This column by ACRU Fellow Ken Klukowski was published February 3, 2017 by Breitbart.
In an unusual move, a federal judge in Washington State granted a nationwide emergency order on Friday night blocking President Donald Trump’s executive order restricting immigration travel, declaring the order unconstitutional. The Trump Justice Department can now appeal the order on an expedited basis.
Washington Attorney General Robert Ferguson filed suit against the president and the U.S. Department of Homeland Security in U.S. District Court for the Western District of Washington on behalf of his state and the State of Minnesota, alleging that the order violates the U.S. Constitution and multiple federal statutes. The plaintiffs asked for a temporary restraining order to halt the order on an emergency basis.
In its amended complaint, the plaintiffs argue that “practices that discriminate against any of [Washington’s] inhabitants because of race, creed, color, or national origin are matters of public concern that threaten the rights and proper privileges of the State and harm the public welfare, health, and peace of the people.”
Washington argued that roughly 7,280 aliens in the Evergreen State are from countries impacted by the president’s order, and that the state has legal standing to litigate over possible economic detriments that companies within the state would endure as a result of the order.
The ten-count lawsuit argued that President Trump’s executive order violated a host of constitutional rights and federal statutes. While this included typical claims relating to Fifth Amendment due process and equal protection, it also included what many legal scholars consider weak claims, such an insisting that the order amounts to an unconstitutional establishment of religion, and that it violates the Religious Freedom Restoration Act (RFRA).
A temporary restraining order (TRO) is one of the most extreme measures a federal court can take, often issued without full briefing, argument, and other central elements of judicial process. As such they are very rare, reserved for situations where the court cannot even go through an accelerated legal process to grant a preliminary injunction.
Judge James L. Robart issued the order orally at the end of this afternoon’s court hearing in Seattle, declaring that the plaintiffs have a substantial likelihood of ultimately prevailing on the legal merits of the case, that without the TRO the plaintiffs would suffer irreparable harm, and that issuing the TRO is in the public interest.
The brief notation posted on the court docket after the verbal order specifies that a written order will be filed later, providing greater detail. In the meantime it is not entirely clear which of the ten counts Judge Robart — who was appointed to the bench by George W. Bush—thinks the executive order violates.
The U.S. Department of Justice can immediately appeal this ruling to the U.S. Court of Appeals for the Ninth Circuit, though it will be difficult to do so before Judge Robart releases his written opinion. If that San Francisco-based appeals court affirms the order, then the federal government can seek an emergency stay from the U.S. Supreme Court.
The case is Washington v. Trump, 2:17-cv-141.