Skip to main content

Washington v. Trump: The Stay's the Thing

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 means in practice. The President issued an order that would temporarily but immediately stop certain persons from entering the country. The states of Washington and Minnesota sought an order from the district court that temporarily and immediately stopped implementation of the President's order. The Department of Justice is seeking an order from the 9th Circuit that would temporarily and immediately stop the implementation of the district court's order. I don't know if this is unprecedented, but I certainly can't recall ever seeing the likes of it before.
  • Both the DOJ and the states seemed to agree that there should be further proceedings in the district court; their only disagreement concerned what should happen while those proceedings are taking place. Still, the 9th Circuit judges seemed to think that they could short circuit the entire process and rule on the merits without further district court proceedings. I doubt they will do so, but they likely will impose some strict deadlines on the district court.
  • After the hearing, Alan Dershowitz said that the 9th Circuit is not about to stay the district court's order because that would return everything to the chaos that existed before the district court acted. What he didn't consider is that the 9th Circuit could reverse the district court but order that the district court's stay would remain in effect for a limited period of time (say, 30 days) to give the immigration authorities and affected persons time to prepare for the travel ban.
  • Judge Clifton's suggestion that there is no Establishment Clause violation if the ban affects only a small percentage of worldwide Muslims seems off the mark. An intent to harm one Muslim would be enough, assuming that all the other elements of an Establishment Clause violation exist. (Professor Dershowitz thinks those elements are not met, and he may be right.) Noah Purcell's quick answer to Judge Clifton's question on this point was excellent, by the way.
  • Judge Clifton's suggestion to Noah Purcell that they should have had their evidence ready when they filed the complaint seemed unfair. The State had to react swiftly to an emergent situation. It could not reasonably have been expected to have all its evidence together at that time. That's why the rules allow for the issuance of a temporary restraining order when there is a likelihood of immediate irreparable harm, to be followed by a preliminary injunction hearing when both sides have had time to put their cases together.
  • Noah Purcell has a great future ahead of him. The DOJ lawyer might too, but this President isn't likely to wait to find out. Expect a different lawyer to argue for the government after today.
  • Trump (and Bannon) must realize he is in a no-lose situation. If he wins this case in the Supreme Court, his actions will be vindicated, and he can boast of protecting us all from Islamist terrorists. If he loses, and another Muslim commits an act of terror in the U.S. (which is bound to happen in the next four years, though I pray it doesn't), he will blame the courts. He has already prepared his followers for that eventuality in one of his recent tweets. That will show the world (or at least those of a certain bent) that he alone can save us. Either way, he wins.
  • Does anyone else see the irony in the fact that the lead party suing the President is the state named after our first President? You know, the one who admitted to chopping down the cherry tree because he could not tell a lie?

Comments

  1. Michael C. DorfFebruary 8, 2017 at 12:13 AM

    Good analysis! The only place I might disagree is that the federal government has some case law on its side for a no-review position, at least with respect to aliens outside the U.S. who have not previously been here. I think the federal government should lose because I am persuaded by Adam Cox that those precedents are outdated, (see https://www.justsecurity.org/36988/muslim-ban-held-unconstitutional-myth-unconstrained-immigration-power/ ), but the argument is less terrible than it might appear.

    ReplyDelete
  2. matt30February 8, 2017 at 1:48 AM

    I don't know why anyone is listening to Alan Dershowitz. His legal analysis has been consistently bad on both this issue and the Sally Yates issue. He has maintained for weeks on TV that the government case is solid, which is misleading and, frankly, nonsense. Also a TRO can only last a maximum of 20 days and there is nothing in the FRCP that allows appeal of a TRO. The duration is always discretionary and usually lasts until a PI hearing. The Washington Solicitor General is right that the only way to lift the TRO is a writ of mandamus.

    ReplyDelete

Post a Comment

Popular posts from this blog

Eight Simple Words

During my junior year in high school, I sat in the back of our auditorium listening to our drama teacher, Ruth Bair, attempt to persuade a large group of students to try out for the school play.  With me, at least, she was successful.  I auditioned for a part in Archibald MacLeish's "JB," a modern day drama based on the Book of Job.  All I garnered that time was a walk-on part; better roles awaited me my senior year.  But Mrs. Bair's little speech was enough to get me in the game.  And the experience of  performing in the school plays was the highlight of my high school years. What she said that I remember is this:  "If you don't extend yourself, you haven't lived."  Some memory of biology class made me think that this was both literally and figuratively true, though I'm not sure about the literal part, and it's only the figurative that matters to me.  But through the years and decades that followed, whenever I was unsure about participatin
Post a Comment
Read more

"The Upswing" and Our Problem with Masks

 I have begun reading the book "The Upswing" by Robert D. Putnam. In the first chapter, the author calls for balance in two vital yet conflicting characteristics of the American identity. Because these characteristics underlie our great national divide over the wearing of masks in a pandemic, I wanted to post the following insightful passage now: As Tocqueville rightly noted, in order for the American experiment to succeed, personal liberty must be fiercely protected, but also carefully balanced with a commitment to the common good. Individuals' freedom to pursue their own interests holds great promise, but relentlessly exercising that freedom at the expense of others has the power to unravel the very foundations of the society that guarantees it. I believe Mr. Putnam has captured the heart of what is afflicting us at this time of crisis; some Americans' fierce devotion to personal liberty as a supreme virtue, without regard to the collective good. I look forward to
Post a Comment
Read more

Memorial Day 2016

I am not even close to worthy of the sacrifices our men and women in uniform have made to protect my freedoms. Nothing I have done in life begins to hold a candle to their service.  So let me begin by simply saying "thank you" to any of them who may read this post.  My country, my family and I are forever in your debt.  I cannot ever emphasize that enough. Although I never served in the military, I am a patriot.  I deeply love my country and what it stands for.   I proudly served a term as President to a bar association that launched a program to provide free legal advice to military veterans.  I recited the Pledge of Allegiance when I was admitted to the Massachusetts Bar, and repeated it every time I participated in admissions ceremonies for new lawyers.  I get teary-eyed when I think about the lyrics to the Star Spangled Banner as it is being performed and try to imagine the setting in which Francis Scott Key penned them.  My father served in the Army during World War II
Post a Comment
Read more