Yesterday the Ninth Circuit protected the constitution that is the basis for our country’s democracy against an administration that seems to scoff at all constitutional limitations on its power. The Court rejected the administration's appeal of a temporary restraining order (TRO) blocking Trump’s “Muslim Ban” Executive Order (now restyled as a “travel ban” on residents from certain countries, which all just happen to be majority-Muslim). The concise but eloquently written opinion is here.
Most importantly, the Court thoroughly debunked the administration’s astonishing assertion that the President has “unreviewable authority” when it comes to immigration policy. (Slip Op. at 13). “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the Court held. The Court cited the Supreme Court’s holding in Boumediene v. Bush, 553 U.S. 723, 765 (2008), that the “political branches” lack “the power to switch the Constitution on or off at will.”
As the Ninth Circuit explained: “Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches.’ Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012) (quoting INS v. Chadha, 462 U.S. 919, 943 (1983)). We are called upon to perform that duty in this case.” Slip Op. at 14. Both Chadha and Zadvydas v. Davis, 533 U.S. 678, 695 (2001) made clear that the “political branches” (congress and the executive) have powers over immigration but that these are restricted by important constitutional limitations – among others, those raised with the Muslim Ban, including Due Process, the Establishment Clause, and the Equal Protection Clause.
As the Ninth Circuit held, this is “no less true when the challenged immigration action implicates national security concerns.” Slip. Op. at 16, citing, inter alia, Ex Parte Quirin, 317 U.S. 1, 19 (1942) (stating that courts have a duty, “in time of war as well as in time of peace, to preserve unimpaired the constitutional safeguards of civil liberty”). The Court wrote that the Government’s “authority and expertise in [such] matters do not automatically trump [pun intended?] the Court’s own obligation to secure the protection that the Constitution grants to individuals,” even in times of war. Slip Op. at 17, citing, inter alia, Holder v. Humanitarian Law Project, 561 U.S. 1, 34 (2010).
Ultimately, the Court rightly held that “although courts owe considerable deference to the President’s policy determinations with respect to immigration and national security, it is beyond question that the federal judiciary retains the authority to adjudicate constitutional challenges to executive action.” Slip Op. at 18.
Adjudicating the Trump administration’s effort to overturn the District Court in Seattle’s TRO against the Muslim Ban, the Ninth Circuit focused on whether Trump is likely to succeed in overcoming Due Process and other challenges to the Ban, finding that Trump’s Executive Order is likely to be an unconstitutional loser. Slip Op. at 19. The administration asserted – again, showing utter disregard for the foundational document of our republic – that those affected by the Ban have no Due Process rights (i.e., notice and a hearing prior to restricting an individual’s ability to travel). Slip Op. at 19-20. On the contrary, though, the Ninth Circuit held that procedural protections of the Fifth Amendment’s Due Process Clause “are not limited to citizens” but apply to all “persons” within the United States, “including aliens” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Slip Op. at 20, citing Zadvydas, 533 U.S. at 693.
The administration disingenuously pretended that the TRO was moot because, several days after Trump issued the Muslim Ban Executive Order, he had to backtrack with his White House counsel (McGahn) and issue “Authoritative Guidance” saying it was not meant to apply to lawful permanent residents. The Ninth Circuit did not buy it, stating, “[W]e cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents.” Slip Op. at 21. Aside from the fact that White House counsel has no authority to contravene, interpret, or change an Executive Oder, “in light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings.” Slip Op. at 21. In other words – even if the Court had the ability to believe the administration saying it would implement the Ban in some less offensive manner, why would anyone believe anything this administration says?
The administration’s attorneys did not do themselves any favors with their hollow arguments to the Ninth Circuit. For example, the administration sought to argue that the states had no standing to challenge the Muslim Ban, when, of course, the states are impacted in innumerable ways by the Ban, e.g., that the Ban directly impacted numerous public universities' students’ ability to pursue studies and research, and harmed their families as well. Slip Op. at 12. As another example, the administration argued that Kleindienst v. Mandel, 408 U.S. 753 (1972) precluded the Court from reviewing the President on an immigration-related issue by misquoting the opinion, which related only to denial of an individual visa, rather than a nationwide immigration policy. Slip Op. at 15
Most significantly, as to the administration’s flimsy arguments, the Ninth Circuit found:
-that “the Government has not demonstrated that the States lack viable claims based on the due process rights of persons who will suffer injuries to protected interests due to the Executive Order. Indeed, the existence of such persons is obvious.” Slip Op. at 22-23.
- that the administration “submitted no evidence to rebut the States’ argument that the district court’s order merely returned the nation temporarily to the position it has occupied for many previous years….The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” Slip Op. at 26. And
- in providing no evidence to support its Muslim Ban, the administration asserted that “’[u]nlike the President, courts do not have access to classified information about the threat posed by terrorist organizations operating in particular nations, the efforts of those organizations to infiltrate the United States, or gaps in the vetting process.’ But the Government may provide a court with classified information. Courts regularly receive classified information under seal and maintain its confidentiality. Regulations and rules have long been in place for that.” Slip Op. at 27 n. 8.
The Court rested on the likely violation of Due Process so did not need to decide on the likely outcome with respect to the Muslim Ban’s unlawful preference for some religions over others or violations of Muslims’ constitutional rights. Slip Op. at 26. However, significantly, the Ninth Circuit did note “evidence of numerous statements by the President about his intent to implement a ‘Muslim ban’ as well as evidence [the plaintiff states] claim suggests that the Executive Order was intended to be that ban,” and held that “evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims.” Slip Op. at 25. In other words, when the challenged Ban is fully and finally considered, the administration will not be given a free pass on its new spin on the Ban (that it is not a “Muslim Ban”). Also see Saturday Night Live’s spoof on the administration running away from the “Muslim Ban” here.
Despite its understandable decision not to confront yet the obvious religious discrimination perpetrated by Trump’s Muslim Ban, the Ninth Circuit did not ignore the human impact of the unlawful Executive Order. As the Court explained, “When the Executive 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 are substantial injuries and even irreparable harms.” Slip Op. at 28.
Ultimately, the Ninth Circuit’s decision has preserved our integrity as a nation and stands as a bulwark in defense of the constitution. Because of the Ninth Circuit’s decision, we can look ourselves in the mirror as Americans and not feel like a nation of bigots and hypocrites. Let us pray that more courts have the courage to follow the Ninth Circuit’s lead in the days, months, and years ahead, facing down this administration's march toward tyranny.