Federal Judge Grants Preliminary Injunction of Executive Order In Virginia

donald_trump_president-elect_portrait_croppedIt appears that the problem with the Internet in Palau resulted in the deletion of the original post on the decision in Virginia.  I did not want to delete any discussion so I am keeping this post.  I am in Guam now with better Internet access.  Virginia federal district court Judge Leonie Brinkema granted a preliminary injunction which requires a higher showing for the challengers. In that sense, this is an obvious victory but it could also be an opportunity for the Trump Administration.  I believe that the Brinkema decision might be the better option for the Administration to appeal given its focus on religious discrimination and its reliance on campaign statements and the bizarre statements of Rudy Giuliani.

I have previously expressed my skepticism over the use of Trump’s campaign statements as a determinative or even substantial element to the interpretation of the executive order.  The opinion states “The evidence in this record focuses on the president’s statements about a ‘Muslim ban’ and the link Giuliani established between those statements and the (executive order) . . . Based on that evidence, at this preliminary (stage) of the litigation, the Court finds that the Commonwealth has established a likelihood of success on the merits.”  That creates a target rich environment for appeal.

Moreover, I consider the religious challenge to face the most significant opposing precedent and textual difficulty.  If that is the case, the Administration could consider fast tracking the appeal to the Fourth Circuit, which is generally more favorable than the Ninth Circuit for the government.  Of course, this could become moot with a rewriting of the order.  I have previously stated that I view this order as poorly written, poorly executed and poorly defended by the Administration.

Brinkema’s statement on limited power is compelling but it does not fully answer the question presented in my view:

Maximum power does not mean absolute power. Every presidential action must still comply with the limits set by Congress’ delegation of power and the constraints of the Constitution, including the Bill of Rights. It is a bedrock principle of this nation’s legal system that “the Constitution ought to be the standard of construction for the laws, and that wherever there is evident opposition, the laws ought to give place to the Constitution.” The Federalist No. 81, at 481 (Alexander Hamilton) (Clinton Rossiter ed., 1999). Defendants have cited no authority for the proposition that Congress can delegate to the president the power to violate the Constitution and its amendments and the Supreme Court has made it clear that even in the context of immigration law, congressional and executive power “is subject to important constitutional limitations.” Zadvidas v. Davis, 533 U.S. 678, 695 (2001).

This is premised on the notion of religious discrimination as driving the motive and affect of the order.  The Administration could respond that there is an equally countervailing danger in the exceeding of judicial authority in this case.  Unlike the Ninth Circuit case, this is not an order with national scope but politically it could be viewed as the best option for a reversal. Legally, however, it still needs to either moot or reverse the Ninth Circuit case.

163 thoughts on “Federal Judge Grants Preliminary Injunction of Executive Order In Virginia”

  1. We need a bill that limits a federal district court’s equity jurisdiction to its geographic boundaries. The same should apply to the circuit where their opinions reach only to the next circuit’s boundary line. Why should the lowest rung of the federal judiciary dictate to the whole country in extraordinary relief like injunctions especially in view of contradictory rulings in other federal districts.

    1. Why is it that the judge who rules an action unconstitutional controls the judge who rules it constitutional?

      When was the first time a District Court Judge ruled a federal action unconstitutional and invalidated it? This seems to be a late twentieth century acquisition of power once thought to be presumptuous.

      How can we claim “equal protection” while the same law has full force and effect in one part of the country, but has been invalidated in another part?

    2. mespo, I’ve sat in cocktail hour conversations w/ DOJ attorneys over the years, heard the same thoughts on geographic boundaries, and always thought it made sense.

      I’m waiting for a Bob Gibson, chin music, 95mph fastball where Trump demands Ginsburg recuse herself for all decisions regarding Trump EO’s. She could take that trip to New Zealand she spoke about while the cases are being heard.

      1. No country in the world let’s a district court judge hold up the entire mechanism of statehood without a prior (not a subsequent) review by an appellate court. Most judges will stay proceedings to allow this here, but not in the “Never In Doubt Ninth.”

  2. The court applied the weakest, most easily passed constitutional test to Trump’s order, and the administration couldn’t even come up with some evidence that he had a rational, non-discriminatory basis for his order?

    That is, or should be, pretty darn embarrassing.

