Washington Attorney General Bob Ferguson is claiming legal victory in his fight against President Donald Trump’s immigration executive order.
The Justice Department said in court filings on Thursday that Trump will replace the current executive order and that they will not continue litigating the challenge brought by Washington state.
Ferguson spearheaded that case against the Trump administration. KGW’s Laural Porter spoke with him on Thursday afternoon from Seattle.
Laural Porter: You brought the initial case against the president’s travel ban. Is this a victory for you or does the fight go on?
Attorney General Bob Ferguson: This is unequivocally a victory. The president is essentially conceding defeat and acknowledging what everyone can see, that the executive order, the original executive order is unconstitutional and unlawful. He’s chosen not to appeal to the U.S. Supreme Court and in their briefing earlier the Department of Justice said they’ll rescind the original executive order and frankly start all over.
Porter: The president has said by tailoring the new executive order they can get just about everything they want, in some ways more. What do you expect in this new executive order?
Ferguson: The president has to be candid. He's been wrong about everything so far with this executive order. So I’m not sure I’d put too much into his most recent statements. What I’ll be looking for in a new executive order is exactly what we looked at in the original executive order: anything the president does with an executive order related to immigration must still be constitutional and lawful. Frankly, the original executive order failed on both counts. So what we’ll be looking for is to make sure whatever he puts forward meets those tests. We’ll scrutinize it carefully. We’ll examine every word in every statement to determine what our next steps might be.
Porter: If the White House exempts legal permanent residents and people returning on a visa in this new executive order, would that be sufficient for you?
Ferguson: Well that would certainly be a good start. There are approximately 500,000 people in the United States who have green cards, lawful permanent residents, from the seven affected countries listed in the original executive order. So yes that would be a good starting point.
That said, I’m going to wait and not pre-judge whatever new executive order the president might put together. My hope is he will frankly take more time, consult with his lawyers, consult with key departments and agencies to make sure more thought is put into a revised executive order than was placed in the original one.
Porter: Yesterday, Texas became the first state to support the Trump administration in the legal battle on this saying the president should be able to make national security decisions. And there’s a federal law that gives the president the authority and discretion to bar entry to the US from any class of immigrants if he deems them to be detrimental to the United States. Doesn’t that put the president in a strong position?
Ferguson: Yes, Texas did file in support of the president. They’re a bit lonely at this point. My understanding is no other state has joined them. But more importantly and more substantively, the president has broad authority when it comes to issuing executive orders, when it comes to immigration. However, those powers are not without limit.
You don’t have to take my word for it. President Obama issued an executive order a couple of years ago related to immigration. An attorney general in Texas filed a lawsuit against that order, a federal trial court judge said it was unlawful, that was upheld in the court of appeals, and the U.S. Supreme Court split 4-4, which meant that the executive order was still unlawful.
We’ve seen this before, but the president’s powers are not unchecked. What I find deeply troubling about the president’s argument is in this case the DOJ has literally argued in court that the president’s actions are unreviewable. Those are their own words: that the president’s actions are unreviewable. And as my own solicitor general Noah Purcell said at oral argument in response, he said that is truly terrifying. That has never been the law in our country and frankly that cannot be the law. Nobody in our country is above the law and is above the Constitution. That includes the President of the United States and it’s my responsibility to make sure the president upholds that Constitution.
Porter: Before today's decision, you had talked about moving immediately to discovery, exploring a motive behind the travel ban. Why was that important to this case?
Ferguson: It’s critically important because one of our claims is the president acted in a way that put one religion above another. Specifically, he wanted a Muslim ban. He made that very clear throughout his campaign. Rudy Giuliani just a few weeks ago went on national TV and said the president asked him to put together a Muslim ban, but just do it in a lawful way.
Part of our argument was this was done in an unconstitutional way violating the establishment of religion clause. In order to determine that, an individual party is allowed to go behind the action to find out what truly motivated the action. That’s pretty standard in terms of courtrooms. It’s magnified in a case like this obviously because we’re talking about the president and his closest advisors.
Porter: The president has denied that a Muslim ban was behind this travel ban. Is there legal precedent for going back to what he said during the campaign?
Ferguson: One has the ability to look at statements, emails, documentation related to the thinking that goes into any action. In this case we’re talking about an executive order. The fact they are statements from a campaign might be a little unusual, but there’s nothing remarkable about the proposition from a legal standpoint.
Porter: Would it have been possible or possible in the future to depose the President of the United States?
Ferguson: I’m sure the president and his lawyers would assert different privileges if we made such a request. The key aspect from my standpoint would be ensure that we get to the bottom of what motivated this executive order. We’ll make a determination later as I talk to my team about what depositions are appropriate as we move forward.
Porter: There are Washingtonians and Oregonians who support President Trump, they support this travel ban and they wonder why you’re taking on the administration on this. Shouldn’t you be focusing on state issues? Is it your role to be taking on the President of the United States?
Ferguson: It’s my role to uphold the Constitution. If the president does not uphold the Constitution, it’s my job to hold him accountable for that. Of course I recognize many people support the president, many people support this executive order. But I would hope as a people we’d all agree nothing is more important that the rule of law.
We’re a nation of laws and nobody is above the law. So it’s my responsibility to make sure the president upholds the Constitution, and when he uses that significant power that can have significant impact on people’s lives in deeply personal ways, that he does that in a way that’s constitutional. So far he is suffering defeat after defeat after defeat in the courts for a very simple reason: he’s violating the Constitution and I will not put up with that.
Porter: The president called a federal judge who ruled against him a “so-called judge.” He also called the Ninth Circuit decision disgraceful and today he called the decision a “very bad decision.” What are your thoughts about his hostility towards the courts?
Ferguson: It’s obviously deeply disappointing. But as an attorney you know that when the person on the other side of the case resorts to name calling that you’re winning. He does not have a legal argument to sustain his executive order and that’s why he’s lashing out in the way that he is. It’s unfortunate, but four judges so far have weighed in on this case. Two have been appointment by Republicans – George W. Bush – two by Democrats. It’s a shame, but frankly I’m just focused on our case.
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