Washington State To Move To Extend Restraining Order To Second Executive Order

washington-flag-sealdonald_trump_president-elect_portrait_croppedWe 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.

40 thoughts on “Washington State To Move To Extend Restraining Order To Second Executive Order”

  1. Interesting. Possible? Once again the government is not a solution. Wouldn’t the people working in health care as a career have better insight, and ideas? We keep hearing about committees. Unless you have knowledge sitting on a committee won’t help. Why not have insurance companies work at providing various plans to choose from. Employers could provide their people with a portion of the cost as a benefit. I don’t hear anything about employer benefits anymore. Seems an incredible gift to employers to be out of health care benefits. This seems all D.C. again.

  2. Yo! Attorney General of the United States. We have a thing in the law known as a Counter Claim. The U.S. government could file a counterclaim or suit against the State of Washington for violating U.S. laws by being a sanctuary sttate and exercising “powers” reserved to the federal government. If this was Mississippi they would be claiming STATESRIGHTS! Sue them for declaratory and injunctive relief. Make Washington State pay out in money damages for everything that an illegal alien does wrong. If he hollers, Make em pay. Fifty dollars every day. O U T spells Out and Out You Go.

  3. America needs to look at the European Union. They no longer have borders between the former sovereign nation states. A Syrian terrorist comes ashore in Greece. He can thereafter get on a plane, bus, train, rental car, buy a car, and drive to Paris. He can get into England. This is the reason the Brits want Brexit. When the Syrian terrorists get into Mexico they can walk across the U.S. border at various places. Boom. They can go to any state. So places like Washington State are like Greece. They want to power, and its a power not a “right”, to let the Syrian terrorists in. The rest of us have to live with them and get bombed to death.

  4. This is about STATESRIGHTS! We can’t have the federal government come into our county and interfere with our lynching!

    1. To be honest. The States and the Counties can’t breathe with out a federal approval. The legacy of the scientific goveernmet thank you very much progressively regressives. Not that I like it but you can’t spit without permission.

      1. It’s so bad with these 100 foot stacks of regulations it’s not worth correcting the spelling even if I could find a rule allowing such an act.

  5. Actually, this is perfect. If a judge in WA buys this faux legal motion and it gets appealed with the case from Hawaii, it will drive the Ninth nuts. Hilarity will abound. Skulls will explode.

  6. Dictatorship! Darrel, Trump is getting good marks for what he’s doing. Small minority of eligible voters? Last I looked he had over fifteen million voters. So you want Florida again? The election is over.

  7. If you like the present politics of a small minority of eligible voters rules, you will love the budding dictatorship – if you make the cut with your level of attractiveness?????

    1. I see no minority. Under our 240 year old rules – which have survived 700 plus attempts at change and none of getting to the point of an amendment to the constitution being passed for consideration by the States and the citizens – the percentages were 55% Trump 45% Clinton and the elibible voters known as self governing citizens kicked butt until there were damn few names left to take and none worth mentioning.

      A shame they didn’t teach civic, history, government, moral philosophy, some kind of education as part of your social promotion studies.

    2. Scoreboarding: We won, you lost. You can blame the Russians, blame Comey, blame Fox News. But we all know the blame falls on you.

      1. No one wins with this one. I fervently hope the “I told ya so” that will echo aren’t caused by something deadly serious.

  8. Let them try….. They didn’t accept the election results and now they are fighting, tooth and nail, against everything he does. We put up with the ultra liberal Obama for eight years and Trump has been our leader for less than eight weeks. Time to grow up and accept reality. The longer this behavior lasts, the more idiotic it looks

    1. So you’re happy with the absolute train wreck mixture of gross negligence and malfeasance we’ve had on display since day one? True patriots will utilize every single tool in order to save our country. I’m worried that the utter lack of qualifications possessed by the clown prince will scare the military so much the generals will be forced to disobey one of his ridiculous orders some day. That, will be the “clock strikes midnight” moment for the republic.

      1. True patriots? Patriots to what? If you consider 2 months of President Trump’s presidency a train wreck then you’d need to consider the debris the Left has put on the track. If you’re worried about President Trumps “utter lack of qualifications” then you must have been downright petrified over his predecessor. Take a deep breath. The republic has withstood far worse over the last 228 years.

      2. I dont’ accept your premise and your last one is way past ridiculous. To kill your idiotic remark about the military their oath is to the Constitution and to nothing else especially not to some individual. Their entire oath requries them to take steps a long time prior to midnight as you so uneloquently put it.

