Sub:- (i)- Trump lost in 9th circuit Court of appeal because appeal was not drafted properly by his legal team (ii)- Trump’s legal team instead of highlighting mistake of District Court in not giving speaking order on three essential conditions for TRO unnecessarily took the burden in 9th circuit Court of proving same three essential conditions for stay on TRO
When one watches what is happening in USA [regarding EXECUTIVE ORDER: Protecting the Nation from Foreign Terrorist Entry into the United States, signed by President Trump on January, 27 and Temporary Restraining Order (TRO) against said Executive Order passed by District Court of Washington at Seattle on February, 3 and denying by 9th circuit Court Trump’s emergency motion of February, 9 for a stay on said TRO] - one is reminded about blunder UPA government of Dr Manmohan Singh led by Congress Party (under leadership of Sonia Gandhi) made in 2G spectrum case and coal-gate case where (as admitted by eminent supreme Court advocate Kapil Sibbal of Congress party during interview on a TV channel) UPA did not contest these cases properly in Supreme Court and ultimately UPA lost power in Parliamentary election 2014.
District Court passed legally untenable TRO because it did not give any speaking order on three essential conditions for TRO namely chances of success in main case, irretrievable losses if TRO not granted and balance of convenience in favor of TRO seeker (in addition to public interest).
Trump’s legal team (TLT) should have highlighted these legal infirmities of District Court order but on the contrary TLT mainly put emphasis on the merit of said Executive Order of January, 27 with the result 9th circuit Court put the burden on Trump of proving same three essential conditions for stay on TRO as is evident from the following order of 9th circuit Court:-
“[PER CURIAM: At issue in this emergency proceeding is Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States,” which, among other changes to immigration policies and procedures, bans for 90 days the entry into the United States of individuals from seven countries. Two States challenged the Executive Order as unconstitutional and violative of federal law, and a federal district Court preliminarily ruled in their favor and temporarily enjoined enforcement of the Executive Order. The Government now moves for an emergency stay of the district Court’s temporary restraining order while its appeal of that order proceeds. To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay]”.
Therefore if Trump wants to succeed in his appeal in Supreme Court then he should take personal interest and should ensure that his legal team files appeal in Supreme Court properly in a manner that:-
(i)- Legally untenable non-speaking order (on three essential conditions for TRO) by District Court at Seattle.
(ii)- Failure of 9th circuit Court to deal with legally untenable non-speaking order (on three essential conditions for TRO) by District Court at Seattle.
--- Remains the moot / exclusive point of argument in Supreme Court while praying stay on TRO.
Hem Raj Jain
(Author of ‘Betrayal of Americanism’)