In view of the many appreciative messages I have received about my earlier attempts to explain what is going on in these proceedings,  in this blog I am summarizing the judgment given yesterday in the Ninth Circuit Court of Appeals on the US Government’s attempt to remove the stay placed on the President’s Executive Order which banned the entry into the United States of aliens from seven named countries with predominantly Muslim populations.  I am also Anglicising the language of parts of the judgment in deference to media criticism that I am perpetuating Yankee-speak… And with only two exceptions I have omitted all the copious references to decided case-law on the basis that they would not mean much to most readers outside the United States.

The full text of the judgment is accessible via the court’s website under the rubric “Published Order Denying Stay”.

It needs to be remembered that these proceedings are at a very early stage.  Indeed, Judge Robart’s Temporary Restraining Order (TRO) was only intended to hold the position for two weeks until the parties had had time to develop fully prepared arguments for the continuation of the effect of that order until a trial on the merits.  For that reason TROs are not normally susceptible to appeal in  higher court.

The three judges in the Court of Appeals gave their reasons for regarding this case as an exception to the normal rule, and much of their  judgment is concerned with other procedural points – a discussion whether the two States possessed the appropriate standing to bring these claims at all, and a discussion whether the courts possessed any power at all to review a Presidential Executive Order of this type.  This second issue called to mind Lord Atkin’s dissenting opinion in Liversedge v Anderson, and the way in which our courts overrode arguments of this kind in the ground-breaking case of Padfield v Minister of Agriculture in 1968.

After setting out the standard by which it would assess the appropriateness of continuing the stay, the Court of Appeals in essence relied on its finding that many of the people affected by the Order were being denied the due process promised to them by the Fifth Amendment to the US Constitution, and it believed that this proposition was likely to succeed at trial.

In this context it poured scorn on the idea that White House Counsel had any power to water down the effect of a Presidential Executive Order which had not been properly thought out.  This was a reference to his attempt to remove the effect of the ban on entry from aliens who were already lawful permanent residents of the United States.  Whereas Lewis Carroll’s Humpty Dumpty decided that a word meant what he intended it to mean, I am tempted to think that in this case Humpty Dumpty was delegating his power to White House Counsel.  As the court said, it was unclear how long this adjusted meaning was intended to last, or who was intended to be bound by it.  In any event, the due process clause also gave rights to aliens even if they were on US soil unlawfully.

Because the case could be won on this ground alone, the court found it did not have to rule on the argument that the ban was also unlawful because it discriminated against Muslims, and it found that there was nothing in either of the other factors it had to consider – a balancing of competing hardships and a consideration of where the public interest lay – to swing it back to a reinstatement of the effect of the ban.

A Summary of the judgment

The Court started its judgment by reciting the effect of the President’s Executive Order (EO):

• Section 3(c) suspends for 90 days the entry of aliens from seven countries: Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen.
• Section 5(a) suspends for 120 days the United States Refugee Admissions Programme. On the resumption of that programme, section 5(b) directs the Secretary of State to prioritise refugee claims based on religious persecution where a refugee’s religion is the minority religion in the country of his or her nationality.
• Section 5(c) suspends indefinitely the entry of all Syrian refugees.
• Sections 3(g) and 5(e) allow the Secretaries of State and Homeland Security to make case-by-case exceptions to these provisions “when in the national interest.”
• Section 5(e) states that situations that would be in the national interest include “when the person is a religious minority in his country of nationality facing religious persecution.”

The Order also requires the Secretaries of State and Homeland Security and the Director of National Intelligence to evaluate the United States’ visa, admission, and refugee programmes during the periods in which entry is suspended.

The court said that the impact of the EO was immediate and widespread. There were reports that thousands of visas were immediately cancelled, hundreds of travellers with such visas were prevented from boarding airplanes bound for the United States or denied entry on arrival, and some travellers were detained.

Three days later, on January 30, 2017, the State of Washington filed suit in the United States District Court for the Western District of Washington, challenging sections 3(c), 5(a)-(c), and 5(e) of the EO, naming as defendants the President, the Secretary of the Department of Homeland Security, the Secretary of State, and the United States (referred to, collectively, as “the Government”).  The State of Washington alleged that the EO unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the State’s economy and public universities in violation of the First and Fifth Amendments, the Immigration and Nationality Act, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act and the Administrative Procedure Act.

