It’s only been 12 days since President Trump signed the controversial executive order that has already come to define his entire two and a half weeks in the Oval Office. Since the travel ban was immediately put into action, effectively barring the entry of citizens of seven majority-Muslim countries, it has been temporarily halted by federal judges on two separate occasions. The first judicial block on the ban was issued just a day after the order was initiated, and the second by a federal judge in Seattle, Washington last Friday (February 3). But these are only temporary stops, and they’re being aggressively fought by the Trump administration.
With so much back and forth, this whole process can easily become super confusing. How exactly can a judge overrule the president? How does one even go about suing the president? When is all this legal commotion expected to be resolved? To help answer all those murky questions you have been Googling for the past couple of weeks, we got in touch with Equal Justice Works Emerson Fellow Anthony Enriquez at The Immigration Defense Project. Below, Enriquez helps break down everything going on in a way non-lawyers can understand.
B+C: Can you explain how a federal judge can overrule a president’s executive order?
Enriquez: We have a government that is constitutionally designed to provide checks and balances on actions the government takes. So, Congress has to authorize the president to take certain actions before he’s legally allowed to do so. And even in those certain actions where the president may have inherent powers that Congress doesn’t have to authorize [i.e. executive orders], the president’s actions still have to be constitutional. Ultimately, everything the government does has to comply with our constitution and the courts are the ultimate decision makers about what is or is not constitutional. What that means is any action that’s taken by the government — whether it be by Congress or the president or a lower court — must be constitutional. Ultimately it’s the courts that are going to decide whether [the travel ban] is.
B+C: When a state like Washington or the lawyers with the ACLU go up against Trump on something like this, how does that process work? How does one file lawsuit against the president?
Enriquez: Logistically speaking, how you file a lawsuit is you pay a filing fee and you file a piece of paper that explains why the things that you’re suing against are illegal. Congress will write a bill that allows you to sue people for what it declares is illegal. Right now, the president is being sued over a couple of different statutes Congress has authorized.
One of them is the Religious Freedoms and Restoration Act, [those lawsuits are] saying that what the president has done provides discrimination against Muslims, which goes against this act. Another is the Administrative Procedures Act, which is a statute that controls all the different agencies that the president has to administer. This includes the Department of Homeland Security, which handles immigration matters. It also includes the Environmental Protection Agency and the World Trade Commissions. They have to follow a certain set of rules according to this act and the State of Washington is arguing that those rules were not followed.
B+C: So a federal judge put a temporary stop to the ban. What happens now?
Enriquez: Well as you said, it is temporary. What you have to think about is there are three levels of courts in the United States: A District Court [where the Federal Judge that put temporary stop in place belongs], the Court of Appeals [who is basically the boss of all the courts in a certain region — in Washington that is the 9th Circuit Court of Appeals in California] and then there is the chief boss, The Supreme Court, who has the ultimate say.
Once the Washington Judge put the temporary restraining order against the ban, that was immediately appealed by the government and went to the 9th Circuit Court of Appeals. The government asked for an emergency stay [which is the act of temporarily stopping a judicial proceeding through the order of a court] and they were denied. They are actually set for argument today [February 7] in front of the 9th Circuit Court of Appeals as to why the temporary stay of the ban should be overturned.
No matter who loses, it’s probable that it will be appealed to the Supreme Court. The Supreme Court doesn’t have to take it. They have the discretion to decide whether they want to or not. What they might decide is to say, ‘We’re going to let the original District Court try this whole case and see whether or not the ban actually is constitutional.’ Because in spite of putting down a temporary stop, the District Court hasn’t actually decided the ban is really constitutional. What they have decided is that there is a risk of irreparable harm to all the people that are affected by the ban. This includes not just immigrants but also US citizens who have family members from here who are in transit or have visas to come. Washington is substantially likely to succeed in their argument that it’s constitutional but they haven’t yet actually succeeded.
B+C: How long do you expect the ban to be halted for?
Enriquez: There are a couple of different ways the temporary halt could be lifted. One way is if the [Federal] Judge [from Washington] decides that it’s no longer necessary. In a case in Boston where a temporary halt was put in, a week later a Federal Judge went back and reheard the arguments and decided there didn’t need to be a temporary ban anymore.
The 9th Circuit Court of Appeals that’s hearing the arguments today could say ‘There is no need for a halt. This judge overstepped his authority and there’s not enough evidence that a halt is necessary and so we will lift it.’
The last way is via the Supreme Court. Let’s say the Court of Appeals approves the halt and then the government appeals again; the Supreme Court could also lift the halt if they believe that to be the legally correct thing to do.
B+C: Will this cycle just keep happening again and again if different states continue to file a suit and their federal judge rules in favor of stopping the ban?
Enriquez: The Washington judge’s ruling for a halt is considered a nationwide case. So the judge is deciding on a nationwide basis. There really shouldn’t be a need for additional cases if the Court of Appeals decides the ban is unconstitutional. That being said, there are several other lawsuits that are already going through different state systems. The thing is, each of these lawsuits attack different parts of the executive order. Some of them might say we only want to make sure that green card holders aren’t stopped. Some of them might say we want to allow all non-immigrant visas [tourists visa, business visas, etc.]. Some might say they want the refugee program reinstated. It really depends on the specifics of each lawsuit. None of the lawsuits attack the entirety of the travel ban. They all attack separate provisions. I don’t think it’s improbable that these different lawsuits will question different provisions.
B+C: At any point is the Supreme Court required to take this case?
Enriquez: The Supreme Court can always refuse jurisdiction of a case. They can always say it’s better for the lower court to resolve this right now. That being said, this is such a high-profile case and has caused so much national controversy that it doesn’t seem implausible that they would take it.
B+C: Has the Supreme Court ever had to go to court over an executive order issued by POTUS before?
Enriquez: Yes, it’s very common for the Supreme Court to do that. In fact, President Obama’s DACA program, which allowed for deferred action of childhood arrivals and gave them a two-year promise that they would not be deported. That was an executive order. The state of Texas, among other states, sued to say that what he was doing was a violation of the Administrative Producers Act. The court decided it was a violation. The Appeals Court in Texas agreed. And it was then appealed up to the Supreme Court.
B+C: But the Supreme Court is only comprised of eight Justices at the moment. What if they rule on the travel ban and there is a 4-4 vote?
Enriquez: [When SCOTUS ruled over Obama’s DACA program] Justice Scalia had died, so it was an eight-person court and there was an even split on whether or not the president’s actions were allowed. In the end, the lower court’s opinion stood. That meant the DACA program was stopped from being administered.
B+C: Do you have any idea how long all this legal back-and-forth might go on for before there is a final ruling on the travel ban?
Enriquez: It’s pretty fast what has happened so far with the orders. The District Courts have been hearing them incredibly fast. The appeals that have gone to the Court of Appeals have also gone through incredibly fast. That’s why everything has labels like ‘Emergency Motion for a Stay,’ etc. I wouldn’t think it would take more than a couple of months at the most.
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(Photos via Getty)