# 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:** 2
**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, 3:25am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/21 "2017-02-04T03:25:15Z")
> [@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. The executive brach issues visas in accordance with federal law and regulations. The executive order placed additional conditions on the process, which the Plaintiffs here challenged. The court has temporarily blocked the executive order, which means that the visa application process goes back to existing statutes and regulations. ---
**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, 3:30am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/22 "2017-02-04T03:30:18Z")
> [@dofe](#): > > The executive brach issues visas in accordance with federal law and regulations. The executive order placed additional conditions on the process, which the Plaintiffs here challenged. The court has temporarily blocked the executive order, which means that the visa application process goes back to existing statutes and regulations. And AFAIU, the existing statutes and regulations give wide latitude to the executive branch in issuing visas. I don’t remember any requirements to give explanations to those rejected as to the reasons why. So - what if, for the next few months State Dept., following existing statutes and regulations, does not find any worthy supplicants for visas from those countries. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 4, 2017, 3:31am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/23 "2017-02-04T03:31:15Z")
The judge has issued a temporary restraining order, precluding the government from following the commands of the executive order. That means, they have to go back to following the rules that existed prior to the issuance of the executive order. The government doesn’t just get to block an application for a visa for any whim that it may want with respect to a specific person. So, if prior to the executive order, Person A’s application for a visa would have been granted, then after the TRO, Person A’s application would have to be granted. Or, on preview, what **dofe** said. ---
**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, 3:37am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/24 "2017-02-04T03:37:19Z")
> [@Richard\_Parker](#): > > 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. The executive branch has no authority, on its own to decide to tighten (or loosen) visa requirements from a given country? Doesn’t the immigration act of 1952 explicitly give the executive branch that authority? Did the amendments to that act nullify that authority? ---
**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, 3:47am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/25 "2017-02-04T03:47:39Z")
> [@John\_Mace](#): > > The executive branch has no authority, on its own to decide to tighten (or loosen) visa requirements from a given country? Doesn’t the immigration act of 1952 explicitly give the executive branch that authority? Did the amendments to that act nullify that authority? They have that authority, though limited by other provisions of the INA. More importantly, statutes don’t trump the Constitution. They do not have the authority to limit immigration for unconstitutional reasons, such as to keep Muslims out. The motion in the WA case makes several constitutional and statutory arguments: [Motion for Temporary Restraining Order | Washington & Minnesota v. Trump W.D. Wash. | Civil Rights Litigation Clearinghouse](https://www.clearinghouse.net/chDocs/public/IM-WA-0029-0002.pdf) ---
**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, 3:47am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/26 "2017-02-04T03:47:43Z")
> [@Okrahoma](#): > > And AFAIU, the existing statutes and regulations give wide latitude to the executive branch in issuing visas. I don’t remember any requirements to give explanations to those rejected as to the reasons why. So - what if, for the next few months State Dept., following existing statutes and regulations, does not find any worthy supplicants for visas from those countries. They give latitude to the executive branch, but that doesn’t mean they have carte blanche to do what they want – the decisions must still be consistent with statutes and regs. As to your second question, if no applicants from the seven named countries are approved for visas,\* Plaintiffs would simply do what anyone appealing a visa decision does – file a challenge with the BIA, and appeal to the pertinent federal circuit court if it’s again denied. \*If truly _no one_ from those countries is approved, that would be strong probative evidence that Plaintiffs could present to the court demonstrate that the government’s decision may have been based on something outside existing immigration law. ---
**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, 3:55am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/27 "2017-02-04T03:55:39Z")
> [@Richard\_Parker](#): > > They have that authority, though limited by other provisions of the INA. More importantly, statutes don’t trump the Constitution. They do not have the authority to limit immigration for unconstitutional reasons, such as to keep Muslims out. > > The motion in the WA case makes several constitutional and statutory arguments: [Motion for Temporary Restraining Order | Washington & Minnesota v. Trump W.D. Wash. | Civil Rights Litigation Clearinghouse](https://www.clearinghouse.net/chDocs/public/IM-WA-0029-0002.pdf) Well, it will be interesting to see how that plays as it runs up the appeal process. Without getting into GD territory here (I think the ban is terrible policy), it would seem that the court is delving deep into policy mattes here and making some rather far fetched claims about the motivation of the executive branch. That the court can claim to know that the executive branch is “fear mongering” goes beyond the policy realm and into the political realm. It will be interesting to see what happens. ---
