Key takeaways from ruling on Trump's immigration order
9th Circuit Court of Appeals allowed the temporary restraining order.
— -- Judges from the 9th Circuit Court of Appeals issued a decision Thursday night to allow a temporary restraining order against President Donald Trump's travel ban to remain in place.
In its unanimous ruling, the court decided in favor of attorneys representing Minnesota and Washington, allowing travel to continue from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen.
Trump, who classified the ruling as a "political decision," later promised to continue the legal battle, saying, "the security of our nation is at stake" and tweeting "see you in court."
Here are some of the key points from the ruling:
Trump Administration’s Motion For Stay: Denied
In its appeal to the 9th Circuit, the Trump administration was seeking a stay of a temporary restraining order put in place last Friday by U.S. District Court Judge James Robart in Seattle.
Robart’s order had placed a temporary nationwide hold on key provisions of Trump’s executive order that imposed a 90-day ban on immigration from seven Muslim-majority nations, a 120-day freeze on refugee admissions, an indefinite suspension on admission of Syrian refugees as well as priority consideration for refugees of a religious minority facing persecution. The Trump administration had argued that the temporary restraining order was “vastly overbroad” and an improper judicial encroachment on the president’s authority to set policy on matters of immigration and national security.
The unanimous opinion from the three-judge panel of the 9th Circuit flatly rejected the administration’s arguments, leaving the restraining order in place.
“To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.”
Courts Owe Deference to Executive Branch, but Retain Authority to Adjudicate Constitutional Challenges
In its challenge to the temporary restraining order, the Trump administration argued that the courts ought to stay out of the business of second-guessing the president’s authority to make policy decisions on immigration and national security. Lawyers for the administration, in legal briefs, pointed to the authority expressly granted by Congress to the president under the Immigration and Naturalization Act to “suspend the entry of all aliens or any class of aliens” whose entry “would be detrimental to the United States.”
The court forcefully rejected the claim that such decisions were “unreviewable” by the judicial branch and asserted that “it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”
“Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, 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.”“[T
The States of Washington and Minnesota Have the Right to Sue
Another contentious issue in the dispute is whether state governments, on behalf their citizens and institutions, are legally permitted to sue the federal government over immigration policy. The states argued that they do, based in part on allegations that the ban was causing harm to state universities by restricting the travel of its faculty and students and that those harms could be construed as irreparable if the executive order remained in force. The Trump team argued that, to the extent that the states have any standing at all, it cannot legally extend to refugees or visa holders who have never before been permitted entry into the United States.
In its opinion, the 9th Circuit panel concluded that “the States have made a sufficient showing to support standing, at least at this preliminary stage of the proceedings.”
“We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. 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. And we have no difficulty concluding that the states’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise.”
Trump Administration Fails to Show Stay is Necessary to Avoid Irreparable Injury
The Trump administration argued before the appellate court that the temporary freeze on the president’s executive order was causing harm to the interests of the United States by reinstating previous immigration procedures that "the President determined should be temporarily suspended in the interest of national security” and that the damage “cannot be undone.” The court, however, faulted the administration for its failure to present evidence, even in a classified form that could be sealed from public view, to support the executive order’s position that immigrants from the seven affected nations posed a specific risk to the security of the country. The court therefore ruled that the government “has not shown that a stay is necessary to avoid irreparable injury.”
“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. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree”
Evidence of Anti-Muslim Bias May Be Considered at Later Stage of the Proceedings
On this point, the 9th Circuit ruling is a mixed bag. The plaintiffs have argued that prior campaign statements from Trump and his surrogates promoting a broad exclusionary policy on Muslim immigration amount to evidence of the discriminatory intent of the executive order. The Trump administration has insisted that the executive order is not a Muslim ban and that it was formulated using prior determinations during the Obama administration that the seven affected nations were of particular concern for terrorism. The administration asserts that judicial review of the order should be limited to the language of the order and its stated intent - to prevent foreign terrorists from entering the United States.
The appellate judges noted that the states had offered “evidence of numerous statements by the President about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the Executive Order was intended to be that ban.” But the court deferred ruling on those claims until later proceedings in the case, while also noting that it “is well established that evidence of purpose beyond the face of the challenged law may be considered” in constitutional claims.
“The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections [concerning refugees from religious minorities facing persecution.
Judges Express Concern Over the Shifting Interpretations and Applications of the Order
In the first few days after the roll-out of the executive order, there was extensive confusion about the application of the order to legal permanent residents of the United States who hailed from one of the affected countries. In a memo to federal agencies sent five days after the executive order was signed, White House counsel Don McGahn acknowledged the “reasonable uncertainty” about whether the order was intended to apply to legal residents of the United States, and clarified that it did not. Attorneys for the administration told the court that McGahn’s memorandum represented the “definitive interpretation” of the executive order, and that the White House counsel speaks for the president, in this context.
In its opinion, the 9th Circuit appellate panel expressed concern about whether the White House counsel “is empowered to issue an amended order superseding the Executive Order signed by the President,” noting that the “proposition seems unlikely.” The court decided that it could not conclude that the administration might not again alter the order’s meaning and application after the court proceedings were over.
“At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents. The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely. Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings. On this record, therefore, we cannot conclude that the Government has shown that it is ‘absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.’
Court Rejects the Trump Administration’s Suggested Modifications to the Restraining Order
On the day prior to the oral arguments before the appellate judges, the Trump administration for the first time suggested a possible compromise on the breadth of the temporary restraining order.
In its final legal brief submitted on Monday, the government suggested a modest concession to the plight of visa holders currently in the United States who fear traveling outside the country or to others previously admitted but who were temporarily abroad a when the executive order went into effect.
While maintaining its position that "an alien outside the United States has no substantive right or basis for judicial review in the denial of a visa at all," and that "the issuance of a visa to an alien does not confer upon that alien any right of admission into the United States," the government proposed that the restraining order “should be limited to the class of individuals on whom the State's claims rest - previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future."
But the appellate court didn’t bite, effectively saying, that’s not our job.
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