The case of Washington v. Trump was heard at the 9th Circuit, yesterday. In case you’ve been living under a rock (over 100,000 people watched the appellate argument on YouTube, which has to be a record of some sort), this is the case that deals Trump’s “travel ban” that’s really a “Muslim ban” but I guess we’re calling a “travel ban” now because Republicans always win the naming game.
The arguments were a treat. Judges Richard Clifton and William Canby were smart and tough. Judge Michelle Friedland… I mean, if you don’t know, now you know. According to the new rules, liberals are never allowed to make a Supreme Court appointment ever again, but when progressives secede, Friedland is going to be on a high court shortlist.
There are good recaps of the proceedings all over the place, but I want to focus on just one, law nerd, issue: Standing. You see, it’s not at all clear why the State of Washington (or Minnesota, the other plaintiff state in the case), have any standing to sue Trump over his executive order banning Muslims (but not Christians) from seven randomly chosen “Muslim countries.” It’s not like Washington State is a caliphate. And while individuals denied entry (especially legal residents, but maybe also anybody with a valid visa) should probably have standing to sue the government, it takes some legal gymnastics to explain how Washington and Minnesota are hurt by this ban.
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Washington argues that it has standing because (I’m going to paraphrase): Muslims are also smart people and Washington needs smart people to work in their universities and companies. I buy it. But I also buy the argument that Muslims are people and some of those people live in Washington and Donald Trump doesn’t know what an American is so he can go f**k himself.
Luckily, for Washington (and, you know, decent people everywhere), the Republicans have already done most of the legal work necessary to grant Washington standing to sue over immigration policies. From Vox:
Interestingly, the best argument in Washington’s favor, on this score, is Texas v. United States, a case that the United States has just agreed to hear. The federal appellate court found the state of Texas had standing to challenge President Obama’s program giving “DREAMers” (undocumented persons who came to the United States as children) a modicum of protection. In a controversial holding, the court ruled that the cost to Texas of giving noncitizens drivers licenses (which it did not have to do) was sufficient cost to the state to give it a stake in the outcome of the case.
This kind of thing is my favorite part of “the law.” I love it, intellectually speaking, when arguments used to do something you hate are redeployed to protect something that you care about. And vice-versa. It’s just an important reminder that the argument DGAF what side it’s on.
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I love it because it strips people of their ability to wrap themselves in a robe and pretend like they are powerless in the face of legal doctrines. The law is objective, the people using it are not. It’s not the sword’s fault that it can be used to hack off a head or parry a blow. The moral praise or fault lies solely with the person who wields the sword.
Here, the 5th Circuit concocted some total BS to justify Texas blocking U.S. immigration policy. It sure looks like the 9th Circuit is poised to throw that argument right back in face of the xenophobes. It’ll be the circuit split equivalent of “You want a toe? I can get you a toe. Believe me.”
Washington v. Trump is a case about how we fundamentally define ourselves as Americans. That really isn’t a legal question. The law will just be there, like always, ready to justify whatever we decide. “It” doesn’t care how we apply it. We should.
A constitutional expert explains the issues at stake in Trump’s travel ban [Vox]
Judges sharply question attorneys for both sides on Trump’s travel ban [Los Angeles Times]
Elie Mystal is an editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at [email protected]. He will resist.