In Shocker, Federal Judge in Seattle Halts Trump Muslim Ban

By Juan Cole | (Informed Comment) | – –

When Trump issued his executive order halting immigration from seven countries, suspending the refugee program, and banning Syrian refugees indefinitely, I wrote that he might well get away with it, since the judiciary tends to defer to the executive on issues of national security and on foreign affairs. This one is both.

But I was too pessimistic. US District Judge James Robart of Seattle, a Bush appointee, issued a judgment suspending the Executive Order on the grounds that it is unconstitutional and places an undue burden on the state of Washington and on its 25,000 residents from the 7 countries that Trump singled out.

This is an incredible, tremendous ruling. First of all, the Republicans had argued that Washington state’s attorney general did not have standing to sue, since the EO was nothing to do with him. But Judge Robarts decided otherwise, given that the EO affects so many people who are residents of the state.

Being recognized as having standing to bring a legal action is absolutely crucial. Washington Attorney General Bob Ferguson is to be congratulated for passing this hurdle.

Robart wrote, according to the Seattle Times:

“The executive order adversely affects the state’s residents in areas of employment, education, business, family relations and freedom to travel,” Robart wrote, adding that the order also harmed the state’s public universities and tax base. “These harms are significant and ongoing.”

Robart stood up for the residents of Washington state who were unconstitutionally deprived of basic rights by the EO. He also stood up for the economy of Washington state and its “tax base,” playing turnabout with Trump by arguing that what he did is bad for the economy!

He even mentioned the harm to the state’s great universities, a point I have made in the past.

Steve Bannon and Stephen Miller, the Neofascists who wrote the EO, were hoping that immigrants would be treated by the US courts as foreigners with no rights or standing.

Robart is saying that residents of a state in the US have rights that the president cannot simply erase by fiat. He is further saying that institutions of the state itself, including universities, have a right to pursue their work unmolested by discriminatory policies.

Robart noted that to get a temporary restraining order (TRO), a plaintiff must show (1) ‘that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and (4) that an injunction is in the public interest.”

These criteria are crucial because they demonstrate that Robart did not stay the EO in a neutral way. He did so because he believes that the suit will likely succeed on the merits. He has made a prediction of success in the higher courts for the plaintiffs (the state of Minnesota joined in the suit).

The state of Washington was recognized in the ruling as a legal protector for residents who might not be able to defend themselves. In the Batman stories, Dick Grayson (Robin) is the ward of Bruce Wayne (Batman). The court is saying that where you have that kind of relationship, you cannot harm Robin without harming Batman.

The court also accepted the state’s argument that the EO has “inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. These harms are significant and ongoing.”

Robart also found that his Temporary Restraining Order couldn’t be restricted to Washington, since the Constitution requires “a uniform Rule of Naturalization” and Congress itself had instructed that immigration laws be enforced “uniformly.” The order therefore must obtain in the whole country.

If states have standing, if residents from the 7 banned countries have standing, and if a relatively conservative judge believes that they will likely succeed in their suit against Trump, then we have a fighting chance of defeating this thing.

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Related video:

CBS: “Wash. Gov. on Seattle federal judge’s ruling”

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35 Responses

  1. I really can’t wait until this makes its way to the Supreme Court. I know pundits love saying the Supreme Court is split 4, 4 and to assume that each Justice always goes a particular way. However… after having read hundreds of Supreme Court decisions I have found that the conservative judges who take an originalist approach hold strongly to our Constitution and will interpret it strictly even if it goes against presumed interests. For instance, Abercrombie v EEOC with the woman in the hijab was “an easy one” for Scalia – so I do have hope in a Supreme Court ruling. Thank God for our beautiful Constitution! Please don’t lose hope.

  2. Using The Donald’s own rhetoric…”They are bring in drugs, murderers and rapist” why isn’t Mexico on the list of countries banned?

    • Mexico isn’t a predominantly Muslim society, so the fact that it isn’t on the list is more evidence that this is a religious-based discriminatory policy targeting only Muslim nations.

      It was either incompetence or pressure from powerful business interests that forced these neofascists to not include Mexico, which would have helped their facile defense of this inhuman policy…

      • Divide and conquer. Leave the Mexicans for next month’s crisis. Ramp up pressure until an individual Latino commits an act of violence, then begin the scripted cycle of escalation. Or carry out a false flag attack… another form of alternative fact.

  3. Couldn’t this set the stage for an accelerated referral to the Supreme Court, since Trump et al will not just accept this. It might quickly move to a showdown on the confidence with which the new regime is going to pursue its agenda on immigration, and other things by implication?

