The Jury Talks Back


Federal Judge In Seattle Halts Enforcement Of Portions Of Trump’s Immigration Order

Filed under: Uncategorized — Patterico @ 8:30 pm

The Hill:

A federal judge in Seattle issued a temporary nationwide restraining order Friday stopping President Trump’s executive order banning citizens of seven countries from entering the United States.

Judge James Robart, who was appointed by former President George Bush in 2003, ruled the executive order would be stopped nationwide, effective immediately.

“The Constitution prevailed today,” Washington Attorney General Bob Ferguson said in a statement after the ruling. “No one is above the law — not even the President.”

“It’s our president’s duty to honor this ruling and I’ll make sure he does,” Ferguson added.

The ruling, made at the request of Washington and Minnesota, is the broadest to date against Trump’s executive order.

The order is here. The order specifies as follows:

It is hereby ORDERED that:

1. Federal Defendants and all their respective officers, agents, servants, employees, attorneys, and persons acting in concert or participation with them are hereby ENJOINED and RESTRAINED from:

a. Enforcing Section 3(c) of the Executive Order;

b. Enforcing Section 5(a) of the Executive Order;

c. Enforcing Section 5(b) of the Executive Order, or proceeding with any action that prioritizes the refugee claims of certain religious minorities; and

d. Enforcing Section 5(c) of the Executive Order;

e. Enforcing Section 5(e) of the Executive Order, to the extent Section 5(e) purports to prioritize refugee claims of certain religious minorities.

It further provides that it is nationwide in scope.

The legal reasoning for the ruling is not set forth in detail. The only law discussed in the order is the legal support for the court’s finding of standing on the part of the plaintiffs, the states of Washington and Minnesota. The Court found standing on the part of the states on the basis that “[t]he executive order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders.” The judge also notes that the states claim an interest in the functioning and missions of their institutions of higher learning, as well as “operations, tax bases, and public funds.”

The leading case on parens patriae standing is Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982). Under this case, a State must be more than “a nominal party without a real interest of its own.” The State “must assert an injury to what has been characterized as a ‘quasi-sovereign’ interest.” This can include the “health and wellbeing — both physical and economic — of its residents in general” but can also include “a similar state interest in securing residents from the harmful effects of discrimination” in order to “ensur[e] that the State and its residents are not excluded from the benefits that are to flow from participation in the federal system.” The Supreme Court found standing for Puerto Rico, while not a state, because of its “state interest in securing residents from the harmful effects of discrimination,” given that Puerto Rico’s residents often suffer from invidious discrimination. The Court found that if there were invidious discrimination as to states across state lines, “we have no doubt that a State could seek, in the federal courts, to protect its residents from such discrimination to the extent that it violates federal law.”

This does not seem to be the case for Washington or Minnesota, which are unlikely to be unable to fully participate in the benefits of the federal system because of the maltreatment of a fairly low number of their citizens.

However, interestingly, mere unemployment (or at least Puerto Rico’s inability to take advantage of federal laws dealing with unemployment) was also found to confer parens patriae jurisdiction on Puerto Rico. This seems to set a fairly low bar for parens patriae jurisdiction.

These are only preliminary thoughts. Clearly the judge’s ruling will be discussed more fully in coming days.

UPDATED to add the parenthetical in the penultimate paragraph.

[Cross-posted at RedState.]


  1. Ding.

    Comment by Patterico — 2/3/2017 @ 8:31 pm

  2. Except theorder doesn’t address any of the underlying issues, I guess they cooked this up on short order, the issue in snapp as I understand it was the plaintiffs were not following federal law which disadvantaged Puerto rivo

    Comment by narciso — 2/3/2017 @ 8:36 pm

  3. Indeed, narciso. We have no idea why the judge ruled as he did, that I know of.

    Comment by Patterico — 2/3/2017 @ 8:39 pm

  4. He was using pro forms arguments assuming the aclu the splc cair will provide stronger ones on appeal

    Comment by narciso — 2/3/2017 @ 8:47 pm

  5. Three things jump out for me. First, how do we define residents for the purpose of the pares patriarch doctrine? For instance, the Concurrence talks about protecting citizens, not mere residents.

