Breaking: DOJ Files Emergency Motion for Administrative Stay in Washington v. Trump

February 5th, 2017

The motion is here. Here is the introduction. I will offer analysis as I make my way through the brief.

The district court here nevertheless issued an immediate, nationwide injunction barring enforcement of the Order, accompanied by virtually no legal analysis. R 52 (Exhibit C).

The district court’s sweeping injunction should be stayed pending appeal. It conflicts with the basic principle that “an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application, for the power to admit or exclude aliens is a sovereign prerogative.” Landon v. Plasencia, 459 U.S. 21, 32 (1982). It also contravenes the considered judgment of Congress that the President should have the unreviewable authority to suspend the admission of any class of aliens. The district court did not confront those authorities; indeed, it gave no explanation why the State of Washington has a high likelihood of success on the merits of its claims. And it entered the injunction at the behest of a party that is not itself subject to the Executive Order; lacks Article III standing or any right to challenge the denial of entry or visas to third-party aliens; and brings a disfavored facial challenge. The injunction is also vastly overbroad— it is untethered to Washington’s particular claims; extends even to aliens abroad who currently have no visas; and applies nationwide, effectively overriding the judgment of another district court that sustained the Executive Order against parallel challenges.

The balance of harms weighs strongly in favor of a stay, as well as an immediate administrative stay pending consideration of the request for a full stay pending appeal. The injunction immediately harms the public by thwarting enforcement of an Executive Order issued by the President, based on his national security judgment. As the President acted well within both statutory and constitutional authorization, the relief irreparably harms our system of government by contravening the Constitution’s separation of powers. The State, by comparison, has identified only speculative harms it would suffer from temporary suspension of the entry of aliens affected by the Order, and that harm could be minimized by expediting appeal.