While the fight’s not over, Washington Federal Court decides to put a total and complete shutdown of the ‘Muslim Ban’ while they figure out what is going on. What Judge James Robart’s Temporary Restraining Order of Donald Trump’s popular ‘Muslim Ban’ means.
“Fundamental to the work of this court is a vigilant recognition that it is but one of three equal branches of our federal government. The work of the court is not to create policy or judge the wisdom of any particular policy promoted by the other two branches. … The work of the Judiciary, and this court, is limited to ensuring that the actions taken by the other two branches comport with our country’s laws, and more importantly, our Constitution.”
~ Judge James L. Robart
In an unusual turn of events, Friday, February 3rd, 2017 ended with a bang for the legal system, but it did not go without a whimper in response. In the latter hours of the day, Judge James L. Robart of the U.S. District Court for the Western District of Washington issued a temporary restraining order (“TRO”) against the most controversial of President Donald J. Trump’s executive orders (so far). In his order, Trump immediately banned nationals of seven Muslim-majority countries from entering the US for 90 days in addition to suspending admission of all refugees to the United States for four months. The order, known as the ‘Muslim Ban’ is one of the new President’s most controversial moves since taking office during that same month.
Presently, all 50 states are engaged in lawsuits against the Muslim Ban and it appears most courts are willing to agree that the ban is likely not enforceable. Washington courts, however, took an extraordinary step in issuing an immediate and nation-wide half to the Muslim Ban until a formal hearing on whether the halt should be extended further. In a sense, Judge Robart—who himself was appointed by George W. Bush and unanimously confirmed by the Senate—echoed back at the Trump administration its leader’s very words when Trump initially called for a total and complete shutdown of Muslims entering the United States: we need a total and complete shutdown of the Muslim Ban while the courts figure out what is going on.
The TRO itself is an impressive legal feat. The standard of review requires the courts to consider one of two legal tests to determine if a TRO is appropriate. The first TRO standard, known as the Winter Test, required the State of Washington to prove the following:
- They are likely to succeed on the merits [of their claim];
- The State are likely to suffer irreparable harm in the absence of preliminary relief (i.e., issuing the TRO);
- That the balance of equities tip in the State’s favor (aka, who is it more fair to side with); and
- An injunction is in the public interest.
Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
The alternative test for demonstrating the need for a TRO can be shown through the reasoning set out in the case All for the Wild Rockies v. Cottrell, 632 F.3D 1127, 1134-35 (9th. Cir 2011). In Cottrell, the court stated a preliminary injunction is appropriate if “serious questions going to the merits were raised and the balance of hardships tips sharply in the [State of Washington’s] favor.”
Under both tests to determine the appropriateness for a TRO, Judge Robart found in favor of the State of Washington, citing the State’s duty to protect its residents along with the likelihood of irreparable injury to the States’ operations, tax bases, and public funds. Moreover, because the Constitution of the United States of America calls for uniform application of immigration standards, Judge Robart believed it necessary to make the TRO nationwide.
The TRO itself restrains the following sections of Trump’s Muslim Ban: 3(c); 5(a); 5(b); 5(c); and 5(e) to the extent that the Federal Government attempts to enforce the Muslim Ban or proceeding with any action that prioritizes the refugee claims of certain religious minorities. In plain English, the Muslim Ban is no longer enforceable in nearly every significant respect for the time being.
In my opinion, Judge Robart’s reasoning demonstrates a strong grasp of the roles of the court, the stakes involved, and—most importantly—restraint. The TRO is not permanent, it has very strict guidelines, and it will end if the United States can defeat the States’ arguments at the formal hearing to determine if the injunction should stay in place. The parties in the case are ordered to propose a case schedule for the remaining issues by 5:00 pm on Monday, February 6th, 2017, which will give everyone a better idea of what to expect in the coming weeks and months regarding the Muslim Ban.
In the meantime, Judge Robart’s ruling is subject to appeal at the 9th Circuit. Other similar rulings to Judge Robart’s are also subject to appeal in their respective jurisdictions. Moreover, it would not be at all surprising if the matter eventually made its way to the Supreme Court of the United States. This last possibility is particularly significant because President Trump is now attempting to confirm his nominee, Judge Gorsuch to Judge Scalia’s open seat. Doing so would give the Supreme Court a conservative-leaning majority and pave the way for the halt of the Muslim Ban to be overturned.
One other intriguing thought on the Muslim Ban is how Chief Justice John Roberts would ultimately swing on the matter. In his Obergefell v. Hodge ruling, which was the big legal test for Obamacare, it is clear he is attempting to style himself after Justice Marshall. In McCulloch v. Maryland and Gibbons v. Ogden, Justice Marshall defied all expectations and distinguished himself as one of the greatest legal minds to sit the bench. For the unfamiliar, Justice Marshall articulated one of our most sacred legal principles in McCulloch and Gibbons: that the Constitution is the supreme law of the land under the Supremacy Clause, but the Supreme Court gets to determine how to apply and interpret the Constitution when those cases arise. In effect, Justice Marshall’s opinion reconciled years of legal questions as to who or what controls the law, the Constitution or the courts? Justice Marshall’s response: yes.
While Justice Roberts typically votes conservative in Supreme Court rulings, he found a way to uphold Obamacare while simultaneously striking a telling blow to its effectiveness via eliminated the individual mandate as an unconstitutional tax. Is Obamacare legal or unconstitutional? Justice Roberts: “Yes.”
Like the situation in Obergefell, the Muslim Ban is another intensely controversial issue where a “yes” might be necessary to keep our society functioning smoothly. If his history can be used as a predictor of his future rulings, it seems likely that Justice Roberts will attempt to find a way to make both sides happy in the end. The ban itself is incredibly broad and overreaching. It is likely flat-out unconstitutional if put to a truly objective test, but that does not mean the Federal Government cannot legally restrict immigrants and refugees. That wiggle room may be just enough rope Justice Roberts needs for another “Marshall Moment.”
Until that time, however, Judge Robart’s ruling stands and much of Trump’s Muslim Ban will not be enforceable. Stay tuned for more!