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The “Travel Ban” Executive Order: Today’s Decision by the Ninth Circuit, and Beyond

On January 27, 2017, the President issued an Executive Order (EO) titled “Protecting the Nation From Foreign Terrorist Entry Into the United States.”  The EO does many things, including suspending entry to the United States of persons from Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen.  The EO also suspends the entry of all refugees to the United States.

On February 3, 2017, a federal judge in Seattle issued a temporary restraining order (TRO) of the EO, with nationwide coverage.  As its name suggests, the TRO is temporary, not permanent.  The case remains pending in the Seattle court.

The federal government appealed the TRO to the Ninth Circuit Court of Appeals.  A three-judge panel heard the appeal.  One of the judges was appointed by President Jimmy Carter, a Democrat.  One of the judges was appointed by President George W. Bush, a Republican.  And one of the judges was appointed by President Barack Obama, a Democrat.

Today, the 9th Circuit issued a unanimous decision, rejecting the federal government’s arguments, and leaving the TRO in place.

The 9th Circuit concluded that it has jurisdiction, or legal authority, to hear the appeal.

The 9th Circuit concluded that the states of Washington and Minnesota have “standing” in this case.  This means that the 9th Circuit concluded that the states basically have a legal basis to present their claim, because the travel ban harms interests that are important to the states, especially the abilities of certain persons to enter the United States to teach and do research in state universities.

The 9th Circuit concluded that the courts have the authority to review the legality of the EO.

The 9th Circuit stated that in order for the federal government to win the appeal, it must show (mainly) two things:  (1) that the federal government is likely to succeed in the main arguments of the case when it returns to the district court for further review; and (2) that the federal government will be “irreparably injured” if the TRO remains in place.

The 9th Circuit spent most of the decision on whether the federal government is likely to succeed on the merits of the case, and focused on the Due Process Clause of the Constitution.  The Due Process Clause states that the government may not deprive individuals of their life, liberty, or property, without due process of law.  The 9th Circuit stated that the government can’t take away these rights without giving affected persons “the opportunity to present reasons not to proceed with the deprivation and have them considered.”

The federal government agrees that the EO does not provide affected persons with any opportunity to contest the ban.  The federal government’s argument is that the persons affected by the EO don’t have any rights under the Due Process Clause of the Constitution.

The 9th Circuit rejected the federal government’s argument. The 9th Circuit stated that the Due Process Clause is not limited to U.S. citizens.  Citing a 2001 case from the U.S. Supreme Court, Zadvydas v. Davis, 533 U.S. 678, 693 (2001), the 9th Circuit stated that the Due Process Clause “applies to all persons within the United States, including aliens, regardless of whether their presence here is lawful, unlawful, temporary, or permanent.”  The 9th Circuit further stated that these rights “also apply to certain aliens attempting to reenter the United States after traveling abroad,” citing another case from the U.S. Supreme Court, Landon v. Plasencia, 459 U.S. 21, 33-34 (1982).

The 9th Circuit summarized the arguments of Washington and Minnesota regarding the assertion that the EO discriminates on persons on the basis of religion, in violation of the First Amendment of the Constitution, which prohibits any law respecting an establishment of relation.  The 9th Circuit decided not to base today’s decision on the religious discrimination argument.

The 9th Circuit, in a unanimous decision, denied the federal government’s request to suspend the TRO.  This means that the judge’s order suspending the EO remains in place for now.

It is unclear what the White House will do now.  The White House could decide to appeal this decision to the U.S. Supreme Court.  At this time, the Supreme Court has 8 justices.  If the Supreme Court ends up in a 4-4 tie, then the 9th Circuit’s decision will remain in place, which would mean that the EO would remain suspended.

It is important to remember that today’s 9th Circuit decision is only about whether the TRO – the temporary restraining order – should remain in place.  The case, at some point, will likely return to the federal district court in Seattle for a more thorough set of arguments about the legality of the EO.

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