Published by The Lawfare Institute
in Cooperation With
(This is the first part in a two-part series. Part II will be published tomorrow).
President Trump’s January 27 executive order on immigration sent shockwaves throughout our legal order. For 90 days, certain aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen—deemed “detrimental” to American interests—would be denied entry. For 120 days, the Refugee Admissions Program would be suspended. Syrian refugees in particular would be denied entry indefinitely. Almost immediately after the order was signed, airport officials began to detain nationals of those seven nations. In what I’ve dubbed the Airport Cases, judges in New York, Virginia, Washington, Massachusetts, and elsewhere promptly ordered their release. But those emergency proceedings were only the beginning of the lawfare.
On Monday, January 30, the Washington Attorney General sought a temporary restraining order to halt the policy nationwide. (The state Solicitor General had planned this challenge well before the order was even signed). At the time, under the direction of Acting Attorney General Sally Q. Yates, the Justice Department was not even permitted to defend the order. However, after President Trump fired her, the government lawyers got to work, and filed a response on February 2. After an hour of oral argument the next day, U.S. District Judge James L. Robart ruled from the bench that the federal government must immediately cease enforcing the executive order.
Shortly thereafter, Judge Robart released a written opinion, styled as a temporary restraining order. However, the seven-page order offered only the most threadbare analysis. There was no indication whether the actions violated the Due Process Clause, the Equal Protection Clause, the Establishment Clause, the Free Exercise Clause. Nor was there any discussion of whether the President violated any statutory prohibitions. An extra hour of work between the judge and his law clerks could have resolved this glaring absence. Solely on the basis of this hasty and incomplete opinion, immigration officials around the country, and indeed consular officials around the globe, were now enjoined from implementing the order. Unlike most temporary restraining orders, which are limited in duration for a specific period of time (often less than two weeks), this order had no expiration date. Rather, Judge Robart indicated that he would promptly hold an evidentiary hearing, and decide whether a preliminary injunction was appropriate.
Not willing to follow that schedule, on February 4, the Justice Department asked the Ninth Circuit for an emergency stay pending appeal. The brief, signed by Noel J. Francisco, the acting Solicitor General, acknowledged that “temporary restraining orders are ordinarily not appealable,” but urged that the court had jurisdiction because of “the essence of the order, not its moniker.” In other words, even though Judge Robart called his decision a temporary restraining order, and so labelled it, wide-ranging decision should be treated “an appealable injunctive order.” Washington urged the court not to treat the temporary restraining order as a preliminary injunction, and “wait to review” the judgment until Judge Robart completed further proceedings.
On February 7, a three-judge panel—Judges William C. Canby, Richard R. Clifton, and Michelle T. Friedland—heard oral arguments. Barely forty-eight hours later, the panel issued a per curiam opinion that denied the emergency motion for a stay pending appeal. Treating the lower-court decision as a preliminary injunction, rather than a temporary restraining order, the panel found that Washington was likely to prevail on its claim that the order violated the Due Process Clause of the Fifth Amendment. The court implied in dicta that the order may also violate the Establishment Clause, but stopped short of so holding.
Contemporaneously with the published opinion, the panel also issued an unpublished briefing order, which asked the parties to file further briefs throughout the month of March. The implication of this order, apparently, was that because the court treated the district court’s decision as a preliminary injunction, there was no need for a remand for further proceedings before Judge Robart. Later that evening, Washington submitted a letter to the district court to that effect, stating that the Attorney General “assume[s] the district court briefing schedule is no longer applicable.” Judge Robart asked the parties to offer their positions whether “additional briefing and possible evidence on a motion for preliminary injunction is no longer required in the district court.”
Despite President Trump’s braggadocio tweet—“SEE YOU IN COURT”—early reports suggested that the administration would not appeal the panel’s decision to the Supreme Court. Presumably, the preference was to return to the district court, where the government could introduce evidence into the record to support the legality of the policy. At least one judge on the Ninth Circuit had other plans. Nearly twenty-four hours after the panel’s decision, Chief Judge Sydney Thomas issued an order: “A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc.” As a result, the parties would be required to submit briefs one week later—at the same time as Judge Robart considered whether he could maintain the case.
