Congress, Constitutional Law, Courts, Politics, Supreme Court

Ninth Circuit Rejects Motion For Immediate Reinstatement Of Executive Order But Schedules Expedited Argument For Monday

200px-US-CourtOfAppeals-9thCircuit-Seal.svgdepartment-of-justice-logo1 The United States Court of Appeals for the Ninth Circuit has declined a demand for an immediate reinstatement of the Executive Order on immigration but has scheduled expedited arguments and filings in the case for Monday.  The decision is not surprising in such a case.  Courts need to hear from the other side in the dispute, particularly when the Washington Attorney General prevailed in the trial court.  Moreover, a temporary restraining order is very difficult to reverse on an interlocutory appeal.  Normally, appellate courts will wait for a final decision and opinion from the lower court before agreeing to review the controversy.  Of course, nothing is “normal” about this controversy in terms of procedure or policy.  With a major executive order stayed, the Ninth Circuit is clearly moving with dispatch but deliberation.  The Justice Department team was not helped by President Trump’s tweets casting aspersations on Judge James Robart of Federal District Court in Seattle as a “so called judge.”   Such comments undermine the credibility of the claims. It is less compelling to demand respect for the executive branch if you are viewed as denigrating the judicial branch.  While there is ample reason to question the ruling of Judge Robart, but he is a respected judge who made a good-faith decision on a tough legal question.   He is not a “so-called judge” but a real judge and has the Senate confirmation to prove it.  Having said that, media playing up the “rejection” by the Ninth Circuit are not being entirely accurate.  The Ninth Circuit wants more argument and has not reached the merits.  There is still question whether it will reach the merits on a TRO appeal.  I still believe that President Trump has the advantage legally and we could see this order stayed.  The question is when and how since this remains a temporary restraining order without a written opinion from Judge Robart.

The Trump Administration waited until Saturday to file its emergency motion.  The response from the Ninth Circuit was a two paragraph order from Judge William Canby, Jr. in Phoenix and Judge Michelle Friedland in San Francisco denying an immediate stay in favor of a short deadline for the states of Washington and Minnesota to file the basis for their opposition by midnight on Sunday.  The Administration then was given until 3 pm on Monday to respond.  Given the fact that this is a temporary restraining order that is not ordinarily reviewed on appeal, that was a responsible way for the appellate court to proceed.  It is the not burden of the court to correct for a truly dismal rollout of this order and the confusion that it has caused.  As I have said before, much of the confusion surrounding the order could have been avoided with better planning, drafting, and coordination by the Administration.

The result is that immigrants are being allowed into the country from the seven nations — Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen, though any order from the Ninth Circuit could cause a replay of the confusion seen in the aftermath of the original order.  People could be in the air or in customs when an order is reinstated.

Ironically, the Trump Administration is following the very same arguments made by the Obama Administration over the last eight years (without objection from Democratic attorneys general or members of Congress).  Obama insisted that he had sweeping authority over immigration and that states had little or no standing to object to his executive decisions.

Even without a written opinion, there is substantial grounds to challenge Robarts decision.  Robart held in his brief order that  “there’s no support” for the administration’s argument that “we have to protect the U.S. from individuals” from the affected countries.  That sounds like the district court is making its own judgment on the national security risk posed by these countries.  There has always been considerable controversy over the ability of a judge to “second guess” a president on such national security determinations. Indeed, the Obama Administration maintained that such decisions were effectively unreviewable.

Robarts also accepted sweeping claims of injury to state residents “in areas of employment, education, business, family relations and freedom to travel” as the basis for the state attorney general to be heard.  Standing remains a major vulnerability for the challengers in this and other cases.  Such standing is essential, particularly since the Supreme Court has repeatedly held that foreign nationals outside the country do not have standing to rise constitutional protections afforded to citizens or those inside our borders.

Robarts did question in the hearing how the challengers could view this as a “Muslim ban” when all Muslims are not banned.  However, he pressed the Justice Department to show a rational basis for the order given the few terrorists linked to these countries.  If that is the basis for the ruling, he will be highly vulnerable on appeal.  Courts are leery of a judge substituting his judgment on such questions.  Yet, the question remains when a full review will be granted or whether the appellate court will defer to the trial court pending a final decision and full opinion.  It could also order the trial court to issue such an opinion by a certain date given the national interests implicated by his order.

If the Ninth Circuit declines to review or stay the lower court order, the Administration could appeal to the Supreme Court. This is the worst procedural foundation for an appeal but, given the national security claims, it is not beyond the realm of possibility for the Administration to secure review.

[I will be flying later this morning to Guam, Saipan, and Palau for a series of speeches this week but will try to update the blog during transit depending on access to the Internet.]

