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A Breakdown of the 9th Circuit’s Decision Regarding Trump’s Immigration Ban

Today, the 9th Circuit issued its ruling regarding whether to stay the temporary restraining order issued by District Court Judge James Robart on President Trump’s Executive Order on immigration.  In a unanimous decision, the Court denied the administration’s request to stay that temporary restraining order.   

To be clear, this decision was not regarding the underlying merits of whether the Order itself is constitutional or not, but rather whether the temporary restraining order was proper. The underlying merits of the constitutionality of the Order are still going to be arguing and decided in front of District Court Judge James Robart.  Although the 9th Circuit’s decision did not determine the constitutionality of the Order, it still has significance when it comes to the ultimate end-game for this order.  Specifically, in coming to their decision, the Justices had to consider 1) the likelihood of success on the merits, 2) the degree of hardship caused by the a stay or a denial of the stay and 3) the public interest in granting or denying a stay.  Below is a summary of their conclusions.

1.      Likelihood of Success

The Court first addressed the likelihood of success when it comes to the Due Process arguments. Specifically, whether the Government has shown that the Executive Order complies with the 5th Amendment’s due process requirements. 

The Court found that the Executive Order does not provide for due process protections before an individual’s ability to travel is affected.  This would include some process by which the person can challenge the denial of their re-entry which includes a right to a hearing.  

The Government claims that most of people affected by the Order are not afforded Due Process Rights, however, the Court pointed out that the protections provided in the Fifth Amendment’s are not limited to citizens but rather to all persons in the United States, including aliens that are here lawfully or unlawfully.  

The Court concluded that the Government has not shown that constitutionally sufficient processes are in place for all aliens who would like to travel and/or are denied re-entry into the United States.

The Court then addressed the likelihood of success when it comes to the religious discrimination arguments.  The First Amendment prohibits any law that has a religious purpose or that favors one religion over another and the Equal Protection Clause prohibits the Government from discriminating people based on religion.   

The States argued that the Order violates those laws because it disfavored Muslims and, in support, offered numerous statements made by Trump, the Order itself, among other pieces of evidence.  

The Court felt that the States were raising serious allegations and Constitutional questions, but because they had already concluded that the Government had not shown a likelihood of success with regard to Due Process, they reserved consideration of those claims until the merits of the appeal had been briefed.

In addition to these issues, the Court addressed the Government’s assertion that the President’s decisions on immigration policy are unreviewable.  The Court stated that “there is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”   The Court further stated that to the contrary “the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.”  The Court concludes their analysis on reviewability by explaining that “although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.”

2.      Degree of Hardship

The Court next discussed the hardship to the Government and the States if the restraining order is not stayed.   The Court determined that outside of just stating that there is a need to immediately stay the restraining order the Government has not submitted any other evidence to support the need for the immediate stay.  

Specifically the Court explained that despite its “repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it had occupied for many previous years.”   The Court further noted that the “Government haspointed to no evidence that any alien from any of the countries named in that Order has perpetrated a terrorist attack in the United States.”  It even went so far as to shut down, in a footnote however, the Government’s position that the Court’s should not review this decision because they do not have access to the classified information that the President has by noting that Courts routinely are receive classified information under seal. 

The Court found that the States, on the other hand, provided “ample evidence” of harm to university employees and students, separated families and stranded the States’ residents abroad.

3.      Public Interest

The Court noted the public’s interest in national security as well as their interest in free flow of travel and freedom from discrimination.   The Court found that these competing interests did not justify a stay.