Just before midnight Pacific time on Saturday night, February 4, 2017, a three-judge panel of the 9th Circuit Court of Appeals, in a short-form Order, refused to stay a lower court ruling that had halted Trump’s Executive Order on visas and refugees.

A copy of the Order is at the bottom of this post.

The Order reads:

The court has received appellants’ emergency motion (Docket Entry No. 14). Appellants’ request for an immediate administrative stay pending full consideration of the emergency motion for a stay pending appeal is denied.

Appellees’ opposition to the emergency motion is due Sunday, February 5, 2017 at 11:59 p.m. PST. Appellants’ reply in support of the emergency motion is due Monday, February 6, 2017 at 3:00 p.m. PST.

The Order was filed just two and one half hours after the government filed it’s Emergency Motion for a Stay Pending Appeal.

While it would have been extraordinary to grant a stay without the opposition having a chance to be heard, as of now the briefing schedule provides two more days in which people who otherwise would not be allowed to enter the U.S. can enter.

I’m not sufficiently familiar with the procedure for an emergency stay to the U.S. Supreme Court to know whether the government could go to the Supreme Court for a Stay today. The application would be referred, initially, to Justice Anthony Kennedy, who is the Supreme Court Justice assigned to the 9th Circuit for such emergency applications. It is common for Justices to refer stay applications to the full court, thought Kennedy could grant it himself.

If I were the government, and if I could do it procedurally, I’d be in front of Kennedy today.

The District Court temporary restraining order, which did not even address the merits of the case other than a single conclusory sentence, is a legal abomination in which the judiciary usurped immigration control even as to people who have not yet entered the U.S. and hold no permanent residency. That TRO is so legally improper on its face it should have been stayed immediately by the 9th Circuit.

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