Ninth Circuit Briefing Completed Today For Ruling On Trump Appeal

200px-US-CourtOfAppeals-9thCircuit-Seal.svgdepartment-of-justice-logo1 The United States Court of Appeals for the Ninth Circuit will have a completed record for its review of the lower court’s stay of the Trump immigration executive order this afternoon. While much has been made of the court declined to issue an immediate stay of the lower court under the earlier emergency motion, the decision was very predictable. The Court instead ordered for an expedited response from the states of Washington and Minnesota. That argument is complete today. What remains is a relatively rare procedural process in seeking to review a temporary restraining order (TRO) before the issuance of a written opinion, let alone a permanent injunction.

In its opposition filing, the two states warn that “President Trump unleashed chaos by signing the Executive Order” and that a stay would produce similar chaos if ordered the the Ninth Circuit.

Notably, in the filing on behalf of law professors against the executive order, they emphasize a difference between the First Circuit (where a Boston trial judge rejected the challenge) and the Ninth Circuit: “Unlike the First Circuit, the Ninth Circuit has never placed special emphasis on the ‘likelihood of success’ factor, resulting in a different legal standard here than was applied in the Massachusetts case. . . .Here, the District Court judge correctly relied on Ninth Circuit precedents that consider all four factors using a sliding scale.”  The professors however also go all in on the argument that this ban should be viewed as an anti-Muslim ban:

Here, there is substantial evidence that the ban was motivated by animus against Muslims. For example, on January 28, 2017, a week after the inauguration, Former New York City Mayor Rudy Giuliani stated in an interview that President Trump had previously asked him about legally implementing a “Muslim ban.” Indeed, for nearly a year preceding the election, President Trump’s campaign website referred to a “Muslim ban,” indicating discriminatory intent.9 The evidence that there was no bona fide reason for the ban will be developed further through discovery.

I will not repeat the reasons for why I do not understand how a court can rely on such statements in its analysis, but I do not view that as a winning argument.

The challenger of a TRO is in a difficult position in seeking this type of appeal of a TRO.  The vast majority of such orders are rejected in a summary fashion.  Appellate courts want to see a record and a final decision.  Even when treated as a preliminary injunction, appellate courts are leery of an interlocutory action without a full record.  Here Judge Robart states at the end of his order that  “the court can hear and decide the States’ request for a preliminary injunction” and could hold a hearing within 15 days.

Now on appeal, the tough standard faced by the two states in securing a TRO is flipped so that the Administration must show  (1) a strong likelihood of success on the merits, (2) the likelihood of irreparable injury if relief is not granted, (3) a balance of hardships favoring Defendants, and (4) that reinstating the Executive Order is in the public interest.  It is possible to do so. I still believe that the weight of existing precedent favors the Administration and that the district court is vulnerable on standing issues.  Judge Robart’s stated skepticism over the basis for the national security determination is equally challengeable — federal judges tend to resist substituting their own judgment for that of a president on border issues.  On the second criteria, the Administration has a national security determination of potential irreparable harm that, again, could be difficult to challenge.  The third criteria also favors executive decision making.  The Trump Administration is arguing that the national security is at risk. That is a weighty finding to balance against a suspension of entry pending new procedures measures.  Finally, the last criteria can be somewhat redundant in this type of case since, unless the court will substitute its judgment for the risk posed by such entries, it is by definition an assertion of the public interest for a president to suspend entries due to the perceived national security risk.

As I have previously said, I was highly skeptical about this order and its curious list of included (and excluded) countries.  I have been critical of the order in both its poor drafting and incredibly poor rollout.  However, the legal issue is narrower and tends to be more deferential to presidents. Of course, the trial court is entitled to its own deference on factual findings, particularly on the appeal of a TRO.  Moreover, since the court did not issue a full written opinion, there remains uncertainty on the specific grounds for the TRO.

 

With the completion of the filings today, the Ninth Circuit could rule or call for an oral argument.  If it denies the motion, the Administration could seek a full court, en banc hearing or proceed to the eight-justice Supreme Court.

