Washington v. Trump, 2
Wednesday, February 15, 2017
WASHINGTON V. TRUMP: The United States Court of Appeals for the Ninth Circuit wasted little time in returning a decision that affirms, unanimously, the block of President Trump’s Executive Order on immigration sought by the state’s legal counsel. The three-judge panel upheld the earlier ruling by U.S. District Court Senior Judge James L. Robart that found key provisions of the president’s order were possibly legally unsound or unconstitutional and issued a halt through temporary restraining order on its enforcement pending more thorough review. The appeals court agreed with the caution.
“The decision underscores the serious constitutional issues with President Trump’s executive order and emphasizes what Attorney General Bob Ferguson has said throughout this case: that no one is above the law, not even the president,” Governor Jay Inslee said of the decision.
Distilled essence, the president’s order was poorly constructed and reasoned, and could not stand even casual scrutiny by the courts.
“The Ninth Circuit is correct to leave the TRO in place, in my view, for the simple reason that there is no cause to plunge the country into turmoil again while the courts address the merits of these matters over the next few weeks,” Benjamin Wittes, law scholar and senior fellow at the Brookings Institution, commented. “Eventually, the court has to confront the clash between a broad delegation of power to the president—a delegation which gives him a lot of authority to do a lot of not-nice stuff to refugees and visa holders—in a context in which judges normally defer to the president, and the incompetent malevolence with which this order was promulgated.”
That latter point is important, because the strategy of the state moving forward will be to build a case through legal discovery of “what truly motivated” Trump’s executive order on immigration, an approach that could provide a rare public examination of how a U.S. president makes national security decisions.
The AG signaled that he will move aggressively to obtain written documents and emails authored by administration officials that might contain evidence the order was unconstitutionally biased and motivated by ethnocultural malevolence or political opportunism. Ferguson said he would also move to depose administration officials.
The Trump administration could press on to review by the U.S. Supreme Court (where justices could potentially deadlock 4-4, allowing the lower court ruling to stand) or—likely the superior option—simply begin to draft a more robust, better reasoned order that can withstand judicial review.
“I’m proud that Washington is a national leader in this fight,” Inslee commented after the appeals court ruling. “We were the first state to stand against this executive order. But all Americans need to be willing to stand and fight for our democracy, everywhere, every time, and in every way it is threatened.”
In that spirit of standing up for those threatened and pushing back against federal overreach, Bellingham City Council this week approved a resolution and an ordinance that each further clarifies that city officials and police will not cooperate with registration or surveillance programs that are deemed unlawful or unconstitutional, citing “the principles of the Tenth Amendment of the U.S. Constitution which limit federal incursion into the powers reserved to the states and which enables municipal entities to have authority and control over their law enforcement resources.”
Scores arrived to comment on the actions in Council’s evening session, all galvanized by our deeply polarized times. But in reality Council’s actions were more mundane than the drama of the crowds suggests: The resolution celebrates diversity. The ordinance collates and codifies city policy that already exists with regard to the enforcement of city immigration policy; but—framed as a new chapter to municipal code—it does carry the force of law. It makes policy enforceable.
Simply, “the Bellingham Police Department will focus on the safety and security of residents regardless of civil immigration status, and the Bellingham City Council refuses to allow Bellingham police officers to be compelled into service as de facto immigration officers.”
Not as bold a statement as many activists wanted, the ordinance does reflect the desire of city officials to focus on the tangible in preference to the symbolic, to advance policy and practice ahead of posture—“although, I have come to understand through this dialogue the symbols can add clarity,” Mayor Kelli Linville admitted, “because sometimes what we do is not transparent to the general public. And if the label of ‘sanctuary’ makes people feel safer and more secure, then there is a purpose to it.”
The language of their ordinance is plain: “The goals of this legislation are to affirm and foster trust and cooperation between law enforcement officials and immigrant communities, to heighten crime prevention and public safety, and to reaffirm the city’s commitment to equal access to city services, all so that families and persons may continue to be productive members of the Bellingham community,” the ordinance reads. “All Bellingham residents should be confident in seeking the assistance of law enforcement, regardless of their civil immigration status and confident in their ability to receive city services without inquiry into their civil immigration status to the fullest extent permitted by law.”
“We’re not calling it a Sanctuary City ordinance—we don’t need to,” Council member Terry Bornemann said. “But this lays out those elements that basically state what sanctuary is, and what citizens can expect from that. We are a city of acceptance.”