Federal District Court Judge James Robart’s ruling on Friday placed a temporary restraining order (TRO) on many elements of President Trump’s executive order temporarily banning refugees from all countries and blocking the issuance of visas from seven Middle Eastern companies.
It did not, however, put a stop to what may be the most significant element of the executive order, Section 5 d, which limited the number of refugees allowed to enter the United States in FY 2017 to 50,000.
By doing so, even the federal judge who has most broadly asserted powers to limit the executive powers exercised by President Trump acknowledged what legal experts on both sides of the issue have long known: The Refugee Act of 1980 grants the president the sole authority to determine the number of refugees allowed into the country in a year.
That spells bad news for pro-refugee advocates.
In the four months and five days since FY 2017 began on October 1, 2016, a total of 32,968 refugees have legally entered the country.
That means that over the next seven months and 23 days that remain in FY 2017, the maximum that can come into the country is 17,032, or slightly more than 2,000 month.
That contrasts significantly with the 8,000 plus per month that have arrived in FY 2017 to date, and the 7,000 per month that arrived in FY 2016, when a total of 84,995 refugees legally entered the country.
Although Washington State Attorney General Robert W. Ferguson’s complaint for declaratory and injunctive relief, filed in United States District Court, Western District of Washington on January 30, criticized all the key elements of the executive order as unconstitutional, his prayer for relief specifically did not request a temporary restraining order halting Section 5(d), which stated:
Pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the entry of more than 50,000 refugees in fiscal year 2017 would be detrimental to the interests of the United States, and thus suspend any such entry until such time as I determine that additional admissions would be in the national interest.
Judge Robart’s temporary restraining order (TRO), signed on February 3, ordered:
- Federal Defendants and all respective officers, agents, servants, employees, attorneys, and persons acting in concert or participation with them are hereby ENJOINED and RESTRAINED from:
(a) Enforcing Section 3(c) of the Executive Order;
(b) Enforcing Section 5(a) of the Executive Order;
(c) Enforcing Section 5(b) of the Executive Order;
(d) Enforcing Section 5(c) of the Executive Order;
(e) Enforcing Section 5(e) of the Executive Order to the extent Section 5(e) purports to prioritize refugee claims of certain religious minorities.
Notably, Robarts did not go beyond the prayer for relief in the complaint filed by the Washington State Attorney General, which was joined prior to his order by the Attorney General for the state of Minnesota, and made no attempt to challenge President Trump’s legal and constitutional authority to set an annual limit on the number of refugees allowed to enter the country.
Robarts did take the unusual step to grant the TRO “on a nationwide basis.” Robarts explained in his order:
Although Federal Defendants argued that any TRO should be limited to the States at issue (see Resp. at 30), the resulting partial implementationof the Executive Order “would undermine the constitutional imperative of ‘a uniform Rule of Naturalization’ and Congress’s instruction that ‘the immigration laws of the United States should be enforced vigorously and uniformly.” Texas v. United States, 809 F.3d 134,155 (5th Circ. 2015).
Many other important elements of the executive order also remain standing after Judge Robart’s ruling, among them:
Sec. 3 (a) Suspension of Issuance of Visas and Other Immigration Benefits to Nationals of Countries of Particular Concern.
The Secretary of Homeland Security, in consultation with the Secretary of State and the Director of National Intelligence, shall immediately conduct a review to determine the information needed from any country to adjudicate any visa, admission, or other benefit under the INA (adjudications) in order to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.
Sec. 4 (a) Implementing Uniform Screening Standards for All Immigration Programs.
The Secretary of State, the Secretary of Homeland Security, the Director of National Intelligence, and the Director of the Federal Bureau of Investigation shall implement a program, as part of the adjudication process for immigration benefits, to identify individuals seeking to enter the United States on a fraudulent basis with the intent to cause harm, or who are at risk of causing harm subsequent to their admission.
Sec. 5 (g) State and local jurisdiction involvement
It is the policy of the executive branch that, to the extent permitted by law and as practicable, State and local jurisdictions be granted a role in the process of determining the placement or settlement in their jurisdictions of aliens eligible to be admitted to the United States as refugees. To that end, the Secretary of Homeland Security shall examine existing law to determine the extent to which, consistent with applicable law, State and local jurisdictions may have greater involvement in the process of determining the placement or resettlement of refugees in their jurisdictions, and shall devise a proposal to lawfully promote such involvement.
Judge Robart’s past conduct has raised some eyebrows.
“According to a video posted on the federal court’s website, Robart said “black lives matter” during a court hearing in August 2016. Citing FBI statistics, he said, “Police shootings resulting in deaths involved 41% black people, despite being only 20% of the population living in those cities,” CNN reported.
Then there’s the question of whether he should have recused himself from hearing this case.
At his confirmation hearings in 2004, Sen. Orrin Hatch revealed that Robart had done “pro bono work” for refugees.
Mr. Robart has exceptional qualifications for the Federal bench. After graduating from Georgetown University Law Center in 1973 where he was the administrative editor of the Georgetown University Law Review, he joined the law firm of Lane, Powell, Moss & Miller, which is now known as Lane Powell Spears Lubersky LLP.
Mr. Robart became a partner in that firm in 1980, and subsequently became the co-managing partner and later the sole managing partner–a position that he holds today. During his time at the firm, Mr. Robart has specialized in complex commercial litigation with an emphasis on class actions, securities, and employment law.
He brings a wealth of trial experience to the Federal bench after trying in excess of 50 cases to verdict or judgment as sole or lead counsel, and he has been active in the representation of the disadvantaged through his work with Evergreen Legal Services and the the independent representation of Southeast Asian refugees.
The question of recusal was apparently not raised by attorneys from the Department of Justice during the pleadings before Judge Robarts, but it may arise on appeal.