# Federal judge blocks President's executive order: how? **URL:** \ **Category:** Great Debates\ **Created:** [February 4, 2017, 1:50am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953 "2017-02-04T01:50:48Z")\ **Posts on this page:** 20\ **Page:** 1
**Author:** ![Lubricious\_Integument](https://avatars.discourse-cdn.com/v4/letter/l/82dd89/32.png) [@Lubricious\_Integument](https://boards.straightdope.com/u/Lubricious_Integument)\ **Post date:** [February 4, 2017, 1:50am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/1 "2017-02-04T01:50:48Z")
OK, the actual news headline is “Federal judge in Seattle blocks Trump’s travel ban” but that isn’t the point of the question. Please make this nonpartisan. What is the legal process (or precedent) by which a judge can block an executive order? Why do they have that authority? Can they be overruled by anything other than a higher court? Add your own questions here… ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [February 4, 2017, 2:01am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/2 "2017-02-04T02:01:32Z")
> [@Lubricious\_Integument](#): > > OK, the actual news headline is “Federal judge in Seattle blocks Trump’s travel ban” but that isn’t the point of the question. > > Please make this nonpartisan. > > What is the legal process (or precedent) by which a judge can block an executive order? Why do they have that authority? Can they be overruled by anything other than a higher court? Add your own questions here… Judges definitely have the authority - they blocked Obama’s executive orders too. The restraining order by the judge can prevent deportations. But I am very doubtful it can force the State Dept. to grant visas it was directed not to. And it definitely cannot bring in refugees that the government does not allow in. ---
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [February 4, 2017, 2:05am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/3 "2017-02-04T02:05:04Z")
I don’t see what the confusion is, if we leave out the merits of this particular case. Of course a court can block an executive order. Imagine Trump orders all red cars seized immediately and donated to the Klan. I would think we could all imagine a Federal Judge issuing an order that prohibits implementation of that order. The authority is the United States Constitution. And, yes, those orders can be reviewed and upheld or overturned by a higher court, all the way to the U.S. Supreme Court. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [February 4, 2017, 2:09am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/4 "2017-02-04T02:09:09Z")
> [@Procrustus](#): > > I don’t see what the confusion is, if we leave out the merits of this particular case. > Of course a court can block an executive order. Imagine Trump orders all red cars seized immediately and donated to the Klan. I would think we could all imagine a Federal Judge issuing an order that prohibits implementation of that order. The authority is the United States Constitution. And, yes, those orders can be reviewed and upheld or overturned by a higher court, all the way to the U.S. Supreme Court. The confusion is about the actual mechanism of the order. The order can prevent an action - like deportation. I don’t see how it can force an action like issuing a visa to a foreigner or deciding to bring in a refugee, except in individual cases. But IANAL. Maybe Bricker or another board lawyer can come in and explain. ---
**Author:** ![dofe](https://avatars.discourse-cdn.com/v4/letter/d/7ba0ec/32.png) [@dofe](https://boards.straightdope.com/u/dofe)\ **Post date:** [February 4, 2017, 2:13am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/5 "2017-02-04T02:13:46Z")
> [@Procrustus](#): > > The authority is the United States Constitution. This is the essential answer to the OP’s question of how a judge can block an executive order. Ultimately, the president (and the executive branch) can only act within the authority granted by the Constitution. Similarly, Congress can only act according to the powers granted to it by article I of the Constitution. Federal courts can determine that an executive action is contrary to the Constitution or to a federal statute. Those courts can also determine that Congress passed a statute that is unconstitutional, and strike down the statute. ---
**Author:** ![dofe](https://avatars.discourse-cdn.com/v4/letter/d/7ba0ec/32.png) [@dofe](https://boards.straightdope.com/u/dofe)\ **Post date:** [February 4, 2017, 2:19am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/6 "2017-02-04T02:19:19Z")
> [@Lubricious\_Integument](#): > > What is the legal process (or precedent) by which a judge can block an executive order? Why do they have that authority? Can they be overruled by anything other than a higher court? Add your own questions here… Since this the GQ, the answer is that federal courts have the authority to do so under Article III of the Constitution. ---
**Author:** ![Tim\_T-Bonham.net](https://avatars.discourse-cdn.com/v4/letter/t/46a35a/32.png) [@Tim\_T-Bonham.net](https://boards.straightdope.com/u/Tim_T-Bonham.net)\ **Post date:** [February 4, 2017, 2:22am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/7 "2017-02-04T02:22:00Z")
> [@Okrahoma](#): > > The order can prevent an action - like deportation. I don’t see how it can force an action like issuing a visa to a foreigner or deciding to bring in a refugee… There were some prominent cases a few years ago about County Clerks who refused to issue marriage licenses to gay couples, and the courts ordered them to issue the license. So it seems that a court can affirmatively order a government employee to do their job. ---
