Man 1: I’d like to challenge the Attorney General, who I admire enormously, and I think did a great job here, make the case for how you think this is unconstitutional as it applies to a family in Yemen that has never been in the United States, that is simply seeking a visa, that has no constitutional right to be in the United States. How is this regulation unconstitutional as it applies to that family?
Anderson: Attorney General Ferguson?
Ferguson: Yeah, as we discussed on Friday night, professor, our claim is brought on behalf of Washingtonians and businesses and the impact on Washingtonians here. So, I understand the overall impact and reach of Judge Robart’s decisions. But if one looks at our complaint, and looks our motions, and our briefing carefully, what we’re talking about, what we’re asserting, why we’re bringing this claim is on behalf of Washingtonians who are adversely impacted. Yes, of course, Judge Robart’s decision has a broad impact on people all around the world. I met with some of those folks today at CTAC airport, but our claim is grounded in the adverse impacts on Washingtonians.
Anderson: I do want to quickly bring in our panels. Page, I saw you shaking your head. About what?
Page. I think there’s more to it than that. I think the family in Yemen still does have an argument because there are two constitutional arguments that the Attorney General in Washington has raised that I think, really, limits government action more than it protects people. So, while the family in Yemen may have a really hard time making a due process argument, we can still make an establishment clause argument, we can still make an equal protection argument because those parts of the constitution apply to everyone and they limit government action.
Man 2: No, they don’t. They do not apply to foreign nationals who have never been in this country and have no rights under American Law.
Page: You cannot pass an unconstitutional law, you cannot sign an unconstitutional executive order if it simply incidentally affects someone who is outside of the United States. That still doesn’t allow you to do something unconstitutional.
Man 2: What I think was passed here. A law was relied on, passed by Congress, that says…uses words like, “any,” “any classification,” and it speaks in terms of classifications to protect America in the sole discretion of the President. And in these national security arenas, and that’s what this is, this is not just immigration, it’s also national security, the courts, not counting Judge Robart, give massive deference to the President. I know that because I have been on the losing side suing the NSA over their violations of the fourth amendment here in this country. It is a massive level of deference. This judge did not accord the executive branch that deference. The violation of separation of powers here is by Judge Robart’s, tweets aside from the President. You may not like the President lashing his tongue out at judges, but I’m hearing a lot more people upset about that when the President of the United States did it in the State of the Union to the Supreme Court sitting in front of him. I’m, of course, referring to President Obama, and then doing it again the month before the ruling on ObamaCare.
Page: It’s not the tweets. Regardless of how much discretion the President has, and he does have a lot of discretion, both Congress has given him that discretion, the Constitution has, but he cannot violate some other provision of the Constitution. He does not have that much discretion.
Anderson: We got to take, we got to take a quick break. We’re going to hear more from our panel. Attorney General Ferguson, I know you got to go. I really appreciate your time. You got a hearing tomorrow.
Anderson: I’m going to let you go prepare.
Ferguson: It’s a deal. Thank you very much.
Anderson: Everyone else, if you can stay with us, we’re going to continue this conversation after a quick break. We’ll be right back. Page, do you agree with that, that the State of Washington doesn’t have real standing?
Page: No, but I do think that’s going to be the big issue, in fact, I expect almost the entire hour of oral argument to be focused on the standing issue. There are two ways a state can have standing. And one is you can show a direct harm to the state, an economic interest, and that’s what happened in the DAPA case. Texas was able to show that, “We’re going to have to spend money for driver’s licenses, allowing these folks to stay in the country is going to cost us money so we’re harmed by it. So, we get to sue.” And fifth circuit court of appeals accepted that and that’s why they were able to deal with that case. But there’s another argument that was made in that case, but never ruled on, and it was what Mr. Ferguson was alluding to earlier. We’re representing people in our states. We’re representing institutions in our states. And who else is going to argue for them? Because, the only other alternative is you’re going to have a bunch of individual lawsuits in district courts across the country and absolutely no uniformity on this very important issue.
Anderson: We’re going to have to end with there. I appreciate all our panelists. Thank you very much
Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of our firm’s “The Federal Docket” and a contributor to Mercer Law Review’s Annual Survey in the areas of federal law. Tom was named a “Top 40 Under 40” lawyer by The National Trial Lawyers, and is a recognized expert in federal sentencing law. He graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom’s reviews on AVVO. Follow Tom on Linkedin.