In a decision that will hardly come as a surprise, the 9th Circuit Court of Appeals has unanimously (including one GOP appointee) ruled for the U.S. to remain open to refugees and visa holders from seven Muslim-majority countries while the Trump administration fights to reinstate a travel ban in the name of national security.
The San Francisco-based appeals court on Thursday denied the government’s request to close the doors after days of public debate over President Donald Trump’s attacks on the judicial system and a rush of fearful immigrants. The ruling increases the likelihood that the administration will ask the Supreme Court to step into a case that’s the biggest test of Trump’s executive power yet.
The government had made a request to reinstate the measure on an emergency basis, which the judges considered to be unwarranted.
"We hold that the government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay."
The three-judge panel hearing the case included Judges William C. Canby Jr., a Jimmy Carter appointee; Richard R. Clifton, a George W. Bush appointee; and Michelle T. Friedland, a Barack Obama appointee.
"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," they wrote.
"In short, although courts owe considerable deference to the President's policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action."
Trump made a brief remark to reporters in the West Wing, calling the ruling “a political decision" and saying national security is at stake, according to NBC News. The appeals court refused to reinstate Trump’s order after a Seattle judge halted enforcement while courts decide whether it’s constitutional. “The courts seem to be so political,” Trump said in a speech on Wednesday. “It’s so sad."
The president’s action initially denied entry to an Iraqi who helped U.S. military, professors at University of Massachusetts and a student seeking to bring her daughter for medical treatment. The ban set off angry protests nationwide and attracted a flurry of lawsuits and adverse rulings. None was more sweeping than that of U.S. District Judge James Robart in Seattle. Washington and Minnesota won the order temporarily blocking the ban nationwide after arguing it hurt their residents and employers including Microsoft, Amazon.com Inc. and the Mayo Clinic.
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The administration can now ask the Supreme Court to immediately intervene, which most legal experts think is likely, or wait until a ruling on the preliminary injunction order. The high court is currently shorthanded with eight justices. If there is a split decision, the lower court’s ruling would be upheld.
As The Hill reports, Sen. Tom Cotton (R-Ark.) blasted the court Thursday night, saying Trump’s order is “plainly legal under the Constitution and our immigration laws” and warning that “courts ought not second-guess sensitive national-security decisions of the president.”
“This misguided ruling is from the Ninth Circuit, the most notoriously left-wing court in America and the most reversed court at the Supreme Court. I'm confident the administration's position will ultimately prevail."
Critics of the travel ban came out quickly to cheer the decision: "President Trump ought to see the handwriting on the wall that his executive order is unconstitutional. He should abandon this proposal, roll up his sleeves and come up with a real, bipartisan plan to keep us safe," Senate Minority Leader Charles Schumer (D-N.Y.) said.
Bernie Sanders added that the court ruling could "teach President Trump a lesson."
"Hopefully, the unanimous court ruling against President Trump’s immigration ban will restore some of the damage he has done to our country’s reputation around the world," the former Democratic presidential candidate said in a statement minutes after the ruling came down.
Then there was a tweet from the Washington Attorney General who started all of this:
DENIED. UNANIMOUS. PER CURIUM.
— WA Attorney General (@AGOWA) February 9, 2017
And, of course, Hillary Clinton:
— Hillary Clinton (@HillaryClinton) February 10, 2017
... to which however there was an apt reaction:
0-2 (2008,2016) https://t.co/ijiGbWg38T
— DanRiehl (@DanRiehl) February 10, 2017
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However, it was Trump's tweeted response that made it clear what the next step is: 12 words, ALL CAPS, and all making it clear that Trump won't let it go without a Supreme Court showdown, because just moments after the Appeals Court ruling was released, Trump tweeted the following:
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
Concurrently, the US Department of Justice has said that it is reviewing the Appeals Court decision on the Trump travel ban and is "considering its options."
DOJ Reax to 9th Circuit Decision: “The Justice Department is reviewing the decision and considering its options.”
— Paula Reid (@PaulaReidCBS) February 9, 2017
What are next steps?
- Do nothing.
- Seek an emergency stay
- Petition for certiorari before judgment, in the Supreme Court of the United States
Based on the Trump tweet, the option the President will pick is clear: showdown at the Supreme Court.
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Some key excerpts from the ruling.
To rule on the Government's motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.
The Opinion starts with Due Process, and rejects the assertion that aliens are not entitled to due process:
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. 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.
Here is the Court saying that Green Card holders have Due Process rights, as do all people on US soil:
First, we decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well. Zadvydas, 533 U.S. at 693. That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States... There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.
Here the Court is dismissive of Trump's DOJ claim that the ban is necessary for security, adding there is "no evidence" that aliens from the seven countries perpetrated terrorist attacks:
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.
The court rejecting the argument that a TRO should be narrowed in scope, noting that citizens may have interests for non-citizen travel:
First, we decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well. Zadvydas, 533 U.S. at 693. That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States. There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.
On the government's lack of demonstrated authority that a memo from White House Counsel supersedes the Exec Order.
The Government has offered no authority establishing that the White House counsel is empowered to issue an amended order superseding the Executive Order signed by the President and now challenged by the States, and that proposition seems unlikely.
Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. 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. 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.as
The Court faults the government for submitting "no evidence" to justify the change in long-standing national security policies.
The Government has not shown that a stay is necessary to avoid irreparable injury. Nken, 556 U.S. at 434. Although we agree that “the Government’s interest in combating terrorism is an urgent objective of the highest order,” Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the Government has done little more than reiterate that fact. 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 Court ends by emphasizing that it has considered national security, but tips towards free flow of travel and freedom from discrimination.
Finally, in evaluating the need for a stay, we must consider the public interest generally. See Nken, 556 U.S. at 434. Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages. On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.
The punchline and the one sentence that will infuriate Trump, is the following in which the court says it is "beyond question" that the courts have the authority to oversee the President.
In short, although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.
The fight, however, is far from over. The court battle so far has focused on whether the president’s order should be paused while courts weigh larger issues. Robart already ordered both sides to submit additional arguments focusing on the substance of the case: whether the states have a right to sue and whether Trump’s order discriminates against Muslims.
Ultimately, the case is likely to end up before the US Supreme Court, although the next three immediate steps are to 1). do nothing, 2) seek an emergency stay, or 3) cert before judgment, i.e., petition the US Supreme Court.
The most likely outcome is the last one.
The full ruling is below: