By Pam Martens and Russ Martens: February 9, 2017
At 3:08 p.m. Pacific time, the Ninth Circuit Court of Appeals issued a 29-page decision on President Donald Trump’s Executive Order regarding banning immigration to the United States for 120 days and banning people from seven majority Muslim countries from entering the United States for 90 days.
The Court found that the States of Washington and Minnesota, which had taken their case to a lower Federal District Court and won a Temporary Restraining Order, did indeed suffer harms from the Executive Order. The Court wrote:
“We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise.”
On the government’s assertion that Trump’s Executive Order was non-reviewable by a Court, the Ninth Circuit stridently voiced the opposite opinion, writing:
“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. See Boumediene v. Bush, 553 U.S. 723, 765 (2008) (rejecting the idea that, even by congressional statute, Congress and the Executive could eliminate federal court habeas jurisdiction over enemy combatants, because the ‘political branches’ lack ‘the power to switch the Constitution on or off at will’). 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.”
The Ninth Circuit also agreed with the States that the government had produced no evidence that an irreparable harm was imminent, writing:
“The Government has not shown that a stay is necessary to avoid irreparable injury. Nken, 556 U.S. at 434. Although we agree that ‘the Government’s interest in combating terrorism is an urgent objective of the highest order,’ Holder v. Humanitarian Law Project, 561 U.S. 1, 28 (2010), the Government has done little more than reiterate that fact. Despite the district court’s and our own repeated invitations to explain the urgent need for the Executive Order to be placed immediately into effect, the Government 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.
“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 Court went on to indicate that it believed the States of Washington and Minnesota had presented convincing evidence of harm, writing:
“By contrast, the States have offered ample evidence that if the Executive Order were reinstated even temporarily, it would substantially injure the States and multiple ‘other parties interested in the proceeding.” Nken, 556 U.S. at 434 (quoting Hilton v. Braunskill, 481 U.S. 770, 776 (1987)). 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. See Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (‘It is well established that the deprivation of constitutional rights ‘unquestionably constitutes irreparable injury.’ (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976))).”
The lower Federal Court’s blocking of Trump’s Executive Order from being implemented will thus remain in effect and that case will continue under a previous briefing schedule.