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Absurd Fed Ct TRO halts enforcement of entire Executive Order on visas, refugees

Absurd Fed Ct TRO halts enforcement of entire Executive Order on visas, refugees

Contrast with Massachusetts federal court, which ruled that most of EO was lawful.

https://www.youtube.com/watch?v=npvd-VVqh9Q

A federal court in the Western District of Washington in Seattle last night effectively stripped the Trump administration of its power to determine the parameters of who may enter the country.

For my prior analysis of how the EO has been mischaracterized by opponents as a “Muslim Ban” and in other ways, see these prior posts:

You can read the Motion for a TRO in the Seattle case, the government’s Opposition, and the Court Order at the links. The Court Order also is embedded in at the end of this post.

Technically, the TRO issued by Judge James L. Robart only halts enforcement of the Executive Order on visas and refugees.

But to do so amounts to substituting the judgment of a court and/or plaintiffs as to what constitutes legitimate security concerns. Those are areas, however, which are reserved to the president and as to which courts are required to give great deference.

Here is the argument before the court (h/t Powerline)(the Judge’s Opinion starts at 55:24 and is not much more specific than what was in the written TRO):

By contrast, read the decision (full embed at bottom of post), also issued yesterday, by the District Court in Massachusetts refusing to extend a TRO because those security decisions were beyond the purview of the courts (case citations omitted in the quote below):

The decision to prevent aliens from entering the country is a “fundamental sovereign attribute” realized through the legislative and executive branches that is “largely immune from judicial control.” …. Federal classifications based on alien status are evaluated using rational basis review…. Rational basis review examines whether the “classification at issue bears some fair relationship to a legitimate public purpose.” … It is “not a license for courts to judge the wisdom, fairness, or logic of legislative choices.” …

Under rational basis review, a classification is permissible “if there is any reasonably conceivable state of facts that could provide a rational basis.” … Because the EO involves federal government categorizations with respect to non-resident aliens, rational basis review applies. According to the EO, its purpose is to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists . . . . Exec. Order 13,769 § 3(c). The EO specifically asserts that permitting aliens from the countries identified in section 217(a) of the INA, 8 U.S.C. § 1187(a)(12), to enter “would be detrimental to the United States.” The order provides a reasonably conceivable state of facts [which concerns national security and] that could provide a rational basis for the classification….

Accordingly, this Court declines to encroach upon the “delicate policy judgment” inherent in immigration decisions…..

The Massachusetts court addressed and rejected the claim that the EO was unconstitutional discrimination or that those seeking to enter or reenter the U.S., including F-1 visa holders, were deprived of due process:

Moreover, the language in Section 5 of the EO is neutral with respect to religion. Plaintiffs ubmit in their amended complaint that Section 5 favors Muslims over Christians, in violation of the Establishment Clause. The provisions of Section 5, however, could be invoked to give preferred refugee status to a Muslim individual in a country that is predominately Christian. Nothing in Section 5 compels a finding that Christians are preferred to any other group….

In sum, because due process protections do not apply to visas and the F-1 plaintiffs are not currently subject to deportation proceedings, they have not demonstrated a likelihood of success on the merits of a due process claim at this time.

The Massachusetts court also rejected other constitutional challenges to the EO, and determined that the plaintiff’s did not demonstrated that the balancing of the equities were in their favor, precisely because of the government’s interest in the safety and security of the public:

There are considerations on both sides with respect to a balancing of the hardships. On the one hand, implementing an effective immigration regime that ensures the safety of all Americans is undoubtedly difficult. On the other hand, the hardship to the professional and personal lives of the individual plaintiffs and to the operation of the Oxfam worldwide organization is palpable.

Finally, there are public interest considerations on both sides. The rich immigrant history of the United States has long been a source of strength and pride in this country. The individual plaintiffs in this case provide particularly compelling examples of the value that immigrants add to our society. Conversely, the public interest in safety and security
in this ever-more dangerous world is strong as well.

In considering whether to extend the TRO, the Massachusetts court determined that the likelihood of success weighed most heavily, and the plaintiffs had not met that burden:

When the four factors that the Court must consider before imposing injunctive relief are considered collectively, likelihood of success on the merits weighs most heavily in the
decision…. Therefore, because plaintiffs have not demonstrated that they are likely to succeed on the merits of Case 1:17-cv-10154-NMG Document 69 Filed 02/03/17 Page 20 of 21
any of their claims, an extension of the restraining order at the present time is not warranted.

Now back to the Seattle court ruling. What did the Judge have to say about this most important factor, likelihood of success on the merits, in light of the required deference to executive decisions as to entry into the U.S.? Nothing, other than saying the plaintiffs had shown a likelihood of success. No explanation, no discussion, nothing. Neither in the written order nor in the oral ruling at the hearing.

Given that this order will allow thousands, maybe tens of thousands, of people from seven high risk countries to enter the U.S. over the objection of the government based on its security evaluation, it is an abdication of judicial responsibility to give no basis for the finding of likelihood of success on the merits.

