Despite the TRO, the Legal Arguments Against Trump’s Immigration Order Are Iffy

When Sally Yates, then the acting attorney general, refused to defend President Trump’s executive order suspending the U.S. Refugee Admission Program and blocking the entry of travelers from seven Muslim-majority countries, she said she wasn’t sure the new restrictions were legal, but she didn’t say why. Likewise James Robart, the federal judge in Seattle who last Friday issued a temporary restraining order (TRO) prohibiting enforcement of the travel ban. This reticence reflects a reality that will not please opponents of the order who want it to be illegal as well as unfair and unwise: The president has very broad authority to restrict admission to the United States, while foreign nationals have no right to a visa or refugee status.

Legal permanent residents have stronger claims, but they supposedly are no longer covered by the travel ban. I say “supposedly” because green-card holders from the seven countries Trump picked—Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen—arguably are still covered by the order, even if they presumptively qualify for waivers. Then again, Nathaniel Gorton, a federal judge in Boston who upheld Trump’s order on the same day Robart issued his TRO, concluded that the language of the travel ban does not apply to legal permanent residents, even though the Trump administration initially said it did.

The complaint that resulted in the TRO, which was filed by the states of Washington and Minnesota, cites 10 causes of action, including equal protection, due process, and religious freedom claims. In approving the TRO, Robart concluded (among other things) that the plaintiffs are “likely to succeed on the merits,” but he gave no indication of which arguments he found most persuasive. Josh Blackman, a professor at South Texas College of Law, highlighted the skimpiness of Robart’s seven-page ruling in an interview with The New York Times.

By Jacob Sullum for REASON.COM
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