What exactly did the federal judge do to Trump's executive order?

Question

Source: The Hill

U.S. District Court Judge Ann Donnelly ruled in favor of a habeas corpus petition filed by the American Civil Liberties Union (ACLU) on behalf of two Iraqi men who were detained at John F. Kennedy International Airport on Friday after Trump signed his order.

According to this answer, only Congress and the Supreme Court can overturn an Executive Order. If so, Judge Ann Donnelly is using what authority to do what she did?

More broadly, given that the US has 94 district courts, would it be possible to cherry-pick a judge sympathetic to your cause? Would this lead to both sides taking turn going to the District Courts to overrule the other?

Answer 1

EDIT: corrected errors, added historical references and quotes from order.

Donnelly's order (https://assets.documentcloud.org/documents/3437021/Darweesh-v-Trump-Order-on-Emergency-Motion-for.pdf) is an "Emergency Motion for Stay of Removal".

Like any court order, it can only be reversed by a higher court, not by another district court.

The order only affects refugees who already in the United States (emphasis added, capitalization in original):

ENJOINED AND RESTRAINED from, in any manner or by any means, removing individuals with refugee applications approved by U.S. Citizenship and Immigration Services as part of the U.S. Refugee Admissions Program, holders of valid immigrant and non-immigrant visas, and other individuals from Iraq, Syria, Iran, Sudan, Libya, Somalia, and Yemen legally authorized to enter the United States.

It doesn't say anything about preventing new refugees from entering the country, despite what some media reports have said. Perhaps as an oversight, it doesn't cover refugees in flight in airplanes that haven't yet landed in the United States either.

In Marbury vs Madison (https://en.wikipedia.org/wiki/Marbury_v._Madison), Marbury petitioned the Supreme Court directly, since it had original jurisdiction per the Judiciary Act of 1789 (https://en.wikipedia.org/wiki/Judiciary_Act_of_1789). However, the Supreme Court ruled that portion of the Judiciary Act unconstitutional, and thus denied Marbury's petition.

Although the President can't be tried for crimes except by the Senate (after the House brings him to trial), he can be sued for damages. Since he can't be sued in the Supreme Court, he must be sued in a court under the Federal judiciary of the United States (https://en.wikipedia.org/wiki/Federal_judiciary_of_the_United_States) which includes the District Courts.

Of course, the Supreme Court has appellate jurisdiction, as they do in all cases, except as prohibited by the 11th Amendment.

Judge Donnelly can issue a stay (i.e. a temporary stop to a legal proceeding) because she is a federal judge, and thus

have "federal question" jurisdiction, which means that federal courts will hear cases that involve issues touching on the Constitution or other federal laws. Source.

Donnelly's decision was based on likelihood of success, avoidance of irreparable harm, and lack of harm caused by granting the stay (emphasis added):

1. The petitioners have a strong likelihood of success in establishing that the removal of the petitioner and others similarly situated violates their rights to Due Process and Equal Protection guaranteed by the United States Constitution;

2. There is imminent danger that, absent the stay of removal, there will be substantial and irreparable injury to refugees, visa-holders, and other individuals from nations subject to the January 2 7, 2017 Executive Order;

3. The issuance of the stay of removal will not injure the other parties interested in the proceeding;

Suppose Donnelly allowed the deportations, the refugees were killed after arriving back in their country, and a higher court then decided the deportation was illegal. At that point, there is nothing the higher court can do to repair the damage caused to those deported.

Conversely, allowing them to remain (detained inside an airport, not free to roam the country) has very little risk. If a higher court rules they should be deported, they can be at that time-- the delay in deportation causes no irreparable harm.

You could argue the detention itself is a form of harm, and that the refugees should be allowed to enter the USA proper, but courts have generally held that you can compensate people for illegal detention with money. In other words, detention is harm, but not irreparable harm, at least in this case.

Although there are two named petitioners, the petition includes "ot[h]ers similarly situated".

The US Marshals are responsible for enforcing the stay (capitalization in original):

IT IS FURTHER ORDERED that to assure compliance with the Court's order, the Court directs service of this Order upon the United States Marshal for the Eastern District of New York, and further directs the United States Marshals Service to take those actions deemed necessary to enforce the provisions and prohibitions set forth in this Order.

Answer 2

According to this answer, only Congress and the Supreme Court can overturn an Executive Order

reads answer

OK, that's actually a moderately oversimplified and confused answer.

The Supreme Court's authority is derived from Article Three of the Constitution (capitalization in original):

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

[...]

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

There are a few interesting things to look at here, which I've highlighted in bold.

Firstly, the lower courts have the same "judicial power" as the Supreme Court. The Supreme Court is only special in that its decisions cannot be appealed. So if the Supreme Court can rule something unconstitutional, then the lower courts can, too (but their ruling will probably get appealed).

Secondly, the Supreme Court has "appellate jurisdiction" over the kind of issue we are discussing. Appellate jurisdiction means the Supreme Court can hear appeals from inferior courts, but it cannot handle the case directly and by itself. So it's actually impossible to put President Trump's executive order before the Supreme Court without first going through a district and circuit court (and then persuading the Supreme Court to issue a writ of certiorari, which they are not required to do, and in fact they usually refuse to do so).

Finally, the Supreme Court has ruled that its original jurisdiction cannot be expanded except by Constitutional amendment (see Marbury v. Madison), so there are no statutes or other rules that might allow the Supreme Court to have original jurisdiction over this case.

More broadly, given that the US has 94 district courts, would it be possible to cherry-pick a judge sympathetic to your cause? Would this lead to both sides taking turn going to the District Courts to overrule the other?

Yes, this can happen. If both districts are in the same judicial circuit, one or both rulings would be appealed to the circuit court, which would have to decide who wins. At that point, both the circuit court and all of the district courts under it would be bound by precedent. If the districts are in different circuits, each circuit court would be able to make its own appellate ruling. If the circuit courts disagree with one another, you have a circuit split, which tends to increase the likelihood of the Supreme Court accepting a case. Other positive indicators for Supreme Court review include alleging a constitutional violation and touching on an important area of law. This case does both of those things, so it is fairly likely to come before the Supreme Court even without a circuit split.