Judge Repudiates Trump DOJ’s Half-Baked Legal Argument
On Saturday, a federal judge in the state of Washington ordered a nationwide temporary restraining order against Donald Trump’s “Muslim ban” which bars all travelers from seven predominantly Muslim countries from entering the United States. James Robart, a George W. Bush appointee known as a mainstream moderate justice who is described as “apolitical” and “interested in the law and justice,” presided over the State of Washington vs. Donald Trump.
The Washington State Attorney General’s counsel argued that the state has standing to file for damages on behalf of permanent residents stranded overseas, as well as employers and universities in the state, whose employees and students are stranded overseas as a result of the ban. Washington’s counsel argued that the ban was intentionally discriminatory as evidenced by rhetoric that led up to it despite how the decree had been framed when it was issued, that damages were specific, widespread and significant, and that the administration was overinterpreting its national security powers since there was no known national security threat coming from these countries, let alone from everyone in the countries or everyone of a certain religion coming from these countries.
Bennett argues that the court “can’t look behind” the reasons for the order.
Robart argued, “But I’m also asked to look and determine if the executive order is ‘rationally based.’ And ‘rationally based’ implies to me to some extent that I have to find it grounded in facts as opposed to fiction.”
Bennett replied, “Your honor, we actually don’t think that you’re supposed to look at whether it’s rationally based. We think the standard is ‘facially legitimate.’”
There you have it. The Trump White House’s argument for banning tens of millions of people from Muslim countries, arbitrarily throwing out tens of thousands of visas, disrupting thousands of people’s lives, is that it can do that because its national security powers are limitless. And it wants the courts to accept its views of its national security powers at face value, and not whether they are based on facts rather than fiction.
Trump’s legal argument is that he has unlimited power and he doesn’t have to make any sense. That’s his legal argument. To a federal judge.
I actually feel sorry for Michelle Bennett. I’m sure she’s a highly accomplished attorney who was not expecting until days earlier to be thrust into the position of defending the whims of a wannabe tyrant. Her stammering and body language seems to suggest that she’s doing the best she can with what she knows is a very weak hand.
Robart patiently but aggressively interrogated Bennett’s argument. He ruled that the state had standing and its argument had a high likelihood of succeeding on the merits of its case. He issued an immediate restraining order against the ban, to be issued nationwide. He became the seventh federal judge to make a similar ruling.
After this repudiation in court, Trump tweeted a tantrum in which he referred to Robart as a “so-called judge,” apparently attacking the independence of the judiciary, checks and balances, the separation of powers; the very bedrocks of our democracy’s Constitutional order. The White House promised to appeal, further dragging out a losing legal argument that seems designed only to expand his own power in an effort to delegitimize the judiciary.