Immigration

UPDATE: 9th Circuit Rules on the Refugee Ban: Government’s Request to Block Washington State’s Temporary Restraining Order is Denied

Celeste Fremon
Written by Celeste Fremon

9TH CIRCUIT’S DECISION ARRIVES—AND THE ANSWER TO TRUMP ADMINISTRATION IS: NO

On Thursday afternoon the 9th Circuit Court of Appeals announced its ruling on immediate fate of the temporary restraining order that has halted President Donald Trump’s refugee and immigration ban nationwide.

The 3-judge panel of the 9th denied the government’s request to do away with the TRO. The temporary restraining order stands.


THE BACK STORY

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 ban, so that the district court could hold further hearings on the legality of the controversial executive order over the next two weeks.

Once the TRO was announced, the Department of Justice went to the Ninth Circuit to ask for an emergency stay of that order.

After Tuesday’s hearing via telephone by a three-judge panel from the 9th, the court said it would make a decision quickly. And quick it was.

Due to the high interest in the case, the 9th Circuit elected to stream the hearing live, albeit only via audio because, due to the urgent nature of the hearing, the three judges, not all of whom live locally, did not gather in one courtroom.

The hearing, which ran slightly over an hour, was technical in many ways, but also dramatic and informative, even for those not completely conversant with the details of the statutes and legal precedents being discussed. So, while we all wait for the panel’s decision, we recommend you listen to part or all of the interchange below between the justices, and the attorneys representing the two sides.

The panel was made up of Judge William C. Canby Jr, appointed by Jimmy Carter, Judge Michelle T. Friedland, appointed by Barack Obama, and Judge Richard R. Clifton, an appointee of George W. Bush.

The ban’s opponents were represented by Noah Purcell, Washington State’s solicitor general.

August Flentje, a special counsel to the Assistant Attorney General, argued the case for the Trump Administration.


TAKEAWAYS FROM THE HEARING AT THE 9TH

The hearing, as many of you may know by now, was not really about the legality of the ban itself—although that issue came into play. Instead it was about whether the TRO should remain in place while the district court does the work of figuring out if the president’s executive order is legal.

(We now know that the panel ruled that the TRO should remain.)

As Scott Graham observed over at Law.com, the three judges seemed “prepared to the eyeballs for Tuesday’s potentially historic arguments,” while the two lawyers who were presenting the two sides, each often stumbled and became flummoxed by the questions tossed their directions.

At another level, as Amy Davidson wrote for the New Yorker, if there is “a single question at the center” of Tuesday afternoon’s hearing it was this: “do the courts, or the American people, have any recourse” if they believe that the President is lying about the the executive order being necessary to save the nation from “immediate peril?”

With that question in mind, when it came to to the emergency stay requested by the administration, “the three judges on the appeals court—-Michelle Friedland, Richard Clifton, and William Canby—–wanted to know what, exactly, the emergency was,” wrote Davidson.

In response, Flentje, the administration’s lawyer told the judges, “in effect, that the emergency was that the restraining order got in the way of the President’s power to say that there was an emergency——to announce that the country was in danger. Putting a hold on the ban ‘overrides the President’s national-security judgment about the level of risk,’ he said. It was the President’s job to make that determination, not any court’s. And the court also needed to put aside any talk about this being a Muslim ban, because that was not, technically, what the language of the order said. The judges had to believe the President when he said it was all a matter of the country being in immediate peril, and not about his views of any religion or about the demographic future of America…”

Davidson writes lots more about the exchanges. So, whether you agree with everything she writes or not, her smart observations and analyses are well worth your time. So read on.


AND FOR FURTHER RABBIT-HOLING ON THE ISSUE….

If you’d like to delve still further into the case in general, in addition to listening to the appellate hearing, it is intriguing and instructive to read some of the amicus briefs filed for this case.

Here, for example, is the Tech companies’ amicus brief.

And here’s the brief from a bunch of prominent Constitutional scholars.

Finally, here’s the amicus brief from 18 attorneys general representing the states of California, Pennsylvania, Massachusetts, New York, Connecticut, Delaware, Illinois, Iowa, Maine, Maryland, New Hampshire, New Mexico, North Carolina, Oregon, Rhode Island, Vermont, Virginia, and District of Columbia. The brief details how and why the ban will do harm to all 18 states’ colleges and universities, with California—due to its size—arguably the most affected.

(You find lots more briefs for both sides on the 9th Circuit’s website.)

And finally, here is the video of last week’s hearing in front of U.S. District Court Judge James L. Robart in the federal courthouse in Seattle, WA, which resulted in Robart granting the state of Washington the temporary restraining order against the president’s executive order that affected Syrian refugees, and refugees and immigrants from seven predominantly Muslim nations. Before he left the bench, Robart made clear that his ruling applied nationwide.

