The Ninth Circuit affirmed the lower court’s issuance of an injunction which stopped the travel ban. The travel ban has received enormous attention since it was issued Jan. 27. In its opinion, State of Washington, v. Trump, No.17-35105 (9th Cir. 2/9/2017), the court first explained that yes, Presidential directives regarding immigration are reviewable by the courts and have been since at least 1866. The President is entitled to latitude, especially regarding security issues. But, noted the court, the U.S. Supreme Court has reviewed the President’s directives regarding immigration during World War II, the Viet Nam War and during the Afghanistan War after 9/11.

The decision does not address the merits of the travel ban. The appeal concerns the judge’s stay of the travel ban. So, the issue is more about whether the proponent of the travel ban is likely to succeed, what sort of harm will follow if the injunction is overturned, and about the public interest. The court finds that the two states, Washington and Minnesota, are likely to prevail on the due process claim. The court also notes the “serious nature” of the religious discrimination claims. That sentence indicates that while the court is not ready to find the states are likely to prevail on the religious discrimination claims, it does not look good for the federal Government on that issue.

Due Process

“Due process” simply means the government must provide notice and an opportunity to be heard when depriving persons of their right to life, liberty or property. Not only has the federal Government not shown that there was notice before issuing the ban, it did not even contend that it provided notice to those persons who would be affected. The Government argued that “most” of the person affected by the travel ban had no rights to due process. But, noted the court, the due process clause of the U.S. Constitution applies to citizens and aliens alike. It applies to anyone within the U.S. borders. Due process applies to unlawful aliens regardless of how they arrived in the US. But, the court focused mostly on those immigrants who do have a legal right to be in the US. It noted that the Government did not show that aliens with a lawful right to be here were accorded an opportunity to challenge the ban as it applied to each lawful alien.

[It is fairly well known among constitutional lawyers that unlawful aliens have some minimal protections in the U.S. It is surprising that the Government’s lawyers would claim differently. That error does reflect the ad hoc and hurried nature of the travel ban. “Winging it” does not work well in lawsuits].

The court noted that soon after the ban was issued, the government issued new “guidance” from the White House Counsel that appeared to remove lawful aliens (i.e. those aliens with visas) from the travel ban. But, said the Ninth Circuit, the Government could not show that the White House Counsel has authority to supersede a prior issued Executive Order. Indeed, there is no guarantee that the White House Counsel’s guidance applies to other executive branches. And, added the court, even it the Government could show that lawful aliens have been removed from the effects of the ban, the states can show that unlawful aliens still enjoy due process protections.

[The court appears to engage in some mild sarcasm here. Of course, a lawyer’s “guidance” is nothing more than another legal interpretation. It has no binding effect. To truly remove lawful aliens from the effect of the travel ban, the White House could have issued a new Executive Order. This passage does suggest the White House either overlooked a critical portion of its case or simply thought it could bluff the court of appeals. It is never wise to try to bluff a court of appeals].

The Government argued that the lower court’s injunction is too broad. It should not apply to the entire country. But, replied the Ninth Circuit, there is caselaw finding that nation wide application is more efficient and it pointed to a recent injunction issued by a lower court in Texas regarding an Executive Order issued by Pres. Obama in 2014. And, added the court, it is not the court’s place to re-word an Executive Order.

Religious Discrimination

The Court also addressed the argument that the travel ban implements religious discrimination. The Executive Order specifically allows special consideration for persons in a  religious minority in the seven countries. The two states argued that this exemption was intended to favor Christians over Moslems. The two states pointed to many statements by Pres. Trump indicating he would ban Moslems from the U.S. There is ample caselaw finding that a court may consider intent when reviewing the religious establishment clause of the U.S. Constitution. The court simply concluded that “serious allegations” have been raised which present “significant constitutional questions.”

Public Interest

The court addressed the alleged security concerns. It found that despite repeated requests for evidence of security concerns emanating from the seven named countries, the Government has yet to produce such evidence. The court noted that instead of providing evidence of security issues from the seven countries, the Government simply argued that the courts cannot review its decision. In a footnote, the court noted that the Congress and the President identified these same seven countries as countries of concern in 2015 and 2016, But, no-one has explained how Congress and the President arrived at that description or the basis for that status. See decision here.

It does sound like the Government lawyers rushed this. I am surprised they could not present a better explanation for why they cannot provide evidence of security issues, other than simply telling the courts, “Don’t worry, we got this.” That never works with most judges I know. That is an obvious question to expect on appeal. Yet, the Government did not have a ready answer other than an answer that would cause offense. One must wonder if the administration has brought its “A” game to this lawsuit.

Yes, those many anti-Muslim comments by the President since 2016 do make a difference. His comments in 2017 matter. The judges did not discuss Pres. Trump’s attacks on the courts. But, I can attest that judges do not look kindly on persons who accuse them of making “political” decisions. Indeed, some judges will feel almost as if they must find against someone who accuses them of being political. Thats as an exceedingly unwise thing to say.