Thursday, February 9, 2017

Procedure matters

Order from the Ninth Circuit denying stay pending appeal.

Recognize something important, however. For all the talk in the media about the "massive blow" to the President's immigration ban and "rebuff" of the President, consider what was actually at stake in today's decision--a motion by the government to stay the district court's order (that prohibited enforcement of the immigration order until it could hold a hearing) and allow the President's travel ban to be enforced while further, comprehensive litigation proceeded in the court of appeals. By denying the stay, all the Ninth Circuit was doing was establishing the status quo of non-enforcement of the travel ban until the judicial system as a whole (including all appeals) resolves the merits of the constitutional questions raised. In other words, all of this for a narrow procedural issue. There is still much briefing and arguing ahead over the main issue of the EO's constitutionality.

On the other hand, if you read the first part of the opinion, you will see some procedural sleight of hand. The court of appeals took a Temporary Restraining Order, which is not supposed to be appealable, treated it as a Preliminary Injunction, which is appealable, and asserted appellate jurisdiction. This pulled the case from the trial court, even though the trial court never held a full evidentiary hearing and never performed a comprehensive constitutional analysis.