On Thursday evening, the Ninth Circuit Court of Appeals upheld a District Court ruling placing an injunction on President Trump’s controversial immigration and refugee executive order. At issue were three specific provisions of the executive order: a 90 day suspension of all visas from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen; a 120 suspension of refugees; finally, indefinite suspension of refugees from Syria, except where such suspension is deemed not in the national interest, with specific reference to those of minority religious status in their country (presumably, Syrian Christians).
President Trump immediately responded: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
First, the court dispenses with the Trump administration’s argument that the states do not have standing to sue – after all, it’s a national executive order, not a state-specific one. The court found that the states could be harmed by the executive order’s effect on their universities.
Next, the court examined whether or not such immigration action was reviewable by the judiciary at all. The government argued that immigration policy is utterly outside the purview of the federal judiciary; the court rejected that argument, while admitting that it owes the political branches deference in this area. But it did slap the Trump administration: “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”
Finally, the court gets down to the basic legal question. The court states that the Fifth Amendment is violated by the order, because the order does not provide “what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.” What about the fact that the due process clause does not apply to non-citizens? The court simply dismisses that fact, stating that the due process clause applies to “all ‘persons’ within the United States, including aliens,” and including aliens traveling abroad. Then the court says that even if the president were to take lawful permanent residents off the table, the executive can’t be trusted to uphold that standard.
The court continues by stating that unlawful aliens have due process rights, too, and so even if the court were to ignore the lawful permanent residents and aliens abroad, they’d be forced to strike down the executive order. The court blithely notes, “There might be persons covered by the [temporary restraining order] who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.” The court does not state who wouldn’t have due process rights if all the people they include are covered under the Fifth Amendment.
The court counterintuitively suggests that if it strikes down part of the executive order, it must strike down all of the executive order: “even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order.” It’s odd how that works – when it’s Obamacare, the courts are happy to rewrite legislation to save them, but when it’s an executive order with relatively clear parameters, suddenly the courts get cold feet.
But the court isn’t done yet. The court says that the executive order may be religiously discriminatory, even though it does not mention religion at all. “It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims,” the court says, then cites back to President Trump’s campaign remarks about a Muslim ban. The court concludes that they must “reserve consideration of these claims until the merits of this appeal have been fully briefed.” This is relatively unprecedented – the fact is that motivation behind laws is far less important than the text of the law, and the attempt to read motivation into law is dangerous jurisprudence.
The court then says that the government cannot show that a stay will create “irreparable injury.” But it’s only possible to claim irreparable injury after the fact, when a terrorist attack has already occurred. So according to the Ninth Circuit, a three month delay on a student at University of Washington constitutes a substantial injury, but there’s no irreparable harm to allowing people into the country without Trump-style vetting. That’s a political decision, not a legal one.
So, in essence, the Ninth Circuit did what everyone thought it would: it made a politically leftist decision on a divisive issue. Now the issue will rise to the Supreme Court. But the Supreme Court is currently split 4-4 at best – which means that Trump might live with the temporary restraining order until Judge Gorsuch is confirmed. Or he might push this to the Supreme Court knowing that the Supreme Court will split, which would affirm the Ninth Circuit, and then he can declare political war on the courts without the fallout of having to enforce his executive order.