February 7, 2017

The 9th Circuit Court of Appeals has decided to live-stream the arguments today about whether parts of the Trump travel Muslim ban were properly executed.

This is not an argument about the constitutionality of the order, but is instead about the temporary restraining order placed by Judge Robart while the constitutionality of the order is battled in court.

LA Times explains:

The 9th Circuit at this stage will not be deciding the key constitutional issues in the case.

Instead, the panel will determine only whether the court order against enforcement of the ban should continue until the complex legal debate over executive power and due process is resolved.

To justify such an order, a judge must find that there would be irreparable harm if it were not issued. Judge Robart went a step further, and also found that the states were likely to succeed in their challenge.

But many of the questions the 9th Circuit must resolve are more mundane.

Did the states have standing to sue? To be able to sue in federal court, an individual or state must show evidence of direct harm.

The Trump administration contends the potential harm cited by the states — business loss, reduced tax revenue and disruption of higher education — are merely speculative.

Another technical matter is whether a temporary restraining order can even be appealed in federal court. The states argue that Trump cannot challenge a temporary block on his order until later in the proceedings.

If the 9th Circuit upholds the restraining order, the administration can appeal to the U.S. Supreme Court. Once the legality of the hold is resolved, the case would return to Judge Robart in Seattle.

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