I had fully intended to write another column postulating that our president and a few of his advisors are nothing short of blithering idiots (you know, the usual thing), but then I got hooked into the modern world of technology and instead sat through the entire hour-long oral arguments hearing in Washington v. Trump, which turned out to be fascinating. The Ninth Circuit Court of Appeals helpfully live-streamed the audio of a conference call where the lawyers from the Trump administration and the state of Washington made their case to a three-judge panel, on the merits of the temporary restraining order that a district judge in Washington issued that shut down President Trump's executive order banning people from seven countries from entering the United States. So any citizen could, in effect, sit in the courtroom and hear the cases made. I have to admit a certain level of wonky awe that this is the world we live in -- where such things are not just possible, but are now routine.
I am personally not a lawyer (nor do I play one on the internet), so this isn't going to be an expert legal analysis of the arguments made and the judges' reactions and questions. Just to let everyone know, up front. Instead I only have my own snap reactions to hearing the arguments made, in a few "judicial jottings" (cue: critics of my love of alliteration... heh).
The hearing was sort of a mirror image of the actual case at hand, due to the way these things are handled. The timeline started when President Trump signed the executive order. Then, chaos ensued. Washington state (and Minnesota) then quickly filed a case, and a federal judge issued a "temporary restraining order" -- an emergency injunction which halted all implementation of the entire executive order, everywhere. Temporary restraining orders are supposed to be, well, temporary (it's right there in the name). What is supposed to follow is a hearing by the original judge on whether he should issue an injunction that is a lot less temporary. Then the original case is supposed to go to trial, be ruled upon, and then (if necessary) appealed to the appellate court level before (possibly) ultimately winding up before the Supreme Court.
So there are three steps to the process. Step one is the plaintiff asks for an immediate "stay" of the law in question, to provide immediate relief for the legal harms being imposed. Then both sides argue whether this stay should be permanent, or lifted. The judge rules on this, then the case proceeds to trial, where the merits of the two legal arguments are ruled upon. Washington, in this case, won a temporary restraining order (or "T.R.O." as the legal folks say) that was pretty sweeping in nature (it halted the entire executive order everywhere in the country). So what was being argued today was an appeal of the T.R.O., by the government, whose position was that the T.R.O. itself was causing irreparable harm and should be immediately lifted. This, as I said, is kind of a mirror image, or "cart before the horse" argument, forcing the Trump administration to argue that chaos at the airports is actually the desired situation -- and that removing this chaos is actually what is causing irreparable harm. But the government was the one who appealed the case, so that's the argument that had to be made.
As for today's hearing, it was interesting to hear not only both sides make their case, but also both sides being forced to defend their case to tough questioning as well. The Trump administration lawyer went first, and spoke for about a half an hour, followed by the solicitor general of Washington for another half-hour, with a short period of rebuttal at the end given to the Trump lawyer.
Much of the time was taken up on the question of standing. To bring a case to a federal court, the plaintiff has to prove they have standing to do so. Attacking standing is a common defense (especially in cases which raise constitutional questions), which the Trump lawyer tried to do. At the heart of this argument is the fact that constitutional rights are conditional. An American citizen has constitutional rights (or is supposed to) anywhere in the world, for the federal court system's purposes. If the federal government tried to, say, abduct a person in a foreign country and then send them to Guantanamo Bay for questioning, they would have standing to file a federal lawsuit in a federal court -- even though they were not on United States soil when abducted. A non-U.S. citizen would not have the same rights, or the same standing to sue in federal court. That's the basic theory, although in practice it's more complicated.
Rights hinge on your legal status with America, and with where you geographically are. A non-citizen who was in America (inside an American state or territory) also has many constitutional rights -- the Constitution differentiates between "citizens" and "people" in many parts, but mostly "people" are the ones given constitutional rights, meaning anyone in America of any legal status can claim them in federal court.
One final consideration is the immigration status of the individual. A legal permanent resident (or "green-card holder") is, with very few exceptions, granted the same rights and duties as citizens. The only exceptions I am aware of are: the ability to hold certain sensitive government jobs which for security or constitutional reasons (such as the presidency itself) are limited to citizens; being able (and required) to serve on juries; and the right to cast a vote. Other than those three, if you've got a green card, you get the same rights as citizens. Including the right to travel freely beyond America's borders, knowing you will be able to freely re-enter.
