Posted by Curt on 4 February, 2017 at 10:48 am. 1 comment.


Josh Blackman:

On January 30, the State of Washington sought a nationwide injunction to put on hold the President’s January 27 executive order. (I wrote about the irony of Washington’s standing argument here). On February 2, DOJ filed a 34-page brief arguing that there was no standing, the state cannot bring a parens patriae action, the state was unlikely to prevail on the merits, it has shown no irreparable harm, and that any relief must be limited to plaintiff states.

On February 3, after a hearing, the district court issued a nationwide injunction, barring the implementation of the Executive Order.

The PDF, seven pages in length, has only the most threadbare analysis. There is one paragraph describing the procedural background, and another two paragraphs which recite the standards for granting a temporary restraining order. (As a former district court, I recognize copy-and-pasted boilerplate when I see it).

The actual legal analysis stretches across two paragraphs (though the former is conclusory).

There is no real analysis here. The order merely repeats the headers of Washington’s brief. Why are they likely to succeed on the merits? Who knows. Why is parens patriae a valid basis for standing here, even though courts have rejected this principle since Massachusetts v. Mellon (see Virginia v. Sebelius)? No answer. What is the limiting principle if a stated is injured when a federal action is “inflicted upon the operations and missions of [a state’s] public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds”? No clue.

Even in times of conflict, courts have a duty to explain their reasoning through written opinions. This falls far, far short of that standard. Further, unlike the Airport Cases, which were decided in wee hours after the executive order was issued, the court here had several days to think about these issues. Such a momentous decision warrants some analysis.

I’ll close on a delicious note of irony (this section copies from a post I wrote a few days ago).

Two years ago, in Texas v. United States, Washington Solicitor General Noah Purcell urged the 5th Circuit to reverse Judge Hanen’s nationwide injunction, stating that it was overboard. Specifically, the injunction should not extend to states that welcomed DAPA.

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