Thursday, February 9, 2017
Late this afternoon, the U.S. Court of Appeals for the Ninth Circuit issued its ruling in Washington v. Trump. In a unanimous per curiam opinion, the court denied the U.S. government's request for an emergency stay of the TRO entered by the district court. President Trump's January 27 Executive Order, at least for now, will not go into effect.
The court went into some depth explaining its firm rejection of the U.S. government's claim that there should be no judicial review of the Executive Order; read literally, the court rejected the modern vitality of the plenary power doctrine, which as articulated by The Chinese Exclusion Case (1889) and its progeny immunizes from judicial review the substantive immigration decisions of Congress and the President. The court further ruled that the state of Washington had standing to challenge the Executive Order, relying in large part on the Fifth Circuit's opinion in Texas v. United States (2015), which held that Texas and 26 states had standing to challenge President Obama's expanded deferred action program). It further found that the U.S. government had failed to establish (1) a likelihood of success on the merits of the Due Process claim (relying heavily on Landon v. Plasencia (1982); and (2) irreparable injury if the emergency stay of the TRO was not granted. Having ruled that the U.S. government had not shown a likelihood of success on Washington's Due Process claim, the court did not need to -- and did not -- rule on the state's Establishment Clause claim.