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Fri, 10 Feb 2017


Court Unanimously Keeps Lower Court's Injunction Against Trump's Immigration Order In Place

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Let's start this out by being quite clear: this is still the beginning of a fairly long legal process. But, the 9th Circuit appeals court has just unanimously ruled that the lower' court's injunction barring Donald Trump's executive order on immigration should remain in place. In short: the federal government remains barred from actually carrying out the order. This does not mean, as our President has wrongly suggested, that people are free to randomly enter the country in droves. They still have to go through the already thorough vetting and visa process. It just means that the blanket ban that caused so much havoc cannot be used to bar entry into the country. We were among those who signed onto an amicus brief for the wider tech industry, asking the court to rule this way, so we're happy they did.The court is pretty clear, and it's somewhat surprising that the ruling was unanimous. While it's always difficult to tell how judges are going to rule based solely on oral arguments, it certainly felt like two judges were leaning towards the states' argument and one towards the federal government's. But when it was time to write an opinion, all three came down on the side of the states. Not only that, but they did it per curiam, meaning that the entire panel "wrote" the opinion (rather than singling out the specific judge who wrote it). This can be seen as the three judges showing a united front, and also a pre-emption towards the likelihood of our thin skinned President picking directly on one of the three as somehow being responsible (as he did in earlier tweets about the case). Either way, the judges stood together, noting that the federal government's argument was weak:

To rule on the Government's motion, we must considerseveral factors, including whether the Government hasshown that it is likely to succeed on the merits of its appeal,the degree of hardship caused by a stay or its denial, and thepublic interest in granting or denying a stay. We assess thosefactors in light of the limited evidence put forward by bothparties at this very preliminary stage and are mindful that ouranalysis of the hardships and public interest in this caseinvolves particularly sensitive and weighty concerns on bothsides. Nevertheless, we hold that the Government has notshown a likelihood of success on the merits of its appeal, norhas it shown that failure to enter a stay would causeirreparable injury, and we therefore deny its emergencymotion for a stay.
Again, this is far from over. There will still be a fight at the lower court over a permanent injunction, and then numerous appeals (not to mention the other cases around the country).As for the opinion, it's good to see that the court went as far as it did. It really could have just punted the issue on a number of grounds, including that the appeals court has no grounds to overturn a temporary restraining order. But, instead, it went further and suggested that the federal government's position here is weak. There were a few different issues in the case, and the court wasn't very impressed by any of the federal government's arguments. One was that the states (Washington and Minnesota) didn't have standing to challenge the executive order. Not so, says the court, pointing to a number of cases where state universities had standing to sue on actions related to the rights of their students:
Most relevant for our purposes, schools have beenpermitted to assert the rights of their students.... As in those cases, the interestsof the States' universities here are aligned with theirstudents. The students' educational success is inextricablybound up in the universities' capacity to teach them.... And the universities' reputationsdepend on the success of their professors' research. Thus, asthe operators of state universities, the States may assert notonly their own rights to the extent affected by the ExecutiveOrder but may also assert the rights of their students andfaculty members.We therefore conclude that the States have alleged harmsto their proprietary interests traceable to the ExecutiveOrder. The necessary connection can be drawn in at mosttwo logical steps: (1) the Executive Order prevents nationalsof seven countries from entering Washington andMinnesota; (2) as a result, some of these people will notenter state universities, some will not join those universitiesas faculty, some will be prevented from performing research,and some will not be permitted to return if they leave. Andwe have no difficulty concluding that the States' injurieswould be redressed if they could obtain the relief they askfor: a declaration that the Executive Order violates theConstitution and an injunction barring its enforcement. TheGovernment does not argue otherwise.
On that procedural question of whether or not the court can even review a temporary restraining order (TRO), the court says it's fine:
We are satisfied that in the extraordinary circumstancesof this case, the district court's order possesses the qualitiesof an appealable preliminary injunction. The partiesvigorously contested the legal basis for the TRO in writtenbriefs and oral arguments before the district court. Thedistrict court's order has no expiration date, and no hearinghas been scheduled. Although the district court has recentlyscheduled briefing on the States' motion for a preliminaryinjunction, it is apparent from the district court's schedulingorder that the TRO will remain in effect for longer thanfourteen days. In light of the unusual circumstances of thiscase, in which the Government has argued that emergencyrelief is necessary to support its efforts to prevent terrorism,we believe that this period is long enough that the TROshould be considered to have the qualities of a reviewablepreliminary injunction.
