Despite the unanimous result at the 9th Circuit denying the stay the Trump administration sought, there was some disagreement on the panel.
Carter appointee William Canby and George W. Bush appointee Milan Smith gave little reasoning for their decision except to say that the Trump administration had not made a “strong showing” that its legal argument was likely to succeed.
However, Trump appointee Danielle Forrest said the court should not have opined on that question at this juncture. In a six-page concurrence, she also decried federal courts’ willingness to wade into issues on an emergency basis — an implicit criticism of the wave of such emergency orders that barred Trump policies in recent weeks.
“Quick decision-making risks eroding public confidence,” Forrest wrote. “Judges are charged to reach their decisions apart from ideology or political preference. When we decide issues of significant public importance and political controversy hours after we finish reading the final brief, we should not be surprised if the public questions whether we are politicians in disguise.”
Forrest agreed that the Trump administration had not provided enough of a basis to lift Coughenour’s injunction, but stressed the lack of urgency rather than the substance of the legal arguments. The administration’s claim that the original order “stymied the implementation of an Executive Branch policy … nationwide for almost three weeks” was “insufficient,” Forrest concluded.
“It is routine for both executive and legislative policies to be challenged in court, particularly where a new policy is a significant shift from prior understanding and practice,” the judge wrote.