A Ninth Circuit footnote [With Comment by John] [Updated]

The Ninth Circuit has ruled against the Trump administration’s motion for a stay pending appeal of Judge Robart’s order restraining the Trump administration from enforcing the executive order calling a brief timeout on the admission of refugees from seven designated countries (a/k/a “travel ban”) in the Ninth Circuit just concluded. This can’t be a surprise to anyone who tuned in to the oral argument of the motion. The Ninth Circuit has posted the 29-page order entered by the three-judge Ninth Circuit panel here.

John Hinderaker and Paul Mirengoff have posted their assessments here (John) and here (Paul). David French helpfully walks interested readers through the opinion in his NRO column here. Paul also commends Dan McLaughlin’s quick take on the opinion and Eugene Kontorovich’s critical comment. I want only to add an impressionistic note.

James Piereson gives voice to my thoughts on where to go from here here. Piereson counsels retreat. Retreat would recognize the obstacles faced by the administration at this point. It does not help that some of these obstacles are self-created.

Listening to the oral argument earlier this week and reading the opinion I thought to myself: So much losing I’m tired of losing. If the administration does not reconsider its game plan, there is more in store.

It all happened so fast, starting with the executive order itself. Judge Robart appeared to deliberate over the order for about as long as it takes to brew a cup of coffee. The Ninth Circuit didn’t take much longer. The panel jumps over the jurisdictional issue raised by the government’s appeal in a little over one page and seems to me to get it wrong, but here the error was invited by the Trump administration itself. The panel jumps over the jurisdictional issue to address the legal issues bearing on the merits of the case. They can’t wait.

The jurisdictional issue is not frivolous. No appeal lies from a temporary restraining order. The administration should have taken a deep breath and put its case together for a hearing on the preliminary injunction that the States of Washington and Minnesota seek in the district court. The Ninth Circuit holds that the temporary restraining order is equivalent to an appealable preliminary injunction in this case. The Ninth Circuit eagerly wades into the legal issues raised by the States’ claims.

I pause over footnote 7 at page 27. It captures the animus at the heart of the Court’s opinion, or so it seems to me. The animus results in something like willful stupidity. Here is footnote 7:

Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.

The Ninth Circuit emphasizes that its ruling only denies a stay of the pending appeal. It pretends not to have decided the case on the merits and reserves its ruling on the religious discrimination claim after making noises supporting it. Don’t hold your breath on that one.

So long as the issues are framed as an appeal of Judge Robart’s restraining order, I find it hard to see a path to victory for the Trump administration. I think the administration would be well advised to pull the plug on the executive order itself or to make a substantial record before Judge Robart in further proceedings that would give rise to an appealable order as soon as possible.

JOHN adds: I agree, and will have more to say on this later today if I get time.

UPDATE: A knowledgeable observer writes to add:

Procedurally it’s even worse. The 9th Circuit entered an expedited briefing schedule on the appeal: opening brief from US on 3/3; opposing brief, 3/24; reply 3/29. In the meantime, Washington’s brief (and PI motion, and evidence!) in support of its preliminary injunction motion in the district court was due at midnight. Instead, Washington submitted a letter asserting that in light of the 9th Circuit briefing schedule, it wouldn’t be filing a PI motion after all!

Net, net, I think: there will be no further evidentiary support for the TRO, but DOJ won’t get a real chance to offer any evidence in opposition. Screwed.

Not to put too fine a point on it.

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