Mullings An American Cyber Column By Rich Galen

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TRO

Rich Galen

Monday February 5, 2017

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A federal judge stopped enforcement of President Trump's travel restrictions -

SIDEBAR

Teaching point for younger writers: Ten words in, I didn't want to get into an argument over the use of the word "ban," which White House Press Secretary Sean Spicer objects to. So, I went with "restrictions."

END SIDEBAR

- by issuing what is known as a "Temporary Restraining Order" or TRO for those of us who began our careers covering municipal court.

According to Cornell University's legal dictionary

Temporary restraining orders are short-term pre-trial temporary injunctions (requiring a person to do, or cease doing, a specific action).
To obtain a temporary restraining order, a party must convince the judge that he or she will suffer immediate irreparable harm unless the order is issued.

In the case at hand, the person doing the convincing is the Democratic Attorney General of the State of Washington, Bob Ferguson. The person being convinced is a Federal Judge, U.S. District Court Senior Judge James L. Robart (appointed by President George W. Bush).

As I've mentioned many times before, my total legal education is three hours of Constitutional Law at Marietta College, Marietta, Ohio 45750, so I'll try to stay within that vast knowledge base.

Judge Robart issued his TRO on Friday night meaning that the President's Executive Order on immigration and travel by certain people from certain places was forbidden (again, not "banned," but I'm running out of synonyms) was temporarily deemed null and void.

Again, from Cornell:

These orders are intended to be stop-gap measures, and only last until the court holds a hearing on whether or not to grant a preliminary injunction. Unlike a TRO, which can be ordered without a hearing, a preliminary injunction may only be issued after a hearing.

The U.S. Department of Justice sent a request to the next higher Federal Court - the Ninth Circuit - asking that Judge Robart's order be vacated. That motion is 125 pages long and argues, in small part:

The district court has entered a nationwide injunction barring enforcement of provisions of an Executive Order issued pursuant to constitutional and statutory authority to address national security concerns, which is imposing irreparable harm on the defendants and the general public.
The injunction contravenes the constitutional separation of powers; harms the public by thwarting enforcement of an Executive Order issued by the nation's elected representative responsible for immigration matters and foreign affairs; and second-guesses the President's national security judgment about the quantum of risk posed by the admission of certain classes of aliens and the best means of minimizing that risk.

The Ninth Circuit responded with a two paragraph ruling turning down the Trump Administration's request. Instead they required further arguments from the Washington State AG by One AM Pacific time today, Monday. The U.S. DoJ has until 3 PM (Pacific time) to respond to that.

In the highly technical legal language that tends to accompany these things, this squence is known as "fast as hell," or, in official law school Latin: "quantum infernum.

President Trump, of course, got the jump on all of them with a 137-character Tweet that offended almost everyone:

"The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!"

Judge Robart's order might well be overturned by the Ninth Circuit or by the Supreme Court. But, that doesn't make him a "so-called" judge, any more than yet another childish and petulant Tweet makes Donald Trump a "so-called" President.

Maybe the White House ought to declare a TRO on those Tweets.

President Donald Trump should simply admit the original Executive Order was badly written, if not ill-conceived. He could withdraw that order and replace it with one that has actually been vetted by DHS, the State Department, the Pentagon, the National Security Council, and the Department of Justice (for starters) so that he, the Federal Courts, and the people of the United States would have the confidence that grownups have been involved in this important process.

On the Secret Decoder Ring page today: Links to the Cornell University Legal Dictionary, to the press release from the Washington State AG that started all this, and to the motion submitted by the U.S. Government to have Judge Robart's TRO lifted.

The Mullfoto is of my Super Bowl snack selection.

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