**Author:** ![friedo](https://avatars.discourse-cdn.com/v4/letter/f/8edcca/32.png) [@friedo](https://boards.straightdope.com/u/friedo)\ **Post date:** [February 4, 2017, 2:26am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/8 "2017-02-04T02:26:20Z")
> [@t-bonham@scc.net](#): > > So it seems that a court can affirmatively order a government employee to do their job. See the always-cool sounding [writ of mandamus](https://en.wikipedia.org/wiki/Mandamus#United_States). ---
**Author:** ![dofe](https://avatars.discourse-cdn.com/v4/letter/d/7ba0ec/32.png) [@dofe](https://boards.straightdope.com/u/dofe)\ **Post date:** [February 4, 2017, 2:27am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/9 "2017-02-04T02:27:57Z")
> [@Okrahoma](#): > > The confusion is about the actual mechanism of the order. The order can prevent an action - like deportation. I don’t see how it can force an action like issuing a visa to a foreigner or deciding to bring in a refugee, except in individual cases. > > But IANAL. Maybe Bricker or another board lawyer can come in and explain. I don’t think the OP (or anyone else) is asserting that courts have the power to issue visas or bring in refugees. Courts certainly have the power to issue injunctions in some situations (e.g., when a federal law specifically provides that courts can order a party, typically a government agency, to do something). But that’s not what happened here – the federal judge in Seattle (Robart) only issued an oral [temporary restraining order](http://www.seattletimes.com/seattle-news/politics/federal-judge-in-seattle-halts-trumps-immigration-order/): > [@](#): > > In his ruling, Robart said Washington had met the high burden to justify a restraining order by showing Trump’s order was causing “immediate and irreparable injury,” and that the state had a substantial likelihood of winning its underlying lawsuit challenging the constitutionality of the travel ban. That does not mean he is issuing visas or making decisions on bringing in refugees, which would be outside his judicial authority. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [February 4, 2017, 2:39am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/10 "2017-02-04T02:39:49Z")
> [@t-bonham@scc.net](#): > > There were some prominent cases a few years ago about County Clerks who refused to issue marriage licenses to gay couples, and the courts ordered them to issue the license. So it seems that a court can affirmatively order a government employee to do their job. Except in those cases there was a clear-cut eligibility for the license. In case of a visa or refugee admission, there isn’t. ---
**Author:** ![Okrahoma](https://avatars.discourse-cdn.com/v4/letter/o/90db22/32.png) [@Okrahoma](https://boards.straightdope.com/u/Okrahoma)\ **Post date:** [February 4, 2017, 2:42am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/11 "2017-02-04T02:42:01Z")
> [@dofe](#): > > I don’t think the OP (or anyone else) is asserting that courts have the power to issue visas or bring in refugees. Courts certainly have the power to issue injunctions in some situations (e.g., when a federal law specifically provides that courts can order a party, typically a government agency, to do something). But that’s not what happened here – the federal judge in Seattle (Robart) only issued an oral [temporary restraining order](http://www.seattletimes.com/seattle-news/politics/federal-judge-in-seattle-halts-trumps-immigration-order/): > > That does not mean he is issuing visas or making decisions on bringing in refugees, which would be outside his judicial authority. If so, he’s not really “blocking” the executive order. That is, he is blocking marginal parts of it. But the bulk of it - no more visas from those countries, no more refugees for this long - is not blocked. ---
**Author:** ![smithsb](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smithsb/32/12107_2.png) [@smithsb](https://boards.straightdope.com/u/smithsb)\ **Post date:** [February 4, 2017, 2:43am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/12 "2017-02-04T02:43:47Z")
> [@friedo](#): > > See the always-cool sounding [writ of mandamus](https://en.wikipedia.org/wiki/Mandamus#United_States). Huh, I thought they were still on the endangered species list? 😉 ---
**Author:** ![dofe](https://avatars.discourse-cdn.com/v4/letter/d/7ba0ec/32.png) [@dofe](https://boards.straightdope.com/u/dofe)\ **Post date:** [February 4, 2017, 2:51am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/13 "2017-02-04T02:51:44Z")
> [@Okrahoma](#): > > If so, he’s not really “blocking” the executive order. That is, he is blocking marginal parts of it. But the bulk of it - no more visas from those countries, no more refugees for this long - is not blocked. It’s still unclear, as Judge Robart’s order was oral (the USAO is awaiting the written order that includes the reasoning). Nonetheless, Robart issued a temporary restraining order prohibiting federal employees from enforcing Trump’s executive order. From a legal standpoint, this means that CBP can’t use Trump’s executive order as a basis to prohibit travelers from the seven named countries who hold valid visas or who are permanent legal residents from legally entering the US. This doesn’t mean Robart is issuing visas or deciding who can enter as refugees, as you keep asserting for some reason. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 4, 2017, 2:52am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/14 "2017-02-04T02:52:19Z")
