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Washington AG: 'We Could Not Have Written The Opinion Any Better Ourselves'


A federal appeals court has made a ruling on President Trump's executive order on immigration. They have denied the administration's request to reinstate the ban. The president's executive order issued just 13 days ago put a halt on travelers from seven majority Muslim countries along with all refugees worldwide.

After a lawsuit brought by the state of Washington, a federal judge in Seattle last week issued a temporary restraining order that put the policy on hold. The federal government looked to the appeals court, hoping for a stay. That request has been denied. In other words, the executive order is not in effect.

In a moment, we'll hear from the Washington attorney general who brought the case, Bob Ferguson, and from our White House correspondent Scott Horsley with some news of the reaction there. But first, I'm joined by NPR justice correspondent Carrie Johnson. And Carrie, bring us up to speed. What has happened, and what happens now?

CARRIE JOHNSON, BYLINE: OK, Robert, this was a very narrow ruling by the three-judge panel that heard that extraordinary oral argument earlier in the week. This panel, which was two Democratic presidential appointees, one Republican presidential appointee, unanimously ruled that the Trump executive order on immigration and travel ban should remain halted for now.

They found that the White House - despite asserting a whole bunch of national security and immigration claims about presidential power, they found the court did have the authority to review those claims. They found not enough evidence to suggest that there's a real national security threat here.

And in fact, the opposite - other people, people from Washington state, people from Minnesota, the plaintiffs in this case were suffering real hardship - separations from their families, not being able to get back to school - the public universities in those states - and the states themselves bearing a tax burden as a result of this executive order. The court found that these people's due process rights were violated and that for this stage now, there was real harm to them and the halt - the stay should remain in place for now.

SIEGEL: So what happens next with this executive order, not to mention the temporary restraining order blocking it?

JOHNSON: Well, the court had a number of critical statements to make about the executive order, the implementation of the order, which was chaotic, as we all know, remembering those scenes from airports a couple of weeks ago, but also the way in which the White House changed position over time.

You'll remember, Robert; the Department of Homeland Security, the State Department, the White House, the Justice Department all seemed to be of two minds about whether legal permanent residents or green card holders were subjected to this order. At first, at the border, they were. Their rights were being violated or implicated in some fashion.

Eventually, the White House counsel Don McGahn put out a statement suggesting that green card holders were exempt from this order. This court tonight found, Robert, that the White House counsel can't just do that. You have to go back and have the president sign a new executive order or amend the one he already did.

SIEGEL: OK, Carrie, stay with us because right now we're going to hear from the Washington state attorney general who brought this case, Bob Ferguson. We spoke a little while ago, and I started by asking him if he regards the 9th Circuit's decision as an all-out win.

BOB FERGUSON: Let's put it this way. I just sent a text message to my wife and sister, and I refer to it as a grand slam. It's a complete win. We could not have written the opinion any better ourselves.

SIEGEL: When you say you couldn't have written the opinion any better yourselves, do you see judgments here that addressed the substance of the Trump policy as opposed to just the need for a full hearing of it?

FERGUSON: No, this has never been about - at this stage - the substance. Although, to be clear, in order to prevail at the trial court, in order to get the temporary restraining order - which the hurdle is quite high - one thing the judge had to determine was, we had a high likelihood of success on the merits when he gets to that stage. So that's already been established, and the federal government was not able to overcome that before the court of appeals.

SIEGEL: When do you go to court next?

FERGUSON: We don't know. We'll see what happens next. The ball is really in the federal government's court to some degree to see if they wish to seek review by the U.S. Supreme Court. That said, what I think is going to happen ultimately now is it goes back to Judge Robart, the original trial court judge appointed by George W. Bush, who ruled in our favor.

What'll happen is we believe that we'll have discovery. We'll take depositions. We'll request emails from administration officials to look behind the thinking behind this executive order. And we'll have a normal process and a review on the merits. But again, I remain confident at the end of the day that we will prevail before Judge Robart and back up through the appeals process again.

SIEGEL: Would you expect that you'd bump up against claims of national security as you try to get assessments of what threat is posed by immigrants from what countries?

FERGUSON: Sure, and we're getting that now of course. And what the Department of Justice, what the president's arguing is - and they argued this before the 9th Circuit - was, you cannot review the president's actions. As the 9th Circuit wrote - they said - I'm quoting now - "there is no precedent to support this claimed unreviewability which runs contrary to the fundamental structure of our constitutional democracy."

That in one sentence underscores why I brought this litigation. No one's above the law. That includes the president. And the notion somehow that the president can issue an executive order of this sweeping nature and have the Justice Department and the president say, hey, federal bench, you cannot look behind it, is quite candidly frightening.

SIEGEL: But do you think that you're arguing in fact constitutionally uphill here, that in fact if you were to prevail in the long run and the policy were to be voided, that that would be a new limitation on what presidents can do about immigration and national security?

FERGUSON: Absolutely not - to the contrary. When President Obama issued an executive order on immigration not that long ago, a Republican attorney general challenged that and had it struck down. It did not go into effect because of a legal challenge made by those attorneys general.

So it's unusual, I grant you that. Getting a temporary restraining order is not easy. I recognize that what's at stake is very significant, but the concept that that can be stayed and ultimately declared unconstitutional is frankly not all that unusual.

SIEGEL: That's the Washington State Attorney General Bob Ferguson, who brought this particular case against the president's executive order. He spoke to us earlier this evening. Transcript provided by NPR, Copyright NPR.