The ruling in Seattle by U.S. District Court Judge James Robart was different and far more expansive. He issued a temporary hold on the immigration ban nationwide. Lawyers at the Department of Justice appealed to the 9th Circuit which refused to overturn Judge Robart’s ruling, although further briefs have been filed. Thereafter, the 9th Circuit could revisit its decision.
It is no surprise that the 9th Circuit got it wrong. It is the most overturned appellate court in the nation. There’s a joke among California lawyers: if you lose your case in the 9th Circuit, you’re assured of winning it before the Supreme Court. Get the picture?
Nevertheless, the Seattle ruling is the case to watch, in part because Washington became the first state to sue. Take a look at judge Robart’s decision. It is largely devoid of any legal reasoning or sound analysis. Its brevity is exceeded only by its lack of logic as applied to the law.
Absence of Standing to Sue
Washington State does not have “standing” to sue on behalf of its residents because they have suffered no "actual harm" from Trump's order.
In order to sustain a lawsuit, the plaintiffs must demonstrate their alleged injury is direct and real, not merely hypothetical. The harm must be imminent and irreparable, not speculative.
So how have Washington residents been harmed? Lawyers for the state suggest their economy will be adversely impacted because the ban may prevent immigrants from working for Washington-based companies. Taxes might be reduced and its education system could be affected.
However, all of that is pure conjecture. It might happen, but it might not. Hence, it does not constitute immediate “actual harm.” On that basis alone, the lawsuit should be dismissed.
Foreigners Do Not Enjoy Constitutional Rights
The vast majority of people affected by President Trump’s executive order are people who do not have legally valid immigration visas but are seeking entry to the United States by undertaking the lengthy application process. We are talking about hundreds of thousands of people.
The claim by Washington State that the immigration ban violates the First Amendment (freedom of religion) or the Fifth and Fourteenth Amendments (equal protection clause) may seem, at first blush, like a reasonable argument. Until you consider that our Constitution applies only to citizens and those on American soil.
A man in Somalia may wish to invoke our Constitution to claim his freedom of religion is being infringed, but until he arrives here he enjoys none of its privileges and protections. He has no right to assert discrimination, religious or otherwise. And the state of Washington has no legal right to represent him in court. It can only represent its own residents.
The President Has Authority to Dictate Immigration
Article 1, Section 8 of the Constitution gives Congress the power to regulate immigration. In 1952, Congress passed a law empowering the president to deny entry into the U.S. to “any class of aliens” considered to be “detrimental to the interests of the United States.” In other words, a threat to America and in the interests of national security.
As I pointed out in a recent column, the Supreme Court has repeatedly ruled that Congress and the president have “plenary power” to regulate immigration. For more than a century, the high court has consistently upheld such authority and rejected constitutional challenges to presidential action banning entire groups of foreigners. Even the 9th Circuit has endorsed this legal principle. Past presidents, including Carter and Obama, have issued orders similar to Trump’s.
It is true that a subsequent 1965 immigration law prohibits discrimination based on race, sex, nationality, place of birth or place of residence. But that law says nothing about religion. And, more importantly, it applies only to the issuance of visas. The president’s authority to deny entry to a large class of aliens is a broader power which supersedes individual visa considerations