Washington’s travel ban lawsuit is back in court

Feb 14, 2017, 5:20 AM | Updated: 5:29 am
Robart consent decree...
U.S. District Judge James Robart. (United States Courts via AP, File)
(United States Courts via AP, File)

A federal judge ruled Monday that the lawsuit by Washington state and Minnesota challenging President Donald Trump’s travel ban can move ahead even as an appellate court considers a preliminary injunction in the case.

The Trump Administration wanted to delay the case while the 9th U.S. Circuit Court of Appeals decides two things: whether a larger, 11-judge panel will review a government request to allow the ban and whether the existing preliminary injunction can stay in place.

Related: Judges threatened in Trump executive order case

U.S. District Judge James Robart decided Monday that the case can still move ahead. It was Robart who, two weeks ago, issued the temporary restraining order that put the seven-nation travel ban on ice. Robart now wants both sides to argue over whether the ban should be blocked for good.

“This is what we wanted,” said Noah Purcell, solicitor general of the Washington Attorney General’s office.

Travel ban case continues

Broadly speaking, three federal court decisions currently are in play, two at the 9th Circuit and the primary one in Robart’s Western District Court.

The most immediate decision at the 9th Circuit is a judge’s request that the entire active court revisit the three-judge panel’s ruling last week to leave the temporary restraining order in place.

The request for what’s called an en banc hearing (meaning the entire bench) means that the whole court could reverse the three-judge ruling – but only if they first agree to have the hearing at all. If the active judges do vote to have an en banc hearing, an 11-justice panel would look at same issues the three-judge panel ruled against in its decision to leave the restraining order in place.

Whether or not the 9th Circuit court holds the en banc hearing, it also must decide on the overall issue of the temporary restraining order. In the three-judge panel’s ruling last week, it decided that Judge Robart’s temporary restraining order is, in essence, a preliminary injunction.

Unlike a temporary restraining order, a preliminary injunction is a much tougher and indefinite legal block to the executive order. It too needs to be legally settled. The judge told the DOJ to provide a legal brief on the preliminary injunction by March 3. The state then gets an opportunity to respond. This process likely would take a minimum of two months.

And lastly, in Robart’s court is the heart of the dispute: Is the President Trump’s Executive Order, “Protecting the nation from foreign terrorist Entry into the United States,” constitutional or not? On Monday, Robart ruled that the case can proceed in his court while the other issues in the 9th are being decided.

On Monday, Robart has directed both sides to prepare to move that case forward to decide if a permanent injunction is in order.

But all of the legal disputes could be scuttled if the Trump administration decides to withdraw the original executive order and, possibly, replace it with a new one – something the administration has hinted at.

Washington Attorney General Bob Ferguson, however, has vowed to challenge any replacement executive order if it also presents constitutional questions.

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Washington’s travel ban lawsuit is back in court