On the question of whether or not courts even have the authority to review this executive order, the court says of course it does and it's patently silly for the federal government to suggest otherwise.
The Government contends that the district court lackedauthority to enjoin enforcement of the Executive Orderbecause the President has unreviewable authority tosuspend the admission of any class of aliens. TheGovernment does not merely argue that courts owesubstantial deference to the immigration and nationalsecurity policy determinations of the political branchesanuncontroversial principle that is well-grounded in ourjurisprudence. See, e.g., Cardenas v. United States, 826 F.3d1164, 1169 (9th Cir. 2016) (recognizing that the power toexpel or exclude aliens [is] a fundamental sovereign attributeexercised by the Government's political departments largelyimmune from judicial control (quoting Fiallo v. Bell,430 U.S. 787, 792 (1977))); see also Holder v.Humanitarian Law Project, 561 U.S. 1, 33-34 (2010)(explaining that courts should defer to the political brancheswith respect to national security and foreign relations).Instead, the Government has taken the position that thePresident's decisions about immigration policy, particularlywhen motivated by national security concerns, areunreviewable, even if those actions potentially contraveneconstitutional rights and protections. The Governmentindeed asserts that it violates separation of powers for thejudiciary to entertain a constitutional challenge to executiveactions such as this one.There is no precedent to support this claimedunreviewability, which runs contrary to the fundamentalstructure of our constitutional democracy.
The court further notes that the federal government's desire to run around screaming "NATIONAL SECURITY" as if that means the courts are powerless to do anything is also completely bogus.
Indeed, federal courts routinely review theconstitutionality ofand even invalidateactions taken bythe executive to promote national security, and have done soeven in times of conflict.
On to the key question of whether or not the court should lift the TRO and allow the executive order to be in effect again. The court here basically rips up the federal government and notes that it has no real argument.
The Fifth Amendment of the Constitution prohibits theGovernment from depriving individuals of their life,liberty, or property, without due process of law. U.S.Const. amend. V. The Government may not deprive aperson of one of these protected interests without providingnotice and an opportunity to respond, or, in other words,the opportunity to present reasons not to proceed with thedeprivation and have them considered....The Government has not shown that the Executive Orderprovides what due process requires, such as notice and ahearing prior to restricting an individual's ability to travel.Indeed, the Government does not contend that the ExecutiveOrder provides for such process. Rather, in addition to thearguments addressed in other parts of this opinion, theGovernment argues that most or all of the individualsaffected by the Executive Order have no rights under the DueProcess Clause.
And while I've seen a bunch of people (mainly on Twitter) telling me that there's no due process issue because non-US citizens have no Constitutional rights, the court reminds them that they're wrong:
The procedural protections provided by the FifthAmendment's Due Process Clause are not limited tocitizens. Rather, they appl[y] to all 'persons' within theUnited States, including aliens, regardless of whether theirpresence here is lawful, unlawful, temporary, or permanent.Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rightsalso apply to certain aliens attempting to reenter the UnitedStates after travelling abroad. Landon v. Plasencia, 459 U.S.21, 33-34 (1982). The Government has provided noaffirmative argument showing that the States' proceduraldue process claims fail as to these categories of aliens. Forexample, the Government has failed to establish that lawfulpermanent residents have no due process rights whenseeking to re-enter the United States. See id. ([T]hereturning resident alien is entitled as a matter of due processto a hearing on the charges underlying any attempt toexclude him. (quoting Rosenberg v. Fleuti, 374 U.S. 449,460 (1963))). Nor has the Government established that theExecutive Order provides lawful permanent residents withconstitutionally sufficient process to challenge their denialof re-entry. See id. at 35 ([T]he courts must evaluate theparticular circumstances and determine what procedureswould satisfy the minimum requirements of due process onthe re-entry of a permanent resident alien.).