    Second, what about Massachusetts vs Mellon that is quoted in Snapp for the proposition that a State cannot assert parens patriae against the federal government?

    Third, did the Supreme Court adopt or reject the Circuit Court standard:

    A divided panel of the Court of Appeals for the Fourth Circuit reversed. [Footnote 6] 632 F.2d 365 (1980). The majority held that the District Court had focused too narrowly on those directly involved, ignoring those that were indirectly affected by petitioners’ alleged actions. Noting the serious dimensions of the unemployment problem in Puerto Rico and the general condition of its economy, [Footnote 7] the court stated that “[d]eliberate efforts to stigmatize the labor force as inferior carry a universal sting,” and the

    “inability of the United States government . . . to grant Puerto Ricans equal treatment with other citizens or even with foreign temporary workers must certainly have an effect which permeates the entire island of Puerto Rico.”

    Id. at 370. These indirect effects on the interests of “a substantial portion of its citizenry” were sufficient, in its view, to support a parens patriae action. Ibid.

    If so, the impact may have to be more substantial than “mere unemployment.”

    Comment by DRJ — 2/3/2017 @ 8:50 pm

  6. Sorry for the long comment. Here is the link for the Snapped opinion

    Comment by DRJ — 2/3/2017 @ 8:51 pm

  7. I focused on this part of the opinion, DRJ:

    Alternatively, we find that Puerto Rico does have “parens patriae” standing to pursue the interests of its residents in the Commonwealth’s full and equal participation in the federal employment service scheme established pursuant to the Wagner-Peyser Act and the Immigration and Nationality Act of 1952. Unemployment among Puerto Rican residents is surely a legitimate object of the Commonwealth’s concern. Just as it may address that problem through its own legislation, it may also seek to assure its residents that they will have the full benefit of federal laws designed to address this problem. The Commonwealth’s position in this respect is not distinguishable from that of Georgia when it sought the protection of the federal antitrust laws in order to eliminate freight rates that discriminated against Georgia shippers, Georgia v. Pennsylvania R. Co., supra, or from that of Maryland when it sought to secure the benefits of the Natural Gas Act for its residents, Maryland v. Louisiana, supra. Indeed, the fact that the Commonwealth participates directly in the operation of the federal employment scheme makes even more compelling its parens patriae interest in assuring that the scheme operates to the full benefit of its residents. [Footnote 16] For these reasons, the judgment of the Court of Appeals is AFFIRMED.

    Comment by Patterico — 2/3/2017 @ 8:58 pm

  8. UPDATED to add the parenthetical in the penultimate paragraph.

    Comment by Patterico — 2/3/2017 @ 9:00 pm

  9. “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,” White House Press Secretary Sean Spicer said in a statement.

    At some point, it seems we’re all waiting to hear Trump say, “Justice Roberts has made his decision, now let him enforce it.” This doesn’t sound like we’re there yet.
    As long as Trump limits himself to lobbing lawyers at his critics, no offense intended, isn’t that how Presidents are supposed to behave when their policies come into question?

    Comment by Quibus Vigilius — 2/3/2017 @ 9:26 pm

  10. The EO does have potentially damaging impacts on universities (including the public universities in the petitioning states).

    Just thinking out loud, but this could include loss of federal aid from various sources.

    For the legal types, I found the original petition here:


    And all the filings (I think) here:

    Comment by Dave — 2/3/2017 @ 9:35 pm

  11. Oops, the link to the filing got messed up.

    Let’s try again:

    Comment by Dave — 2/3/2017 @ 9:37 pm

  12. The original complaint by Washington (which I think was modified to include Minnesota) lists nine “Causes of Action”:

    1) Fifth Amendment – Equal Protection
    2) First Amendment – Establishment Clause
    3) Fifth Amendment – Procedural Due Process
    4) Immigration Act – Discriminatory Visa Procedures
    5) Immigration Act – Denial of Asylum & Withholding of Removal
    6) Foreign Affairs Reform and Restructuring Act – Denial of Convention Against Torture Relief
    7) Religious Freedom Restoration Act
    8) Procedural Violation of Administrative Procedures Act
    9) Substantive Violation of Administrative Procedures Act

    Comment by Dave — 2/3/2017 @ 9:51 pm

  13. And BIn this is pursuant to a revision of us law, the visa waiver revision act of 2015

    Comment by narciso — 2/3/2017 @ 9:54 pm

  14. Interesting that the Washington complaint quotes a number Trump’s statements about banning Muslims during the campaign, including his praise for the internment of Japanese-Americans during WWII and his statement that Christians would be favored over Muslims in admitting refugees.

