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?

  • 4
    You're probably going to get much better answers on Law.SE. The one you linked to is a definite oversimplification of how the judicial system works. Jan 29, 2017 at 19:07
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    The the answer you link is wrong is saying only Congress and the Supreme Court can overturn a Executive Order. In fact any Distirct Court can overturn an Executive Order by declaring it unconstitutional. In the case where Obama's order to delay deportations was "overturned" it was actually a District Court that issued a preliminary injunction that was affirmed by an Appeals Court and then again by the Supreme Court. Since this was only a preliminary injunction the case is still before the courts though it's presumably moot now. en.wikipedia.org/wiki/United_States_v._Texas
    – Ross Ridge
    Jan 29, 2017 at 19:39
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    I get that the topic is somewhat political overall but shouldn't this be on Law.SE as the question's substance is legal, as are all current answers?
    – user4012
    Jan 29, 2017 at 20:54
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    I don't mind migrating, but in my mind, this is a question about check and balance, as well as about how political forces can use the judiciary to further their goals.
    – Heisenberg
    Jan 30, 2017 at 12:46

2 Answers 2


EDIT: corrected errors, added historical references and quotes from order.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

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    Presumably, she's acting on behalf of the Supreme Court until they can decide. The Supreme Court has set precedent that, if there is an immediate risk of harm, courts can act on an emergency basis. Note that Donnelly has only temporarily stayed the order, not overturned it, and has only stayed the part of the order that could cause immediate harm. The Supreme Court isn't available 24/7, so lower courts have the authority to act until their decision is overturned by a higher court.
    – user2565
    Jan 29, 2017 at 17:15
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    @barrycarter - I was preparing another answer, but it seems like you nailed it in this comment. The confusion seems to come from a lack of distinction between a stay and overturning the order. Any chance you could edit that in? Jan 29, 2017 at 18:43
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    She's not acting on behalf of the Supreme Court; she is acting under her own (pretty vast) authority as a federal judge under Article III of the Constitution, and issuing the order from a district court. The Supreme Court only has appellate jurisdiction over this case; the district court is the entity that has the authority to decide this on first instance.
    – cpast
    Jan 29, 2017 at 21:55
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    This answer contains a few errors. First, Donnelly isn't staying the order until the Supreme Court can decide, but until her district court issues an opinion on the merits (or a preliminary injunction). Such a decision (or injunction) could then be appealed to the second circuit court of appeals, and then to the Supreme Court.
    – Publius
    Jan 29, 2017 at 22:14
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    The order apparently has effect until at least 21 February, when Donnelly (not the Supreme Court, therefore) will hear arguments on the merits of the case. See theguardian.com/us-news/2017/jan/28/….
    – phoog
    Jan 30, 2017 at 0:25

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.

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    Ummm, actually, I think the Supreme Court has original jurisdiction over executive orders. It's more a case of them not being available, and that deportation would cause harm that can't be repaired, so the district court is just giving the Supreme Court time to answer.
    – user2565
    Jan 29, 2017 at 19:36
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    @barrycarter You can see the process described above as it was applied to one of Obama's orders here: en.wikipedia.org/wiki/United_States_v._Texas
    – Ross Ridge
    Jan 29, 2017 at 19:45
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    @barrycarter The Supreme Court doesn't have original jurisdiction over executive orders unless the case has a state as a party, or has an ambassador or other public minister of a foreign government as a party, or both. It doesn't matter what the case is about; SCOTUS original jurisdiction only depends on who the parties are.
    – cpast
    Jan 29, 2017 at 21:58
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    It's not entirely possible to cherry-pick a judge, however. There has to be some reason for a district court to have jurisdiction; in the case of Donnelly's order, her court has jurisdiction because the petitioners were in detention in the district. A court whose district contained no CBP offices would be unlikely to accept the case.
    – phoog
    Jan 30, 2017 at 0:28
  • @cpast don't forget the 11th amendment: "The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State."
    – phoog
    Jan 30, 2017 at 0:30

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