A federal judge’s February 3 ruling in Seattle, Washington, responding to an emergency motion brought by Washington State, issued a Temporary Restraining Order invalidating key parts of President Trump’s executive order entitled “Protecting the Nation from Terrorist Entry into the United States by Foreign Nationals.”
The judge’s order applies nationwide and is still in effect as of February 15, due to followup action by the federal Ninth Circuit Court of Appeals. How much of Trump’s order is actually undone by this, and how long the effect will last, is worth a closer look.
First, let’s understand the nature of a TRO. As its name implies, it’s temporary. It just puts a hold on things, maintaining the status quo (pre-executive order), until further court hearings can be held. So it’s not a final decision, and could later be reversed.
Nevertheless, a TRO points in the direction of how a court might treat the subject at hand, due to the list of items that must be proven before the court issues it. These include:
- That the plaintiff is eventually likely to succeed on the merits (the main substance) of the case.
- That the plaintiff is likely to suffer irreparable harm if the TRO is not granted.
- That the balance of equities tips in favor of the plaintiff, and
- That the TRO is in the public interest.
These raise the question of who is the “plaintiff” in this case. Technically speaking, it’s the states of Washington and Minnesota. Because a state is essentially a caretaker of its residents, it can take legal action to protect their interests. In this case, the two states alleged that the executive order adversely affected their residents in matters of employment, education, business, family relations, and freedom to travel.
But they didn’t stop there. The two states also alleged that they themselves were harmed by the damage Trump’s order inflicted on the operations and missions of their public universities and other institutions of higher learning, as well as the states’ operations, tax basis, and public funds.
The Washington court agreed, and issued the TRO “until such time as the court can hear and decide the states’ request for a preliminary injunction.”
Now, as to which parts of the order were affected. It covered sections 3(c), and 5(a), (b), (c), and (e). That means that:
- The 90-day ban on people entering the U.S. on immigrant or nonimmigrant visas from certain countries (all Muslim-majority) contained in Section 3(c) is now blocked.
- The 120-day suspension of the refugee admissions program contained in Section 5(a) is now blocked.
- The prioritizing of refugee claims based on religious persecution where the religion is a minority in the refugee applicant’s country of nationality contained in Section 5(b) (most likely to favor Christians in the countries where refugees are now coming from) is now blocked.
- The indefinite ban on Syrian refugees contained in Section 5(c) is now blocked.
- The order that refugees may still be admitted on a case-by-case basis but only if their entry is in the U.S. interest, in particular where the person is a religious minority in the country of nationality facing religious persecution, the person would enable the U.S. to conform its conduct to a preexisting international agreements, or the person is already in transit and denying admission would cause undue hardship, all contained Section 5(e), is now blocked.
Some sections of Trump’s executive order will remain in force. For example, refugee admissions are still limited to 50,000 total in fiscal year 2017. (It’s within the president’s power to set such a limit.)
And a section requiring all visa applicants to attend an interview (instead of benefiting from a waiver) remains in force as well.
Nevertheless, the substantive and discriminatory parts of the order have largely been gutted–for now.