Volume 107

GLJ Alum Halts Travel Ban

by Ellen Noble

Judge James L. Robart, a 1973 alum of Georgetown University Law Center and a former Administrative Editor of The Georgetown Law Journal, issued a temporary restraining order (TRO) enjoining the enforcement of President Trump’s Executive Order of January 27, 2017. The controversial Executive Order, titled “Protecting the Nation from Foreign Terrorist Entry into the United States,” dramatically alters the United States admission process for non-citizens. Most notably, it temporarily bars refugees and nationals from seven majority-Muslim countries from entering the United States.

On January 30th, the State of Washington and the State of Minnesota filed an emergency motion for a TRO halting the Executive Order in the United States District Court for the Western District of Washington. Judge Robart heard oral argument on February 3rd and granted the motion from the bench. Hours later, Judge Robart issued a seven-page order. Under the order, the Federal Defendants—including President Trump himself—and their agents are restrained from enforcing sections 3(c), 5(a), 5(b), 5(c), and 5(e) of the Executive Order. Section 3(c) bans travel from the seven majority-Muslim countries. Section 5 suspends the refugee program and requires the refugee program, once resumed, to prioritize refugees persecuted as religious minorities.

Judge Robart found that the Executive Order adversely affects Washington’s and Minnesota’s residents across the board—in “employment, education, business, family relations, and freedom to travel”—and also damages “the operations and missions of their public universities and other institutions of higher learning.” Perhaps most notably, he clarified that the “TRO is granted on a nationwide basis”—prohibiting enforcement of the Executive Order at “all United States borders and ports of entry pending further orders.” The court, he said, must intervene to “fulfill its constitutional role in our tripart government.”

To the surprise of some commentators, the Department of Homeland Security quickly announced that it would suspend all actions implementing the affected sections of the Executive Order, and the State Department announced that those with valid visas could enter the country. The Department of Justice immediately filed a notice of appeal as well as a motion in the Ninth Circuit, requesting: (1) an immediate administrative stay of Judge Robart’s TRO pending full consideration of the emergency motion for a stay and (2) an emergency stay of the TRO pending appeal of the district court’s injunctive order. The former being a more rapid implementation of the latter. The Ninth Circuit denied the DOJ’s request for an immediate administrative stay prior to any briefing on the emergency motion, but it gave the States of Washington and Minnesota only one day to draft a brief in opposition to the emergency motion, followed by only another fifteen hours for the DOJ to file its reply brief. The accelerated briefing schedule will culminate in a telephonic oral argument on Tuesday, February 7, 2017, less than 100 hours after the initial order. The plaintiffs’ response is supported by amici, including 127 companies encouraging the Ninth Circuit to uphold Judge Robart’s order.

Judge Robart’s decision is just the latest in a wave of lower court orders blocking parts of the Executive Order. On January 28th, the Eastern District of New York granted a stay of the Order in Darweesh v. Trump, and the Eastern District of Virginia granted a TRO of the Order in Aziz v. Trump. In the following days, the Central District of California, the Eastern District of Michigan, and the District of Massachusetts also issued TROs against the Executive Order, though they varied in scope. The lone exception is a second judge in the District of Massachusetts, who concluded that the plaintiffs were unlikely to succeed on the merits and thus denied a motion to extend the TROagainst the Executive Order. But amidst all the litigation, Judge Robart’s ruling is the most sweeping of all—and, for the moment, has stopped the Executive Order in its tracks.