168 thoughts on “Ninth Circuit Rejects Motion For Immediate Reinstatement Of Executive Order But Schedules Expedited Argument For Monday”

  1. Robard is a LEFTIST judge. Robard supports the Leftist/Communist/Soros organization that calls itself Black Lives Matter. End of story. Watch the whiny, phony liberal anti-American, anti-civilization piece of leftist trash speak from the bench:

  2. 1) Listen to what Trump said;
    2) The District Court Judge was W appointed(;
    3) The Court will be upheld;
    4) Judges have absolute immunity from decisions; and,
    5) The Donald is being Advised badly, by his inner circle of evil.

  3. If the Toddler in Chief had not make statements about being a Muslim Ban. We might have a different response from the Court.

  4. I struggle to see how the judge in Washington made a “good faith” decision. We are talking about serious national security matters and the capacity of the executive to take reasonable actions. The logic supporting the order is not reasonable and could not be accepted by any nation state. Trump was right to call him a “so-called” judge because his decision is dangerous and designed to gut the Republic. With the stakes so high, Turley should not worry so much about the tweet. If the tweet influences the decisions a court makes, we are dealing with a really petty group of folks in the “so-called” judicial branch.

  5. The Ninth Circus Court is infamous for its incompetence. In recent years, its overturn rate is 80 to 90%. The only thing it has going for it is that the 6th Circuit Court now appears to be giving it a run for the bottom.

  6. Here’s what I wrote to my 24 yr old son concerning the EO – I’m not a lawyer nor a judge – just interested in the primary sources

    As per my promise,
    here are some documents on Trump’s Executive Order that’s getting so much attention. The purpose of the Executive Order (EO) is simply to gain time (the bans are all temporary or indefinite – none are designated permanent) to determine how and implement ways of strengthening both travel restriction measures (that Obama had put in last few years) and to strengthen vetting between US and countries designated ‘areas of concern’.
    First is the EO itself: edition.cnn.com/2017/01/28/politics/text-of-trump-executive-order-nation-ban-refugees/
    The implementation of the order caused some confusion – Anyway, if you read the Order you’ll note that the DHS has delegated authority pursuant to the order. Thus last Sunday the DHS came out with this fixing the green card issue:
    http://www.dhs.gov/news/2017/01/29/statement-secretary-john-kelly-entry-lawful-permanent-residents-united-states
    Nowhere in the EO is any religion, faith, or race etc… mentioned. Nowhere does it say “Muslim” or “Islam” or “Christian” – the term it uses is ‘alien’ which means anyone regardless of these things. The only country mentioned by name is Syria – but that’s because of ISIS vocal promise to infiltrate the Syrian populations migrating out of Syria.
    Here is the EO key section answering to the so-called 7 countries (6 are not mentioned – only Syria is mentioned in it’s own section):
    ” (c) To temporarily reduce investigative burdens on relevant agencies during the review period described in subsection (a) of this section, to ensure the proper review and maximum utilization of available resources for the screening of foreign nationals, and to ensure that adequate standards are established to prevent infiltration by foreign terrorists or criminals, pursuant to section 212(f) of the INA, 8 U.S.C. 1182(f), I hereby proclaim that the immigrant and nonimmigrant entry into the United States of aliens from countries referred to in section 217(a)(12) of the INA, 8 U.S.C. 1187(a)(12), would be detrimental to the interests of the United States, and I hereby suspend entry into the United States, as immigrants and nonimmigrants, of such persons for 90 days from the date of this order (excluding those foreign nationals traveling on diplomatic visas, North Atlantic Treaty Organization visas, C-2 visas for travel to the United Nations, and G-1, G-2, G-3, and G-4 visas).”
    Note that it nowhere mentions which countries – the countries are derived pursuant to laws passed by Obama directing the DHS to conduct an annual review to determine which countries are to be placed on the ares of concern list. Here is the relevant text http://www.law.cornell.edu/uscode/text/8/1187 –see especially (12) D in which the DHS
    is given the duty to determine the list. Here is a summary of their work from last year (Obama): http://www.dhs.gov/news/2016/01/21/united-states-begins-implementation-changes-visa-waiver-program … a month later they added three more:
    http://www.dhs.gov/news/2016/02/18/dhs-announces-further-travel-restrictions-visa-waiver-program
    Thus the 7 countries.
    Finally it is well within the bounds of Presidential Power (whether Carter, Bush, Clinton, Obama, Trump,etc…) to so decide -see this:
    law.cornell.edu/uscode/text/8/1182
    “(f) Suspension of entry or imposition of restrictions by President
    Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. ”

    one other thing – I used the word ‘ban’ -but is also nowhere in the EO – my apologies. It is not really a ban as much as it is an initial temporary suspension and then a tightening of restrictions on passage of aliens from certain countries in areas of concern.

