Washington State Attorney General Bob Ferguson ’95 on winning the first federal lawsuit against Trump’s controversial immigration ban

Washington State Attorney General Bob Ferguson ’95 has been a central figure in political conversations since January 30, when he challenged President Trump’s executive order on immigration and refugees by filing a federal lawsuit—the first to be brought by a state. Backed by declarations from Seattle-based Amazon and Bellevue-based Expedia that testify to the negative impacts of the order on their businesses and employees, State of Washington v. Trump claimed that the order violated constitutional guarantees of religious freedom and equal protection. An amended complaint added the State of Minnesota as a plaintiff, and 18 other states, including New York, supported the challenge.

On February 3, US District Judge James Robart for the Western District of Washington ruled in favor of Ferguson and granted his request for a temporary restraining order on a nationwide basis, which prohibited federal employees from enforcing the executive order. The White House vowed to appeal the decision, and on February 9, the US Court of Appeals for the Ninth Circuit ruled to continue blocking enforcement of the ban. The Trump administration said in court documents that it did not want a larger appellate panel to review the ruling, instead opting to replace the order. 

During a recent conversation, Ferguson, who is an alumnus of the NYU Law Federal Defender Clinic, spoke about his strategy in filing the suit, the importance of the attorney general in state government, lessons from NYU Law that continue to influence his career, and his next moves in this ever-evolving case.

Can you walk through the 72 hours between when the executive order was issued and your lawsuit was filed?

I was actually returning from a conference with other democratic attorneys general the morning after the executive order was signed. The president signed it on a Friday evening; I was on a plane back home the next morning. I landed at Sea-Tac Airport around noon, and a lot was happening at airports all around the country. There was going to be a press conference that afternoon with the governor and other electeds at the airport, but I felt I should get to work on a potential challenge. I worked from home on Saturday, worked at the office on Sunday, the legal team was obviously there working around the clock all weekend, and it was an intense experience.

Could you discuss your strategy in enlisting private companies as allies in your suit?

That was the idea of Solicitor General Noah Purcell. He and I were talking throughout the weekend about the strengths and weaknesses of our case, if we should file a case, what it would look like, all the normal questions one would ask. Now, keep in mind, we were filing our complaints Monday, so this is now Saturday afternoon. I reached out to companies like Amazon and Expedia that weekend. To their great credit, they responded immediately. They worked through the weekend to put together declarations in support of our lawsuit. Those declarations spoke about adverse impact of the executive order on their employees and on their businesses. And I have little doubt that made a significant difference in our case.

Could you talk about your approach of having the state file suit, as opposed to leaving to the individuals directly affected by the executive order to challenge it?

There was a legal team in place in my office that was ready to go to work once that executive order was signed. We had kicked around the idea of different approaches, and from my standpoint, it was a relatively straightforward decision. Once the conclusion was reached that we had good arguments, my feeling was that it was my responsibility, frankly, to challenge the very constitutionality of the executive order itself. I knew it was an important decision, but in another respect, it was not exactly difficult. I was very confident in my legal team to make a strong case, which they obviously did. And that’s ultimately why I decided to present a complete challenge to the executive order.

What went on in terms of conversations or analysis really was pretty similar to any big decision we make in the office. I’m sitting down with people like Noah, we’re laying out the legal argument, pros and cons, and my job is to make a decision I think is the right one. I think it’s important to point out I have a lot of trust in Noah, my assistant general. He is a very brilliant attorney, and I just have a lot of confidence in his judgment.

There was reportedly a lot of confusion surrounding the implementation of the executive order. Are there special considerations for legal professionals challenging an order under those circumstances?  

There was a lot of confusion. And as a result, there was chaos at airports all around our country. And for me and my team, because of that confusion and that chaos, we felt that every hour mattered. And that’s why it was important to work over the weekend and file our complaint and our motion on the executive order on Monday. I was asking a lot of the team to pull that off, but I think that confusion and chaos was a motivator for us to move as quickly as we possibly could because of what people were experiencing, not only in our state, but all around the country.

What’s your next move, and how is your office preparing for new immigration orders coming down the pipeline?

We will take a similar approach to what we did before: have a team in place that’s ready to scrutinize or revise the executive order as soon as it is issued. We will then meet and walk through potential legal arguments.

