After a Sunday rush of foreign travelers from the Mideast reaching U.S. shores under the protection of a federal judge’s temporary order, the Trump Administration’s effort to stop that migration may have run into a new legal obstacle. Three states opposed to President Trump’s January 27 order strictly limiting immigration as an anti-terrorism policy are pressing a federal appeals court to throw out the government’s case seeking to defend the travel restrictions.
The states of Washington and Minnesota, now joined by a new ally – Hawaii – in opposition to the Trump executive order, filed legal papers late Sunday night arguing that the government has no legal right at this point to pursue an appeal that seeks to reinstate the Trump ban. The Seattle trial judge who last week blocked enforcement of the restrictions did not do so in a form that is subject to an immediate appeal, the states’ lawyers contended. The states did so as they repeated earlier arguments that the Trump restrictions are unconstitutional and violate federal immigration laws.
While the new challenge involved technical procedural details, it has the potential practical effect – if it is accepted by the U.S. Court of Appeals for the Ninth Circuit – of keeping President Trump and federal agencies from enforcing the travel limits for at least a few more weeks. That would mean that additional thousands of foreign nationals from war-torn Syria and six other Mideast nations who otherwise would be barred could continue to make their way to the United States, or, if they had already arrived, could be spared from being sent back.
The Seattle jurist, U.S. District Judge James T. Robart, on Friday barred enforcement of the president’s travel limits for the time being, but did so only by issuing a “temporary restraining order.” That is a kind of court command that is designed simply to maintain the status quo in a pending legal case until a judge can consider how to rule on the rights or duties at issue in that proceeding.
Ordinarily, under federal court rules, a restraining order of that kind cannot be appealed. Only if the judge goes further and issues an injunction, which does reflect a ruling on the actual legal questions at stake, can the party that is the target of the injunction go to an appeals court to seek to have it lifted.
On Saturday, when the Trump legal team from the Justice Department asked the Ninth Circuit Court to postpone Judge Robart’s order during a government appeal, those lawyers conceded that, ordinarily, a temporary restraining order cannot be appealed. But they urged the appeals panel to treat this restraining order as if it were actually an injunction. That can be done, the legal filing contended, when a restraining order was issued after a full hearing involving both sides and when the order is going to be in effect for more than just a few days. The document asserted that the Robart order met those conditions because, it said, the order is indefinite in duration and was issued after a Friday hearing in that judge’s courtroom.
Those points have now been disputed in new filings in the Ninth Circuit Court by the three challenging states. The Robart order, they said, is not indefinite, and will be in effect only until that judge has a chance to decide for or against issuing an actual injunction. Judge Robart will decide that after new written briefs are filed. The challenging states have proposed a briefing schedule that would run through February 17. After that, the judge would hold a hearing, and then make a decision. At that point, the states said, the government could pursue an appeal and seek to reinstate the Trump travel limitations.
Government lawyers are expected to counter those arguments when they file a new brief in the Ninth Circuit Court at 3 p.m. Pacific time (6 p.m. on the East Coast). After that document is filed, the Circuit Court will then decide whether to put Judge Robart’s order on hold while it is under review on appeal by the government. The Circuit Court is expected to rule promptly.
(This post also appears today at Constitution Daily, the hlog of the National Constitution Center in Philadelphia.)