A TRIPLE IX-NAY ON THE “MERITS” OF THE GOVERNMENT’S APPEAL
When on Thursday afternoon the panel of three judges from the Ninth Circuit Court of Appeals said NO to reinstating the Trump administration’s refugee and immigration ban, the uber explanation for the unanimous ruling against what Trump and company wanted was fairly simple:
“…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.”
As readers will remember, the appeal to the 9th Circuit came after Judge James Robart of the U.S. District Court in Seattle granted the states of Washington and Minnesota a temporary restraining order, which put a hold on Trump’s controversial executive order that had suspended the U.S. Refugee Admissions Program for 120 days, barred Syrian refugees from admission altogether until further notice, and suspended immigrant and non-immigrant visa travel from seven Muslim-majority countries for 90 days. The purpose of the TRO was to suspend the president’s order long enough to allow the district court to hold further hearings on the legality of the problematic executive order over the next two plus weeks.
Once the TRO was announced, however, the Department of Justice went to the Ninth Circuit to ask for an emergency stay of the restraining order, the existence of which the administration claimed had put the nation in peril.
This past Tuesday, February 7, a three-judge panel from the 9th Circuit heard arguments about the emergency stay from Noah Purcell, Washington State’s solicitor general, representing the two states, and August Flentje, a special counsel to the Assistant Attorney General, who argued the case for the Trump Administration.
The threesome of judges—William Canby Jr (appointed by Jimmy Carter), Michelle Friedland (appointed by Barack Obama), and Richard Clifton (an appointee of George W. Bush)—said it would make a decision quickly, which brings us to Thursday’s ruling against the government.
The 29-page opinion was, in certain ways, deliberately limited in scope. Yet it was also elegantly written, forceful and detailed in its argument, at times utterly scathing, and filled with a series of implications that will likely reverberate well beyond the ruling’s simple denial of the government’s request.
Here is a look at some of the most important areas that the ruling covered:
FIRST OF ALL…THE MATTER OF WHO HAS STANDING
One of the government’s arguments against the temporary restraining order was that the states have no standing to bring the lawsuit challenging the executive order. Washington and Minnesota argued that they did have standing because they had, as is legally required, a sufficiently “personal stake in the outcome of the controversy,” and, more importantly, they could demonstrate that they have “suffered a concrete and particularized injury that is either actual or imminent.”
Namely, they said, their colleges and universities were suffering because of students, faculty, interns and others who were from the seven countries, were either prevented from entry, or could not leave the U.S. to travel as their jobs sometimes required, for fear of being unable to return.
Based on these and related arguments, the judges quickly dispatched the matter and concluded that the states had plenty of standing.
(It likely bears mentioning here that, although the 9th Circuit’s ruling relates specifically to the challenge to the president’s order brought by the states of Washington and Missouri, eighteen additional attorneys general of eighteen additional states, California prominently included, filed a 22-page Amicus brief outlining the “real and immediate hardships” caused for each state, its “residents, business and institutions.” For instance, according to the brief, the University of California’s ten campuses have almost 500 affected graduate students and 40 affected undergraduates, and the California State University System’s has more than 1,300 students from the affected countries with immigrant status, and more than 250 students on student visas. None of this directly affected Thursday’s ruling. We just thought you might like to know.)
MORE IMPORTANTLY: DOES THE JUDICIARY HAVE THE RIGHT TO REVIEW THE PRESIDENT’S BAN AT ALL?
With the issue of standing settled, the three judges got to what they seemed to consider to be one of the real hearts of the matter, which was the question of whether the judicial branch of the U.S. government had the right to review the president’s executive order at all.
The topic came up during Tuesday’s hearing when, early in the roughly hour-long conference call between justices and attorneys, the government’s lawyer, August Flentje, told the judges that the temporary restraining order was both dangerous and unacceptable because it “overrides the President’s national-security judgment about the level of risk.” The president, said Flentje, had the right and the knowledge to make the determination that the nation was in immediate peril. The judiciary did not.
