Image 01 Image 03

Feds seek Emergency Stay of TRO halting Trump Immigration EO (Update – Copy Motion)

Feds seek Emergency Stay of TRO halting Trump Immigration EO (Update – Copy Motion)

TRO opened floodgates for visa holders from 7 high risk countries before new screening procedures were in place.

The federal government has filed for an emergency stay [full embed at bottom of post] with the 9th Circuit Court of Appeals seeking to stay a temporary restraining order issued by the District Court for the Western District of Washington (Seattle).

For background, see our earlier post, Absurd Fed Ct TRO halts enforcement of entire Executive Order on visas, refugees. In the past day, visa holders from the 7 high risk nations subject to the EO have flooded into the U.S. trying to beat the court clock for an appellate stay.

The papers are not yet posted to the PACER electronic docket, but we will provide links and an embedded version once available. [See Update below]

AP reports:

The Justice Department is asking a federal appeals court to set aside a judge’s order that temporarily blocked the Trump administration’s travel ban.

The federal government’s request for an emergency stay was filed Saturday night with the 9th U.S. Circuit Court of Appeals.

The filing asks the court to lift an order from a day earlier from a judge in Washington state.

The ruling from U.S. District Judge James Robart temporarily halted a Trump administration executive order that suspended America’s refugee program and halted immigration to the U.S. from seven Muslim-majority countries.

This post will be updated.

UPDATE 2-5-2017 2:35 a.m. Eastern: The Emergency Motion is below. (Pdf. here) There is no indication in the court docket when it will be heard by the court. It is quite strong. I’ll have more later today.

Emergency Motion for Stay – 9th Circuit – Trump Immigration Executive Order by Legal Insurrection on Scribd


Donations tax deductible
to the full extent allowed by law.


I do hope the 9th Circuit, before overturning the TRO (as it should), makes the Justice Department explain all of Donald Trump’s tweets and confirm that the administration understands the contours of judicial power in the United States. It was appropriate when the 5th Circuit did it to Obama, and it would be appropriate today.

    RobM in reply to Awing1. | February 4, 2017 at 8:10 pm

    You can’t be serious

      Awing1 in reply to RobM. | February 4, 2017 at 8:13 pm

      I am. What, do you think what the 5th Circuit did was inappropriate?

      Or do you just hold this president to a different standard than the last?

        heyjoojoo in reply to Awing1. | February 4, 2017 at 8:18 pm

        What standard are you referring to?

          Awing1 in reply to heyjoojoo. | February 4, 2017 at 8:27 pm

          When Obama said “Ultimately I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress”, the Fifth Circuit took that as questioning the authority of the judiciary to overturn laws. They demanded the Department of Justice provide a letter explaining the administration’s position on whether the judiciary had the power to overturn laws, and Eric Holder responded with a letter confirming that the administration did not question the judiciary’s authority.

          You can read all about it here:

          Given Trump’s recent tweets calling into question the judiciary’s authority in far stronger terms than just saying something would be “unprecedented”, applying the same standard should call for the Ninth Circuit to demand this administration’s position.

          malclave in reply to heyjoojoo. | February 4, 2017 at 9:26 pm

          Awing, why are you holding the Trump DoJ to such a higher standard than Obama’s? What you just wrote doesn’t support your previous statement that the 5th Circuit demanded explanations of all of Obama’s tweets.

          Awing1 in reply to heyjoojoo. | February 4, 2017 at 9:35 pm

          Sorry, “all of Trump’s tweets that call into question the legitimate authority of the judicial branch”.

    heyjoojoo in reply to Awing1. | February 4, 2017 at 9:04 pm

    But you can still be wrong on the law. Obama is by no means the standard on the law. That is hilarious.

    FarFromIt in reply to Awing1. | February 4, 2017 at 9:11 pm

    Are you agreeing then with the atty for the plaintiff in the Boston case that argued that it was a Muslim ban because Trump said in his campaign that he wanted to ban Muslims? I don’t believe the Boston judge bought that argument.

      Awing1 in reply to FarFromIt. | February 4, 2017 at 9:15 pm

      No, I am not agreeing that it’s a Muslim ban just because Trump said so (I actually don’t think he has said this order is a Muslim ban). How do you get to that conclusion from my comment?

        FarFromIt in reply to Awing1. | February 4, 2017 at 9:24 pm

        “How do you get to that conclusion from my comment?”

        Because I don’t consider Trump’s statements on the campaign trail to be any more valid than his tweets are. We all wish he would stop the tweets, but they do not have the power of law.

          Awing1 in reply to FarFromIt. | February 4, 2017 at 9:37 pm

          How are Trump’s tweets as president different from Obama’s statements as president, in your view? Why does Trump get a free pass where Obama did not?


