Saturday, February 4, 2017

Immigration Order Litigation

A judge in the Western District of Washington issued a purportedly nationwide TRO prohibiting enforcement of the entire immigration order, in an action brought by the states of Washington and Virgina. This is in addition to a different nationwide TRO, issued last weekend. It's a short order, 7 pages, devoid of much analysis. The TRO is in place until the parties can brief and argue a motion for a preliminary injunction.

A couple of things of note, some of which are part of this class and some of which are part of Federal Courts:

1) What we will cover is this idea of a "nationwide" TRO and whether one district judge, in a non-class-action brought by a small number of plaintiffs, stop the federal government from enforcing federal law against anyone anywhere.

2) As for what we do not cover, but will cover in Federal Courts:
   a) Standing--having been injured so as to be able to sue--may be a problem for the states. The court found them to have parens patriae standing to sue on behalf of their residents, although that theory has generally been rejected.
   b) The court enjoined the provision allowing for case-by-case determinations from the 7 nations, with preference giving to "minority" religions in those countries (i.e., non-Muslims). But that provision comes into play after the 90 day halt. If so, there is an argument the challenge to that provision is not "ripe" for judicial review, since it is not yet in force or able to be enforced.

3) What comes next is interesting. TRO's are not immediately appealable (although Preliminary Injunctions are). But the government could go to the Ninth Circuit (or to SCOTUS, if that fails) and ask for a stay of the TRO--the court order stopping enforcement would be stayed, meaning the executive order could be enforced. Stay tuned.

You should be recognizing by now that this type of litigation is truly complex.