87 thoughts on “Ninth Circuit Briefing Completed Today For Ruling On Trump Appeal”

  1. @IndyBob-Hell Bob I still believe John Wayne and Anthony Quinn are going “Back To Bataan”.

  2. You get up in the morning and you go to work or you run your little business, how the hell is this rocket science? You figure out how you are going to make your life better.

  3. this policy has NO evidence to support it. The problem for the us as it is down under is home grown terrorists who get indoctrinated by ISIS, Policy idiocy like this plays directly into their hands.

    1. I don’t know, if I were a terrorist, I’d be worried about playing into Trump’s hand.

      1. Vinegart

        “The CIA is responsible for orchestrating international terrorism and untold atrocities. How does Trump plan on the CIA “ending” Islamic terrorism when it is the institution he “loves and respects” is the institution that foments and continues to spread this “fear and havoc”? — Larry Chin

        1. I am not aware of any 911-like atrocities committed by the CIA, nevermind shooting up night clubs, using semi trucks to drive over children and pedestrians, executing co-workers, or any acts of violence against unarmed civilians. Any retaliation on the part of the CIA since 911, the Islamic extremists have brought upon themselves.

    2. Sooo,

      1) ISIS itself tells us they are coming here, sometimes disguised as refugees;
      2) The CIA tells us that ISIS is sending their people here under the guise of being refugees; and
      3) We see ISIS sneaking into Europe as refugees, and murdering people.

      And you, being the Einstein that you are, say that there is no evidence it will happen here, or even could happen here???

      As far as I know, there have not yet been any violent Big Truck attacks here in the U.S. either, yet we park garbage trucks and concrete mixers along routes where a lot of people gather just in case. Do you think that is foolish also? Do you think it is a smart thing to do, to not prepare for what is happening elsewhere???

      Squeeky Fromm
      Girl Reporter

      1. He’s from the “you can’t lock your doors at night until
        youre actually murdered” crowd because, after all, there’s no evidence the killer will be successful. Once you understand that insanity, you understand the “logic” of the Left.

      2. Squeeky –

        “there are only two countries in the world with hegemonic aspirations—Israel and the US—and they are the sources of terrorism. Israel terrorizes Palestinians and has done so for about 70 years. The US terrorizes the rest of the world.” — Paul Craig Roberts (know who HE is?)

        1. Sooo, even if true, what does that have to do with anything??? I haven’t noticed U.S. or Mossad intentionally driving big trucks into crowds of people during holidays. When we do kill civilians, it is usually when they are around bad guys. Or running illegal aspirin factories.

          Plus, we usually pay the wergild when we have collateral damage.

          Squeeky Fromm
          Girl Reporter

          1. Wow, Squeeky.

            Do you know what false flag operations are? You could at least try to rationalize U.S. and Israeli operations as being somehow justified. Good luck trying.

                  1. Bill,
                    I have seen Roberts’ name surface from time to time in conspiracy theories…..I think Roberts also thinks the Orlandovshooting was a “false flag” operation, in addition to his 9-11 Trurher beliefs, and his doubts about whether the Sandy Hook school shootings actuallyvhappened.
                    He has a small but fanatical following by those who are wedded to conspiracy theories.

              1. “The ignorant lunatic fringe will say anything.”

                Whew! For a second there I thought you might not own a mirror.

                1. As I said: “the ignorant lunatic fringe will say anything” For a second there I thought you might disagree.

          2. Here’s a book you should read since you imply lack of knowledge about Mossad operations. You also need to become more critical of MSM. Didn’t anyone tell you that they lie? You shouldn’t expect Rachel Maddow, or any other corporate media source to tell you about deep political events.

            Here’s the book: Every Spy a Prince: The Complete History of Israel’s Intelligence Community

        2. @bill-So when President Trump told Bill O during his interview that “we do bad things too” according to Prof Roberts he was right? If so why are the Dems jumping all over him for saying that.

            1. Squeek, I do enjoy you ripping them new eyeholes. I’m hoping when the time comes for re-election the 10 Dems up get sent down the road talking to themselves. I know the people I talk to have had enough of their dog spit and want them to back off.

