Washington V Justice.

On January 27th 2017 (27/1/17) US President Donald Trump issued a series of executive orders. These paused travel from 7 countries to the US for a period of 90 days.

These executive actions triggered a slew of legal challenges.

On February 3rd 2017 (3/2/17) one such challenge by the US states of Washington and Minnesota resulted in a Temporary Restraining Order (TRO) being granted by Judge James L. Robart in a Washington state Courtroom.  This TRO applies nationally and prevents any of the executive actions being enforced.

Yesterday (8/2/17) evening the 9th Circuit Federal Court of Appeals heard an appeal by the US Department of Justice (DOJ) against the TRO. This hearing addressed only the lawfulness of the TRO rather than the lawfulness of the executive orders themselves.

However in order to do that the Appeals Court has to give prima facia (at first sight) consideration as to whether a legal challenge to the executive orders stands a reasonable chance of success. They must also consider whether the TRO is proportionate. In short if the legal challenge were to be successful would anyone - this could be a theoretical person - suffer irreversible harm under the order while the legal challenge is taking place.

Washington state who are bringing the challenge on behalf of both themselves and Minnesota case is focused on two issues.

The first of this is whether the President has the legal authority to issue such an executive order.

This is a relatively simple question to answer. The 1952 Immigration and Nationality Act gives the President what is known as a plenary power to take executive action to limit or stop entirely travel to the US on national security grounds.

However the Immigration and Nationality Act was amended in 1965. The main change was that the amended act prevented the US from issuing quotas for immigrants from certain nations. Washington hopes that this amendments makes the executive orders unlawful.

The problem with that argument is that the executive orders deal merely with travel to the US rather than immigration as path towards citizenship. There is nothing in them that prevents citizens from the 7 listed nations either within or outside of the US applying for US citizenship. They merely prevent all people including predominately tourists from visiting the US within the 90 day period.

What Washington seem to be resting their hopes on is that the path to US citizenship often features a residency requirement. In short you must be legally resident within the US for a set period of time to qualify for citizenship.

If a person who is already in the process of applying for citizenship is prevented from returning to the US due to the executive orders that would bar them from citizenship. Thus the executive orders would act as an immigration quota against the 7 listed nations for the purposes of the 1965 amendment.

However the US Citizenship & Immigration Service (USCIS) could chose to waive the residency requirement for applicants affected by the executive orders. If they decline the Courts could actually order them to.

Therefore any potential harm is not irreversible. It must also be balanced against the risk of harm to any US citizens who could potentially be killed or seriously injured in a terror attack.

The second plank of Washington's case is focused on whether the protections of the US Constitution limit the President's authority under the 1952 Act.

The problem with this is that Constitutional protections apply only to US citizens. During this discussion much has been made of the 14th Amendment - the equal protection clause. However this explicitly states that it only applies to natural born and naturalised US citizens. It doesn't apply to tourists or other visitors to the US.

Therefore in order to bring a Constitutional challenge Washington needs to demonstrate that a US citizen within Washington state is harmed by the order. Again this could be a theoretical rather than an actual person.

Probably the strongest example of this would be a US citizen who is prevented by the executive orders from spending time with a spouse or other close family member who is not a US citizen.

However USCIS has long required that spouses or other close family members must provide an Affidavit of Support before a foreign national is granted a visa to visit the US. If they are not able to provide this proof that they are able to support their spouse financially then no visa is granted.

As such it is well established within US immigration law that the Constitution grants no right to family life. Therefore restrictions can be placed by USCIS on the close family members and even spouses of US citizens.

Therefore it is my opinion that Washington has failed to demonstrate that the TRO is proportionate.

Also Washington have not only failed to demonstrate that the wider legal challenge has a reasonable chance of success they have even failed to demonstrate that they are able (have standing) to proceed with the legal challenge.

As such the Appeal Court have no option other than to dismiss the TRO and possibly the entire case.

17:20 on 8/2/17 (UK date).