We just discussed the move in Hawaii to secure a new restraining order to cover the second Trump executive order. That was the most likely move that we previously discussed. The other option was to seek to extend the existing restraining order to cover the second executive order on the grounds that there was not a substantial change. That is the option that Washington state is taking. Today, Washington state Attorney General Bob Ferguson indicated that he will ask that Judge James Robart’s Feb. 3 ruling be extended on the grounds that the second Executive Order contains the same alleged violations as the first.
Most judges would look at such a request with skepticism since the new Executive Order rescinds the first order. The first order is legally as dead and Dillinger. Usually the appropriate respond is to file a new action and seek a new restraining order. However, as I previously discussed, courts do have some leeway if they believe that there was not a substantial change and the same conditions are continuing. For purposes of judicial efficiency, the court could decline to dismiss the case as opposed to holding a hearing on the issue of the expansion to the second order.
Ironically, challengers have differed in how to respond to the second order. Many took a victory lap (including Fergusan) and said that Trump had relented. However, that is not the optimal position to take for litigation. While Trump (and Giuliani) undermined the government’s case with their ill-considered comments, those comments by the challengers can be cited as supporting the view that this is a materially different order.
In reality, the new order is not substantially different in scope. While challengers have stated that they forced Trump to reduce the scope of the order significantly, that appears a reference to permanent residents and green card holders. However, those individuals were already exempted under the prior order. While the Ninth Circuit questioned the legitimacy of the role of the White House counsel in exempting these individuals, they were exempted for the purposes of border restrictions carried out by the Executive Branch.
In the end, the difference may be slight. The court can move with dispatch in dealing with a new restraining order motion. The advantage for Washington State is to be able to rely directly on the record and prior order rather resume the position of a party seeking a restraining order — faced with a highly demanding standard.] Moreover, they could seek to argue on the merits rather than return to the standing issue (though standing can be raised by the government).
I believe that the appropriate approach would be new motion along the lines of the filing in Hawaii. The new order is narrower in language and more supported in terms of foundation. Standing is also a very significant barrier in light of the exemption of permanent residents and green card holders.
With most avenues being taken in Washington and Hawaii, the challengers have spread their bets which is a good idea in any litigation.
As previously discussed, I believe that the odds favor the Administration in prevailing in the long run. It could face a mix of decisions on the lower courts as it did with the first order. However, this order is a better product and presumably the Justice Department will markedly improve its performance in the defense of the order.