Washington Attorney General Bob Ferguson's landmark lawsuit against Donald Trump has emerged as the primary challenge to the new administration's executive order banning refugees and citizens of seven Muslim-majority countries from entering the US.
A lot has happened with the lawsuit over the last three days—including a lot of people filing amicus briefs in support of Ferguson's suit—but if you haven't been compulsively following legal Twitter, you may have missed it.
Here's what you need to know.
A judge blocked the executive order, right?
Yes. Judge James L. Robart, a US district judge in Seattle, granted a temporary restraining order last Friday that stopped the key elements of Trump's executive order from being enforced nationwide.
On what grounds?
The Washington State AG's lawsuit against the Trump administration is wide-ranging. Its arguments attack Trump's executive order on a number of fronts: religious discrimination, immigration law, lack of due process for people whose visas were revoked in transit, economic harms to the state and its residents.
Judge Robart at first seemed skeptical of the AG's argument that the president's motivation was anti-Islam in nature, but one moment in court revealed some of the major flaws in the Trump attorneys' argument: When Robart asked Department of Justice Attorney Michelle Bennett how many citizens of the seven targeted countries had been arrested on domestic terrorism charges since 9/11, she said she didn't know—and that the court didn't have the authority to question the president's national security determinations.
Robart said, "Let me tell you, the answer to that is none, as best I can tell." He also said that he did have to determine whether the executive order was rationally based. "And rationally based to me implies that, to some extent, I have to find it grounded in facts as opposed to fiction," Robart said.
Robert was right in the sense that no foreign nationals have been charged with killing anyone in the US in a domestic terrorism plot post-9/11. His larger point stands. But the AP did later point out that one Iraqi refugee pleaded guilty last year to attempting to support ISIS from abroad and a Somali refugee injured 11 in a knife attack at Ohio State University. In the meantime, White House advisor Kellyanne Conway made up a terrorist attack on US soil that never happened.
What happened next?
The ruling immediately went into effect. The Department of Homeland Security suspended enforcement of the ban and the State Department reversed its decision to revoke 60,000 visas from people affected by the ban.
Donald Trump probably wasn't happy about that.
Nope. POTUS took to Twitter.
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!
— Donald J. Trump (@realDonaldTrump) February 4, 2017
The DOJ also immediately requested that the Ninth Circuit Court of Appeals block Robart's ruling, and filed a motion to put the ban back into effect.
Okay. But what about that Massachusetts ruling? Does that conflict with what happened in Seattle?
The same day as Judge Robart's ruling, a federal judge in Massachusetts refused to renew a restraining order against the travel ban. The ACLU has promised to challenge that ruling. But remember: the ACLU's Massachusetts case against the ban and the Washington AG's case against the ban are different. One failed, the other has succeeded (for now).
What's the White House's argument to put the ban back into effect?
The White House says that the president gets to make the calls on national security and wide-ranging immigration bans, and a court doesn't get to question those calls. "The injunction immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment," the DOJ lawyers wrote in their request to block Judge Robart's decision.
Are any of the national security concerns legitimate?
Not according to 10 former national security officials who filed a brief with the Ninth Circuit in support of Judge Robart's temporary restraining order. The officials—including Madeleine Albright, the CIA's Leon Panetta, the NSA's Michael Hayden, former National Security Advisor Susan Rice, former Secretary of Homeland Security Janet Napolitano, and former Secretary of State John Kerry—said that the executive order "ultimately undermines the national security of the United States, rather than making us safer."
"There is no national security purpose for a total bar on entry for aliens from the seven named countries," the officials wrote. "Since September 11, 2001, not a single terrorist attack in the United States has been perpetrated by aliens from the countries named in the Order."
They continued: "Left in place, the Executive Order will likely feed the recruitment narrative of ISIL and other extremists that portray the United States as at war with Islam."
So what's going on with the White House's appeal of Judge Robart's decision?
The Ninth Circuit Court of Appeals rejected the White House's emergency motion to stay Robart's decision. DOJ lawyers also asked the appeals court for a stay until their appeal was adjudicated. The Washington AG and the Minnesota AG filed a response; White House lawyers filed a reply this afternoon. Another decision from the Ninth Circuit will likely occur within the week.
The lawsuit is also getting bigger.
Yes. Many organizations have filed declarations and amicus briefs in support of the Washington AG's suit and Robart's decision. Nearly 100 US companies, including tech juggernauts like Apple, Google, and Microsoft, filed a brief to the Ninth Circuit Court of Appeals on Sunday outlining the reasons why Trump's executive order would damage the economy. (Shortly after the Washington Attorney General filed the lawsuit, I started compiling a list of Washington-specific employers willing to take a stand against the executive order here.)
The ACLU has filed a brief with the personal stories of several people who have been affected by the travel ban. You can read them here.
The Anti-Defamation league filed another amicus brief in support of the AG's lawsuit this afternoon, too. The ADL says that Trump's executive order, if reinstated, will cause "irreparable harm to countless people." The brief uses the examples of Japanese internment camps and the St. Louis, a ship full of Jewish refugees that was turned away at the US border. Many of the St. Louis's passengers later died in concentration camps.
Where are other states' attorneys general in all this? Do they have Bob Ferguson's back or what?
Sixteen attorneys general have filed an amicus brief in the Ninth Circuit Court of Appeals supporting the Washington AG's lawsuit. The states supporting our lawsuit are: California, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, Massachusetts, New Mexico, New York, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, and the District of Columbia.
"Although the amici States’ residents, institutions, industries, and economies differ in various ways, we now all stand together in facing concrete, immediate and irreparable harms from the Executive Order," they wrote. Read the brief here.
So is anyone on the White House's side?
The American Center for Law and Justice has filed an amicus brief in support of Trump's position. They argue that the executive order is well within the president's authority granted to him by the Constitution and by Congress.
I've never heard of the "American Center for Law and Justice."
They're a well-established anti-LGBTQ group founded by televangelist Pat Robertson.
So what happens now?
According to a legal analysis over at Bloomberg, the case is on track for the Supreme Court. "If the federal government fails to persuade the appeals court to block the order, it might petition the Supreme Court to intervene," the Bloomberg authors write. "Five of the eight justices would be needed to reverse that decision."
But that doesn't mean that Judge Robart's courtroom freezes. If the case goes up to the Supreme Court, the battle between the Washington AG and the White House will unfold in Seattle.
Today, it looks like the White House is still attacking Judge Robert. In an interview with Fox News, White House Press Secretary Sean Spicer said "it’s somewhat sad to see a judge go rogue like this.”
What's the scene at airports?
At SeaTac, port commissioners, AG Ferguson, and Governor Jay Inslee are welcoming people who were sent back to their countries of origin because of the ban last week.
Last week Isahaq wasn't allowed off his plane. Today, thanks to the work of @AGOWA and @NWIRP, he's our newest Washingtonian. Welcome home. pic.twitter.com/XUiKSTvX2u
— Governor Jay Inslee (@GovInslee) February 6, 2017