Yesterday, the United States Court of Appeals for the Ninth Circuit (“the Court”) issued a unanimous decision ruling foreign nationals from the seven enumerated countries will continue to be able to enter the United States. The Court denies the request of the Government to stay the Temporary Restraining Order (TRO) issued last Friday on Executive Order 13769, “Protecting the Nation from Foreign Terrorist Entry Into the United States” (“the Order,” commonly referred to as the “travel ban”).
In its decision, the Court rules the States of Washington and Minnesota (“the States”), have standing under the third party doctrine to assert the rights of students, scholars and faculty affected by the Order. The Court rejects the Government’s contention that the President has unreviewable authority in matters of immigration and national security, affirming “considerable deference” should be made to the President’s policy decisions, but the federal judiciary “retains the authority to adjudicate constitutional challenges to executive action.”
The Court rejects the Government’s argument that most or all of the individuals affected by the Order have no rights under the 5th Amendment Due Process Clause, asserting the clause applies to “all persons within the United States, including Aliens, regardless of whether their presence here is lawful, unlawful, temporary or permanent.”
The Court rejects the Government’s argument that the TRO is “overbroad” and declines to limit the scope of the TRO to only lawful permanent residents (green card holders) and to a particular geographic area, to ensure immigration law is applied uniformly. The Court asserts the States’ religious discrimination claims raise “serious allegations and present significant constitutional questions,” yet reserves consideration of the same at this stage in the proceedings.
The Court rules the Government has not shown that lifting the TRO “is necessary to avoid irreparable injury.” The Court notes the Government failed to demonstrate that a foreign national from one of the seven countries listed in the Order has perpetrated or threatened an attack on the United States, whereas the States provided extensive evidence that reinstatement of the Order would cause substantial injury and hardship to its economy and public universities.
Finally, the Court examines the public interest, acknowledging competing opinions favoring both sides, but ultimately rules a stay of the TRO is not justified due to the scale of hardships that would be caused by a reinstatement of the Order.
The Government’s motion to stay the TRO on the Executive Order is therefore DENIED.
Please note, that the scope of the Court’s decision was not on the merits of the constitutional claims, but rather whether the Government met its burden for an emergency stay of the district court’s TRO.
President Trump will most likely direct the Justice Department to ask the U.S. Supreme Court to review the Court of Appeals decision. When and if the U.S. Supreme Court takes the case is still uncertain. Since the death of Justice Scalia last year, the court only has 8 Justices. Therefore, a 4-4 split vote in the Supreme Court would reaffirm the suspension of the President’s Order.
EIG will continue to diligently monitor the situation and provide real-time updates.