State of Washington and State of Minnesota v. Trump, 847 F.3d 1151 (9th Cir. 2017), was a lawsuit that challenged the constitutionality of Executive Order 13769, issued by U.S. president Donald Trump.
A few days after the executive order was signed, on January 27, 2017, the state of Washington filed a suit alleging that it abrogated the equal protection under the law guaranteed in the Fifth Amendment to the United States Constitution by discriminating among residents of the state according to their nation of origin or religion. The lawsuit also alleged that the order violated the Establishment Clause of the First Amendment by disfavoring Islam and favoring Christianity.(Complaint 1 ¶ 41-52, January 30, 2017) Washington v. Trump (W.D.Wash.) The federal government argued that the Constitution granted the president "unreviewable authority" over immigration matters and that the non-citizens the executive order affected did not have due process rights.Washington v. Trump (9th Cir.) at 13, 19-21
On February 3, 2017, Judge James Robart issued a nationwide temporary restraining order which forbade the federal government from enforcing certain provisions of the order. The federal government, in turn, filed an appeal with the United States Court of Appeals for the Ninth Circuit. That court, however, denied the government's request to stay the temporary restraining order as the federal government failed to show it was likely to succeed at trial, thereby maintaining the prohibition on the government in enforcing the executive order.
Background
During his initial election campaign, Trump had proposed a temporary, conditional, and "total and complete" ban on Muslims entering the United States. His proposal was met by opposition by U.S. politicians. Mike Pence and James Mattis were among those who opposed the proposal. On June 12, in reference to the 2016 Orlando nightclub shooting that occurred on the same date, Trump, via Twitter, renewed his call for a Muslim immigration ban. On June 13, Trump proposed to suspend immigration from "areas of the world" with a history of terrorism, a change from his previous proposal to suspend Muslim immigration to the U.S; the campaign did not announce the details of the plan at the time, but Jeff Sessions, an advisor to the Trump campaign on immigration, said the proposal was a statement of purpose to be supplied with details in subsequent months. In a speech on August 31, 2016, Trump vowed to "suspend the issuance of visas" to "places like Syria and Libya." Donald Trump was elected president of the United States and inaugurated on January 20, 2017. A week later on January 27, he signed the executive order. Affected travelers immediately began filing legal challenges to the order through habeas corpus petitions and injunctive relief.
On January 30, 2017, the State of Washington — represented by Washington State Attorney General Bob Ferguson, with the support of Washington Governor Jay InsleeJim Brunner, AG Bob Ferguson files lawsuit — first by any state — to invalidate Trump's order, Seattle Times (January 31, 2017).—filed a civil action in the United States District Court for the Western District of Washington, against Trump and the U.S. Department of Homeland Security. The state's suit asked the court for declaratory relief (a declaration that the executive order violates the Constitution) and injunctive relief (to block enforcement of the executive order). The state also filed a motion for a temporary restraining order, seeking an immediate halt to the executive order's implementation. On February 1, 2017, an amended complaint was filed adding the State of Minnesota as a plaintiff alongside Washington.TRUMP EXECUTIVE ORDER LAWSUIT: HEARING SET FOR SEATTLE FEDERAL COURT FRIDAY: Wash. AG Ferguson, joined by Minnesota AG Swanson, files amended complaint (press release), Office of the Washington Attorney General (February 2, 2017).
District Court proceedings The State of Washington alleged nine causes of action in its original complaint. A tenth cause of action was added in the amended complaint filed by Washington and Minnesota.FIRST AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF, Washington v. Trump, 2:17-cv-00141-JLR (W.D. Wash. February 1, 2017).
No.Cause of actionAuthority 1That the executive order violates the Due Process Clause of the Fifth Amendment by denying the equal protection of the lawsFifth Amendment, Fourteenth Amendment 2That the executive order violates the Establishment Clause of the First Amendment by preferring one religion over anotherFirst Amendment 3That the executive order violates the Fifth Amendment right to procedural due processFifth Amendment 4That the executive order's discriminatory visa procedures violate the Immigration and Nationality ActImmigration and Nationality Act 5That the denial of asylum and withholding of removal violate the Immigration and Nationality ActImmigration and Nationality Act 6That the executive order violates federal statutory law (Foreign Affairs Reform and Restructuring Act of 1998, 8 U.S.C. § 1231,implementing the United Nations Convention against Torture (ratified by the U.S. in 1994))Foreign Affairs Reform and Restructuring Act of 1998,United Nations Convention against Torture 7That the executive order violates the Religious Freedom Restoration ActReligious Freedom Restoration Act 8That the executive order is a procedural violation of the Administrative Procedure ActAdministrative Procedure Act 9That the executive order is a substantive violation of the Administrative Procedure Act.Administrative Procedure Act10That the executive order violates the Tenth Amendment.Tenth Amendment.
