On Thursday, February 9, 2017, the U.S. Court of Appeals for the Ninth Circuit upheld the decision of the lower district court to issue a temporary restraining order (TRO) that blocks the implementation of President Trump’s Executive Order of January 27, 2017 (banning people from seven Muslim-majority countries from entering the U.S.).
The Ninth Circuit issued a 29-page opinion explaining its reasoning and signed it “per curiam.” No judge dissented.
As might be expected from a 29-page opinion, the court explained its response at length to several different arguments that the parties made. Part of the bulk, too, was due to citations to the cases that the court believed supported its opinion. Roughly, the opinion ran as follows:
- Pages 1-6: The court identified the case and the attorneys who presented their arguments, and it explained what the dispute was about and how the dispute got to them. The court always gives this background section – it serves to clarify the facts and to help readers of the opinion orient themselves.
- Pages 7-8: The court responds to the arguments of Washington and Minnesota (the States) that it does not have power to review the district court’s TRO. The court agrees that it normally would not have power to review a TRO, but it finds the circumstances are unusual in that the district court’s TRO actually seems like a preliminary injunction in some ways. Preliminary injunctions are reviewable. So: round 1 to President Trump, in that the court won’t refuse to hear his arguments altogether.
- Pages 8-13: The court responds to the arguments of President Trump that the district court had no right to hear the case in the first place. According to the President, the States that brought the case were not injured by the Executive Order, so they lacked what is called “standing” to bring the case. The court finds that because people in Washington and Minnesota were affected by the Executive Order, the States do have standing – at least when a generous standard is applied, which it is in the beginning. So: round 2 to the States, with a cautionary note that the parties have not resolved the issue of standing altogether.
- Pages 13-18: The court responds to the arguments of President Trump that the district court has no right to review his Executive Order regarding the admission of aliens. Here, the court finds that it does “beyond question” have the power to review Executive Orders on this subject when a constitutional issue is involved, although it notes it owes “considerable deference” to the President. So: round 3 to the States, with a strong statement from the court that it will review these questions although it will also show deference to the President.
- Pages 18-19: The court discusses the appropriate legal standard to apply to the President’s request that it stay (stop) the district court’s TRO. It decides that it will use a four-part standard where the first two parts are 1) whether the President has made a “strong showing” that he will win the case and 2) whether the President has showed he will suffer an “irreparable injury” if the TRO continues. The second two parts are 3) whether other parties will be “substantially injured” and 4) the public interest. The court here says that the President has not met parts 1 and 2 (and so the court will not set aside the TRO). The other two parts (3 and 4) are a little less clear, but the court doesn’t find they are strong enough to persuade it to set aside the TRO either. The court notes that this is a preliminary analysis of the issues in the case, and when the parties have had the time to set forth their arguments more fully, the court may find differently. So: round 4 and a general win to the States – with a warning by the court that a win on this level is not an ultimate win.
The rest of the argument explains the court’s reasoning on each of the four parts of its legal standard.
- Pages 19-24: The court finds the President did not make a “strong showing” that he will win on the constitutional issue of due process. Due process normally says that an individual (such as a citizen, a lawful permanent resident, or anyone in the United States) must be given notice and a hearing before their rights (such as the right to travel) is taken away. The Executive Order did not offer notice and a hearing to affected travelers. The President’s position was that due process does not apply to the aliens affected by the Executive Order, and that the Executive Order would not be applied to lawful permanent residents (“green card holders”). With respect to the latter, the court said that it was reviewing the Executive Order as written and not as the President promised to apply it in future. Also, the court expressed uncertainty about how many other people’s due process rights might be affected. This was a win for the States, though it would be simple for President Trump to work around at least some of the court’s problems here by simply issuing a new, replacement Executive Order that does not apply to green card holders.
- Pages 24-26: The court very briefly mentions that the States have claimed the Executive Order violates the constitutional guarantee of freedom of religion. However, the court says it is not going to make any findings on this issue at the moment. This is a zero-zero tie for the parties.
- Pages 26-29: The court asks who would be hurt if the TRO was lifted and whether the injury would be irreparable. If anyone were killed by a terrorist, the court would find that an “irreparable injury” – but the court notes no alien from any of the affected countries has perpetuated a terrorist attack in the United States. It also notes it invited President Trump (or, more specifically, his attorneys) to provide evidence that the Executive Order was urgently needed to protect the country from terrorism, and that no such evidence was provided. President Trump chose instead to focus his arguments on how his Executive Order was unreviewable by the court, rather than how it would work to protect the country from terrorism. So President Trump lost on this point, but it was because he didn’t present evidence at all, rather than that he presented bad evidence.
The court also found that banning aliens from entering the country would hurt the aliens and their families and, by extension, the States. So the States were willing to bring forward evidence where President Trump wasn’t, and this worked out well for them.
On the last point (the public interest), the court made a few general remarks about how the public has a tremendous interest in its safety, but also in its right to travel freely. It did not go into depth, probably because this fourth point would not have been sufficient to justify setting aside the TRO in light of the President’s failure to make a convincing argument on the previous three points.
- Page 29: The court sets forth its official decision: it will not set aside the TRO.
The next step will be for the President to appeal the Ninth Circuit’s decision either to the entire Ninth Circuit (as opposed to the three-judge panel that issued this opinion) or to the U.S. Supreme Court. Alternatively, the President could accept the Ninth Circuit’s decision and return to the litigation in the district court. Or the President could draft an entirely new Executive Order that is less restrictive. For example, if a new executive order were to omit green card holders from a travel ban, it might be more likely to succeed in the courts.
It is worth remembering that the entire legal battle has, so far, been preliminary skirmishing. Even the U.S. Supreme Court’s decision here will be a preliminary skirmish. The parties have not yet actually briefed their positions fully and the district court has not yet ruled that the Executive Order is unconstitutional – or even that the States have standing to complain about the Executive Order at all.
Some legal professionals’ blog posts on the ruling: