The Ninth Circuit Court of Appeals denied Thursday the ability of President Donald Trump’s Administration to enforce a temporary ban on immigration from seven countries while a legal challenge continues.
Trump issued an executive order on January 27 halting all immigration from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for a period of 90 days. The order also impacted permanent residents — those with green cards — and visa-holders.
Immigration by refugees from six of those countries was halted for 120 days.
“In order to protect Americans, the United States must ensure that those admitted to this country do not bear hostile attitudes toward it and its founding principles,” the order reads. “The United States cannot, and should not, admit those who do not support the Constitution, or those who would place violent ideologies over American law.”
Trump also indefinitely halted immigration by Syrian refugees “until such time as I have determined that sufficient changes have been made… to ensure that admission of Syrian refugees is consistent with the national interest.”
The State of Washington sued on January 30, later joined by Minnesota.
On February 3, U.S. District Court Judge James Robart issued a temporary restraining order, saying that the States are likely to succeed on the merits of the case. Robert wrote,
The Executive Order adversely affects the States’ residents in areas of employment, education, business, family relations, and freedom to travel. These harms extend to the States by virtue of their roles as parens patriae of the residents living within their borders. In addition, the States themselves are harmed by virtue of the damage that implementation of the Executive Order has inflicted upon the operations and missions of their public universities and other institutions of higher learning, as well as injury to the States’ operations, tax bases, and public funds. These harms are significant and ongoing.
Robart enjoined, on a nationwide basis, the order’s restrictions on immigrants from the seven countries.
He also enjoined a provision allowing the Departments of State and Homeland Security to prioritize refugee claims from members of minority religions, an obvious effort to benefit Christians allegedly suffering religious persecution.
The federal government appealed to the Ninth Circuit for a stay of the temporary restraining order, but the Ninth Circuit ruled that the government is unlikely to succeed on the merits of its appeal and did not show that the temporary restraining order will cause the government irreparable harm.
As the moving party, the government failed to carry its burden.
“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,” the court wrote in its decision Thursday.
The court looked to the order’s impact on public universities, which constitute part of state government.
“These [affected] students and faculty cannot travel for research, academic collaboration, or for personal reasons, and their families abroad cannot visit,” the court wrote. “Some have been stranded outside the country, unable to return to the universities at all. The schools cannot consider attractive student candidates and cannot hire faculty from the seven affected countries, which they have done in the past.”
Resident aliens retain due process rights under the Fifth Amendment, the court noted, but seemingly can’t exercise those rights under the executive order.
Trump argued that the courts could not review his authority to restrict immigration under 8 U.S.C. § 1182.
“[I]t is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action,” the Ninth Circuit responded.
Following the decision, Trump indicated he would seek a stay from the U.S. Supreme Court, tweeting, “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” (emphasis in original)
Court Confirms States Have Standing to Sue
Temporary restraining orders are typically not subject to stay, but the court ruled that because Robart’s order extends for an indefinite period of time, it has the characteristics of a preliminary injunction and is therefore reviewable.
The court did not reach the States’ claims of parens patriae — the ability of a government to intervene on behalf of a citizen in need of protection — cited by Robart in his temporary restraining order.
“[W]e conclude that the States’ proprietary interests as operators of their public universities are sufficient to support standing,” the court ruled.
The court cited Singleton v Wulff, a Supreme Court case where Missouri physicians sued to overturn a restriction on abortion.
“If the enjoyment of [a] right is inextricably bound up with the activity the litigant wishes to pursue,” the Court wrote in that case, “the court at least can be sure that its construction of the right is not unnecessary in the sense that the right’s enjoyment will be unaffected by the outcome of the suit. Furthermore, the relationship between the litigant and the third party may be such that the former is fully, or very nearly, as effective a proponent of the right as the latter.” (emphasis added)
The Ninth Circuit equated the public university students of Washington and Minnesota with the patients on whose behalf the Missouri physicians sued.