    Trump’s call for “a total and complete shutdown of Muslims entering the United States” is still posted on his campaign website.

    They go on to allege that Trump’s statements prove the EO was “motivated by animus and a desire to harm a particular group” and thus violate the Fifth Amendment’s equal protection clause and the First Amendment’s establishment clause.

    Comment by Dave — 2/3/2017 @ 10:07 pm

  15. And this was just a,restatement of the law,Obama signed, try again dave.

    Even if that were true, which I don’t believe it is, Obama did plenty of illegal things, so I don’t see how it’s a defense to say “Obama did it”.

    Comment by Dave — 2/3/2017 @ 10:18 pm

  16. They had to get this out at 5PM Friday, hoping the stay wouldn’t come until Monday and they could then have another in-transit batch allowed in, while repeating all the sob stories.

    Comment by Kevin M — 2/3/2017 @ 11:42 pm

  17. The EO does have potentially damaging impacts on universities (including the public universities in the petitioning states).

    The Butterfly Effect theory of injury; with this you can prove ANYTHING.

    Comment by Kevin M — 2/3/2017 @ 11:47 pm

  18. Puerto Rico sued on behalf of Puerto Ricans, insisting that they not be discriminated against.

    Here, Washington State and Minnesota are suing on behalf of persons who have NEVER BEEN in the USA, let alone Washington State or Minnesota, on the basis of [underpants gnomes step 2] might change if they were allowed in.

    This will fall due to standing.

    Comment by Kevin M — 2/3/2017 @ 11:53 pm

  19. I think Massachusetts vs Mellon applies to deny standing where the objectionable actions are by the federal government rather than a third party acting pursuant to a federal law. The issue is whether the State has a sufficient interest and while I like the idea of States’ rights, national security and immigration law are federal matters.

    Comment by DRJ — 2/4/2017 @ 6:14 am

  20. I think there is only area where the Court has allowed standing to challenge federal policies (as opposed to parens patriae standing to challenge third parties acting under federal law), and that is the establishment of religion cases like Flast vs Cohen and its progeny.

    Comment by DRJ — 2/4/2017 @ 6:34 am

  21. Note that the Snapp case is against the individuals and companies that employed apple pickers in Virginia, but did not hire the Puerto Rican workers. So even if there is a low bar for a State to assert parens patriae standing based on economic harm, it may not use that standing to challenge government policies (except when it involves religion).

    Comment by DRJ — 2/4/2017 @ 6:42 am

  22. No one seems to note. Puerto Rican’s are all US citizens. Jones Act 1917.

    Comment by Tom Fulano — 2/4/2017 @ 7:10 am

  23. OT but you might like this, Patrick.

    Comment by DRJ — 2/4/2017 @ 7:15 am

  24. And this. He’s hilarious.

    Comment by DRJ — 2/4/2017 @ 7:27 am

  25. Last one, I promise: “Journalism is a bunch of nerds interrupting people who know what they are doing.”

    Comment by DRJ — 2/4/2017 @ 7:31 am

  26. The link for 23 does not work for me.

    Comment by Patterico — 2/4/2017 @ 9:24 am

  27. Or 24 or 25. Something about the app being desktop. Can the links be presented in another form?

    Comment by Patterico — 2/4/2017 @ 9:25 am

  28. Off topic: I never made it all the way through that Matthew Vadum piece on Monica Crowley’s plagiarism, for a few reasons: 1) Insufficient time when I started; 2) insufficient interest to return to it, because a) I don’t trust Matthew Vadum; b) rather than beginning with dismantling the plagiarism accusations, there was a lot of ad hominem IT’S THE MEDIA! IT’S FAKE NEWS! stuff, c) their strongest arguments seemed to be things like “plagiarizing Wikipedia isn’t plagiarism!” and “this series of replications of the same ideas in the same order in the same words is not plagiarism because the ideas are so commonplace!”

