So-called Judge Robart’s outrageous TRO
The Temporary Restraining Order:
1. Offers no legal explanation as to why the judge thinks the case will succeed on the merits.
2. No explanation of what the “irreparable harm” is, only the vague sentence that the executive order “adversely affects the States’ residents in areas of employment, education, family relations, and freedom to travel.” There is no attempt to balance those harms against the possibility that among refugees and travelers from the seven banned countries are those who pose a threat to the safety and security of the United States. The law of TROs requires a balancing of the harms.
3. The only explanation of why the states of Washington or Minnesota have any standing or will suffer any harm is a mention of “parens patriae.” This is a doctrine that is normally used to allow the states to stand in for citizens of the states who don’t have the capacity to represent themselves, such as children or the mentally incapacitated. No case law is cited for this unprecedented expansion of the concept to adult citizens of foreign nations.
4. There is no discussion of the “public interest” which is one of the four factors district courts must consider in granting a TRO, nor is there any mention of the deference normally given to the President on matters of national security and foreign relations.