Update on Trump’s Travel Ban
As forecast in the last Legal Bits (see Challenges to President Trump’s Travel Ban), President Trump’s executive order is being kicked around in the courts.
What Happened Yesterday?
Yesterday afternoon, the Ninth Circuit Court of Appeals heard oral argument on whether to uphold the suspension of the ban. The ban was suspended by the temporary restraining order (TRO) entered by Judge James Robart of the U.S. District Court for the Eastern District of Washington. The three-judge appellate panel asked questions but did not render a decision.
What is Being Decided?
The issue is not whether the ban is constitutional but whether or not Judge Robart abused his discretion in granting the TRO. Typically, TROs are not appealable. They last for 14 days unless the court makes them permanent during the pending case by issuing a preliminary injunction, usually after a hearing. The Department of Justice (DOJ) is arguing that Judge Robart’s TRO resembles a preliminary injunction and is appealable. The judges will likely decide whether to overrule the TRO and reinstate the travel ban or punt the case back to District Court for the preliminary injunction hearing.
Although not as thrilling as the Patriot’s Super Bowl comeback, the hearing had some sparks.
• DOJ lawyer August Flentje was mostly on the defense. Judge Friedland asked if the government introduced any evidence of terrorist threats to justify the President’s actions. Flentje responded, “these proceedings had been moving very fast.”
• Judge Canby asked Washington State lawyer Noah Purcell what irreparable harm the state of Washington will suffer if the travel ban is reinstated. Purcell responded that the burden is on the DOJ to show irreparable harm and then cited the negative impact on schools and hospitals.
• Judge Canby tried to get Purcell to acknowledge that the travel ban only impacted a small percentage of Muslims, suggesting that it is not discriminatory. Purcell responded that he had not done the math but Trump’s comments demonstrate the intent to discriminate.
• Judge Canby asked Flentje whether Trump has the authority to impose a ban on all Muslims entering the country. Flentje avoided the question and remarked, “I’m not sure I’m convincing the Court.” He proposed a middle ground–a stay that applies to only foreign nationals who have not been to the United States.
The decision of the Ninth Circuit should be announced before the end of this week. I predict that the appeals judges will reject the DOJ’s motion and the matter will return to Judge Robart for a preliminary injunction hearing to determine if the suspension of the ban will continue. Regardless, the losing side will likely appeal to the Supreme Court to rule on the constitutionality of the ban.
Trump referred to the Judge Robart as a “so-called judge” and his decision as “ridiculous.”
In response to yesterday’s hearing, Trump suggested that the Court of Appeals is biased and political. He insisted that his order is within his executive powers and even “a bad high school student would understand this.”
Trump’s personal attacks on the judiciary are puzzling and counter to the usual decorum, at least for those of us that have appeared before the Ninth Circuit Court of Appeals. I recall a judge stating that he could not hear an attorney because the attorney was not wearing a suit and tie. I remember another judge stating that the courtroom is his living room and that those present will conduct themselves accordingly. Even Trump’s Supreme Court nominee, Neil Gorsuch, said today that Trump’s remarks about the judiciary are “demoralizing” and “disheartening.”