The State also alleged that the EO was not truly meant to protect against terror attacks by foreign nationals.  Instead, it was intended to enact a “Muslim ban”: the President had stated during his presidential campaign that he would introduce such a ban.

It therefore asked the district court to declare that the challenged sections of the EO were illegal and unconstitutional and to enjoin their enforcement nationwide. On the same day, the State filed an emergency motion for a temporary restraining order (TRO) seeking to enjoin the enforcement of sections 3(c), 5(a)-(c), and 5(e) of the EO. Two days later, its Complaint was amended to add the State of Minnesota as a plaintiff and to add a claim under the Tenth Amendment.  the States of Washington and Minnesota (“the States”) then jointly filed an amended motion for a TRO. The Government opposed the motion the next day, and the district court held a hearing the day after that (February 3 2017).

That evening, that court entered a written order granting the TRO. Its preliminary conclusion was that significant and ongoing harm was being inflicted on substantial numbers of people, to the detriment of the States, by means of an EO that the States were likely to be able to prove was unlawful. The court enjoined and restrained the nationwide enforcement of sections 3(c) and 5(a)-(c) in their entirety, and it enjoined section 5(e) to the extent that that section “purports to prioritise refugee claims of certain religious minorities,” and prohibited the government from “proceeding with any action that prioritises the refugee claims of certain religious minorities.” The court also directed the parties to propose a briefing schedule for the States’ request for a preliminary injunction and denied the Government’s motion to stay the TRO pending an emergency appeal.

The Government filed a notice of appeal the next day and sought an emergency stay in the Ninth Circuit Court of Appeals, including an immediate stay while its emergency stay motion was under consideration. After a brief oral hearing the three motion judges denied the request for an immediate stay and set deadlines for the filing of responsive and reply briefs on the emergency stay motion over the next two days. The Court also received many amicus curiae briefs in support of both the Government and the States. The motion was submitted after oral argument was conducted by telephone[1].

The structure of the judgment

The main part of the judgment is structured under seven headings:

Appellate jurisdiction

Standing

Reviewability of the Executive Order

Legal Standard

Likelihood of success -0 due process

likelihood of success – religious discrimination

The balance of hardships and the public interest

Appellate Jurisdiction

A TRO is not ordinarily appealable, and the States therefore argued that the Court lacked jurisdiction over the Government’s stay motion because the Government’s appeal was premature.   There did, however, exist a power in the Appeals Court to review an order styled as a TRO if it “possesses the qualities of a preliminary injunction.” This rule ordinarily required the would-be appellant to show that the TRO was strongly challenged in adversarial proceedings before the district court, and that it had been, or would remain in force for longer than the 14-day period identified in the relevant procedural rule.

The court was satisfied that in the extraordinary circumstances of this case the district court’s order did possess the qualities of an appealable preliminary injunction. The parties had vigorously contested the legal basis for the TRO in written briefs and oral arguments before the district court, whose order had no expiration date, and no further hearing had been scheduled. Although it had recently set out a timetable for the exchange of briefs on the States’ motion for a preliminary injunction, it was apparent from that timetable that the TRO would remain in effect for longer than 14 days.  In the light of the unusual circumstances of the case, in which the Government was arguing that emergency relief was necessary to support its efforts to prevent terrorism, the court believed that this period was long enough for the TRO to be considered to have the qualities of a reviewable preliminary injunction.

[I feel sure that the English Court of Appeal would have reached a similar conclusion. In a case that was gripping the attention of the whole world, it would have been regarded as an incredibly damp squib if the Appeals Court had simply declined jurisdiction on a very technical ground and had not been willing to address any of the arguments it had heard on the main issues.]

Standing

The court next addressed the Government’s argument that the district court lacked “subject matter jurisdiction” because the States had no standing to sue, and concluded that the States had made a sufficient showing to support standing, at least at this preliminary stage of the proceedings.

Article III (2) of the US Constitution allows federal courts to consider only “Cases” and “Controversies,” and the “gist of the question of standing” is whether the plaintiff has a sufficiently “personal stake in the outcome of the controversy” to ensure that the parties will be truly adverse and their legal representations sharpened. To establish Article III standing, a plaintiff must demonstrate

“that it has suffered a concrete and particularized injury that is either actual or imminent, that the injury is fairly traceable to the defendant, and that it is likely that a favourable decision will redress that injury.”

