by Jon Guze
Senior Fellow, Legal Studies, John Locke Foundation
On Tuesday, North Carolina Attorney General Josh Stein joined 17 other amici curiae (“friends of the court”) in a brief filed in State of Washington v. Trump. The case involves a challenge to President Trump’s recent executive order dealing with immigration. The order itself has drawn a lot of criticism, not only from progressives, but from conservatives and libertarians as well. Whatever one may think about the order itself, however, it’s hard to see this amicus brief as anything other than pointless grandstanding.
The executive order is entitled, “Protecting the Nation from Foreign Terrorist Entry.” It’s 12 pages long and consists of 33 separate provisions, most of which instruct the relevant agency heads to develop new policies and procedures for excluding “individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission.” Because the details have yet to be worked out—and also, no doubt, because there have been so many deadly terrorist attacks in recent years—these provisions haven’t drawn much criticism.
Several provisions of the order that deal specifically with refugees have drawn some criticism, but the most problematic provision, and the one that has drawn the most criticism by far, is this:
Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).
8 U.S.C. 1182(f), on which this provision relies, states:
Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
The countries referred to in 8 U.S.C. 1187(a)(12) are ones that were designated as “areas of concern” by the Obama administration, namely, Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen.
Because the only stated exception to the 90-day entry ban was for aliens travelling on diplomatic visas, and because it was issued on a Friday without any advance-notice or explanation, the order caused a great deal of turmoil and distress over the weekend as returning green card holders and travelers with approved visas were denied entry when they arrived at US ports of entry. The situation drew criticism from all sides and inspired many lawsuits. In response, the administration agreed to make an exception for green card holders and to admit most travelers with previously issued visas, and most of the lawsuits have since been dismissed.
State of Washington v. Trump, however, was not dismissed. Unlike the lawsuits in which individuals challenged Trump’s order as it applied to them, the State of Washington challenged the legality of the order itself on both statutory and constitutional grounds. At the heart of its complaint was the claim that the entry ban constituted illegal and unconstitutional discrimination against Muslims. To support this claim Washington cited remarks that Trump and his supporters had made during the Presidential campaign which, it said, showed that, notwithstanding the fact that the order was limited to a handful of countries that had already been designated as “areas of concern,” and notwithstanding the fact that it applied to all travelers from those countries regardless of their religion, the order was motivated by religious animus directed at Muslims as a group. Because of that alleged motivation, Washington claimed, the entry ban violates US anti-discrimination law and the US Constitution in various ways.
It’s not inconceivable that one or more of these claims might succeed when the case is eventually decided on its merits. (Ilya Somin, for example, thinks the constitutional challenge has merit, even though he doubts it will succeed.) Nevertheless, it’s a long shot at best. (For explanations of why, see here, here, and here.) That didn’t stop Washington from asking for—and receiving—a temporary restraining order from US District Court Judge Robart, but it should have. A judge is only supposed to issue a restraining order when the plaintiff is “likely to succeed on the merits,” and that’s hardly the case here. In fact, just last week a federal judge in Boston lifted a similar TRO precisely because the plaintiffs were unlikely to succeed.
The Trump administration asked the US Court of Appeals for the 9th Circuit to lift the TRO in State of Washington v. Trump, and on Tuesday evening a panel of 9th Circuit judges heard oral arguments in the case. Which brings us to the amicus brief that was filed earlier that day by Josh Stein and the rest of the state attorneys general. Having stayed on the sidelines during the early stages of this fast-moving legal controversy, those attorneys general decided to involve themselves, not in the underlying dispute over the executive order, but in the dispute over whether the 9th Circuit should lift the TRO. Why did they decide to get involved over this issue? Because lifting the TRO:
Would resurrect the chaos experienced in our airports beginning on the weekend of January 28 and 29, and cause harm to the States—including to state institutions such as public universities, to the businesses that sustain our economies, and to our residents.
The interests of the public, the States, and the Nation would be best served by keeping the temporary restraining order in place— and avoiding further turmoil—pending a more thorough review by the Court.
So, let’s review. President Trump issued an executive order instructing his administration to put in place a better system for vetting aliens who seek to enter the United States. The order included a 90-day entry ban for aliens from 7 countries that the previous administration had designated as “areas of concern.” The State of Washington challenged the legality of the temporary entry ban, and it also requested and obtained a temporary restraining order that put the temporary entry ban on hold. The Trump administration asked to have the temporary restraining order on the temporary entry ban lifted, and that request is now making its way through the courts. Finally, the attorneys general of 17 states, including North Carolina, filed an amicus brief — not to provide new evidence and new arguments that might help the courts evaluate the State of Washington’s challenge to the executive order itself — but simply to let the courts know that they don’t want them to lift the temporary restraining order on the temporary entry ban.
This legal process has already consumed a great deal of time, money, and judicial resources, and before it’s over it will consume a great deal more, and all of it over an entry ban that is extremely limited in time and scope and will probably have expired long before the process comes to an end. One can see why an amicus brief that gives them an opportunity to display their own virtue and express their solidarity with the “Resist Trump” movement might appeal to Josh Stein and the other state attorneys general, but surely they have better things to do with their own time and their taxpayers’ money!
 Some critics have objected to a provision that suspends all refugee resettlement for 120 days and another that suspends refugee resettlement from Syria until the President has determined that “sufficient changes have been made … to ensure that admission of Syrian refugees is consistent with the national interest.” They feel these provisions are too hard on asylum seekers, particularly those who come from countries that have been disrupted by US diplomatic and military interventions. Other critics have objected to a provision that instructs the Secretary of State to “prioritize refugee claims made by individuals on the basis of religious-based persecution.” This, the critics claim, is just a poorly disguised attempt to give preferential treatment to Christians.