Acting Attorney General Sally Yates forfeited her job for the brief that the Justice Department filed last night in federal court in Seattle – the most legally robust justification the Trump administration has offered for its week-old travel, immigration and refugee policy. Late this afternoon, the Trump administration will argue for the president’s broad authority to set immigration policy in the courtroom of U.S. District Judge James Robart of Seattle, who is hearing a request by the states of Washington and Minnesota to enjoin the controversial policy.
Though it’s hard to remember in the maelstrom of current events, Obama administration holdover Yates, the former deputy attorney general who was acting as the head of the Justice Department until President Trump’s nominees take over, was fired Monday night after she said defending the administration’s controversial policy was not “consistent with this institution's solemn obligation to always seek justice and stand for what is right.”
Yates’ symbolic stand had little practical impact, of course. The Trump administration quickly appointed a new acting AG, and the Justice Department has since mustered lawyers all over the country to defend myriad suits challenging aspects of the travel, immigration and refugee policy. On Friday morning, for instance, the Justice Department went to federal district court in Alexandria, Virginia, to try to block the state from joining a suit originally filed on behalf of two Yemeni brothers who were deported after arriving at Dulles International Airport on Saturday. (U.S. District Judge Leonie Brinkema allowed the state to intervene; headline news from the hearing was the DOJ’s revelation that 100,000 visas have been revoked since the new policy took effect.)
The case in Seattle, as I’ve been reporting all week, will be the most substantive test to date of the Trump administration policy, which, as you probably recall, bars entry into the United States from the seven Muslim-majority countries; suspends refugee resettlement for 120 days and indefinitely excludes refugees from Syria. Washington and Minnesota want to strike down the policy in its entirety as unconstitutional under the First, Fifth and Tenth Amendments and illegal under the Immigration and Nationality Act and the Foreign Affairs Reform and Restructuring Act.
The DOJ brief filed Thursday night argues that the courts have no business interfering with the executive branch’s power to decide who comes into the United States, particularly when Congress has codified the president’s authority to suspend the entry of foreign nations in the interests of national security. According to the Justice Department’s brief, every president to serve in the last 30 years has invoked his power to bar particular foreign nationals, and two of those prohibitions (the 1986 suspension of the entry of Cuban nationals and the 1996 bar on entry of Sudanese officials) focused specifically on nationality, just as the Trump policy does. There is simply no justification, according to the Justice Department, for Judge Robart to substitute his judgment for the executive branch’s authority over immigration policy.
“The state asks this court to not only disregard case law, Congress’ express delegation of authority to the president, and the president’s own (constitutional) powers, but indeed, to substitute the court’s own judgment regarding what is in the national security and foreign policy interests of the United States,” the brief said. “But that would require the court inappropriately to second-guess the underlying finding that Congress has tasked the president with making, and which lies at the heartland of his constitutional authority regarding foreign affairs, national security and immigration.
“It is simply not possible for the court here to evaluate the president’s executive order without passing judgment on the president’s national security and foreign affairs determinations.”
The Justice Department argued that the states’ challenge faces the “particularly insurmountable barrier” of establishing that the entire executive order setting out the new travel, immigration and refugee policy is unconstitutional “in all (or at least most) of its applications.” The order’s policy on foreign nationals living outside of the U.S. cannot be deemed unconstitutional, the brief said, because the U.S. Supreme Court has concluded such people do not have constitutional rights. As a result, DOJ argued, Washington and Minnesota cannot show the government’s policy must be struck in its entirety.
Washington and Minnesota – and several other states and individual plaintiffs in other cases – claim the Trump policy unconstitutionally discriminates against Muslims, citing the executive order provision giving preference to minority refugees from Muslim-majority countries. The Justice Department said that the provision addresses refugee applicants from all countries so it is not anti-Muslim.
And besides, the brief said, federal courts may not look beyond the president’s stated rationale for immigration policy but must limit their inquiries to the face of presidential pronouncements. “Here, the executive order undeniably states a facially legitimate and bona fide reason — protecting against terrorism — which is sufficient to end the matter,” DOJ said. President Trump’s call during the campaign for a ban on Muslim entry into the U.S., the brief said, is “not legally pertinent.”
The Justice Department also questioned whether Washington State has standing to maintain its suit. I wrote yesterday about the state’s argument that it has standing through its proprietary interest in protecting its tax base and its state universities and its quasi-sovereign interest in the rights of its residents. The Justice Department said the state hasn’t incurred any concrete injury to its propriety interest. It also said Supreme Court precedent from 1923 holds that states may not sue the federal government as parens patriae. The state anticipated that argument in its brief on standing, pointing to a subsequent Supreme Court case, 1982’s Snapp v. Puerto Rico, which held states have a quasi-sovereign interest in protecting their residents from discrimination. The Justice Department has no answer to Snapp, and I’ll be shocked if Judge Robart tosses the case on standing grounds.