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

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.