How has the courts system fought back against Trump’s immigration ban? It has happened with a nearly nonstop flurry of legal action throughout the country. Attorneys that flooded to airports nationwide to help detainees became, effectively, first responders to a crisis. And the ACLU — which immediately brought multiple lawsuits against the ban in district courts throughout the country — became the bulwark for long-cherished American values.
It has been as inspiring and important as it has been confusing: the fight has happened with dizzying speed. Now, the stakes are only rising: on Tuesday, February 7, the U.S. Court of Appeals for the 9th Circuit heard oral arguments in a travel ban case — the State of Washington v. Trump — that will likely go to the Supreme Court. Before we move forward, we look back at how a nation of lawyers has formed the front line defense for liberty.
A local start
It began with a lawsuit in the Eastern District of New York. It was Saturday, January 28, the day after President Trump had issued his executive order temporarily banning immigration from seven predominantly Muslim countries and all refugees. In airports throughout the country, the chaos rippled. At JFK in Queens, two Iraqi men, Hamid Khalid Darweesh and Haider Sameer Abdulkhaleq Alshawi, were detained. Darweesh had been an interpreter for the U.S. Army in Iraq; Alshawi’s wife, who was already in Houston with his young son, had worked as an accountant for a U.S. contractor.
With Darweesh and Alshawi as the named plaintiffs, the ACLU brought forth a complaint against the Trump administration that also had national implications. “[Plaintiffs'] detention …. violates their Fifth Amendment procedural and substantive due process rights,” the lawyers wrote, and their “unlawful detention is part of a widespread pattern applied to many refugees and arriving aliens.”
By 8 p.m. or so, the ACLU’s lawyers were standing in front of U.S. District Court Judge Ann M. Donnelly for an emergency hearing in a federal courthouse in Brooklyn. By 9 p.m., the lawyers were out front being cheered by the crowds who’d gathered to protest Trump’s ban.
Even before the lawyers had managed to step outside, word had already spread: Judge Donnelly had granted a national stay against the order. Darweesh and Alshawi would not be deported back to Iraq, and neither would anyone else detained under the ban.
A wide reach
Within minutes of Judge Donnelly’s ruling, there was another. This one came in a case in Virginia and was brought by the Legal Aid Justice Center on behalf of Tareq Aqel Mohammed Aziz and Ammar Aqel Mohammed Aziz, two Yemeni brothers and Green Card holders being detained. In this case, the LAJC won a temporary restraining order, or TRO, from U.S. District Court Judge Leonie Brinkema.
By 1:51 a.m., U.S. District Court Judge Allison Burroughs and Magistrate Judge Judith Dein issued a similar order in Boston. That case was brought by the ACLU of Massachusetts on behalf of two professors at the University of Massachusetts - Dartmouth.
By Sunday morning, working out of the Western District of Washington, Judge Thomas Zilly ordered a stay against the removals of two unnamed individuals, pending hearings this week.
On Tuesday, January 31, ruling on a case brought on behalf of 28 Yemeni-born people, U.S. District Judge Andre Birotte Jr., out of Los Angeles, joined the party with his own TRO.
Those orders were all targeted only at specific elements of Trump’s ban. For example: Judge Brinkema’s order granted access to lawyers for legal permanent residents being detained at DC’s Dulles International, and forbid those residents from being sent back.
In the days after they were issued, they were joined by others in Detroit, San Francisco, and Portland. Within a week, on Friday, February 3, speaking in a court in Virginia, Erez Rueveni, an attorney for the Trump Administration’s Department of Justice, nodded to the suddenly insane workload. “We’re being sued right now in ten different courts,” Reuveni said. “We’re going to be sued tomorrow in 20 different courts."
A big swing
Later that same Friday, all of that pending legislation — surrounding the temporary orders, and brought on behalf of individual named plaintiffs — was superseded by big action out of the placid Pacific Northwest.
In Washington State, attorney general Bob Ferguson — who happened to have landed at Seattle-Tacoma airport during a protest, and was reportedly personally “incensed” by Trump’s ban — brought forth a sweeping legal action. He did so on Monday, January 30. His was not on behalf of an individual, or a group, but the entire state. He claimed the ban brought injury to Washington, and its economy, and its institutions of higher learning, as a whole. By all accounts, it was a pretty audacious move from a man described as “earnest” and “wonky” (and also named, let us not forget, Bob Ferguson).
