Temporary Restraining Order Halts President's Travel Ban and Refugee Program Limits, Appeal Initiated by Administration | Practical Law

Temporary Restraining Order Halts President's Travel Ban and Refugee Program Limits, Appeal Initiated by Administration | Practical Law

In State of Washington v. Trump, a US district court judge in the Western District of Washington granted a temporary restraining order (TRO) blocking enforcement of key aspects of President Donald Trump's Executive Order "Protecting the Nation From Foreign Terrorist Entry Into the United States" issued on January 27, 2017. The Administration has filed an emergency motion for a stay of the TRO pending the government's appeal with the US Court of Appeal for the Ninth Circuit, on which oral argument will take place February 7, 2017.

Temporary Restraining Order Halts President's Travel Ban and Refugee Program Limits, Appeal Initiated by Administration

by Practical Law Labor & Employment
Law stated as of 07 Feb 2017 • USA (National/Federal)
In State of Washington v. Trump, a US district court judge in the Western District of Washington granted a temporary restraining order (TRO) blocking enforcement of key aspects of President Donald Trump's Executive Order "Protecting the Nation From Foreign Terrorist Entry Into the United States" issued on January 27, 2017. The Administration has filed an emergency motion for a stay of the TRO pending the government's appeal with the US Court of Appeal for the Ninth Circuit, on which oral argument will take place February 7, 2017.
On February 3, 2017, in State of Washington v. Trump, a US district court judge in the Western District of Washington issued a decision granting a temporary restraining order (TRO) sought by the states of Washington and Minnesota that halted enforcement nationally of key aspects of President Donald Trump's Executive Order (EO) "Protecting the Nation From Foreign Terrorist Entry Into the United States" (Exec. Order No. 13769, 82 FR 8977, ), issued on January 27, 2017. The decision by Judge James L. Robart temporarily stays enforcement of the following parts of the EO:
  • The 90-day ban on travel to the US by citizens of seven countries (Iraq, Iran, Syria, Yemen, Libya, Somalia, and Sudan) (Section 3(c) of the EO).
  • The 120-day suspension of the US Refugee Admissions Program (Section 5(a) of the EO).
  • The ban on entry of Syrian nationals into the US for an indefinite period of time (Section 5(c) of the EO).
  • The joint discretionary determination on refugees by the Secretaries of State and Homeland Security, to the extent that their determination called for "prioritizing refugee claims of certain religious minorities" (Section 5(e) of the EO).
In a filing by the US DOJ following Judge Robart's decision, the Trump administration promptly filed with the US Court of Appeals for the Ninth Circuit an emergency motion to stay the TRO pending appeal, arguing that:
  • Halting the travel ban is harmful to the public and puts it at increased security risk.
  • The decision inappropriately "second-guesses the President's national security judgment," as courts do not have access to the information upon which such judgments are based.
The Ninth Circuit:
  • Rejected the administration's request for an immediate stay of Judge Robart's decision that, if granted, would have resumed the travel ban.
  • Set an expedited briefing schedule for the parties, with the relevant deadlines for submission of motion papers on Monday February 6, 2017.
  • Scheduled oral arguments on the emergency stay for Tuesday February 7, 2017.
The Ninth Circuit created a site to provide public access for all information and documents related to this case.
In his decision, Judge Robart noted that:
  • A party seeking preliminary relief must show that:
    • it is likely to succeed on the merits;
    • it is likely to suffer irreparable harm absent preliminary relief;
    • the balance of the equities tips in its favor; and
    • an injunction is in the public interest.
    (Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).)
  • Alternatively, courts will approve a request for preliminary relief and preserve the status quo to allow for further deliberation on complex legal questions if:
    • serious questions on the merits are raised by the party seeking preliminary relief; and
    • the balance of hardships tips "heavily" in favor of the party seeking preliminary relief (presuming the party can also show that irreparable injury is likely and that an injunction is in the public interest).
    (Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1134-35 (9th Cir. 2011).)
Judge Robart found that:
  • The states satisfied the:
    • Winter test because all four required elements were met; and
    • Cottrell test because they established that there were serious questions going to the merits of their claims and the balance of equities tips "sharply" in their favor.
  • The states would suffer immediate and irreparable injury because implementation of the EO would cause them significant and ongoing harm in a host of areas, including in their:
    • residents' employment, education, business interests, and freedom to travel;
    • public universities and other higher learning institutions; and
    • operations, tax bases, and public funds.
As of February 7, 2017:
  • The TRO remains in effect.
  • Individuals from the designated countries are being admitted to the US.
  • The US Department of State reversed the general visa revocation that occurred by virtue of the EO.
  • Immigration and customs officials, travelers at US airports, and airlines themselves remain confused and unclear about where matters stand and what will be the ultimate outcome.