    Fortunately for Trump, he appears to have as little shame as he does supporting evidence.

    1. It should be embarrassing for the DOJ; they were the ones who argued the case, not the President.

  3. Hillary is back on a private insecure server. The company which provides the service is called MonicaOne.

  4. This just in from Cloud 9.

    “Meet me round the corner. In a half an hour.”

    Something is a brew.

  5. These judges want proof of the threat. The Executive need not provide them proof, and they are wrong to demand it.

    In United States v. Reynolds, 345 U.S. 1 (1953), dealing [418 U.S. 683, 711] with a claimant’s demand for evidence in a Tort Claims Act case against the Government, the Court said:

    “It may be possible to satisfy the court, from all the circumstances of the case, that there is a reasonable danger that compulsion of the evidence will expose military matters which, in the interest of national security, should not be divulged. When this is the case, the occasion for the privilege is appropriate, and the court should not jeopardize the security which the privilege is meant to protect by insisting upon an examination of the evidence, even by the judge alone, in chambers.” Id., at 10.

  6. JT, and many sincere establishment people, don’t understand this is a new paradigm. Appealing to a “more conservative” appellate court matters little. Conservatives hate Trump as much as liberals.

    1. You are correct in the fact that conservatives that wish to uphold the constitution do not care much for Mr. Trump, Mr.Bannon or Mr.Flynn.

  7. ‘Sloppily written’ is not the issue – never has been – scapegoat/red herring whatever…. We will be back here in a matter of days with the same result even if/when the EO is written to perfection. Repeat: these Judges are creating for themselves the Power to decide policy based on campaign slogans. This move is an extreme danger and will (at the very least) chill free speech that a campaign slogan embodies. This must be stopped.


  8. I’m wondering if the President has legal authority to retain a private law firm to write and argue the appeal. He shouldn’t trust the DOJ. While he can appoint his own Attorney General and a few top Deputies, 99% of the agency is manned by Obama era liberals. There was a discussion on t.v. as to whether the DOJ deliberately threw the Ninth Circuit case by presenting a weak argument. Some panelists asserted that the DOJ did not intentionally undermine the Administration, but they lost because they sent a weak underling to argue the case. Well, really, what is the difference? In any event, if Trump could hire a top Washington law firm, they’re not going to send in a junior lawyer, they’ll send in their best litigators.

    1. Tin,
      – It was unbelievable when DOJ lawyer came into court unable to answer the judge’s question about the number of arrests of those from the 7 countries.
      That’s not exactly an unexpected, “gotcha” kind of question.

      1. But it is an unexpected. There exists no precedent for the Executive’s need to explain national security decisions to the courts.

        1. Jack…
          – I didn’t know what the outcome of the hearing by Seattle Judge Robart would be.
          But it did seem likely to me that WA. State’s goal was to have the court do exactly that (put the administration in a position where they had to explain and justify national security decisions to the court).
          So I think that going into this, DOJ
          knew, or should have known, that they’d be pressed by the judge defend the travel ban.

          1. The DOJ’s problem in defending the ban was that they lacked the balls to tell the court it had no right to ask for proof of why it was necessary. The only thing the government had to prove was that Congress and the Executive had the constitutional power to do what they did.

      2. Agreed; that’s what led to speculation that DOJ deliberately tanked the case. They said the more senior attorneys were “too busy” so they sent an unprepared, inexperienced rube. Too busy to defend a Presidential order? Yeah, right……

    1. It’s high time for Congress to rewrite the Immigration Act of 1965. The Republican Congress should get to work on a new immigration act which will reduce the number of immigrants overall, and focus on admitting only those with needed skills. Anyone who thinks we need to continue the massive flow of immigration hasn’t been on the freeway lately, nor observed that young adults in many cities, especially on the coasts, are priced out of the housing market. We also need to end the chain-migration system, whereby Silicon Valley can hire one engineer at below-market wages, and then he can sponsor his entire extended family, including elderly parents and grandparents who will be supported by SSI. This benefits the wealthy tech companies, and shifts the costs to the taxpayer. The 1965 Act may have made sense 50 years ago, but at this point it has filled the U.S. with immigrants who will be public charges for generations, and the overburdened taxpayer and environment need some relief.

