Almost five years ago I enthusiastically reported on Judge Robart's temporary restraining order (TRO) against then-Google subsidiary Motorola Mobility. Some others criticized the decision because a U.S. court practically took away jurisdiction from a court in my own country, which I believed then and believe now (as did the Ninth Circuit) was justified under the very specific circumstances of a negotiation between two U.S. companies over a worldwide patent license and in light of ongoing proceedings in the Western District of Washington.
On Friday, Judge Robart entered a TRO of far greater media impact, preventing the U.S. federal government from acting in accordance with President Donald J. Trump's Executive Order of January 27, 2017, entitled "Protecting the Nation from Foreign Terrorist Entry into the United States." Once again Microsoft is on the winning side (it supported Washington State). We're also back to the Ninth Circuit again, which denied an administrative stay but will probably rule on the Trump Administration's emergency motion on Monday evening Pacific Time. I believe Judge Robart went too far this time around, and that he did so for the wrong reason.
The first thing I wish to clarify is that I totally understand and respect the fact that certain major U.S. companies (including some technology giants) demonstrate their appreciation of highly-qualified immigrants working for them through open letters and amicus curiae briefs. This was all the more understandable before there was clarity that the executive order does not apply to lawful permanent residents of the United States (as the White House clarified on Wednesday). However, some of those companies themselves are potential targets of radical Islamic terrorism. A few decades ago, terrorists taking aim at U.S. retailers or restaurants would probably have targeted a Sears department store or a McDonald's restaurant. Nowadays, no place would be more iconically American than a crowded Apple Store or a Starbucks café. I hope the decision-makers at those companies will focus not only on their employees from and customers in certain countries but also appreciate the President's efforts to protect them.
Thankfully, the United States Court of Appeals for the Ninth Circuit has published several documents relating to State of Washington & State of Minnesota v. Trump on this page. Under the time constraints and considering other factors, including that he wanted to enable an immediate appeal, I didn't expect Judge Robart to hand down another 207-page opinion as he did in 2013 (FRAND rate-setting), but I am disappointed at the lack of a reasonably comprehensive explanation as to why he concluded that the states of Washington and Minnesota were likely to prevail in the further proceedings.
So I watched the video recording of the hearing. The transcript of that one is attached to the Government's emergency motion. The part where Judge Robart apparently got on the completely wrong track starts at 39:09 in the video recording, or line 12 on page 32 of the transcript (page 105 of the PDF document containing the emergency motion and its attachments):
THE COURT: Well, let me walk you back, then. You're from the Department of Justice, if I understand correctly?
It's a bit strange that after reading the DoJ's brief (which he commented very favorably on) he needed to ascertain who the Administration's trial attorney (Michelle Bennett) works for. She probably sensed that this wasn't going to lead to anything positive (even though she lost, I thought the way she handled the situation was terrific), and she just confirmed.
THE COURT: So you're aware of law enforcement. How many arrests have there been of foreign nationals for those seven countries since 9/11?
I've previously read questions Judge Robart asked at hearings, but this question here is bad beyond imagination, at least in connection with how the discussion continued. Let's look at the statute (8 U.S.C. § 1182 f):
"Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate."
Judge Robart's backward-oriented analyis makes no sense since the statute doesn't say that the President has to find that the entry of a class of aliens has been detrimental before. No, the statute says "would be".
So, back to the hearing transcript:
MS. BENNETT: Your Honor, I don't have that information. I'm from the civil division if that helps get me off the hook.
THE COURT: Let me tell you. The answer to that is none, as best I can tell. So, I mean, you're here arguing on behalf of someone that says: We have to protect the United States from these individuals coming from these countries, and there's no support for that.
"No support," seriously? Give me a break. First, the statute does not establish a requirement that a particular thing has happened. The statute talks about what might happen in the absence of restrictions. But "no support for that" is also outrageous when considering three very important factors:
The President has access to intelligence that cannot and will not be discussed in a courtroom.
Nationals from those countries have committed acts of terrorism in other parts of the world--parts that are geographically remote from the Western District of Washington but on the Trump Administration's radar screen.
As Judge Robart had been told but elected to practically ignore, Congress itself had determined that two of those countries posed a threat, and the other five countries had been identified by the Obama Administration in connection with terrorism.
