A federal appellate judge appointed by Donald Trump has a message for his administration and, perhaps, for the rest of the judiciary: Relax.
That message came in an opinion by Judge Danielle Forrest, explaining why she and her appeals court colleagues were right to reject the government’s emergency bid to enforce Trump’s executive order against birthright citizenship.
A 9th U.S. Circuit Court of Appeals panel said the government hadn’t made a strong case that it’s likely to succeed on the merits of its appeal. But Forrest wrote to explain why she agreed with the other two judges on the panel — William Canby (appointed by Jimmy Carter) and Milan Smith (appointed by George W. Bush) — in refusing to grant Trump’s emergency motion but for different reasons.
It’s not an emergency simply because the government can’t implement its preferred policy, Forrest wrote: “[J]ust because a district court grants preliminary relief halting a policy advanced by one of the political branches does not in and of itself an emergency make. A controversy, yes. Even an important controversy, yes. An emergency, not necessarily.”
Citing Supreme Court precedent dating back to 1898, she added that there isn’t an obvious emergency “where it appears that the exception to birthright citizenship urged by the Government has never been recognized by the judiciary.” Trial court judges across the country, appointed by both Republican and Democratic presidents, have sided against the administration on the issue, deeming it a clear one against Trump.
To be sure, Forrest emphasized that she wasn’t weighing in on the ultimate constitutional question of how to interpret the 14th Amendment, which says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Rather, she merely concluded that emergency relief wasn’t appropriate at this stage of the litigation. Notably, Forrest raised the importance of public confidence in the judiciary, observing that quick decision-making risks eroding that confidence. “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,” she wrote. “Moving beyond wringing our hands and wishing things were different, one concrete thing we can do is decline to decide (or pre-decide) cases on an emergency basis when there is no emergency warranting a deviation from our normal deliberate practice.” The judge’s observation comes as the Supreme Court is considering the first emergency application of Trump’s second presidency, over his authority to fire the head of an independent agency; lawyers for the agency head argue to the justices that it would be premature for the high court to intervene. Though perhaps more immediately addressed to her colleagues, Forrest’s word of caution could be useful to keep in mind not only for litigants but for the justices, too, though it remains to be seen whether they will heed it as litigation from Trump’s second term starts reaching them. Subscribe to the Deadline: Legal Newsletter for expert analysis on the top legal stories of the week, including updates from the Supreme Court and developments in Donald Trump’s legal cases.
Jordan Rubin is the Deadline: Legal Blog writer. He was a prosecutor for the New York County District Attorney’s Office in Manhattan and is the author of “Bizarro," a book about the secret war on synthetic drugs. Before he joined MS NOW, he was a legal reporter for Bloomberg Law.
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