Appeals Court Sustains Temporary Restraint on Trump Immigration EO

“You got your tricks

Good for you

But there’s no gambit I don’t see through”

Yesterday the U.S. Court of Appeals for the Ninth Circuit unanimously held that the federal trial judge in Seattle who granted a nationwide temporary restraining order (TRO) suspending Trump’s immigration ban executive order (EO) did not exceed his discretion.  The Court of Appeals therefore rejected Donald Trump’s emergency motion.  The per curiam (unsigned, with authorship attributed simply to the court) appellate opinion, styled an “Order” by the three-judge panel, held that the President and official defendants had failed to show that they were likely to establish on appeal of the TRO that the EO was lawful.  In assessing legality, the court primarily focused on individuals’ rights under the Due Process Clause of the Fifth Amendment to the U.S. Constitution, though it also noted (without definitively ruling) that the plaintiff states’ arguments that the EO unconstitutionally discriminated on the basis of religion were serious.  The Court also held that Trump had failed to show that irreparable injury would follow if the trial judge’s TRO were not immediately lifted.

The lawsuit, filed by the states of Washington and Minnesota, challenged three aspects of the EO.  As the appellate court explained, “section 3(c) of the Executive Order suspends for 90 days the entry of aliens from seven countries,” all of which have majority-Muslim populations, as widely observed in the media following issuance of the EO.  Sections 5(a)-5(c) stop the US from accepting refugees for 120 days, afterward requires prioritization of claims based on religious persecution where someone is a religious minority (such as, e.g., Christians from the seven countries at issue), and indefinitely bars refugees from Syria.  Third, section 5(e) of the EO specifies that it is in the national interest to make exceptions to the EO (pursuant to authority in section 3(g)) “when the person is a religious minority in his country of nationality facing religious persecution.”

The district court judge had held a hearing and subsequently entered a nationwide TRO temporarily halting enforcement of the EO, and the Trump administration filed an emergency motion with the Court of Appeals, defending the claimed lawfulness of the order under the Constitution and federal statutes and asking the court to stay the TRO.  The oral argument in the case revealed concerns about the order from all three judges – William C. Canby, Richard R. Clifton, and Michelle T. Friedland – with Canby’s and Friedland’s concerns including worries whether the EO was intended to discriminate on the basis of religions against Muslims; Clifton seemed more skeptical of the latter claim.

Photo: -, AFP/Getty Images

The unanimous opinion arguably reflected this range of opinion.  After a brief analysis of why the Court of Appeals had jurisdiction to review the TRO, the court turned to the states’ standing to sue in federal court over the EO.  Federal case law limits the sorts of disputes that can be heard in the federal courts, limiting them to ones where the plaintiffs have “standing,” roughly meaning a sufficiently concrete stake in the dispute.  Here, the EO directly affects immigrants and only derivatively harms the plaintiff states themselves.  State universities are arms of the state for legal purposes here, and the court concluded that the linkage between the EO and harm to the states was straightforward:  “The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave.”  The court therefore concluded the states had standing for the suit to begin with.

The court also held that it had the authority in our constitutional scheme of governance to review the states’ legal claims, emphatically rejecting the administration’s claims that the President’s determinations about the national security necessity of his EO were judicially unreviewable, a point on which the panel had pressed the administration’s attorney at oral argument.  The court conceded that he was entitled to judicial deference in such matters, but invoked a range of Supreme Court precedents to hold that the judiciary nonetheless has an important role to play in ensuring the government acted constitutionally.  These included the George W. Bush-era “War on Terror” case Boumedienne v. Bush.

To decide whether it should stay the trial court’s TRO, the Court of Appeals applied well established case law requiring it to consider four factors.  Those are “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”  Concerning the last factor, the court observed that different aspects of the public interest support each side in the case.  “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.”  But the court had noted that that factor, and the third, only came into play if the party seeking the stay – here, Trump – established both of the first factors.  As noted above, the court held that he had not prevailed on those prongs.