Separately, the court notes that the federal government's own claims are not trustworthy -- specifically the rapidly-changing claims about whether or not greencard holders are covered by the exec order:
At this point, however, wecannot rely upon the Government's contention that theExecutive Order no longer applies to lawful permanentresidents. The Government has offered no authorityestablishing that the White House counsel is empowered toissue an amended order superseding the Executive Order signed by the President and now challenged by the States,and that proposition seems unlikely.Nor has the Government established that the WhiteHouse counsel's interpretation of the Executive Order isbinding on all executive branch officials responsible forenforcing the Executive Order. TheWhite House counsel isnot the President, and he is not known to be in the chain ofcommand for any of the Executive Departments. Moreover,in light of the Government's shifting interpretations of theExecutive Order, we cannot say that the currentinterpretation by White House counsel, even if authoritativeand binding, will persist past the immediate stage of theseproceedings.
The court also rejects the argument from the DOJ that a more limited TRO could be used instead, such as one just focusing on previously admitted aliens. No go:
First, we decline to limit the scope of the TRO to lawfulpermanent residents and the additional category morerecently suggested by the Government, in its replymemorandum, previously admitted aliens who aretemporarily abroad now or who wish to travel and return tothe United States in the future. That limitation on its faceomits aliens who are in the United States unlawfully, andthose individuals have due process rights as well. Zadvydas,533 U.S. at 693. That would also omit claims by citizenswho have an interest in specific non-citizens' ability to travelto the United States....There might be persons covered by the TRO who do nothave viable due process claims, but the Government'sproposed revision leaves out at least some who do.
The court also refuses to restrict the TRO so that it doesn't apply nationwide, basically saying the government failed to explain why it should:
Second, we decline to limit the geographic scope of theTRO. The Fifth Circuit has held that such a fragmentedimmigration policy would run afoul of the constitutional andstatutory requirement for uniform immigration law andpolicy.... At this stage of the litigation, we do not need to anddo not reach such a legal conclusion for ourselves, but wecannot say that the Government has established that acontrary view is likely to prevail. Moreover, even if limitingthe geographic scope of the injunction would be desirable,the Government has not proposed a workable alternativeformof the TRO that accounts for the nation's multiple portsof entry and interconnected transit system and that wouldprotect the proprietary interests of the States at issue herewhile nevertheless applying only within the States' borders.
The court then notes that the federal government failed to convince the court that it has any "likelihood of success" in prevailing in support of the executive order, though it's open to changing its mind at a later date, when more fully briefed (i.e., when things come back on appeal down the road).Finally, there's the question of the "balance of hardships and the public interest" and again the court notes that the DOJ failed to show any evidence of real harm in blocking the executive order, because the DOJ has no actual evidence to support the reasons for the order in the first place. And, again, just screaming "NATIONAL SECURITY" is no excuse:
The Government has not shown that a stay is necessaryto avoid irreparable injury. Nken, 556 U.S. at 434. Althoughwe agree that the Government's interest in combatingterrorism is an urgent objective of the highest order, Holderv. Humanitarian Law Project, 561 U.S. 1, 28 (2010), theGovernment has done little more than reiterate that fact.Despite the district court's and our own repeated invitationsto explain the urgent need for the Executive Order to beplaced immediately into effect, the Government submittedno evidence to rebut the States' argument that the districtcourt's order merely returned the nation temporarily to theposition it has occupied for many previous years.The Government has pointed to no evidence that anyalien from any of the countries named in the Order hasperpetrated a terrorist attack in the United States. Ratherthan present evidence to explain the need for the ExecutiveOrder, the Government has taken the position that we mustnot review its decision at all. We disagree, as explainedabove.
In a footnote on that, the court calls bullshit on the idea that there's some super secret info that only the President can see that shows why this ban is necessary, noting that the federal government regularly shares confidential information with judges under seal or in camera to avoid it being seen by others.Meanwhile, the court notes that the plaintiff states have shown pretty strong evidence of harm:
By contrast, the States have offered ample evidence thatif the Executive Order were reinstated even temporarily, itwould substantially injure the States and multiple otherparties interested in the proceeding. ...When the Executive Order was in effect, the States contendthat the travel prohibitions harmed the States' universityemployees and students, separated families, and stranded theStates' residents abroad. These are substantial injuries andeven irreparable harms.
And, finally the court notes that the public interest simply does not warrant a stay.Again, this is just the beginning of a long process, but as an early victory it's a big one. The court could have punted and did not. And in the meantime, our somewhat confused President is angry and doesn't seem to realize he's already in court over this (and losing, badly):
Of course, if that were true, it would help to have the federal government actually lay out some evidence to support that. What the 9th circuit pretty clearly said here is "we've seen none whatsoever."

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posted at: 12:00am on 10-Feb-2017
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