The States were arguing that the EO caused a concrete and particularised injury to their public universities, and, in particular, that the teaching and research missions of their universities were harmed by the effect of the Order on those members of their faculty and those students who were nationals of the seven affected countries. They could not travel for research or academic collaboration or for personal reasons, their families abroad could not visit, and some had been stranded outside the country, unable to return to the universities at all. The schools could not consider attractive student candidates from the seven affected countries and could not hire faculty  from them, which they had done in the past. The court had been given specific examples of these problems.

The court held that under the “third party standing” doctrine, these injuries to the state universities gave the States standing to assert the rights of the students, scholars, and faculty affected by the EO. The interests of the States’ universities were aligned with their students, the students’ educational success was “inextricably bound up” in the universities’ capacity to teach them, and the universities’ reputations depended on the success of their professors’ research. It followed that as the operators of state universities the States might assert not only their own rights, to the extent affected by the EO, but might also assert the rights of their students and faculty members.

In the circumstances the court did not have to consider an alternative standing theory based on the States’ ability to advance the interests of their citizens as parens patriae, or an argument as to whether the States possessed “Establishment clause rights” enabling them to bring claims based on those rights.

The court therefore therefore found that the States had alleged harms to their proprietary interests that was traceable to the EO, and it had no difficulty in concluding that their injuries would be redressed if they could obtain the relief they were asking for, namely a declaration that the Order violated the Constitution and an injunction barring its enforcement. The Government did not argue otherwise, and the court held for these reasons that the States possessed the necessary standing to bring their claims.

Reviewability of the Executive Order

The court next addressed the argument that the district court lacked authority to enjoin enforcement of the EO because the President has

“unreviewable authority to suspend the admission of any class of aliens.”

The Government was not simply relying on the uncontroversial principle that courts owed substantial deference to the immigration and national security policy determinations of the political branches. Instead, it had taken the position that the President’s decisions about immigration policy were unreviewable (particularly when motivated by national security concerns), even if those actions potentially contravened constitutional rights and protections. It even asserted that there would be a violation of the doctrine of separation of powers if the judiciary were to entertain a constitutional challenge like this to executive actions.

The court held that there was no precedent to support the unreviewability that was claimed.  Indeed, this contention ran contrary to the fundamental structure of the nation’s constitutional democracy.   Within the US system it was the role of the judiciary to interpret the law, a duty that would sometimes require the “resolution of litigation challenging the constitutional authority of one of the three branches.”

Although US jurisprudence had for a long time counselled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor this court had ever held that courts lacked the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court had repeatedly and explicitly rejected the notion that the political branches had unreviewable authority over immigration, or were not subject to the Constitution when policy-making in that context. And this court had likewise made clear that although alienage classifications were closely connected to matters of foreign policy and national security, courts could and did review foreign policy arguments that were offered to justify legislative or executive action when constitutional rights were at stake.

This was no less true when the challenged immigration action implicated national security concerns. In ex parte Quirin[2] the Supreme Court had stated that courts had a duty

“in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty”.

Federal courts routinely reviewed the constitutionality of actions taken by the executive to promote national security, and had done so even in times of conflict. As a plurality of the Supreme Court cautioned in Hamdi v. Rumsfeld[3]

“Whatever power the United States Constitution envisions for the Executive in its exchanges with other nations or with enemy organisations in times of conflict, it most assuredly envisions a role for all three branches when individual liberties are at stake.”

In short, although courts owed considerable deference to the President’s policy determinations with respect to immigration and national security, the court concluded that it was beyond question that the federal judiciary retained the authority to adjudicate constitutional challenges to executive action.

Legal Standard

The Government had moved to stay the district court’s order pending the appeal to this court. Three principles were to be applied:

• “A stay is not a matter of right, even if irreparable injury might otherwise result.”

• “It is instead ‘an exercise of judicial discretion,’ and ‘the propriety of its issue is dependent upon the circumstances of the particular case.’”

• “The party requesting a stay bears the burden of showing that the circumstances justify an exercise of that discretion.”

The court said its decision was guided by four questions:

“(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits;

(2) whether the applicant will be irreparably injured absent a stay;

(3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and

(4) where the public interest lies.” Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012) (quoting Nken, 556 U.S. at 434).

“The first two factors . . . are the most critical,” and the last two steps are reached “once an applicant satisfies the first two factors.”

The court concluded that the Government had failed to clear each of the first two critical steps, and it also concluded that the final two factors did not militate in favour of a stay. It emphasised, however, that its analysis was a preliminary one. Its only task was to decide whether the Government had made a strong showing of its likely success in this appeal and whether the district court’s TRO should be stayed in the light of the relative hardships and the public interest.

