Reclaiming the Irreparable Injury Rule: Why Trump Lost in Judge James Robart’s Court.
By: Francisco Canales
Since my last blog, Donald Trump was sworn in as the 45th president of the United States. Now in office, he has lost no time to enact many of his campaign promises. One of his key promises, indeed, was to promulgate a temporary travel ban for migrants from countries that have a current history of having unreliable record keeping—specifically those countries that have been compromised by radical Islamic terror organizations. This temporary travel ban allows federal agencies, in charge of our national security, to set mechanism to vet properly migrants from these countries before entering the United States. This is a three-month ban for seven countries.
A day after it was signed, this travel ban was challenged in different federal courts throughout the United States. On February 3, federal district judge James Robart entered a temporary restraining order (“TRO”) that applied nationwide, staying enforcement of Trump’s travel ban. So, given the scope of this TRO, this federal district court in the state of Washington has essentially centered all litigation to stop this travel ban in one venue. Thus, this broad order has forced the United States to appeal it in a more liberal circuit court of appeals. After deciding the United States’s interlocutory appeal, the Ninth Circuit Court of Appeals unsurprisingly affirmed Judge Robart’s order, and the case is now pending.  Several litigation options are available to the United States to fight this order; in the meantime, however, the United States lost a key litigation battle, and Trump’s ban cannot be enforced.
This Blog will specifically analyze why Trump lost in the district court and why the Plaintiffs (“States”) satisfied one of the four legal requirements to stay the enforcement of Trump’s travel ban. In other words, why Washington and Minnesota were able to make a showing of “irreparable injury” from this temporary ban.
What are federal trial courts really doing when granting TRO’s in constitutional cases?
“Although irreparable injury is an essential element to obtaining injunctive relief, most federal circuit courts have held that irreparable injury should be presumed in constitutional cases.” Indeed, Professor Disarro argues that a “plausible explanation for the presumption might be that courts fear that close scrutiny of irreparable injury will reveal numerous instances where constitutional violations are virtually harmless.” This argument explains why judges “are willing to acknowledge constitutional wrongs as harmless in criminal cases and even when it comes to civil damages claims, as the numerous nominal damages recoveries in Section 1983 cases attest, but they seem resistant to the concept of harmlessness when injunctive relief is sought.” He further notes: “The presumption obscures the perhaps discomforting reality that many constitutional infractions produce either no injury or one that damages can adequately redress.”
The Injury of Trump’s Travel Ban
Arguably, this ban produces no irreparable harm to the States. But Judge’s Robart decision found,
Specifically, for purposes of the entry of this TRO, the court finds that the States have met their burden of demonstrating that they face immediate and irreparable injury as a result of the signing and implementation of the Executive Order. The Executive Order adversely affects States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. These harms are significant and ongoing….
It should be of no surprise to jurists and scholars that the States won their motion to obtain a TRO. The States made a facial showing that there was an injury, although it is largely speculative because the ban only stops a relatively low number of immigrants from entering the United States for a period of three months. And, the harm presented above is not really irreparable– unlike, say, Trump ordering the demolition of Seattle’s Space Needle. Thus, given the phenomenon that district judges throughout the United States are presuming irreparable injury when granting TRO’s, Trump was bound to lose this motion, regardless.
This presumption is greatly problematic here for the Trump administration and generally to injunctive relief jurisprudence. “Presuming irreparable harm invites applications for preliminary injunctions in constitutional cases by eliminating what is usually the most difficult element for a plaintiff to satisfy.” Indeed, “constitutional questions [should] be resolved on summary judgment or at trial than on a preliminary injunction ruling.” Professor Disarro’s argument further explains why Judge Robart granted the States’ Motion: “In preliminary injunction proceedings, important constitutional questions will be decided tentatively and usually upon an incomplete evidentiary record produced at abbreviated and rushed hearings.” As it happened in the States’s case, little record was presented to show an irreparable harm by the ban. Thus, this loss confirms the legal realities of the presumption of irreparable injury, and not so much the lack of merits of the United States’s case.
Moreover, Trump was also bound to lose his appeal on the court’s injunction of the ban. Appellate courts revising TROs will “apply the least rigorous appellate standard.” By contrast, “[f]inal judgments on constitutional questions…will produce definitive holdings and be subject to nondeferential appellate review.” So, given this appellate review standard, the deck was stacked against Trump; albeit, the apparent lack of preparation by the United States’s Attorney arguing on Trump’s behalf and the judges’ liberal ideology did not help his case.