The Seattle TRO goes well beyond other TROs granted elsewhere, which were as to specific (and now resolved) issues as to people detained in the U.S. despite being lawfully here, as well as green card holders. Those issues are now moot.

How can we have such different decisions out of two separate federal courts? It’s because the people seeking to overturn the Executive Order only need to win once, the government needs to win in every district court. That is why an appellate court needs to weigh in on this.

The Seattle TRO is outrageous. As of this writing, there is no indication in the 9th Circuit electronic PACER docket that an application for relief has been filed by the government.

Hopefully the government will be in front of the 9th Circuit quickly to obtain a stay of the TRO, and if that fails, the U.S. Supreme Court. In addition to the merits, there are serious issues of whether a state has “standing” to challenge the refusal of the federal government to allow entry into the U.S. of foreigners who themselves have no legitimate claims as to visa denials.

The issue is not whether the Executive Order is wise, it’s over who gets to make the decision on what constitutes necessary security procedures with regard to foreigners wanting to enter the U.S. That decision in the past always has been reserved to the executive branch.

———————-

Washington State Fed Ct TRO Halting Trump Immigration Executive Order, Feb 3, 2017 by Legal Insurrection on Scribd

MA District Court Denial Extension TRO Re Trump Executive Order on Refugees, February 3, 2017 by Legal Insurrection on Scribd

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Comments

buckeyeminuteman | February 4, 2017 at 10:47 am

So the EO discriminates as it bars individuals from 7 nations, which are majority Muslim, from entering? My father was in Jordan last Spring with his church. They brought supplies and funding to Christian churches in Jordan who were housing Christian refugees from Iraq. None of the Christian refugees he met or worked with were attempting to come to the US. Why? The Obama administration wasn’t taking Christian refugees. There were no camps in Jordan for them either. Muslim refugees had camps and a process in place to come here. Christian refugees were at the mercy of the churches and whoever would take them in. I’m pretty sure a ruling such as this court’s could have been useful then.

This isn’t about law. It’s about politics and the “resistance” to Trump.

This order is outrageous. Unfortunately, won’t an appeal go to the Ninth Circuit, where the judges are also nuts?

    Trump should comply with the court order the same way Obama and the EPA complied with numerous court orders.

    1. Ignore it. 2. Do everything very slowly saying you need more time to implement the order.. 3. Issue a new executive order worded slightly differently and claim the court ruling is not related to the new executive order.

    Obama (Hillary too) and his justice department did this constantly for 8 years, without media coverage.

    When Trump does it, it will be the end of the world.

It was only a matter of time before the liberal/progressives found a liberal/progressive jurist who would issue a TRO or injunction to stop implementation of the EO. They found one. Now the fun begins.

As noted, this TRO totally fails to address the government’s claim that a potential threat exists among residents in the named countries and that the ban on entry is temporary, until the established vetting procedures can be verified as being sufficient to preclude the entry of persons whose interests are inimical to the citizens of the US. It does not find that no such threat exists, it simply ignores it. By allowing persons affected by the EO to enter, without enhanced vetting, the court willfully endangers the citizens of this country.

As to refugees, no evidence was presented that any refugees, who are awaiting entry into the US, are in any danger. Most refugees do not come directly from the country they are seeking to flee, but from from third party countries, where they are housed in relatively secure lodgings. So, their entry into this country is not time sensitive. Also, in the case of refugees, much, in some cases all, of the vetting is done by groups and organizations other than the United States. And, many refugees do not have any family ties to persons living within this country. They are processed and turn loose into US society.

And, finally, it does not appear that the State of Washington, or any other state government has any standing to sue, in this matter. The courts decided in U.S. v Arizona (2011) that the federal government had sole authority in matters of immigration. While individuals, who are directly affected by the EO or even a group or class may file suit for injunctive relief, the State of Washington did not show that it, as an entity, is likely to suffer any damages from the EO. Nor did it name any specific residents of the state who may suffer or have suffered harm.

This is simply a sterling example of judicial activism. As this will be heard in the 9th District Court of Appeals, the decision could go either way.

    sidebar in reply to Mac45. | February 4, 2017 at 1:36 pm

    Thank you for the well written comment. It was inevitable that someone would Judge shop and find a “Republican” judge to carry out their political agenda. This appointee really exceeded his authority.

    The State of Washington has not demonstrated it has sustained or will sustain an injury sufficient enough to meet Federal Pleading Standards. It is also not clear if the Court is competent to so broadly review a primary function of the Executive Branch on such a broad basis. This wreaks of judicial activism at its worst. Obama had a habit of ignoring such orders, and he was not entirely wrong. However, this is politics not law, and the press would pillory Trump with homilies about the “rule of law”.

    If we are going to engage in judge shopping, I suggest the Trump Administration find a friendlier judge in Arizona to issue an independent but contradictory order. I also suggest other States bring suit against the State of Washington. The Supreme Court will have original jurisdiction. If Washington has injury enough to plead, then other States have injury enough to plead against the State of Washington.