**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, 4:00am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/28 "2017-02-04T04:00:00Z")
Oops, that post was all non-GQ opinion. ---
**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, 4:04am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/29 "2017-02-04T04:04:55Z")
> [@Richard\_Parker](#): > > Oops, that post was all non-GQ opinion. That’s OK. I was wondering if the president could invoke the 2001 AUMF as authority to what he is doing. IOW, can it really be that he can order a drone strike on person X, but he can’t deny person X a visa to enter the US? Is the visa program not a tool in the arsenal of waging war against terrorists? ---
**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, 4:05am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/30 "2017-02-04T04:05:35Z")
Here’s some GQ-worthy facts: [ul] [li]The Ninth Circuit motion panel right now is very favorable to upholding this TRO based on their prior jurisprudence.[/li] [li]The Supreme Court has eight members, and a split upholds the appeals court.[/li] [li]Establishment Clause claims can indeed turn on the motivations of the President, including his statements about wanting more Christians and the statements in the EO itself about honor killings, sexual orientation discrimination, and preference for minority religions in Muslim countries.[/li] [li]There are also a half-dozen other claims that have been held to have merit by 90% of the courts that have heard them so far.[/li][/ul] ---
**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, 4:07am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/31 "2017-02-04T04:07:04Z")
> [@John\_Mace](#): > > Well, it will be interesting to see how that plays as it runs up the appeal process. Without getting into GD territory here (I think the ban is terrible policy), it would seem that the court is delving deep into policy mattes here and making some rather far fetched claims about the motivation of the executive branch. That the court can claim to know that the executive branch is “fear mongering” goes beyond the policy realm and into the political realm. It will be interesting to see what happens. The document you were quoting was not issued by the court – it was filed by the Plaintiffs. The Court has not yet considered the underlying arguments, and nowhere in its TRO does the Court mention fear mongering or any basis as a reason to block the executive order. ---
**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, 4:08am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/32 "2017-02-04T04:08:05Z")
> [@John\_Mace](#): > > That’s OK. I was wondering if the president could invoke the 2001 AUMF as authority to what he is doing. IOW, can it really be that he can order a drone strike on person X, but he can’t deny person X a visa to enter the US? Is the visa program not a tool in the arsenal of waging war against terrorists? The problem with limiting the drone strike power is that’s it’s all secret. The cases just get dismissed on secrecy grounds. Immigration isn’t, so they get to the merits. In theory, the president’s drone strike power would be similarly limited by the Constitution, but you never get to the merits. The other issue is the standing of non-citizens outside the US, and to what extent they are protected by constitutional rights. If Amazon had hired a bunch of people targeted for drone strikes, it’d be a lot easier to get the issue decided in a court because a US company would have a clear legal interest. ---
**Author:** ![watchwolf49](https://avatars.discourse-cdn.com/v4/letter/w/e9c0ed/32.png) [@watchwolf49](https://boards.straightdope.com/u/watchwolf49)\ **Post date:** [February 4, 2017, 4:09am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/33 "2017-02-04T04:09:37Z")
Isn’t this just a temporary order? … the merits of the case and the government’s defense still needs to be presented to the court … I guess a trial had … and then the judge makes his final decision … In the red car example above … a red car owner files a suit against the EO prohibiting red cars … it will take months to get to trial … so in the mean time the EO is suspended until the matter does come to trial … in this case the depravation to red car owners is too great to impose until due process of law is had … So this judge hasn’t overturned the EO yet … that process is still to come … once it’s over and a final ruling issued … then either party can take the case to the circuit court of appeals … and that’s only if there was a mistake in the trial procedure, or a matter of the Constitution should come up … otherwise there’s no appeal to be had … strictly speaking, we can’t appeal a case just because we lose … ---
**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, 4:14am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/34 "2017-02-04T04:14:18Z")
Can we expect an expedited review by The Supremes? As the president is claiming this is a matter of national security, one would think that spending 2 years of appeals could be problematic. ---