        Secondly you in no way sound like a true patriot but just the opposite. Do you think the military if they have to take that step which is their decision and theirs alone will not handcuff you?

        Now as for the first sentence. Prove it. I’m sure you must have marshaled enough facts, figures, references and so forth or are you operating under the rules of the Patriot Act which requires only ‘suspicion of.’

        As is …..your pitiful attempt to reframe and redefine …..merit’s “F”. In this level you are in the big leagues and approach us with a social promotion?

        1. Unfortunately, reading comprehension is a learned skill. If you think that the clown administration has been anything but a three-ring circus, then you probably are a Faux News imbiber. Second, although fidelity to the Constitution is a commonality amongst our public servants, a clown now holds the position of Commander in Chief; ergo, the military must follow his orders. Third, your laughable comment about this website being the “big leagues” makes all realize that you are likely a reddit denizen, and therefore your comparables are woefully inadequate. This place is little more than posters whose frames of references are not even remotely related shooting long range artillery at each other in the form of posts; with no hits ever registered.

      3. Your comment proves her point. We’ll compensate you for being the Poster Child. Well done.

      4. I’m worried that the utter lack of qualifications possessed by the clown prince will scare the military so much the generals

        You didn’t worry at all when you had a man sitting in that chair whose previous executive experience began and ended with running the Chicago Annenberg Challenge into the ground, who spent all of 2.5 years in Congress ‘ere running for President, who collected a salary from the University of Chicago for 12 years without ever publishing a slngle scholarly article, who spent all of 3 years practicing law (pro-rating part-time and seasonal work). You didn’t worry either when you found out he made use of the IRS to harass his political opponents. You didn’t worry because you’re shallow and frivolous.

        1. There is a fundamental difference between a President whose politics one happens to disagree with and a President who is utterly unqualified in every meaningful metric to perform the essential functions of leading the free world. Although I thought Shrub was clueless, I never doubted his reverence for the Constitution; the Office of the President; or, the American people. He also happened to have a father who I revered, and who I voted for twice. No one can deny that the election of the clown has installed a person whose knowledge, morality, personality, experience, intellect and psychological makeup are unsuited to being our President.

          1. Mark M. – what are the requirements to be President. I know that President Trump fulfills the Constitutional requirements, are there some double-secret ones we do not know about?

          2. Although I thought Shrub was clueless, I

            Both Bush and Trump have run businesses and Bush was the Governor of Texas to boot.

            So you’re a #Nevertrumper. Isn’t that cute?

      5. Oh and BO wasn’t a train wreck? Under him more people were on the dole, in some way, in decades and the least people since the Great Depression had a job. That’s a train wreck! And don’t talk to me about “real patriots”. I am a REAL patriot because I want America to be great again! BO castrated this country in every way he could. That’s why the people voted for Trump. And don’t tell me Hillary got more votes, those votes were from ultra-liberal states like California and New York. These bully states would rule but for the electoral college.

        1. So, are you receiving any money from the state and/or fed gov? How about Social Security or Medicare? Do you drive on public roads? You’re using the roads for which you didn’t pay.
          Yes, many folks received FedGov money. After the crash of the world wide economy in 2007 (thanks gwb), many Americans were forced to use the “safety net” to survive. Obama had no control over who received FedGov money. None, zero. Those programs (e.g., food stamps) are the law of the land. They were enacted by congress years ago and are considered “non-discretionary” programs. That is, congress (and states for some programs) are REQUIRED by law to fund those programs.
          Wake up, please. Trump is in this for no one but Trump and his big buck$ friends. Btw, do you anyone who has gotten medical coverage via Obamacare? Guess what? Trump and his minions are repealing Obamacare, so close to 20 million AMERICANS will be without health coverage.

    2. Obama responded to the will of the people. DDT got in on a technicality. Obama did not produce on all his promises and was labeled a liar. DDT is a pathological liar and has lied continuously all his life and for his entire campaign and into office. You can count the days he did not lie on one hand and have several fingers left over. The only idiot is DDT and the man seems mentally unbalanced. So, what’s a people-majority-to do? There are many many more voters that voted for this imbecile who have stated that they made a mistake than those that voted for Clinton. DDT would not get in if it were to happen again. That is why every piece of this country must resist his asinine moves. DDT is still campaigning and ruining the country in doing so.

      1. “Obama responded to the will of the people.”

        He certainly did; “Let them eat cake!”

      2. So you wet behind the ears newbie yiou now call ‘our’ Constitution a ‘technicality?’ What country DID you come from as I read from Paul you are a foreigner.

