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Washington v. Trump: The Ninth Circuit Should Admonish Trump As To Minimal Standards Of Care

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So-called Judge James L. Robart
So-called Judge James L. Robart
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Beyond cavil, Trump's executive order suddenly barring immigration from seven Muslim nations was over-hastily drafted and so chaotically enforced. This reprehensible fact alone should be the primary ground for dismissing Trump's motion asking the Ninth Circuit to stay District Court Judge James L. Robart's Temporary Restraining Order (TRO), which suspends the travel restrictions only pending disposition of a promptly scheduled trial court motion for a preliminary injunction. The Ninth Circuit panel should use this early opportunity to put Trump on plain notice that, unlike his notoriously inaccurate and confrontational tweets, his executive orders, and his legal filings in defense of them, must meet minimal professional standards of competence and care, especially where harsh and global consequences promptly accrue. In brief, the court of appeal should peremptorily rule that Trump's motion for a stay of the TRO is without merit, e.g. as in the following quick and dirty outline of a proposed Order Denying Stay:


Trump's motion for a stay of the Temporary Restraining Order is hereby DENIED.

The state of Washington plainly has standing based (at least) on its proprietary injuries.

The original executive order restricting immigration, on which Trump rests his defense, is substantially moot. Most notably, green card holders have since been exempted, so that a very different order, not yet in evidence, is now in effect. Thus, Trump impertinently asks this court to prematurely review and accredit what is presently an unclear, half-baked defense.

Trump contends that the executive order issued as an unreviewable executive judgment; and he claims national security prerogatives and duties, including vigilance for the public safety. But vigilance is not a matter of mere speed. On the contrary, vigilance is directly at odds with rushed action. Festina lente. [1]

At present, there is neither a plain nor a declared state of imminent emergency. It is frivolous to argue otherwise, given the complete lack of homeland damages caused by immigrants from the targeted seven states. In such unexceptional circumstances, executive authority is far less than swathing, let alone absolute; and it is unthinkable that this court would perhaps unnecessarily immediately reinstate the manifestly injurious and global chaos that the TRO has temporarily quieted.

It might be within the executive's tactical prerogatives to surprise, provoke and confuse enemies, if not the entire world. But the executive is hereby admonished to henceforth be mindful that surprise and confusion are antithetical to courts, and that, where particularly injurious, executive conduct that is beyond the bounds of reason or that lacks due diligence is ordinarily an actionable abuse of power.

Trump alternatively requests that this court in any case limit the TRO to what he contends is the scope of this action. But that scope is contested. Also, in light of changes to the executive order not yet adequately in evidence, that scope is not as yet so determinate as to be justiciable.

WHEREFORE, the case is remanded for further proceedings consistent with this order, based on an updated executive order that is not moot.

[1] Make haste slowly.

(Article changed on February 8, 2017 at 18:23)

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Clifford Johnson is a semi-academic naturalized Brit. He first entered the U.S. as a rah-rah Harkness Fellow. For theater, language, and also as a questionable ex-Brit, Johnson adopts a Tom Paine II persona. His activist credentials comprise serial (more...)
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