Former Republican AG may have sued over Trump’s executive order

Criticism over President Donald Trump’s recent executive order implementing a travel ban from seven primarily Muslim countries seems to cross party lines in Washington state.

Former Washington state Attorney General Rob McKenna is a known Republican from the Northwest. In many respects, he is politically opposite of current state Attorney General Bob Ferguson. Ferguson is locked in a legal battle with the Trump administration over its executive order. Coming from across the political spectrum, would Rob McKenna have brought the same lawsuit against Trump?

Related: AG Ferguson disappointment in Trump’s flippant reaction

“Possibly, yes (I would have brought it forward),” McKenna told KIRO Radio’s Jason and Burns. “I don’t agree with the executive order. A) It’s unnecessary. B) It’s doing a lot of harm to America’s standing internationally. C) I think it’s unfair to people who have been granted visas.”

“I might have brought a suit that is a little more targeted because I would have evaluated where I thought I had the best chances of success … having said that, you don’t always know that in advance,” he said.

McKenna notes that the case between Washington state and the Trump administration is a perfect example of how America’s checks and balances are supposed to work.

“I thought from the beginning that this is the kind of question, the kind of challenge appropriate for an AG to bring,” McKenns said. “The AGs, as do the states, play an important role as a brake on unchecked federal power.”

“In the narrow sense what this would remind us, is that executive orders still have to operate within the law,” he said. “We may see more challenges to the use of executive orders as outside of constitutional law.”

The executive order

Trump’s executive order bans travel from seven countries. It does not mention the word “Muslim,” but it has been criticized as a Muslim ban. When the ban was implemented, it stopped refugees and people with visas at the gate — literally at airport gates — across America. It stirred protests. And Federal Attorney General Sally Yates was fired when she refused to enforce the order, saying she was not convinced it was lawful.

Washington Attorney General Ferguson sued the Trump administration over the executive order. Last Friday, Federal Judge James Robarts ruled that the state’s case has standing and put a temporary halt to the executive order. The Department of Justice filed its response with the court Monday.

The court system is now charged with determining if the Trump administration went outside its constitutional authority through the executive order.

“Does the executive order go too far?” McKenna said. “I think parts of it don’t go too far. Putting aside policy differences, and there are lots of those, the president does clearly have plenty of authority to control who comes in and out of the country.”

“But once you issue a visa to somebody or a green card – make them a legal resident – then they get to enjoy protections under the Constitution; protections like due process and equal protection,” he said. “So an executive order should be called into question, they should be blocked or struck down when they exceed the constitutional authority of the president. That’s exactly what the federal courts did when knocking down President Obama’s DACA order (for example).”

McKenna notes that there are three things currently known about the case as it stands:

• Judge believes Washington state has standing to bring the case forward.
• Washington was able to prove evidence the executive order was causing immediate harm, in order to obtain a restraining order.
• For a judge to move a case forward like this, they generally believe the plaintiff has a substantial likelihood of success in its underlying challenge. Robart ruled that Washington has a likelihood of success in its underlying challenge to the constitutionality of the executive order.

McKenna notes that last point could mean that part of the state’s case has a likelihood of success, but not all of it.

He also points out that such cases can really depend upon perspective. For example, while attorney general, he joined a multi-state lawsuit against certain provisions in the Affordable Care Act, known as Obamacare.

“I was talking to a friend of mine who is definitely to the left of me and he said, ‘Ya know, when you brought that lawsuit against Obamacare, I didn’t like it,” McKenna said. “I didn’t think you had standing to do that as AG.’”

“Now he says, ‘I kind of like the idea.’” he notes. “Sometimes it depends on what your point of view is.”

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