In an often feisty one hour and 14 minute back-and-forth Tuesday afternoon, the Ninth Circuit Court of Appeals heard oral arguments surrounding President Donald Trump’s executive action restricting travel to and from the United States.
Trump issued the executive order (EO) on January 27. It froze refugee admission for four months, denied green-card holders entry, and blocked Syrian refugee relocation indefinitely. The four month freeze includes citizens of seven countries with populations that are majority Muslim: Iraq, Iran, Syria, Somalia, Sudan, Libya, and Yemen. The affected in those countries cannot enter the U.S. at all, period. It additionally enacts reviews suspending the Visa Interview Waiver program, which permits “travelers from 38 countries — including close allies — to renew travel authorizations without an in-person interview,” according to CNN.
The order was met with sudden outbursts of demonstrations across the country and abroad, including at airports where more than one hundred immigrants and refugees returning to the U.S. were detained and held for questioning.
By Sunday, members of the administration began amending the measure (a process that is still evolving on a daily basis), with green card holders told they could be approved on a case by case basis and Iraqi interpreters informed they were now allowed to return.
On February 3, the states of Washington and Minnesota filed for an injunction. U.S. District Senior Judge James Robart of Seattle granted an emergency motion that placed a temporary restraining order (TRO) on the travel ban. “[T]he States are likely to suffer irreparable harm in the absence of preliminary relief,” Robart wrote in his ruling.
The Justice Department immediately responded the following day by asking the Ninth Circuit Court of Appeals to reverse the TRO and reinstate the ban, but that request was denied. On Tuesday, February 7, August Flentje, Justice Department Special Counsel, squared off against Washington State Solicitor General Noah Purcell in front of a three judge Ninth Circuit panel of judges — Judge Michelle Friedland, Judge William Canby, and Judge Richard Clifton. The judges were appointed, respectively, by presidents Barack Obama, Jimmy Carter, and George W. Bush.
In a rare move, the court livestreamed audio from the proceedings. Each side was allocated 30 minutes to argue their case. At the heart of the matter is a single, simple question with monumental implications: Was district court judge Robart right in granting the TRO?
Washington State has to prove that the injunction is preventing irreparable harm that would take place if it was not there and the travel ban was against active, and that they have a likelihood of the merits of their case bearing out. The feds need, in turn, are asking the three-judge panel to overturn the injunction.
August Flentje, Justice Department Special Counsel
Speaking for the U.S. Justice Department and Trump administration, Flentje centered his arguments on two main points: First, that Trump has the authority to issue the executive order in the interest of national security and — as a result — the court does not have jurisdiction to review the EO. Second, the State of Washington does not have standing to bring the suit, because it is not an individual and does not have parens patriae authority.
Parens patriae is Latin for “parent of the nation” and is legal doctrine referring to the ability of a state to intervene on the behalf of any citizen or citizens in need of protection.
“Congress has expressly authorized the president to suspend entry of classes of aliens when it is necessary or when otherwise it would be detrimental to the interests of the United States,” he posited. “That’s what the president did here.”
The latter involved Fauzia Din, a U.S. citizen who filed a visa petition for her husband, a citizen and resident of Afghanistan. The State Department denied the application citing a provision in the Immigration and Nationality Act (INA) that permitted denial of such petitions for applicants coming from nations deemed as “terrorism-related.” Din sued on behalf of her husband, challenging the constitutionality of the State Department’s ability to quash a visa without a detailed explanation of the reasoning. Din alleged doing so violated the Due Process Clause of the Fifth Amendment. The court didn’t bite and ruled against Din in a 5-4 decision.
The former centered around Ernest Mandel, a Belgian journalist who worked for a weekly Left Socialist publication (he was a self-identified Marxist). Mandel had been allowed entry into the U.S. twice previously — once as a journalist and once as a guest lecturer. However, he was denied when we attempted a third trip to give lectures at several U.S. universities. Mandel joined with multiple U.S. citizens — who had invited him to speak at various venues — and sought an injunction on the grounds that the visa denial was violating their First Amendment right to hear him speak. The motion was granted by a district court, but overturned 6-3 by the High Court.
Flentje said that in each of these cases, only the rights of the U.S. citizens gave the plaintiffs standing — and, even then, the scope of judicial review was limited to the citizens and excluded the non-citizens. Thus, as it related to Trump’s EO, the State of Washington did not have standing. Only a U.S. citizen who had suffered direct harm as a result of the travel ban could bring suit.
Additionally, in both cases, the court reaffirmed the power of the State Department to enforce regulations regarding visa petitions.
“In both of those cases though, it’s specific statutes by Congress that set forth specific criteria that were then applied factually, were at issue,” Judge Friedland pushed back. “The president is not applying any specific criteria from Congress here, is he?”
“Yes, he is. The president is applying Section 2.12.F. [of the INA] which authorizes the president to suspend entry to classes of aliens if their entry would be ‘detrimental to the United States,’” Flentje said.
