President Donald Trump’s courtroom opponents are adopting a flood-the-zone approach, filing dozens of legal cases over the travel ban. | Getty Liberals exploiting anti-Obama tactics to thwart Trump’s travel ban The suits objecting to the president's executive order are modeled on complaints that halted earlier efforts to grant status to undocumented immigrants.

Liberals looking to shut down President Donald Trump’s travel ban executive order have a clear model for their legal strategy—the one conservatives used to shut down executive actions signed by former President Barack Obama.

The techniques liberals have copied include asking judges for nationwide injunctions against the federal government, using state governments as a vehicle to challenge the president’s actions, filing suits in ideologically friendly jurisdictions and deliberately multiplying the number of suits to maximize the chances of winning legal relief.


The legal assault on Trump’s Jan. 27 order, which barred entry to the U.S. for all refugees as well as for visa holders from seven majority-Muslim countries, mirrors the successful legal drive by Texas and 25 other states to cripple Obama’s effort to give undocumented immigrants quasi-legal status.

“There certainly is a role reversal,” said former 10th Circuit Court of Appeals Judge Michael McConnell. “Folks who were indignant that Texas would file its lawsuit then are not so indignant that Washington [state] would file its lawsuit now—and vice versa.”

A three-judge panel of the 9th Circuit Court of Appeals will hear arguments starting at 6pm on whether to let stand a ruling by a federal judge in Seattle blocking the federal government from enforcing Trump’s order, which caused chaos at airports across the U.S. as visa and green card holders were detained or turned back.

The Texas-led case against Obama’s 2014 executive actions on undocumented immigrants—which he signed after immigration reform legislation failed in Congress—has been cited repeatedly by state officials fighting Trump’s travel ban.

“We believe that nationwide relief is appropriate here for the same reasons that it was in United States v. Texas,” Washington state solicitor general Noah Purcell told U.S. District Court Judge James Robart shortly before he issued his Feb. 3 injunction, which twice mentioned the Texas case. Washington was one of a dozen states that went to court to oppose Texas in the Obama immigration case.

“They’re ripping the playbook out of Texas’ hands,” observed South Texas College of Law in Houston law professor Josh Blackman. “They’re adopting the very arguments they said were ridiculous a year ago.”

In the waning months of Obama’s presidency, federal courts in Texas blocked at least five significant Obama administration actions. At least four of those wins came at the behest of Texas and other states.

In June, states helped get a judge to block the Labor Department’s so-called persuader rule affecting union organizing campaigns. In August, they won a hold on Labor and Education Department guidance protecting transgender individuals from discrimination was put on hold. In November, states joined others persuading a judge to block Labor’s overtime rule, which would have boosted the pay of millions of managers at the low end of the pay scale. And in December, states won a court order blocking transgender protections being implemented through Obamacare.

In each instance, the judges involved issued orders blocking the federal policies from being implemented anywhere in the nation.

States’ lawsuits against Obama’s executive actions became a rallying point for small-government conservatives, many of whom had railed for years against activist judges and policymaking in the courts. A Texas Tribune tally found the Lone Star state filed suit against the feds at least 48 times after Obama was sworn in in 2009.

Now, Trump’s courtroom opponents are adopting a flood-the-zone approach, filing dozens of legal cases over the travel ban. With some judges willing to issue temporary or even permanent nationwide restraining orders against aspects of Trump’s travel ban directive, going to many courts at once virtually guarantees that some portions of the order will be blocked. Indeed, about a half dozen such orders have been entered in the ten days since the travel ban was imposed, although some affected only the litigants who brought the cases.

“I call it shop ‘til the statute drops or in this case shop ‘til the order drops”,” said University of California at Los Angeles law professor Samuel Bray.

The throw-everything-at-the-wall-and-see-what-sticks strategy is reminiscent of one conservatives used to maximize the political pain as the controversy over Hillary Clinton’s use of a private email account unfolded during the recent presidential campaign. Groups like Judicial Watch, Citizens United and the Republican National Committee filed scores of lawsuits, which were assigned to every active federal district judge in Washington, D.C., and some of the senior ones as well.

Many of the cases could have been consolidated, but bringing them all separately meant that a number of judges had the power to initiate a discovery process, forcing Clinton aides to testify under oath. Three judges approved of discovery and several top Clinton aides were forced to testify, although Clinton only answered written questions under oath.

The dynamic fueling the flurry of travel ban suits is similar, with litigants fishing for judges willing to take on Trump. The ACLU, for example, has filed cases in Boston, New York, Philadelphia, Portland, Oregon, San Francisco, Seattle and Washington, D.C.

The flood of cases also creates another advantage for Trump opponents as the Justice Department struggles to field lawyers in each jurisdiction and meet a dizzying array of courtroom deadlines.

However, some legal scholars warn that the practice of individual judges issuing nationwide injunctions is an unhealthy one for the legal system.

For one thing, it can create confusing results. Hours before Robart issued his broad ruling halting the Trump directive, a federal judge hearing a case in Boston declined to extend a restraining order other federal judges in that court had issued against the travel ban pending further hearings. Trump cited the Boston case in tweets criticizing the Seattle ruling.

If the 9th Circuit upholds the Seattle restraining order, the federal government may appeal it to the Supreme Court. With only eight justices, the Court may deadlock on the issue, which would leave the original Seattle decision intact—exactly what happened to the ruling blocking Obama’s program for undocumented immigrants.

The difference for Trump is that he has a chance of filling the Supreme Court seat left vacant by the death a year ago of Justice Antonin Scalia. Republicans successfully blocked hearings for Obama’s nominee, Judge Merrick Garland, but if Trump nominee Judge Neil Gorsuch is confirmed, he’d be able to break a deadlock on the travel ban—and any other executive orders challenged in a similar fashion.

But some say no matter what the final court result, Trump’s opponents have scored a victory with the Seattle injunction. “I think the purpose of the lawsuit has already been achieved,” said McConnell, now a professor at Stanford Law School. “Even if it is reversed, the state has succeeded in introducing doubt about the legality of the program.”