Ninth Circuit upholds order blocking Trump’s refugee & Muslim ban
The Ninth Circuit Court of Appeals last week unanimously upheld a ruling to block the implementation of President Donald Trump’s executive order banning refugees and individuals from seven predominantly Muslim countries from entering the United States.
The Ninth Circuit panel voted 3-0 in support of the temporary restraining order handed down by U.S. District Court Judge James Robart in Washington v. Trump.
Robart, who was appointed by President George W. Bush in 2004, ruled that the states of Washington and Minnesota would suffer irreparable harm if Trump’s Muslim and refugee travel ban were to continue, and he ordered the federal government to immediately stop enforcing Executive Order #13769.
The order, which Trump signed on Jan. 27th, banned entry into the United States all visa holders and even lawful permanent residents (green card holders) from seven predominately Muslim countries – Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. The order also blocked indefinitely the entry of Syrian refugees, and entry of refugees from other countries was suspended for 120 days. Furthermore, Section 5(e) of the order would allow immigration officials to favor Christian over Muslim refugees.
Trump, who attacked Robart on Twitter, immediately appealed to the Ninth Circuit for an emergency stay on Robart’s restraining order and allow the federal government to enforce the travel ban pending appeal.
However, the Ninth Circuit ruled against the Trump administration, noting 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.”
The appeals court judges agreed with the states of Washington and Minnesota that Trump’s executive order violates due process guaranteed by the Fifth Amendment of the Constitution – a protection applicable to lawful permanent residents and visa holders.
“Due process requires that lawful permanent residents and visa holders not be denied re-entry to the United States without ‘at minimum, notice and an opportunity to respond’. A resident denied re-entry must receive a ‘full and fair hearing of his claims’ and ‘a reasonable opportunity to present evidence on his behalf’,” the states argued in their filings. “The [Executive] Order’s denial of re-entry to all visa holders and lawful permanent residents from the impact countries, without an opportunity to be heard, violates these principles. The Order also deprives noncitizen resident of our states the right to travel, a constitutionally protected liberty interest.”
However, the judges did not rule on whether the states’ argument that the executive order violates the Constitution because it discriminates against Muslims. (The First Amendment guarantees freedom of religion and prohibits the government from discriminating against individuals on the basis of religion.)
The states, citing statements by Trump proclaiming his intention to impose a “Muslim ban”, argued that sections 5(b) and 5(e) of the executive order “explicitly distinguish members of religious faiths”, favoring Christian refugees over Muslims.
“President Trump has made clear that one purpose of the order is to favor Christian refugees at the expense of Muslims…[T]he countries chosen for the travel ban were chosen in part to disfavor Muslims,” according to the states’ filing.
The Trump administration denied the accusation of religious bias, insisting that the travel ban was imposed to prevent another attack like 9/11. The states countered the Trump administration’s 9/11 rationale by pointing out that the executive order “imposes no restrictions on people from the countries whose nationals carried out those attacks”. The terrorists who carried out the 9/11 attacks were nationals of Saudi Arabia, United Arab Emirates, Egypt, and Lebanon; visa holders and travelers from those four countries are not subject to travel restrictions under Trump’s order.
While the Ninth Circuit acknowledged that the states’ claims of religious discrimination “raise serious allegations and present significant constitutional questions”, the judges decided to “reserve consideration of these claims until the merits of this appeal have been fully briefed.”
Still, the appeals court ruled against the Trump administration on two important issues: (1) whether the states, in this case, Washington and Minnesota, have standing to sue the federal government; and (2) whether the judiciary has jurisdiction to review the constitutionality of an executive order on immigration.
On the first issue, the judges found that the states, which run public universities and medical institutions, did suffer damages due to the executive order. The states argued that Trump’s travel ban “harmed the States’ university employees and students, separated families, and stranded the States’ residents abroad.”
“These students and faculty [from the seven affected countries] cannot travel for research, academic collaboration, or for personal reasons, and their families abroad cannot visit. Some have been stranded outside the country, unable to return to the universities at all. The schools cannot consider attractive student candidates and cannot hire faculty from seven affected countries, which they have done in the past,” the court acknowledged, and the judges deemed these “substantial injuries and even irreparable harms” to Washington and Minnesota states.
And on the second issue, the court rejected the Trump administration’s arguments that “President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable”.
“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the court wrote, giving the Trump administration a brief civic lesson on the basic checks and balances of the three branches of government. “Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the ‘resolution of litigation challenging the constitutional authority of one of the three branches’…We are called upon to perform that duty in this case.”
In other words, the court does have jurisdiction to review the executive order on immigration because it is the responsibility of the courts to determine whether any laws passed by Congress or executive orders signed by the president violates the Constitution.
The judges also criticized the Trump administration for offering no evidence to rebut the states’ arguments or to justify the executive order’s purported “national security” aims.
“The Government has pointed to no evidence that any alien from any of the countries in the Order has perpetrated a terrorist attack in the United States. Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all. We disagree, as explained above,” the judges wrote.
“On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination,” according to the court ruling. “When considered alongside the hardships discussed above, these competing public interests do not justify a stay. For the foregoing reasons, the emergency motion for a stay pending appeal is denied.”