Thursday, February 9, 2017
The Ninth Circuit panel has issued its opinion in the emergency appeal denying a stay of the injunction from Washington District Judge Robarts in Washington (and Minnesota) v. Trump. Thus, the injunction against the Executive Order Protecting the Nation From Foreign Terrorist Entry Into the United States, commonly known as the "Muslim Ban" or "Travel Ban" remains in place. Recall our explainer on the background issues and a specific discussion of the equal protection issues.
After reciting the procedural history, the unanimous opinion first concludes that the Ninth Circuit has jurisdiction on appeal, treating Judge Robarts' order as an appealable preliminary injunction. The panel also held that Washington and Minnesota have standing to bring the claims (at least at this juncture) an issue that was highly contested during the oral arguments both at the Ninth Circuit and before the District Judge, concluding 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.
The panel next rejected the federal Government's argument 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" (emphasis in original), citing such cases as Boumediene v. Bush and Holder v. Humanitarian Law Project. The Ninth Circuit distinguished cases in which the issue was the application of a Congressional statute to a specific individual from the current situation involving "the President’s promulgation of sweeping immigration policy" (emphasis in original).
In its discussion of the likelihood of success on the merits of the individual constitutional claims, the Ninth Circuit panel focused on 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.
The court made clear that the "procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens." As to lawful permanent residents, the court was clear that the confusion in the EO's implementation weighed against the court narrowing the district judge's injunction to only lawful permanent residents:
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. On this record, therefore, we cannot conclude that the Government has shown that it is “absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.”[citation omitted].
The court discussed but ultimately reserved consideration of the First Amendment and Equal Protection claims, although the opinion states that the claims "raise serious allegations and present significant constitutional questions." However given the court's conclusion on the due process issue and "the pace of the current emergency proceedings," these constitutional issues should await fuller briefing.
In weighing the balance of the hardships and public interest necessary for a stay of the injunction, the Ninth Circuit panel returned to the federal Government's claim it was entitled to total deference. In a footnote, the court stated:
In addition, the Government asserts that, “[u]nlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.” But the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that. 28 C.F.R. § 17.17(c) (describing Department of Justice procedures to protect classified materials in civil cases); 28 C.F.R. § 17.46(c) (“Members of Congress, Justices of the United States Supreme Court, and Judges of the United States Courts of Appeal and District Courts do not require a determination of their eligibility for access to classified information . . . .”); W.D. Wash. Civ. L.R. 5(g) (providing procedures governing filings under seal).
The Ninth Circuit thus denied the stay and the matter returns to the district judge - - - unless the Trump Administration seeks emergency review from the United States Supreme Court.