This column by ACRU Fellow Ken Klukowski was published February 16, 2017 by Breitbart.
Late Thursday night the U.S. Court of Appeals for the Ninth Circuit ordered that it was staying further proceedings in the appeal of the Seattle-based district court that blocked President Trump’s immigration executive order (EO).
When the states of Washington and Minnesota sued, Judge James Robart of the U.S. District Court for the Western District of Washington issued a temporary restraining order (TRO) of Trump’s EO 13,769 in Washington v. Trump, which temporarily restricted travel from seven terror-prone countries.
A three-judge panel of the Ninth Circuit affirmed, ignoring arguments that federal courts lacked jurisdiction to hear a case over an EO, that states lack standing to sue on behalf of their residents and organizations, and that courts should defer to Congress and the president on immigration and national security disputes.
The appeals court was voting internally this week on whether to rehear the case en banc, meaning that an 11-judge panel would reconsider the case. Given the heavy liberal balance of the San Francisco-based appeals court, the same eventual outcome was likely.
The U.S. Department of Justice asked the appeals court on Thursday to stay any further proceedings in the case, citing Trump’s announcement during a press conference earlier that day that he would issue a new EO during the week of Feb. 19.
Chief Judge Sidney Thomas of the Ninth Circuit issued an order for the court granting that stay, noting that Justice Department lawyers have told the court they will promptly inform the judges of new developments expected in the coming days.
This Ninth Circuit order does not directly control Robart, who this week was collecting legal briefs to decide the next stage of this litigation to supersede his short-term TRO with a preliminary injunction that would continue to block EO 13,769 all the way through the legal process until a final court judgment.
However, any additional action from Robart now likely would be regarded as inappropriate by the Ninth Circuit, and if so would be summarily stayed by the higher court. It is thus very unlikely that Robart will take any further action on the case at this time.
There are approximately 20 lawsuits against the immigration EO currently in different federal courts nationwide. The Ninth Circuit’s order has no impact on any of those other cases, though most other courts will likely follow suit.