It’s been a busy weekend for lawyers fighting over President Trump’s immigration ban. On Friday, a federal judge in Seattle issued a nationwide temporary restraining order pausing the enforcement of ban. While the President took to Twitter to decry the outcome (and the judge), Department of Justice lawyers moved quickly for an emergency stay in the Ninth. Then, on Sunday morning, the Ninth rejected the government’s request, allowing the TRO to stand for the time being.

On Friday, January 27th, President Trump signed an executive order barring immigration from seven specific majority-Muslim countries and suspending the acceptance of refugees generally. (With so much legal back and forth, it’s almost hard to believe that Trump’s controversial executive order is little over a week old.) Protestors soon took to the nation’s streets and airports, while lawyers rushed to the courts – and airports. That included lawyers for Washington State.

While civil liberties and immigrant rights groups had early success with individual habeas petitions filed on behalf of detainees, Washington State took a more aggressive legal stance.

Just days later, and now joined by Minnesota, the state got what it wanted.

Saturday morning, the President tweeted out his disapproval:

Meanwhile, Department of Justice lawyers were seeking to do just that. In a motion for an emergency stay of Judge Robart’s order, the government argued for an expansive reading of the president’s power to set immigration policy.

On Sunday, the Ninth denied the government’s motion for an emergency administrative stay pending appeal, in a brief, two-sentence order.

The Fight Over a Stay Continues

The denial of the emergency administrative stay does not settle the matter. The federal government continues to pursue a stay in the Ninth.

Washington, now with Hawaii joining its suit alongside Minnesota, filed its response to the government’s stay motion Sunday night. Since the lower court issued only a TRO, rather than a preliminary injunction, appealing now is procedurally improper, the state argues.

As for the merits, the state’s claims were largely unchanged. The EO violated the Due Process, Equal Protection, and Establishment Clauses, as well as federal immigration and administrative law. The government would be unlikely to prevail against those arguments, the state asserted.

Washington’s filing is joined by a handful of amicus briefs, from the American Civil Liberties Union, the Korematsu Center, and 97 technology companies including Microsoft, Facebook, Google, and more. (A few non-tech companies, like Levi Strauss, are also included.)

The government is expected to file its reply in support of its emergency motion later today.

Meanwhile, the government has begun complying with the TRO, allowing entry to refugees and immigrants who would otherwise be barred. How long that continues could depend on the outcome of the legal battles in the Ninth Circuit and Western District of Washington.

Related Resources:

  • Trump’s Immigration Ban Faces New Legal Hurdle on Monday (Reuters)
  • Will Trump Reshape the 9th Circuit? (FindLaw’s U.S. Ninth Circuit Blog)
  • Resources for Lawyers Offering Pro Bono Services During the Immigration Ban (FindLaw’s Strategist)
  • Flush With Donations, ACLU Teams up With Y Combinator (FindLaw’s Technologist)

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