Tonight, the Ninth Circuit issued an unanimous ruling in State of Washington v. Trump rejecting the Trump Administration’s motion for an emergency stay of the District Court’s temporary injunction. That order by the District Court had the effect of halting enforcement of the President’s January 27 Executive Order suspending entry of aliens from seven specified countries into the United States. In prior posts here and here, I argued that the January 27 Executive Order violated statutory provisions such as the 1980 Refugee Act and also that the Order violated the United States Constitution by discriminating on the basis of religion in the entry of immigrants and non-immigrants.
Tonight’s ruling by the Ninth Circuit is necessarily limited by the procedural posture of the case. The court states at the outset:
To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay. (opinion at p. 3)
Despite this procedural posture, the opinion issued by the court goes out of its way to make several strong statements of law. First, the court firmly rejects the assertion of the Trump Administration that “the district court lacked authority to enjoin enforcement of the Executive Order because the President has ‘unreviewable authority to suspend the admission of any class of aliens.’ ” (opinion at p. 13). The court makes plain that prior precedent expressing judicial deference to the immigration policies of the political branches of the federal government – deference typically accorded to congressional policies on immigration and not to presidential actions such the Executive Order – does not mean that the actions of the political branches are beyond the scope of judicial review:
Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context. See Zadvydas v. Davis , 533 U.S. 678, 695 (2001) (emphasizing that the power of the political branches over immigration “is subject to important constitutional limitations”); Chadha, 462 U.S. at 940-41 (rejecting the argument that Congress has “unreviewable authority over the regulation of aliens,” and affirming that courts can review “whether Congress has chosen a constitutionally permissible means of implementing that power”). Our court has likewise made clear that “[a]lthough alienage classifications are closely connected to matters of foreign policy and national security,” courts “can and do review foreign policy arguments that are offered to justify legislative or executive action when constitutional rights are at stake.” American -Arab Anti-Discrimination Comm. v.Reno , 70 F.3d 1045, 1056 (9th Cir. 1995). (opinion at p. 14-15)
Second, the court’s ruling underscores the substantial likelihood that the affected aliens – both permanent residents already within the U.S. and also newly arriving aliens – have had their freedom to travel taken away without any opportunity to contest the deprivation. The State of Washington argued that the impact of the Order on the constitutional and statutory rights of the affected aliens violates procedural due process:
In the district court, the States argued that the Executive Order violates the procedural due process rights of various aliens in at least three independent ways. First, section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond. Second, section 3(c) prohibits certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in traveling abroad and thereafter re-entering the United States. Third, section 5 contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States. The district court held generally in the 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. (opinion at p. 20)
Unsurprisingly, the Ninth Circuit underscored that these constitutional protections of procedural due process could be asserted by aliens already admitted to lawful permanent residence in the United States (so-called “green card holders”):
The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis , 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling (sic) abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982). The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens. For example, the Government has failed to establish that lawful permanent residents have no due process rights when seeking to re-enter the United States. See id. (“[T]he returning resident alien is entitled as a matter of due process to a hearing on the charges underlying any attempt to exclude him.” (quoting Rosenberg v. Fleuti, 374 U.S. 449, 460 (1963))). Nor has the Government established that the Executive Order provides lawful permanent residents with constitutionally sufficient process to challenge their denial of re-entry. See id. at 35 (“[T]he courts must evaluate the particular circumstances and determine what procedures would satisfy the minimum requirements of due process on the re-entry of a permanent resident alien.”). (opinion at 20-21).
More interestingly, the court’s ruling included language supporting the ability of persons and institutions in the United States to assert a procedural due process right to notice and a hearing in cases involving the denial of entry of a family member or employee who has not been previously lawfully admitted into the United States (a matter of some debate under current precedent):
Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully, see Zadvydas , 533 U.S. 693; non-immigrant visaholders who have been in the United States but temporarily departed or wish to temporarily depart, see Landon, 459 U.S. 33-34; refugees, see 8 U.S.C. § 1231 note 8; and applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert, see Kerry v. Din, 135 S. Ct. 2128, 2139 (2015) (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting); Kleindienst v. Mandel, 408 U.S. 753, 762-65 (1972). Accordingly, 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. (opinion at p. 22-23)
Accordingly, the Ninth Circuit refused a request by the Trump Administration to limit the District Court’s restraining order to permanent resident aliens or aliens already present in the U.S. on a valid visa, which would have allowed the Administration to resume the entry ban as applied to arriving refugees.
Finally, the court’s ruling assiduously avoided expressing any view on the likelihood of success of the State of Washington’s claim that the Executive Order was an act of unconstitutional religious discrimination. The ruling made the following statement on the religious discrimination claims:
The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed. (opinion at p. 26).
However, in a clear rebuke to the Trump Administration, the Ninth Circuit gave a signal to the District Court that in the upcoming trial on the merits the State of Washington could introduce the anti-Muslim statements of President Trump as evidence on the religious discrimination claims:
The States argue that the Executive Order violates the Establishment and Equal Protection Clauses because it was intended to disfavor Muslims. In support of this argument, the States have offered evidence of numerous statements by the President about his intent to implement a “Muslim ban” as well as evidence they claim suggests that the Executive Order was intended to be that ban, including sections 5(b) and 5(e) of the Order. It is well established that evidence of purpose beyond the face of the challenged law may be considered in evaluating Establishment and Equal Protection Clause claims. See, e.g., Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993) (“The Free Exercise Clause, like the Establishment Clause, extends beyond facial discrimination. . . . Official action that targets religious conduct for distinctive treatment cannot be shielded by mere compliance with the requirement of facial neutrality.”); Larson, 456 U.S. at 254-55 (holding that a facially neutral statute violated the Establishment Clause in light of legislative history demonstrating an intent to apply regulations only to minority religions); Village of Arlington Heights v. Metro. Housing Dev. Corp., 429 U.S. 252, 266-68 (1977) (explaining that circumstantial evidence of intent, including the historical background of the decision and statements by decision makers, may be considered in evaluating whether a governmental action was motivated by a discriminatory purpose). (opinion at p. 25-26)
On the whole, the unanimous ruling of the three judge panel of the Ninth Circuit is a stunning repudiation of the Trump Administration’s arguments concerning the legality of the Executive Order.