“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.
