A three-judge panel of the U.S. Court of Appeals for the 9th Circuit dealt a decisive – if only temporary – blow to the Trump administration’s executive order restricting immigration from seven countries with predominantly Muslim populations. In a 29-page opinion, the court of appeals left a federal district court’s order blocking the executive order in place for now, rejecting virtually all of the Trump administration’s pleas to allow the federal government to enforce the order while its constitutionality is litigated in the lower courts. Although there has been no official announcement yet, the next stop for the dispute is likely to be the Supreme Court, where the federal government could ask the justices to step in.
The 9th Circuit’s opinion was released shortly after 6:00 p.m. EST, the culmination of a whirlwind of litigation over the past two weeks. On January 27, 2017, President Donald Trump signed an executive order that would bar, for 90 days, citizens of seven Muslim-majority countries – Iraq, Syria, Sudan, Iran, Somalia, Libya, and Yemen – from entering the United States. Explaining that it was intended to “protect the American people from terrorist attacks from foreign nationals admitted to the United States,” the order also suspended for 120 days the U.S.’s program for admitting refugees into the United States.
Three days later, on January 30, the state of Washington filed a lawsuit in federal district court challenging the constitutionality of the order. The state – which was later joined in the lawsuit by Minnesota – contended that the executive order “is separating Washington families, harming thousands of Washington residents, damaging Washington’s economy, hurting Washington-based companies, and undermining Washington’s interest in remaining a welcoming place for immigrants and refugees.” In particular, the states alleged, the executive order violates the Constitution by targeting “individuals for discriminatory treatment based on their country of origin and/or religion.”
On February 3, U.S. District Judge James Robart issued a temporary restraining order, which blocked the enforcement of the executive order until the court could hold a hearing on a motion for a preliminary injunction. Robart ordered the two sides to propose a briefing schedule by the end of the day on February 6 so that he could “promptly schedule a hearing” on the motion for a preliminary injunction. They did so, agreeing to a schedule that would have the briefing completed by February 17.
But the federal government also quickly went to the 9th Circuit, asking it to put the restraining order on hold. The court of appeals declined to block the restraining order immediately. Instead, on February 4, it ordered the two sides to file additional briefs over the next two days. On February 7, the court of appeals held a hearing on the federal government’s emergency motion. Reflecting the fast pace of the proceedings, the judges and lawyers participated by telephone, with the audio streamed live over the 9th Circuit’s website.
Today the three judges issued a unanimous, unsigned ruling. The opinion began with a series of technical (but nonetheless important) issues that could have precluded the court from weighing in at all.
First, the panel rejected the states’ argument that it lacked the authority to review the lower court’s order, which the district court labeled a “temporary restraining order.” Although temporary restraining orders cannot normally be appealed because they last for such a short time, here, the panel explained, “in the extraordinary circumstances of this case,” the “temporary restraining order” was more like “an appealable preliminary injunction”: It was “vigorously contested” and will stay in effect for at least 14 days.
But that was, for all intents and purposes, the government’s lone victory of the evening. The court of appeals similarly rejected the government’s argument that the states lack a legal right to sue – a concept known as “standing.” At least for the early stages of this litigation, the panel concluded, the states have shown that they have such a right because the order prevents citizens from the seven Muslim-majority countries from coming to Minnesota and Washington, and from returning to the states if they leave the country.
The panel sided with the states on another important issue: whether courts have the power to rule on the challenge to the executive order at all, or whether (as the federal government argued) issues relating to immigration and national security are left solely to the executive branch and, to a lesser extent, Congress. The panel strongly rebuffed the government’s contention that courts cannot weigh in on the president’s immigration decisions, even when those decisions might impinge on rights protected by the Constitution. “There is no precedent,” the panel emphasized, to support that contention. “To the contrary,” the panel continued, “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.”
Having established its authority to review the controversy, however, the panel then made clear that its ruling was both preliminary and relatively narrow. The question before the court, it stressed, was whether the government had made a “strong showing” that it was likely to prevail on appeal, and whether the government would be harmed if the order is not allowed to go into effect.
Here, the court of appeals determined, the government could not show that it was likely to win on appeal, at least with regard to the states’ argument that the executive order violated the Constitution by preventing some lawful permanent residents of the United States (often known as “green card holders”) from returning without advance notice and an opportunity to challenge their exclusion from the United States. Notably, the panel gave no weight to the government’s argument that the White House counsel, Donald McGahn, had issued “authoritative guidance” indicating that lawful permanent residents would not be subject to the order’s restrictions. It explained that the government had not shown that McGahn actually had the authority to change the meaning of the order or that it would be binding on other officials outside the White House. In any event, the panel concluded, the states could also bring claims regarding others who would still be subject to the order, such as refugees.
The panel also declined the government’s invitation to narrow the reach of the district court’s temporary restraining order. Limiting the restraining order to lawful permanent residents and non-citizens who have already been in the United States, the panel suggested, would leave out other people whose rights the Constitution protects. And given the complexity of the U.S.’s ports and transportation system, the panel reasoned, allowing the executive order to go into effect in other parts of the country could bar some immigrants and refugees from being able to reach Washington and Minnesota.
The judges did not decide whether, as the states suggest, the executive order was intended to discriminate against Muslims. While observing that the states’ claims “raise serious allegations and present significant constitutional questions,” the panel opted to “reserve consideration of these claims until the merits of this appeal have been fully briefed.”
The panel was also sharply skeptical of the government’s contention that the country would be harmed if the restraining order is not lifted and the executive order cannot be enforced. Despite the “repeated invitations to explain the urgent need for the executive order to be placed immediately into effect,” the panel noted, the federal government failed to submit any “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.” Moreover, it added, 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.”
If the government does not ask the Supreme Court to step in, the proceedings would return to the federal district court, with briefing and a hearing taking place over the next few weeks. There has been no official word on what the government plans to do next, but shortly after tonight’s decision the president at least suggested that the government would continue to seek to block the temporary restraining order, tweeting “SEE YOU IN COURT.” That could mean asking the full 9th Circuit to rehear the case or going to straight to the Supreme Court.
If the federal government opts to go to the Supreme Court to reinstate the executive order, its request will go to Justice Anthony Kennedy, who oversees emergency appeals from the geographic region that includes the state of Washington. Once he receives it, Kennedy could either act on the request alone or (as is more likely) refer it to the full Supreme Court; he can (and probably will) also give the states an opportunity to file a brief opposing a stay. To block the lower court’s ruling and restore the ban, the government would need the votes of at least five of the eight justices. If the government can’t get those votes, which could be difficult given the temporary and relatively narrow nature of the court’s ruling, the ban could remain on hold while its full merits are litigated in the lower courts.
The Trump administration will face another challenge if it opts to go to the Supreme Court: Its Supreme Court team will be operating short-handed. Trump has not yet nominated a new solicitor general, and the acting solicitor general – Noel Francisco, a political appointee – did not appear on the government’s reply brief in the 9th Circuit because his former law firm filed a “friend of the court” brief supporting Washington and Minnesota. Deputy Solicitor General Edwin Kneedler, a career lawyer in the Department of Justice, signed the brief instead, and another career Department of Justice lawyer, August Flentje, argued the case in the 9th Circuit.