Whenever I see a motion for a TRO, Preliminary Injunction or a Stay, the opinion of the court always includes a reference to —Winter V. Natural Resources Defense Council, Inc., 172 L. Ed. 2d 249 (2008).
These are known as the “Winter Factors”. They must be addressed in order by the court before granting any of the above.
The first factor is the likelihood of success on the merits. Is the person requesting the TRO, PI or Stay going to win the case in the end? If it is more likely than not, then the first factor has been met.
The second factor is the question of the amount and type of harm being done. The key phrase is irreparable harm. In short, this means that the harm cannot be redressed by throwing money at it. All violations of Constitutionally protected rights are considered irreparable harm. You will never again have that opportunity at that moment of time with those people listening back again.
The third factor is the balance of equities. Who will be most harmed whether the motion is granted or not granted. If the motion being granted will force a business to close, while not granting it will impose an eyesore, the balance of equities’ favorers not granting the motion.
The final factor is what is in the best interest of the public. The public has no interest in enforcing unconstitutional laws. This always favors The People. The state will often argue that “keeping the public safe” is the correct scale to use for determining what is in the publics best interests.
The court did not use the Winter Factors.
And this is why she is using the Nken instead of Winter To be able to discount the likelihood of success because of the amount of harm. In other words, instead of having to prove they are likely to win on the merits, the plaintiffs have chosen to prove that they might be horribly harmed if some hypothetical comes true.
Yeah, that doesn’t make much sense to me.
IANAL. My opinion is that the first question to be resolved is if the APA law(s) passed by congress limiting the power of the President are constitutional. If they are not constitutional, then they must be vacated and there is no cause for the case.
Instead, the court assumes the APA overrides the authority granted to the President under the Constitution. She then turns the Winter standard on its head.
Even though the text reads To establish a likelihood of success on the merits, a plaintiff need not show that success is an absolute certainty. It need only make a showing that the probability of … prevailing is better than fifty percent.
The plaintiff bears the burden. Not the defendant. This judge says it is the States that bear the burden.
The gist of this is that the courts are planning to ignore the Constitutional issues as much as possible and instead base their opinions on laws that are unconstitutional.
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