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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