Ferguson sent out a call to other Democratic attorneys general, but only Minnesota's Lori Swanson joined the lawsuit. Together, the two states declared that the ban, according to CNN, “violates the Establishment Clause in the First Amendment to the Constitution because it shows government preference for one religion over another, and Equal Protection Clause — part of the 14th Amendment — because it discriminates based on religion and national origin.”
Hearing the lawsuit on Friday, federal Judge James Robart in Seattle — an appointee of George W. Bush — suspended Trump’s ban pending further appeals. Quickly, in a stunning breach of protocol, Robart became a personal target of the President. On Twitter, Trump would call him a “so-called judge,” declare that he was putting “our country in such peril,” and suggest that if a terror attack happens, “blame him.”
A firm wedge
And with that, immigration into the country by vetted, legal residents and refugees began again. Leonard Doyle, a spokesman for the International Organization for Migration, told The New York Times that around 2,000 refugees who had been previously been cleared to enter the U.S. would be rebooked. (According to the government’s own estimations, somewhere between 60,000 and 100,000 visa holders were affected by the executive order.)
According to Mary McCarthy of the National Immigrant Justice Center, something like 1,500 lawyers “had volunteered to help travelers pro bono” and were “stationed in shifts at airports across the country, observing customs officials to ensure that the Seattle judge’s ruling was being carried out.” No one knew how long the order against the Muslim ban would hold. Effectively, the lawyers were wedging open a door into the U.S. for refugees and fighting to keep it open for as long as they could.
Help from your friends
On Saturday, the day after Judge Robart’s ruling, the Department of Justice quickly appealed to a higher court, the U.S. Court of Appeals for the 9th Circuit. (Headquartered in San Francisco, it has jurisdiction over all West Coast states, Alaska, and Hawaii, and others). They asked for an immediate administrative stay and were denied. Since, both sides have filed briefs arguing their cases. The Department of Justice has argued that overturning Trump’s travel ban would cause harm to the United States. In their response, our man Bob Ferguson and the state of Washington let themselves get a little sassy:
“Defendants’ argument amounts to claiming that returning to the pre-Executive Order status quo would inflict irreparable harm. But that would mean that until the Order was issued, Defendants were suffering some unspecified, ongoing irreparable harm. That makes no sense.”
As the case has moved forward, support for Washington State’s lawsuit has flooded forth from a wide variety of sources. In Silicon Valley, a gaggle of tech companies including Apple, Facebook, Twitter, and Google filed an amicus brief with the 9th Circuit court opposing the ban. Out of DC, a group of ex-government officials including former Secretaries of State Madeline Albright and John Kerry and former CIA Director Michael Hayden did the same, writing “We view the Order as one that ultimately undermines the national security of the United States, rather than making us safer.”
And after initially not finding much national support, the Washington State lawsuit now has an amicus brief with a co-sign from attorneys general representing New York, California, Connecticut, Delaware, Iowa, Illinois, Maine, Maryland, New Mexico, Oregon, Rhode Island, Vermont, Massachusetts, Pennsylvania, and Virginia, and DC. Altogether, that represents over 40 percent of the U.S. population.
On Tuesday, February 7, the 9th Circuit heard oral arguments in the case. It was a three-judge panel: William C. Canby Jr, who was appointed by Jimmy Carter; Michelle T. Friedland, who was appointed by Obama, and Richard R. Clifton, who was appointed by George W. Bush. Over 100,000 people streamed the hour-long hearing on YouTube, and there were testy exchanges on both sides, with the DOJ lawyer uttering, at one point, “I’m not sure I’m convincing the court.”
On Thursday, February 9, the 9th Circuit court made their ruling: in a unanimous decision, they upheld Judge Robart's decision.
Moments after the ruling was announced, Trump tweeted "SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!"
He's right: State Of Washington v. Trump will continue to work its way through the courts. Because the 9th Circuit panel was not making an overall decision on the travel ban. They were only making a decision whether to uphold Judge Robart's block of the ban, or to reinstate the ban while the case continues.
The Department of Justice can now appeal to the Supreme Court. But since the 2016 death of Antonin Scalia, the Supreme Court has been staffed with eight justices. That makes a 4-4 tie in a decision on the stay highly likely. Which would then mean the Supreme Court would have to uphold the ruling of the 9th Circuit court.
And either way: as we speak, the travel ban is blocked.
On February 9, this post was updated to reflect that the 9th Circuit court had made their ruling.