The Trump administration notched itself an illusory victory in federal court this week in one of the ongoing legal battles over the federal use of state National Guard troops to police American cities.
On Monday, a three-judge panel on the U.S. Court of Appeals for the 9th Circuit, in a 2-1 ruling, stayed a temporary restraining order (TRO) issued by U.S. District Judge Karin Immergut, who was appointed by President Donald Trump during his first term in office.
By Friday, the full 9th Circuit administratively stayed the panel’s own stay – “[w]ithout objection from the panel,” an order notes.
US District Judge Karin Immergut is a Federal District Judge for the United States District Court for the District of Oregon. A district court is the trial courts of the US federal judiciary, so for Federal cases start here.
Justice Immergut issued a temporary restraining order (TRO) against the US Government. This “enjoins” or “prohibits” an action. This action was the deployment of troops to Oregon. TROs have a really high bar because courts are not supposed to carry out any kind of action without a full trial. A TRO usually comes before a full trial can be had because there’s some sort of emergency that requires no delay. There’s a whole slew of standards to when a TRO can be issued and cannot be issued.
Once a TRO is issued, the defendant (who it is that is enjoined which would be the President) is allowed a review of that TRO by the appeals court that the district court resides in. There are 13 of them. The first through the eleventh circuit court of appeals, The DC Court of appeals, and the Federal Court of appeals (which is one that hears specific cases under very specific jurisdiction).
There are a lot of judges that sit on a circuit court, just depends on which one you’re talking about, Congress usually creates a new seat in the circuit based on population, case load, or whatever. The ninth circuit is the court that the District Court for the District of Oregon resides in. The ninth circuit is the largest, it has 29 active judges and 24 senior judges. The senior judges don’t actively participate in the Courtroom but they can write opinions, issue particular things, and so forth to help out the active judges. Basically, they are at the step just before retirement.
The active judges break out into groups of threes where they can and sit alone if the must. The entire point is to fill as many courtrooms in the circuit as they can so that they can get lots of case load done. Remember this is a circuit court, so there’s no one building for them, there’s multiple courtrooms for them all over the ninth circuit which is California to Alaska, Hawaii, Guam, and the Northern Mariana Islands. So they’ve got a lot of ground to cover for all of them.
A panel of three judges hears any appeals from the district court and then rules on if the district court was justified and followed all of the various rules. But there’s no telling which three judges (I mean there is a schedule so there’s that) you might get, they’re all moving around and trying to keep things moving.
Okay so that three panel judge stayed (puts on pause) the TRO.
This isn’t an actual hearing. An administrative review is like a Zoom meeting between all the Judges and they talk about the cases they had, vent, and what not. During that review, one of the Judges pointed out a piece of evidence that attorneys for the State of Oregon submitted that the President lied about the troop deployment. The panel during their Zoom meeting voted and they stayed (put on pause) the stay of the TRO.
But an administrative review is NOT a proper trial.
En banc means to get ALL OF THE JUDGES together to have a formal hearing. So all 29 now have to come together and have a hearing. Now that might be via Zoom or something, I’m not entirely clear on the process of the Ninth for their en banc, each court sets the rules on when Zoom is allowed or not. But all 29 now have to hear the case. So the stay of the first TRO is paused, or the court stayed the stay of the first TRO. Meaning the TRO many continue to enjoin the President’s actions.
There’s a second TRO that’s out there. Basically it’s filed under the Administrative Procedure Act (APA). The APA formalizes the process by which the Executive branch’s Department’s may do things. You know how there’s regulation? Regulation isn’t LAW. Law requires both chambers of Congress to approve something and the President sign off on it. Regulation/Rule making/etc… is a Department doing something “within the confines of the law”. Say like Congress says build me a highway. The Transportation Departmentwill then issue a determination that includes blueprints and what not for the highway in the law. The APA indicates the manner by which they have to do that. With public review, publishing on https://www.federalregister.gov/, etc…
This second TRO is based on something not followed in the APA.