4 Quick Thoughts on the 9th Circuit Order re: the Immigration EO

Marty already linked to the Ninth Circuit order affirming the temporary restraining order prohibiting the enforcement of Trump’s immigration Executive Order (EO).  Importantly, this is not a decision on the merits; it is merely a decision about whether or not to keep the stay in place.  (The case will now proceed to the merits in the district court.)  But the decision nonetheless provides insight into how at least 3 Ninth Circuit Court judges  are thinking about the issues.  While I’m sure others will have more to say in the coming days, here are four quick key take-aways:

First, the President’s power with respect to immigration is subject to substantial deference, but it is not unreviewable. The President cannot take steps that violate constitutional rights and protections, and he cannot shield executive action from all judicial review. This is not surprising.  When the executive shows disregard for the courts, the judiciary tends to react.  See, e.g., Boumediene v. Bush (cited repeatedly in the Ninth Circuit’s ruling).

Second, the Ninth Circuit emphasized that the due process rights covers all persons in the United States, including aliens.  It thus rejected the government’s fall-back suggestion that the EO be narrowed to exclude from its coverage legal permanent residents and “previously admitted aliens who are temporarily abroad or wish to travel and return to the United States in the future.”   As the Ninth Circuit noted, unlawfully present aliens, non-immigrant visa holders who have temporarily departed, and U.S. citizens and lawfully present aliens that seek to bring in spouses or family members all have at least some due process rights.  In the courts word’s, the EO, even if narrowed, is “not likely to succeed on its due process arguments in its appeal.”

Third, the court noted, without deciding, strong concern that the Order was intended to disfavor Muslims, thus potentially violating the Establishment and Equal Protection Clauses.  As the court noted, “[t]he States’ claims raise serious allegations and present significant constitutional questions.”

Fourth, the court expressed deep skepticism of the government’s claimed national security justification.  As the court noted, the government has presented “no evidence that any alien from any of the countries named in the Order has .perpetrated a terrorist attack in the United States.”   On the national security issues, it’s worth taking a look at this declaration – filed by 10 top national security officials spanning multiple administrations – as well.

Image: Wikimedia Commons

 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).