Judge Robart’s Immigration TRO May Have Only Limited Effect

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Judge Robart’s Immigration TRO May Have Only Limited Effect
James Robart WikiImages / Pixabay

In Washington state, US District Judge James Robart has issued a temporary restraining order [TRO] prohibiting further enforcement of President Donald Trump‘s refugee and travel ban executive order [EO].

Although the order applies nationally, it may have only a limited practical effect, says public interest law professor John Banzhaf, since it may not undue the earlier governmental action of rescinding or revoking tens of thousands of previously issued visas.

The text of the order states that it “prohibits enforcement of Sections 3(c), 5(a), 5(b), and 5(c) of the Executive Order,” but it nowhere states that it reverses any actions which have already been taken under the EO – including the rescinding of visas which had previously been issued.

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This is fully consistent with the purpose of a TRO, which is to freeze the legal situation at the time the order it is issued, not to undue whatever legal wrongs may have already occurred, notes Banzhaf,

The purpose and function of a TRO is to preserve the status quo until the matter can be studied further, not to undo or untangle whatever has occurred before.

This is further implied from the judge’s order which states that it applies “at all United States borders and ports of entry . . .”

Thus it would seemingly not apply to persons in foreign countries who have had their visas revoked earlier, nor to deciding who can board a flight in a foreign country since those decisions, while they may be controlled in large part by the U.S. do not occur at “United States borders and ports of entry.”

If, as it appears, tens of thousands of existing visas have already been rescinded under the EO, then the persons involved will have to apply for new ones, a process likely to take many weeks if not months.

By that time, the TRO, which can remain in effect only for a very short period of time, will have long expired, and will no longer have any legal effect.

In short, says Banzhaf, while the judge’s TRO clearly is an initial victory for those who oppose the TRO, it is a very preliminary one, and one directly contradictory to a longer more detailed determination by a different federal judge.

Unless and until the judge extends or otherwise clarifies his TRO to undo visas which had previously been rescinded, and declare these visa valid for the boarding of flights in foreign countries, it may have only a limited effect, advises Banzhaf.

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