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By Michael Shrimpton on February 13, 2017
That’s Washington the state of course, not Washington the city or Washington the chap. Since I wrote last week’s column, the Ninth Circuit Court of Appeals has affirmed Judge Robart’s decision. No surprises there.
The government didn’t lose all the arguments. The court accepted that Judge Robart’s Temporary Restraining Order (TRO) could be appealed: normally a TRO cannot be appealed, as they are usually temporary in nature, as it says on the box. A TRO essentially holds the fort until a hearing on the merits can be arranged.
The government lost the rest of its arguments, however. I have read the judgment in its entirety. It is a remarkable document, with respect.
As the President has rightly pointed out, there isn’t a single reference to the statute the President was using when he signed his Executive Order on January 27th, the Immigration and Nationality Act (8 U.S.C. 1101). Since this gives him broad and sweeping powers to control the entry of aliens into the United States, this is both ‘surprising and disappointing’, as we lawyers say. That’s legal code for “are they crazy, what are they on?”
What Was The Justice Department Doing?
The failure of the court to refer to the statute they were interpreting was not the only odd thing about the case. Why on earth did the Justice Department assert that the President’s order was non-reviewable? All presidential orders are reviewable – that point was lost in World War