    Let the games begin!!!

      facebookisfacist in reply to sidebar. | February 4, 2017 at 6:55 pm

      Hardly a “game”! What if someone is killed by one of these “refugees”? I don’t see how a judge in Washington State has the knowledge to do a vetting on any or all of the immigrants in question.

Yeah, this has passed from a argument about politics to who has the say over it. The liberals fighting will lose, IMO, in the long run, as the courts will be forced to codify the authority of the President. In the mean time, the battle will be joined, as Trump personally, will likely be unwilling to work with the left on anything going forward.

Without an AG, the administration’s legal representation will be modest at best. The AG cannot be confirmed because his vote is required to confirm the other cabinet appointees.

Does Trump escalate and declare martial law?

    Milhouse in reply to MSO. | February 4, 2017 at 10:00 pm

    Don’t be absurd. (1) Sessions’s vote isn’t needed, because as soon as he resigns from the senate the governor can appoint his replacement, who can be sworn in and vote immediately. (2) Martial law is illegal except when and where the courts are unable to function. That’s clearly isn’t the case anywhere in the USA, so martial law is not even on the horizon.

Send ALL of them to Seattle. Every one. All.

    That is an excellent, and serious, idea. Once again, obama set the precedent.

      Milhouse in reply to Rick. | February 4, 2017 at 10:02 pm

      No, it’s a very unserious idea. Once someone is in the USA they can’t be “sent” anywhere. They have the constitutional right to go where they like.

        Arminius in reply to Milhouse. | February 5, 2017 at 7:14 am

        The government most certainly can decide where to send refugees for settlement.

        But nobody has to stay there. I know a Syrian refugee who was sent to Midland Texas. He didn’t even unpack, he headed to Dallas and now works as an Uber driver.

MaggotAtBroadAndWall | February 4, 2017 at 11:49 am

Jonathan Turley’s take on it is interesting. He says the DOJ estimated 100,000 people are affected by the EO, but the State Department says it is around 60,000. Turley says the DOJ should have corrected the court record immediately when they found out the correct number, but didn’t. He also says the DOJ should have filed an emergency appeal of the TRO, but didn’t do that either.

He says the “blunders” by DOJ may be causing “concerns” in the administration. He leaves it at that. But I think the implication is that the DOJ may be sabotaging the government’s case in light of the Yates firing.

https://jonathanturley.org/2017/02/04/shaky-start-justice-department-overstates-number-of-revoked-visas-in-virginia-and-fails-to-immediately-file-an-emergency-appeal-in-washington-state/#more-108539

    There is a whole lot of swamp draining that needs to be done, and a lot of federal employees need to be fired.

      notamemberofanyorganizedpolicital in reply to Eddie Baby. | February 4, 2017 at 7:05 pm

      And this is an excellent way to find out which ones need to be fired.

      Let them “out” themselves.

        And this may be exactly what’s going on.

        Smoke out the opposition within the ranks by doing things like this that are ‘unbearable’ by the progressives.

        Then go back later and EO the hell out of things again with less chances of dissent and sabotage(nothing will ever be ‘zero’ in .gov as it’s impossible to root out all internal ratfinkery).

    The opposition did not list any acts of terrorism committed by persons carrying papers from the 7 countries, of which there are are many in Europe. It just presented dry legalities.

    I don’t know about that, but my impression of the US lawyer’s presentation was very good. She avoided the judge’s traps trying to get her to outline an unnecessarily broad position and restrained herself when I could hardly have kept myself from trying to wring his neck.

    She did so little harm to the case on appeal that the 9th Circuit needs days now to dream up some reason not to reverse the District Court.

One wonders if the DOJ did a competent and energetic job representing the president. In any case the order should be ignored and this incompetent judge should be impeached.

    fscarn in reply to cwillia1. | February 4, 2017 at 12:15 pm

    DOJ will remain a little rudder-less until Sessions is confirmed by the Senate. Then he and Trump can take charge of these DOJ attorneys who are either sabotaging Trump’s efforts or who are just plain incompetent (e.g., having been hired based on AA or Democrat Party affiliation).

    The Trump people have no alternative other than to let this play out. Within 1-2 months the moles/trouble makers (in DOJ and other agencies) will be identified, with specificity; they can then be dealt with. Even if they can’t be fired (ever hear of a “fired federal employee?”), they can be isolated.

    “Now, LaQuineesha, your new responsibilities will to keep count of the number of left-handed sky hooks that the Trump protesters are using. We need to know the number used on Mondays as compared with the number used on Thursdays.”

      Voyager in reply to fscarn. | February 4, 2017 at 12:21 pm

      Yes, but, loudly flinging the door open for any self-avowed terrorist to just wander in also causes grievous and irreplaceable harm.

      I’d like to know exactly how that judge justifies that, and I mean more than he just thinks Trump is Hitler.

        Well, the door was already open. We’re only aware of it b/c Trump tried to shut it for a couple of months. So, no real additional risk; just another week or so of risk.

          artichoke in reply to RobM. | February 5, 2017 at 3:52 pm

          Just one more terror incident, hey what’s one more between friends? Really wtf are these judges doing? If there’s blood it will be on his hands. If not well we all lucked out but no credit to him.

    artichoke in reply to cwillia1. | February 5, 2017 at 3:44 pm

    DOJ presentation seemed fine to me, even excellent, and winning on a fair evaluation. But the judge had predetermined what he was going to do.

