Travel ban update: Hearing today on immigration temporary restraining order

Blog Post
Editor's note: This article was updated on February 10, 2017, to include the results of the hearing.

On February 3, 2017, Washington State Federal District Court Judge James Robart issued a very broad temporary restraining order (“TRO”)* against President Donald Trump’s Executive Order 13769 "Protecting the Nation from Foreign Terrorist Entry into the United States," (the “Order”). The TRO temporarily halts the Trump administration from enforcing the Order's 90-day entry ban of nationals from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen into the U.S. Judge Robart's order was issued in response to a petition for a TRO by the State of Minnesota and the State of Washington. The legal issue is whether President Donald Trump exceeded his authority and violated the First Amendment and federal immigration law, and whether his Order imposes irreparable harm on the foreign nationals it affects.

The administration immediately filed an appeal and an immediate administrative stay pending full consideration of the appeal, citing the vast presidential power over immigration policy endowed under the U.S. Constitution and federal law. On February 4, 2017, the Court of Appeals declined to impose the desired administrative stay. Appellee's reply in opposition to the emergency motion and Appellant’s reply in support of the emergency motion were respectively due February 5, 2017, and February 6, 2017. A federal appeals court is scheduled to hear arguments today, February 7, 2017, at 6 p.m. EST on whether to restore President Donald Trump’s Order. This hearing will be closely watched by all sides of the debate.

At the hearing, three judges on the U.S. Court of Appeals for the 9th Circuit will review Judge James Robart’s TRO that put the Order on hold. Judge William C. Canby Jr., (appointed by President Jimmy Carter), Judge Richard Clifton (appointed by President George W. Bush); and Judge Michelle Taryn Friedland (appointed by President Barack Obama), will decide the future of the ban. Following today’s proceeding, either party will have the opportunity to ask the U.S. Supreme Court to intervene if they disagree with the U.S. Court of Appeals’ decision. The U.S. Supreme Court may decide to hear the case or pass. If the U.S. Supreme Court certifies the case, since it remains one justice short, a tie would keep in place the decision of the U.S. Court of Appeals.

Update: Freeze on travel ban upheld

On Thursday, February 9, 2017, the U.S. Court of Appeals for the Ninth Circuit unanimously upheld the freeze on the White House administration's executive order banning the entrance of nationals from the seven designated countries into the United States. It is likely the administration will appeal the decision to the Supreme Court. The Supreme Court could rule on the matter as early as next week. Considering that the Supreme Court currently has a vacant seat, should there be a 4-4 deadlock, the Courts of Appeals decision will stand.

* A temporary restraining order, or TRO, is a short pre-trial temporary injunction or stop-gap measure against a certain action or party. In order to qualify for a TRO, a petitioner must convince a judge that he, she, or it will suffer immediate irreparable harm unless the TRO is issued. If the judge is convinced, a TRO can be issued by the judge without notification to opposing parties or even a hearing. It is important to note, however, that a TRO is wholly temporary in nature and only effective until the court holds a formal hearing on whether or not to grant a preliminary injunction.
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