Ninth Circuit Schedules Oral Argument On The Trump Immigration Order

200px-US-CourtOfAppeals-9thCircuit-Seal.svgdepartment-of-justice-logo1 The government filed its reply on February 6th and followed earlier arguments in favor of an appellate stay of the lower court order of Senior District Court Judge James Robart.  As discussed earlier, 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.

The oral argument is scheduled for 3 pm and can be seen at this link: oral argument  It is an admirable move by the Ninth Circuit. I have been a long critic of the bar on cameras before the Supreme Court and appellate courts.  The public should be able to watch these historic arguments without fighting for the small number of seats in the courtroom.

The reply by the Justice Department leads with a direct reminder that, while it lost before Judge Robart in Seattle, it prevailed before the Boston federal district court:

The Executive Order is a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees. Relying on his express statutory authority to suspend entry of any class of aliens to protect the national interest, the President has directed a temporary suspension of entries through the refugee program and from countries that have a previously identified link to an increased risk of terrorist activity, see 8 U.S.C. § 1187(a)(12). The purpose of that temporary suspension is to permit an orderly review and revision of screening procedures to ensure that adequate standards are in place to protect against terrorist attacks. As a different district court recently concluded, that objective provides a “facially legitimate and bona fide” justification that satisfies any constitutional scrutiny that applies. Louhghalam v. Trump, Civ. Action No. 17-10154-NMG, Order 18-19 (D. Mass. Feb. 3, 2017); see id. at 10-11, 15-16.

The oral argument will be particularly interesting in light of the hearing before Robart.  At the hearing, Robart pressed the Administration on the basis for President Trump’s finding of national security dangers associated with these seven countries.  Most judges are reluctant to substitute their judgment on such issues for a sitting president.  After all, regardless of the criticism of excluding countries like Saudi Arabia, a president receives highly classified briefings on national security risks.  Moreover, these countries are identified as having poor records and reviews for immigrants — problems that may not be as acute for countries like Saudi Arabia.

After the hearing, the Ninth Circuit could rule fairly quickly if it were so inclined.  The losing could then ask for a full en banc review by the Ninth Circuit or proceed directly to the Supreme Court.  Justice Anthony Kennedy would hear any emergency motions.



84 thoughts on “Ninth Circuit Schedules Oral Argument On The Trump Immigration Order”

  1. The subject begins and ends with “a president receives highly classified briefings on national security risks.” Information as given to the president that is above the pay grade of any member of the judicial branch.

  2. “By the constitution of the United States, the president is invested with certain important political powers, in the exercise of which he is to use his own discretion, and is accountable only to his country in his political character, and to his own conscience. To aid him in the performance of these duties, he is authorized to appoint certain officers, who act by his authority and in conformity with his orders.

    In such cases, their acts are his acts; and whatever opinion may be entertained of the manner in which executive discretion may be used, still there exists, and can exist, no power to control that discretion. The subjects are political. They respect the nation, not individual rights, and being entrusted to the executive, the decision of the executive is conclusive. The application of this remark will be perceived by adverting to the act of congress for establishing the department of foreign affairs. This officer, as his duties were prescribed by that act, is to conform precisely to the will of the president. He is the mere organ by whom that will is communicated. The acts of such an officer, as an officer, can never be examinable by the courts.”

    Marbury v Madison (1803)

    Don’t you just love it when judges want to rely on a case for the source of their authority, but refuse to acknowledge what the Court said when acknowledging that power?

  3. His sister was killed by Trump last week. What do you have to say about that? Some have freaked about both. Are you?

    1. @anon-Who’s sister did Trump kill? Can you post the information, please? I would like to read that, Thank you.

    2. By that tortured logic, FDR and Churchill are the biggest mass murderers of all time. Do you read what you write anon or is it just cut and paste from the Maoist Talking Points Memo.

  4. I’m still confused why there wasn’t much outrage over Obama’s ability to assassinate an American citizen without due process, but people are freaking out about Trump’s EO disrupting foreigner’s lives.

  5. Why is the binding precedent of Mississippi v Johnson (1867) being ignored?

    “The duty thus imposed on the President is in no just sense ministerial. It is purely executive and political.”

    “An attempt on the part of the judicial department of the government to enforce the performance of such duties by the President might be justly characterized, in the language of Chief Justice Marshal, as ‘an absurd and excessive extravagance.'”

    “It is true that, in the instance before us, the interposition of the court is not sought to enforce action by the Executive under constitutional legislation, but to restrain such action under legislation alleged to be unconstitutional. But we are unable to perceive that this circumstance takes the case out of the general principles which forbid judicial interference with the exercise of Executive discretion.”

    “The impropriety of such interference will be clearly seen upon consideration of its possible consequences.”

    “Suppose the bill filed and the injunction prayed for allowed. If the President refuse obedience, it is needless to observe that the court is without power to enforce its process. If, on the other hand, the President complies with the order of the court and refuses to execute the acts of Congress, is it not clear that a collision may occur between the executive and legislative departments of the government? May not the House of Representatives impeach the President for such refusal? And in that case, could this court interfere in behalf of the President, thus endangered by compliance with its mandate, and restrain by injunction the Senate of the United States from sitting as a court of impeachment? Would the strange spectacle be offered to the public world of an attempt by this court to arrest proceedings in that court?”

    “These questions answer themselves.”

    “It is true that a State may file an original bill in this court. And it may be true, in some cases, that such a bill may be filed against the United States. But we are fully satisfied that this court has no jurisdiction of a bill to enjoin the President in the performance of his official duties; and that no such bill ought to be received by us.”