What are the statutory or constitutional constraints on a federal judge’s authority to issue a TRO? Are there any explicit limits, or are there just customary practices?

What would happen if a federal judge issued an order temporarily restraining the Secret Service from protecting the President? Or temporarily restraining the U.S. military from holding anyone at Guantanamo Bay — ordering all the inmates released?

Here, we’ve got a judge unilaterally ordering tens of thousands of visas granted. What are the legal responsibilities of a state department visa-stamper under conflicting orders from a federal judge and the president?

Elsewhere I see opponents of the EO claim that the president does not have the authority to restrict travel visas based on either nationality or religion. This is a good example of the argument as I have seen it:

“Because discrimination in issuing visas on the basis of national origin was made illegal in 1965. 8 U.S.C. 1152(a)(1)(A) states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.” Judge Robart relied on that law to find that Washington State was likely to be successful in challenging the executive order, as that law was passed a decade after the law Trump relied on for authority for the ban.”

Does this apply to the president? That any national origin cannot be used to ban or even delay travel to the USA?

    The EO, while it specifies specific countries of origin, is based upon the fact that the countries in question are hotbeds of terrorist activity directed against the US and its interests AND that proper vetting is difficult or impossible in these states. The stated purpose of the EO was to suspend the immigration of persons from these states while the administration studied the level of vetting and the accuracy of the identifying information it provided. So, national origin or religious affiliation is not a factor in the decision outlined in the EO.

      iconotastic in reply to Mac45. | February 4, 2017 at 1:11 pm

      I don’t think I can take your argument outside of LI and apply it. Playing devil’s advocate, could’t I just assert you contradicted yourself by stating that national origin did matter since proper vetting in those countries needed further investigation?

      It would seem that somewhere in the millions of lines of federal code and SCOTUS decisions there must be an ‘escape clause’ that allows the President to halt all visas from a particular nation. But I haven’t seen it mentioned yet.

        Checkout 8 US Code 1182(f):

        “(f) Suspension of entry or imposition of restrictions by President

        Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.”

    alaskabob in reply to iconotastic. | February 4, 2017 at 12:34 pm

    But Obama massively discriminated against non-Muslim coming into the USA from these regions. So now the ruling looks like the US must have no control of borders….exactly what the left wants.

    As fior Washington State judges….I refer back to a Ranier beer motto to explain how nuts they are…..”It’s the water”…

    Milhouse in reply to iconotastic. | February 4, 2017 at 10:11 pm

    Yes, it applies to the president. But it only bans discrimination in issuing visas, not in admitting people to the US. A visa does not give the holder permission to enter the US; it gives the holder permission to present himself at a point of entry and apply for admission. I’m not aware of any law that forbids any kind of discrimination at that point. As far as I know admission can be denied at the ICE officer’s discretion, and some of them are petty tyrants who turn people away just because they’re in a bad mood.

To me, this TRO has the look and feel of a political hack job. If that’s the case, that judge should be impeached ASAP.

Preserving the status quo. So, when the Executive Order is ultimately upheld who will immediately and magically expel all those people who entered because of the initial “stay” to preserve the status quo?

I read a little bit of the back and forth with the Mass. judge. The judge asked, “Where does it say ‘Muslim ban'”? And a plaintiff lawyer had the temerity and gall to say, “Trump used the words during the campaign, so it’s a Muslim ban.” Never mind the words are not in the executive order, the legal document being contested. Pay attention to what the candidate said during the campaign!

I suppose I should applaud the attorney for having a special kind of courage to try pulling that on a federal judge.

    artichoke in reply to JBourque. | February 5, 2017 at 3:55 pm

    The attorney for Washington and Minnesota states here used the same argument. He said that since it wasn’t long into Trump’s presidency and the campaign was not so long ago, the words sort of still apply.

    Bizarre that a court would reach into presidential authority on such a basis. Scary in fact.

Thank you for a very cogent analysis of the legal issues. I concur that the TRO is outrageous, the result of a complete misapplication of the doctrine of rational basis review. I would only add that the failure of the TRO to contain findings in support of the conclusion that the plaintiff is likely to prevail makes it facially defective, and therefore reversible.

