Washington v. Trump: What a mess!
Jack Edward Urquhart©
Today, February 7, 2017, the United States Court of Appeals for the Ninth Circuit heard arguments on whether to overturn a temporary hold on two provisions of Trump’s immigration ban.
What a mess!
No one should envy the federal courts as they attempt to unscrew the poorly written and implemented Trump Executive Order on Immigration.
A President’s power in the arena of foreign policy has few limits. This and this alone, may save his Executive Order. However, Trump’s notion that his power is limitless, and his inattention to significant detail is painfully wrong. Trump did not help his cause by campaigning on a promise to prevent all Muslims from U.S. entry.
Trump’s lawyer was forced to concede he had no to evidence to support a single act of terrorism in the U.S. by an immigrant from any of the countries covered by Trump’s ban.
When asked whether the order as written applied even to Legal Permanent Residents, the only truthful answer was, yes. Trump has backed away from that position. However, as one member of the court politely suggested, the order should then be revised.
The procedural posture of the case is a nightmare. Trump demands an emergency stay to rectify an order he considers outrageous by a Federal Judge he has personally insulted. Trump, of course, offered no evidence that anyone would be irreparably harmed if the lower court’s order stands, and the case follows routine injunction and appellate procedures.
The chaos created by Trump’s order and its implementation cannot be questioned. The arguments made by business leaders about the economically harmful results of Trump’s order makes it clear that little thought and planning went into the order.
What a mess!
The mess has ended up on the desks of overworked Federal Judges. Specifically, Federal Judge James Robart incurred Trump’s wrath when he granted the State of Washington’s motion to partially prevent enforcement of Trump’s orders. Judge Robart temporarily halted the ban on refugees entering the United States through lawful programs, and the entry into the United States by all immigrants from 7 predominantly Muslim countries.
Presidential Power
The President has almost unlimited power over foreign policy. “Aliens” have almost no U.S. Constitutional protection. Any attempt to limit a Presidential order on foreign policy faces miles of rough road.
Trump’s immigration order, however, has run into a storm of resistance. Judge Robart is not alone in concluding that – as hard as it is to do – Trump may well have found a pathway to an unconstitutional Executive Order on foreign policy.
Trump’s Appeal
Trump expressed his total disdain of both Judge Robart’s ruling and the Judge himself. Trump demanded an “emergency” stay of the order. Earlier, Trump fired the Acting U.S. Attorney General when she too questioned Trump’s immigration order.
Trump wants Judge Robart’s order out. The stated reason is Trump’s concern about the threat to U.S. security. He denies the order targets specific nationalities, or the Muslim religion. No immigrant from the 7 countries singled out by Trump has committed an act of terror in the U.S.
Trump offered no evidence that immigrants from the 7 countries posed a security risk to the U.S. He did campaign, however, on a promise to ban Muslim immigration all together. And his lawyer was forced to concede that Trump actually made that statement.
The State of Washington sought to halt Trump’s order because it violated the Establishment and Equal Protection Clauses of the U.S. Constitution, and caused economic and human harm that cannot be “repaired’ at a later date with monetary damages.
Washington has been formally joined by Minnesota, and a growing number of other states are lending specific legal and factual support.
Chaos
Washington and supporting filings from a broad array of other sources are filled with evidence of the chaos and disruption caused by the order and its inconsistent enforcement.
Much of the harm from the chaos is human, and ranges from the merely inconvenient, to the tragic, to the absurd. Surprisingly, the harm extends to injury to businesses, small and large.
Ninety-seven well known businesses filed an informative brief describing the immediate and long-term negative impact of Trump’s order.
We also know that Trump’s interpretation of his own order has curiously bounced around. For example, Trump now says, contrary to written order that the ban did not apply to legal permanent residents.
Business Thoughts – Leaders
Ninety-seven leading businesses, including Apple, e-Bay, Facebook, Google, Levi Strauss & Co., and Microsoft, oppose Trump’s ban. These companies agree that Trump’s order “effects a sudden shift in the rules governing entry into the United States,” and is inflicting substantial harm to United States companies – it hinders attracting talent, increases costs, makes it more difficult for firms to compete internationally, and gives global companies a significant incentive to operate outside the United States.
These business leaders cautioned that the “march of time” has discredited efforts, like Trump’s, to display intolerance toward immigrants, and Trump’s order will harm attracting talented workers, increase business costs, decrease U.S. companies ability to compete, and invite retaliation,
The Result
The Ninth Circuit is expected to rule quickly. It has at least a couple of ways to avoid a merit-based decision. It can return the case to the district court. It can find that the states have no standing – or right – to sue.
The likelihood of anyone “winning” this long-long-legal slog is unlikely.
What a mess! And from a fellow who rode into town promising to drain the swamp.