Keeping the Injunction on Trump Travel Ban: Rule of Law Back in Play

On March 6, President Trump issued a replacement Executive Order (EO) for the previous ones he had issued regarding immigration from several countries. He did this, it seems, to address concerns about constitutionality of the first EO. The Department of Justice immediately filed a “Notice” with the United States District Court in the Western District of Washington, one of the federals court that had issued a nationwide emergency injunction against enforcement of the original EO. This injunction remains in force as I write this post, having been upheld by the Ninth Circuit. The Executive Branch is taking the position that the new EO differs from the old one in ways that mean it can be enforced effective immediately. The Attorneys General of Washington and Minnesota, now joined by Attorneys General from New York and Massachussetts, oppose this for two, related reasons. The AGs argue, on behalf of their respective states, that 1) the new EO largely duplicates the old EO and 2) that the Executive Branch cannot simply deem itself no longer subject to an injunction issued by the Judicial Branch. That second claim is strikingly important even though it does not go to the merits of the first claim or to the question of the ultimate constitutionality of either EO. Rather, the second claim goes to the question of whether the Executive Branch must demonstrate to the District Court that the original injunction does not apply to the new EO based on the law applicable to modifying or removing federal injunction or that such modification or removal should be entered by the District Court. In other words, the AGs claim that President Trump is seeking to free the Executive from the injunction by fiat when in fact he does not have the authority to do this.  Below is the Notice filed by the DOJ on behalf of the President and the AGs brief in response, annotated by me to assist nonlawyers in following each side’s arguments.

Notice of Filing of Executive Order

Response to Notice of Filing of Executive Order

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Keeping the Injunction on Trump Travel Ban: Rule of Law Back in Play

What happens when federal litigation on related questions booms-as now with Trump executive orders

(Warning: this is a primer, oversimplifications ahead.)

Various people have brought different lawsuits against Donald Trump and his administration, claiming the unconstitutionality and illegality of Trump’s executive orders restricting travel, colloquially known as “the Muslim ban.”  Because these lawsuits raise federal constitutional questions and claim Trump has violated federal statutes, the cases have all been brought in federal court. But there isn’t just one big “federal court.” There is the federal court system. It has both a horizontal and a vertical dimension.  Horizontally, the federal judicial system is divided into circuits and then sub-circuits. When a plaintiff sues in federal court, she starts in a trial court in a particular sub-circuit. Which one usually depends upon either where she resides or where the injury she is alleging happened. When a cause of harm manifests in many places-like a nationwide ban on immigration ordered by the President-it often triggers multiple suits, each one brought by a different plaintiff or group of plaintiffs seeking relief for the specific injury the harmful conduct has caused her or them. Because of differences in the factual circumstances and differences in the legal theories each plaintiff sues upon, the initial trial court decisions at the horizontal level will vary in meaning even if all of them temporarily restrain the governmental action in question.

As trial court orders are appealed, the vertical dimension of the federal judicial system kicks in. A federal district court judge’s decision can be appealed. If it is, the case is generally reviewed by a panel or subset of that district’s appellate judges. For example,  a decision of the court in the Western District of Washington, in Seattle, can be appealed to the Ninth Circuit (not every trial court order or decision is immediately appealable, but for purposes of this discussion, I am oversimplifying). When that subset or panel rules, the losing party can request review of the entire group of appellate judges for the circuit (en banc). Finally, a party who loses a case upon en banc review can petition for review by the U.S. Supreme Court. There is no right to Supreme Court review. The Court decides whether to take any given case.

In a situation like the current one, where the losing party (Trump in his official capacity and the Executive Branch officials implementing the orders) is the same across the original trial court orders, whether and which vertical next moves are made are the choice of the losing party. The Department of Justice, which represents the Executive Branch of the U.S. Government, has to decide which orders to appeal, considering the content or significance of an individual case and the likelihood of winning on appeal. So far, Trump’s DOJ has fought, and won, one effort to renew a TRO (not an appeal of the original TRO), in Massachusetts; and today has decided to appeal the most wide-reaching and, in my opinion, forceful ruling staying the executive orders, which was issued in Seattle, by the Judge James Robart of the Western District of Washington State. Judge Robart had scheduled argument as to whether to make the temporary restraining order permanent, but since the Executive Branch has decided to appeal the temporary order those arguments may be postponed.