Washington State Attorney General Robert Ferguson (whom I have been personally acquainted with for quite some time) is primarily behind the effort to obtain the TRO. He is a relatively young, completely political animal with huge ambition. He is the heir apparent to the democrat gubernatorial spot in this state (and this state has suffered from over 30 straight years of democratic governors). Expect, in about 10 years or so, to see him run for President. This lawsuit is all about Ferguson making a national name for himself in support of that ambition.

    alaskabob in reply to Wisewerds. | February 4, 2017 at 1:05 pm

    Ambition being built at the expense and risks to the American citizens. Unintended consequences are not his concern I guess.

    ugottabekiddinme in reply to Wisewerds. | February 4, 2017 at 2:11 pm

    Indeed, AG Ferguson is frighteningly ambitious, and jumps feet first into any spot where he can burnish his progressive credentials.
    He is the AG who brought the enforcement “anti discrimination” action against the little Christian lady florist in Eastern WA, the red part of the state. She’d had the temerity to decline a request to prepare floral arrangements for her customers’ same sex “wedding,” even while she and they had done business before and regarded each other as friends.
    It’s not like there are no florists who’ll do SS weddings. Nevertheless, Ferguson dropped the full weight of the state of Washington on her, sought a massive fine and basically to ruin her financially and destroy her business. Because, that’s progressive, doncha know. The case went against her below, and an appeal is pending at the state Supreme Court (which is pretty lefty leaning anyway). But the AG’s a hero to our local lefty establishment.

    artichoke in reply to Wisewerds. | February 5, 2017 at 3:57 pm

    But he still lost at oral argument. The US lawyer beat him hands down. The judge made an absurd ruling, now Ferguson will burnish his resume with it.

    Disgusting.

Another penumbra?

The last one excised “our Posterity” from the Constitution, inserted mysticism into science, and normalized abortion rites. Never again!

Curiously, the abortionists stopped short of normalizing post-birth abortion including euthanasia.

A reformed or living Constitution is a new social contract and legal construct.

Anyway, millions in collateral damage from social justice adventures need to be redistributed somewhere. That, and, redistricting through demographic planning, redistribution through the welfare industry, and natural resources waiting to be picked.

    gospace in reply to n.n. | February 4, 2017 at 4:38 pm

    Almost. The last word from the emanating penumbras from the invisible ink between the lines discovered that the previously non-existent concept of same sex marriage was suddenly a basic pre-existing human right enshrined in and protected by the Constitution.

Henry Hawkins | February 4, 2017 at 1:32 pm

The goal of the TRO was to delay, obstruct, and frustrate, and it’s a success.

“The opinion of this so-called judge … is ridiculous and will be overturned!”

OK, I’m a contrarian and a Constitutionalist, so…

This statement should be profoundly disturbing to you, regardless of the judge’s decision on the merits.

This is not a “so-called judge”. This is a judge in good standing presiding over a Federal District Court.

What if the judge referred to the “so-called President”? It would be terribly wrong.

Many of us who regard Der Donald as a danger to the Republic do so in large part because of the support he gets as a “strong man” from people who should know better.

T-rump MUST be made to give due respect to the other branches of government, and to follow the law as it EXISTS. Not as he may wish it to be or how he might…over time…see it is changed.

    sequester in reply to Ragspierre. | February 4, 2017 at 1:44 pm

    People do get emotional.

    I’m interested in your thoughts on why the State of Washington has sufficient standing to plead. Immigration is a plenary Federal power. The State of Washington’s injuries are theoretical and tenuous. Potentially injured individuals are not in the United States and have no standing.

    Also a United States District Court has jurisdiction only in the District proscribed by Congress. Broad Constitutional pronouncements by a District Court are routinely stayed until they can be reviewed by a higher Court. In my experience the behavior of this Court is highly unusual from a strictly legal perspective.

    Your thoughts.

      Ragspierre in reply to sequester. | February 4, 2017 at 2:02 pm

      Not atypically, these are issues well outside my “simple country lawyer” wheelhouse. However…

      we enjoyed…and I mean I really ENJOYED…the stay against Barracula’s immigration EO issued by our district court here in Texas. One of the best things that happened in the last two years, IMNHO.

      Reading the court’s order granting a TRO, I can only rely on the citations of law in the body. Beyond that…I dunno…

        FarFromIt in reply to Ragspierre. | February 4, 2017 at 4:13 pm

        “we enjoyed…and I mean I really ENJOYED…the stay against Barracula’s immigration EO issued by our district court here in Texas. One of the best things that happened in the last two years, IMNHO.”

        Yes, I very much so enjoyed Judge Hansen’s stay against Pres. Obama’s DAPA EO. One of the reason’s he was able to issue that stay was because Pres. Obama, at the EO signing ceremony specifically said “with this EO I am changing the law.” It is illegal to use EO’s to change laws. That is why Judge Hansen’s ruling was upheld.

    dystopia in reply to Ragspierre. | February 4, 2017 at 1:49 pm

    Why not also criticize the Attorney General of the State of Washington. His tone last not evoked a giddy little brat who had just put one over on his parents. Not the rectitude I’d expect from an Officer of the Court. The whole contretemps raises questions of judge shopping.

    Do you want this nation rules by a judicial oligarchy where the aggrieved shop for the best outcome?

      Awing1 in reply to dystopia. | February 4, 2017 at 2:09 pm

      What? The state of Washington filed in the Federal District Court for the Western District of Washington, which is the district where their capital is located, and thus the appropriate place to file. How is it you presume they judge shopped? Or are we just making accusations for the heck of it now?

        dystopia in reply to Awing1. | February 4, 2017 at 3:47 pm

        Thank you. Now I know who the down voter was. The issue is much more sophisticated than your post indicates. The usual coterie of Democrat activist attorney-generals picked the most favorable judicial district they could find and just some how came up with a sympathetic “Republican” judge who exceeded his authority.

