Why Courts Appear Willing to Reject Trump’s Travel Ban Order

On Friday, James Robart, a U.S. federal district judge in Seattle, issued a nationwide temporary restraining order (TRO) against President Donald Trump’s Executive Order that imposed a temporary ban on travel to the United States by immigrants and nonimmigrants from seven predominantly Muslim countries and suspended the entry of all refugees.  Judge Robart joined several other judges who have stayed parts of the Executive Order. (Marty Lederman has an excellent summary of the litigation here).  Judge Robart’s ruling in Washington v. Trump, however, goes the furthest, and was issued in litigation brought by states—Washington, joined by Minnesota—rather than individuals.  The Ninth Circuit denied the government’s request for an administrative stay, and set an expedited briefing schedule on its motion to stay Judge Robart’s order pending the district court’s disposition of plaintiffs’ motion for a preliminary injunction.

The emergency nature of the travel ban litigation has thus far resulted in relatively brief explanations by judges.  However, this video of the oral argument before Judge Robart not only helps frame the issues, but also suggests why the government’s defense of the Executive Order is vulnerable.   On the standing issue, Judge Robart appears to rely most heavily on  the Supreme Court’s decision in Massachusetts v. EPA and the Fifth Circuit’s decision in Texas v. United States (he cites the latter in his ruling from the bench). In Mass. v. EPA, the Court found that states had standing to challenge the EPA’s failure to regulate greenhouse gases even though the degree to which that failure had contributed to global warming was in dispute; and in Texas v. United States, the court relied on the anticipated cost of issuing drivers licenses to non-citizens in finding the state had standing to challenge the Deferred Action for Parents of Americans program.  In Washington v. Trump, Judge Robart said the states presented evidence of direct and immediate harm caused by the travel ban, including, for example, lost revenue and other costs in the form of students who could not attend their universities.  Judge Robart also suggests at various places why the Executive Order is difficult to sustain on the merits.

A critical moment came when the DOJ Attorney, Michelle Bennett, pressed for deference to the executive based on the president’s foreign affairs power and congressional delegation of authority to make determinations about entry.  “If the four corners of the executive order offer a facially legitimate and bona fide reason for it,” she said, “the court cannot look behind it.” (The statement appears at around the 40’ mark of the video).  Judge Robart plainly found that argument unpersuasive, and the hearing suggests several reasons why. 

First, Judge Robart appeared to credit the claims of religious discrimination that underpin the states’ Equal Protection and Establishment Clause claims.  Judge  Robart did not merely reference the multiple anti-Muslim statements by President Trump (although it was unclear what weight he assigned those statements).  Judge Robart also focused on the text of the order itself, citing the preference in section 5(b) for individuals in a religious minority within their country of nationality.

Second, Judge Robart emphasized the absence of evidence supporting the temporary ban on individuals from the seven countries.   He indicated his belief that the order was arbitrary, a conclusion supported by the fact that no person from any of the seven countries has been implicated in a fatal terrorist attack in the United States since 9/11. “I have to find that [the order] is grounded in facts as opposed to fiction,” he said, suggesting the order might not even pass minimum rational basis review, let alone heightened scrutiny based on its discriminatory purpose.

Third, Judge Robart suggested that the executive’s claims of sweeping authority under the plenary power doctrine were inconsistent with the Supreme Court’s trio of War on Terrorism cases.   These cases—Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush—undercut the government’s arguments in multiple ways.  Perhaps most significantly, Boumediene rejects a strict territorial application of the Constitution to non-citizens (including, potentially, to individuals affected by the order) and invalidates executive action that violates constitutional guarantees even where the president acts with express congressional authority during wartime. See Adam Cox’s excellent post here on why the plenary power doctrine does not support the broad position the government claims in defending the travel ban.

Fourth, Judge Robart appeared sympathetic to the states’ statutory arguments, particularly those under 8 U.S.C. 1152(a)(1)(A), which prohibits discrimination in the issuance of immigrant visas based on, inter alia, nationality, place of birth, or place of residence.  As Judge Robart noted, this provision post-dates INA section 212(f), which allows the president to suspend the entry of aliens or categories of aliens where he finds it to be “detrimental to the interests of the United States.”  Judge Robart thus appeared unsympathetic to the government’s claim that the case falls within Youngstown’s first category (where the president acts pursuant to a congressional authorization).  Judge Robart, to be sure, did not indicate how he would address the government’s argument that the president must necessarily be allowed to exclude based on national origin since he could not otherwise suspend the entry of enemy aliens in wartime.  But one might read section 1152(a)(1)(A) as not disturbing the distinct, Founding Era authority concerning enemy aliens (50 U.S.C. 21 et seq.), which is limited to citizens or subjects of nations with which the United States is at war and which is rooted in notions of divided loyalty rather than the type of discriminatory animus toward particular nationalities that motivated the passage of section 1152(a)(1)(A).

Finally, it is important to underscore the context in which Judge Robart and others are considering these challenges.  Trump’s anti-Muslim statements not only bear directly on the challengers’ Equal Protection and Establishment Clause claims, but they weaken the government’s arguments for deference to the executive.   So do Trump’s unwarranted personal attacks on judges.  Trump initially labeled Judge Robart a “so-called judge” who issued an “outrageous” ruling—an assault in line with his attacks during the campaign on the integrity of Judge Gonzalo Curiel. Trump then resumed his attack, stating—in a flagrant breach of constitutional norms—that Judge Robart had put the United States “in peril.”  These statements will only stiffen judicial resistance, as they may be (rightfully) perceived as attacks on the judiciary itself. (Note Judge Robart’s defense of the judiciary’s essential role in the tripartite system of government in his order before the president launched his attacks).  Additionally, a president whose interactions with foreign governments seem unusually reckless in provoking international tensions can only undermine the administration’s arguments for deference in foreign affairs.  Whether, and to what extent, these external events find their way into judicial thinking is uncertain.  Nonetheless, the larger atmosphere in which these challenges are being litigated not only reinforces the merits of the anti-discrimination and due process claims, but also underscores the urgent need for the courts to act as a check on the president. 

About the Author(s)

Jonathan Hafetz

Professor of Law at Seton Hall University School of Law Follow him on Twitter (@JonathanHafetz).