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Sunday, February 5, 2017

The Entry Order Appeal

I thought we would stay away from politics today, but I have had too many questions from readers asking my opinion on the action by the Ninth Circuit Court of Appeals to ignore the matter.  The federal government filed an appeal from the temporary restraining order issued by the judge in Seattle to enjoin enforcement of the President's Executive Order temporarily restricting entry into the USA from certain countries where terrorism is a major problem.  The Court of Appeals refused to grant a stay of that TRO, but set a very expedited briefing and hearing schedule with the parties to be before the court tomorrow afternoon.

The key point here is that the action by the Court of Appeals is what one would expect to happen.  The request for the stay of the TRO was made so quickly that there was no response from the other side.  By moving the matter back a day for briefing and hearing, the Court allowed both sides to be heard.  Normally, a appellate court won't even consider an appeal from a TRO, but because of the national importance of this matter, they have done so.  An appeal from a TRO is still a very difficult thing on which to prevail.

The Ninth Circuit is about the worst appeals court in which to be from the standpoint of the Trump Administration.  It is extremely liberal and very likely to start from a place of hostility to the President.  Throw in the fact that this is an appeal from a TRO and the government's position gets even more difficult.  I expect the Ninth Circuit to deny the stay of the TRO on Monday.  At that point, this matter will go one of a number of ways:

1.  The government will complete the hearing on the preliminary injunction, get a decision from the trial court and that matter will then go up on a regular, but expedited, appeal should the plaintiffs win and government lose.  Most likely, the matter would eventually get to the Supreme Court.  The outcome in the Supreme Court could be determined by whether or not the new justice has yet been confirmed.

2.  President Trump could wait for the decision on the preliminary injunction and then issue new orders to meet the court's objections.  The new orders would make the current proceedings meaningless and moot.  Most likely, Trump would split the executive order into multiple parts.  One would be just about refugees from Syria.  One would be about strengthening vetting.  One would hold a temporary entry ban and would include language that nothing in the order could be used to discriminate on the basis of religion or the like.  The revised orders would still be challenged by the anti-Trump forces in court.  The problem, however, is that the bulk of such orders would be unassailable except by a judge who had just run amok.

We will have to wait and see what happens.

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