For the second time in seven days, the Trump administration will defend the constitutionality of its second travel ban executive order. Last week in Virginia, Acting Solicitor General Jeffrey Wall made arguably the strongest defense of the order to date, including one claim that is likely to be voiced again in arguments today in California.
“You have a global injunction resting on one plaintiff,” said Mr. Wall on May 8 to 13 judges on the US Court of Appeals for the 4th Circuit.
Even if they disagreed with him that the injunction blocking the order’s implementation should remain in place, Wall added, “I think the court has got to narrow the injunction to the alleged injuries of” the one plaintiff.
It may sound like a fair argument to many. Why should the grievances of a single individual affect the entire country? Or in the case of this order, which seeks to temporarily restrict the admission of immigrants from a half-dozen Muslim-majority countries, affect people in seven countries?
Neither the 4th nor the 9th Circuit Court, which hears arguments May 15, is likely to oblige the government, experts say. And if this narrative sounds familiar, it is because it played out several times in court battles over the Obama administration’s executive actions.
Indeed, a nationwide injunction is something that has become familiar to federal judges around the country in recent years as the ideological fight over government policies has shifted from Congress to the White House and the courts. Some experts, and judges, believe such injunctions circumvent the fundamental deliberative role of the American judiciary, yet for the most part judges have been happy to do so.
“Often the government has argued that while the case may not be limited to those individuals, the injunction should be restricted to those individuals, and courts have consistently said no,” says Josh Blackman, an associate professor at the South Texas College of Law in Houston. “If courts find that something is being done illegally, they say that if it’s illegal here, it’s illegal everywhere.”
Nationwide injunctions became more common during the Obama administration, as some conservative states regularly banded together to challenge his executive actions, persuading a federal judge – often a federal judge in Texas – to issue a nationwide injunction.
Liberals were outraged when Judge Andrew Hanen of the district court in Brownsville, Texas, blocked the implementation of Obama’s executive actions on immigration in 2015 at the behest of 26 states. The next year, a dozen states repeated the trick when Judge Reed O’Connor of the district court in Wichita Falls, Texas, blocked the Obama administration’s guidelines allowing transgender students to use school bathrooms and other facilities that correspond with their gender identity.
Since Mr. Trump’s inauguration flipped them onto the plaintiff’s side of the courtroom, civil rights and immigration groups – and attorneys general from left-leaning states – have adopted similar tactics, and enjoyed similar success. Nationwide injunctions from district court judges have blocked Trump’s first travel ban, his second travel ban, and, most recently, his executive order on sanctuary cities.
Some district court judges have chosen to issue narrow injunctions, and while the smaller scope may mean sparser public attention, legal experts and judges say it better represents how the judiciary is supposed to operate.
The first judge to rule against the revised travel ban, for example, was a district court judge in Wisconsin who limited the injunction to the plaintiff’s family. A district court judge who blocked Trump’s first travel ban also limited the injunction to her state of Virginia, partly “to avoid encroaching on the ability of other circuit [courts] to consider the questions raised.”
Allowing other federal courts to weigh in on a complex issue or policy, commonly referred to as “percolation,” is something that means “a difficult legal question is more likely to be answered correctly,” Richard Posner, a federal appeals court judge, has said. And that is something that is cut short by a nationwide injunction.
Yet most court watchers believe that the nationwide injunction against the second travel ban will be upheld, if not by the 4th Circuit, then by the 9th Circuit. If so, a Supreme Court showdown is likely to follow.
“I don’t expect the courts will have any meaningful opposition,” says Professor Blackman, noting that both the 4th and 9th circuits have majorities of judges appointed by Democratic presidents.
So the “one plaintiff” in question in Richmond last week – a scientist and lawful permanent resident of Iranian origin who lives in Maryland, referred to in court filings as “John Doe #1” – could see his case end up before the highest court in the land.
His wife had received initial approval for a spousal immigration visa to relocate from Iran when Trump signed the second travel ban order. The order, he says in court filings, “has created significant fear, anxiety, and insecurity for my wife and I” and “forces me to choose between my career [in the US] and being with my wife.”
He adds that “the anti-Muslim views” behind the travel ban have caused “significant stress and anxiety for me,” and that “I worry I may not be safe in this country.”
The fate of the second travel ban could hinge on this latter argument more than any other, says Steven Schwinn, a professor at the John Marshall School of Law in Chicago. The executive order itself makes no mention of Islam, but comments made by Mr. Trump and members of both his campaign and administration have featured heavily in decisions against the White House so far.
“Can the court look behind the executive order at what President Trump and other administration officials said during the campaign and after, or is the court limited to the face of the executive order?” says Schwinn. “The entire case turns on that.”