It is important that an Attorney General maintain a reputation of taking cases only based on the law and the impact to the people of her state and not for political purposes. It is noteworthy that most of the Democratic Attorneys General who got involved in the travel ban lawsuit intervened in all three Travel Bans (Travel Ban 1.0, Travel Ban 2.0, and Travel Ban 3.0) and lost. It is noteworthy that the Republican Attorneys General did not try to enforce the law on travel ban 1.0.
Attorney General Swanson is the only Attorney General in the country who called the cases in a manner consistent with the U.S. Supreme Court. She was one of only two Attorneys General on Travel Ban 1.0, and she won. She did not intervene in Travel Ban 2.0 and Travel Ban 3.0, which the federal government won.
Executive Order 13769: Travel Ban 1.0
President Trump signed Executive Order 13769 on January 27, 2017, one week after being sworn in as President. The order was far reaching:
· It limited the number of refugee arrivals to the U.S. to 50,000 in 2017.
· It suspended the U.S. Refugee Admissions Program (USRAP) for 120 days.
· It suspended the entry of Syrian refugees.
· It suspended the entry of nationals from seven Muslim-majority countries – Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen – for 90 days
· It initially was applied to permanent lawful residents.
· It prioritized refugee claims involving persecuted minority religions in the above countries.
The consequences of the Order were immediate. Travelers, including some permanent lawful residents, people who fought for the U.S. abroad, and even dual citizens, were detained and held for hours without access to family or legal assistance. Thousands of visas were "provisionally revoked.” The federal government quickly reversed its decision on permanent lawful residents and allowed their entry.
Attorney General Sally Yates issued a directive that lawyers in the U.S. Department of Justice should not present arguments in court in defense of the executive order. Trump responded by firing Yates.
Lori Swanson and Robert Ferguson, the Attorney General in the state of Washington, filed a joint lawsuit in the Western District of Washington, seeking a Temporary Restraining Order to halt implementation of the order.
Swanson and Ferguson made several arguments, including:
· The due process clause of the Fifth Amendment prohibits the government from depriving individuals of a liberty interest without some sort of hearing.
· The order violates the Equal Protection Clause by discriminating on the basis of national origin.
· The Establishment Clause of the First Amendment bars the government from acting to "disfavor” a particular religion.
On February 3, Judge James Robart issued a nationwide temporary restraining order against the federal government, enjoining it from enforcing the Executive Order.
The U.S. Department of Justice filed an appeal to the United States Court of Appeals for the Ninth Circuit. On February 9, 2017 a three-judge panel of the 9th Circuit denied the federal government's request for a stay, effectively thereby upholding the temporary restraining order. Washington v. Trump, 847 F. 3rd. 1151, 1165 (9th Cir. 2017). On February 15, 2017, the U.S. Department of Justice advised the court that it was abandoning the case, and on March 6, 2017 it rescinded the executive order and replaced it with a different order (Travel Ban 2.0).
There were approximately one half dozen main lawsuits filed relating to various travel bans proclaimed by President Trump. The Order voiding the Muslim travel ban in this case is the only order that has been upheld and still in effect.
State of Washington and State of Minnesota v. Trump
847 F. 3rd. 1151 (9th Cir. 2017)
Executive Order 13780: Travel Ban 2.0
After losing the above case, President Trump on March 16, 2017 issued Executive Order 13780. The Executive order was set to last for 180 days, until September 6, 2017. This Executive Order removed Iraq from the list of targeted countries and allowed more exemptions. It eliminated a reference to religion. The countries effected were Iran, Libya, Somalia, Sudan, Syria, and Yemen.
The next day the Attorney General for the state of Hawaii filed a lawsuit to enjoin enforcement of the second Executive Order. Trump v. Hawaii. Portions of that order were blocked by a Hawaii federal judge on March 15.
Hawaii’s injunction was followed by a second one, entered in IRAP v. Trump, in the District of Maryland. The Maryland order was issued on March 15, 2017.
On March 13, 2017, the Attorney General of Washington filed a second complaint regarding the second travel ban order. On March 17, 2017, U.S. District Judge James Robart declined to grant an additional restraining order because he regarded such an action as unnecessary given that the President's new executive order was already blocked by U.S. District Judge Derrick Watson in Hawaii.
Both the Hawaii order and the Maryland order were affirmed on appeal by the 9th Circuit and the 4th Circuit, respectively. On June 1, 2017, the Trump administration took the matter to the U.S. Supreme Court, seeking a stay of both injunctions, and certiorari review. The Court granted certiorari, scheduling oral argument on the merits for October 10, 2017. 137 S.Ct. 2080 (2017).
On June 26, 2017, the United States Supreme Court stayed a portion of the injunction issued by the Maryland and Hawaii courts. It narrowed the preliminary injunctions to protect only would-be visitors/immigrants to the U.S. with a "bona fide relationship" with a U.S. person or entity. For the next several months, the parties debated the meaning of “bona fide relationship.” Executive Order 13780 expired on September 6, 2017.
On October 10, 2017 the Supreme Court vacated the judgement of the Fourth Circuit and instructed the court to dismiss the cases as moot. The reasoning was that no federal court at any level has jurisdiction to render an opinion on an Executive Order that has expired.
Presidential Proclamation 9645: Travel Ban 3.0
On September 24, 2017, President Trump issued Presidential Proclamation 9645. This proclamation restricted entry to the U.S. for people from eight countries: Chad, North Korea, Venezuela, Iran, Libya, Somalia, Syria, and Yemen. On April 10, 2018, Proclamation 9723 removed Chad from the list.
On October 6, 2017 the Plaintiffs filed a Motion for a Preliminary Injunction. On October 17, 2017 Judge Theodore Chuang enjoined a portion of the Proclamation but denied an injunction relating to Venezuela or North Korea.
On January 19, 2018, the U.S. Supreme Court granted the federal government's petition for a writ of certiorari in the Trump v. Hawaii case, appealing the Ninth Circuit decision. Trump v. Hawaii, 138 S.Ct. 923 (2018). Oral hearings for Trump v. Hawaii were heard on April 25, 2018, the first time that the Supreme Court had a hearing related to any version of the travel ban. On June 26, 2018 the Court upheld the travel ban. Among other things, the court noted that Travel Ban 3.0 carves out those with green cards, provides for waivers for those with exceptional cases (family, medical emergencies, business ties, etc.) and on issues related to national security.
Trump v. Hawaii v. Supreme Court