Thursday, February 9, 2017

Putting the 9th Circuit's Decision Concerning Trump's Travel Restrictions into Perspective

On the evening of February 9, 2017, the U.S. Court of Appeals for the Ninth Circuit issued an order denying the Government’s motion for a stay of a temporary restraining order from a U.S. District Court in Washington State preventing the Government from enforcing an executive order signed by President Trump which put a temporary halt to the admission of refugees, and to the admission of aliens from seven countries which have been deemed to be a danger to national security.  The case is entitled, The State of Washington, et al. v. Donald Trump, et al.

Immediately, both sides took to the airwaves and to the Internet attempting to turn the decision into a bigger deal than it really is.  Both sides have an incentive to engage in a publicity war and court public opinion.  The opponents of the executive order have an interest in giving the impression that this decision is a major victory against the Trump Administration.  Likewise, the proponents have an interest in creating a public perception that the judiciary needs to be reigned in with more favorable presidential appointees.

In this publicity battle, it is important to keep the 9th Circuit’s decision in perspective, and consider what it is that the Court did and didn’t do.

This is not a decision on the ultimate merits of the executive order.  That is, the 9th Circuit did not find conclusively that the executive order was unconstitutional.  The sole issue before the Court was whether the temporary restraining order (TRO) should remain in place while the case is pending for a decision on the merits before the U.S. District Court.

A TRO is meant solely to maintain the status quo while a case is pending.  That is, where there is an allegation that an action is illegal and that the action will cause irreparable harm, a TRO is meant to prevent one side from engaging in that act until the court can decide the merits of the case.  When a TRO is granted, a party can seek a stay from an appellate court.  That is, the party can go to a higher court, and argue that the TRO should not be enforced because the TRO will cause that party harm pending litigation.

With that perspective in mind, it is important to note that the 9th Circuit itself recognized that its decision was only preliminary, and issued at a very early stage in the litigation, before a full record could be created on the merits.  Nonetheless, the 9th Circuit’s decision did make some very important points.

First, the 9th Circuit determined that the states of Washington and Minnesota had standing to establish the lawsuit.  U.S. federal courts do not issue advisory opinions.  That is, federal courts will not weigh in on whether an act by Congress or the President is constitutional in the abstract without there being a case or controversy.  To have a case or controversy, some party must suffer some harm because of the act.

In this instance, the Court recognized that state run colleges were branches of the state governments.  State run colleges have an interest in presenting a quality educational program, which includes foreign students, professors and lecturers.  Indeed, the state schools act as the petitioner in student visas.  Many of the students, professors and lecturers found themselves aggrieved by executive order, as they could not travel abroad and return, or they could not enter the United States to be part of the school’s program.  Therefore, the states, through state-run schools, presented a case or controversy.

Second, the 9th Circuit ruled that the Executive Branch’s actions in the area of national security were not entirely unreviewable by the courts.  If an Executive action in the area of national security affected individual rights protected by the Constitution, that action could be reviewed by the courts.

Next, the Court addressed the elements necessary for granting a stay.  In doing so, the Court considered:  (1) the likelihood of success on the merits; (2) would the party suffer irreparable harm absent the stay; (3) whether a stay would cause substantial injury to other interested parties; and (4) where the public interest lies.  The Court found that the Federal Government’s showing on the first two factors was lacking.

When considering the likelihood of success on the merits, it is important to remember that decisions concerning a stay are issued at an early stage of the litigation.  The appellate court recognizes that the record has not been fully developed.  And thus it should not be taken as an authoritative sign that one party will ultimately prevail.

Nonetheless, the 9th Circuit did find that the executive order deprived certain parties of the constitutional right to due process before an interest can be taken away from the government.  Due process requires, at a very minimum, a party with a protected interest must have the right to notice and an opportunity to be heard.  The executive order made no provisions for notice and opportunity.  Therefore, to the extent that a party had a protected interest, the Federal Government could not carry its burden that the state governments’ arguments would necessarily fail.

The Court noted that the right to due process is not limited to citizens, but rather applies to all persons within the United States (whether present legally or illegally), as well as to certain persons seeking re-entry into the United States.

Specifically, permanent residents have an interest in traveling and re-entering the United States.  Likewise, those who have been issued non-immigrant visas (these are visas allowing a person entry for a temporary time for example to work or go to school) have an interest in having that visa honored and being permitted entry into the United States.  Before infringing on those interests, permanent residents and visa holders must be given notice of the Government’s intent and an opportunity to be heard.

In this regard, the Court found that statements made by White House counsel to the effect that the executive order would not affect permanent residents was not sufficient.  Interpretations by White House counsel are not authoritatively binding.

The Court declined to narrow the impact of the TRO, either in terms of who the TRO covered or the fact that the TRO was national in scope.  The Court stated that the Federal Government had not offered an alternative set of people that the TRO would cover that would include all persons with a protected interest.  Additionally, uniformity of enforcement with respect to immigration issues was desirable on a national level.

Concerning the argument that the executive order infringed on religious rights, the 9th Circuit merely stated that it was too early in the litigation to make such a determination.

Finally, with respect to the balancing of hardships and the public interest, the Court found that while the Federal Government has an interest in combatting terrorism, the Government had not shown an immediate need to implement the order.  Specifically, there was no showing that any alien from one of the seven countries had perpetrated an attack against the United States. This was in contrast to the substantial injury that persons with protected interests would suffer if the travel restrictions remained in place. Regarding the discretionary waiver provisions of the executive order, the Federal Government offered no explanation as to how they would function.

There is much in this decision that is useful to the immigration law practitioner.  Specifically, the recognition of a protected interest in those who already hold permanent residency or visas to re-entry to the United States, and the requirement that such interests cannot be infringed upon without due process is helpful.  Likewise, the recognition that the Federal Government cannot shield its actions from judicial review merely by claiming it is a matter of national security is in line with prior Supreme Court precedent.

But it should be noted that the case is far from over.  Litigation over the merits, wherein both sides will better develop the factual record and their arguments, continues at the U.S. District Court level.  After that, there would still be an opportunity for an appeal to the 9th Circuit and potentially the Supreme Court.  It may take a long time before the case is ultimately decided.

By:  William J. Kovatch, Jr.

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