He failed to address another provision of the INA, which states that “no person shall receive any preference or priority or be discriminated against in the issuance of an immigrant visa because of the person’s race, sex, nationality, place of birth, or place of residence.”
“In naming those seven countries, what Congress did was to provide that people coming from those countries had to get visas,” Canby invoked the other relevant INA provision. “In other words, they couldn’t just come into the country without a visa. And that permitted, of course, the usual investigations before you give somebody a visa…. How many federal offenses have we had being committed by people who came in the visas from these countries? And, ultimately, the answer is that there haven’t been any.”
Flentje said that the Justice Department was aware of people implicated in acts of terrorism from the targeted countries, but conceded that no information was readily available to provide to the court. He pivoted back to continue arguing that Washington did not have standing to bring the suit.
Clifton seemed taken aback by the assertion, and referenced the case law Flentje had moments ago cited to bolster his arguments.
Sure they can. I mean, the whole point of the Din case was that Din himself, or rather Din’s husband, couldn’t challenge, but she could…. I’d suggest that Kerry v Din asserts just that. I mean, in Kerry v Din, the plaintiff, Din, was the wife of who was excluded. So the person who was excluded may not have had any rights that he could assert directly, but his wife was allowed to…. Why isn’t the state’s right the same as the scholars’ in Mandel? Mandel was a foreigner. He might not have had rights, but the court took the case up because the people, they argued they wanted to hear him — the very universities to which he’d been invited.
“Quasi-sovereign interests. For instance, a state might have an interest in clean air,” Canby added. “And, when it sues to protect its air, it’s necessarily acting for its citizens. A state itself can’t smell air. It can’t see air. It has to be acting on behalf of its citizens when it brings a case like that, yet there seems to be authority for the state to bring that kind of claim.”
Noah Purcell, Washington State Solicitor General
Purcell similarly stumbled out of the gates after getting stuck on a request that the three-judge panel issue a mandamus rather than an injunction. A mandamus would remand the case back to the district court where as an injunction would freeze any motion on the TRO. But before he could get too far into that particular set of weeds, he was interrupted.
“Why should we care,” Clifton interrupted. “Suppose the district court issued an order requiring all the public schools in the State of Washington because of some concern about a flu epidemic and did it in the form of a TRO and said the TRO would only last less than 14 days. Are you suggesting mandamus is the only form of relief available?”
“You’re basically saying we shouldn’t look at it,” he added. “And it’s hard for me to envision an order this sweeping that shouldn’t be subject to some kind of appellate oversight.”
Purcell turned the conversation around to the Flentje.
“I hear your honors, again, pressing counsel for a statement about what the irreparable harm is, and still no clear factual claims or evidentiary claims of what that irreparable harm would be from a stay,” he said. “And, in fact, it was the executive order itself that caused irreparable harm to our states — to Washington and to Minnesota and our residents — and to many other states and people as described in the many amicus briefs that have been filed.”
More than 120 tech companies, academic associations, immigration advocates, and other interest groups have signed on to amicus briefs opposing the travel ban. Other groups, like Citizens United and Gun Owners of America have sided with the federal government.
Judge Canby asked what irreparable harm the EO had caused the State of Washinton.
“We had students and faculty at our state universities who are stranded overseas,” Purcell replied. “We had families that were separated. We had longtime residents who could not travel overseas to visit their families without knowing if they would be able to come back. We had lost tax revenue.”
Mention of lost tax revenue prompted a discussion about the merits of his arguments and an explanation of what represented standing that would or wouldn’t justify a stay. Both hinged on proprietary harms incurred by the imposition of the EO and parens patriae doctrine, though all three judges showed a palpable reluctance to lend much credence to the latter.
Purcell said inclusion of parens patriae in the court’s review wasn’t necessary to establish standing, but maintained that they were “harms that were relevant.”
Ultimately, he said, the burden is on the federal government and the Trump administration to prove irreparable harm caused by the TRO and that they have not as yet done such.
Clifton pressed Purcell on just how harmed Washington residents are as a result of the EO, asking how many lawful residents this actually impacted.
Purcell responded that it affected thousands in Washington and thousands more in Minnesota, as well as half a million people in the remaining 48 states and Washington D.C.
“We know… the defendants originally interpreted the order and said it covered lawful permanent residents,” he said.
Now, they’ve changed their mind about five times about whether it applies to those people in the time since the order was issued and now they say that it doesn’t. But, at the time the state filed its complaint, they had not yet made their position clear about that, and I would say that that argument is not moot yet, because… until they change that order to make it crystal clear, they can’t just say, “Now we say it doesn’t apply to them so don’t worry about it.” I mean, that’s half a million people who are in the United States who, overnight, at least according to the government initially, lost their right to travel, to come in and out of the country, to visit their relatives.
In response, Canby asked why not, in that case, limit the restraining order to reach the people the plaintiffs could make a direct case for. Purcell answered that doing so would not prevent harm.