  4. The best part of this is the early morning’s tweet storm by The Crazy Guy. He’s pointing to unnamed Middle Eastern states who he says supports his policy. Supposedly as justification/rationalization of his policy. In other words, we should take tips on governance from enlightened leaders such as Sisi or the theocrats in Riyadh.

    Lovely.

    • Dictators, by any other name, have always recognized the special excellence of one another immediately. This is the only sort of outside validation someone like Our Boy would accept. You know, like mines and all that stuff.

  5. It’s easier for people to combine against than for an issue Maybe Trump will serve to unite US citizenry and the more like Erdogan he gets the more politically involved they will become. There is nothing like nearly losing something to underscore its value.

    • Erdogan has always gauged precisely how far he could push things with great astuteness. I wouldn’t sell Trump’s political sense sort, with his evident success, but Erdogan has been able not only to surf the wave and essentially to guide it.

      Although he’s an authoritarian, the record shows he’s a different and altogether more impressive breed of cat than Trump, despite what I put in the above comments about like minds. It is an interesting and perhaps useful comparison.

      • Erdogan also had the competence to run Turkey quite well during the ’00s, managing to be the face of an economic boom while its neighbors were ruined by war. As I understand, it all came down to the moment when he started demanding constitutional changes, which required a supermajority that his reasonable policies towards the Kurds made impossible. So to civil war and endless crackdowns. Trump/Bannon may be trying to skip ahead to this part.

      • The more logical route is to whip up anger about the courts to empower Congressional action, and maybe even Constitutional amendments or a Constitutional convention enabled by GOP control of state legislatures. That would be a enormous project designed as a Final Solution to wipe out the last 200 years of law and civil rights. The excitement this would kindle among the deplorables could save the GOP in midterms, their quid pro quo for all the problems Trump is causing them in real life.

  6. Joseph Saltarelli

    As POTUS (no longer candidate) Trump’s continued denigration of judges/judiciary is real threat 2 constitutional order/rule of law.

    • Notice the dingbat POTUS often transposes the word “country” when he means himself, e.g.:
      “When a country is no longer able to say who can, and who cannot , come in & out, especially for reasons of safety &.security – big trouble!”
      — Donald J. Trump (@realDonaldTrump) February 4, 2017
      or
      “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”
      — Donald J. Trump (@realDonaldTrump) February 4, 2017

      The second tweet amounts to direct criminal contempt as criminal contempt is generally regarded as a disobedient or open disrespect for the court. Contempt takes the form of actions that are seen as detrimental to the court’s ability to administer justice. Posting the crime on Twitter makes this direct criminal contempt, a jail-able offense.

      • It was apparent all through the campaign that Trump had no concept how power is shared between the branches of government. It wasn’t just that he wanted to impose the dictatorial style of a capitalist CEO on the Federal government, he already assumed it was that way, that presidents were either not using their power or were using it for the wrong policies, but no one else ever mattered.

        • quoting super390 – “It was apparent all through the campaign that Trump had no concept how power is shared between the branches of government.”

          45 knew full and well how authority is shared between branches but he and his advisors do not share that concept. They want it all.

  7. Bannon’s influence is destroying our country. He is an enemy exceeding that of ISIS/DAESH.

    HE MUST GO!

  8. Trump may not know that EOs are really recommendations and have to be legal, and there are courts that will act.

    • I wouldn’t oversimplify that stuff about the Balance Of Power we learned back in high school. We have to also factor in how the values and allegiances of the AG shake-out, especially as they relate to issues of funding and enforcement.

  9. The order is “temporary” meaning it only effective until a hearing on a motion for preliminary injunction is heard.

    While encouraging, the judge may decide to rule the other way within a few weeks after having the opportunity to review the case more fully. He will have to have a trial on the merits if there are any facts in dispute – then he can issue a permanent injunction – which the U.S. Department of Justice can appeal as of right to the United States Court of Appeals in the appropriate circuit.

    As I have stated earlier, however, many of Trump’s campaign promises on immigration reform – to the extent he tries to implement them – are likely to be struck down in the federal court system.

  10. I’m no lawyer, but if Trump is to mount an appeal, it has to be one employing coherent, rational, evidence-based arguments. We know that there are no such arguments. The Bowling Green Massacre will not do.

  11. There’s been an article circulating widely this week that argues the purpose of the badly-written executive orders was precisely to invite a court action, and then attempt to get Federal officers to ignore it. Supposedly this has already happened to some extent with the earlier court orders, for instance in California US Marshals refused to serve an order restraining US Immigrations and Customs Enforcement.