    1. Banning a particular religion is supposedly unconstitutional, but I’d be willing to bet our founding fathers would never have considered Islam a religion. Religious freedom cannot be absolute when you consider the basic tenets of Islam violate every human right we hold dear. Freedom of speech is not allowed under Islam, nor is religious debate. Women are treated like cattle, and some were sold into slavery by the ‘prophet’. This same prophet raped slave women, traded them and married a six year-old girl. Every genuine religion I am aware of has beneficent intents. Islam promises conversion or death.
      Islam cannot be allowed into any country which values toleration, human dignity and constitutional government. No Muslim will swear allegiance to a constitution unless he is practicing takiyya, lying which is approved by Islam to unbelievers or to protect oneself or one’s religion.
      “You are taking all this too literally,” I was told by one person. Yes, when a man threatens to kill me because I do not believe as he does, I tend to take him at his word.
      If our Constitution actually says it is wrong to prohibit a religion which violates every principle of that Constitution, then the law and the Constitution is an ass

  7. I question whether the 9th Circuit will truly reach the merits on the issue of constitutionality, or whether the issue on review will simply be whether the elements required to obtain a TRO were met. If the 9th Circuit shows restraint, it would rule on any non-constitutional grounds available to it. I also question whether Justice would rush to get an adverse ruling before the Supreme Court while it only has nine justices, since the usual liberal/conservative split (4/4) would have the effect of affirming the 9th Circuit’s decision. Not the outcome Trump wants.

  8. Really, Really Not Whining. Just tired of corruption in government. Just really, ready tired of Corporate Welfare. It’s sad, I mean really sad.

    1. Well yeah, he may land with the falcons after the super bowl!

  10. Glenn Greenwald ‏@ggreenwald 7m7 minutes ago

    Glenn Greenwald Retweeted Donald J. Trump

    Every federal judge now knows that ruling against Trump means being personally demonized by the President to 23 million people at once.

    1. OK. It could be worse. What if we lived in a world where much of the news media was dedicated (24/7) to demonizing a sitting President and those that support him? Oh wait . . . The judge has more to worry about than a tweet or two. He has behaved in a manner that runs counter to the national security interests of the Republic.

  11. Why are we providing Corporate Welfare to Trump International. The Sons allegedly running the same have billed the US for a two night stay out of the country. This cost the taxpayers almost $100,000 for the Hotel Rooms and Secret Service.

    I think Trump Hotels should pay for the services used. This is a crock.

  14. As far as refugees and immigration from the Middle East is concerned, I have this to say.

    I sincerely wish that the US had accepted Jewish refugees during the WWII crisis. However, I do not wish that they accepted Nazi Germans displaced by the war. I would have wanted them to take the Jewish people and dissenters not the people terrorizing them.

    That is how I feel about the refugee crisis. Christians are persecuted and murdered in Syria, where they make up about 10% of the population. And yet, Christians make up less than 1% of refugees. Why is that? Perhaps because it is too dangerous for them to travel with or stay in the refugee camps with the very people who are raping and murdering them. Just a thought.

    We should give preference to the Christians, Yazidis, dissenters, and others who are expressly targeted for special persecution in Syria. They are the Jews to the Nazi Germans. There are those who say let all the Syrians come here. That’s like saying let all the Germans come here during WWII, and is just as misguided. Yes, you could find those Germans who disagreed with the Nazi propaganda, but one could see how extreme vetting and likely a lie detector test would be required.

    http://www.newsweek.com/us-bars-christian-not-muslim-refugees-syria-497494

  16. DDT is testing the waters. A lot of megalomaniacs did that at first. They have to come in slowly with their divisions, targets, blame, rewriting of the truth, history, vocabulary, dictionary meanings, etc., or people would just see them as they are and ignore them. Silver spoons for all his friends.

  17. Real judge or not, how anyone feels about him is irrelevant. He is a government employee living at the expense of the taxpayer While he cannot be sued for his incompetence and enjoys, perhaps, too much authority, he made this call, and he should be disciplined if that call is wrong.
    The law is unacceptably ambiguous if such a simple principle requires 15 lawyers, endless delays, political considerations, arguments lasting days and another session of the Supreme Court to decide what it means.

  20. “It is the not burden of the court to correct for a truly dismal rollout of this order and the confusion that it has caused. As I have said before, much of the confusion surrounding the order could have been avoided with better planning, drafting, and coordination by the Administration.”

    Where have I heard that argument being made before? Oh yeah, right before Chief Justice Roberts edited the ACA to appear constitutional.

    What does the temporary restraining order actually accomplish? It’s not as though the ports of entry into the United States go unmanned. If people are arriving from the 7 banned countries they are temporarily allowed to enter IF they clear customs? If they lack documentation to thoroughly vet them, are they temporarily allowed entry?

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