This afternoon, a three-judge panel of the Ninth Circuit Court of Appeals handed the twenty-day-old Trump Administration its first high-profile defeat in court. You can read the whole opinion if you wish, and this post is intended to walk you through it.
By way of background, the State of Washington, soon joined by the State of Minnesota, challenged Executive Order No. 13769, which is titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.” This order was issued on January 27, 2017, and in it, President Trump instructed a variety of branches of the government, most particularly the Customs and Immigration Service, to not permit the entry of aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen for 90 days and suspends the U.S. Refugee Admissions Program for 120 days, and indefinitely suspends the admission of refugees from Syria. Exceptions can be granted, on a case-by-case basis, when either the Secretary of State or the Secretary of Homeland Security determines that either admission is in the national interest or that the person seeking admission is “a religious minority in his country of nationality facing religious persecution.”
A total of four District Courts (these are trial courts, remember) around the country enjoined various portions of Order 13769 on a temporary restraining order (TRO) basis, but the attention quickly coalesced around the case filed by Washington because the order there enjoined the operative sections of the order (discussed above) completely. The Federal Government sought to stay enforcement of the District Court’s TRO, and the States attempted to claim that a temporary restraining order is not normally an appealable order. No dice, said the Ninth, this is actually much more like a preliminary injunction because of the scope of the order and the amount of briefing that’s already been done, so we’re going to examine it on its legal merits.
Next, the Government said that Washington and Minnesota lacked standing to challenge Order 13769. Standing is determined by determining if there is a “case or controversy” for the Court to decide, meaning whether the plaintiff has a sufficient “personal stake in the outcome of the controversy” to qualify as an injured party, which in turn requires the plaintiff to articulate an interest in the dispute, some way of tracing an injury to that interest to an action of the defendant, and to describe a remedy that the Court has power to grant which would relieve that injury. Given that the Constitution gives exclusively to Congress the power to create, and exclusively to the President the power to enforce, an “uniform rule of immigration and naturalization,” what injury could the States articulate? The Ninth Circuit accepted the States’ claim that the order caused harm to the states’ public universities:
Specifically, the States allege that the teaching and research missions of their universities are harmed by the Order’s effect on their faculty and students who are nationals of the seven affected countries. These students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their familie sabroad cannot visit. Some have been stranded outside the country, unable to return to the universities at all. The schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries, which they have done in the past.
So because the students and scholars themselves cannot step into court to articulate these interests, in part because they are barred from entry into the country and in part because the individualized interests of the students and scholars are inchoate and only really tangible when aggregated into a university setting, the Ninth Circuit granted the States “third-party standing” as in other cases when the interests of third parties are “inextricably bound up” with interests of the actual litigant. The panel cited to vendors who, on behalf of their potential customers, resist restrictions on their trade (Craig v. Boren 429 U.S. 190, 195 (1976)) and doctors who have articulated interests of their potential patients (Griswold v. Connecticut, 381 U.S. 479 (1965)). The most interesting case they cited here was Singleton v. Wulff 428 U.S. 106, 118, in which a male doctor was granted third-party standing on behalf of his female patients’ rights to seek abortions.
From there, the panel dealt with the Government’s claim that Order 13769 is not judicially reviewable, because no power to participate in immigration decisions is allocated to the judiciary in the Constitution. Apparently, no caselaw precedent was cited by the Government in support of that proposition, although plenty of caselaw suggesting the contrary was offered by the States. The high degree of judicial deference historically given to political decisions about immigration has limits, and “is subject to important constitutional limitations,” Zadvydas v. Davis 533 U.S. 678, 695 (2001) and the judiciary and and should determine “whether Congress has chosen a constitutionally permissible means of implementing [its immigration] power” INS v. Chadha, 462 U.S. 919, 940-941 (1983). The panel cites well-known precedent (Ex parte Quirin 317 U.S. 1, 19 (1942), Ex parte Milligan 71 U.S. 2, 120-121 (1866)) to stake out reminders that the Government must respect the Constitution even in times of war. So the Ninth Circuit indicates that it is properly reviewing the Constitutionality of Order 13769.
