Metropolitan News-Enterprise


Friday, February 10, 2017


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Ninth U.S. Circuit Panel Rejects Trump Travel Ban


From Staff and Wire Service Reports


The Ninth U.S. Circuit Court of Appeals yesterday declined to stay President Donald Trump’s ban on travelers from seven predominantly Muslim nations, dealing another legal setback to the new administration’s immigration policy.

In a per curiam decision, the panel—Senior Judges William Canby and Richard Clifton, and Judge Michelle Friedland—said the government failed to show that it was likely to prevail in its defense of the ban. Nor did it show there would be irreparable harm if the temporary restraining order issued by U.S. District Judge James Robart of the Western District of Washington remains in effect while the constitutionality of the ban is further litigated, the judges said.

 The ban temporarily suspended the nation’s refugee program and immigration from countries that have raised terrorism concerns. An appeal to the U.S. Supreme Court seems likely and would put the decision in the hands of a divided court that has a vacancy.

Trump’s nominee, Tenth Circuit Judge Neil Gorsuch, could not be confirmed in time to take part in any consideration of the ban. A tie vote on what is now an eight-justice court would affirm the Ninth Circuit’s ruling.

Moments after the ruling was released, Trump tweeted, “SEE YOU IN COURT,” adding that “THE SECURITY OF OUR NATION IS AT STAKE!” Gov. Jay Inslee of Washington state, which brought the action along with the state of Minnesota, tweeted back:

 “Mr. President, we just saw you in court, and we beat you.”

The Department of Justice was more cautious, saying—just hours after Attorney General Jeff Sessions took office—that it was “reviewing the decision and considering its options.”

Withdrawal of Order

Washington state Attorney General Bob Ferguson, who initiated the lawsuit, said Trump should withdraw his “flawed, rushed and dangerous” order, and that if he doesn’t Ferguson “will continue to hold him accountable to the Constitution.”

The appeals panel said the government presented no evidence to explain the urgent need for the executive order to take effect immediately. The judges noted compelling public interests on both sides.

“On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies,” they said. “And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.”

The court rejected the administration’s claim that it did not have the authority to review the president’s executive order.

“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the court said.

While they did not rule on the actual merits of the states’ argument that the travel ban was intended to target Muslims, the judges rejected the government’s claim that the court should not consider statements by Trump or his advisers about wishing to enact such a ban. Considering those remarks, the judges said, falls within well-established legal precedent.

Due Process Clause

The plaintiffs, the court elaborated, are likely to prevail on their claim that the ban violates the Fifth Amendment’s Due Process Clause, because it denies resident aliens and visaholders notice and a hearing prior to restricting an individual’s ability to travel.

“[T]he Government has failed to establish that lawful permanent residents have no due process rights when seeking to re-enter the United States,” the panel wrote. “…Nor has the Government established that the Executive Order provides lawful permanent residents with constitutionally sufficient process to challenge their denial of re-entry.”

The court said the White House counsel’s memorandum saying the ban does not apply to permanent resident aliens is not authoritative. The counsel had no power to supersede the executive order signed by the president, and it was not clear that the counsel’s interpretation can bind the rest of the Executive Branch, the judge said.

There is also some likelihood that the plaintiffs will prevail on their religious discrimination claim, although that issue would most appropriately be addressed after full briefing, the judges went on to say.

Addressing the issue of irreparable harm, the panel said it had repeatedly invited the government to explain why the order needed to be put in effect immediately, but it “submitted no evidence to rebut the…argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years.”

Evidence of Harm

The plaintiffs, on the other hand, presented considerable evidence of harm to persons subject to the ban, to their families in this country, and to institutions, particularly colleges whose students and employees have been barred from entering or returning, the judges said.

The appeals court sided with the states on every issue save one: the argument that TRO could not be appealed. While under circuit precedent such orders are not typically reviewable, the panel ruled that due to the intense public interest at stake and the uncertainty of how long it would take to obtain a further ruling from the lower court, it was appropriate to consider treat the appeal as if from a preliminary injunction.

Josh Blackman, a professor at South Texas College of Law in Houston, said the “million-dollar question” is whether the Trump administration would appeal to the Supreme Court.

That could run the risk of having only eight justices to hear the case, which could produce a tie and leave the lower-court ruling in place.

“There’s a distinct risk in moving this too quickly,” Blackman said. “But we’re not in a normal time, and Donald Trump is very rash. He may trump, pardon the figure of speech, the normal rule.”

The ban was set to expire in 90 days, meaning it could run its course before the Supreme Court would take up the issue. The administration also could change the order, including changing its scope or duration.

The case is State of Washington v. Trump, 17-35105.


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