Are You Feeling that Injunctive Relief?


As I write on the evening of February 14, and of the Trump Administration the fourteenth day, there appear to be 19 lawsuits challenging his executive order on immigration. They may be tracked here.

Interestingly, speaking of canines that remain silent during the evening, whoever is responsible for the U.S. Justice Department web site knows bupkus of these developments.

But I digress.

Of the 19 lawsuits, most eyes are on State of Washington v. Trump (W.D. Wash.), in which so-called District Judge James L. Robart, who was appointed by so-called President George W. Bush, has issued a temporary restraining order that has resulted in the government’s going back to square one.

Responding with its customary moderation and precision, the White House said, “”At the earliest possible time, the Department of Justice intends to file an emergency stay of this outrageous order and defend the executive order of the president, which we believe is lawful and appropriate.”

In fact, the Justice Department cannot “file a stay,” but it can, if so advised, file a paper asking the district judge to stay his own order pending appeal, or it can file a paper in the court of appeals seeking a stay pending review. If and when such a request to the court of appeals is made, the court will consider four factors:

  1. Whether President Trump has made a strong showing that he is likely to succeed on the merits,
  2. Whether the interests of the United States will suffer irreparable injury if the status quo ante remains in place until the case is fully litigated, which will take some months at least
  3. Whether issuing the stay will seriously injure the parties on the other side, i.e, the would–be immigrants and those allied with them, and
  4. Where the public interest lies.

Mr. Trump entertains the paranoid delusion that “weak vetting” is letting in all manner of dangerous people, but let us see what evidence his lawyers can marshal in support of that delusional assertion. Maybe they will cite the grievous harm created by the infamous Bowling Green Massacre.

If the court buys into Trump’s paranoia, then factors two and four are strongly in the government’s favor. If the court doesn’t buy the big risk argument, then it seems to me that the government’s case goes poof.

Meanwhile, back in the so-called district court, we have the brief filed by the plaintiffs, the states of Washington and Minnesota, a slew of amicus curiae briefs filed by the ACLU and other entities opposing Trump, and not much of anything publicly available that was filed by Mr. Trump’s lawyers or outside groups supporting him. (A curious case of more non-barking dogs.)

I have provided a link to so-called Judge Robart’s temporary restraining order, which is preceded by several pages of supporting rationale. It raises Aardvark’s eyebrows. The discussion goes into isues of legal standing and injury in some depth. But a motion for preliminary relief does not begin and end with whether we may shed tears for the plaintiffs, because even the most tear-inducing of plaintiffs is not entitled to legal relief if he has no legal claim. Thus, a court must not only consider injury but also make a prediction about which side is likely to win the case—at the end of the day, after discovery, briefing, trial, appeal, and what have you.

In that regard, so-called Judge Robart makes a flat and unqualified prediction that the plaintiffs “are likely to succeed on the merits of the claims that would entitle them to relief.” But he does not say what considerations have led him to that conclusion.

Maybe so-called Judge Robart liked all of the plaintiffs’ legal theories, which may be summarized this way. I list them in the order in which they appear in the brief—and normally counsel put what they think are their best arguments first.

  1. The executive order unconstitutionally discriminates based on national origin, in violation of the constitutional rights of lawful permanent residents.
  2. By blocking Syrian refugees the order unconstitutionally discriminates on the basis of national origin.
  3. By prioritizing minority religions, the order unconstitutionally discriminates based on religion.
  4. The executive order violates a federal statute that prohibits discrimination in issuing visas based on nationality.
  5. The order lacks a rational basis, but is instead based on religious bias, and it surely cannot meet the alternative “strict scrutiny” test (which is the legal standard that ought to be held applicable).
  6. The order violates the First Amendment because it favors one religion over another.
  7. The order violates the due process rights of would-be immigrants to receive notice and an opportunity to be heard before denying reentry to permanent residents and visa holders. \
  8. The order violates a legal right to petition for asylum based on fear of persecution.


As of Saturday night the Justice Department has filed a “notice of appeal,” not a motion for a stay pending appeal. Aardvark does not understand how there could legitimately be an “appeal,” inasmuch as so-called Judge Robart didn’t make a final decision about anything; he only issued a temporary restraining order. But Aardvark seems to remember that he only made a B in Civil Procedure at Harvard Law School, so there you go.

We are told that the “appeal,” or whatever it is, will be heard by a three-judge panel consisting of judges appointed respectively by so-called President Bush, so-called President Carter, and so-called President Obama.

Only the notice of appeal has been filed, not the supporting brief, so we don’t know what role the Bowling Green Massacre will play in the government’s argument.