At this point, having determined that it can review the order, there is the mandatory recital of the standard under which the review will occur. Four issues are to be considered: first, whether the Government could demonstrate a strong likelihood of success on the legal merits of the dispute; second, whether the Government would be irreparably injured if the stay is denied; third, whether the stay would substantially harm the States; and fourth, where the public interest lies. At each of these stages, the panel indicates, the Government’s case fails.
The Government lacks the ability to succeed first on the basis of due process. Aliens seeking admission to the United States have no apparent ability to petition for review of their case, nor were they given any prior notice of the ban upon their entry. Indeed, Order 13769 appears to contravene procedures Congress put in place for the issuance of asylum and refugee status, and thus implicated statutorily-created liberty interests as well as the Constitutionally-protected interest in the right to travel. The procedural due process rights relating to entry apply to all “people,” not just citizens, and even the legality of their presence in the United States is irrelevant to the issue of whether due process is required. Zadvydas v. Davis 533 U.S. 678, 693 (2001). But pointedly in the opinion, the rights of lawful permanent residents (aka, people who hold “Green cards”) are mentioned with respect to their rights to re-enter the United States after traveling abroad.
Further, the panel found that Order 13769 engages in religious discrimination, in violation of the Establishment Clause. The Establishment Clause is violated when a law “officially prefer[s] [one religious denomination] over another,” Larson v. Valente 456 U.S. 228, 244 (1982).1 Further, the Equal Protection Clause prohibits the Government from discriminating against individuals based upon religion. De La Cruz v. Tormey, 582 F.2d 45, 50 (9th Cir. 1978).2 At this point, the panel considered public statements made by then-Candidate Trump about implementing a “Muslim ban,” and statements by the President’s advisors about how to legally restrict Muslims from entering the United States. The panel does not state that this evidence is dispositive of the issue of intent, only that it raises “serious allegations” as to the intent behind Order 13769.
From there, the panel moves on to the Government’s insistence that combating terrorism is an objective of paramount importance to national security. This is not disputed. However, the panel states that “[t]he Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” Instead, the effect of the Order will be immediate upon the state universities, whereas there was no showing that national security would be immediately harmed if Order 13769 was held in abeyance until after it can be fully and completely litigated on its merits in the due course of time. The Government pointed to prior acts of Congress and the Obama Administration imposing greater security screening of visa applicants from the seven implicated nations, but the panel noted that this is not the same thing as a ban on entry. When the Government simply speculates that there is an immediate risk, the panel states in essence, that’s not a good enough reason for a ban like this.
On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.
And thus, the Government’s motion for an emergency stay on the District Court’s TRO was denied, and pending either an emergency review by the Supreme Court or a subsequent review on a regular briefing schedule, the Government is enjoined from implementing Order 13769.
President Trump’s response came, predictably, on his personal Twitter account, and in the argot with which so many Americans have now become familiar:
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
I presume this means that President Trump will instruct the Justice Department to seek immediate review of this decision by the Supreme Court of the United States. Which, currently, has eight members. Should the Supreme Court grant review and a 4-4 vote result, this will affirm the decision under review.
- Pleasingly to me, the panel goes on to quote the ‘endorsement test’ articulated in Santa Fe Independent School District v. Doe 530 U.S. 290, 310 (2000). I’d thought the ‘endorsement test’ was a dead letter after Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ___ (2014). [↩]
- Notice that here, the panel did not find Supreme Court precedent to which it could cite. [↩]
Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.
I had predicted that the Court would affirm the injunction, but narrow it along the lines the administration suggested. This line in the opinion indicates to me why not: “even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order.” To a certain extent, the Court accepted the administration’s claim that the court’s lacked core competency to make national security policy — the administration must rewrite it and probably should.
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