Judge James Robart’s TRO

Some of you may have heard that Judge Robarts, of the Western District of Washington, has issued a Temporary Restraining Order in favor of Washington and Minnesota (which joined the case after its initial filing by Washington) blocking the Federal government from enforcing President Donald Trump’s Executive Order delaying entry into the US of immigrants from seven terrorist or terror-sponsoring nations in the Middle East.  The EO was intended to create a pause in the flow of people from that area into the US until our vetting procedures could be examined and improved as much as might be.

As Robart described in his order, a TRO must meet all of four criteria, and it’s on the plaintiffs (Washington and Minnesota) to prove that each of those criteria are met.  Those criteria are (Robart cited two sets of criteria; they’re functionally the same, per Robart; below is the more detailed description) [quotes omitted]:

(1) that he is likely to succeed on the merits, (2) that he is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in his favor, and ( 4) that an injunction is in the public interest.

Robart then ruled that the plaintiffs had met these criteria:

The court finds that the States have satisfied these standards and that the court should issue a TRO. The States have satisfied the Winter test [the more detailed test described above] because they have shown that they are likely to succeed on the merits of the claims that would entitle them to relief; the States are likely to suffer irreparable harm in the absence of preliminary relief; the balance of the equities favor the States; and a TRO is in the public interest.

So far, so good.  Then Robart provided his rationale for this finding.

Specifically, for purposes of the entry of this TRO, the court finds that the States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. These harms are significant and ongoing. Accordingly, the court concludes that a TRO against Federal Defendants is necessary until such time as the court can hear and decide the States’ request for a preliminary injunction.

That’s it.  No substantiation, nor even claim, that the plaintiffs are likely to succeed on the merits, no substantiation, nor even claim, that balance of equities tips in favor of the plaintiffs, no substantiation, nor even claim, of public interest.  Only a claim that irreparable harm is likely absent a TRO—but even here, there’s no real substantiation, just a repeat of the States’ claims.

We’re simply supposed to accept the single, superficial claim of harm as by itself satisfying the other three criteria.  But what about that (I’ll come back to the claimed harm in a bit)?

Likely to succeed on the merits?  Based on what? Robart has failed to present any merits other than his repetition of plaintiffs’ claims.

Balance of equities tips in favor of the plaintiffs?  Suppose, arguendo, that the claimed harms are real.  There was no investigation into balance, no presentation in this TRO that the Federal government’s interest in the nation-wide public’s welfare, the nation’s security, is outweighed by this harm.

And that public interest: see above; Robart didn’t even look into that, or if he did, he chose to omit the outcome of that enquiry from his order.

Now about those harms the States are alleging and that Robart apparently simply accepted withut question.  The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel.  In what way?  Robart declined to say.  Further, a 90- to 120-day delay in reentry into the US imparts no serious education harm, only a delay for those students involved.  This is an inconvenience, not a harm.  To the extent the delay impacts employment (unidentified, but lets assume of the delayed immigrants), that’s a matter between the employee and employer, and to the extent legal relief is appropriate here, that is a separate case.  Freedom to travel?  That’s what borders are: no non-citizen has freedom to travel across borders; noncitizens—even visa holders—must have the permission of the receiving nation prior to entering.  Furthermore, existing permission—those visas—can be suspended or revoked at the receiving nation’s discretion.  Family relations?  Sure, these will be interrupted, and that’s a serious inconvenience.  But it’s only an interruption, and it cannot outweigh the Federal government’s interest in the welfare of all of the public or its interest in the nation’s security.

The extension of these individual harms to the States is too far a reach.  The States by virtue of their roles as parens patriae of the residents living within their borders, indeed, but the people whose travel is being interrupted aren’t known to be residents.  Many of them may well have established residency, but there was no showing that all of them have or even a showing that a significant fraction of them have.  (From this, it’s even not clear that the States have standing to bring their suit—another matter unsubstantiated here.)

Clearly, these matters affect only a subset of the delayed travelers, to the extent they affect any—yet Robart’s order lets in, without delay, those unaffected, too; the TRO is not properly limited to those claimed to be harmed.

The States themselves are harmed by virtue of the damage…inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds?  This is an even bigger reach.  Any students affected by the EO are so few in number as to be a drop in the bucket compared to the schools’ populations.  Nor are the States’ governments’ or government facilities’ materially harmed—nor even trivially harmed—by the delayed entry of these travelers.  Robarts declined even to say how these delays impact public revenues.

This is a bad, wholly unsubstantiated TRO, and it should be dismissed out of hand.

3 thoughts on “Judge James Robart’s TRO

    • This is an aspect of lower court, especially district court, nominations and confirmations that the NLMSM generally chooses to ignore, and it’s not just the present-day NLMSM that elides it.
      District judges, while nominally sent in by the President (he’s the one with the official authority, after all) generally are put up by the Senator or a Senator’s ally in whose State the Federal district falls. Usually such nomination proposals are offered without partisanship beyond that of a Senator proposing someone of similar judicial philosophy, but too often they’re the result of rank partisanship like Murray’s.
      And of a President too loathe to leave that seat empty rather than accede to an ideologue like Robart occupying it.
      The NLMSM would do well to give more attention to the judge’s nomination history than just identifying the party of the President and the President who formally nominated him.
      Eric Hines

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