    “It has been suggested that the bill contains a prayer that, if the relief sought cannot be had against Andrew Johnson, as President, it may be granted against Andrew Johnson as a citizen of Tennessee. But it is plain that relief as against the execution of an act of Congress by Andrew Johnson is relief against its execution by the President. A bill praying an injunction against the execution of an act of Congress by the incumbent of the presidential office cannot be received, whether it describes him as President or as a citizen of a State.
    The motion for leave to file the bill is, therefore,

  6. Trump’s EO needs tweaking

    This is weird. Smugglers with a boatload of immigrants come ashore & interrupt a model photo shoot on Miami beach.

  7. Yet, they don’t know what they don’t know– (“Most judges are reluctant to substitute their judgment on such issues for a sitting president… (who) receives highly classified briefings on national security risks.”

    For example, we think of Turkey as an ally — yet most Americans don’t realize Turkey has imprisoned an American pastor four months ago…

  8. The issue here is whether the judiciary wants to extend its own power to include control of U.S. immigration policy.

    1. True – plus the courts seem to be interested in undermining actions designed to protect national security interests. I am not sure why folks think this is a close call. The district judge was out of line and the 9th circuit should offer the Executive relief (reinstate the EO) ASAP. If the courts do not overturn the TRO, we have folks in the judiciary that are delusional or they are intentionally acting in a manner designed to harm this nation.

  9. Didn’t President Obama give a similar ban?
    But, the press didn’t report it.
    The press is tired of being Trump’s whooping boy.

      1. Someone remind me of “all Barack did for the world” because I must be missing something.

  10. what you’re effectively saying Professor is that the President can do whatever he wants and evade judicial review by saying it’s for national security. that’s exactly what dictators do each time they pass a repressive law. Your view would make us no different from Egypt where each repressive measure is stated by the government to be for national security.

    1. Yasmine:
      And what you’re saying is that the courts get to decide national security issues. In short, they don’t because they don’t have experience in it nor the resources to find out about it. You have to give the discretion somewhere since you can’t know in advance what will happen.

      And comparing our democracy to that mob in Egypt is comparing to pearls to tapioca. You really should give the oldest surviving democracy some credit for knowing how to do things.

  11. If I were Justice Kennedy I would be carry my cell with me, and charged, everywhere. He is going to get a call. Doesn’t matter who wins at the Ninth Circuit, the SC is going to have to do some actual work.

      1. mespo – shirley you don’t think that justices Sotomayer or Ginsberg would vote their politics?

            1. Read “The Prince”:
              “How we live is so different from how we ought to live that he who studies what ought to be done rather than what is done will learn the way to his downfall rather than to his preservation.”
              ― Niccolò Machiavelli

  12. What is interesting is that the time it takes to range a decision out of judges through appeals and whatever else the legal eagles can come up with, will probably be the transition time from what was to what DDT wants. This could have been done quietly, incrementally, and by simple tightening up the existing filters. This leaves the question(s) of why DDT took such a gamble. Does he want to test the waters as to his powers? Is he still campaigning for the next two or three elections? Is DDT insecure? Is DDT simply a megalomaniac and just loves the attention? Is it simply that DDT wants to be loved? Is this a preamble to even yuger things?

  13. The Stay is not on Hold. The Stay remains. The Court will look at the record below, the arguments put forth by Plaintiffs, now almost 100 with amicus briefs and the Defendants.

    The Defendants have a hard burden to overcome.

    I expect the Stay to remain and yes, next stop the USSCT. First you have to have the Justice presiding over the 9th Circuit to agree to hear the case. I think it’s Kennedy. So it’s a coin toss.

  14. I would love to be a civics teacher in high school right now.
    I’m always amazed at what it takes to get people’s political attention.
    This is like making Mole sauce everyday.
    Complicated and complex, but well worth the time and effort to deliver.

  15. So at present then it’s still on hold awaiting lawyers running up more high priced hours?

  16. While I am glad to see the 9th Circuit making this hearing available for broadcast, I take exception to using a private company–YouTube–to act as an archivist of judicial proceedings. I recognize the possible ad hoc nature of this rather novel viewing but to rely on a private entity has risks.

    The video repository could be taken down, restricted, or edited due to a change in policy by YouTube or any other similarly contracted company. We have seen the controversy of various providers for enacting censorship that can run against the purposes of government or individual speech rights. Changes in corporate policy make such archiving risky.

    Moreover, allowing concentrations of media storage into the hands of only a few providers elevates these entities to a level of great power since they control the information. It also can serve as a substitute for government archiving where corporations become a surrogate for normal operations entrusted to agencies and they will siphon tax dollars away creating an expensive and unnecessary middleman for costs.

    It is not difficult for an agency of the size of the US Court system to provide videography and archiving from a technical point of view. If the appellate courts could start the inertia by founding a video service, perhaps it might be an impetus for the SCOTUS to follow suit.

    1. Putting the YouTube issue to the side,I am of the view that the ban on cameras in the courtroom raises some interesting First Amendment concerns.I appreciate the difficulty in getting the courts to overturn an entrenched set of prohibitions that have been,essentially,judge-made.

    2. Great point, Darren. I had not thought of that.

      The government should archive the footage, and then they could share it with YouTube if they wish.

  17. I think key judge may be Canby. I think Friedland/Clifton may offset each other. Don’t know effect of “so-called judge” comment and if court believes it must explain checks/balances to the President. I would love unanimous decision without preening/lecturing. Your thoughts, please. (Note Too NY Times op-ed) Enjoy Guam. Thanks for your contrarian, often humorous and always insightful commentary. Thom

Comments are closed.