The majority of the court’s legal analysis of the lawfulness or unlawfulness of the EO was devoted to explaining why Trump had not shown his order was likely to be held constitutional on appeal.  And it relied primarily on the Due Process Clause of the Fifth Amendment.  That clause forbids the government to deprive individuals of “life, liberty, or property, without due process of law.”  This clause has a procedural aspect upon which the court was relying; when the government deprives people of a protected liberty interest, for example, it must afford them notice and the opportunity to be heard, that is, “the opportunity to present reasons not to proceed with the deprivation and have [those reasons] considered” by the government.  The EO, of course, did not do so, categorically excluding sweepingly defined classes of people of their previous legal opportunity to enter the U.S. Trump argued that this was not necessary, contending that (as the court put it) “most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.”

This, the court held, was wrong.  Its opinion relied on numerous Supreme Court decisions to show that lots of noncitizens have due process rights concerning their right to travel into or out of the country.  Making the textual point that the Due Process Clause protects “persons,” not just citizens, the court pointed to various classes of persons who do have due process rights relevant here.  These included “certain aliens attempting to reenter the United States after travelling abroad[,]” such as lawful permanent residents (LPRs).  Although the White House counsel reinterpreted the EO not to apply to LPRs after its initial roll-out, the court rejected the notion that this was binding in a way that saved the order from constitutional challenge on their behalf.  That move did not render the case moot because it was not “absolutely clear” that the EO would not once again be applied to LPRs.  Moreover, the court pointed to Supreme Court case law suggesting that beyond LPRs, the EO could be violating the due process rights of “other persons who are in the United States, even if unlawfully; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart; refugees; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert.” (citations omitted)

Trump’s back-up position was that the TRO was overbroad in that it extended past LPRs, and even beyond “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future[,]” and in that it extended beyond Washington and Minnesota (the plaintiff states) to the entire nation.  The court rejected the former, population overbreadth claim because it would leave unprotected some noncitizens who have viable due process claims.  It rejected the latter, geographic overbreadth claim by invoking the Fifth Circuit Court of Appeals decision sustaining a nationwide injunction against President Obama’s program of Deferred Action for Parents of Americans.  Without affirmatively endorsing that court’s view that “such a fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration law and policy,” the Court of Appeals here said Trump had not shown that the contrary view was likely to prevail.  And, apropos both overbreadth claims, the court said it was not their role to rewrite the EO to save it from its likely unconstitutionality.  Thus, Trump had not established the likelihood that he would prevail on appeal, and so was not entitled to a stay of the trial judge’s TRO.

The Court of Appeals then also flagged the religious discrimination claims pressed by the plaintiff states against the EO, which they contended violated the Establishment Clause of the First Amendment and the Constitution’s equal protection limitation on federal action.  If Judge Clifton had felt particularly strongly about those claims, he might have insisted that any opinion he joined say nothing about the claim beyond ‘we don’t need to talk about it at all because we’re ruling on due process grounds.’  Yet the opinion went there.  It recounted the constitutional principle against religious favoritism embodied in the Establishment Clause.  It sympathetically recounted the states’ argument on this front, specifically affirming the propriety of relying on evidence of religious favoritism beyond the face of the EO, such as “numerous statements by the President about his intent to implement a ‘Muslim ban.’”  And, as noted earlier, it characterized the religious favoritism arguments as raising “serious allegations and present[ing] significant constitutional questions.”  Only then did it say that it would withhold judgment on those issues (as distinguished from the due process issues) until full briefing on the merits of the appeal.

Moreover, the Court of Appeals held that Trump and the other federal defendants failed to show that they would suffer irreparable injury – that could not be addressed with an eventual favorable decision possibly after a full trial – and so was not legally entitled to a stay of the TRO.  The court recognized that combatting terrorism was certainly a powerful governmental interest.  But, it noted: “Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.”  It rejected the government’s claim to superior knowledge of risks of terrorism, rightly noting that the government frequently provides courts evidence under seal, so that their claims can be assessed while secrecy is preserved.  In contrast, the court found that the states had provided ample evidence of the irreparable harms the EO causes, including “that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. ”

It’s not at all clear whether the Trump administration will seek review of the Ninth Circuit Court of Appeals ruling in the Supreme Court.  They well might, on the theory that they have little or nothing to lose.  At worst, the Supreme Court would affirm the Ninth Circuit Court of Appeals, leaving the status quo (pre-EO) in place.  On the other hand, if Trump can convince five Justices of the Supreme Court that the TRO was overbroad in a way that should be reigned in, Trump might claim a victory about which he could crow in public, in social media.  It’s not clear that he would be able to – particularly with revelations that he is signing executive orders without appreciating what they do.  The doctrine of judicial deference to the Executive presupposes a reasonably competent or properly functioning president, which it regrettably is increasingly unclear the United States enjoys today.