When pressed for any kind of details about the immediate risk that the government claimed the TRO represented to the nation, Flentje reiterated that “the President determined that there was a real risk.”
After some further pushing on the part of the panel, Judge Friedland pressed the government’s lawyer one more time: Was Flentje saying that President Trump’s determination (as codified in the executive order, then further in the governments “emergency” request) was “unreviewable”?
There was a pause of several long seconds. “Yes,” Flentje said finally.
The judiciary, he continued, could review whether the executive order was “facially legitamate.” In other words, basically, judges could examine whether or not the order written correctly or in the right legal form, and other things of that nature.
But the Trump administration was “not acknowledging” that the judiciary had any right of review “on the facts of the case.”
In Thursday’s ruling, the three judges disagreed—at length and forcefully—with the administration’s claim that the president’s order fell outside the judiciary’s power to review.
“There is no precedent to support this claimed unreviewability,” they wrote tersely, “which runs contrary to the fundamental structure of our constitutional democracy.”
The government’s “political branches” they wrote, quoting applicable case law, lack “the power to switch the Constitution on or off at will.”
Within our system, they went on, just in case anybody missed the point, it is the role of the judiciary to interpret the law, a duty that will sometimes require the resolution “of litigation challenging the constitutional authority of one of the three branches.
“We are called upon to perform that duty in this case.”
The panel acknowledged that jurisprudence “has long counseled deference to the political branches on matters of immigration and national security.”
But neither the Supreme Court nor their own court, they added, “has ever held that courts lack the authority to review executive action” in the above arenas “for compliance with the Constitution.”
To the contrary, said the judges, SCOTUS 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.”
(Those making book on what the U.S. Supreme Court will later do with the matter of the executive order when it comes to them, are—one assumes—making note the above passage, among others.)
“It would indeed be ironic,” the panel wrote, again liberally quoting caselaw, “if, in the name of national defense, we would sanction the subversion of one of those liberties . . . which makes the defense of the Nation worthwhile.”
Furthermore, they said, “…whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organizations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”
In short, although the courts owe “considerable deference” to the policy determinations by the executive branch having to do with immigration and national security, “it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”
THE RIGHT—OR LACK THEREOF—TO DUE PROCESS
Having dispatched with the pesky little issue of whether they had the right to rule on the matter at all, the judges’ settled into an exploration of whether the the state’s challenge of president’s executive order as unconstitutional and in violation of federal law, had a likelyhood of succeeding on its legal merits.
With this in mind, first the judges looked at the issue of Due Process.
The Fifth Amendment of the Constitution prohibits the government from depriving individuals of their “life, liberty, or property, without due process of law.”
The states contended in their presentation to District Judge Robart that the president’s executive order “violates the procedural due process rights of immigrants and non-immigrants from the seven impacted countries,” including those “who reside and work in Washington, are professors and students at Washington universities, and want to travel to Washington to visit their families.”
Whereas the government argued “that most or all of the individuals affected by the Executive Order have no rights under the Due Process clause,” of the Constitution.
Nope. Not true, the panel wrote (or words to that effect). The procedural protections provided by the Fifth Amendment’s due process clause “are not limited to citizens. Rather, they apply “to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.”
THE LEGALITY OF APPLYING THE RESTRAINING ORDER NATIONWIDE
On the issue of Judge Robart’s ruling that his restraining order applied nationwide, the panel didn’t express a strong opinion past the fact that they declined to “limit the geographic scope of the TRO.”
The Fifth Circuit, they said, has ruled previously that “…a fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration law and policy.”
While the panel didn’t completely commit themselves to this ruling by the 5th Circuit, nor did they express a leaning against it. “At this stage of the litigation, we do not need to and do not reach such a legal conclusion for ourselves,” they wrote. The main point, the judges said, was that the government had not “established that a contrary view” was “likely to prevail.”
