Jurisprudence

Schrödinger’s Immigration Ban

The Trump administration’s nonsensical claim that its executive order both does and does not exist.

Trump executive order
President Trump is surrounded by business leaders as he signs a different executive order, on regulatory reform, at his desk in the Oval Office at the White House on Friday.

Jonathan Ernst/Reuters

When Donald Trump put his sloppy, ill-conceived, and surely unconstitutional travel ban into effect earlier this month, the impact on immigrants, travelers, and refugees was immediate and devastating. Weeks after the ban was stayed by a federal appeals court, travelers at airports continue to be searched, harassed, and detained based on their religion, country of origin, and also nothing.

But sowing mayhem among travelers is only half the fun of the immigration ban. Trump’s Justice Department also appears to be taking pains to spread confusion and chaos in the courts that have been tasked with reviewing the ban. While the drama surrounding the litigation seems to have peaked with the president’s threats toward the judges involved, the cases have moved onward. In the litigation that resulted in the nationwide stay, Washington and Minnesota v. Trump, papers filed this past weekend reflect the states’ growing frustration with the Justice Department’s absurd contention that they are both replacing the travel ban with a newer one and also that they intend to continue to defend the existing ban in the courts.

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A quick recap: A federal judge, James Robart, stayed the travel ban on Feb. 3 and the 9th Circuit unanimously upheld that order a week later. When a larger panel of the 9th Circuit was poised to revisit that decision en banc, the Justice Department asked them not to, promising that a new executive order was imminent. That directive conflicted with a status report the DOJ had filed days earlier claiming that “Defendants … believe it is appropriate for the parties to proceed with briefing on plaintiffs’ motion for preliminary injunction despite Defendants’ pending appeal.” All that was two weeks ago, and there’s been no additional clarity in the intervening days about what’s going on here. It was unclear at the time whether the DOJ would stop defending the old order, or just that they didn’t want the 9th Circuit to wade in. Since then they have sought to delay the proceedings in the federal district court and again in the 9th Circuit.

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On Friday, in response to another DOJ motion claiming the 9th Circuit should not hear this case, Washington State filed a motion calling out the Justice Department for the illogic of its two simultaneous litigation postures. The government is filing a motion asking the 9th Circuit to “hold proceedings in abeyance,” because there is ostensibly an imminent order to replace the old one, while at the same time the president is saying that the old order is being defended in the courts.

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As the motion filed Friday puts it, in an epic feat of understatement: “Throughout these proceedings, there appears to have been a lack of communication between the Department of Justice and the White House.” The filing notes that on the same day the DOJ asked the 9th Circuit to stand down from reviewing the old order, “the president informed the nation that he is pursuing his appeal in the 9th Circuit.” The states quote the president at his press conference stating, “We’re issuing a new executive action next week that will comprehensively protect our country. So we’ll be going along the one path and hopefully winning that, at the same time we will be issuing a new and very comprehensive order to protect our people.” The filing also quotes White House Press Secretary Sean Spicer saying just last week that “with respect to the executive order, there are several courts that this is being fought in—10 or so—and we continue to deal with that in all of those venues. And then again, I guess, the only way to say this is, then obviously on the dual-track side we have the additional executive order that we’ve talked about earlier that will come out and further address the problems.” The filing also tartly notes that for a case that was once characterized at DOJ as raising “urgent national security issues,” the infinite delays the agency is now seeking at the 9th Circuit are hard to understand.

This is all confusing in the extreme for those attempting to litigate the immigration ban in courts across the country. They are being told that the order is and is not in effect, is and is not being replaced, and is and is not urgently needed to keep us safe. Here’s hoping that the next filing from the Justice Department will clarify things. It’s hard enough to litigate in a world of “alternative facts.” Litigation in the world of “alternative law” has rapidly become untenable.

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