Trump vs Washington: New executive order coming
On Friday, President Donald Trump said he may sign an entirely new executive order on immigration while lawyers are tied up reviewing the original travel ban.
“In looking to the merits, (judges) reflected very positively, though it is not a final decision on the claim that (the executive order) violates procedural due process rights,” said Seattle University Law Professor Andy Siegel. “They also said Washington has a good chance of succeeding in the end on claims that this constitutes unconstitutional religious discrimination.”
The order placed a travel ban on seven predominantly Muslim countries and refugees. While on Air Force One on Friday, Trump told reporters that he is confident that he will win the court battle in the end. He said, “We also have a lot of other options, including just filing a brand new order … We need speed for reasons of security. So it could very well be that we do that.”
Trump said the new order could come next Monday or Tuesday and will not be too different than the original one he signed — the same one that led to Washington state and Minnesota suing over its constitutionality.
Trump vs Washington: What happens now?
Siegel told KIRO Radio’s Jason and Burn’s Show that the case is rather intriguing. It has garnered a lot of attention, perhaps because it is so controversial.
Siegel said that the case could now go back to Judge Robarts. In short, Washington and Minnesota have to prove that the order violates due process rights, and also that it violates the constitution on the basis of religious discrimination.
“It matters whether these are reasoned executive policy judgments grounded in some level of facts that require significant deference under separation of powers,” Siegel said. “Or whether these are just bigoted thoughts off the top of his head. Other things he’s done and said, I’m sure shade what the judges are thinking.”
That’s a significant factor in the Trump vs Washington case. Trump has already provided a lot of evidence for the states.
“There is a very high burden to establish that (the executive order) is discriminatory, which involves going into the heads of the authors and proving they intended to discriminate,” Siegel said. “But what’s rare in this case, is there are a lot of statements out of the president’s mouth and the mouths of his advisers that might give rise to such a conclusion.”
Statements such as Trump talking about a Muslim ban on the campaign trail. Or statements made by Rudy Guiliani, who told the media that Trump asked him to help write a Muslim ban, but do it in a way that was legal. That work led to the executive order.
“They have all that before discovery, before they’ve taken a deposition or before they ask anyone any questions,” Siegel said. “It’s very rare to have this much evidence this early in a case.”
Trump reportedly will not appeal to the Supreme Court at this point — an option available to him.
“Now the president does have the ability to take this case directly to the Supreme Court,” he said. “But there are going to be a lot of smart lawyers telling him not to. He will get a bad standard of review, and face an eight-member court. Whereas, if we waits, he might get a better standard of review and get judge Gorsuch.”
Judge Neil Gorsuch is Trump’s pick to fill a currently vacant Supreme Court position. Siegel is unsure how Gorsuch would decide if the Trump vs Washington case makes its way to the Supreme Court. On one hand he favors original intent of the Constitution and separation of powers. On the other hand, he has been anti-discriminatory, and has been skeptical of broad executive power in the past.
“It’s really the whole thing, when you put all the pieces together, and the context and the statements of the president and his advisers,” Siegel said. “I do know that two things that upset the court were, first, the fact there is specific language relating to religion in there that combines with prior statements that makes you wonder if this is an attempt to discriminate against Muslims.”
“Secondly,” he said, “it is extraordinarily vague, to the point of having nothing about what procedures it’s putting in place or why security would be needed by having a temporary ban.”