It concluded that the Government had not shown that it was likely to succeed on appeal, at any rate  on its arguments about the States’ Due Process Clause claim. It also noted the serious nature of the allegations the States had raised with respect to their religious discrimination claims.   It expressed no view as to any of the States’ other claims.

Likelihood of Success—Due Process

The court said that the Fifth Amendment of the US Constitution prohibited the Government from depriving individuals of their “life, liberty, or property, without due process of law.” The Government might not deprive a person of one of these protected interests without providing “notice and an opportunity to respond,” or, in other words, the opportunity to present reasons not to proceed with the deprivation and have them considered.

The Government had not shown that the EO provided what due process required, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, it did not contend that the Order provided for such process. Instead it argued that most or all of the individuals affected by the Order had no rights under the Due Process Clause.

In the district court, the States advanced its case in at least three independent ways.

• Section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visa-holders without constitutionally sufficient notice and an opportunity to respond.

• Section 3(c) prohibits certain lawful permanent residents and non-immigrant visa-holders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States.

• Section 5 contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States.

The district court had made a general finding when making its TRO that the States were likely to prevail on the merits of their due process claims without discussing or offering analysis as to any specific alleged violation. At this stage of the proceedings, it was the Government’s burden to make “a strong showing that [it] is likely to” prevail against the States’ procedural due process claims. The court was not persuaded that the Government had carried its burden for a stay pending appeal.

The procedural protections provided by the Fifth Amendment’s Due Process Clause were not limited to citizens. Rather, they “apply to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” These rights also apply to certain aliens attempting to reenter the United States after travelling abroad.

The Government had provided no affirmative argument showing that the States’ procedural due process claims failed as to these categories of aliens. For example, it had failed to establish that lawful permanent residents had no due process rights when seeking to re-enter the United States. Nor had it established that the Order provided lawful permanent residents with constitutionally sufficient process to challenge their denial of re-entry.

The Government had argued that, even if lawful permanent residents had due process rights, the States’ challenge to section 3(c) based on its application to lawful permanent residents was moot because several days after the Order was issued, White House counsel issued “authoritative guidance” stating that sections 3(c) and 3(e) of the Executive Order did not apply to lawful permanent residents. At this point, however, the court was unable to rely on the Government’s contention that the Order no longer applied to lawful permanent residents. It offered no authority that established that White House counsel was empowered to issue an amended order which superseded an Executive Order signed by the President, and that proposition seemed unlikely.

The Government had also not established that White House counsel’s interpretation of the EO was binding on all the executive branch officials responsible for enforcing it. He is not the President, and he is not known to be in the chain of command for any of the Executive Departments. Moreover, in the light of the Government’s shifting interpretations of the Order, the court was unable to say that his current interpretation, even if authoritative and binding, would persist beyond the immediate stage of these proceedings. On this record, therefore, the court was unable to conclude that the Government had shown that it was

“absolutely clear that the allegedly wrongful behaviour could not reasonably be expected to recur.”

Even if the claims based on the due process rights of lawful permanent residents were no longer part of the case, the States would continue to have potential claims regarding possible due process rights of other persons who were in the United States, even if unlawfully; non-immigrant visa-holders who had been in the United States but temporarily departed or wish to temporarily depart; and applicants who had a relationship with a US resident or an institution that might have rights of its own to assert.

Accordingly, the Government had not demonstrated that the States lacked viable claims based on the due process rights of persons who will suffer injuries to protected interests due to the EO.  Indeed, the existence of such persons was obvious.

The Government argued that, even if the States had shown that they would be likely to succeed on some of their procedural due process claims, the district court had nevertheless erred by issuing an “overbroad” TRO. In particular it argued that the TRO was overbroad in two independent respects:

(1) the TRO extends beyond lawful permanent residents, and covers aliens who cannot assert cognisable liberty interests in connection with travelling into and out of the United States, and

(2) it applies nationwide, and enjoins application of the EO outside Washington and Minnesota.

The court declined to modify the scope of the TRO in either respect.

The court refused to limit the scope of the TRO to lawful permanent residents and to the additional category more recently suggested by the Government –

“previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.”

This limitation on its face omitted aliens who were in the United States unlawfully, and those individuals had due process rights as well. It would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States. There might be people covered by the TRO who did not have viable due process claims, but the Government’s proposed revision left out at least some who do.