**Author:** ![Trinopus](https://avatars.discourse-cdn.com/v4/letter/t/2bfe46/32.png) [@Trinopus](https://boards.straightdope.com/u/Trinopus)\ **Post date:** [February 4, 2017, 4:20am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/35 "2017-02-04T04:20:34Z")
> [@John\_Mace](#): > > That’s OK. I was wondering if the president could invoke the 2001 AUMF as authority to what he is doing. IOW, can it really be that he can order a drone strike on person X, but he can’t deny person X a visa to enter the US? Is the visa program not a tool in the arsenal of waging war against terrorists? If the President sought to deny entrance to the U.S. by the persons targeted by drone strikes, I don’t think there would be much objection. ---
**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, 4:30am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/36 "2017-02-04T04:30:18Z")
> [@John\_Mace](#): > > Can we expect an expedited review by The Supremes? As the president is claiming this is a matter of national security, one would think that spending 2 years of appeals could be problematic. The appeal of the TRO will get heard by SCOTUS very quickly. But they won’t get the case on the merits for a while. So if the injunctions are sustained, lots of people will get here in the interim. Also, obviously, large parts of the EO are inherently time-limited. ---
**Author:** ![DSYoungEsq](https://avatars.discourse-cdn.com/v4/letter/d/c6cbf5/32.png) [@DSYoungEsq](https://boards.straightdope.com/u/DSYoungEsq)\ **Post date:** [February 4, 2017, 11:23am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/37 "2017-02-04T11:23:30Z")
Oh, my goodness, so much non-legal stuff being said here. TROs need the following showing: 1. Likelihood of the plaintiff prevailing on the merits of the underlying cause of action; 2. Irreparable harm if the TRO does not issue; 3. The potential harm of the TRO to the opposing party is less than the harm the action to be restrained will cause; 4. Issuing the TRO will not have an adverse affect upon the public interest. In addition, the petition for the TRO must show that there is no other adequate legal remedy. TROs are generally issued _ex parte_, meaning the opposing party doesn’t have a chance to meaningfully respond to the petition (they may not even have been present at any point during discussion of the TRO). They are intended to put the situation into a holding pattern while the parties debate the merits of a preliminary injunction (which requires notice to the opposing party and a chance for that party to respond to the petition for injunction). So, for this TRO to have issued, Judge Robart has to have agreed with the assertion of the plaintiff/petitioner that they will likely succeed on the merits of their underlying assertion that the Administration cannot lawfully preclude all applicants for visas from the seven countries from receiving a visa, etc. As a general rule, if I recall correctly, the greater the showing of irreparable harm, the less convincing the petitioner has to be about eventual success. Obviously, the government has yet to have a chance to show that plaintiffs are wrong in their assertion. The Supreme Court of the United States will not have this matter presented to them, yet. The initial attempt by the Administration to have the TRO removed will be by petition to the Ninth Circuit Court of Appeals. Since this is a TRO, the appeal process will undoubtedly be expedited; it’s not going to take much time at all for there to be a final adjudication as to whether the TRO should have issued. ---
**Author:** ![Quartz](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/quartz/32/267_2.png) [@Quartz](https://boards.straightdope.com/u/Quartz)\ **Post date:** [February 4, 2017, 11:40am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/38 "2017-02-04T11:40:03Z")
What happens when a federal judge blocks an executive order like this and is then overruled? Are they fired? Is there any comeback at all? Because if not, any political federal judge could make hay. ---
**Author:** ![Alley\_Dweller](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/alley_dweller/32/430_2.png) [@Alley\_Dweller](https://boards.straightdope.com/u/Alley_Dweller)\ **Post date:** [February 4, 2017, 11:46am UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/39 "2017-02-04T11:46:14Z")
> [@Quartz](#): > > What happens when a federal judge blocks an executive order like this and is then overruled? Are they fired? Is there any comeback at all? Because if not, any political federal judge could make hay. Article II of the Constitution says “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour, and shall, at stated times, receive for their services, a compensation, which shall not be diminished during their continuance in office.” So they stay in office until they resign, die, or are impeached and convicted. Impeachment is the tool for dealing with bad judges. ---
**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, 1:11pm UTC](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953/40 "2017-02-04T13:11:25Z")
The oral argument is on video, FWIW: [http://www.uscourts.gov/cameras-courts/state-washington-vs-donald-j-trump-et-al](http://www.uscourts.gov/cameras-courts/state-washington-vs-donald-j-trump-et-al) [Previous page](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953.md?page=1) [Next page](https://boards.straightdope.com/t/federal-judge-blocks-presidents-executive-order-how/778953.md?page=3)