However, Judge Robart should have “consider[ed] a variety of factors to determine whether …provisional injunctive relief is appropriate: the nature of the right in question, the context in which the right is impacted, the severity of any deprivation, the burdens placed on the exercise of the right, the importance of a timely exercise of the right, and the adverse consequences beyond deprivation that will result.” His seven page Order does not seem to analyze these key factors. Although the Order’s Conclusion does note that the injunction may have “considerable impact… on the…executive…and the country’s citizens and residents”, the Order fails to address the national security interests at play here and the judiciary’s history of not revising discretionary findings regarding national security and immigration. In other words, Judge Robart seems to have presumed the States’ likelihood of winning on the merits, as well. Thus, this Order is faulty, but it is understandable why it was granted given the current perception by federal courts across the United States of granting injunctive relief in constitutional cases.
Despite the shaky grounds for entering a nationwide TRO and buying the States’ parens patriae standing argument, and jumping analytical hoops in granting the injunction, Judge Robart cannot be blamed in finding sufficient injury. His ruling is the creation of the current state of the law. The low threshold that federal district courts are currently setting when granting TROs in constitutional cases allowed for the States to make a sufficient showing to win their Motion. Simply put: Don’t hate the judge, hate the Supreme Court’s unwillingness to reclaim the irreparable injury rule in constitutional cases, and do away with this presumption of injury.
This case could be the vehicle for the Court to finally eradicate a presumption of injury and make this rule applicable again in constitutional cases. “Requiring proof of irreparable harm should have little impact in cases where the injury is apparent and incontrovertible. But it will be significant in those cases where the existence or extent of injury, let alone one that can fairly be classified as irreparable, are questionable,” like in the States’ case.
 In my last Blog, I analyzed the historical precedents of infamous travel bans enacted by the United States.
 Ariane de Vogue, “The legal arguments around Trump’s travel ban challenges,” CNN, ( 6:59 PM ET, 4 Feb. 2017. http://www.cnn.com/2017/02/04/politics/donald-trump-travel-ban-legal-challenges/.
 Washington v. Trump, Case no. C17-0141JLR, 4-7 (West. D. WA. 2017).
 Washington v. Trump, 2:17-cv-00141 (9th Cir. 2017).
 “WH Adviser Stephen Miller: A Single Judge ‘Cannot Make Immigration Law’ | Meet The Press | NBC News.” NBC News. https://www.youtube.com/watch?v=lXkFX6NGRdc.
 As argued by Professor Anthony Disarro, “the preliminary injunction has become, much like class certification, a ‘momentous’ pretrial ruling that ‘[w]ith vanishingly rare exception . . . sets the litigation on a path toward resolution by way of settlement, not full-fledged testing of the plaintiffs’ case by trial.’ The recognition that a preliminary injunction decision is ‘no mere . . . procedural ruling’ is reflected in the fact that Congress has expressly authorized interlocutory appeals from these pretrial determinations.” Anthony Disarro, A Farewell to Harms: Against Presuming Irreparable Injury in Constitutional Litigation, 35 Harv. J.L. & Pub. Pol’y 743, 746-747 (2012). (internal citations omitted).
 See generally Washington, supra note 5.
 Disarro, supra note 9, at 744.
 Id. at 746.
 Id. at 747.
 The courts’ fear in this regard seems irrational. A plaintiff who cannot show irreparable harm can always obtain a declaratory judgment of unconstitutionality. The declaratory remedy was specifically created by Congress to provide a remedy for plaintiffs asserting constitutional claims who cannot satisfy the requirements for injunctive relief. The remedy would seem superfluous if irreparable harm can simply be presumed in every case.
 Washington v. Trump, Case no. C17-0141JLR, 4-7(W. Dist. WA. 2017).
 Disarro, supra note 9, at 747.
 Given these realities, there is a high possibility that Trump make his at the trial court and seek a final judgment on the merits.
 Id. at 794.
 See generally Washington v. Trump, Case no. C17-0141JLR (W. Dist. WA. 2017).
 See Id.
 See Id.
 Disarro, supra note 9, at 794.