Times Change

Oh there been times that I thought I couldn’t last for long

But now I think I’m able to carry on

As many across the U.S.A. celebrate Independence Day, I’m finally taking a moment to write briefly about a couple of the Supreme Court’s late June decisions from the end of what’s referred to as its October 2012 term (i.e., its sessions of hearing and deciding cases for 2012-13).  The Court by the narrowest margin invalidated a key provision of the Voting Rights Act, leaving another provision inoperative.  Yet by other five-to-four lineups, the Court also restored same-sex couple’s right to marry in California and struck down the federal so-called Defense of Marriage Act (“DOMA”), which required the federal government to discriminate against lawfully married same-sex couples.  One common theme of the Court’s decisions in the voting rights and marriage equality areas is the idea that times change, and with them potentially changes the constitutionality of government action.

In Shelby County, Alabama v.Holder, the five more right-leaning Justices on the Court (all appointed by Republican Presidents) held unconstitutional the “coverage formula” in Section 4 of the Voting Rights Act of 1964 (“VRA”), and thereby rendered inoperative the “preclearance” requirement of Section 5 of the VRA.  Chief Justice Roberts’s opinion for the Court, joined by Justices Scalia, Kennedy, Thomas, and Alito, noted that it had upheld the constitutionality of the VRA after it was first adopted and after each of three earlier federal statutes reauthorizing and extending the VRA’s requirements.  In particular, Section 5 of the VRA prohibits covered jurisdictions, such as states or counties, from changing their voting practices without first getting “preclearance” from the Justice Department or from a three-judge federal court in Washington, D.C., which is only allowed if the change will have neither the purpose nor the effect of denying or abridging the right to vote “on account of race or color.”

Section 4 of the VRA contained a “coverage formula” specifying those jurisdictions to which this preclearance requirement applied.  It barred jurisdictions that had used things like literacy tests or “good moral character” requirements as preconditions for voting and had low voter turnout or registration in the 1964 presidential election.  Subsequent reauthorizations updated the date used to evaluate coverage, with nine states including Alabama and a number of counties across the nation covered by the preclearance requirement, and extended the requirement to cover a broader range of discriminatory practices.  The VRA also, however, had a “bailout” provision to allow jurisdictions to be relieved of the preclearance requirement provided they proved they had for ten years not used tests or devices, had not been denied preclearance for voting practice changes they sought, and had not lost been found by a court to have adopted voting changes with the purpose or effect of discriminating on the basis race or color.

It is this coverage formula that the Supreme Court struck down in Shelby County, and, since the statute otherwise contains no provision making the preclearance requirement apply to any states or counties, in practical effect the Court thereby also struck down Section 5’s preclearance requirement itself.  Although the Court had upheld the VRA as early as 1966, but now, “[n]early 50 years later, things have changed dramatically,” Chief Justice Roberts wrote.  He recognized that the improvement in disparities between black and white voter registration owe much to the VRA itself.  But today, the Court objected, coverage “is based on decades-old data and eradicated practices.”  Because the coverage formula applied only to some but not all states, the Court insisted that Congress “must identify those jurisdictions to be singled out on a basis that makes sense in light of current conditions.”  In the eyes of the majority, “[o]ur country has changed, and while any racial discrimination in voting is too much, Congress must ensure that the legislation it passes to remedy that problem speaks to current conditions.”