“The students’ educational success is ‘inextricably bound up’ in the universities’ capacity to teach them… And the universities’ reputations depend on the success of their professors’ research. Thus, as the operators of state universities, the States may assert not only their own rights to the extent affected by the Executive Order but may also assert the rights of their students and faculty members.”
“The Government argues that the States may not bring Establishment Clause claims because they lack Establishment Clause rights. Even if we assume that States lack such rights, an issue we need not decide, that is irrelevant in this case because the States are asserting the rights of their students and professors. Male doctors do not have personal rights in abortion and yet any physician may assert those rights on behalf of his female patients,” the court added in a footnote.
Ninth Circuit (paraphrasing): Hell Yes, We Can Review Executive Orders
Justice Department Special Counsel August Flentje repeatedly said in oral arguments that the courts cannot review executive orders on immigration when national security is involved.
Flentje seemed to acknowledge under heavy questioning by the Ninth Circuit panel that some circumstances might allow for review, but he did not say what those circumstances would be.
The Ninth Circuit rebuked this position in a lengthy section Thursday:
The Government does not merely argue that courts owe substantial deference to the immigration and national security policy determinations of the political branches — an uncontroversial principle that is well-grounded in our jurisprudence… Instead, the Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy… Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the “[r]esolution of litigation challenging the constitutional authority of one of the three branches”… We are called upon to perform that duty in this case.
The court cited a number of Supreme Court cases dealing with immigration policy in war time, beginning with Ex parte Milligan in 1866.
“[T]he Constitution was intended for a state of war, as well as a state of peace, and is equally binding upon rulers and people at all times and under all circumstances,” the Court wrote in that case.
In United States v Robel, the Court wrote,
[T]his concept of “national defense” cannot be deemed an end in itself, justifying any exercise of legislative power designed to promote such a goal. Implicit in the term “national defense” is the notion of defending those values and ideals which set this Nation apart. For almost two centuries, our country has taken singular pride in the democratic ideals enshrined in its Constitution… It would indeed be ironic 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.
Even amid the War on Terror, the Court wrote in Hamdi v Rumsfeld, “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.”
“Although alienage classifications are closely connected to matters of foreign policy and national security… ‘the judicial branch may examine whether the political branches have used a foreign policy crisis as an excuse for treating aliens arbitrarily,’” the Ninth Circuit itself noted in American-Arab Anti-Discrimination Committee v Reno. “Thus, we can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake.”
If the government is concerned about revealing classified information to the court, the Ninth Circuit said that “Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that.”
Government Unlikely to Succeed on Due Process, “Muslim Ban” Concerning
Having established that the States have standing to sue and that courts may review executive orders dealing with national security, the Ninth Circuit turned to the government’s likelihood of success on the merits.
“The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel,” it ruled. “Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.”
The Supreme Court ruled in London v Plasencia that resident aliens retain their due process rights when they travel abroad and seek to return to the United States.
Following the States’ suit, on February 1, White House Counsel Donald McGhan issued a memorandum clarifying that permanent residents are not affected by the 90-day immigration ban.
But, the Ninth Circuit wrote, it is unclear whether that memorandum has any weight.
“The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments,” it said. “Moreover, in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.”
Regardless, the order would still exclude “citizens who have an interest in specific non-citizens’ ability to travel to the United States,” like Fauzia Din, whose case was a focal point of oral arguments. Din was a U.S. citizen who petitioned the government for admission of her husband, a citizen of Afghanistan.
Such citizens also have due process rights, the court wrote.
The court said it is waiting for all the evidence before weighing in on the States’ Establishment Clause and Equal Protection Clause claims, but it “note[d] the serious nature of the allegations the States have raised with respect to their religious discrimination claims.”
The States point to Trump’s recommendation for a Muslim ban while he was a presidential candidate.
If religious discrimination is part of the motivation for the order, the court said it does not matter if the order itself appears lawful.
“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination,” the Supreme Court wrote in Church of the Lukumi Babalu Aye, Inc.v City of Hialeah. “Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”
These claims of religious discrimination would be added to the States’ due process claims.
As the Court wrote in Elrod v Burns, “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.”