The Ninth Circuit panel that heard arguments Tuesday afternoon in the dispute over President Trump’s travel ban on refugees and aliens from seven countries indicated last night that it would not announce any decision on Wednesday. In the interim, there are developments that could — and to my mind should — cause the panel to punt the case back to Seattle federal district judge James Robart, whose temporary restraining order (TRO) is the subject of the Trump administration’s appeal.
As our Monday editorial detailed, a doctrine of law holds that a TRO is not ripe for appeal. The idea is that it is just a very short-term measure to freeze things in place while the judge allows the parties to develop a full record, based on which the judge will decide whether to issue a preliminary injunction. Appellate courts are not supposed to generate a factual record; they rely on the record developed in the lower court in reviewing that court’s decision. So, before getting involved in a case, they prefer to wait until a district court has held full proceedings and decided whether to issue a preliminary injunction.
It turns out, though, that Judge Robart in Seattle did not sit idle while the Ninth Circuit maneuvering was occurring in San Francisco.
On Tuesday, hours before the argument, Robart issued an order setting out a briefing schedule on the preliminary-injunction question. The plaintiff states (Washington and Minnesota) are to file their motion for a preliminary injunction by today, Thursday; the Justice Department is to respond in opposition by next Wednesday (February 15); the states are then to file any reply within two days (i.e., by Friday, February 17). At that point, with all the papers submitted, Robart could hear oral argument or just decide the matter based on the written submissions. But the very clear message of the judge’s scheduling order is: What I have issued so far is just a TRO and should be treated that way because the case is going to proceed expeditiously to a decision on the preliminary injunction.
There is another good reason for the Ninth Circuit to punt.
This has been a highly irregular proceeding, in which Judge Robart, rather than apply the straightforward law that empowers the president to deny entry to classes of aliens, grilled the Justice Department on whether there had been terrorist attacks by nationals of the affected countries — and then startled the DOJ lawyers by saying he’d done his own research and concluded, “The answer to that is none, as best I can tell.” That is, the judge wants to argue over the policy (not his job) rather than apply the law.
Then in Tuesday’s oral argument, the Ninth Circuit panel questioned the Justice Department about then-candidate Trump’s statements on the campaign trail. Apparently, at least some of the panel is trying to develop a factual record suggesting a sinister presidential plan to bar all Muslims from the United States — notwithstanding that the executive order, on its face and in its plain effect, does nothing of the kind. As we’ve noted, it does not apply to over 85 percent of the world’s Muslims, it does apply to non-Muslims in the seven specified countries, and the seven countries were drawn from an Obama-era statute.
The prudent course would be for the Ninth Circuit to stand down for now.
In obvious response to all this — particularly to Judge Robart — the Trump administration Wednesday provided the media with a list of terror cases involving suspects who came to the U.S. from the seven countries in question. As Fox News reports, the list “gave 24 examples of refugees and other immigrants from Somalia, Sudan, Iraq, Iran, Yemen, Syria and Libya who have been arrested on terror-related charges; most have been convicted.”
This heated back-and-forth makes for fascinating political theater. It is, however, inappropriate for an important national-security matter in active litigation before not one but two United States courts.
The prudent course would be for the Ninth Circuit to stand down for now. Meantime, if Judge Robart has any policy-related questions he thinks are pertinent to resolution of the injunction issue, he should amend his scheduling order to put the parties on notice of them. They would then have an opportunity to respond with legal authority — including authority on whether the judge should be second-guessing the president and Congress on a matter of national security involving foreign threats to the homeland.
Robart could then write an opinion based on a full record — and perhaps this time, he could even discuss the relevant legal issues and explain his reasoning in deciding them. Assuming Robart’s ruling on the preliminary injunction would be appealed, the Ninth Circuit could then consider the case the way an appellate court should: on a fully developed factual record with the legal issues crystallized.
Sending the case back to Judge Robart seems like a no-brainer under the circumstances. The fact that the Ninth Circuit has not yet taken that course — a course that must be even more apparent to the judges than it is to me — suggests that at least two judges on the panel are in a hurry to issue a ruling right now, despite all the inadequacies and unsettled factual disputes in the current record.
That can’t be a good sign for the Trump administration.
— Andrew C. McCarthy is a senior policy fellow at the National Review Institute and a contributing editor of National Review.