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Last month, when a federal judge in Seattle issued a temporary restraining order against President Donald Trump’s original executive order on immigration, the Trump administration mobilized swiftly.
Within less than 24 hours, on a Saturday, the Trump administration filed an appeal, asking the 9th U.S. Circuit Court of Appeals to intervene on an emergency basis.
On Twitter, Trump himself outlined the reasoning behind the urgency: “Because the ban was lifted by a judge, many very bad and dangerous people may be pouring into our country.”
Ultimately, the Trump administration lost at the 9th Circuit; nonetheless, it has since doubled down on its central argument for the travel ban: that it’s needed to address an urgent national security crisis.
Yet, in the legal wrangling over the revised order, the Trump administration hasn’t shown much urgency in defending it in the courts.
In fact, it appears likely that two injunctions — issued two weeks ago in Hawaii and Maryland — will keep the travel ban on hold for at least another week, if not longer.
In Maryland, the Trump administration waited nearly a week before asking the 4th U.S. Circuit Court of Appeals to stay the district court’s preliminary injunction against the revised order.
And, under the 4th Circuit’s schedule, the filings on the stay request won’t be complete until April 5.
In Hawaii, the Trump administration has been moving at an even more leisurely pace — it has yet to challenge a temporary restraining order issued March 15 by U.S. District Court Judge Derrick Watson.
And, instead of immediately filing an appeal, the Trump administration has insisted on a new round of filings over whether Watson should turn his temporary ruling into a longer-lasting injunction.
Neal Katyal, a lead attorney on the lawsuit, argues that the “plodding pace” of the Trump administration undercuts its case for the travel ban.
“The government’s ‘national security motivations’ have grown only more ‘questionable,'” Katyal wrote in a motion filed last week. “Rather than rushing to the (9th) Circuit, as it did the last time its executive order was subject to a nationwide injunction, the government has resisted at every turn plaintiffs’ efforts to expedite these proceedings.”
Andrea Freeman, a law professor at the University of Hawaii, says the Trump administration might be looking for a “circuit split” to make sure that the U.S. Supreme Court — possibly with Neil Gorsuch confirmed as a new justice — will take up the appeal.
“If they go to the 4th Circuit first and get a positive outcome in their favor, and then they appeal to the 9th Circuit and get a negative one like the last time, they’ve got a split,” Freeman said. “That’s something that the Supreme Court would have to resolve.”
But, in a motion filed Friday, Justice Department lawyers deny that they’re playing a waiting game.
Instead, the lawyers say, the fact that the Trump administration didn’t rush to the 9th Circuit this time means it “respect(s) this court’s role in issuing findings with respect to the parties’ dispute.”
At issue is whether the same findings that prompted Watson to issue his temporary restraining order should be enough for a preliminary injunction — a long-term stay that will remain in place until the case is resolved.
On paper, at least, the argument for the preliminary injunction appears strong, given that the standards for issuing the two injunctions are considered “substantially identical.”
But the lawyers say the issue deserves a more careful evaluation, saying that the courts “routinely narrow the scope of relief previously granted in a (temporary restraining order) when entering preliminary injunctions.”
In a motion filed Saturday, Katyal rebuts the Trump administration’s arguments, saying that the courts have narrowed the scope of injunctions only when there’s “some changed circumstance.”
Katyal argues that the Trump administration can identify no such changes.
Instead, Katyal points out, the Trump administration simply recycles the same arguments that Watson has already considered — and flatly rejected — before issuing his initial ruling.
“Defendants do not attempt to argue otherwise or offer a single reason why any of those well-supported findings was incorrect,” Katyal wrote. “They simply ‘incorporate by reference’ the arguments they made in opposition to the (temporary restraining order) motion. But the court did not find those arguments persuasive last week, and they have not grown more so in the intervening days.”
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