      1. Well said, now see if you can get those on the coasts to understand the problem, the hordes of black shirts will burn your home down.

      2. Tin,
        -Agreed. The entire immigration system needs to be overhauled, but I don’t know if there will be enough of a consensus
        to get it done.
        There was a massive wave of immigration from the 1880s into the 1920s, when more restrictive quotas were enacted.
        The foreign-born percentage of the American population peaked in the 1920s, then declined for decades.
        The door was swung wide open again in the mid-1960s, and the % of foreign-born Americans now equal or exceeds the peak reached in the 1920s.
        At a certain stage, I think that the “melting pot” ideal starts to look more like a Tower of Babel reality.

  9. Maybe Judge Brinkema needs to read more Dickens and less from the DOJ who seem unable to get out of their own way :

    “It doesn’t take a long time for a man to be struck by lightning,” said Defarge.
    “How long,” demanded madame, composedly, “does it take to make and store the lightning? Tell me.” “How long,” asked Madame Defarge calmly, “does it take to make and store the lightning? Tell me.”
    Defarge raised his head thoughtfully, as if there were something in that too. Defarge looked up thoughtfully, as if there were some sense in what she had said.
    “It does not take a long time,” said madame, “for an earthquake to swallow a town. Eh well! Tell me how long it takes to prepare the earthquake?” “It doesn’t take a long time,” said Madame Defarge, “for an earthquake to destroy a town. Well! Tell me, how long does it take to create an earthquake?”
    “A long time, I suppose,” said Defarge. “A long time, I suppose,” said Defarge.
    “But when it is ready, it takes place, and grinds to pieces everything before it. In the meantime, it is always preparing, though it is not seen or heard. That is your consolation. Keep it.” “But when it is ready, it takes place and destroys everything in its path. In the meantime, it is always growing, although no one sees or hears it. Take comfort in that.”
    She tied a knot with flashing eyes, as if it throttled a foe. She tied a coin into a knot with a fierce look in her eyes, as if she were strangling an enemy.
    “I tell thee,” said madame, extending her right hand, for emphasis, “that although it is a long time on the road, it is on the road and coming. I tell thee it never retreats, and never stops. I tell thee it is always advancing. Look around and consider the lives of all the world that we know, consider the faces of all the world that we know, consider the rage and discontent to which the Jacquerie addresses itself with more and more of certainty every hour. Can such things last? Bah! I mock you.” “I tell you,” said Madame Defarge, reaching out her right hand for emphasis, “ that although it is taking a long time, it is on its way. I tell you that revenge never turns back and never stops. I tell you that it is always moving forward. Look around and think about the lives of all the people we know. Consider the faces, the rage and unhappiness, that the group of Jacques comes closer to addressing every hour. Can such things last? Bah! You’re being ridiculous.”

    ~Charles Dickens, A Tale of Two Cities.

  10. How are refugees more dangerous than returning US military with “PTSD”? Let’s screen out, detain, and protect US citizens from those who are predictably the most dangerous, no matter their country of origin, religion, or skin shade.

    1. Hey Dogman, every time you submit a post I think it becomes clear who the nation needs protection from and it’s not from the kids in our military.

        1. Oh poor me those “Racist”, “white supremacist”, I need protection, Whoa is me.

    2. Oh my God, Doglover, did you just compare returning military with terrorists? After WWII, I believe most of our returning soldiers were suffering from some form of PTSD or shell shock. Our citizens who serve deserve our respect, gratitude, and all of our efforts to cure their ills when they return. When someone lays their life on the line for you, leaving their family behind to miss birthdays, first steps, first days of school to go risk his or her life in some desert, you say, “Thank you. How may I be of service?” You do not compare them with terrorists who want to kill us because of religion.

        1. The airport shooter arrived at the FBI claiming that voices in his head made him watch ISIS. He may have also had PTSD, but PTSD does not give you voices in your head. That sounds more like schizophrenia. PTSD can lead to depression, the breakdown of relationships, and an increased probability of suicide. It may also lead to alcohol and drug abuse.

          Here is an interesting article detailing the results of a study following veterans and incarceration rates and violence.


          “Several studies and data from the U.S. Bureau of Justice Statistics show no evidence that military veterans — including those who witnessed or waged combat in Iraq and Afghanistan — are more prone to lethal violence than the general population.

