Wednesday, February 8, 2017
The U.S. Court of Appeals for the Ninth Circuit heard oral arguments in Washington v. Trump yesterday afternoon. A link to the audio of the arguments is on the Ninth Circuit website. The three judge panel include Judges William Canby (Jimmy Carter appointee), Richard Clifton (George W. Bush appointee), and Michelle Friedland (Obama appointee). I listened to an audio of the argument in real time in the UC Davis appellate courtroom, which was filled with students, faculty, staff, and community members. Professors Jack Chin, Anupam Chander, Katherine Florey. and myself commented on the arguments after their completion.
The issue before the Ninth Circuit is the district court's ruling staying the implementation of President Trump's January 27 Executive Order barring for 90 days the admission of new entrants from seven predominantly Muslim countries and suspending for 120 days all refugee admissions.
It always is hazardous to predict the outcomes of a case based on oral arguments. As one observer put it, "At different times during oral arguments in [Trump v. Washington] it looked like either Washington state attorney Noah G. Purcell or Justice Department attorney August E. Flentje had the upper hand." AP offers a capsule summary of the arguments that are described as "contentious." Law.com summarizes the argument as welll
I found three issues of special interest in the arguments:
Standing: There was considerable questioning of the attorneys about whether the states of Washington and Minnesota has standing under Article III to challenge the Executive Order. I had thought that the arguments for standing in this case were stronger than in Massachusetts v. EPA (2007), in which the Supreme Court held that the state of Massachusetts had standing to challenge the Busgh administration's failure to act with respectto greenhouse gases) and in United States v. Texas, the case in which the Supreme Court deadlocked but the lower courts found that Texas had standing to challenge President Obama's Deferred Action fo Parents of Americans program based on the alleged costs of issuing driver's licenses to recipients of deferred action).
Scope of the Relief: District Court Judge Robart stayed the implementation of the Executive Order for the entire nation. The United States argued for a much more limited order (in effect, limiting the stay to lawful permanent residents who are seeking readmission into the country, a group that it now says is not subject to the order. The judges, especially Judge Clifton, questioned the nationwide nature of the relief. Whether a district court can issue a nationwide injunction in these circumstances is something that federal courts and civil procedure scholars have been arguing about on listserves over the last few days.
Does the Executive Order Constitute a "Muslim Ban"? Judge Clifton emphasized that the order was limited to the admission of noncitizens from seven nations, although nations admittedly with predominantly Muslim populations. Still, the order was limited to nations thought to be most likely to harbor terrorists, as determined by Congress a few years ago. The order does not bar all Muslims from entering the United States. So is it a "Muslim ban"? If so, then the courts would find it challenging to justify the ban under modern constitutional law (assuming that there is judicial review and that the plenary power doctrine is not applied). But even if not a ban, it would seem that rationality review under the Equal Protection Clause would kick in under Keindienst v. Mandel and similar cases.
Stay tuned. The Ninth Circuit will likely rule by the end of the week. If forced to guess, I would predict Judges Canby and Friedland ruling that the district court stay of the Executive Order remain in place, with a dissent (in whole or part) by Judge Clifton.