This here is a case of unbelievable hubris and I hope the Ninth Circuit, or otherwise the Supreme Court, will not accept that a district judge--whom I used to think extremely highly of until recently--simply substitutes his knowledge based on what is hearsay at best (that he didn't hear about any such arrests in the media) for the President's assessment of the threat, with so much more information available to him.
After Ms. Bennett argued that the court simply isn't supposed to "look behind those determinations" by the President, Judge Robart claimed to be a defender of rationality while being the very opposite:
THE COURT: Well, counsel, I understand that from your papers, and you very forcefully presented that argument. But I'm also asked to look and determine if the Executive Order is rationally based. And rationally based to me implies that to some extent I have to find it grounded in facts as opposed to fiction.
Again, "rationally based" here is not a matter of whether there have been arrests that were reported in the media so that all district judges would inevitably hear about them. It also doesn't mean that the DoJ, when defending the executive order, had to walk into a courtroom to explain the underlying rationale.
But the part that I find most outrageous is this: the passage I just quoted from the transcript means, in connection with the decision that came down, that Judge Robart suspected President Trump had made a decision on an irrational basis.
I have no idea whether the President read the transcript. But presumably he was told what apparently tipped the scales in favor of the two states' motion. Whether or not that was the case, it's important to consider that this illogical and disrespectful insinuation by Judge Robart preceded the following tweet by the President:
The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!— Donald J. Trump (@realDonaldTrump) February 4, 2017
Judge Robart is a real judge and at least in the one case I watched in his district he was an extremely thorough judge, but unfortunately he's nowhere near as great when his political leanings (maybe the Bush Administration failed to do the necessary vetting before nominating him or he mutated into an ultraliberal later on) influence his decisions.
It appears that he was misled by the two states' Establishment Clause argument about preference for refugees from religious minorities. It is simply a fact that religious minorities like the Yazidis and, of course, also Christians face particular persecution in those countries (as do, as far as I know, atheists and agnostics, too). But that's a lesser concern than Judge Robart's ex-post perspective on a threat. The statute supports an ex-ante, prophylactic approach. The president who nominated Judge Robart, George W. Bush, once explained in a television interview in the Oval Office why he liked to look at a picture of a sunrise as opposed to focusing on the sunset. President Bush said that the president has to focus on the day that comes, not the day that has ended. That definitely applies to homeland security. Prior to 9/11, the number of casualties from airplanes guided by Islamic terrorists into buildings was also zero (on a worldwide basis, unlike now).
Friday's TRO was the second example in six months of Judge Robart taking a position on a political basis without considering everything that had to be taken into account. His standard-essential patent rulings were very well-thought-out, but something is preventing him from thinking things through completely when political issues come up. Just watch this short video that is less than six months old. It's unbelievable that a federal judge would say "black lives matter" in court without distancing himself from the namesake questionable movement, not because there's anything wrong with the literal meaning of those three words (of course, the right to live has nothing to do with the color of someone's skin) but when a political slogan is used frequently for biased anti-police campaigns and gives rise to violent protest and looting. As Sheriff David Clarke, who himself is black, has pointed out on numerous occasions including this one, the Black Lives Matter movement is silent in many situations where black lives are lost (such as in the terrible Chicago situation).
Judge Robart said "black lives matter" after merely pointing out a discrepancy between two percentages, without duly considering so many other factors, such as crime rates or the circumstances of particular shootings. There can be no doubt that Sheriff Clarke would condemn in the strongest terms (as would I) a law enforcement officer who would shoot an African-American suspect just because of the color of his skin. But African-American Sheriff Clarke's first advice is "Don't resist arrest", and he says politicians should "fix the ghetto" instead of "trying to fix the police." So there's a lot more to it than just a discrepancy between a group's share of the population and the percentage of people who get shot by law enforcement officers, just like there's a lot more to the identification of a threat from terror groups than statistics based on past immigrants from those places.
Sheriff Clarke, by the way, tweeted in August that "Judge Robart should be impeached for his judicial activism in using propaganda to rule."
When determining a fair, reasonable and non-discriminatory royalty rate for standard-essential patents, Judge Robart looked at the question from all angles. It's too bad his decision has now opened the door for terrorists (ISIS may view this as a potentially-closing window of opportunity) because he substitutes his political inclinations and slogans for the kind of high-quality, meticulous analysis he conducted in Microsoft v. Motorola. The stakes are so much higher now.
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