          The specter of the “wacko” war veteran waiting to explode — built up over generations in movies and, according to some critics, in news coverage of crimes involving military vets — very rarely becomes reality, experts said.

          “Combat veterans, on the whole, are not going to be lethally violent,” said Shoba Sreenivasan, a University of Southern California psychology professor who was the lead author of a 2013 paper examining the topic.

          She noted that a small segment of combat veterans may be triggered to commit violence because of their battle experiences. These individuals often have mental or emotional issues other than war-related post-traumatic stress disorder.

          The incarceration rate for veterans is lower than for non-veterans, according to the Bureau of Justice Statistics.”

          Give me a vet any day over a regular citizen.

  11. We need an Executive Order on vetting of those seeking entry. This includes all those who were here before excepting U.S. Citizens born here. Green cards and all that stuff will be redone. The vetting will include an interview held by three judges to determine acceptability. The judges will not be lawyer type judges but a national security CIA person, a person who understands fatith or religion, and a gypsy who can read minds. The interview will be done with a lie detector machine attached to the applicant’s forehead. All will be recorded. If rejected the applicant can appeal to this Judge in Virginia and it will be on her head if she lets in a terrorist.

    1. Jack, we already have this. They have a close eye on potential radicals, both foreign and domestic. Both CIA and FBI reports indicate they were tracking the 9/11 hijackers. Surveillance is being done everywhere, even illegally as we now know from Snowden and Manning, if necessary.

      The hard part is to know who the good and bad guys really are and more important who they are trying to influence to do the actual terrorism, and if you don’t think governments create false flag events, you haven’t read your history.

      I still think we need to stick to our basic foundation of liberty and the protection of individual rights or we end up going into a lockdown mode under fascism like a number of other countries have in the past. Our founders had some very good sentiments about this with statements like “if your are willing to give up liberty in exchange for security, you will end up with neither.”

      I think unjust restrictions based on nationality, race or religion are a really bad idea.

  12. She relies on out of court statements made prior to the election victory and prior to the Executive Order. She relies on Guiliani but not all of what that dork said.
    I don’t know if the administration rebutted anything.
    First things first. The judge needs to be impeached. Further than that she needs to be restricted to doing divorces when she is back in the practice of law.
    Second, Trump should reissue a series of Executive Orders on the subject matter. There should be explicit language that it bans all Jews, Christians, Athiests, Hindus, Coptics, Muslims, or any person who believes in killing other humans outside of war. All entrants must acknowledge and give fidelity to the Sixth Commandment: Thou Shalt Not Kill.

  13. I keep thinking how President Trump so easily leads these lamestream media types around by their tweets and then drops them looking stupid. They, and the Judges, struggle under a delusion of being in charge or something.

    Looks to me like he’s using them to keep a fire lit and a fast track open for the main issue which is cleaning up immigration. That of course requires a lot judicial commentary in the end at the highest level which now looks like AFTER the new Justice is sworn in.

    I believe he’s a lot smarter than the cheap suit ham’n’egger crowd who keep talking about some ‘rules’ or something.Where the left is concerned remember to quote one of their heros you can’t make an omelette withour breaking eggs – but mind the smell of sulphur when drop the likes of the NYT and Shumer on the ground.

    1. Yeah, that’s what he’s doing. He’s a smart one. Or, DDT could simply be the buffoon and idiot he has presented since day one. DDT was born into wealth and privilege. He screwed up and went bankrupt a half dozen times; each time screwing the workers to whom he owed money. His main claim to fame is riding a financial resurgence in New York City by pandering to the mega wealthy. DDT is the opposite of the self made man-his greatest lie.

      DDT has shown that he is a megalomaniac, narcissist, pathological liar, and carnival barker; nothing more. But, hey, keep singing his praises. We’ll archive them and play them back for you.

      1. A Goldman Sachs “‘Foreclosure King”’ Is officially running Trump’s Treasury Department.

          1. If he’s explained it, I’ve missed it. I’ve always been puzzled by the “DDT”.

        1. Dispicable/Deplorable/Disgusting Donald Trump-take your pick of the first name. When it comes right down to it, DDT is America’s shame. He represents the system that presented himself as the ‘only one’ who could change things and then he not only appointed the same old types and worse, but DDT has no idea what he is doing. He is learning as he goes, on our nickel.

