From the Washington Post:
“In Brooklyn, after a brief hearing in front of a small audience that filtered in from a crowd of hundreds outside, Donnelly determined that the risk of injury to those detained by being returned to their home countries necessitated the decision. She seemed to have little patience for the arguments presented by the government, which focused heavily on the fact that the two defendants named in the lawsuit had already been released. At one point, she visibly lost patience with a government attorney who was participating by phone.
Donnelly noted that those detained were suffering mostly from the bad fortune of traveling while the ban went into effect. “Our own government presumably approved their entry to the country,” she said at one point, noting that, had it been two days prior, those detained would have been granted admission without question.”
I feel the Judge’s pain with the Government’s disingenuous arguments. Implementing such a draconian measure on a weekend with no notice is just plain stupid. And arguing that the Government would somehow be harmed by agreeing to stay the removal of meticulously pre-screened individuals with valid visas long enough for the Judge to fully consider the substantial constitutional arguments presented is beyond ludicrous.
I also feel for the poor AUSA stuck defending this kind of nonsense by an obstinate Administration that knows no compromise. I had to help defend a few of these in my Government career. At the time of my “first retirement” from the DOJ, one DOJ litigator said that he would miss me because I “was the best ever at providing reasonable explanations for my agency’s fundamentally irrational policies.”
The temporary restraining order issued by the Judge does not decide the merits of the dispute. It merely maintains the status quo so that the Judge can decide the case after full briefing and argument by the parties at a time other than a Saturday night. However, in addition to finding irreparable harm, Judge Donnelly also found a “strong likelihood” that the individual plaintiffs would prevail on their arguments based on Constitutional Due Process and Equal Protection. A copy of the order is at the link below. Stay tuned.