        3. bill mcwilliams – do you really think Canada is terrorized by the US? Really think about that.

            1. @bill-We are off topic here but you asked me if I know anyone who feels the same as I, well yes friends, family and couple folks who were in countries under communist rule. I’m going to take a shot that I’m a bit older then you and the changes over the years in this country have in my opinion been socialist and Marxist. You know “fair share” “redistribution of wealth”, fair share to me is get the best job you can, work hard, save, invest when possible. If you think your not being paid well enough move on train, educate and find your place in life. As far as redistribution of wealth, I don’t want any of your wealth and I sure as hell don’t want to give you any of mine.

              You mentioned “false flag operations” a couple times could you please be specific and point out a few of them? Please don’t tell me 9/11. I would very much like to know where these actions took place. Thanks in advance.

              1. Great Z man –

                You really need a lot of catching up. Do some research. Might help you stop looking so foolish/naive.

                1. I’m foolish? You can’t give me any examples for your claim and spin to tell me “do some research” what to support your claim? You allude to the US and Israel “false flag ops”, I ask where,
                  A=”GZ your foolish.”
                  Next you’ll tell me Putin was seen on the Patriots bench letting air out of Brady’s footballs.

            2. bill mcwilliams – the person you quoted said the US terrorized the rest of the world. Canada is part of the rest of the world. Do you think they are terrorized by the US?

              1. Paul – Okay – Canada – maybe not so much. Exceptions only prove the validity of the general rule.
                I’ll bet if you try real hard you might be able to name another country that hasn’t been totally terrorized by the U.S. I’ll be very impressed. Not with your logic, but with your razor sharp ability to find exceptions.
                99% isn’t 100% – so congratulations.

                1. bill mcwilliams – if you make a blanket rule, then any exception disproves the rule.

                  1. Paul – I made the blanket rule that exceptions only prove the validity of the general rule. Have you ever studied logic in your long intellectual career?

                    1. bill mcwilliams – I got an A in my graduate logic class. The exception making the rule is just sloppy thinking.

                1. issac – so … you moved to and became a citizen of the country that terrorized you. Dude, the cold weather did something to your brain. 🙂

          1. Paul – do you really think the U.S. has no influence over the affairs of Canada? are you familiar with Peter Dale Scott? Calling him names/incorrectly describing his views isn’t impressive.

  4. What is a John Yoo? Anyway thanks to the Prof forth the news update. Sooner this is over Phase II can begin and the appointment of the 15 new federal court judges and nuking Shumer and all the fun stuff.

    1. So a guy who says:

      ‘If the President deems that he’s got to torture somebody, including by crushing the testicles of the person’s child, there is no law that can stop him?’, to which Yoo replied ‘No treaty.’ Cassel followed up with ‘Also no law by Congress—that is what you wrote in the August 2002 memo’, to which Yoo replied ‘I think it depends on why the President thinks he needs to do that.’

      Thinks putting a 90 day stop on certain none US citizens from entering the US for the safety of Americans thinks President Trump has gone to far.

  5. I’ll be very surprised if two of the three judges on the panel, Judge Canby – a recognized and empathetic expert on American Indian Law – and Judge Friedland think the statute on which the Executive Order is based passes constitutional muster. It’s about as narrowly-tailored as Lady Gaga’s coochy cutters.

    1. Steve Groen – evidently my wife was lying to me when she said that Lady GaGa was dressed from leg to neck. Evidently the cootch does not count. 😉

      1. The Cootch does not count! 🙂

        BTW, Brady was Superman, Batman and Spiderman all in one yesterday in the best performance I’ve ever seen from a pro quarterback and in the Super Bowl no less. That’s not easy to say because I’ve despised him since my beloved Raiders (I’m from Oakland) lost with a ridiculous tuck ruling in the snow a decade and a half ago. He’s the best yet in the modern era, although he’d have been pretzeled into retirement within a couple of years up through the early ’70s. Those were the days, when men were men and goils was goils.

