As We Predicted, And On A Sunday No Less(!), Ninth Circuit Says Trump Loses — On Second Appeal Of “Isolating / Hotelling” Minor Refugees.

This is the fully-expected decision on the argument we covered from last week, in which Sarah Fabian sent an underling because she knew she would lose.

But the rule of law — and human decency won, yesterday, if entirely as expectedly, as we said — in a 16 page opinon:

…The district court issued two orders precluding the Department of Homeland Security (“DHS”) from detaining certain minors in hotels for more than a few days in the process of expelling them from the United States. Addressing the government’s emergency motion for a stay, we conclude that the government is unlikely to succeed on the merits of its appeal, as we likely do not have jurisdiction over the appeal.

The government also has not established that it would be irreparably harmed if it were obliged to comply with the district court’s orders while the appeal is pending. We therefore deny the government’s motion for a stay….

The government asserted at oral argument that this Court has jurisdiction over the appeal because the district court’s orders require the government to take “specific actions,” not simply to comply with the Agreement. Flores II held that we did not have jurisdiction to review the district court’s order enforcing the Agreement at issue in that case. There, we distinguished Flores I, in which we exercised appellate jurisdiction over the district court’s order requiring the government to take “specific actions,” such as releasing a minor’s accompanying parent. Flores II, 934 F.3d at 914 n.5. In Flores I, however, the district court’s order required the government to take actions that the Agreement did not require (i.e., releasing adults along with their children). See Flores I, 828 F.3d at 908. The order thus modified the Agreement, and provided a basis for concluding, as the opinion did without explanation, that there was jurisdiction under 28 U.S.C. § 1292(a). Id. at 905.

Here, in contrast, as in Flores II, the district court just directed compliance with the Agreement, specifying in its September 4 order the paragraph of the Agreement being implemented by each directive: DHS must ordinarily transfer minors held for longer than three days to a licensed facility, as required by paragraph 12.A of the Agreement, see Sept. 4 Order, 2020 WL 5491445, at *10; Sept. 21 Order, 2020 WL 5666550, at *4….

The government has not shown that the district court’s orders require it to take actions not required by the Agreement. We therefore conclude that we likely do not have jurisdiction over the appeal, and that for that reason, the government has not shown a strong likelihood of success on the merits….

Onward, into a perfectly crisp, sunny fall morning here. Grinning, sardonically, at Trump’s ongoing and self immolating. . . narcissism (see new masthead). Almost all of the rage tweeting this morning by Trump is likely a side effect of the steroids he is on, to reduce the lung inflammation. This man is seriously ill (Remdesivir, plus monoclonal antibody cocktails and steroids) — and this time (and this time, only!), I am talking only about his COVID-19 morbidity risks.


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