With the Trump Administration arguing in court that it should be allowed to start enforcing its new immigrations restrictions seven days from now, the effort by objecting states to block the presidential action quickened on Thursday. The states of Washington and Minnesota, joined by a new ally – New York State, have asked a federal judge in Seattle to apply a prior ruling against President Trump to the new executive order that was issued Monday.
Judge James L. Robart
That move came one day after the state of Hawaii began its own, separate challenge. While the Hawaii case has been put on a fast track by a federal judge in Honolulu, it seemed possible that action might come even more quickly in the Seattle courtroom of Judge James L. Robart.
It was Judge Robart who last month issued a nationwide order forbidding enforcement of key provisions of the original January 27 White House order to temporarily stop immigration from foreign nationals from a list of Mideast nations with majority Muslim populations. The U.S. Court of Appeals for the Ninth Circuit turned aside an Administration challenge to the Robart order.
On Monday, when Administration lawyers filed a copy of the revised restrictions with Judge Robart, they argued that his enforcement ban applied only to the original version. Since government officials had acted to cure the court rulings against the first version, there was no need to impose a new enforcement ban, the document argued. If states wanted to challenge the revised version, they could do so in a non-emergency proceeding, to allow Judge Robart “a more complete opportunity to assess the provisions of the new executive order.”
That was the argument that lawyers for the three objecting states sought to counter on Thursday afternoon. In a press conference and telephone conference call, lawyers for the states said there was no need to start over with a new challenge because, they contended, their continuing claim is aimed at some of the same approaches pursued in the new order and in the old. Thus, they contended, Judge Rohart’s existing nationwide order against enforcement operates fully against the revised order.
In a court filing later in the day on Thursday, lawyers for Washington and Minnesota formally disputed the Trump Administration argument that the Robart order only applies to the president’s first executive order.
That filing discussed two options that they said were available to Judge Robart, with the first the fastest method of making clear that the new order, too, cannot be enforced.
Under that option, the judge would simply confirm that his prior order remains in full effect, and encompasses the second version’s mostly repeated suspension of entry from the specified Mideast nations and of entry of refugees from all nations. Presumably, the judge could take that step in a simple order, treating the government’s submission of the new version as a motion to modify his order and then denying such a motion.
The second option, which would take a few days more, would apply if the judge were inclined to accept the government argument that his prior order does not cover the second version. In that event, the states’ lawyers asked that a hearing be held before the judge took that step, allowing the states to argue against it.
Judge Robart is expected to act quickly, since the new executive order is due to go into effect next Thursday.
Much of the new court filing relies upon public statements by President Trump and his top aides suggesting that the second version simply follows the same policy approach as the first, with only slight changes.
Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011 and has covered the Supreme Court since 1958. His work also appears on lyldenlawnews.com, where this story first appeared.
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