It’s a bit like chess. You try to anticipate your opponent’s next move. And I can’t really anticipate exactly what the president will do or what that executive order will look like. That said, we are contemplating different scenarios that seem plausible and starting to put together our thoughts from a legal perspective on those scenarios. But, really, we have to wait and see what comes down.

Could you discuss how filing this suit compares to filing the suit against the previous administration over cleanup of the Hanford nuclear site? 

I filed suit against the Obama administration around issues at the Hanford nuclear waste site. One was around the cleanup efforts and one was around worker safety issues. So, I have some experience challenging an administration when I believe they are acting unlawfully or unconstitutionally. Each case is different, but I think it’s fair to say that any time you take on an administration, it’s going to require a significant amount of resources to do that successfully. I try to be thoughtful about these issues. I don’t take suing the president or his administration lightly. But I think our successes in all these cases speak for themselves, and I think we’re doing the right thing on behalf of the people I represent.

In the age of social media, do you think public opinion had any sway in the court’s actions?

No, I don’t. My strong sense is that each federal judge that looked at the executive order saw it for what it is. It’s unlawful and unconstitutional on multiple levels. There is a reason why the president is suffering defeat after defeat in our litigation. It was a poorly-crafted, ill-conceived executive order. So, no, I don’t think public opinion for or against the executive order made any difference. I do think what the judges have reservations about is the administration’s repeated argument that the president’s actions are, in their words, “unreviewable” by the courts. I find that argument to be astonishing and frightening. And I’m really pleased that the District Court and the Court of Appeals have completely rejected that argument by the federal government. 

You’ve said that the attorney general is the most consequential position in state government. Can you elaborate on that?

It is. I used to say that when I was running for attorney general in 2012, and everyone gave me a funny look when I said that. Well, no one gives me a funny look now. The law is a powerful thing. It can hold even the president accountable. And attorneys general are on the front lines of upholding our Constitution and upholding the rule of law. In addition, if you’re the governor, for example, one must get any policy issues through the state legislature, and that can be a challenge. The legislature might say it’s divided. Republican Senate, Democratic control of the House. It would be difficult for any governor to get any significant legislation through a divided legislature. As attorney general, I can hold powerful interests accountable who don’t play by the rules, and I make those decisions on my own. And I have significant recourses at my disposal to do that.

Are there lessons from your time at NYU Law that have guided you over the years? 

Oh, man. Yes. My three years at NYU were obviously very formative. Many professors influenced me. Professor [Christopher] Eisgruber [now President at Princeton University], [Boxer Family Professor of Law] Vicki Been ’83, Professor [Anthony] Amsterdam, to say just a few, were all very influential on me and the way I think about the law.

I was in the Federal Defender Clinic in the Eastern District of New York. And that reinforced social justice issues for me that continue to have a profound influence on the way I think about the law and the importance of the role of attorney general on ensuring equality for everyone I represent. I’m just so glad I was able to go to law school there. I feel very fortunate.

What did you imagine your career path to be when you entered law school?

I recall that I wanted to do some sort of public service. I don’t think it was exactly clear to me what that would look like. I certainly didn’t imagine the path that I ended up taking. But part of what attracted me to NYU was the commitment to public service and public interest law, specifically. Like a lot of students when they go to law school, I didn’t have a clear path in mind, other than having a pretty strong feeling that I wanted to use the law to help people in some way. And with this litigation against the president, I remind people that the law is not an abstraction. A case like this is an important reminder of the massive impact the law can have on a deeply personal level for many thousands of people around our country. And that is something that I try to remind my team all the time. Yes, we’re arguing constitutional principles or procedural aspects of any particular litigation, but we always remember that real lives are going to be impacted by what we do and whether or not we’re successful. And that is why I went to law school, honestly.

Do you have any advice for current or prospective law students?

Use your law degree in a way that helps people. You will be happier, and you’ll make a difference in people’s lives, and you’ll have a more fulfilling career. I don’t have any doubt about that. NYU Law students particularly are an extremely talented group of future attorneys. And I really would strongly encourage all of them to consider public service with their legal career at some point.

This interview has been edited and condensed.

Posted February 28, 2017