          Trumps tweets are limited to 40 characters each; we could only pray that Obama would do likewise.

          Awing1 in reply to FarFromIt. | February 4, 2017 at 11:46 pm

          MSO, tweets are not limited to 40 characters, they’re limited to 140, and he sends out more than enough to make the limit meaningless.

    Trump hasn’t questioned the court’s authority, just its logic.

      Awing1 in reply to MSO. | February 4, 2017 at 11:45 pm

      Trump’s statement:

      “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!”

      is as much a questioning judicial authority as Obama’s statement:

      “Ultimately I am confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress”

      Which is what prompted the Fifth Circuit to take the action it did. Trying to pretend otherwise just reveals you as an unprincipled, partisan hack who is more loyal to Trump than to rule of law.

Awing1: Sound more like that district judge needs a lecture on the limits of judicial power.

    Awing1 in reply to rabidfox. | February 4, 2017 at 8:11 pm

    Being wrong on the law is not exceeding judicial power.

      Wisewerds in reply to Awing1. | February 4, 2017 at 9:12 pm

      No, unintentionally being wrong on the law is not. But what is going on here is more than that. I believe the judge understood perfectly well what the legal standard was (rational basis review), and then intentionally ignored or misapplied it. That’s why our professor characterized this decision not merely as wrong, but as “absurd” and “outrageous.” And I quite agree.

        Awing1 in reply to Wisewerds. | February 4, 2017 at 9:24 pm

        Funny, DOJ lawyers made the argument that he should *not* use rational basis as the standard, but rather that he should use “facially legitimate”, which is an even lower standard. Nonetheless, the judge at least states that he applied rational basis review.

        Regardless, the order is well within the lawful power of the court, even if he’s wrong on the law, or the standard (he didn’t articulate which one he used). You can ascribe whatever motives you wish to him, that hardly makes Trump’s tweets appropriate.

          rusure in reply to Awing1. | February 4, 2017 at 10:50 pm

          A matter of opinion. Which one is it? One can ascribe whatever motives wished to him or to base this all on what you believe is appropriate/inappropriate. Talking about what we think to be ones motives is a side show, so meaningless. We’ll find out if this was “well within the lawful power of the court” or if the judge was playing dumb as a fox.

It’s the 9th Circuit, so who knows what will happen? I hope that even in that liberal arena the judges will notice the district court had no valid legal arguments for its ruling.

Why even bother with elections if judges are just going to overrule the executive department?

If the Ninth does not slap this TRO down, I think you will see a renewed push to break up the Ninth circuit.

I just do not see how the Ninth can not slap this down after their decisions in the Arizona case.

Baby Elephant | February 5, 2017 at 1:14 am

Administration motion Re: EO and request for stay at 9th circuit

Didn’t Abraham Lincoln have a lot to say about the Dred Scott decision?

    Stan25 in reply to sbgivens. | February 5, 2017 at 5:58 am

    Dried Scott was decided before Lincoln was elected President. That ruling was during the James Buchanan administration. This decision was one of the root causes of the Civil War. It was the Roe v Wade thing of the mid – 19th century.

Looks like the appeal was thrown out by Judge Baird on Saturday night and the DoJ has until Monday to provide further arguments in their favour.

Seems to me this whole case should ever have gotten past the “non citizens have no constitutional right to enter the United States of America” argument.

Perhaps though, liberals should explain just why they are so committed to illegal allies being given free and unfettered entry in to America.


it would be more than interesting to know just what conditions would be acceptable to this judge or the 9th to permit closure of US borders. We are on the threshold of the courts endorsing “open borders” with no restriction or restraint. The US can not refuse to let anyone in? “Sovereign borders” are so passé …..

Here is the first major issue the GOPe will jump on the bandwagon and reach across to embrace the Dems…. Oh the humanity! Oh how caring!

Too many decisions are being made with impunity and immunity…..

    Nate Krumm in reply to alaskabob. | February 6, 2017 at 1:20 pm

    Although we are left to speculate on how Robart viewed likelihood of success on the merits (since he included zero analysis on that in the Order), it sure looks like he’s creating a constitutional right to immigrate to the United States. I’m not sure what the proper response so such an abomination would be.

I don’t understand why we are even talking about rational basis review, at least as to the refugees. Rational basis review is applied in equal protection cases where we the government is treating people unequally, but where those people do not belong to any protected class. What equal protection rights do we think that potential immigrants and potential refugees have under the constitution? And here I’m not talking about people already holding visas – I’m talking about, for example, Syrians who are potential refugees under 5(c) of Trump’s order. Why are we even talking in the language of equal protection with respect to those people – they have no constitutional rights.