        If you believe that is mere happenstance, I have some penny stocks …

        Now onto venue. 28 U.S. Code § 1391 provides for venue in the judicial district where the Defendant resides: Washington DC. Secondarily, venue is where the injury occurred. Again, the order is the injury (if there is any injury) so the venue is Washington DC.

          Awing1 in reply to dystopia. | February 4, 2017 at 4:53 pm

          Haha, I did not downvote you, though I have now. You cited the venue statute for federal cases where federal jurisdiction arises only out of diversity of citizenship. Federal jurisdiction in a case between states and the federal government, arising out of the constitution and laws of the United States, is based on pretty much everything BUT diversity of citizenship. Just hilarious.

    objection in reply to Ragspierre. | February 4, 2017 at 1:58 pm

    Interesting. You criticize a writer for using the term “so called judge”. The person is emotional, but your words are well taken.

    Then you go on to write:

    T-rump MUST be made to give due respect to the other branches of government, and to follow the law as it EXISTS. Not as he may wish it to be or how he might…over time…see it is changed

    Respectfully, by using a personally constructed invective (T-rump),it seems to me you are guilty of practicing the very thing your criticize.

      Ragspierre in reply to objection. | February 4, 2017 at 2:09 pm

      The quote was not from “some writer” but T-rump (I always and forever have and will identify him thus, unless by one of my other word-play terms for the man), who IS the POTUS.

      I can and do respect the executive branch. I never saw you or anyone else here attack me for NOT respecting “Barracula” (also a term of my invention).

      You can slime me for a lot, I guess, but inconsistency is not one (though idiots here try)>

        objection in reply to Ragspierre. | February 4, 2017 at 3:58 pm

        To be clear counselor, I have no desire to slime you, engage in ad-hominem attacks or otherwise show any disrespect to a Member of the Bar or a judicial officer. Your remark merely aroused my curiosity.

        Although, I was far from pleased with our last President, I always felt the office deserves respect and made every effort to be punctilious in my public remarks. I will also accord President Trump the respect his office commands.

          Ragspierre in reply to objection. | February 4, 2017 at 4:06 pm

          I was not sufficiently clear in my remarks, and perhaps careless in my use of “you”.

          I should have said “one may”.

          I didn’t take your comment as an attack, and didn’t mean to attack you. I know how both look… Trust me…

      If Ragbag wasn’t a hypocrite, he’d be even less than he is.

      As to the judge’s order, fine. Simply charge him as an assessory to every crime committed by any immigrant covered by the order. And publish the names and addresses of any immigrant admitted under it.

    Awing1 in reply to Ragspierre. | February 4, 2017 at 3:04 pm

    I remember when this blog used to celebrate this sort of shenanigans being called out. For anyone questioning Rags’ consistency on this issue, look at the comments:

    https://legalinsurrection.com/2012/04/doj-files-letter-with-5th-circuit-affirming-judicial-authority/

It is utterly ridiculous, the likelihood of success on the merits isn’t zero, but it’s pretty darn close. There were good arguments for the lawful permanent residents (Chuck and Milhouse, you’ll notice the Boston decision closely tracks my reasoning from the earlier thread, I’ll await your apologies), and I could make an argument that the EO shouldn’t have resulted in cancelled visas (though I don’t think anyone, including states, would have standing to make that argument in court), but the president clearly has the authority to stop nonresident aliens from entering the country if he thinks they represent a threat. This is just hogwash.

    Milhouse in reply to Awing1. | February 4, 2017 at 10:25 pm

    Yes, you do seem to be correct that green card holders who’ve been away for less than 180 days are (with some exceptions) not considered to be applying for entry, and thus it’s not clear whether the president may nonetheless forbid them from entering.

A part that was left off:
this was a motion which the principle plaintiff were software companies Nicrosoft, Expedia, Amozon, and Starbucks (Starbucks ? ) to support H1Bs.
https://politics.slashdot.org/story/17/02/04/0828247/microsofts-h-1b-workers-cited-in-motion-that-successfully-blocked-trumps-travel-ban

Connivin Caniff | February 4, 2017 at 2:09 pm

This was not a preliminary injunction or an injunction – it was a TRO! To wreak nationwide havoc by misuse of a TRO, thereby irreversibly suspending an Executive Order dealing with national security should be an impeachable offense.

    Ragspierre in reply to Connivin Caniff. | February 4, 2017 at 2:19 pm

    1. there’s nothing “irreversible” about any TRO, and

    2. on what pretext do you suggest anything “impeachable” here? A ruling you don’t like is not “impeachable”, regardless of how it sets your hair on fire.

      gospace in reply to Ragspierre. | February 4, 2017 at 3:40 pm

      Anything is impeachable. It’s politics, not criminal. I would suggest the charge be “Attempting to establish a judicial tyranny and overthrow the elected government”.

