Ninth Circuit Review of District Court’s TRO on Immigration Ban

A panel of three judges for the Ninth Circuit has scheduled a hearing for today, February 7, 2017, on whether or not to overrule the decision of the U.S. District Court for the Western District of Washington to issue a temporary restraining order in the case of State of Washington v. Trump.  That case disputed whether the president had the power to issue the Executive Order of January 27, 2017.  That order banned the immigration of persons from certain Muslim-majority countries. 

The hearing will be conducted by telephone starting at 6 pm Eastern time, and the two sides will each have 30 minutes to present their arguments.

The plaintiffs in this case are the States of Washington and Minnesota; the defendant is President Trump.  The plaintiffs are arguing that President Trump exceeded his authority, violated the First Amendment’s freedom of religion clause, and violated federal immigration law when he issued his executive order.  The defense is arguing that President Trump did not exceed his authority or violate federal law or the U.S. Constitution.  The plaintiffs want a permanent injunction barring President Trump’s executive order.  However, before the permanent injunction (which would be the court’s final decision), the plaintiffs want a preliminary injunction.  But because courts usually want to take some time to consider the parties’ arguments before they issue a preliminary injunction, plaintiffs asked for something even quicker to get — a temporary restraining order (TRO).

The district court decided to issue a temporary restraining order (TRO) last week. The TRO had the effect of returning the situation to the “before the executive order” status — in other words, it banned the executive order’s ban. The TRO was to last until the court could hear fuller and more detailed arguments that would enable it to decide whether to grant a preliminary injunction. The defense promptly appealed the district court’s decision to grant aTRO.

Currently, the appeal before the three-judge panel of the Ninth Circuit is to decide whether to allow the TRO to stand.  The defense is arguing that the TRO should be set aside altogether (returning the immigration ban in full effect) while the parties argue whether the court should grant a preliminary injunction. Plaintiffs want the TRO to remain while the parties argue for the preliminary injunction.

Two points are worth remembering here.  First, the parties are only arguing whether the TRO (which temporarily prevents the immigration ban from being carried out) will be in effect until the parties can fully argue their positions why the court should grant (or should not grant) a preliminary injunction. When the court finally reaches the question of the preliminary injunction, the case will then proceed until the court decides whether to grant a permanent injunction. So no matter what the Ninth Circuit decides today, the final decision as to whether the president’s executive order is legal is not going to be decided for a long time.  When it is decided, it will be at the district court level – followed by an appeal by the losing party to the Ninth Circuit again – and finally an appeal to the U.S. Supreme Court.  It is very possible that years will pass before the last appeal has been decided.

Second, whatever the Ninth Circuit decides regarding the TRO, it is likely that the losing side will immediately file an appeal to the U.S. Supreme Court.  Thus, today will not even mark the end of the TRO dispute . . . much less the entire case.

For more information, we include some links to blogs written by attorneys who have weighed in on the merits of the case in general and the TRO in particular.

Some blog entries written by legal professionals on the TRO:

Above the Law

ABA Journal

Josh Blackman’s Blog

Scrivener’s Error

PrawfsBlawg

Simple Justice

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