Immigration Law

9th Circuit lets stand restraining order against Trump travel ban: Will case be heard en banc?

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Updated: The San Francisco-based 9th U.S. Circuit Court of Appeals has declined to reinstate President Donald Trump’s executive order banning travelers from seven majority-Muslim countries.

The decision (PDF) released Thursday afternoon says the three-judge panel is “mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides.” However, the court said, the federal government has not demonstrated that it’s likely to succeed when the full case is heard.

On Friday, Trump told reporters on Air Force One that he’s considering a “brand new order” on immigration. White House chief of staff Reince Priebus also said Friday that the administration is “reviewing all of our options in the court system,” including an appeal to the U.S. Supreme Court.

On Friday night, an unidentified judge on the 9th Circuit made a sua sponte request for a vote on whether the three-judge panel’s Friday order should be reconsidered en banc. A Friday order (PDF) instructs parties to file briefs by 11 a.m. Thursday, Feb. 16, on their positions on whether the case should be considered by the full court.

The ruling came in a closely watched emergency appeal of a lawsuit filed by the state of Washington over the order. The state, which was later joined by Minnesota, alleges that the order unconstitutionally hurt the state by depriving its businesses and universities of foreign-born workers, splitting up families and restricting residents’ travel. The states argued that the order violates several federal statutes as well as the First, Fifth and 10th Amendments, and that its national security concerns are a pretext for Trump to keep a campaign promise to ban all immigration by Muslims.

The order bans nationals of Iraq, Iran, Libya, Somalia, Sudan, Syria and Yemen from entering the United States for 90 days, even those with valid visas. It also bans refugee admissions under the U.S. Refugee Admission Program for 120 days, and Syrian refugees indefinitely. The order caused worldwide protests directly after it came down January 27, and more than 40 lawsuits or habeas corpus petitions.

The three-judge panel—made of one Jimmy Carter appointee, one Barack Obama appointee and one George W. Bush appointee—rejected the Justice Department’s argument that the states had no standing to sue. Via their state universities, the court said, states have standing because teaching and research is harmed when students and academics from the seven affected nations cannot travel, and potential students or professors from those countries cannot be considered. At least one visiting scholar had already been told he would not be issued a visa, the court notes. States may assert their own rights via the universities and may also have standing to assert the rights of students and faculty, the court says.

The 9th Circuit panel flatly rejected the argument that the president “has unreviewable authority to suspend the admission of any class of aliens.” It noted that the government was not merely arguing for substantial deference on national security issues—“an uncontroversial principle”—but also that the president’s decisions are unreviewable and to review them would violate separation of powers principles.

“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the panel wrote. “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.”

Finally, the court considered the arguments for a stay of the district court’s ruling. It emphasized that its ruling was preliminary, but said the federal government was unlikely to succeed against the states’ claims about due process of law under the Fifth Amendment. The government argued that the affected people have no due process rights, but the court said the due process clause applies to all persons—not just all citizens—within the United States, as well as certain people seeking re-entry after leaving the country.

Furthermore, the court said, the district court’s order should not be limited to green card holders—lawful permanent residents—and previously admitted aliens, or in geographic scope to the states of Minnesota and Washington. Geographic limitations would violate legal requirements that immigration law be uniform, the court said, and the limitations on application would leave out affected people who have due process rights.

Finally, the court said the balance of interests between national security and the states’ interests weighed in favor of the states. It had harsh words for the federal government, saying:

“Despite the district court’s and our own repeated invitations to explain the urgent need for the executive order to be placed immediately into effect, the government 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 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, as explained above.”

The court also countered the government’s argument that it had “suffered an institutional injury by erosion of the separation of powers,” pointing out that the government is still free to pursue that argument in the course of the litigation. Injuries to the states’ residents, universities, students and employees, however, could be substantial and irreparable, the court said, and the DOJ’s argument that the discretionary waiver provisions were sufficient protection against such harm was unconvincing.

Minutes after the 9th Circuit’s decision was announced, President Trump responded in a tweet: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”

The president had tweeted of the lower court decision earlier in the week, “The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!” In response, ABA President Linda Klein told the ABA House of Delegates Monday that “the independence of the judiciary is not up for negotiation.”

Updated Feb. 10 to note Trump administration’s response to the ruling; updated Feb. 11 to note the upcoming vote on whether to hear the case en banc.

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