By Roger J. Katz, Attorney at Law and Stephen L. D’Andrilli ~ Part 4
New York, NY -(Ammoland.com)- The State of Washington alleges that the President’s Executive Order harms the state in the following ways:
“Washington’s interest in protecting the health, safety, and well-being of its residents, including protecting its residents from harms to their physical or economic health, is a quasi-sovereign interest.
Washington also has an interest in ensuring that its residents are not excluded from the benefits that flow from participation in the federal system, including the rights and privileges provided by the U.S. Constitution and federal law.
Washington’s interest in preventing and remedying injuries to the public’s health, safety, and well-being extends to all of Washington’s residents, including individuals who suffer indirect injuries and members of the general public.
Immigration is an important economic driver in Washington. Many workers in Washington’s technology industry are immigrants, and many of those immigrant workers are from Muslim-majority countries.
Many companies in Washington are dependent on foreign workers to operate and grow their businesses.
The technology industry relies heavily on the H-1B visa program, through which highly skilled workers like software engineers are permitted to work in the United States. Washington ranks ninth in the U.S. by number of applications for high-tech visas.
Microsoft, a corporation headquartered in Redmond, Washington, is the State’s top employer of H-1B visa holders and employs nearly 5,000 people through the program. Other Washington-based companies, including Amazon, Expedia, and Starbucks, employ thousands of H-1B visa holders.
Washington-based companies, including Amazon, Expedia, and Starbucks, employ thousands.
The market for highly skilled workers and leaders in the technology industry is extremely competitive. Changes to U.S. immigration policy that restrict the flow of people may inhibit these companies’ ability to adequately staff their research and development efforts and recruit talent from overseas. If recruiting efforts are less successful, these companies’ abilities to develop and deliver successful products and services may be adversely affected.
Microsoft’s U.S. workforce is heavily dependent on immigrants and guest workers. At least 76 employees at Microsoft are citizens of Iran, Iraq, Syria, Somalia, Sudan, Libya, or Yemen and hold U.S. temporary work visas.
There may be other employees with permanent-resident status or green cards. These employees may be banned from re-entering the U.S. if they travel overseas or to the company’s offices in Vancouver, British Columbia.”
The State thereupon asks, inter alia, for the Court to enjoin the Defendants, Donald Trump, President of the United States, and John Kelly, Secretary of the Department of Homeland Security, from implementing the Order. This means the State requests the U.S. District Court to issue its own Order preventing the President from exercising the President’s duty to faithfully execute the laws of the U.S., prior to an adversarial proceeding that would give the President and the Secretary of DHS an opportunity to be heard in open Court.
The district court should never have issued a TRO, enjoining the U.S. President from carrying out his executive order that was designed merely and only to protect this Nation and the American public from real harm posed by those individuals entering this country from several named countries that harbor terrorists.
The U.S. District Court should have summarily denied issuance of an injunction. Why? Injunctions are extraordinary remedies.
Courts generally frown on issuing injunctions because injunctions amount to ex parte action. That means a Court renders an injunction prohibiting a Party against whom the injunction is issued from engaging in a particular action. The Court that issued an injunction is operating on the say-so of one party without bothering to hear from the other party against whom the injunction is issued. That is not how our legal system is meant to function. Our system is an adversarial system of justice. This means that each Party to a lawsuit is promised an opportunity to be heard, to present evidence in his or her behalf, and to have an opportunity to challenge the veracity of the allegations made against that Party. When a Court issues an injunction on the allegations proffered by one Party before the other Party has had an opportunity to be heard, the adversarial system of justice is dispensed with, and justice is denied the Party whose rebuttal arguments are never heard. This is bad enough where individuals stand to lose much in the way of their individual rights under the law.
It is absolute insanity where, as here, the entire Nation and its citizens are placed at risk due to the action of one judge, operating out of one Court who orders that his injunction be given nationwide effect.
What Is The Legal Mechanism For Issuing A Preliminary Injunction?
In the Ninth Circuit, A Court will issue an injunction—in the instant cast—the most extraordinary injunction—a Temporary Restraining Order (TRO)—when the Court is satisfied: one, that a Plaintiff is likely to suffer irreparable harm if the injunction isn’t issued immediately, and, two, the Party that seeks an injunction is likely to win on the merits, and, three, the equities tip in favor of the Party seeking an injunction, and if, four, issuance of an injunction is in the public interest.
All four factors must be present. But, looking at just one factor here, namely, that Plaintiffs here, the State of Washington and the State of Minnesota, will, as the Court has determined, be irreparably harmed if the Court does not immediately prevent implementation of the U.S. President’s Order, the Complaint is devoid of anything concrete that so much as suggests the States would suffer irreparable harm if the Court does not enjoin the U.S. President and DHS from implementing the Executive Order. Yet, the District Court itself acknowledged, in Washington v. Trump, 2:17-cv-00141 (W.D. Wash. Feb. 3, 2017) that a preliminary injunction—of which the TRO is one type—is an extraordinary remedy that may only be awarded upon a clear showing that a Plaintiff is entitled to such relief, prior to a full-blown trial on the merits.
But where in the Court’s Opinion ordering a TRO, in the context of the allegations of the Complaint, is there any indication that the Plaintiff would be irreparably harmed if the TRO isn’t issued?
There isn’t any and that is reason enough for the Court to refrain from issuing a TRO.
Then, too, there is nothing in the Court Opinion to buttress the Court’s finding that the State of Washington is likely to win the case on the merits. Moreover, the idea that the equities tip in favor of the Plaintiff is absurd on its face. How can one State possibly argue, with a straight face no less, that its claimed economic interests—not so much its own but that of a private Company, namely and especially that of the technology Company Microsoft—and that its claimed interest in protecting the Constitutional rights of individuals, who are not even citizens of the United States, and its claim of a public interest that is purportedly harmed by the U.S. President’s Executive Order, are all greater than the concern the President of the United States has for the security of the Nation and for the life and safety and well-being of the citizens of this Nation as a whole, thereby warranting, according to the U.S. District Court Judge, the awarding of an injunction, enjoining the U.S. President from carrying out his duties, under Article II of the Constitution, on behalf of this Nation and on behalf of its People?
We look at the President’s Emergency Motion to the Ninth Circuit to Stay the lower U.S. District Court’s enjoining of the President’s January 27, 2017 Executive Order in Part 5 of this series.
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