The Ninth Circuit won't be lifting an order enjoining enforcement of President Trump's executive order barring travel from seven majority-Muslim nations and the resettlement of refugees.
In a per curiam decision, the three-judge panel ruled just moments ago that the administration "has not shown a likelihood of success on the merits of its appeal, nor has it shown that the failure to enter a stay would cause irreparable injury." Last Friday, Washington State won a temporary restraining order barring enforcement of the ban after it sued, alleging that the executive order violated the Constitution and federal immigration law. The ruling means that Trump's immigration ban will remain on hold for now, while the case continues to play out.
A Quick Rush to the Ninth Circuit
The Ninth's ruling comes just two days after the court held oral arguments and less than a week after the TRO was first issued. That order came after Washington State sued, claiming harm to its residents, economy, and the state's "sovereign interest in remaining a welcoming place for immigrants and refugees." Judge James L. Robart issued a brief opinion stopping enforcement of the executive order and the federal government quickly appealed.
The government had argued that the president had an "unreviewable authority to suspend the admission of any class of aliens," and claimed the court had "improperly second-guessed the president's national security determinations." At oral arguments, the Department of Justice seemed to temper that position slightly, saying that the president's determinations could be limited by the constitution and reviewable by the courts, but that such review must be limited to the words of the order and come from those with standing to sue.
Standing and Reviewability
Those arguments did not seem to convince the panel, not even Judge Richard Clifton, who seemed the most sympathetic to the government during oral arguments.
First, the Ninth determined that Washington State, joined by Minnesota, had standing to sue, pointing to the harms suffered by the students and scholars at the states' public universities. As operators of those universities, the states "may assert not only their own rights to the extent effected by the Executive Order but may also assert the rights of their students and faculty members."
As for the EO's reviewability, the panel found that "There is no precedent to support" the government's "claimed unrevewiability, which runs contrary to the fundamental structure of our constitutional democracy." The government had moved far from demanding deference in matters of immigration and national security, to demanding unchecked authority.
"The Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context," the court said.
"It is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action," the panel concluded.
Due Process, Establishment, and Equal Protection
As for the stay itself, the Ninth found that the federal government was unlikely to prevail on the underlying claims. Regarding Washington's Due Process Clause claims, "The Government has not shown that the Executive Order provides what due process requires," the court said.
The court declined to consider the states' Establishment and Equal Protection Clause claims, given the court's due process findings, while acknowledging the "sensitive interests involved" and the "pace of the current emergency proceedings."
No Limiting of TRO
The court refused to limit the geographic scope of the TRO, as the government had asked. Had they done so, the order could have been enforced generally, while paused for a limited number of immigrants, travelers, and refugees in Washington and Minnesota.
That "fragmented immigration policy would run afoul of the constitutional and statutory requirements for uniform immigration law and policy," the court said, citing the Fifth Circuit's 2015 decision enjoining down President Obama's immigration reforms.
Finally, the court found that reinstating the immigration ban is not necessary to avoid irreparable injury. Indeed, the court wrote, the 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.
The President wasted no time responding -- in all caps. An appeal for en banc review or to the Supreme Court is expected. Meanwhile, proceedings continue in district court.
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!-- Donald J. Trump (@realDonaldTrump) February 9, 2017
- Trump's Fight With the Judiciary Is Getting Gorsuch Down (FindLaw's U.S. Supreme Court Blog)
- What's Happened and What's Ahead in Washington v. Trump (FindLaw's U.S. Ninth Circuit Blog)
- Washington v. Trump: DOJ Reply Comes in, Oral Arguments Scheduled for Today (FindLaw's U.S. Ninth Circuit Blog)
- Legal Battle Over Trump's Immigration Ban Could Play Out in the 9th Cir. (FindLaw's U.S. Ninth Circuit Blog)