IT’S All ABOUT THE FIRST AMENDMENT
While the panel spent some time on the question of whether Trump’s executive order might or might not violate the Constitution’s due process protections, when it came to the Constitutionality of the order, the judges were clearly the most interested in talking about matters involving the First Amendment, such as, say, the executive order’s appearance of endorsing one religion over another.
The Supreme Court, they wrote, has explained that the endorsement of any religion “sends the ancillary message to . . . nonadherents ‘that they are outsiders, not full members of the political community.’”
By the same token, they wrote, the Equal Protection Clause likewise “prohibits the Government from impermissibly discriminating among persons based on religion.”
Although the president’s executive order didn’t out-and-out name Muslims or Christians, in its clauses that have been flagged as problematic, the judges said it was “well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.”
Or, to put it another way, an “official action” that targets “religious conduct for distinctive treatment,” they wrote, cannot be shielded by “mere compliance with the requirement of facial neutrality.”
In their ruling, the judges didn’t explicitly reference Donald Trump’s campaign statements about a “Muslim ban,” or former New York City mayor Rudy Giuliani’s statement to Fox News a week or so after the signing of the order that the President told him he wanted a “Muslim ban” and asked him for guidance on “the right way to do it legally.” Although all these things came up in Tuesday’s hearing.
Yet, the three did write pointedly that “circumstantial evidence of intent, including the historical background of the decision and statements by decision makers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose.”
It’s important to note that the panel didn’t need to rule on the Constitutionality of the president’s executive order. That wasn’t its job. The judges’ only task this week was to rule on the emergency request to lift the TRO, a decision that was braided together with the question of whether Trump’s executive order with its attendant claim of national peril, was reviewable. It also needed to make a call on whether the states’ contention that the order violates the Constitution and/or federal law has the likelihood of succeeding in court. A deeper dive into Constitutionality will come later, when the question goes back to the federal district level, and then in any appeals that may come after.
Nevertheless, the panel’s detailed and caselaw-bolstered opinions are telling and useful.
THE “EMERGENCY” BEHIND THE GOVERNMENT’S EMERGENCY REQUEST
Finally, although the three judges said they agreed that the government’s interest in combating terrorism “is an urgent objective of the highest order,” they also said the government had done little to prove their assertion of urgency other than to “reiterate that fact.”
Both District Court Judge James Robart, they noted, “and our own repeated invitations to explain” why there was such an “urgent need” for the Executive Order to be placed immediately back “into effect,” went all but unanswered, and the administration “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.”
The Government, the judges said, “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.”
To the contrary, they wrote, 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.”
Neither were they persuaded by the Trump administration’s repeated reference to the fact that the Congress and the Obama administration had “identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016.”
The government “has not offered any evidence or even an explanation of how the national security concerns that justified those designations”—and which some years ago triggered the new visa requirements under Obama, along with a system of stringent vetting—“can be extrapolated to justify an urgent need [now] for the Executive Order to be immediately reinstated.”
If there was some kind of compelling reason for Trump’s order to be rebooted, the government hadn’t shared it, they wrote.
On the flip side of the question, according to the judges, the states demonstrated “amply” that “real quantifiable damage would be done” if the TRO was lifted.
Thus the government’s portrayal of the “public interest” of keeping the nation safe from terror attacks that the ban purportedly serves, is up against another public interest “as evidenced by the massive attention this case has garnered at even the most preliminary stages.”
As a consequence, “…when considered alongside” the very real hardships o discussed above,” the competing public interests claimed by the administration, “do not justify a stay.”
And that was that.
We first thought the administration would appeal quickly to the Supremes.
Now it seems that the government may or may not to SCOTUS, but they also plan to rewrite the executive order to make it…well…more, you know, legal. Or they may write another executive order. As of this writing, no one seems positive.
Meanwhile there are still multiple other lawsuits regarding the executive order making their way through the courts.
In any event, this story is far from over.
PS: If you want to read the 9th Circuit’s ruling yourself—an activity that we really, really recommend—-you can find it here.