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.]