21 Comments

  • Sounds like this case isn’t so cut and dried as a previous story on this blog would have everyone believe. Seems to be a whole other side to this story that this blog whishes to ignore. ( i.e. The governments case). Period. Full stop.

    • Trump’s travel ban was trumped just now, unanimously (3-0) I might add. Lets face it….Trump is out of his league.

  • 9th Circuit yet again proves itself an incompetent joke. This isn’t about Trump anymore folks.

    America’s silent majority is paying attention. We don’t riot, we don’t wear knitted caps, we don’t even march. But believe me, we vote.

    • Silent Majority? Maybe you had not realized but Trump lost the popular vote. You are the minority, and soon to be one ethnically, too. You don’t riot….anymore, now you just call the police (or someone will call you, I suspect) to deal with suspicious blacks or illegals. And, those folks don’t wear knitted caps because they prefer hoods.

      • CF – yes, as a female I am technically a “minority.” It is insightful that you assume I will “soon be an ethnic” minority soon. Speaks volumes about your mind frame.

      • CF- The definition of “silent majority” is an unspecified large group of people in a country or group who do not express their opinions publicly. You can learn the terms history here —https://en.wikipedia.org/wiki/Silent_majority

        • Jacy, how do you figure you are a minority because you are a woman? And, I am not sure what Wikipedia says, but the term, although it had been around before in a somewhat different context, was popularized and is used to mean in the way Nixon used it to appeal to White southerners, using his dog whistle, on the basis of law and order, both as he saw crime in the inner cities (code for blacks) and the Vietnam protests. Calling it what you will, Trump appealed to the racist element and that longing by poor whites for a time when blacks knew their place and there were not so many people who spoke a language other than English and did better than whites. Unfortunately for my White brethren, those days aint coming back.

  • I believe the 9th Circus has a 87% or so overturned rate by the Supreme Court. That classifies them embarrassingly as “Progressive Judicial Activists.” Yet no doubt, they wear that title with Progressive pride. They have won the battle, but not the war. And when this is all said and done, I suspect their RD is going to be broken-up and they will be marginalized. The disgusting part of this is they decide cases based on Progressive ideology, not on constitutional merits. I predict this will be dealt with, rather harshly, for the common cause.

  • The clowns are running the circus. Arguing whether or not the POTUS has the power to keep foreign citizens from setting foot on American soil is hilarious. It’s been done before NUMEROUS times by NUMEROUS presidents. Has the law been overturned or amended since Trump was elected? The law is black and white on the subject.
    The 9th Circuit’s decision, per their opinions, interpretations and explanations basically stated that the arguments made by Trump for why he chose to invoke his power and issue the EO order were weak and couldn’t be justified. There’s only one problem with that ruling. The LAW gives the POTUS the power to decide. Not the courts. That’s what EO’s are all about.
    It’s like when Gitmo first opened up and the left was all up in arms about those poor battlefield combatants being held at Gitmo and not given due process. They all had brilliant arguments as to why it was illegal for the Bush administration to hold them indefinitely at Gitmo without giving them trials.
    Then there was another election and voila, the brilliant arguments by all the “Brightest legal scholars” went away. So did the outrage. Gitmo remained open, and all of sudden nobody cared that those poor “political prisoners” were held indefinitely without due process. All of a sudden those brilliant legal scholars on the left were not only ok with it, they seemed to do a 180 on whether or not the Constitutional Rights of American citizens applied to foreign citizens.
    Now the judicial activists are once again saying it’s about applying the law.
    Lol. Yeah, ok. The law hasn’t changed. If the law gave POTUS Jimmy Carter (Among several others) the discretionary power to issue an EO banning citizens of certain countries from coming to the U.S., what’s changed?
    Hint: It’s not the LAW.

    • Oh Well – Free speech and opinions dominate the comment section. You however are the exception. I’m sure you keester all the facts and then present them like a proud magician. Yessiree Bob, the walking & talking Wikipedia. Have you considered Spicer’s job position?

