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Saturday, February 4, 2017

The Order Staying Enforcement of the Entry Ban

Last night, a federal judge issued a temporary restraining order staying enforcement of the executive order issued by President Trump which bars entry to the USA temporarily for people from certain countries where terrorism flourishes.  The media is filled with stories about the order, but most of them don't really explain either the order or its effect.

First of all, this is a TRO.  That means that the judge is ordering a temporary stop to enforcement of the executive order until such time as the parties have fully briefed the matter and presented all relevant material and the judge has had a chance to decide whether or not to issue a preliminary injunction.  Many times a TRO is issued and there never is an injunction after that. 

The judge's order is rather deficient.  It is supposed to give the reason for the order, but this one just gives conclusions.  There's no way to know the judge's basis for the decision from reading the order.  For an issue of such major importance, it is unforgiveable that the judge decided to leave out his reasons.

A TRO is not appealable in most circumstances, but the White House has already announced that it will seek an emergency appeal of the TRO as well as a stay of its enforcement.  Of course, since the order was issued in Seattle, the appeal will be to the Ninth Circuit Court of Appeals.  That makes the likely panel of judges to hear such an appeal almost certain to be very liberal.  That also means that the likelihood of a successful appeal is much lower than it would be if a different court were involved.

Meanwhile, the White House, Homeland Security and the State Department should go ahead with their plans for imposing better vetting on the process of entry into the USA.  After all, the executive order was a temporary ban to allow time for those new procedures to be completed.

It's also worth noting that nothing in the order requires the USA to accept refugees from Syria or elsewhere.  The White House can easily issue a new order to limit the number of refugees; that level is set by law by the President.

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