“It would not remedy the order’s violation of the Establishment Clause in the way it favors one religion over another,” Purcell said. “[It] [w]ould not fully remedy the violations of the Equal Protection Clause because the order relies on discriminatory animus to deny some of our residents who are here the ability to receive visits from their friends and family while allowing others to receive those visits and so on.”
Additionally, he said, the Trump administration had not explained how they would craft policy around a more narrow restraining order.
“I have trouble understanding why we’re supposed to infer religious animus,’’ Judge Clifton said. “The concern for terrorism with those connected to radical Islamic sects is kind of hard to deny.’’
“To prove religious discrimination, we do not need to prove that this order harms only Muslims or that it harms every Muslim,” Purcell replied. “We just need to prove that it was motivated in part by a desire to harm Muslims. And we have alleged that.”
“How do you infer that desire if, in fact, the vast majority of Muslims are unaffected?” Judge Cifton followed up.
“In part, you can infer it from intent evidence. There are statements that we’ve quoted in our complaint that are rather shocking evidence of intent to discriminate against Muslims,” Purcell said. “The public statements from the president and his top advisors reflecting that intent are strong evidence that, certainly at this pleading stage, to go forward on that claim.”
Throughout the presidential campaign, Trump very vocally called for a ban on Muslims entering the U.S. strictly based on their religion.
“Donald J. Trump is calling for a total and complete shutdown of Muslims entering the United States until our country’s representatives can figure out what is going on,” his presidential campaign website still reads. “[O]ur country cannot be the victims of horrendous attacks by people that believe only in Jihad, and have no sense of reason or respect for human life.”
On the morning after the travel ban was announced, former New York Mayor and Trump surrogate Rudy Giuliani referred to the EO as a Muslim ban. “I’ll tell you the whole history of it: When he first announced it, he said ‘Muslim ban,'” he told Fox News. “He called me up, he said, ‘Put a commission together, show me the right way to do it legally.’”
“Do you deny that there is concern about people coming from those countries separate and apart from what their religion might be?” Judge Clifton pressed.
“[I]n assessing Establishment Clause claims, an action that could have been perfectly legitimate, if done with proper intent, is not legitimate and is unconstitutional if done with a desire to favor one religion over another,” Purcell said, referencing another court precedent established by the Supreme Court ruling in McCreary County v ACLU (2005).
McCreary was a suit brought against three Kentucky counties by the American Civil Liberties Union (ACLU) challenging the constitutionality of framed displays of the Ten Commandments on grounds that the documents violated the Establishment Clause in the First Amendment. One display included text reading, “Thou shall have no other gods than Me[.]”
In a 5-4 ruling, written by Justice David Souter, the Court found that observers of such displays could find them as an endorsement of a religion. In addition, Souter recognized that more nuance was needed when reviewing religious displays, noting that, although “the Ten Commandments are inherently religious statements, that does not to be sure mean that every governmental display of the commandments is unconstitutional, context matters and where the display serves on educational or other predominantly secular goal, the display can be constitutional.”
“The exact same action, if done for some reasons, is not acceptable if done for others,” Purcell said, tying McCreary to the travel ban. “Here we’ve alleged very plausibly, with great detail, that this was done to favor of one religious group over another and so we should be able to go forward on that claim.”
Judge Friedland interjected on Purcell’s behalf (Friedland was the most sympathetic judge to his arguments), noting that many of the allegations were supported by exhibits offered by the plaintiffs.
Purcell also apologized for any deficit in evidence provided, but said there had been a time crunch.
“Our complaint was filed a week ago Monday, together with the temporary restraining order motion, together with the declarations,” he defended himself. “We’ve had extraordinarily little opportunity to gather and present evidence in district court.”
“We faulted the government for exactly the same thing,” an exasperated Judge Clifton replied. “So, don’t tell us you need more time. You’re the one that sought the temporary restraining order…. Don’t tell us maybe you’ll gather it later. If you can’t demonstrate a likelihood of success with what you’ve got in the record so far — and maybe you can. I’m not saying you can’t. But so far, I haven’t heard a lot of reference to evidence and a lot more references to allegations. And I don’t think allegations cut it at this stage.”
“If the motion before us is a motion for stay, who has a burden of showing likelihood of success?” Judge Canby interjected, subtly pointing out that at this point in the process, that burden falls on the federal government.
The exchanges were fast-paced and often combative, with the main emphasis placing blame on both sides: the federal government for being capricious and rushed in their rollout of the travel ban and the response of a rushed effort to quell it by the states of Washington and Minnesota.
A ruling is immanent, but could go either way and to multiple extents.
Should the court grant the federal government a stay, the travel ban would again be actively in effect and Washington would press on at the district level. If the injunction is maintained, the federal government can file an emergency motion with the U.S. Supreme Court.
The only thing we can say with any confidence is that the matter, at some point, is headed to the Supreme Court. It’s more just a matter of when, how the Ninth Circuit rules in the interim, and how many Supreme Court justices will be there to receive it. And, given Trump’s recent disdain for the Judiciary expressed on twitter, all bets are off there as well.