Chris Feb. 13, 2017

Pres. Trump's executive order, titled "Protecting the Nation from Foreign Terrorist Entry into the United States," also known as the "travel ban," has generated great controversy and litigation since it was issued two weeks ago. The Ninth Circuit Court of Appeals just a few days ago issued a decision siding with the order's challengers, the states of Washington and Minnesota. So was the order struck down? No. Is the order in effect? Not right now. Is this case over? Not by a long shot. Here's what it means and what might come.

An executive order is not a law passed by Congress but a directive by the president to executive agencies (which are under his control). Administrative agencies at local, state and federal levels of government carry out most of government's functions and exert a great deal of influence on those who fall under their control, which could be just about everybody (think the IRS, DMV, etc.). For that reason, a federal executive order has the effect of law. One such area of executive authority is immigration.

The executive order in question is being challenged in many ways in the federal court system. The State of Washington filed suit against the president and the federal government seeking injunctive and declaratory relief. A declaratory action is one that essentially asks a court to decide the rights of parties or the legality of a law or other government act. An injunction is a court order directing a party to do or not do something. (Most lawsuits seek money; injunctions seek equitable relief because money just can't pay for everything.) Washington is seeking an injunction to block enforcement of the executive order while its suit is pending (before it is decided). It sought and received a Temporary Restraining Order (TRO)--which keeps things at the status quo (current state) before the injunction is decided--from the federal district (trial level) court. In this case, a TRO of the executive order so that again, it will not be in effect while it's being decided. The government appealed the issuance of the TRO to the appellate (next higher) court which is the Court of Appeals for the Ninth Circuit. The government then moved that court to stay the TRO while its appeal is pending. 

A stay is a temporary halt to a court decision or order taking effect, often while something else is happening. For example, if a criminal defendant loses a trial and is convicted but wishes to appeal the conviction, the conviction and sentence are stayed until the case is finally decided after appeals (at least in Connecticut they are). 

The hearing and decision last week were on the stay of the TRO. For now, the government is restrained from carrying out the president's executive order. What's next? The government can ask the court to rehear the motion en banc, which is all (or in the Ninth Circuit's case, 11 of its 29) of its judges rather than the three-judge panel. From there the government can petition the Supreme Court to hear an appeal of the stay. Meanwhile, there are still the injunction and the actual trial in the district court. Those decisions can then be appealed--and stayed--all the way to the Supreme Court. Then there are potentially other suits in other federal districts and circuits. 

Pres. Trump is actually right when he says "SEE YOU IN COURT." There is a lot of court left to be held. 

See you in court,


What, were you expecting Lisa Loeb?