    My overall impression is that they make a case that Crowley included sources for some, but not all, of the sources that she plagiarized at length with no quotation marks. If so, CNN should have said so, but does that really show she didn’t plagiarize? If she really sourced everything but also lifted passages of dozens or hundreds or words verbatim without quotation marks, are we now saying that’s OK?

    I know Andrew McCarthy took up for her, but Andrew McCarthy is her pal. It still seems like there are an awful lot of passages lifted wholesale without quotation marks, even if sources are listed. Would Andrew McCarthy really tell his kids it’s OK to write a paper that way?

    Is it really worth my finishing the Vadum article? Because the first several examples had me almost laughing out loud at how bad it was. The approach was: let me take the absolute weakest cases for plagiarism and attack those, and they still looked like plagiarism. (Earth to Vadum: yes, plagiarizing Wikipedia is plagiarism.)

    Comment by Patterico — 2/4/2017 @ 9:41 am

  29. And if someone really lifted passages from her dissertation and placed them all over Wikipedia to frame her, that is one of the biggest political scandals of all time and should be provable by reference to the editing history. So prove it. Don’t just shrug your shoulders and say: gee, it could have happened. That’s partisan pablum for suckers, in my opinion. But I know some people have been impressed by the article, so I am asking genuinely why they find it compelling.

    Comment by Patterico — 2/4/2017 @ 9:44 am

  30. So even if there is a low bar for a State to assert parens patriae standing based on economic harm

    But don’t you have to be acting on behalf of actual victims? Like, maybe being able to name some?

    Comment by Kevin M — 2/4/2017 @ 10:02 am

  31. I don’t know if being able to name the people is a requirement. I doubt it.

    It seems to me that this executive order affects people who are already here. I have several immigration lawyers on podcasts saying they are advising their clients not to travel because the situation is too chaotic and they are worried they might be detained upon their return.

    Comment by Patterico — 2/4/2017 @ 10:07 am

  32. This may be a shorthand version on the Crowley story, although focus on the Chu parts. (Ignore Morrissey’s opinions, which I find distressingly and consistently unreliable.) In summary, Crowley may have sourced many but not all of her quotes in footnotes, but failed to use quotes. Some people find the requirement to use quotes as overly technical. Some, like me and apparently HarperCollins, don’t.

    Comment by DRJ — 2/4/2017 @ 10:10 am

  33. My other links were to a comedian named Bill Burr talking about politics with Conan at the Team Coco website. I’m not sure why the links didn’t work for you but they are off-topic anyway. Funny but off-topic.

    Comment by DRJ — 2/4/2017 @ 10:15 am

  34. I think that link was malformed, DRJ.

    Comment by Patterico — 2/4/2017 @ 10:16 am

  35. In summary, Crowley may have sourced many but not all of her quotes in footnotes, but failed to use quotes.

    So on this basis I had people telling me that the CNN story was “fake news”?


    Comment by Patterico — 2/4/2017 @ 10:17 am

  36. Trump’s order is scaring immigrant and attorneys because it is hard to understand the scope and how it will be implemented, but there is also this section that may have even wider implications. I know legal immigrants who will not be leaving the U.S. for any reasons, including visits with foreign family and travel for tourism, because they fear not getting back in.

    Comment by DRJ — 2/4/2017 @ 10:23 am

  37. I’m using the link button. Are any of my links working? Maybe I need to use HTML code to add them instead.

    Comment by DRJ — 2/4/2017 @ 10:25 am

  38. Here is the link. I didn’t notice it before but the link button is adding additional code to each link.

    Comment by DRJ — 2/4/2017 @ 10:28 am

  39. > I know legal immigrants who will not be leaving the U.S. for any reasons, including visits with foreign family and travel for tourism, because they fear not getting back in.

    Given the lack of clarity about the scope and implementation of the EO, I think that any lawyer advising a legal immigrant has a responsibility to advise them to do this. “Look, it’s *possible* that there is no risk, but it’s also *possible* that you won’t be able to get back in, and I can’t tell you with any certainty which is the case.”

