruling from a strange judge, that contains quotes, with links, of comments from above by Mebane and Yuck.

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  16. Hal_10000 says:

    @Pch101:

    Reason = Strike 1
    HotAir = Strike 2
    Daily Caller = Strike 3

    Reason is usually good. HotAir depends heavily on the writer. But agreed that Daily Caller is garbage.

    As for this judge, I see a couple of you have gotten your talking points about how he’s a big liberal. But his record is fairly middle of the road with a tendency to be suspicious of govt encroachment on liberty. And his black lives matter comment was during a case on excessive use of force, not just shouted at random.

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  17. HarvardLaw92 says:

    Just got word – DOJ filed formal notice with the DC and its appeal with the 9th Circuit.

    The panel will be Canby, Friedland and Clifton. Based on that, I expect the appeal to drop in favor of the district court’s ruling.

    (Canby spent years serving with the Peace Corps in Africa and was a special assistant to Mondale in the Senate. Friedland’s prior work as a particularly outspoken LGBT rights advocate needs no introduction. Two definite liberals and a moderate Republican. I’m sure that all of you can do the math).

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  18. Tyrell says:

    How can the ruling of a judge in the state of Washington affect the whole country ? It seems that it should only apply to the state the judge is in. That is way too much power for one person.

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  19. Matt says:

    @Tyrell: That court has existed for 127 years and is part of a larger apparatus that leads to the Supreme court which is even older. It’s worked fine since basically the founding of this country.

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  20. Tad Early says:

    I see the usual ploy of “when you can’t dispute the substance dispute the source” at play here. Speaking of talking points.

    The “decision” speaks for itself. To be this lazy on such an important matter is inexcusable. The judge is either not ready for prime time or he was afraid to go where a discussion of substance would lead him. Compare, for example, to the Boston District Court judge’s decision. Agree with the result or not, it was far more than a lame conclusory recitation of the general standards for an injunction.

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  21. wr says:

    @Hal_10000: “Reason is usually good”

    Unless you’ve actually ever met a human being in your life, at which point you realize the entire philosophy behind every word they publish is adolescent nonsense.

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  22. wr says:

    @Tad Early: “Agree with the result or not, it was far more than a lame conclusory recitation of the general standards for an injunction.”

    In other words, you agree with the Boston judge.

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  23. bondfc says:

    @Stormy Dragon: @Stormy Dragon: That’s the epitome of a legal argument. Under the Constitution and laws enacted by Congress, it’s the President’s duty and prerogative to determine “the public interest in safety and security” on immigration matters. A law-abiding court has no role in the matter at all.@Stormy Dragon:

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