This column by ACRU Fellow Ken Klukowski was published March 12, 2017 by Breitbart.
A second federal judge — this one in Wisconsin — on Friday blocked President Donald Trump’s new executive order (EO) on immigration travel, while the federal judge who blocked the first EO is reserving judgment on the revised EO.
Trump signed EO 13780 on Mar. 6, replacing his original order (EO 13769), temporarily restricting immigration from several terror-prone nations. Judge James Robart of the U.S. District Court for the Western District of Washington issued a temporary restraining order (TRO) against the first EO. The San Francisco-based U.S. Court of Appeals for the Ninth Circuit kept the TRO in place.
Lawsuits have also been filed against the new EO 13780. The plaintiff states in the original TRO lawsuit — a growing list that currently includes Washington, Minnesota, and Oregon — asked Robart to rule that the TRO blocking EO 13769 likewise applies to the new EO. Robart released an order Friday stating that none of the parties have properly filed new motions in that litigation — and that he will reserve judgment until there is a relevant motion and the legal issues have been fully briefed before his court.
However, on that same day, Judge William Conley of the U.S. District Court for the Western District of Wisconsin did issue a new TRO against the new EO, holding that the plaintiff in that new lawsuit had a substantial likelihood of success on the merits, and would suffer irreparable harm unless the court provided immediate relief. This new lawsuit in Wisconsin concerns a man with a family member in Syria who has applied for asylum and claims that EO 13780 is thwarting that asylum request.
A TRO is a temporary emergency measure that typically lasts less than two weeks, only long enough to give a district court judge enough time to fully consider an urgent matter in a lawsuit. A TRO is only issued in extraordinary situations.
Conley has ordered legal briefs filed on an expedited basis for the next stage of litigation and will hold a court hearing on Mar. 21 on whether to convert the TRO into a preliminary injunction, a longer-term remedy that could stay in place for however long it takes to reach a final decision on the legality of EO 13780.
Although a TRO cannot be appealed, a preliminary injunction can, which could take either case quickly to the next level of the federal judiciary. The Washington case would go back to the Ninth Circuit, while the Wisconsin case would go to the U.S. Court of Appeals for the Seventh Circuit in Chicago.
The first case is Washington v. Trump, No. 2:17-cv-141 in the Western District of Washington.
The second case is Doe v. Trump, No. 3:17-cv-112 in the Western District of Wisconsin.