Let's start this out by being quite clear: this is still the beginning of a fairly long legal process. But, the 9th Circuit appeals court has just unanimously ruled that the lower' court's injunction barring Donald Trump's executive order on immigration should remain in place. In short: the federal government remains barred from actually carrying out the order. This does not mean, as our President has wrongly suggested, that people are free to randomly enter the country in droves. They still have to go through the already thorough vetting and visa process. It just means that the blanket ban that caused so much havoc cannot be used to bar entry into the country. We were among those who signed onto an amicus brief for the wider tech industry, asking the court to rule this way, so we're happy they did.
The court is pretty clear, and it's somewhat surprising that the ruling was unanimous. While it's always difficult to tell how judges are going to rule based solely on oral arguments, it certainly felt like two judges were leaning towards the states' argument and one towards the federal government's. But when it was time to write an opinion, all three came down on the side of the states. Not only that, but they did it per curiam, meaning that the entire panel "wrote" the opinion (rather than singling out the specific judge who wrote it). This can be seen as the three judges showing a united front, and also a pre-emption towards the likelihood of our thin skinned President picking directly on one of the three as somehow being responsible (as he did in earlier tweets about the case). Either way, the judges stood together, noting that the federal government's argument was weak:
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.
Again, this is far from over. There will still be a fight at the lower court over a permanent injunction, and then numerous appeals (not to mention the other cases around the country).
As for the opinion, it's good to see that the court went as far as it did. It really could have just punted the issue on a number of grounds, including that the appeals court has no grounds to overturn a temporary restraining order. But, instead, it went further and suggested that the federal government's position here is weak. There were a few different issues in the case, and the court wasn't very impressed by any of the federal government's arguments. One was that the states (Washington and Minnesota) didn't have standing to challenge the executive order. Not so, says the court, pointing to a number of cases where state universities had standing to sue on actions related to the rights of their students:
Most relevant for our purposes, schools have been
permitted to assert the rights of their students.... As in those cases, the interests
of the States’ universities here are aligned with their
students. 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
We therefore conclude that the States have alleged harms
to their proprietary interests traceable to the Executive
Order. The necessary connection can be drawn in at most
two logical steps: (1) the Executive Order prevents nationals
of seven countries from entering Washington and
Minnesota; (2) as a result, some of these people will not
enter state universities, some will not join those universities
as faculty, some will be prevented from performing research,
and some will not be permitted to return if they leave. And
we have no difficulty concluding that the States’ injuries
would be redressed if they could obtain the relief they ask
for: a declaration that the Executive Order violates the
Constitution and an injunction barring its enforcement. The
Government does not argue otherwise.
On that procedural question of whether or not the court can even review a temporary restraining order (TRO), the court says it's fine:
We are satisfied that in the extraordinary circumstances
of this case, the district court’s order possesses the qualities
of an appealable preliminary injunction. The parties
vigorously contested the legal basis for the TRO in written
briefs and oral arguments before the district court. The
district court’s order has no expiration date, and no hearing
has been scheduled. Although the district court has recently
scheduled briefing on the States’ motion for a preliminary
injunction, it is apparent from the district court’s scheduling
order that the TRO will remain in effect for longer than
fourteen days. In light of the unusual circumstances of this
case, in which the Government has argued that emergency
relief is necessary to support its efforts to prevent terrorism,
we believe that this period is long enough that the TRO
should be considered to have the qualities of a reviewable
On the question of whether or not courts even have the authority to review this executive order, the court says of course it does and it's patently silly for the federal government to suggest otherwise.
The Government contends that the district court lacked
authority to enjoin enforcement of the Executive Order
because the President has “unreviewable authority to
suspend the admission of any class of aliens.” 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. See, e.g., Cardenas v. United States, 826 F.3d
1164, 1169 (9th Cir. 2016) (recognizing that “the power to
expel or exclude aliens [is] a fundamental sovereign attribute
exercised by the Government’s political departments largely
immune from judicial control” (quoting Fiallo v. Bell,
430 U.S. 787, 792 (1977))); see also Holder v.
Humanitarian Law Project, 561 U.S. 1, 33-34 (2010)
(explaining that courts should defer to the political branches
with respect to national security and foreign relations).
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.
The court further notes that the federal government's desire to run around screaming "NATIONAL SECURITY" as if that means the courts are powerless to do anything is also completely bogus.
Indeed, federal courts routinely review the
constitutionality of—and even invalidate—actions taken by
the executive to promote national security, and have done so
even in times of conflict.