  • Hey look, here we have “Talent Scout”, another “new” commenter on board. Lol. What a coincidence!
    The thing about facts, that thing that is so annoying, is that they can’t be disputed.
    These are facts. 212(f) hasn’t changed. It hasn’t been rescinded or amended. The president has.
    I realize you don’t like it when facts are presented that don’t support your argument or your agenda. I realize that you are being snarky and sarcastic because you would rather not debate the facts (Notice I did not say humorous)?
    Spicer’s job? Really? That’s the best you’ve got? Ho hum. Weak. You can do better than that!
    As for your reference to me being a “good magician” and a “walking talking Wikipedia”, those aren’t even as good of efforts as your “Spicer’s job” jab.
    98% of the adult population in this country has access to Wiki. Anybody can research 212(f) on it. It isn’t exactly a mind boggling trick. You should try it sometime. It will better prepare for debates such as this than your strategy of relying on the Daily Kos and your poly-sci professor for the “facts”.
    In case you haven’t noticed, I realize it’s not about the facts with you. It’s about you doing your part to keep the movement moving FORWARD.
    Two steps FORWARD, one step back.
    Life is tough. It’s tougher when you’re on a crusade. There are many obstacles to overcome. Facts often get in the way.

    • Oh Well – New or old, You don’t have to a Swami to recognize a blog hog. Even worse if you keep a running log on every commenter. You’re clueless even to yourself as you have an answer for everything and everyone. I can’t be the only one to call you on this, am I?

      • Forgive me if I consistently and persistently point out the facts. Once again, your failure to address the facts I’ve presented and dispute them is noted. It’s quite evident to even the most pedestrian observer that because you can’t dispute the facts I’ve presented, there’s nothing left for you to do but resort to sarcasm, snark, silly comparisons and name calling to fall back on.
        FACT: Several previous presidents have issued EO’s based on INA 212(f).
        FACT: Since the previous EO’s were issued, the law hasn’t changed. It’s constitutionality, wording, content or intent hasn’t even been discussed by the higher courts until now.
        FACT: The only thing that’s changed is who’s issuing the EO.
        Those are the facts. You don’t have to like them. I don’t expect you to. Never the less, they ARE facts. You haven’t disputed them nor debated about them. Therefore, it’s obvious you stipulate to the facts.
        Your blather and criticisms of how often I post or your personal insults towards me doesn’t disguise the reality that you can’t dispute the facts I presented in my original post. The entirety of my subsequent posts have, every single one of them, has been due to your initial insult of me.
        It obviously pissed you off that I presented those facts.

    • BTW, “Oh Well”……..Speaking of facts, it’s a good that you didn’t bring up “Alternative Facts”. One star on your forehead for that. Even Spicer backed away from that one. Lol!

  • Here you go. This isn’t from FOX NEWS, or Breitbart, or any right-wing wacko website where all the contributors and editors are wearing white sheets and hoods lmao. This is from a law firm that handles immigration cases. You can read INA 212(f) for yourself right here.
    YOU’RE WELCOME.
    https://messersmithlaw.com/ina-212f/

  • Talent Scout, no you are not the only one that has called Oh Well on this. And, calling Oh Well a magician is giving him too much credit. It’s really all a slight of hand on the part of Oh Well. I, too, thought he was a magician at first until I realized he is really pulling his “facts” out of his ass. To Oh Well everything is black and white, and that is probably both figuratively and literally.

    Aside from being a magician, the man is a genius. He has no need for highfalutin,’ big city “poly-sci professors.” Fortunately, all the information he needs to be informed is in Wikipedia and FOX. Who best to learn from than from the learned Bill O’Riley who has written many a book, most ghostwritten and which at best can amount to a second rate undergraduate term paper, but who care. I think has run out of people to kill. Be honest, Oh Well, do you watch Fox?

    Oh Well goes on to say the issue “the law is black and white on the subject.” Again, his knowledge of various subjects is amazing. He excels not only in law enforcement, but now a rival to the great Learned Hand in his knowledge of the law. At least he has graduated from Wikipedia to citing a law firms. I would love to see one of his college papers, or high school. But I see Oh Well’s point. We had the Chinese Exclusion Act; why can we just do something similar. And, during WWII we turned away boatloads, literally, of jews. Why can’t we just do that again. Or, Reagan turned away people with HIV. Why can’t we do that again. Hell, why can’t we just make America great again.

    I suspect what Oh Well is really getting at is Carter’s denial of visas to Iranians during the Iran Hostage. Or, Obama’s EO around Special Immigrant Visas for Iraqis. As usual, Oh Well is not one to be bothered by facts and details. The devil is in the details. There is a big difference between these EOs and Trump’s. Hell, Trump would send back legal residents. So that Oh Well can understand, let me give him an example. Its like being able to put a black man in a choke hold and choking him to death. In both, there is a black man in a choke hold, but in one he dies and you will end up being the subject of a post on this website. Just because your car is a black and white, do not think the world is.

    • Yes indeedy….Minus the diety attribute, “Oh Well” is “Omnipresent”. At least that’s what he would have everyone believe. Regarding his facts, I already mentioned that they were keistered. Lol.

  • CF, after the detailed rant describing the fantasy of who you imagine oh well to be, you then went on to validate his points. Just say’n

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