Washington State

Office of the Attorney General

Attorney General

Bob Ferguson


Decision to “rescind and replace” recognizes the obvious: Executive Order fatally flawed

SEATTLE —Attorney General Bob Ferguson declared victory in State v. Trump, in light of the U.S. Department of Justice’s filing in the Ninth Circuit Court of Appeals today. Justice, on behalf of President Trump, represented to the court that: “the President intends in the near future to rescind the Order and replace it with a new, substantially revised Executive Order” to eliminate constitutional concerns. 

“Let’s be clear:  Today’s court filing by the federal government recognizes the obvious — the President’s current Executive Order violates the Constitution,” Ferguson said. “President Trump could have sought review of this flawed Order in the Supreme Court but declined to face yet another defeat.”

In filings with the Ninth Circuit today, both the federal government and the states of Washington and Minnesota urged the court to decline an “en banc” review of an earlier, unanimous ruling by a panel of three Ninth Circuit judges. In that decision, the court upheld U.S. District Court Senior Judge James L. Robart’s injunction preventing enforcement of the Executive Order nationwide.

The injunction remains in effect while Judge Robart considers the Attorney General’s lawsuit challenging key provisions of the President’s order as illegal and unconstitutional. If Ferguson prevails, the Executive Order would be permanently invalidated nationwide.

Judge Robart determined that Ferguson demonstrated that he is likely to prevail on the merits of his lawsuit. The three-judge panel of the Ninth Circuit upheld that decision. Two of these four federal judges were appointed by a Republican president, two by Democratic presidents.

The Ninth Circuit Court of Appeals is the intermediate-level federal court for the western United States. It has jurisdiction over federal cases from the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington.

Washington became the first state to challenge the President’s order on Jan. 30. Ferguson argues that the Executive Order violates the U.S. Constitution’s guarantee of Equal Protection and the First Amendment’s Establishment Clause, infringes individuals’ constitutional right to Due Process and contravenes the federal Immigration and Nationality Act.

Major Washington state institutions, more than 100 major corporations, several other states and a bipartisan group of former national security officials supported the Attorney General’s lawsuit through court filings in the case.

Minnesota, led by Attorney General Lori Swanson, joined Ferguson’s amended complaint filed Feb. 1.

Solicitor General Noah Purcell, Deputy Solicitor General Anne Egeler and Solicitor General’s Office Fellow Kelly Paradis, as well as members of the Wing Luke Civil Rights Unit, including Unit Chief Colleen Melody and Assistant Attorneys General Patricio Marquez and Marsha Chien, are handling the case for the Washington Attorney General’s Office.

Also assisting on the case are Assistant Attorney General Kelly Wood, legal assistants Chamene Woods and Wendy Scharber and Solicitor General executive assistant Kristin Jensen.


The Office of the Attorney General is the chief legal office for the state of Washington with attorneys and staff in 27 divisions across the state providing legal services to roughly 200 state agencies, boards and commissions. Visit www.atg.wa.gov to learn more.


Peter Lavallee, Communications Director, (360) 586-0725; PeterL@atg.wa.gov