The court also refused to limit the geographic scope of the TRO, since the Fifth Circuit had held that such a fragmented immigration policy would run afoul of the constitutional and statutory requirement for uniform immigration law and policy.  At this stage of the litigation, the court considered that it did not need to reach such a legal conclusion for itself, but it could not say that the Government had established that a contrary view was likely to prevail. Moreover, even if limiting the geographic scope of the injunction would be desirable, the Government had not proposed a workable alternative form of the TRO that accounted for the nation’s multiple ports of entry and interconnected transit system and that would protect the proprietary interests of the States at issue in this case while nevertheless applying only within the States’ borders.

More generally, even if the TRO might be overbroad in some respects, it was not the court’s role to try, in effect, to rewrite the Order. The political branches were far better equipped to make appropriate distinctions. For now, it was enough for the court to conclude that the Government had failed to establish that it would be likely to succeed on its due process argument in this appeal.

Likelihood of Success—Religious Discrimination

The First Amendment prohibits any “law respecting an establishment of religion.” A law that has a religious, not secular, purpose violates that clause, as does one that “officially prefer[s] [one religious denomination] over another.” The Supreme Court has explained that this is because endorsement of a religion “sends the ancillary message to . . . non-adherents ‘that they are outsiders, not full members of the political community.’” The Equal Protection Clause likewise prohibits the Government from impermissibly discriminating among persons based on religion.

The court said that the States argued that the Executive Order violated the Establishment and Equal Protection Clauses because it was intended to disfavour Muslims. In support of this argument, the States offered evidence of numerous statements by the President about his intent to implement a “Muslim ban”, as well as evidence they claimed suggested that the EO was intended to be that ban, including sections 5(b) and 5(e) of the Order. It was well established that evidence of purpose beyond the face of the challenged law might be considered in evaluating Establishment and Equal Protection Clause claims.

The court said that the States’ claims raised serious allegations and presented significant constitutional questions. In the light of the sensitive interests involved, the pace of the current emergency proceedings, and the court’s conclusion that the Government had not met its burden of showing a likelihood of success on appeal on its arguments with respect to the due process claim, the court reserved consideration of these claims until the merits of this appeal had been fully briefed.

The Balance of Hardships and the Public Interest

The court said that the Government had not shown that a stay was necessary to avoid irreparable injury. Although it agreed that “the Government’s interest in combating terrorism is an urgent objective of the highest order”, the Government had done little more than reiterate that fact. Despite both courts’ repeated invitations to explain the urgent need for the EO to be placed immediately into effect, the Government had submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it had occupied for many previous years.

The Government had pointed to no evidence that any alien from any of the countries named in the Order had perpetrated a terrorist attack in the United States. Instead, it had taken the position that the court must not review its decision at all, a proposition with which the court did not agree. To the extent that the Government claimed that it had suffered an institutional injury by erosion of the separation of powers, that injury was not “irreparable.” It might yet pursue and vindicate its interests in the full course of the present litigation.

By contrast, the States had offered ample evidence that if the EO were reinstated even temporarily, it would substantially injure the States and multiple “other parties interested in the proceeding.” When the Order was in effect, the States contend that the travel prohibitions harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad. These were substantial injuries and even irreparable harms.

The Government had suggested that the Order’s discretionary waiver provisions were a sufficient safety valve for those who would suffer unnecessarily, but it had offered no explanation as to how these provisions would function in practice: how would the “national interest” be determined, who would make that determination, and when? In addition, as explained above, the Government had not otherwise explained how the Order could realistically be administered only in parts in such a way that the injuries listed above would be avoided.

Finally, in evaluating the need for a stay, the court had to consider the public interest generally. Aspects of the public interest favoured both sides, as evidenced by the massive attention the case had garnered at even the most preliminary stages. On the one hand, the public had a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also had an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. The court felt it did not need to characterise the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests did not justify a stay.

Conclusion

It was for these reasons the emergency motion for a stay pending appeal was denied.

 

[1] Two 30-minute sessions of oral argument were heard over the telephone between 3 pm and 4 pm last Monday (11 pm to midnight, UK time). The three judges were in Phoenix, San Francisco and Honolulu respectively: the Government’s advocate in Washington DC; and the States’ advocate in Seattle.

[2] 317 U.S. 1, 19 (1942)

[3] 542 U.S. 507, 536 (2004)