> [@Okrahoma](#): > > If so, he’s not really “blocking” the executive order. That is, he is blocking marginal parts of it. But the bulk of it - no more visas from those countries, no more refugees for this long - is not blocked. As of tonight, pretty much the whole thing is blocked: [https://www.justsecurity.org/wp-content/uploads/2017/02/Seattle-Court-Order-19717309322.pdf](https://t.co/3tW8mH2eeC) (PDF of Order). Note: the current Ninth Circuit motions panel is two liberals and a conservative, so an emergency stay will probably not be granted if applied for. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 4, 2017, 2:58am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/15 "2017-02-04T02:58:45Z")
CNN reports that CBP has said it will be “re-instating visas.” ---
**Author:** ![Projammer](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/projammer/32/559_2.png) [@Projammer](https://boards.straightdope.com/u/Projammer)\ **Post date:** [February 4, 2017, 3:01am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/16 "2017-02-04T03:01:32Z")
When I first saw this story and where the judge presides there was a question that occurred to me. What if the first judge they go to doesn’t grant the injunction? Is there a double jeopardy to these things or can they just keep going to the next judge on the list until they get what they want? ---
**Author:** ![dofe](https://avatars.discourse-cdn.com/v4/letter/d/7ba0ec/32.png) [@dofe](https://boards.straightdope.com/u/dofe)\ **Post date:** [February 4, 2017, 3:04am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/17 "2017-02-04T03:04:34Z")
> [@Richard\_Parker](#): > > As of tonight, pretty much the whole thing is blocked: [https://www.justsecurity.org/wp-content/uploads/2017/02/Seattle-Court-Order-19717309322.pdf](https://t.co/3tW8mH2eeC) (PDF of Order). > > Note: the current Ninth Circuit motions panel is two liberals and a conservative, so an emergency stay will probably not be granted if applied for. Thanks – I had not seen that yet when I typed out my post. It does look a fairly exhaustive block (including sections 3 and 5). ---
**Author:** ![John\_Mace](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/john_mace/32/185_2.png) [@John\_Mace](https://boards.straightdope.com/u/John_Mace)\ **Post date:** [February 4, 2017, 3:12am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/18 "2017-02-04T03:12:58Z")
> [@Richard\_Parker](#): > > As of tonight, pretty much the whole thing is blocked: [https://www.justsecurity.org/wp-content/uploads/2017/02/Seattle-Court-Order-19717309322.pdf](https://t.co/3tW8mH2eeC) (PDF of Order). > > Note: the current Ninth Circuit motions panel is two liberals and a conservative, so an emergency stay will probably not be granted if applied for. > [@Richard\_Parker](#): > > CNN reports that CBP has said it will be “re-instating visas.” I’m really having trouble understanding how this operates. Surely the executive branch has authority to issue a visa or not in any individual case, so how can the court just say “issue visas”. Issue visas to whom? Anyone who applies? People are denied visas all the time from all sorts of countries. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [February 4, 2017, 3:18am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/19 "2017-02-04T03:18:02Z")
> [@John\_Mace](#): > > I’m really having trouble understanding how this operates. Surely the executive branch has authority to issue a visa or not in any individual case, so how can the court just say “issue visas”. Issue visas to whom? Anyone who applies? People are denied visas all the time from all sorts of countries. It means they issue visas as they normally would have without the executive order. So people who had them revoked on the basis of the EO will have an argument to have them reinstated. And new applicants will be considered under the pre-EO rules. Likely, people will have arguments in court about whether any denial going forward has a basis other than in the EO. ---
**Author:** ![running\_coach](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/running_coach/32/15836_2.png) [@running\_coach](https://boards.straightdope.com/u/running_coach)\ **Post date:** [February 4, 2017, 3:18am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/20 "2017-02-04T03:18:05Z")
> [@John\_Mace](#): > > I’m really having trouble understanding how this operates. Surely the executive branch has authority to issue a visa or not in any individual case, so how can the court just say “issue visas”. Issue visas to whom? Anyone who applies? People are denied visas all the time from all sorts of countries. As I understand it, it’s re-instate the _valid_ visas that were canceled. [Next page](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953.md?page=2)