Donald Trump's efforts to stay the Temporary Restraining Order on the implementation of his executive order were denied today by the 9th Circuit Federal Court of appeals.
I would recommend that everyone take the time to read this opinion which is available on line here: https://cdn.ca9.uscourts.gov/…/opin…/2017/02/09/17-35105.pdf
It is written with clear sections that break out the various legal issues the court needed to address for this type of proceeding which are as follows:
1. Appellate Jurisdiction - which in a nutshell is the court deciding if it can hear and decide the motion for the stay. (It held that it did have jurisdiction.)
2. Standing - that is whether or not the State of Washington and the State of Minnesota had interests (personal and/or business) that would be directly effected by the implementation of the executive order. Standing was held to exist because under State Law the States of Washington and Minnesota own and run their respective Universities and the issues at stake would effect their economic, educational and policy interests involved in the Universities. (There's more but this is the gist.)
3. Reviewability of the Executive Order - Now here is the section that you may really really want to read. Here is where the 3 branch structure that was set in place by the founders of the United States is put to the test. The court here finds, citing prior cases including US Supreme Court Cases, that the Judicial Branch of the Federal Government is charged with reviewing actions of either the executive branch or the legislative branch for whether these actions are constitutional. (As lawyer and hopefully to anyone out there who isn't a lawyer, this is where you should get chills down your spine - this is the protection that keeps our country from becoming a dictatorship!)
4. Legal Standard: Here is where the court lays out what the test is they need to apply to determine if the stay should be granted or not. They lay out this test: "Our decision is guided by four questions: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be Irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies."
5. The court then goes on to discuss that at this preliminary stage there is a likelihood of success on the Due Process claims. The court declines to comment on the religious discrimination claims at this early stage. The Court declines to limit the scope of the order to just the States of Washington and Minnesota (citing how there is a need to have an equal and fair implementation of the immigration law). The Court declines to accept that recent advisories by House Council holding back on enforcing the law are sufficient.
6. The court then finds that when viewing the balance of hardships and the public interest, there is no evidence that anyone will be harmed by returning the immigration practices and procedures that were in place prior to the executive order
(Footnote 8 is significant. The court observes that the Government has not put forth any evidence on the record of any increased threat or flaw in the current screening process even though they could have filed such information confidentially under seal with the court; page 27 footnote
7) The court observes that the Plaintiff's have demonstrated that they have interests that will be irreparably harmed if the TRO doesn't remain in place. The court observes that when balancing the public interests, the balance does not favor granting the stay. Read the opinion.
I do not claim to be a constitutional expert but I have read this opinion and I understand it. I think it is the right result. Message me if you have a question related to this opinion and I will try to explain it to you.
r post here.