February 12, 2017

*record scratch* Yup. That's Me. – The Airport Cases: Episode 1

Hello, and welcome to the first of what is likely to be many, many newsletters discussing and analyzing the litigation around the executive order of January 27, 2017, also known as the "Muslim ban," "immigration ban" or "visa ban." Because the first of these cases originated from people being detained at airports, I've chosen to collectively designate them as "the airport cases."

This litigation is weird and complicated and gives me a headache. I will frequently be just as bewildered by the tricky bits as you are, but I can at least break some of this stuff down in color-coded charts accompanied by angry swearing. I will also be aggegating good commentary from reliable sources, so I can point you in the right direction. So sit back and "enjoy" the flight. First stop: the civil procedure hell known as Washington v. Trump. Note: this newsletter is diagram-heavy, so don't forget to display images!

On Wednesday, the 9th Circuit Court of Appeals denied the government's request to stay the temporary restraining order on the 1/27 EO. In the simplest of terms: Trump is a loser and a hater. In slightly more procedurally accurate terms: the court denied a request for a stop to the stop to the stop of immigration. How many more levels of inception are there going to be? Reports from the White House vary.

First an aide said that the DOJ was not going to seek further appeal to the Supreme Court, and would rather "defend its merits," which I interpreted to mean that they were going to try to get to the merits of the case (executive power! immigration! establishment clause!) but I made the mistake of assuming that the White House knows what it's talking about, a mistake that I will not make again. Indeed, shortly after claiming that they weren't going to chase the case to the Supreme Court, the aide had to take-backsies. Bloomberg reported:

A White House aide first said late Friday that the administration would not ask the Supreme Court to overturn the 9th U.S. Circuit Court of Appeals ruling, which refused to reinstate Trump’s travel ban after it had been blocked by a lower court judge. Soon after, reporters at the White House overheard Trump’s press secretary, Sean Spicer, asking who had made that statement. Minutes later, the aide distributed a different statement on paper.
"On background: to clarify, we could take the TRO to Supreme Court," the statement read, referring to the lower court’s temporary restraining order against Trump’s travel ban. "We are reviewing all our options in the court system and confident we will prevail on the merits of the case. Additionally, we are actively pursuing other executive orders that will keep our country safe from terrorism."

Meanwhile, in the 9th Circuit, an unidentified judge flipped his lid and made a sua sponte call for an en banc hearing. Here I will helpfully remind you that an iPhone version of Black's Law Dictionary is available in the App Store, but also that you are a being with free will who can close this email at any time and do something more enjoyable, like slamming your fingers in a door jamb.

So what's an en banc? What's a sua sponte? And now that the 9th Circuit has deemed the temporary restraining order to have the qualities of a preliminary injunction, does that magically turn it into a preliminary injunction, but also will it then turn back into a pumpkin at midnight if 9th decides to hear it en banc? You know, just really simple civil procedure questions up in here.

I'll have a few notes on the TRO/PI problem, the sua sponte call, and some recommended reading at the end, but how about we slow our roll for just a second and let the camera slowly zoom in on our frozen, dismayed faces as a voice-over says, "Yup. That's me. You might be wondering how it is that I ended up here."


1. The En Banc Call Is Coming From INSIDE THE HOUSE

Someone has made a sua sponte call for an en banc hearing. An en banc hearing would come before an appeal to SCOTUS, and sua sponte means that the request came from inside the circuit itself—some judge, who is, as is customary, not identified, wants this to be reheard. This has prompted a fair bit of speculation as to who it even is. Some think it's Judge Kozinski (a Reagan appointee, a refugee, and one-time contestant on the Dating Game), others are sure that it's Judge Bybee (a Bush appointee, also known as "the dude who signed the torture memos written by John Yoo").

The 9th has asked for briefing on whether to rehear the matter en banc, and briefs are due on Thursday, February 16. After briefing, the 9th circuit judges will vote amongst themselves. A bare majority gets to decide whether to rehear it. After that, a panel of eleven judges will be assembled.

Here's a "quick" explainer of the federal appellate system. This is how Washington v. Trump could have theoretically proceeded, if there weren't any procedural shenanigans and both parties were willing to take it all the way to the end. It begins at the bottom, with the lower court—also known as the district court, and ends at the top, with the Supreme Court, aka the only court normies actually care about.

A request for an en banc hearing is a pretty routine pit stop on the way to the Supreme Court, but a party can opt to go directly to SCOTUS from the 3-judge panel instead. This straight shot to SCOTUS is, however, not at all what is happening. The procedural state of the case more resembles this diagram:

Why is a sua sponte call happening? God knows. The DOJ doesn't want this to happen, and presumably neither does the State of Washington. Speculation on law-twitter is that a conservative judge wants to be able to issue a fiery dissent when the rest of the circuit votes not to hear the case en banc. But Josh Blackman suggests something else—the sua sponte call is a power move from a liberal judge meant to keep the case under 9th Circuit control while cases proceed in other jurisdictions and the White House does whatever nutty thing they do next. Blackman acknowledges that his theory may be "downright asinine," but points out that the timing of events re: White House announcements, sua sponte calls, etc., on February 10 is interesting.

2. TROhgodhelpusall

Washington v. Trump is getting to be pretty awkward. The bizarre interplay between a reactive, unpredictable executive branch and an increasingly fed-up and defensive judicial branch would be popcorn-worthy, except that the case bears enormous weight on the lives of countless human beings and also lol we're all going to die. One of the most awkward aspects of this case is that the government appealed a temporary restraining order.

A temporary restraining order is exactly what it sounds like: it's a very, very temporary court-mandated stop to the 1/27 EO. It's intended to halt potentially illegal conduct while the parties get ready for the next stage, which was supposed to be a preliminary injunction hearing. A preliminary injunction is similar to a TRO, but it's more lasting. A TRO is only supposed to last until the PI hearing, and the PI is only supposed to last until the litigation is over (for some value of "over"), after which a permanent injunction might be acquired.

As you might imagine, the standard for each of these injunctions becomes higher and higher as you progress. A TRO is "easier" to get than a preliminary injunction, and a preliminary injunction is "easier" to get than a permanent injunction. I'm just going to unreasonably gloss over the entire subject of remedies here and summarize it thusly: a TRO is some scrawny scrub bullshit that you're not supposed to take all the way to the Supreme Court.

Indeed, the 9th Circuit doesn't review TROs unless they "have the qualities of" a preliminary injunction. The State of Washington wanted the 9th to throw the case out for that reason—to wait until they got their preliminary injunction, and then hear the case. The 9th Circuit panel instead ruled that the TRO did have the qualities of a preliminary injunction, and furthermore, that Judge Robart had decided this one correctly and that the TRO would stay in place.

So what does that mean for the TRO? I have no idea and welcome (actual, expert opinions) on this matter. But I'm not wrong to be confused: the State of Washington declined to file their scheduled brief for a preliminary injunction ("unless we receive contrary guidance from the district court") since the 9th had found that the TRO "possesses the qualities" of a PI. Judge Robart has asked for a joint status report from the parties and memoranda on this issue, due Monday (Docket entry #74).

Additional Reading:

It has now been 15 days since Trump's executive order on immigration.

The Airport Cases is written by Sarah Jeong, and will follow a publication schedule completely at the whim of the courts. The newsletter is a pro bono enterprise, so consider throwing me a few dollars via Paypal.

Thank you, and until next time, safe travels to us all.