      3. Isaac: “There are many many more voters that voted for this imbecile who have stated that they made a mistake than those that voted for Clinton. DDT would not get in if it were to happen again.”

        Wrong again, Mr. B. Did you see the results of the Clinton/Trump gender swapping debate experiment? It showed that Hillary Clinton and her words and ideas were even MORE unlikeable when spoken by a man!

        From the article:
        “An experiment designed to reveal gender bias by reenacting the presidential debates with the candidates’ genders reversed found that Hillary Clinton would have been even less likeable as a man.
        The two NYU professors who designed the experiment were “unsettled” to discover that audience members actually found Trump’s style more endearing when it came from a woman.


        And isn’t it interesting that this story was not covered by most MSM outlets….

      4. You need an intervention to get you over your “Obama sycophania” that actually blinds you to the r.e.a.l.i.t.y. of who Obama is and what he did – and continues to do – to hurt the country and his own Democrat Party. Obama does not care about the Democrat party and the Democrats do not care about the little people. Their policies actually hurt people, not help them. Just as Obama’s presidency actually hurt Democrats, not helped them.

        Name one thing Hillary Clinton has ever done that actually helped the country – let alone women and children. Everything she touched was a mess. But she became wealthy. The Democrats are all about scoring political points with the brainwashed masses – not actually helping them. That gig is up under Trump.

  9. Doesn’t this new order move the “extreme” vetting to the US embassies in the affected countries? Does this materially change the impact (standing) for these states to sue?

    1. Yes it would appear so. As I read the Washington State request to the 9th Circuit they are faced with this challenge. The new version answers every point made by four federal judges and deals with them as directed by those federal judges. Are we to believe they will say. “What we told you to do is suddenly not enough? What we told you to do was wrong? That our rulings should be cast aside as dust …and for what reason.

      This time the circuit court has been put into the position of having to defend their own rulings by Hawaii and Washington State.

      What do you think they will do. “Oh yes right we screwed up again let ls fix this how do you want it written?”


      “When we give an opinion and it is followed and you do not like it the proper step is appeal to a higher authority.. Go pound sand.”

  10. This is not a state issue. and state attorneys general need to defer this matter to Congress and the federal government.

    This is purely about politics

    1. Not really Daren.

      Politics is justice is law is ideology, is the way the wind blows. All factors work either together or in sequence, or both. The typical evasive move is to pass the issue to another.

      1. Typical evasive move…..exactly. So what is the next step Isaac? Resist and remove Trump? Then what? Remove Pence too? Then what? Install Hillary Clinton? Sounds more like a plan for dismantling democracy rather than protecting it.

        1. Bab

          If we had a democracy you might have a point. However, we have an oligarchy and the illusion of a democracy. A democracy in its purest form would require voters who are well informed and cognizant of the consequences of their choices. This is not the case. The President, regardless of party but never before as much as this one, is elected as a result of a circus of jingoism, lies, and patriotic button pushing. DDT is not an intelligent choice as there was little intelligence involved all around. In this condition, the illusion of a democracy is in need of safeguards. This is probably why the founding fathers created the structure they created.

          The trysting between the executive and the judiciary and/or the house has been going on since Jefferson-his fight against his fear of an oligarchy of a judiciary is well documented. We now have an oligarchy throughout. The calibre of our representatives is determined by the cost of their exposure, a cost that is in essence a purchase price.

          When one part goes to extremes, in this case extreme incompetence in the highest office stroking itself, another must take action and offset the mistake. The trysting goes on because it is necessary. We don’t have anything near an intelligent and informed democratic system. There is nothing to dismantle but everything to create. What do you expect?

          1. “We don’t have anything near an intelligent and informed democratic system. There is nothing to dismantle but everything to create.”

            Agree, there is everything to create. And isn’t Trump the one to try rather than Hillary? Trump is truly doing this FOR the people. So what are all the protests really about? Who benefits by ousting Trump? Who benefits by installing Hillary?

            There is nothing to dismantle? How about the Oligarchy? And isn’t that what the election of Trump was about? The result of this election was influenced by the people. BY THE PEOPLE, not the Oligarchy. And now Trump is working to drain the swamp and give power back to the people. He is working to generate jobs and stimulate the economy. He wants to keep us safe and restore America as the land of opportunity for people willing to work hard and obey the rule of law. He is wanting peaceful relations with Russia unlike Hillary who never met a war she didn’t support. Trump understands all this. Will he succeed? Maybe. There’s only so much he will be able to change. And isn’t this a good thing? Why not support him and see what he is able to do before the Oligarchy takes him out?

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