At 4:35 p.m. on February 9, 2017, President Trump tweeted: “SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” This unsurprising tweet responded to the Ninth Circuit Court of Appeals and its decision not to stay a temporary restraining order (TRO) issued by a federal district court. The TRO halted President Trump’s executive order, which bans immigration from several predominantly Muslim countries. The issues in this legal battle, Washington v. Trump, will surely attract future headlines as they travel through the judicial system.
The Ninth Circuit’s decision was based on several important holdings:
1. Courts can review a president’s executive orders. The Ninth Circuit rejected the federal government’s assertion that President Trump’s immigration policies, even those concerning national security, cannot be reviewed by courts. It stated this concept of unreviewability “runs contrary to the fundamental structure of our constitutional democracy.” The Ninth Circuit may have been more inclined to clarify this check on President Trump’s power due to his recent attacks aimed at their judicial integrity.
2. States have standing to challenge the executive order. A party has standing when it has a legal stake in the outcome of a case. The Ninth Circuit concluded Washington and Minnesota have standing in this case because universities in these states will suffer harm from the executive order. Students and faculty from countries subject to the immigration ban cannot travel for academic or personal reasons, universities cannot attract students and faculties from these countries, and some students and faculty will be stranded and unable to re-enter the United States.
3. The federal government will not likely win its appeal. The Ninth Circuit concluded the district court properly issued the TRO in light of the state’s due process claims. It held the federal government had not demonstrated “the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel.” The Ninth Circuit pointed out that due process rights extend to persons within the United States, including aliens, regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” It also cited precedent that extended due process rights to re-entry of permanent resident aliens.
4. The federal government has not established resulting harm from the TRO. The Ninth Circuit focused on the fact that the government did not claim noncitizens from the seven countries had committed terrorist attacks against the United States. On the other hand, the Washington and Minnesota were able to show harm to their public universities as a result of the executive order, as explained above.
5. While there is a strong public interest in national security, there is also a strong interest in free flow of travel, avoiding separation of families, and in freedom from discrimination. The Ninth Circuit weighed these two competing interests, and it concluded the stay President Trump requested was not justified in light of potential national security harms.
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