The Government argued that the federal courts do not have the authority to review executive actions regarding immigration because the Constitution gives the President of the United States "unreviewable authority" over immigration matters.Washington v. Trump (9th Cir.) at 13
On February 3, 2017, Judge James Robart issued a temporary restraining order enjoining the enforcement of the executive order nationwide, and entered a temporary ban regarding immigration restrictions, then directed the parties to the action to file any briefs in support of a preliminary injunction by February 6, 2017. White House Press Secretary Sean Spicer said in a statement "At the earliest possible time, the Department of Justice intends to file an emergency stay of this outrageous order and defend the executive order of the President, which we believe is lawful and appropriate. The President's order is intended to protect the homeland and he has the constitutional authority and responsibility to protect the American people." Spicer immediately issued an updated statement removing the word 'outrageous'.
During the proceedings, Judge Robart requested the defense provide statistics on the number of arrests of nationals from the seven countries since 9/11, thus supporting their burden of proof. The defense failing to provide such evidence forced Robart to incorrectly conclude no extremist arrests had occurred.Tucker, Eric. (February 6, 2017). "AP FACT CHECK: No arrests from 7 nations in travel ban? Nope". AP website Retrieved February 13, 2017.
Trump responded by tweeting, "The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!" Senate Minority Leader Chuck Schumer said that the President showed "a disdain for an independent judiciary that doesn't always bend to his wishes and a continued lack of respect for the Constitution, making it more important that the Supreme Court serve as an independent check on the administration. With each action testing the Constitution, and each personal attack on a judge, President Trump raises the bar even higher for Judge Gorsuch's nomination to serve on the Supreme Court. His ability to be an independent check will be front and center throughout the confirmation process."
On February 13, Judge Robart issued a preliminary injunction on the executive order. The District Court stated in its order that since the 9th Circuit Court had ruled the TRO would be treated as a preliminary injunction, the Court need not continue briefing on the request for preliminary injunction, but instead directed the parties to commence discovery proceedings, stating in his order the matters bound up in the TRO/injunction were on appeal to the 9th Circuit Court of Appeals.Order Converting TRO to Preliminary Injunction
On March 13, 2017, the Washington State Attorney General filed a second amended complaint addressing executive order 13780 and moved the court to enjoin enforcement of the order under the current preliminary injunction previously issued which barred enforcement of executive order 13769 by filing a motion for emergency enforcement of the preliminary injunction. The State of Washington in their second amended complaint asked the Court to Declare that Sections 3(c), 5(a)–(c), and 5(e) of the First Executive Order 13769 are unauthorized by and contrary to the Constitution and laws of the United States, and that the United States should be enjoined from implementing or enforcing Sections 3(c), 5(a)–(c), and 5(e) of the First Executive Order, including at all United States borders, ports of entry, and in the issuance of visas, pending further orders from this Court. The State of Washington also asked the Court to declare that Sections 2(c) and 6(a) of the Second Executive Order 13780 are unauthorized by and contrary to the Constitution and laws of the United States, and that the United States should also be enjoined from implementing or enforcing Sections 2(c) and 6(a) of the Second Executive Order 13780, including at all United States borders, ports of entry, and in the issuance of visas, and enjoin the United States from implementing or enforcing Section 5(d) of the First Executive Order 13769 and enjoin the United States from implementing or enforcing Section 6(b) of the Second Executive Order 13780. The Court subsequently issued an order directing the United States to file a response to the emergency motion to enforce the preliminary injunction by March 14, 2017.
Ninth Circuit proceedings
On February 4, 2017, the United States filed an emergency motion in the U.S. Court of Appeals for the Ninth Circuit, seeking a stay of the District Court's temporary restraining order. In its request, the federal government contended that the temporary restraining order should be stayed because the judicial branch lacks the authority to review presidential actions over immigration.Washington v. Trump No. 17-35105 (9th Circ.), slip op. at 13-18 The 9th Circuit denied the request for an immediate stay and scheduled oral arguments.Washington v. Trump No. 17-35105 (9th Circ.) slip op. at 6
A three-judge motions panel of the Ninth Circuit heard oral argument on the federal government's motion for a stay on February 7. The panel consisted of Judges William Canby, Richard Clifton, and Michelle Friedland. The arguments were live streamed as is typical for the 9th Circuit but rare in other federal courts.Ann E. Marimow, Federal judges are rarely heard in real-time outside the courtroom. For Trump's travel ban hearing, you can listen live, Washington Post (February 7, 2016). Washington Solicitor General Noah Purcell represented the plaintiff-appellee states of Washington and Minnesota. Lawyers August Flentje and Edwin Kneedler represented the U.S. government to defend the order, replacing Acting Associate Attorney General Chad Readler and Acting Solicitor General Noel Francisco, whom the Trump administration removed from that role just hours before the February 7 hearing.
Amici curiae and proposed intervenors