(Reuters) - Tomorrow afternoon, lawyers for Washington State and Minnesota will stand before U.S. District Judge James Robart of Seattle and ask for a temporary restraining order to block enforcement of the Trump administration’s travel, immigration and refugee policy. In a new brief filed Wednesday night at Judge Robart’s direction, Washington argued that it has standing to sue both because the state has been directly injured by the government’s policy and because it has a quasi-sovereign interest in protecting Washington residents from the alleged violation of their constitutional and statutory rights.
Friday’s hearing should be the most consequential test so far for the Trump policy, which bars entry into the United States from the seven Muslim-majority countries; suspends refugee resettlement for 120 days and indefinitely excludes refugees from Syria. The policy, signed Friday, has already faced a tumultuous week of litigation. A half-dozen federal judges have issued orders undermining the government’s implementation of the new rules, most recently a ruling Tuesday by U.S. District Judge Andre Birotte of Los Angeles that the government may not block entry to people from the targeted countries who hold valid immigrant visas.
Minnesota and Washington want the entire policy suspended, claiming that it violates the U.S. Constitution’s equal protection, due process and religious freedom provisions, as well as the 10th Amendment prohibition against federal commandeering of state legislative processes and law enforcement resources. In an amended complaint that adds Minnesota to the suit Washington first filed on Tuesday, the states also claim the Trump policy is illegal under federal immigration and refugee laws.) But before they can reach the merits of their arguments, they must satisfy the threshold requirement that they have standing to sue.
This question of whether states can sue the Trump administration is likely to arise repeatedly if Democratic state attorneys general follow through on their early vows to oppose the president on regulatory rollbacks. The facts will obviously vary depending on precisely what policies the AGs are challenging but the legal theories and underlying U.S. Supreme Court precedent won’t.
Washington argues first that it has standing to sue because the Trump travel, immigration and refugee policy has hurt the state’s own proprietary interests. (Minnesota, which has joined Washington’s complaint, did not weigh in on its standing to sue in the brief filed Wednesday.) Like any other party, a state has the right to sue over concrete injuries. Washington said it has already or will inevitably suffer economically though lost tax revenue from travelers barred by the Trump policy and businesses harmed by it. “Losing these tax revenues is a real, tangible and immediate harm, even putting aside the order’s longer-term consequences for Washington’s economy,” the state said.
Two state-run Washington universities have also experienced concrete harm, the brief said. Several hundred students, faculty and staff hold visas from the seven Muslim-majority countries targeted in the temporary Trump travel bar. The policy will immediately affect their ability to travel to and from the universities, to conduct research and to speak at conferences. Already, according to the brief, the policy has stranded one professor overseas and has prevented another from leaving the country to deliver a keynote address. “These harms to faculty, staff, and students damage the universities’ missions and reduce their attractiveness to international students,” Washington argued.
In addition to its propriety interests, Washington and every state has a quasi-sovereign interest in protecting the physical and economic well-being of its residents, Washington said. This proposition relies heavily on the Supreme Court’s 1982 decision in Alfred Snapp v. Puerto Rico, in which the court said Puerto Rico had standing to sue apple growers in Virginia for allegedly discriminating against Puerto Rican apple pickers in favor of foreign workers. The Supreme Court specifically said Puerto Rico has a quasi-sovereign interest in the well-being of its residents. And even though fewer than 1,000 of the territory’s 3 million residents were affected by the alleged discrimination, the court ruled, the territory (like U.S. states) has the right to protect its people from unfair treatment.
“Just as we have long recognized that a state’s interests in the health and well-being of its residents extend beyond mere physical interests to economic and commercial interests, we recognize a similar state interest in securing residents from the harmful effects of discrimination,” the opinion said, “This court has had too much experience with the political, social, and moral damage of discrimination not to recognize that a State has a substantial interest in assuring its residents that it will act to protect them from these evils.” (Wow!)
Washington said there’s no question that it meets the Snapp criteria for standing to protect its quasi-sovereign interest, given that the Trump policy has affected thousands of state residents, from legal residents with passports from the targeted countries to refugee resettlement programs that find homes for refugees who are now not permitted to enter the country.
The brief anticipates a Justice Department argument that states cannot sue the federal government as parens patriae under the Supreme Court’s 1923 opinion in Massachusetts v. Mellon. In that case, the court refused to allow Massachusetts to step up on behalf of its citizens to challenge the constitutionality of a federal appropriation to reduced infant mortality, finding the dispute was “political, and not judicial in character, and therefore is not a matter which admits of the exercise of the judicial power.”
But according to Washington, Mellon precedent was “all but eradicated” by the Supreme Court’s 2007 opinion in EPA v. Massachusetts, which upheld the state’s right to sue over the Bush administration’s failure to adopt rules to address climate change. The EPA opinion recognized states’ “special position and interest” as litigants and said they are “entitled to special solicitude in our standing analysis.”
Washington’s arguments seem sufficient to establish its standing under both the propriety and quasi-sovereign interest theories, but, of course, we haven’t yet seen what the Justice Department has to say. (And yes, it appears that lawyers from Main Justice will be defending the Trump policy in court Friday, based on appearances entered in the case docket.)
As I said, Friday’s hearing will tell us a lot about the future of not just the travel, immigration and refugee policy but about Democratic states’ ability to challenge future Trump actions. Keep your eyes on Judge Robart.
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