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. |
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