On to the key question of whether or not the court should lift the TRO and allow the executive order to be in effect again. The court here basically rips up the federal government and notes that it has no real argument.
The Fifth Amendment of the Constitution prohibits the
Government from depriving individuals of their “life,
liberty, or property, without due process of law.” U.S.
Const. amend. V. The Government may not deprive a
person of one of these protected interests without providing
“notice and an opportunity to respond,” or, in other words,
the opportunity to present reasons not to proceed with the
deprivation and have them considered....
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
And while I've seen a bunch of people (mainly on Twitter) telling me that there's no due process issue because non-US citizens have no Constitutional rights, the court reminds them that they're wrong:
The procedural protections provided by the Fifth
Amendment’s Due Process Clause are not limited to
citizens. Rather, they “appl[y] to all ‘persons’ within the
United States, including aliens,” regardless of “whether their
presence here is lawful, unlawful, temporary, or permanent.”
Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights
also apply to certain aliens attempting to reenter the United
States after travelling abroad. Landon v. Plasencia, 459 U.S.
21, 33-34 (1982). The Government has provided no
affirmative argument showing that the States’ procedural
due process claims fail as to these categories of aliens. For
example, the Government has failed to establish that lawful
permanent residents have no due process rights when
seeking to re-enter the United States. See id. (“[T]he
returning resident alien is entitled as a matter of due process
to a hearing on the charges underlying any attempt to
exclude him.” (quoting Rosenberg v. Fleuti, 374 U.S. 449,
460 (1963))). Nor has the Government established that the
Executive Order provides lawful permanent residents with
constitutionally sufficient process to challenge their denial
of re-entry. See id. at 35 (“[T]he courts must evaluate the
particular circumstances and determine what procedures
would satisfy the minimum requirements of due process on
the re-entry of a permanent resident alien.”).
Separately, the court notes that the federal government's own claims are not trustworthy -- specifically the rapidly-changing claims about whether or not greencard holders are covered by the exec order:
At this point, however, we
cannot rely upon the Government’s contention that the
Executive Order no longer applies to lawful permanent
residents. 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. TheWhite 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
The court also rejects the argument from the DOJ that a more limited TRO could be used instead, such as one just focusing on previously admitted aliens. No go:
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.
The court also refuses to restrict the TRO so that it doesn't apply nationwide, basically saying the government failed to explain why it should:
Second, we decline to limit the geographic scope of the
TRO. The Fifth Circuit has held that such a fragmented
immigration policy would run afoul of the constitutional and
statutory requirement for uniform immigration law and
policy.... At this stage of the litigation, we do not need to and
do not reach such a legal conclusion for ourselves, but we
cannot say that the Government has established that a
contrary view is likely to prevail. Moreover, even if limiting
the geographic scope of the injunction would be desirable,
the Government has not proposed a workable alternative
formof the TRO that accounts for the nation’s multiple ports
of entry and interconnected transit system and that would
protect the proprietary interests of the States at issue here
while nevertheless applying only within the States’ borders.
The court then notes that the federal government failed to convince the court that it has any "likelihood of success" in prevailing in support of the executive order, though it's open to changing its mind at a later date, when more fully briefed (i.e., when things come back on appeal down the road).
Finally, there's the question of the "balance of hardships and the public interest" and again the court notes that the DOJ failed to show any evidence of real harm in blocking the executive order, because the DOJ has no actual evidence to support the reasons for the order in the first place. And, again, just screaming "NATIONAL SECURITY" is no excuse:
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 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
In a footnote on that, the court calls bullshit on the idea that there's some super secret info that only the President can see that shows why this ban is necessary, noting that the federal government regularly shares confidential information with judges under seal or in camera to avoid it being seen by others.
Meanwhile, the court notes that the plaintiff states have shown pretty strong evidence of harm:
By contrast, the States have offered ample evidence that
if the Executive Order were reinstated even temporarily, it
would substantially injure the States and multiple “other
parties interested in the proceeding.” ...
When the Executive Order was in effect, the States contend
that the travel prohibitions harmed the States’ university
employees and students, separated families, and stranded the
States’ residents abroad. These are substantial injuries and
even irreparable harms.
And, finally the court notes that the public interest simply does not warrant a stay.
Again, this is just the beginning of a long process, but as an early victory it's a big one. The court could have punted and did not. And in the meantime, our somewhat confused President is angry and doesn't seem to realize he's already in court over this (and losing, badly):
Of course, if that were true, it would help to have the federal government actually lay out some evidence to support that. What the 9th circuit pretty clearly said here is "we've seen none whatsoever."