ANALYSIS OF THE 9th CIRCUIT RULING IN WASHINGTON V. TRUMP ET AL.

After the recent Ninth Circuit decision upholding the District Court’s Stay of Donald Trump’s Executive Order, I received many calls and emails asking what it all means. Here, then, is my “capsule” analysis.

The State of Washington, joined by Minnesota (collectively the “States”), filed suit in District Court and requested a Stay of the President’s Executive Order (“EO”) until the Court could hear the evidence and decide the case “on the merits.” The Government appealed to the 9^th Circuit Court of Appeals, asking for a Temporary Restraining Order (“TRO”) allowing implementation of the EO while the Court hears the evidence. The purpose of a Temporary Restraining Order (“TRO”) is to protect those who would experience irreparable harm from the Stay. Briefly, there are four factors to be weighed by the court before issuing a Temporary Restraining Order. These include 1) whether there is a likelihood of irreparable harm to one side or the other, with no adequate remedy at law[1], 2) that the balance of harm favors the movant (“Government”), 3) that there is a likelihood of success on the merits, 4) that the public interest favors the granting of the injunction. The Government lost on all counts and the Stay remained in place. Those are the basics but, if you’re interested in more detail, read on.

The 9th Circuit had an option to simply grant or deny the government’s motion to lift the Stay issued by the lower court, but to their credit, chose to issue a 29 page opinion describing their reasons for denying the Government’s request. They first explained that while a Stay, by its nature, is not normally appealable, the Stay issued by the District Court possessed the “qualities of an appealable preliminary injunction.” Thus, the Ninth Circuit retained Jurisdiction[2].

The second issue was whether either side would suffer irreparable harm if the Stay was not lifted. While many were shown to suffer irreparable harm if the Stay were lifted, the Government failed to show any credible evidence that irreparable harm would result, even considering “National Security,” in the time it would take for the District Court to decide about a permanent injunction. Thus, the “Balance of Harm” favored the States.

The third issue the Court had to tackle was whether the States were likely to succeed on the merits of their claim. The trial court felt that they would. The Ninth Circuit reached no decision on the merits, but held that the lower court was reasonable to believe that the states would win on the merits.

Next, the court had to decide whether granting the TRO served the public interest. Just as the decision regarding “harm” was a balancing test, so the court found that the Public Interest was best served with the Stay in place. Ultimately, therefore, the 9^th Circuit held that the government did not meet its burden of proof and consequently denied the TRO.

Finally, the court’s order was issued “Per Curiam”. Rather than listing any one judge as having written the opinion, by issuing it “Per Curiam” they defrayed President Trump’s ability to attack yet another judge. Ultimately, though, the states will still have to prove their case or the EO will be reinstated if not totally, then at least in part.

[1] “No adequate remedy at law” means that simply throwing money at the States or other plaintiffs if they later win will not “make them whole.”

[2] We will leave any discussion of “Standing” for another time.

A TEST FOR EACH GENERATION

January, 1960; newly elected President John F. Kennedy, after a hard-fought campaign, delivered his inaugural address during which he summed up the spirit and ideals of our nation when he said:

“Let the word go forth from this time and place, to friend and foe alike, that the torch has been passed to a new generation of Americans, born in this century, tempered by war, disciplined by a hard and bitter peace, proud of our ancient heritage, and unwilling to witness or permit the slow undoing of those human rights to which this nation has always been committed, and to which we are committed today at home and around the world. Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.”

Each new generation of Americans is tested. For our grandparents, it was escaping the horrors of Europe, and coming to a country with a different language, culture, and way of living. Most came to this country with only the clothes on their back and a strong desire that their children’s lives would be better than theirs. For our parents, it was the rise of fascism in Europe, World War II and the need to sacrifice millions of lives to preserve our way of life, followed by a long Cold War that periodically turned hot. For my own generation, it was the civil rights movement, the anti-Vietnam war movement, and a commitment to live in a world that was decreasingly dependent upon war, personal wealth, and religion.

Now it is the turn of our children’s generation. You must fight to keep the hard-won freedoms handed to you by previous generations, relentlessly oppose the creep of authoritarianism, step back from the division of partisan politics, and once more unite our nation so that it again becomes that “shining beacon on a hill” to which billions around our planet have aspired. We now hand our nation and the world over to you. Treat it, and each other with love, kindness, generosity and respect. Aspire to Truth, Knowledge, and Justice. Reach for the stars, and when it is time to hand the world to your children, hand them a better world and encourage them to do the same.