        Ragspierre in reply to gospace. | February 4, 2017 at 4:21 pm

        Yeah, no.

        You’re totally wrong. Front to back.

          Connivin Caniff in reply to Ragspierre. | February 4, 2017 at 4:28 pm

          What is irreversible is the damage caused. How are you going to get those aliens back out, where they should have stayed in the first place? Also, when they are here, do they not accrue certain irreversible rights of due process that non-citizens outside the U.S. never have? Paul in Sweden is absolutely correct about impeaching this disaster of a so-called judge.

Article 3 section 2 of the Constitution- from my reading, the judge really overstepped his boundaries. The Supremes should slap him down. A state vs. the federal government? The Supreme Court has original jurisdiction.

If it were just the other plaintiffs- but they included the State of Washington.

In all Cases affecting Ambassadors, other public Ministers
and Consuls, and those in which a State shall be Party, the
supreme Court shall have original Jurisdiction.

    Awing1 in reply to gospace. | February 4, 2017 at 2:39 pm

    Your reading is fine, your conclusion is wrong, states are regularly parties to cases in federal district court. The Supreme Court, in a series of cases, ruled that it may choose decline to exercise original jurisdiction in cases where there is an acceptable alternative forum, in order to conserve its resources for deciding appellate cases. This is because, while the Constitution grants it original jurisdiction over such suits, it does not grant it exclusive jurisdiction.

Paul In Sweden | February 4, 2017 at 2:27 pm

So, as I ponder the portrait of Andrew Jackson in Trump’s Oval Office, I am wondering if Judge James L. Robart has some sort of Army that Justice John Marshall lacked? In fact I am wondering that by the time the leftist circle jerk even gets halfway up the hill of court proceedings The Trump Administration will have established and put in place an extreme vetting procedure and 120 days of the immigration moratorium from the Obama terrorist hot zones will have expired. Then there will be the next rounds of outrage and outcries as there will undoubtedly be denial of refugee application after denial.

Yes Paul, he does. It’s called the media which while wounded is still a force to be reckoned with.

    Paul In Sweden in reply to rabidfox. | February 4, 2017 at 3:59 pm

    Well OMG if the media says it is so, somebody should get right on the phone and let the US State Department know all about this because as it stands right now as a public statement from the govt:

    For Immediate Release Office of the Press Secretary Contact: 202-282-8010
    February 3, 2017

    WASHINGTON – The Department of Homeland Security (DHS) would like to clarify the classes of aliens affected by the 90-day temporary pause on travel, with case-by-base exceptions and waivers, as outlined in the President’s Executive Order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States.”

    https://www.dhs.gov/news/2017/02/03/statement-countries-currently-suspended-travel-united-states

In answers to follow-up questions after his Senate confirmation hearing, attorney general-designate Jeff Sessions said he played no role in writing or reviewing a series of controversial Trump executive orders on immigration.

Sen. Dianne Feinstein, ranking Democrat from California on the Judiciary Committee, sent Sessions a list of questions last weekend, as protests grew over the president’s temporary moratorium on non-American entry from seven terror-troubled countries. She wanted to know whether Sessions, whom some have called the “intellectual godfather” of Trump immigration policy, played any role in the executive orders.

“Did you read, review, provide legal analysis, or provide any other comments regarding the following executive orders before they were issued?” Feinstein asked Sessions, listing Trump orders on border security, interior enforcement, and the moratorium. “If so, please describe in detail what role you played with regard to each executive order. Also, please provide copies of any documents reflecting your input regarding the content of the orders.”

Sessions sent back a one-word answer: “No.”
===================================================

As Jack Benny used to say, “…well…”

THAT leaves a lot of interesting questions.

    From my non-legal perspective, it made quite a bit of sense. The *last* thing Sessions needed was more fire sent in his direction, so Trump (who was in a solid position) can take the action without endangering somebody who doesn’t even have his name painted on the door of his office yet.

      Ragspierre in reply to georgfelis. | February 4, 2017 at 4:14 pm

      OK. Let’s be honest here.

      Are you saying this was a cute evasion via a lie?

      Or are we agreeing that Sessions was out of the loop here?

      You can suggest another option, but I don’t see it.

“people seeking to overturn the Executive Order only need to win once, the government needs to win in every district court”

This congress needs to put a jurisdictional change into its reconciliation bill. Jurisdiction for petitions to enjoin Presidential power needs to be placed in a single court, and require 30 days advanced notice of filing. How is it that a judge in Seattle and a judge in Boston can reach different conclusions, with the one in Seattle now setting US immigration policy with zero deference to the President, to the Congress or to the earlier ruling in Boston?

    Awing1 in reply to Mark30339. | February 4, 2017 at 3:27 pm

    There already is a provision for this, the federal courts regularly consolidate such cases as necessary. A 30 day notice requirement would be absolutely abhorrent, the president can do whatever he wants and get a 30 day pass where it can’t be challenged in court? Would you have wanted that with Obama? I sure as heck wouldn’t have.

