Quick Primer

Quick Primer:

Judge James L. Robart first task was to establish standing, then apply the four factors relating to an injunction.  To find standing the states had to demonstrate sufficient connection to the executive order and harm from the president’s executive order to support their participation in the case.

The harm does not need to be direct but there must be a reasonable relation to the states.  By issuing the injunction, the judge found the states had standing.

Factors

Next, Judge James L. Robart had to make findings that:

(1) The State of Washington and Minnesota have reasonable likelihood of success on the merits of the case;

(2) State of Washington and Minnesota will suffer irreparable harm if preliminary injunction is not granted;

(3) when balancing the hardships between the federal government for delaying the executing over compared to the hardships for implementing it, tips in its favor of the states; and

(4) the executive order has an adverse impact on the public interest.

Judge James L. Robart made these findings, but did not make comprehensive findings of fact in support.  The Federal Circuit (Washington) has stated that it will reverse a preliminary injunction unless the court makes comprehensive findings in support of the injunction.*

The 9th circuit’s job is different from Judge James L. Robart’s.

The 9th circuit must review Judge James L. Robart decision for an abuse of discretion.  This means it will defer to Judge James L. Robart if there is any evidence to support his decision.  This means Judge James L. Robart decision will be upheld if any reasonable judge “could have possibly” come to the same decision, even if the justices of the 9th circuit thinks he got it wrong.

It is very difficult to overturn a lower courts TRO or preliminary injunction because the lower court judge is usually in the best position to evaluate the case. For this reason alone, this appeal will likely not go Trump way.  However, because Judge James L. Robart did not make specific findings of fact* on the record to demonstrate “why” he found in favor of Plaintiffs/Appellees with respect the four factors, the injunction is open for attack.

* Technically, what Judge James L. Robart issued was a Temporary Restraining Order (TRO), which is an emergency temporary injunction.  Another hearing is generally held, where the judge will determine whether a preliminary injunction, something more permanent, will go into place.  Generally, this is the moment where the judge will present findings of fact to support the injunction.

Hope this was helpful.