Meanwhile, the government may file appeals in other cases in circuits other than the Ninth , and the plaintiffs in Massachusetts (who lost the renewal of the TRO) may decide to appeal that ruling. If there are simultaneous appeals proceeding vertically, the different circuits could end up with different results on the constitutionality or legality of the Executive Orders, in what is called a circuit split. Sometimes the Supreme Court decides to consolidate several appeals from the circuits to resolve a split, sometimes the Court chooses one case because deciding it would effectively decide the split, and in some instances (though certainly not this one), the Supreme Court does not resolve a circuit split, meaning that the opinions of the appellate courts in each circuit control the law in that circuit.

Scholars and analysts have much to say about the pros and cons of the horizontal and the vertical dimensions of the federal judiciary. Setting aside these larger debates, what matters for now is whether there will be a relatively quick decision at the appellate level of any circuit and then whether the loser will appeal the case to the Supreme Court and then whether the Supreme Court takes that case or waits to see what, if any, splits or consensus emerges among the various circuits.

Should Trump withdraw the Executive Orders or should Congress take action to negate them, the current wave of lawsuits would stop or stall. The federal courts would not become involved again unless or until the Executive promulgated new orders which could be litigated or the Executive chose to challenge the constitutionality of any Congressional action that might be taken.

What happens when federal litigation on related questions booms-as now with Trump executive orders

TRO opinion in Washington State litigation against Muslim ban EOs, explained and annotated

The state of Washington was the first state to file its own lawsuit alleging the unconstitutionality of the Trump bans on immigration. This development was significant because states are uniquely positioned to challenge unconstitutional executive orders. They have standing to litigate on behalf many of their affected  residents (under the U.S. extension of parens patriae doctrine). They also have standing to litigate the unique harms that they as states can suffer, e.g. injury to state university systems or state economic wellbeing. Today, Judge James L. Robart, a federal district court court judge in the Western District of Washington State, issued a temporary restraining order (TRO) against the Trump executive orders and provided an opinion that tees up the sort of ongoing litigation likely to wind up in the U.S. Supreme Court. Below is a copy of Judge Robart’s opinion in support of the TRO. I have highlighted passages to aid in following Judge Robart’s reasoning and indicated with green check marks especially significant findings has made.

TRO opinion in Washington State litigation against Muslim ban EOs, explained and annotated

Adding 1st Amendent, RFRA to fight against “extreme vetting”: Complaint in Massachusetts Federal Court annotated

Late yesterday, another complaint was filed seeking injunctive relief against the executive orders prohibiting reentry into the US of lawful US residents who are also foreign nationals from certain countries. Below is the complaint filed in federal district court in Massachusetts, annotated by me to highlight legal bases for declaring these orders unconstitutional and unlawful that were not already asserted in other complaints filed, such as the one in federal court in New York. The Massachusetts complaint asserts that the EOs violate the First Amendment and the Religious Freedom Restoration Act. By providing additional bases for overturning the EOs, this complaint paves the way for the broadest possible number of objections to be considered by higher courts in the upcoming fights over the final status of the orders.

Adding 1st Amendent, RFRA to fight against “extreme vetting”: Complaint in Massachusetts Federal Court annotated

The legal fight against Trump’s “extreme vetting” executive orders – Annotated writ of habeas corpus, complaint seeking injunctive relief, class certification

Today, January 28, 2017, begins the legal battle against the Trump administration’s treatment of refugees and immigrants to the United States of America. Last night, refugees with valid visas were detained and held at John F. Kennedy International Airport. Early this morning their lawyers filed suit on their behalf. Here is copy of the complaint, annotated by me. The annotations are meant to guide non-lawyers through the most legally significant parts of this first filing in what will be a contested lawsuit.

The legal fight against Trump’s “extreme vetting” executive orders – Annotated writ of habeas corpus, complaint seeking injunctive relief, class certification