          1. issac – you and all the other socialist minions are following Alinksy’s Rules for Radicals. At least you could have an original thought,

      1. anon – from what Trump said the other day, he is planning on spending 8 years in office.

          1. DDT says that the only problem is the White House leaks. In other words, Flynn got caught because he is an egotistical idiot who can’t keep his mouth shut; like someone. Also this is all about Clinton trying to take the focus off of her stuff. And stay tuned for more excuses for simple incompetence.

      2. That’s some solid info must be the same person who told you Hilly Clinton would be the next president.
        It must be real demoralizing to be wrong all the time.

        1. Hardly the case….The FBI did not want her and the CIA does not particularly care for Trump.

        2. Glenn Greenwald ‏@ggreenwald 2h2 hours ago

          Yes. Flynn’s firing sin was not lying to the public: high officials do that constantly; that’s encouraged. It was lying to Pence.

          1. I might agree with that but did the CIA break the law?:

            “Make no mistake, we have just witnessed an operation by members of the CIA to take out a high official of our own government. An agency that is widely believed to have brought down democratically elected governments overseas is now practicing the same dark arts in domestic American politics.”


            1. My head is spinning with the swiftness of the coup against General Flynn.

              All of this happened because factual information about Hillary Clinton’s bad acts were exposed. Instead of taking responsibility, they are pretending that Russia hacked the election. Russia has always spied on us, and we have always spied on them. That was the very reason why HRC using her Blackberry in nations known for spying was so absurd, as well as keeping her own illegal server, uploading it to the Cloud, and wiping it clean with Bleach Bit while under subpoena. (By the way, I got those screen cleaning cloths with “Like a Cloth or Something” from Bleach Bit. Awesome Christmas stocking stuffers. She was the best marking campaign that company could ever hope to get. Now we all known now even God can get the data after Bleach Bit.)

              Yes, General Flynn should have revealed all of his conversation. Yes, it seems likely that the ambassador would have asked him about the sanctions, and it sounds like Flynn was vague and diplomatic in his answers. But he didn’t promise anything. This was definitely a revenge coup. And, yes, protocol mistakes can get you in very hot water in government, intelligence, or the military.

              1. Wasn’t that swift. Apparently,Trump knew about Flynn’s problems for weeks. Better to tell the truth the first time than be mired in lies and chaos.

            2. And I’m wondering if people noticed that General Flynn’s conversation with the Russian ambassador was revealed because the CIA wiretapped it. They were spying on the Russian Ambassador and revealed that information to the world. As we have been doing with reciprocity since the inception of our country. And yet there was such pearl clutching existential crisis when the allegation was made that the Russians may have helped reveal embarrassing information on HRC. Yeah, that’s why you don’t use “password” as your password, Podesta, or use your own private server in your basement where all the cleaning staff has access, back it up to the Cloud where all the IT people have access to it with no clearance whatsoever, and then wipe it clean and lie about it. Nor do you negligently use your easily hacked Blackberry in countries infamous for cyber attacks, HRC.

              It’s not just pesky rules. It’s because we live in a world where nations spy on each other, hackers hack, and chaos is always just a phishing experiment away. NOW do they understand the brouhaha over the Server Gate, or do they still not connect those dots?

              1. Karen,
                You’re using reason and logic to arrive at your conclusion. Not only are the dots not getting connected, they are not even on their radar

      3. Yes there will be a President Pence after President Trump completes his successful 8 year term.

      4. “…free this country from the scourge of Roe v. Wade…,” your future POTUS Mike Pence. Is this the POTUS for which you pine?

  14. Although the TRO literally opens the door for greater risk to our national security, the Lefties may actually being doing conservatives a huge favor. No, I’m not talking about the obvious repercussions the Democratic party will take from the electorate that put Trump in office, kept Republicans in control of the House and Senate, controlling the governorships and state legislatures; not to mention SCOTUS nominees and the federal bench. That’s a given. I’m talking about them expending an enormous amount of political capital to unwind the “uber” presidency THEY created and ultimately the administrative state they’ve built over the last 100 years.

