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 whether preserving the status quo is truly an emergency that can't wait for the full-blown hearing. Judge Robart found both that the states had shown that they were likely to succeed in proving the unconstitutionality of the order, and that they would suffer irreparable harm without it. Here is what he said on that last point:
Perhaps the most important part of the court's ruling is its conclusion. There, Judge Robart emphasizes the importance of the principle of separation of powers, which creates the checks and balances that prevent one branch of government from becoming too powerful. Judge Robart, a President George W. Bush appointee, appears to subscribe to a conservative view of the limited role of the federal courts. He explains that the federal judiciary does not exist to set policy, which is a function of the legislative and executive branches, but rather to ensure "that the actions taken by the other two branches comport with our country's laws, and more importantly, our Constitution." He goes on to say: "The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government." This judge does not appear to be either a liberal or an activist (though I confess I have not researched his background). Rather, he appears to have a laudably balanced view of the judicial function, one that probably made him an attractive candidate for a federal judgeship when President Bush appointed him. Whatever one thinks of the executive order, that such a judge would take seriously his sworn duty to scrutinize it in the face of a challenge to its constitutionality should be cause for celebration among all Americans, Republicans and Democrats alike.
The Executive Order adversely affects the States' residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States' operations, tax bases and public funds.On this basis, the court entered the TRO, and also applied it nationally, citing a 5th Circuit precedent (the Washington court sits in the 9th Circuit) referring to a "constitutional imperative" that immigration laws be applied uniformly across the country. The order requires the parties to propose a briefing schedule on Monday, February 6th for a later hearing on a motion for preliminary injunction.
Perhaps the most important part of the court's ruling is its conclusion. There, Judge Robart emphasizes the importance of the principle of separation of powers, which creates the checks and balances that prevent one branch of government from becoming too powerful. Judge Robart, a President George W. Bush appointee, appears to subscribe to a conservative view of the limited role of the federal courts. He explains that the federal judiciary does not exist to set policy, which is a function of the legislative and executive branches, but rather to ensure "that the actions taken by the other two branches comport with our country's laws, and more importantly, our Constitution." He goes on to say: "The court concludes that the circumstances brought before it today are such that it must intervene to fulfill its constitutional role in our tripart government." This judge does not appear to be either a liberal or an activist (though I confess I have not researched his background). Rather, he appears to have a laudably balanced view of the judicial function, one that probably made him an attractive candidate for a federal judgeship when President Bush appointed him. Whatever one thinks of the executive order, that such a judge would take seriously his sworn duty to scrutinize it in the face of a challenge to its constitutionality should be cause for celebration among all Americans, Republicans and Democrats alike.
Comments
Post a Comment