This column by ACRU Fellow Ken Klukowski was published February 5, 2017 by Breitbart.
A federal appeals court on Sunday declined to issue an immediate stay of Judge Robart’s nationwide injunction blocking President Trump’s executive order, but will likely rule on the motion for an emergency stay later this week.
Late on Friday, Judge James Robart of the U.S. District Court for the Western District of Washington issued a temporary restraining order (TRO) against the president and the U.S. Departments of State and Homeland Security, declaring Trump’s executive order illegal.
Robart’s injunction is being heavily criticized for not specifying why the executive order is illegal, since the plaintiffs — the states of Washington and Minnesota — filed a lawsuit that throws the kitchen sink at the federal government, claiming 10 separate violations of the Constitution and federal law that Trump’s order allegedly violates. The sweeping court order is also being criticized for blocking all implementation of the immigration measure nationwide, instead of merely exempting Washington and Minnesota from it.
A TRO is granted only in extreme circumstances and typically lasts for only up to 10 days, to give a court time to fully consider whether to grant a preliminary injunction that would last for however many weeks or months are needed for the full judicial process to play out in court.
On Saturday the U.S. Department of Justice filed for an emergency stay of the district court’s TRO, including a request for an immediate administrative stay of the TRO while the states are filing their legal briefs in opposition to the motion.
In the early morning hours of Sunday, the U.S. Court of Appeals for the Ninth Circuit, which has jurisdiction over Washington, denied the request for an immediate administrative stay. Contrary to media reports, the court did not deny the Justice Department’s motion for an emergency stay pending appeal.
Instead, a two-judge administrative panel of the San Francisco-based appeals court ruled that the court would not decide on the motion for an emergency stay until it had received all legal briefs presenting the arguments on both sides. It further ordered that Washington and Minnesota must file their brief by 3 PM ET on Sunday, then the Justice Department must file its reply by 6 PM ET on Monday. The court could then rule on the motion for an emergency stay at any time after Monday’s filing.
Both appeals judges are Democratic appointees. Judge William C. Canby was appointed by President Carter and is semi-retired. Judge Michelle Friedland was appointed by President Obama. The Ninth Circuit is one of two most liberal appeals courts in the nation.
The case is Washington v. Trump.