    By challenging every move he makes, they will expose the entire administrative state to constitutional scrutiny by the courts. We’ll have national discussions regarding the power delegated to the executive branch and the courts will effectively give back to the legislative branch power they let slip away. Ironically, one of greatest outcomes from the progressives using states to challenge President Trump at every turn will be the very real possibility that the states will be able to take back powers never granted to the federal government. Dept. of Ed. gone. Obamacare, gone. and on and on. Trump won’t need to eliminate this massive bureaucracy, he’ll nudge progressives to do it for him.

    Nicely done!

    1. Olly, imagine pissing off your nominee to the Supreme Court to the appoint he’d be critical of you before he’s even confirmed.

      I don’t know that relying on Trumpisms on the campaign trail tips the scales enough to get a preliminary injunction, but along with absolutely no evidence produced in opposition other than an autocratic general assertions, I can see why the injunction was granted.

      1. “imagine pissing off your nominee to the Supreme Court to the appoint he’d be critical of you before he’s even confirmed.”

        No doubt and a brilliant move at that. As a conservative, I was concerned Trump’s ego would have him abusing the power of the office and continuing the legacy of the last president’s disdain for the separation of powers. I don’t have those concerns any longer.

        Until Obama’s presidency, civically speaking, the United States was a sleepy little country with limited knowledge of our founding history. Obama managed to wake this country up and people actually learned enough civics to move political power to the right. Obama’s legacy will ultimately end up being a fundamental transformation of this country, just not the transformation he had “hoped” for. His ego wasn’t to be satisfied by merely being a progressive place-holder for the next one (Hillary Clinton). No, he had to go and try to finish it off and by doing so the American people were pushed too far and too fast. He gave us Donald Trump.

        With less than one month in office, Trump has accomplished what no other Republican could have hoped to do. He has managed to get the big government progressives to force the courts to begin to unwind the big government progressives “uber” presidency. What’s more, conservatives will have a majority on the Supreme Court so they will have the opportunity to reestablish the separation of powers AND federalism.

        I say keep the challenges coming!

        1. Great post, Olly.

          Of course, the second there is a Liberal in office again, I expect mission creep to start back up. It was so lucky we had someone from the somewhat Right in office to finally explain to Liberals why an uber Presidency was bad.

          Let’s hope we get the tax-and-spend addiction into rehab.

          1. Thank you Karen. At this rate the Republicans could sit back and simply lend a helping hand to their esteemed colleagues on the other side of the aisle as they seek to defund Trump’s inherited bureaucracy. It would be poetic justice for Trump to employ Sunstein’s “Nudge” theory to chip away at our bloated administrative state.


    2. Olly, I agree with you on this. The tide might be turning. I hope so. We just need to be careful with what rights we are still willing to acquiesce for the public good, especially at the Federal level. Too much public policy is generated to benefit special interest at the majorities expense and our Republican brethren are also notorious for this through corporate welfare and regulation. The redistribution of wealth is still taxing and spending however you do it.

      1. I certainly agree HSK. The risk has always been that the pendulum would swing too far the other way, but that was when progressives were merely changing the party in power. This time however it seems different. They’ve (progressives) overplayed their hand and the American people are now engaged in a passive civil war. With apologies to Abraham Lincoln, his house divided speech would suit this current struggle:

        “We are now far into the “first month”, since “the Trump era” was initiated, with the avowed object, and confident promise, of putting an end to progressivism.

        Under the operation of “this administration’s policies”, that agitation has not only, not ceased, but has constantly augmented.

        In my opinion, it will not cease, until a crisis shall have been reached, and passed.

        “A house divided against itself cannot stand.”

        I believe this government cannot endure, permanently half “progressive” and half free.

        I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided.

        It will become all one thing or all the other.

        Either the opponents of “progressivism”, will arrest the further spread of it, and place it where the public mind shall rest in the belief that it is in the course of ultimate extinction; or its advocates will push it forward, till it shall become alike lawful in all the States, old as well as new — North as well as South.”

      1. I’m sure you would. The last thing I need is to go through life in a fog, become dead inside and join the Democrat or Republican parties. No thanks. 😉

    1. Please don’t misquote Professor Turley by quoting only part of his sentence. He said [the judge’s] “reliance on such things as Trump’s campaign statements create a particular vulnerability in the opinion.”

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