    I think this new order is so sweeping that any chance that Federal officers defy it directly is low. More likely more games with interpretation, which is normal. So Reichsfuhrer Bannon is likely to lose on this and expend some political capital. Why did he start all this unless he has some way to win? A new propaganda campaign against Federal judges to prepare for new legislation? Stage-setting for a false flag attack that will lead to the arrest of an individual who, conveniently, is exactly one of those affected by the original visa ban?

    It is very hard to think one step ahead of such bizarre people once they have power, which is why prudent nations do not let this sort have power in the first place.

  12. This is massive incompetence. To pass an order in the first week which is overthrown by the courts shows actions which affect millions outside America aren’t being thought through. Along with the phone call to the Australian PM, it indicates an unstable and erratic Administration when dealing with the outside world.

  13. Thank you Juan for this post. The Orange Menace’s EO was scandalous on many levels. Why? Let me share a personal anecdote, which I am sure is repeated throughout this country on a daily basis.

    While in the Classics department at the University of Maryland (’96-’12), the best student I ever had was a girl from Iran. She was a devout Muslim. She wore modest clothes – not a birka, but long sleeves and a head scarf. She was quiet, but she was hard working. She was a pre-med student. But her family felt that, living in the west, she should know our traditions and our history. She was phenomenal – she kicked butt in Latin and Greek, quietly working, quiet in class, never tooting her own horn, virtually reclusive. But I was her advisor and got to know her well.

    She was the best student I ever had as an undergraduate in terms of her ability of Latin and Greek.

    She was Iranian and Muslim.

    She was a dual major in Classics (but really Latin and Greek, two very difficult languages) and pre-Med.

    She wanted to be a doctor and stay in this country – she was the best of the best.

    And when she graduated from the University of Maryland . . .

    She was 17 . . .

    We need people like her in this country, not willful ignoramuses like the Orange Menace or his spawn. This has been heart-breaking, but also searing and galvanizing, and we will fight because we are right about the value of immigration into this country and about the inherent dignity of the individual.

    • Several additional points:

      (A) where would the Manhattan Project have been without immigrants such as Enrico Fermi, Albert Einstein and Edward Teller?

      (B) NASA’s most important rocket engineer was German immigrant Werner Von Braun;

      (C) In Operation Babylift , hundreds of young Vietnamese children were evacuated to the U.S. from Saigon in 1975 and a large percentage of these kids became high school valedictorians and today in their 40s are leading doctors, scientists, and other professionals.

      • Bannon’s Breitbart has already put out false claims that a majority of Silicon Valley tech-firms have Asian-born CEOs – as if that were a bad thing being done against White people. Like the anti-Semites, he will never accept that immigrants succeed at some industries due to their own merits, that it has to be due to some conspiracy or an evil inherent to that industry (Jews in Hollywood, Black rappers and athletes, etc.). When he uses Breivik-like terms such as “Christian civilization”, Asians don’t count regardless of their faith or birthplace.

        Obviously, he’s at least extended his concept of the Master Race to include Slavs, so Germans and sufficiently northern Italians should already be okay as immigrants.

        We are falling with extraordinary speed down the rabbit hole of White Supremacist theology. Weeks ago I thought Bannon was simply racism + isolationism, meaning the sort whose conviction is that there is a “proper” homeland for all the races to have for themselves but no place else… of course, certain exceptions being made for when superior races colonize inferior lands or rule them through puppets. Now he’s making his foray into foreign policy and we have to wonder if there is anyplace on his dream-Earth where a Person of Color has any rights to respect.

  14. We are learning now that the effect of this order is more widespread than originally believed. For example, the State Department says that the ban resulted in 70,000 invalidated visas. Included in this total are parents or children where one part of the family has citizenship and the other not and the order resulted in families being kept apart. I think this makes the State’s case much easier in showing harm to its citizens. The dumbbells who conceived and wrote this EO did little to consider the consequences of their actions. Since most Trump supporters support this ban, when writing about it I have emphasized the administration’s incompetence which is obvious and harder to defend. The Trump Administration is like government by the Marx Brothers. In the movie Duck Soup where Groucho is the leader of the mythical Fredonia, at least Groucho is good for some laughs. Trump is as incompetent but doesn’t even provide comic relief.

  15. Trump reminds me of a dictator, or does he think he is one?
    He is challenging the courts, he is steaming mad, and we all know he is a thin skinned oaf who cannot stand anyone going against him. He will try to get any judge who makes a decision against him idiotic policies, removed. Most dictators place judges in courts so that they will rule in his favor. Americans are not in danger of any terrorist attacks by refugees, and we can be attacked by anyone within the country.

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