Moments ago, the Ninth Circuit Court of Appeals ordered that the temporary restraining order imposed on the Republican presidential administration’s travel ban will remain in place. The Court has found that the states of Washington and Minnesota have standing to challenge the ban, that the Republican administration is unlikely to prevail on the merits in the lawsuit, and that the balance of hardship to the public interest also weighs in favor of the States over the ban.
On January 27, 2017, the Republican administration issued an executive order suspending travel for 90 days from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. The EO also suspended the United States Refugee Admission Program. And it suspended indefinitely the entry of all Syrian refugees.
Shortly thereafter, the State of Washington brought suit challenging the program on various Constitutional grounds including Due Process and violation of the First Amendment. Washington sought a temporary restraining order against enforcement of the executive order, which was granted, arguing in part that “the Executive Order was not truly meant to protect against terror attacks by foreign nationals but rather was intended to enact a ‘Muslim ban’ as the President had stated during his presidential campaign that he would do.”
The Federal government immediately appealed to the Ninth Circuit for a stay of the TRO.
The Court found that the states have standing to bring the suit because they could show a “concrete and particularized injury” to their university system. Teacher, students, and researchers were stranded without the ability to enter the country. Their absence threatened essential state functions.
The Federal government argued on behalf of the Republican administration that the order was unreviewable by any court because it touched upon national security. The Court made short shrift of what would be a fairly dangerous argument to our system of government. Presidential authority under Article II is seldom if ever beyond review by an Article III Court.
The Court applied a four-part test to the government’s appeal:
(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.
On Due Process grounds, the Court reasoned that the Republican administration was unlikely to prevail on the merits. Because the Executive Order summarily stopped all immigrants, including permanent residents, from entering the country with no due process and restricted travel outside the country (again) without due process, the Executive Order is likely to be found unconstitutional. And because the system completely suspends the asylum process for immigrants from certain countries, it is likely to be found violative of Due Process.
Secondly, the administration is unlikely to prevail on the First Amendment grounds. Here, the Court went beyond the four corners of the Executive Order to look to the Republican Chief Executive’s intent as expressed in public statements and on social media regarding a desire to ban Muslims from entering the country.
In terms of the balance of hardship and the public interest, the Court reasoned that the Federal government has pointed to “no evidence” that any alien from one of the named countries has ever engaged in terrorism in the United States. By contrast, the states have been able to point to injury from the restriction on travel from those effected by the ban.
The Republican Administration will likely petition for a rehearing en banc to seek a hearing before the entire Ninth Circuit. This order was issued by a three-judge panel. And the matter could ultimately go to the United States Supreme Court. However, two things are important. First, there are only 8 justices. In the event of a tie, the Ninth Circuit ruling will be upheld. And this order does not reach the merits of the case. Rather, there is merely a TRO until the merits are reached. So, there may be an uphill battle for the Federal government on a cert. petition.