Saturday, December 28, 2019
The Ninth Circuit last week refused to grant an emergency temporary stay of a district judge's temporary injunction against enforcement of President Trump's October 4 Proclamation that restricts entry into the United States by aliens "who will financial burden the United States healthcare system." The ruling means that the lower court's injunction stays in place, and the government cannot enforce the Proclamation. The court expedited review of the government's motion for a stay pending appeal, however, and will hear oral argument on January 9.
President Trump's proclamation, titled "Presidential Proclamation on the Suspension of Entry of Immigrants Who Will Financially Burden the United States," requires aliens to show proof of approved health insurance before getting a visa or otherwise entering the United States. Plaintiffs sued, arguing that the Proclamation exceeded the President's authority under law, that the President therefore engaged in impermissible lawmaking in violation of the separation of powers, and that the law impermissibly delegated lawmaking authority to the President in violation of the nondelegation doctrine. The district court agreed and issued a temporary injunction against enforcement of the Proclamation.
The Ninth Circuit most recently denied the government's request for an emergency temporary stay. The court wrote,
Here, the status quo would be disrupted by granting the temporary stay request. Therefore, we deny the request for a temporary stay. The Proclamation has not yet gone into effect. The changes it would make to American immigration policy are major and unprecedented; the harms the government alleges it will suffer pending review of the motion for stay pending appeal are long-term rather than immediate. Our ruling is based solely on the absence of a sufficient exigency to justify changing the status quo, particularly during the few weeks before scheduled oral argument on the merits of the emergency motion; we do not consider the merits of the dispute in any respect.
The court went on to expedite briefing and oral argument on the government's motion for a stay pending appeal.
Judge Bress dissented, arguing that "the district court's decision is clearly wrong as a matter of law." According to Judge Bress, "[i]n the supposed name of the separation of powers, the district court struck down part of a longstanding congressional statute, invalidated a presidential proclamation, and purported to grant worldwide relief to persons not before the court. And it did so based on the nondelegation doctrine--among the most brittle limbs in American constitutional law--and a reading of 8 U.S.C. Sec. 1184(f) that the Supreme Court expressly rejected in Trump v. Hawaii.