Reflections of a Boston Lawyer

Today I saw a video of young White House minion Stephen Miller suggesting that, by staying the enforcement of the Administration's travel ban, the federal district court in Washington state and the court of appeals for the Ninth Circuit were acting as if the judicial branch is superior to the executive branch. Such conduct, he suggested, is inconsistent with the notion that the three branches of government are equal. I hope that Mr. Miller did not mean to imply that courts are not supposed to block laws (including executive orders) that they find to be unconstitutional. If that is what he meant, then he was spewing what may be the most brash and dangerous propaganda I have ever heard. The notion that the courts are not empowered to review laws and executive orders when their constitutionality is called into question challenges the very core of our system of government. Miller was right about one thing: the branches of government are co-equal. But he was wrong to suggest that th

We live in reactionary times. For the past eight years, the reaction of the Republican leaders in Congress to any act or proposal of the Democratic President was to oppose it, regardless of its merit. That was the odious strategy of the current Senate majority leader from the first day of the Obama Presidency. Now that a Republican is President, the Democrats are mirroring the Republicans' bad behavior. They are opposing President Trump and the Republican Congress at every turn. This may be a false equivalency. After all, the positions of the Democratic opposition are based on principle as much as politics. Democrats oppose the immigration ban not just because a Republican came up with it, but also because they believe it to be wrong. They opposed the appointment of Betsy DeVos to head the Department of Education not just because she was nominated by a Republican, but also because they viewed her as unfit for the task (a judgment with which two Republican Senators agreed). They o

Here is a quick summary of key points from last night's decision of the United States Court of Appeals for the Ninth Circuit and a few observations of my own: Because a of its limited and temporary nature, a temporary restraining order is not ordinarily appealable. Preliminary injunctions, on the other hand, which often follow temporary restraining orders and are generally based on more substantive proceedings and remain in effect for a much longer period of time, are appealable. The Government argued that, because the district court's order was only a TRO, the 9th Circuit had no jurisdiction to hear the appeal. The court rejected the Government's argument, holding that, because the order would not expire in the required 14 days it could be treated as a preliminary injunction, especially given the extraordinary circumstances of the case. The constitutional doctrine of standing exists to ensure that federal courts only hear "cases and controversies," as specif

A few quick thoughts and predictions after listening to today's 9th Circuit argument, in no particular order. (Caveat: I have not read the briefs, and I've been wrong before.) This is not a standing case. At the very least, the state has standing to assert the harm to its university. The 9th Circuit panel isn't likely to want to decide this case on standing (although Judge Clifton might). They're going to want to address the merits, either now or after more proceedings in the district court. At one point the DOJ attorney said that the President's order is not reviewable, although he quickly tried to walk that back. Non-reviewability is a losing argument. It both gives the President too much power and tells the court that would be reviewing the order that it lacks the power to do so. Good luck with that one. This is a strange appeal. Early in the argument, the DOJ lawyer said that the government is just asking for a stay pending appeal. Here's what this mean

Yesterday's post by Professor Dorf makes an important point with respect to the Washington case about the Muslim ban. The government may argue that the Executive alone can determine what orders are necessary to protect national security. Professor Dorf points out that there are constitutional limits to the Executive's power to do so. When challenged, the President must show that there is a rational basis for the action being taken. Otherwise, a President could justify anything by invoking the words "national security," as Nixon tried to do during the Viet Nam and Watergate era. Rational basis is a low burden for the government to meet, and would not interfere with much Presidential action, but it is not toothless, as Professor Dorf explains.

This morning I read the Washington federal judge's 7-page order regarding the Muslim ban. (It's always better to go to the source than to rely on second-hand accounts.) It's pretty straightforward but still quite remarkable. To justify the order, the court had to find, among other things, that the states (the State of Minnesota joined the State of Washington in the lawsuit) had shown a likelihood that they would win the case on the merits (i.e., that the executive order is unconstitutional), and that they would be irreparably harmed if the order did not issue. These are standards familiar to all litigators. A temporary restraining order (TRO) is emergency relief that usually stays in place only for a few days until the court can hold a more substantive hearing on a motion for preliminary injunction, which can stay in place for a much longer period, usually until the case goes to trial months or years later. So at the TRO stage, judges tend to focus on the question of wheth