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Jurisdiction and Judicial Self‐Defense

Although State of Washington v. Trump has generated enormous attention, the Ninth Circuit, the parties, and legal commentators have largely overlooked a noteworthy facet of the case: appellate jurisdiction. Ordinarily, temporary restraining orders (“TROs”) are not appealable. The Ninth Circuit, however, construed the district court’s self‐styled TRO as a preliminary injunction, which permitted it to exercise jurisdiction and reach the merits.

This maneuver was curious. Despite the minimal treatment the issue received, appellate jurisdiction was a close question, doctrinally. Several factors—the abbreviated proceeding below, the minimal legal analysis in the district court’s order, and the court’s subsequent scheduling order—provided grounds to concluded that the district court’s order was, in fact, a TRO. This conclusion is strengthened by the ability to distinguish the cases cited by the Ninth Circuit on the issue.

Put differently, the panel could plausibly have dismissed the appeal on jurisdictional grounds (thus leaving in place the district court’s TRO), which would have yielded the same functional result as its actual opinion, i.e., the continued unenforceability of the President’s Immigration Order. What, then, explains the choice to reach the merits when a jurisdictional ruling would have achieved the same legal effect? We theorize that the panel’s decision represents an expression of judicial self‐defense against perceived threats to the authority and legitimacy of the courts. By affirming the district court’s substantive ruling in a unanimous, per curiam opinion, the Ninth Circuit sent a message of judicial strength and unanimity at a time when the relationship between the executive and judicial branches is tense.