    The decision in Washington does not conflict with the decision in Massachusetts. Critically, they have different plaintiffs. While I disagree with the judge in Washington, his plaintiffs are states, and saying that they have a high likelihood of success on the merits does not conflict with a Massachusetts judge saying the nonresident alien plaintiffs before him do not have a high likelihood of success on the merits.

      Pre-consolidating the cases might not be the best of options, since the DC court has such a high percentage of Democrat nominees. I’m taking a wild guess that the administration will pick the case where the court they think has the best chance of ruling in their direction and consolidate the cases there. (They can do that, right?)

        Awing1 in reply to georgfelis. | February 4, 2017 at 3:57 pm

        No, the system is set up to be neutral in consolidating cases. I believe the Judicial Panel on Multidistrict Litigation would determine the forum.

Paul In Sweden | February 4, 2017 at 4:12 pm

The Supreme Court & Congress are the only check to the Executive Office, this is how we have balance. We cannot have every Justice Tom, Dick, and Loopy Lefty Larry second guess Congress, the Supreme Court or the Executive Branch.

Until this latest Left Coast Federal Judge ruling is kicked up the chain, I don’t think it matters.

    Ragspierre in reply to Paul In Sweden. | February 4, 2017 at 4:18 pm

    Oddly, I don’t recall you taking this line with the MANY court rulings that resulted in the Obamic Regime being the MOST bench-slapped in American history (which it was).

    Or am I mistaken…???

      Paul In Sweden in reply to Ragspierre. | February 4, 2017 at 4:47 pm

      Yeah, I did not have to say anything about a lower Federal Court ruling with Obama because I knew nothing was going to be different until the supreme court ruling, and then once the Supreme Court ruled, what could I or anyone else say.

Professor Jacobson:
My many thanks for covering this so well.
I couldn’t believe what I heard, and got over here as quick as I could to see what you had on it.
Too bad the gates were instantly opened again, I wonder the damage.
Thanks again,
Mark

Paul In Sweden | February 4, 2017 at 5:05 pm

I don’t know now, DHS & the State Dept. have not changed their statement of policy reflecting the EO, but I guess according to a lot of you as long as a refugee from one of the Obama designated Terrorist Hot Zones have a newspaper clipping citing the Left Coast Judge’s Ruling they should be alright.

Funny how there are no jubilant news reports of all the packed flights with the multitudes that the media hyped were waiting to be on American soil arriving at any US airports since the EO was overturned.

Maybe tonight or Sunday Morning all those hoards recently denied entry will be arriving at airports and ports of entry bearing news clippings so happy the EO is overturned.

Looking forward to the news coverage.

Well, three third-order effects come of this…

– In case it wasn’t clear already, the need to confirm The Notorious G to the Supremes becomes obvious. The “liberal” policy faction somehow also thinks the govt & particularly the courts has the authority to do anything they agree with. It’s only “conservatives” who maintain the quaint notion that a law says what it says, and the govt’s authority is what’s been extended to it by the citizens, not whatever it wants.

The Notorious G would vote the law as written on this, whether he agreed with it or not.

– If the D’s are bugged by noise around this order maybe they should approve an AG … or at least allow a vote, so we can move on.

– It indeed flushes out who thinks they work for their bosses, vs. who thinks they don’t. It’s perfectly clear: to those folks the people are not sovereign when they’re wrong.

The response to the gnashing of teeth is simple, which the Trumpkins still might not get: “Hey, you don’t like what the law lets the administration do on this, let’s change the law.”

I’m still waiting for any of the non-D’s to go ahead and propose what the “more state, better” people sometimes slip up and say out loud.

Senator Mitch:

“I’m here today to announce a piece the “Open Borders for Us but not Them” act we’re beginning to move through committee. As majority leader I’m making the unusual commitment that this legislation will be brought up for a floor vote whether it’s approved in committee or not. See the register for the exact language.”

“Unlike our colleagues from across the aisle, we don’t want to wield our majority to keep issues from being addressed. We think what’s important is the senators’ votes on particular legislation, not procedural shenanigans by the majority to keep things from ever getting to a vote. See the record of bills, amendments, and similar for the last 6 sessions of congress, at senate.gov.”

“So our opponents can get a fair hearing, while the majority of my caucus disagree with this proposal on its face, we have crafted the “Open Borders for Us but not Them” act using our colleagues public statements on immigration, border enforcement, and refugees in the actual wording. This is what they’ve said we must have. So, we’ll be bringing it up for a vote … and I, personally won’t let it be stifled in committee by “partisans” or “extremists’ even of my own party.”

“We’ll be bringing it to the floor. We don’t have much of a majority, so if the opposition can flip a few of my caucus, it’ll pass. Otherwise, they can try to convince a few more people, then submit legislation themselves, later.”

“It’s going to be my policy as majority leader to ensure legislation is proposed on major, contentious issues. Probably about 1 / week, given the number of issues people are raising.

“The people deserve a voice in the laws we make. This is one way I’m going to see they get it.”

“Now, I’ll take a few questions. Please keep it on point. Our time is limited.”

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