A Tale of Two Courts – Recap of Washington v. Trump
Love him or hate him, President Trump knows how to make a headline. Recently, it seems as though there is only one headline anyone can talk about: Executive Orders. At the time this post was written, President Trump has signed 21 executive actions. These actions have ranged from steps toward the construction of a wall along the southern border of the United States to the destruction of two existing regulations for the creation of every new one. Reactions to these executive orders have been even more diverse than the orders themselves. While some believe that these orders will help usher in a new era of prosperity and safety within the United States, others are worried about their implications in terms of government spending, environmental destruction, and human rights.
In the midst of this turmoil and debate, the State of Washington has taken a stand and filed a lawsuit against President Trump, the U.S. Department of Homeland Security and other high-ranking officials. Whether the political climate of 2017 has made you jump for joy, grab a picket sign, or wish you had paid more attention in American History (seriously, had anyone actually HEARD of the emoluments clause before now) we will break down what exactly is going on with this lawsuit and what it could mean for us all.
A good place to start is what exactly is an executive order? Maybe you’ve notice there seems to be a lot of confusion about different types of executive action how powerful they can be. This is because there are actually three types of executive actions: executive orders, presidential memoranda, and proclamations.
Executive orders are the most powerful of these executive actions and effectively allow the president to unilaterally create law, a job with is usually reserved for the legislative branch. These executive orders are directed at executive branch officials, not private citizens, and might concern policy or a new way of doing something.
The authority to issue executive orders stem from the president’s grant of executive power in Article II of the constitution, although there is no language which explicitly allows for this ability. Even so, this powerful tool is not without limits. As put by Business Insider:
Both the legislative and judicial branches have the power to reverse an executive order. If the president issues an executive order in accordance with a law passed by the legislative branch and Congress disagrees, they can pass a bill clarifying the law. However, the president has the power of the veto, in which case Congress would have to override the veto with a two-thirds majority in both the House of Representatives and the Senate.
If, however, an executive order pertains to the president's independent constitutional responsibilities, then only the courts can reverse it…[A good example is the] Emancipation Proclamation, an executive order issued by Abraham Lincoln in accordance with his power as commander-in-chief. While Congress did not have the power to override that order, the courts could have declared it unconstitutional.
Now that we’ve laid out some of the basics, let’s move on to the E.O. that’s causing the most controversy, the order signed by the President on which purports to protect the nation from foreign terrorists entering the United States.
You’ve most likely heard of this executive order, so we’ll make it brief. It was signed by President Trump on January 27, 2017, a mere three days before Washington State filed suit. The order places a ban on immigration from 7 Muslim majority countries including Somalia, Iran, Iraq, Libya, Syria, Sudan and Yemen. The stated purpose of this order is for protection. The order itself states that: “In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles. The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law.”
Washington State Attorney General Bob Ferguson has been an outspoken critic of the immigration ban and repeatedly emphasizes the implications it has for immigrant families in Washington who may be separated as a result. The lawsuit itself was filed in a Seattle Federal Court and claims that the executive order is unconstitutional on both religious and due process grounds.
On Friday February 3rd a judge granted a temporary restraining order against enforcement of the executive order on a nationwide scale. In a statement, Judge Robart wrote that “[t]he executive order adversely affects the state’s residents in areas of employment, education, business, family relations and freedom to travel.” Tech companies, including Amazon, have been some of the strongest supporters of Washington State throughout this lawsuit emphasizing the vital role that immigrants have and continue to play in their industry.
Although this restraining order was a huge relief for many, The Department of Justice filed an appeal in the 9th circuit court of appeals in San Francisco. On Thursday February 9, the court of appeals upheld the restraining order much to the dismay of President Trump who tweeted “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” following the decision.
Regardless of what side of the issue you’re on, this case will be one to watch. Although there have already been two court decisions, things are really only getting started. All of the decisions so far have only been in regards to the restraining order, not the executive order itself…yet.
Further, even at this early point, there is already talk of an appeal going all the way up the Supreme Court. Although at the time this article was written the Justice Department has yet to appeal the 9th circuit decision, it’s a very real possibility.
There is also reason to believe that the Justice Department may wait till a ruling on the merits of the executive order, as opposed to an appeal of the restraining order, before making their case to the highest court in the nation. The Supreme Court currently only has 8 members so the possibility of a deadlock is extremely high. If appointed, Neil Gorsuch may very well operate as the fourth vote upholding the constitutionality of the executive order.
The ultimate outcome of this case is anyone’s guess at this point. The significance of these decisions is, however, not up for debate. Whichever way the courts decide to rule, this decision will affect millions of Americas, immigrants, and every single refugee looking to enter this country.
Between countless briefs, motion, and legal jargon, it can get overwhelming to follow cases like these as they maneuver their way through the court system, but we owe it to ourselves to prevail. Knowledge is power and to stay informed on this case is to see the constitution and the political system itself at work in one of the most transparent ways possible. Call us legal nerds, but we think it’s pretty neat.