The Commercial Appeal

Trump lawyers, you’ll be in court a lot

- NOAH FELDMAN

No matter how the U.S. Court of Appeals for the 9th Circuit rules, the legal challenges to President Donald Trump’s executive order on immigratio­n from seven majority Muslim countries won’t be over. Not even close. That’s because, in addition to the case that currently has the policy on hold, a number of challenges to different aspects of the order by different kinds of plaintiffs are pending in courts across the country.

This may seem perverse, given the need for a single immigratio­n policy. But it’s the way challenges to federal action proceed almost all of the time, and it follows the same convoluted path as the arguments against the Affordable Care Act during Barack Obama’s presidency. Ultimately, only the U.S. Supreme Court can impose uniformity throughout the federal judicial system. This system isn’t perfect, but it has stood the test of time.

The immigratio­n cases each have different nuances with possible legal implicatio­ns. The case brought to a federal district judge in Seattle features Washington State and Minnesota as plaintiffs. Its most distinctiv­e feature is the question of whether the states are in a position to sue.

In 2015, Texas and 25 other states sued the Obama administra­tion over his plan to delay deportatio­n of parents of U.S. citizens who were themselves undocument­ed. Texas’ theory of why it had standing to sue was that it would have to spend money to issue driver’s licenses to the undocument­ed people — a theory that both the District Court and the U.S. Court of Appeals for the 5th Circuit accepted, and that the U.S. Supreme Court declined to strike down with a split 4-4 vote.

The standing claims for Washington and Minnesota in the Trump case are similar but not exactly the same — because they are arguing for more people to be let into their states, not fewer. It’s therefore difficult for them to argue that Trump’s order forces them to spend money. The states have added the argument that they administer state universiti­es that will miss out on students and guest speakers from the seven countries who have visas but won’t be let in. That’s not a bad claim to standing, but it’s not a home run.

Meanwhile, a suit in Boston was originally brought on behalf of two professors, both Iranian nationals, who were detained for several hours at Logan Internatio­nal Airport on Jan. 27, the first day the order was in effect. The professors were green-card holders, as were three more plaintiffs added to the case. The federal judge in Boston ruled that all of them no longer have standing now that the Trump administra­tion has decided not to extend the ban to lawful permanent residents.

Two other Boston plaintiffs are in the U.S. on student visas. But the judge ruled that they don’t have standing to sue because there is no legal entitlemen­t for visa holders to get back into the country once they have left voluntaril­y.

The remaining plaintiff in the Boston case, Oxfam America Inc., said it had standing because its free-speech rights were violated by the inability to invite speakers from the seven countries. The judge said that Oxfam’s free-speech rights weren’t in play.

All these legal conclusion­s in the Boston case can be appealed, and different courts could reach different conclusion­s about them. But they show how distinct the Boston case is from the one in Seattle.

A newly filed case in Maryland is different yet again. Here the American Civil Liberties Union has filed suit on behalf of the Internatio­nal Refugee Assistance Project and HIAS, a traditiona­lly Jewish refugee resettleme­nt organizati­on. The resettleme­nt groups’ standing argument rests on a precedent called Havens Realty Corp. v. Coleman which I wrote about recently because it was cited by the plaintiffs in the foreign emoluments suit against Trump.

There are lots more cases out there — this is by no means a comprehens­ive list.

For the Trump administra­tion, defending these various suits will no doubt be logistical­ly challengin­g and politicall­y frustratin­g. The moment one case is denied, another may spring up in its place.

Noah Feldman is a Bloomberg View columnist. He is a professor of constituti­onal and internatio­nal law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His books include “Cool War: The Future of Global Competitio­n” and “Divided by God: America’s Church-State Problem — and What We Should Do About It.” To contact the author of this story: Noah Feldman at nfeldman7@bloomberg.net.

 ?? NIKKI BOERTMAN / THE COMMERCIAL APPEAL FILE ?? Citizens participat­ed in a Downtown march organized by Refugee Empowermen­t Program, Comunidade­s Unidas en Una Voz and the Tennessee Immigrant & Refugee Rights Coalition in response to Trump’s executive order halting immigratio­n from seven majority...
NIKKI BOERTMAN / THE COMMERCIAL APPEAL FILE Citizens participat­ed in a Downtown march organized by Refugee Empowermen­t Program, Comunidade­s Unidas en Una Voz and the Tennessee Immigrant & Refugee Rights Coalition in response to Trump’s executive order halting immigratio­n from seven majority...

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