To: Clients and Friends of the Firm
Yesterday the 9th Circuit Court of Appeals upheld in all respects the national temporary restraining order (TRO) granted by US District Court in Washington State. This is a major victory in the litigation fighting the President’s Executive Order on immigration, but it is by its nature temporary. The TRO will remain in place for now while this particular litigation continues, allowing all affected individuals to travel for the time being. But our ability to advise clients effectively still is severely limited by the rapidly changing legal landscape and the uncertainty of next steps. We can expect additional court rules in this case and others and additional Executive Orders, and at this point we can’t predict what they will say.
Procedure – What Could Happen Next?
This 9th Circuit appeal came at the earliest moment in this lawsuit. The States of Washington and Minnesota sued the federal government and requested a preliminary injunction stopping enforcement of the Executive Order until the case is resolved, which could take a year or more unless the parties settle or the case is rendered moot by withdrawal of the Executive Order. The District Court issued an emergency TRO to last for a few days until the parties could prepare and conduct an evidentiary hearing regarding the merits of the States’ request for a preliminary injunction. The Trump administration appealed the emergency TRO. A panel of three judges from the 9th Circuit considered the case and declined to bar the emergency TRO. The parties had the opportunity and were encouraged to submit evidence to the 9th Circuit, for example to show that there is a significant and urgent threat of harm to the US by individuals from the listed countries. But no such evidence was submitted, not even under seal for review by the judges only.
So as it stands, the TRO was not defeated and it continues for a short time (usually a matter of days not weeks) so the District Court may conduct an evidentiary hearing and consider whether to grant a Preliminary Injunction for the duration of this law suit.
The Trump Administration could respond to the 9th Circuit’s decision in several ways:
They could focus on preparing for the impending hearing on a Preliminary Injunction in federal District Court in Washington State, and appeal if the District Court issues a Preliminary Injunction. The hearing would focus primarily on whether the federal government can prove (a) it has a strong likelihood of success in defending the Executive Order as the lawsuit continues and (b) the federal government (and public interest) would be irreparably harmed by a Preliminary Injunction during the lawsuit. The 9th Circuit found that the federal government didn’t prove these two points in their initial submissions in the appeal of the emergency TRO - but the parties hadn’t had the opportunity to conduct a full evidentiary hearing on this yet because the emergency TRO was appealed to the 9th Circuit before the hearing. Either side could appeal to the 9th Circuit (again) after a hearing on the Preliminary Injunction and presentation of evidence on these points.
The Trump Administration could ask the entire group of 9th Circuit judges to consider the TRO appeal again, hoping for a different decision from the full court than from the panel of three 9th Circuit judges. It would take a few days for the full 9th Circuit to rule on an appeal of an emergency TRO.
The Trump Administration could appeal the 9th Circuit decision on the emergency TRO to the US Supreme Court. Justice Kennedy is the US Supreme Court Justice assigned to the 9th Circuit, so Justice Kennedy would decide in the first instance how the case would proceed. Justice Kennedy could rule either way on the emergency TRO himself, and his decision could be appealed to the full Supreme Court, or he could refer the case to the entire Supreme Court right away. At present the Supreme Court is short a justice, with the approval of Justice Gorsuch pending before the US Senate, so review by the Supreme Court now could result in a 4-4 tie which would serve to uphold the 9th Circuit’s decision.
The Trump Administration could focus on one or more of the lawsuits filed in other federal district courts and work to obtain an appellate ruling in its favor in another US circuit court of appeal. If two or more US circuit courts issue inconsistent rulings, the Trump Administration would be in a better position for appeal to the US Supreme Court, and perhaps by then there would be a full panel of 9 judges at the US Supreme Court to avoid a tie.
The Trump Administration could withdraw the Executive Order and issue a new one better crafted to survive judicial challenge. This approach makes a lot of sense from a technical legal perspective but in effect requires the Trump Administration to concede that the first Executive Order was a failure.
Substance: What Did the 9th Circuit Judges Decide About Executive Orders?
The three 9th Circuit judges who ruled on the emergency TRO came to a unanimous decision. These judges each have significant prior experience with immigration cases and their 29-page decision cites extensive legal precedent from the federal courts. The decision states that the executive branch can’t abridge the right to travel without due process, and that due process protections extend to some types of individuals who are abroad and seek to enter the United States. The 9th Circuit relied on the due process claim and so didn’t reach the merits of the religious discrimination claim other than to say it’s clear that courts may consider the purpose and intent of a challenged law in reviewing a constitutional challenge, even if the law appears neutral (nondiscriminatory) as written. The decision states that the Executive Order stands on its own and must be considered on its face, and that subsequent memos or guidance issued by, for example, the White House Counsel interpreting the Executive Order (in this case, to state that permanent residents are not subject to it) do not amend the Executive Order to make it legally valid if it’s not valid on its face as issued. The decision says the federal government didn’t prove that the White House Counsel’s memo is binding on the government agencies responsible for immigration benefits and enforcement. The decision states that it’s not the judiciary’s role to re-write an Executive Order, and “the political branches [the Executive Branch and Congress] are far better equipped to make appropriate distinctions.”
So for now the TRO maintains the status quo for visas and travel before the Executive Order was issued. That said, the status quo allowed US authorities to screen travelers and visa applicants for security threats and exclude individuals from the US in the exercise of discretion, and that is still the case. Reports from the field indicate that individuals are experiencing higher scrutiny generally about country of origin and trips to countries not friendly with the US, even in domestic travel. Each individual should consider the risk of travel in light of their own background and travel history and exercise caution in this enforcement climate. Also the rules could change again without much notice. There is no assurance that the TRO will be replaced by a Preliminary Injunction. The Trump Administration could pursue another appeal or issue another Executive Order. This remains a rapidly changing situation that we will monitor as events unfold.