Justice Ginsburg, joined by Justices Breyer, Kagan, and Sotomayor (all appointed by Democratic Presidents), dissented and would have upheld the coverage formula.  They did not deny that times change and that “conditions in the South have impressively improved since passage of the Voting Rights Act.”  But they also believed it relevant that “the covered jurisdictions have a unique history of problems with racial discrimination in voting.”  They pointed to a study “ignored by the Court” that reasonably was taken by Congress to show “that the coverage formula continues to identify the jurisdictions of greatest concern.”  They protested that “hardly showing the respect ordinarily paid when Congress acts to implement the Civil War Amendments” (the 13th, 14th, and 15th Amendments), “the Court does not even deign to grapple with the legislative record.”  For the dissenters, times change, but so too do the forms that discrimination takes, as born out by history and as the Congress’s that enacted and reauthorized the VRA attempted to combat by imposing the preclearance requirement.  The dissenting Justices would have deferred to Congress’s conclusion, when reauthorizing the VRA in 2006, that “40 years has not been a sufficient amount of time to eliminate the vestiges of discrimination following nearly 100 years of disregard for the dictates of the 15th amendment and to ensure that the right of all citizens to vote is protected as guaranteed by the Constitution.”

The next day, in Hollingsworth v. Perry, the Court held five-to four (with Justices Scalia, Ginsburg, Breyer, and Kagan joining Chief Justice Roberts’s opinion) that the sponsor’s of California’s state constitutional amendment that had stripped same-sex couples of the right to marry lacked “standing” or the legal authority to take appeals from the trial court decision holding it unconstitutional.  Even though the Court did not reach the merits of the challenge to Prop 8 and so did not decide whether or not it in fact violated the Constitution’s Equal Protection Clause, this standing decision had the effect of letting same-sex couples marry again in the state for the first time since the measure was adopted in the November 2008 election.

The Court did reach the equal protection issue in UnitedStates v. Windsor, however, and five-to-four it held that DOMA Section 3, which limits the definition of “marriage” and “spouses” for federal law to male-female couples, unconstitutionally discriminated against same-sex couples validly married under state law.  Although the majority opinion by Justice Kennedy (which was joined by Justices Ginsburg, Breyer, Kagan, and Sotomayor) did not state that DOMA was ever constitutional, it spoke in terms of changed times and changing understandings.

The Court noted that Congress acted preemptively in 1996 to ban federal recognition of same-sex couples’ marriages before any state allowed them, “as some States were beginning to consider the concept of same-sex marriage.”  But then states did begin to allow or recognize marriages between same-sex couples:

“[U]ntil recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage.  For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged.  For others, however, came the beginnings of a new perspective, a new insight.  Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.”

In the Windsor case, at issue was the federal government’s refusal to recognize Edie Windsor and Thea Spyer’s marriage, which New York did:  “After a statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same-sex marriage, New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood.”  Times had changed, at least in New York, and the state’s determination to open marriage to same-sex couples “enhanced the[ir] recognition, dignity, and protection … in their own community,” something DOMA undermined, be design and in effect.  “The dynamics of state government in the federal system are to allow the formation of consensus respecting the way the members of a discrete community treat each other in their daily contact and constant interaction with each other.”  In the majority’s view,

“For same-sex couples who wished to be married, the State acted to give their lawful conduct a lawful status.  This status is a far-reaching legal acknowledgment of the intimate relationship between two people, a relationship deemed by the State worthy of dignity in the community equal with all other marriages. I t reflects both the community’s considered perspective on the historical roots of the institution of marriage and its evolving understanding of the meaning of equality.”  In denying recognition to this status across the board for federal purposes, DOMA violated constitutional equality principles; its purpose and effect were to express disapproval of same-sex couples whom states chose to protect as they realized the propriety of such protection. 

In Windsor Justice Kennedy did not, but might as well have, quoted his own language from the Supreme Court’s opinion in Lawrence v. Texas, the decision the Court issued ten years to the day earlier, striking down Texas’s law against certain kinds of sexual conduct by two people of the same sex.  There, he wrote that the people who wrote and adopted the Bill of Rights and Fourteenth Amendment “knew times can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress. As the Constitution endures, persons in every generation can invoke its principles in their own search for greater freedom.”  Times change, and constitutional principles respond to those changes.