Late last Friday afternoon (3rd February 2017) Judge Robart, a Federal District Judge in the State of Washington sitting in Seattle granted the States of Washington and Minnesota a temporary restraining order in relation to President Trump’s executive order banning the entry into the United States for 90 days of people from seven named countries in the Muslim world.
The Ninth Circuit Court of Appeals has helpfully opened a website on which documents relevant to the appeal can be seen. This includes Judge Robart’s order and a video clip of the entire hearing.
In short, Judge Robart applied a four-stage test: that the plaintiffs’ substantive application was likely to succeed on the merits: that they were likely to suffer irreparable harm in the absence of preliminary relief; that the balance of equity tipped in their favour; and that the granting of the order was in the public interest. He also applied a slightly different test, with the same outcome.
I have been told by a well-informed local observer, who does not know the judge, that he has an excellent reputation as a hard-working, conscientious, bright and even-handed judge.
When this order came to the attention of President Trump, he tweeted:
“The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned.”
Students of US history will recall that President Lincoln once called Chief Justice Roger Taney a liar and a traitor and President Franklin Roosevelt described half the members of the US Supreme Court as “senile old men”, so that President Trump’s recent effusion is not entirely new in US history. In my recent blog entitled United States Presidents and Habeas Corpus I described a few episodes when American Presidents, including these two, have not been altogether happy with the rulings of federal courts.
The Federal Courts of Washington are located in the Ninth Circuit, and the Government immediately filed an appeal with the Ninth Circuit Court of Appeals, together with an emergency motion for a stay of Judge Robart’s order pending appeal.
Not content with that they applied to the court for an immediate administrative stay of the order pending the full consideration of its emergency motion.
Two judges of the Court of Appeals have now rejected that application, while ordering that the plaintiffs file their opposition to the emergency motion by midnight (Pacific Standard Time – PST) tonight (Sunday 5th February, and the Government file its reply by 3 pm tomorrow (Monday).
This timetable shows how rapidly the US Courts can move if the occasion warrants it. Indeed, I am told that depending on the urgency a case (like the appeal against the Temporary Restraining Order) can reach the Appeals Court within hours, days or weeks. We shall see what happens on this occasion.
In another blog I will write about the nationwide jurisdiction of US Federal Courts, exercised on rare occasions, and about what happens if the courts in two different states make conflicting orders or when the US Supreme Court is divided 4-4.