It is remarkable that a basic recitation of Washington v. Trump’s posture—which is less than two weeks old—required over 800 words. This fast-developing case has taken countless twists and turns in its infancy, and no doubt there are many curves lying ahead. The purpose of this two-part essay is to study carefully the reasoning in the Ninth Circuit’s panel opinion. Despite its well-meaning intentions, the per curiam opinion is, at bottom, a contrived comedy of errors.
First, the court grossly erred by treating a temporary restraining order—that contained no reasoning—as a preliminary injunction. The panel’s insistence that emergency relief be provided is irreconcilable with its own conclusion that no such emergency exists. Second, the panel offered zero analysis of the underlying statutory scheme, which is exceedingly complex and intricate. While it is true that this approach would not resolve all claims, as Justice Jackson reminded us six decades ago, the conjunction or disjunction between Congress and the Presidency informs the exactness of judicial review. This timeless lesson was apparently lost on the panel, which, third, applied the strictest of scrutiny to assess whether the executive order was justified based on “a real risk” rather than alternative facts. In a second part, which will be published tomorrow, I focus on two more grounds on which the panel erred.
Personal sentiments about this egregious order should not shade a candid assessment of precedent and constitutional law. This opinion, which enjoins a policy I personally find deeply regrettable, is itself deeply regrettable.
Discarding Neutral Principles of Appellate Review
As a general matter, temporary restraining orders cannot be appealed, outside of a writ of mandamus. Appellate review was not proper here. Washington sought a temporary restraining order. From the bench, Judge Robart called his decision a temporary restraining order. The written opinion was styled as temporary restraining order. Moments after oral arguments concluded, the judgment was issued. The seven-page decision, which offered zero analysis, in no way resembled the sort of reasoned decision-making that attends a preliminary injunction. Rather, it screams of a hasty decision that attempts to maintain the status quo until further proceedings can be held. Despite the fact that the order lacked an expiration date, the district court established a schedule to move on to a preliminary injunction. It is certainly true that the federal government implored the court to allow the appeal. (The wisdom of this strategy is subject to debate). But, the Ninth Circuit did not need to agree; indeed, this may be the only point of law where the Trump Administration prevailed!
A colloquy during the oral arguments illustrates the panel’s eagerness to prematurely reach these difficult constitutional questions, in the absence of a balanced evidentiary record. At the outset of his argument, Washington Solicitor General Noah Purcell stated that “Defendants have pursued the wrong remedy by seeking a stay in this court, rather than mandamus.” (30:29). He was right. Judge Clifton interjected: “Why should we care?” (31:14). The judge seemed undeterred by how everyone, save the scrambling Justice Department, understood Judge Robart’s decision. “You’re basically saying we shouldn’t look at it,” he told Purcell. “It’s hard to imagine an order this sweeping that shouldn’t be subject to some kind of appellate oversight,” he continued. “Why shouldn’t we view this as an injunction?” Purcell candidly explained that if the court considers this appeal, then the district court would not “have an opportunity to enter a more full preliminary injunction.” (32:25). Rather, the panel’s ruling would become the “ultimate” decision.
Discarding neutral principles of appellate review, the court prematurely reached profound questions about the constitutional rights of aliens abroad, without the benefit of an evidentiary hearing—a hearing that Judge Robart would have soon held. “We are satisfied that in the extraordinary circumstances of this case,” the per curiam opinion explained, “the district court’s order possesses the qualities of an appealable preliminary injunction.” True enough, the temporary restraining order was contested by both parties, and there was no expiration date on the order. Under the circuit’s precedents, these are factors to be considered. But, based on the tenor of the decision, neither was dispositive. What was the underlying reason for this decision? In a line that must have taken some chutzpah to write, the panel placed its imprimatur on the government’s argument that “emergency relief is necessary to support [the government’s] efforts to prevent terrorism.” If indeed the government’s immediate need to prevent terrorism was credible—every other sentence in the opinion dripped with skepticism of this proposition—then the stay should have been granted! However, if the government’s urgent interest was unsubstantiated, then emergency relief was not appropriate, and a one-page denial of mandamus would have been the appropriate remedy. Were this case ever to be appealed to the Supreme Court, the Justices should vacate the panel opinion due to a lack of jurisdiction.
“[D]id not bother to even cite the statute.”
The morning after Washington v. Trump was decided, apparently while watching Morning Joe, President Trump tweeted:
LAWFARE: "Remarkably, in the entire opinion, the panel did not bother even to cite this (the) statute." A disgraceful decision!— Donald J. Trump (@realDonaldTrump) February 10, 2017