Saturday, 11 March 2017

Slate: Is Trump’s Second Immigration Ban Unconstitutional?

Slate: Is Trump’s Second Immigration Ban Unconstitutional?

by Dahlia Lithwick

"In the Thursday filing, Washington state put it this way: “When a court enjoins a defendant from implementing policies, the defendant cannot evade that injunction simply by reissuing the same basic policies in a new form. Courts do not issue injunctive relief in a game of whack-a-mole, forced to start anew at a defendant’s whim.” Washington goes on to argue, “Of course, a defendant need not be bound forever by an injunction, and can request its modification or termination under well-settled rules, but it is the court—not the defendant—that decides whether modification is warranted.”

Washington notes that even though Trump openly sought to reinstate the “same basic policy” the court had already enjoined, the administration didn’t ask for a modification or dissolution of its restraining order but simply filed a notice with the court on Monday asserting that “[t]his Court’s injunctive order does not limit [his] ability to immediately begin enforcing the [Second Executive Order].” As Washington tartly notes, “Saying it does not make it so.”

Throwing shade in expert lawyerly fashion, the pleading then continues: “While this assertion may be in keeping with the President’s position that courts are powerless to review his executive orders related to immigration, it is utterly inconsistent with basic legal principles. It is the judicial branch, not the President, that decides whether actions are lawful, and this Court should confirm that its injunction applies to these reissued provisions. The burden is on Defendants to show that modification or termination of the injunction as to these provisions is warranted, a burden they have not met.”"

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