        1. Steve Groen – Brady did a remarkable job. However, I go back to the great Johnny Unitas of the real Baltimore Colts.

            1. Steve Groen – Unitas was at the beginning of the Super Bowls. However, he was a genius at coming from behind.

  6. The 1% crowd have managed to convince a yuge number of people to support measures that will benefit various special interest groups ( the list is too long to include herein) that naive, gullible middle class Americans will ultimately pay for. Odd, isn’t it, that the only group that has benefited from all of those false flag Muslim-terror acts are the very same group that supports open borders. You’d think that if the 1% actually believed those attacks WEREN’T false flags, they would oppose open borders.

  7. You know I don’t think anyone will deny the threat exist from radical Islam but the greater threat to this nation is from the socialist and Marxist right here at home.

      1. You must thinking about one of the brothers Groucho, Chico, Harpo, Zepo and Obamo.

    1. I’m a leftist. I served 25 years on active duty in the US Navy. I view the EO as in violation of the of the 7 P rule: prior proper planning prevents piss poor performance.

      Besides, the ban singled out a religion (christians) for special treatment. Ergo, the ban is illegal.
      QED

      1. I’m a conservative who spent 20 years in the Navy. I’m a conservative because I like to know what I’m talking about. If I didn’t care what came out of my mouth or I produced from my keyboard I suppose I could have been a leftist.

        It is not illegal to favor one religious group over another. Just as it isn’t illegal to favor one political group over another. When it comes to granting refugee status we give preference to persecuted minorities. Google “Lautenberg Amendment.” Not the foul retroactive domestic violence misdemeanor prohibition on gun ownership. But the one that grants preference to persecuted religious minorities.

        By the way, Obama was the last President who had to reauthorize the Lautenberg Amendment; it’s now a permanent part of our immigration and refugee law. He even expanded it to cover additional persecuted religious groups.

        And then he turned around and lied and said that there is no religious test when it comes to protecting refugees. After reauthorizing the amendment that says there is such test. Knowing he could get away with lying because the left never pays attention. And I saw your comment.

        QED.

      2. U.S. immigration policy singles out refugees for special treatment. Is that illegal, too?

      3. Marco, did you even read the EO? These words do not appear there: ‘Christian’, ‘Muslims’ ‘Islam’ – the only word that does appear in this regard is ‘alien’ – can you at least read it before criticizing it? Oh and 6 of the famous 7 countries are not mentioned there either. Let’s see if you can figure out why not. Oh and neither does the word ‘ban’ so appear – so let me ask you this – for after your read it – if not a ban then what is it?

      4. By that logic, then giving preferential treatment to Jewish refugees during WWII over Nazi Germans would have been illegal. (And I wish we had accepted those refugees.)

        We are legally allowed to give preference to groups of people who are being specially persecuted. If that group is being targeted because of their religion, such as Christians and Yazidi, then that religious group gets preference.

        Religious persecution is a valid consideration for prioritization by US as well as international law. To be fair, then it would also have to apply when a majority, such as Sunni Muslims, persecute a minority such as Shiite.

      1. Brilliant, Squeeky! It’s always fun watching someone throw liberal crap back to their side of the wall, on top of their head.

          1. It’s always easy to set up a straw man and knock him down. Civil discourse requires that both sides momentarily shut down their existing mental structures and listen to the other side empathetically. Sure we have had different experiences, different genetic material, and have different assumptions, but can still agree on many things, given the opportunity.

        1. Vinegart:

          Do you agree that:

          1. A terrorist nation is any nation that is capable of resisting U.S. imperialism?

          2. A liberal is anyone that disagrees with right wing positions?

  8. Trump is going to win this one, because the threat of Islamic extremism is very real. Who, either on the left or the right, actually believes this travel ban would even exist without the terrorism that puts every person in every country in imminent danger of death?

    “Three things cannot long stay hidden. The Sun, the moon, and the truth.” –Buddha

  9. Read the record and the supporting statements that the District Court Judge stated when he issued the TRO that the Plaintiffs were likely to prevail on the Merits.

  10. I don’t care who the President is; if they determine existing policy needs to be reviewed to ensure our national security IS NOT being put at risk then a temporary restriction is reasonable.

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