    Comment by aphrael — 2/4/2017 @ 10:28 am

  40. That was the link for my comment 32.

    Comment by DRJ — 2/4/2017 @ 10:28 am

  41. Kevin M – I very much doubt that the 9th circuit is going to stay this order. The Supreme Court might.

    Comment by aphrael — 2/4/2017 @ 10:29 am

  42. DRJ,

    Your YouTube links are formatted properly but the links are weird, and look like this:

    I am now able to watch them by removing the “m/” and the “#/” from the address. (One is for mobile devices and should not present a problem, but I have no idea where the hash mark came from).

    In comment 32 you have no usable URL, just this:

    Which probably comes from putting the name Barbara Alberstadt where the URL should go.

    Comment by Patterico — 2/4/2017 @ 10:29 am

  43. Here is the link. I didn’t notice it before but the link button is adding additional code to each link.

    Yeah, I came to the same conclusion. Not sure what’s going on there.

    Comment by Patterico — 2/4/2017 @ 10:30 am

  44. Sorry about that. I was watching Charlie Wilson’s War and trying to find this by Googling his wife’s name:

    After Sunday’s service, his widow, Barbara, welcomed a small group of her late husband’s intimates to their home on the golf course in Lufkin. Next to an American eagle sculpture in the living room, the words of Abdur Rahman Khan, emir of Afghanistan from 1880 to 1901, are emblazoned on a brass plaque: “My spirit will remain in Afghanistan even though my soul will go to God. My last words to you my son and successor are: Never Trust The Russians.”

    wise words for then and now.

    Comment by DRJ — 2/4/2017 @ 10:36 am

  45. I can manually format the link or take the extra code out. It’s no big deal.

    Comment by DRJ — 2/4/2017 @ 10:38 am

  46. I’m really having a stupid Team Coco YouTube day. I just watched Timothy Olyphant talk about his experience smoking Willie Weed in Austin. I may need to watch cat videos.

    Comment by DRJ — 2/4/2017 @ 10:45 am

  47. Trump reminds me of Wilson, who was also a womanizing, bad boy, populist patriot. Not surprisingly, I like the Texas version better although I prefer the West Texas version to Wilson’s East Texas type.

    Comment by DRJ — 2/4/2017 @ 10:59 am

  48. aphrael,

    There is uncertainty with any change in laws and administrations, but I agree it will not be good if there is still this uncertainty in 2-3 months.

    Comment by DRJ — 2/4/2017 @ 11:02 am

  49. So on this basis I had people telling me that the CNN story was “fake news”?

    My understanding is that CNN said Crowley plagiarized other works when Crowley had included footnotes for 26 of the plagiarism examples that were omitted by CNN. If so, IMO CNN was misleading. Crowley should have used quotes if they were direct quotes, but she did give credit if she provided footnotes. If CNN did omit the footnotes, it makes CNN look very bad and maybe malicious.

    Comment by DRJ — 2/4/2017 @ 11:11 am

  50. I watched all those. I like him a lot.

    Another good Bill Burr one.

    So he’s at the Ice House in Pasadena tonight, but apparently ticket sales are closed. Too bad.

    Comment by Patterico — 2/4/2017 @ 11:16 am

  51. Patterico–

    IIRC, a lot of FISA suits were thrown out because no case of injury was identified (due to the injuries being secret). The plaintiffs tried claiming that there were injuries (and clearly there were) but secrecy prevented them from naming any. The court said “tough.”

    Comment by Kevin M — 2/4/2017 @ 11:20 am

  52. That is good. Who would imagine that late night comics might understand how our Republic works better than the President?

    Comment by DRJ — 2/4/2017 @ 11:21 am

  53. I very much doubt that the 9th circuit is going to stay this order. The Supreme Court might.

    Why? IANAL, and maybe that colors my judgement, but this seems to push an envelope pretty far. If standing is granted under this claim, where would a state NOT have standing to sue? This is a weaker “effect” argument that Wickard and involves a power pretty clearly reserved to the feds (since 1808).

    Comment by Kevin M — 2/4/2017 @ 11:24 am

  54. There is uncertainty with any change in laws and administrations

    Especially when you have people injecting FUD at every level.

