By Howard Foster -
A party asking a court for an injunction needs to show it will be “irreparably harmed” by the status quo. It’s a heavy burden. The defendant does not need to show anything. So greatly simplifying the Washington State v. Trump lawsuit, the state and the foreigners, the plaintiffs, had to prove they will be harmed by the President’s executive order. In ordinary litigation, the President should not be put to the test to show the executive order was just or even necessary. All that comes later when the case is actually tried. The district judge in Seattle hearing the case saw things in the opposite way. He immediately demanded that the government lawyer prove to his satisfaction that the executive order was necessary for national security. Put on the spot without top secret data at his disposal, the lawyer was left to muttering platitudes about secret intelligence and a possible future attack.
Dissatisfied with the government’s lawyer’s response, the Judge tersely announced he could find no evidence the executive order was needed from his own internet search and entered the injunction. The government’s lawyer should not have had to carry any burden in resisting a temporary injunction. Washington State’s lawyer should have been pressed hard about how the 90 day temporary ban would really harm its state university. It wasn’t’ and the judge was satisfied with speculative assertions of harm by a handful of students who would be absent. That is too vague to carry the burden to enjoin the President from exercising his executive power.
At the hearing before the Ninth Circuit, which oddly was conducted over the phone because the judges refused to fly to San Francisco and sit together, the same demands on the government lawyer were made. The plaintiffs got away with vague assertions, but the judges wanted hard evidence from the government. They actually wanted to see intelligence briefings to prove the executive order was necessary to address an imminent threat. No government lawyer would provide such confidential or classified material in open court covered by the media. And it’s unlikely the lawyer even was provided with it in preparing for his oral argument. He was operating under the assumption that the Ninth Circuit would follow established law and make the plaintiffs prove their theory of irreparable harm. But once again they didn’t, and the decision reads like there had been a full trial on the merits of the executive order rather than a review of the injunction, which is limited to examining the harms from the status quo.
As a believer in strong executive power over immigration matters, I think this fight needs to be won. There is a reason we are having this litigation. The power to close our borders to people from certain Muslim countries with active terrorist cells is disputed. Which branch can do it? Or do they both need to cooperate by an act of congress and the President’s signature, as with a law. I’d like the case to go to the Supreme Court and produce a decision for our times that will clarify things. But the order expires on its own after 90 days, before the Court would be able to receive briefs and have an oral argument.
So if I were advising the President I would suggest issuing a new executive order that has no expiration date, that is it remains in force until the President determines the danger from those countries ends. It would also have to provide a process for people with green cards (lawful permanent residents), and aliens who have already established a home in the U.S. to a hearing in which they could try and persuade an immigration judge to exempt them from the ban. There must be some clear rules for these hearings. People who have been in this country should not be summarily barred from re-entry without due process. But people who have never been here have no rights under our constitution and can be barred because of their country of origin. If that’s the rule, it would have overwhelming public and political support and might even win in court.