A strange loophole to all of these basic definitions exists, though, at border crossings. U.S. citizens have constitutional rights worldwide. So do green-card holders, for the most part. Non-residents usually only have these rights when physically on American soil. But border crossings are technically a no-man's land in international law, and always have been (indeed, this is how the "man without a country" problem happens). Even though a person who is on the ground at J.F.K. airport is obviously on U.S. soil, controlled by the American government with not even a question of another country's sovereignty regulating that ground, technically they are not legally in America until they pass through the border and customs gates. For instance, this means they can be refused entry and turned around to return from wherever they just arrived from -- without actually being deported. "Deported" means sent from America to another country. But technically, you don't enter America until you clear customs and immigration -- if they want to remove you, they can do so without any possible intervention by an immigration judge.
So the Trump administration's standing argument started from "it doesn't affect anyone within America, therefore the constitutional question doesn't even exist, since these people have no constitutional rights." But this quickly devolved into an argument over whether others that did have standing could sue on their behalf. Would a citizen who is married to a man who is denied entry have standing to sue in federal court? Apparently, she does. Would a university who wanted to bring in a visiting scholar who was denied entry have standing to sue in order to win entry? Turns out they do, too. [Note: Legal readers will already know the cases referenced in the arguments, but I must forget I didn't jot down the precedents by name, sorry.]
Washington state has their own university system. And there are plenty of citizens in Washington who have family members from the seven countries affected. When the Washington lawyer got his time, he expounded at length on how the state was claiming standing, in multiple ways. Standing is an important issue, because if the government can prove standing doesn't properly exist, then that's the end of the whole case, right there.
The Washington solicitor general got some pointed questions on his assertion that the Trump administration is targeting Muslims by its order. This is just one of the many arguments Washington put forward in its case, it bears mentioning. The judge essentially made the Trump administration's case that the president was allowed to ban people based on their nationality, given the fact that we've (in just one example) treated people from Cuba differently than any other foreigners, based solely on the fact that they were from Cuba. He pointed out that the ban, by his own admittedly back-of-the-envelope estimate, only affected something like 15 percent of Muslims worldwide and could therefore not be a "Muslim ban."
The Washington lawyer argued back that that was not the correct legal test to use, since discrimination cases (religious or otherwise) have never had to prove that every single person in any affected class is impacted by an unconstitutional law. Also, that an unconstitutional law, by definition, adversely affects every single American. He also pointed out there was plenty of evidence already that the Trump administration was acting in bad faith, from Trump's own unveiling of the plan on the campaign trail to recent comments by Rudy Giuliani, who was tasked with drafting the measure. At one point the Washington lawyer pointed out that it was very unusual to have such extensive evidence on the intent behind a law or rule before discovery even happens. This case was filed very quickly (the Monday after the Friday when Trump signed the order), and the discovery phase hasn't even begun yet. That's when Washington will be able to depose people involved with drawing up the order (like Giuliani) and dig out any other evidence they can. This is the normal place where discrimination claims are proven, but with the public statements already made by the Trump team, it's pretty obvious what their intent was.
As I said at the start, I'm no lawyer, so I certainly wasn't taking legal notes while raptly listening to the arguments. There were plenty of other issues brought up, some of which you could figure out from the context of the question and some of which were nothing short of legal arcana.
The tilt of the judges seemed as obvious as it usually seems at the Supreme Court during oral arguments. Two of the three judges seemed ready to rule in Washington's favor, and continue the temporary restraining order. They can always review it later, if the district court does issue a more-permanent injunction, after all -- which would give both sides the opportunity to flesh out their own arguments to include much more detail. One of the judges seemed to be leaning pretty heavily towards the Trump interpretation, but even he didn't sound fully convinced on all the positions taken by the Trump administration.
I realize that predicting how judges will rule is the most dicey of any political prognostications (there's that penchant for alliteration, again), but it wouldn't surprise me in the least if this three-judge panel ruled in favor of Washington by 2-to-1 or even unanimously. The interesting thing -- and I do caution that this entire process only deals with the temporary restraining order, and not the actual core arguments of the case -- is that with the Supreme Court stuck at eight members (there's simply no way a ninth justice will be confirmed before this decision happens, if it does make it to the Supreme Court), if they reach a 4-4 tie, this means that the appellate court ruling will stand. If the appellate court rules against Trump, that would mean the temporary restraining order will likely continue throughout the entire legal process the meat of the case will follow. Which would probably mean months and months (at least) before Trump could ever see his executive order go back into effect.
CORRECTION: When first published, this article referred to the "attorney general of Washington state." This has been corrected to the "solicitor general," and we apologize for the error.
-- Chris Weigant
Follow Chris on Twitter: @ChrisWeigant