The United States Court of Appeals for the Ninth Circuit will have a completed record for its review of the lower court’s stay of the Trump immigration executive order this afternoon. While much has been made of the court declined to issue an immediate stay of the lower court under the earlier emergency motion, the decision was very predictable. The Court instead ordered for an expedited response from the states of Washington and Minnesota. That argument is complete today. What remains is a relatively rare procedural process in seeking to review a temporary restraining order (TRO) before the issuance of a written opinion, let alone a permanent injunction.
In its opposition filing, the two states warn that “President Trump unleashed chaos by signing the Executive Order” and that a stay would produce similar chaos if ordered the the Ninth Circuit.
Notably, in the filing on behalf of law professors against the executive order, they emphasize a difference between the First Circuit (where a Boston trial judge rejected the challenge) and the Ninth Circuit: “Unlike the First Circuit, the Ninth Circuit has never placed special emphasis on the ‘likelihood of success’ factor, resulting in a different legal standard here than was applied in the Massachusetts case. . . .Here, the District Court judge correctly relied on Ninth Circuit precedents that consider all four factors using a sliding scale.” The professors however also go all in on the argument that this ban should be viewed as an anti-Muslim ban:
Here, there is substantial evidence that the ban was motivated by animus against Muslims. For example, on January 28, 2017, a week after the inauguration, Former New York City Mayor Rudy Giuliani stated in an interview that President Trump had previously asked him about legally implementing a “Muslim ban.” Indeed, for nearly a year preceding the election, President Trump’s campaign website referred to a “Muslim ban,” indicating discriminatory intent.9 The evidence that there was no bona fide reason for the ban will be developed further through discovery.
I will not repeat the reasons for why I do not understand how a court can rely on such statements in its analysis, but I do not view that as a winning argument.
The challenger of a TRO is in a difficult position in seeking this type of appeal of a TRO. The vast majority of such orders are rejected in a summary fashion. Appellate courts want to see a record and a final decision. Even when treated as a preliminary injunction, appellate courts are leery of an interlocutory action without a full record. Here Judge Robart states at the end of his order that “the court can hear and decide the States’ request for a preliminary injunction” and could hold a hearing within 15 days.
Now on appeal, the tough standard faced by the two states in securing a TRO is flipped so that the Administration must show (1) a strong likelihood of success on the merits, (2) the likelihood of irreparable injury if relief is not granted, (3) a balance of hardships favoring Defendants, and (4) that reinstating the Executive Order is in the public interest. It is possible to do so. I still believe that the weight of existing precedent favors the Administration and that the district court is vulnerable on standing issues. Judge Robart’s stated skepticism over the basis for the national security determination is equally challengeable — federal judges tend to resist substituting their own judgment for that of a president on border issues. On the second criteria, the Administration has a national security determination of potential irreparable harm that, again, could be difficult to challenge. The third criteria also favors executive decision making. The Trump Administration is arguing that the national security is at risk. That is a weighty finding to balance against a suspension of entry pending new procedures measures. Finally, the last criteria can be somewhat redundant in this type of case since, unless the court will substitute its judgment for the risk posed by such entries, it is by definition an assertion of the public interest for a president to suspend entries due to the perceived national security risk.
As I have previously said, I was highly skeptical about this order and its curious list of included (and excluded) countries. I have been critical of the order in both its poor drafting and incredibly poor rollout. However, the legal issue is narrower and tends to be more deferential to presidents. Of course, the trial court is entitled to its own deference on factual findings, particularly on the appeal of a TRO. Moreover, since the court did not issue a full written opinion, there remains uncertainty on the specific grounds for the TRO.
With the completion of the filings today, the Ninth Circuit could rule or call for an oral argument. If it denies the motion, the Administration could seek a full court, en banc hearing or proceed to the eight-justice Supreme Court.