    Comment by Kevin M — 2/4/2017 @ 11:27 am

  55. Ok, I know I promised no more Bill Burr videos but his take on Caitlyn Jenner is funny and a commentary on being PC.

    Comment by DRJ — 2/4/2017 @ 11:38 am

  56. I don’t think the 9th Circuit even has an envelope any more.

    Comment by DRJ — 2/4/2017 @ 11:38 am

  57. DRJ – yeah, I agree that a certain amount of uncertainty is normal around any transition.

    Comment by aphrael — 2/4/2017 @ 11:48 am

  58. Kevin – because the ordinary course for this sort of thing would be to suspend implementation of the law until the court rules on the merits: there’s a risk of imminent harm to the people who are effected by the law, and very little risk of imminent harm if the law’s implementation is postponed – so if there’s any reasonable argument, the district court (and the appeals court) *should* stay the law until the process plays out.

    The ninth circuit might eventually overturn the judge’s decision on appeal – but I expect them to let the stay stand.

    Comment by aphrael — 2/4/2017 @ 11:49 am

  59. Reporting on this judge is starting to make him look kind of unhinged. Here’s a story about him drawing audible gasps from the audience while declaring “black lives matter” in making a ruling.

    This decision seems pretty questionable and soft-headed too.

    Comment by Patterico — 2/4/2017 @ 12:43 pm

  60. 9th will not let this stand. Cir Ct. Judges are a different animal from district court judges. This is a enormous extension of judicial juris based on iffy standing, telling the Pres he can’t determine terms and conditions of non-citizen immigration. Doesn’t even pass the laugh test. Read the Boston decision for actual legal reasoning and consideration of Supre Court precedent. I

    Comment by Shipwreckedcrew — 2/4/2017 @ 1:06 pm

  61. There is a video of the court hearing in Washington on the website. Everyone shud watch.

    Comment by Shipwreckedcrew — 2/4/2017 @ 1:31 pm

  62. Apparently Donald Trump called him a “so-called judge” in a tweet.

    What a baby.

    Comment by Patterico — 2/4/2017 @ 1:34 pm

  63. This article addresses whether the parens patriae doctrine can be used to afford <a href="“>more lenient standing for States than ordinary citizens. It is based on a 2007 Supreme Court case, Massachusetts vs EPA.

    Comment by DRJ — 2/4/2017 @ 1:36 pm

  64. There is a video of the court hearing in Washington on the website. Everyone shud watch.

    Any more details about how we can look it up?

    Comment by Patterico — 2/4/2017 @ 1:36 pm

  65. Is this the video, swc?

    Comment by DRJ — 2/4/2017 @ 1:41 pm

  66. Here’s the link to the video of State of Washington vs. Donald J. Trump, et al.

    Comment by Rick Ballard — 2/4/2017 @ 1:47 pm

  67. very little risk of imminent harm if the law’s implementation is postponed

    That presupposes that Trump’s EO is racist blather.

    Comment by Kevin M — 2/4/2017 @ 1:53 pm

  68. aphrael–

    But the state really has no basis for this. If the level of (speculative) economic harm attributable to small numbers of immigrants not arriving (and why is this not economic benefit?) is all that is needed, then questions of standing have been reduced to trivialities.

    Comment by Kevin M — 2/4/2017 @ 1:56 pm

  69. I assume the State’s argument is that the harm is like a class action suit, where minimal harm multiplied across hundreds or thousands of people becomes major harm.

    And now we are all States’ rights believers, on the left and the right!

    Comment by DRJ — 2/4/2017 @ 2:06 pm

  70. I think the left and the right are equally fair-weather believers in states rights.

    Comment by aphrael — 2/4/2017 @ 2:21 pm

  71. There again this is a converse of the current case

    Comment by narciso — 2/4/2017 @ 2:44 pm

  72. I think the left and the right are equally fair-weather believers in states rights.

    Most people are hypocrites, on both sides.

    Comment by Patterico — 2/4/2017 @ 3:06 pm

  73. I would feel better if the States themselves would start taking their rights more seriously, left, right, or center. If they are content to be mere administrative disctricts for the national government, then we may as well hold an Article V convention for the purpose of striking Article V, and call it day.

    Of course, then these states wouldn’t have standing to challenge the EO, would they?

    Comment by Quibus Vigilius — 2/4/2017 @ 5:35 pm

RSS feed for comments on this post.

Sorry, the comment form is closed at this time.

Powered by WordPress.