The Executive TRO: A Modest Proposal

A Little Bit of Departmentalism, As a Treat

The Trump administration faces a tidal wave of judicial orders from district courts, many issued (at least nominally) in the form of “temporary restraining orders” or TROs. In the face of these multiplying orders — a number of which have been issued with markedly short deadlines for “compliance” — commentators breathlessly ask whether the administration will “obey,” and debate whether or not it has done so in every instance.

What is needed is a kind of pause button — a legal device to bring some regular order out of this chaos, allowing the Executive the necessary time to consider and deliberate before deciding whether and how to act. My modest proposal is for an “Executive TRO,” an exact mirror-image of the judicial TRO. Let me explain.

The commentators all assume that “compliance” or “obedience” is an on-off switch, an either-or. The Executive TRO denies this. It merely says that compliance is something that the executive, as a co-equal branch of government, may pause to consider — giving the executive time to assess the terms of the order, how compliance might best be achieved, and in unusual cases, whether the judicial order is or is not one that the court even had jurisdiction to issue in the first place.

The judicial TRO is nominally intended to preserve the status quo ante, preventing an irreparable change to the legal situation, so that judges may decide in regular order whether to issue a preliminary injunction after due consideration. The Executive TRO is intended to do exactly the same thing in mirror-image, just from the standpoint of the executive, not the courts. It allows the executive to temporarily pause the judicial demand for compliance with the judicial order, leaving in place for the time being the legal status quo ante that existed before the judicial TRO was issued. So, for example, if the judicial TRO says that the executive may not do X for 14 days, the Executive TRO in effect stays compliance by executive-branch officials with the TRO for some designated period, leaving executive officials free to do X within that period. That freedom to do X just was the legal status quo ante preceding the judicial TRO. Of course, from the judges’ standpoint, the Executive TRO thwarts the whole point of the judicial action at issue (the judicial TRO). From the Executive standpoint, however, in perfect symmetry, the Executive TRO merely ensures that the judicial TRO does not thwart the whole point of the Executive action at issue.

Just as the terms of the judicial TRO are set by the judges within the limits of rules the judges have themselves adopted — the Federal Rules of Civil Procedure, specifically Rule 65 — the precise terms of the Executive TRO would be set by the Executive within the limits of rules the Executive itself has adopted. Under Rule 65, the judicial TRO “expires at the time after entry—not to exceed 14 days—that the court sets, unless before that time the court, for good cause, extends it for a like period.” So too, the Executive TRO could be set to expire at the time after entry — not to exceed 14 days — that the Executive sets, unless before that time the Executive, for good cause, extends it for a like period.

Whereas the rules under which the judicial TRO is set are themselves authorized by the Rules Enabling Act, the rules under which the Executive TRO is set are authorized by even higher authority, the constitutional power and duty of the executive branch, under Article II, to “take care that the laws be faithfully executed.” It is impossible for the executive to carry out that duty if it must instantly comply with whatever order the judges have set, however difficult it is to perform the relevant acts of compliance, however unreasonably demanding the order may be, or however far outside the court’s jurisdiction the putative order lies. At a minimum, the executive must have a certain breathing space to assess the judicial order, understand its terms, and to consider and deliberate on the executive’s position. Good government and lawful government demand nothing less.

So-called “departmentalism” is not all-or-nothing. The point of the Executive TRO is to allow a modest, limited and temporary form of departmentalism, sufficient to give the Executive time and breathing space to carry out its own constitutional functions, just as the judicial TRO is intended to give the judges time to carry out theirs. Really, when seen in this light, nothing could be more respectful of the judiciary than the Executive TRO. Mirror-image imitation is the sincerest form of flattery.

Indeed, one might even speculate that the Executive TRO will actually strengthen the legitimacy of the courts; the public will know with confidence that any judicial orders that the executive eventually deems deserving of compliance really do fall within the court’s jurisdiction. Thus, one expects, the judges will eventually come to see that the Executive TRO is really in their own best interests — a manifestation of executive care for the judiciary’s standing, a device for promoting interbranch respect, even an act of love.