As many observers predicted, the Ninth Circuit Court of Appeals has rejected the Justice Department’s attempt to overrule District Court Judge James Robart’s suspension of the Trump administration’s travel ban. But it was a bit of a surprise that the three-court panel — including George W. Bush appointee Richard Clifton, who gave counsel for the states opposing the government’s plea a hard time during oral arguments — ruled unanimously, and rejected so many of the government’s arguments that it augers poorly for Team Trump’s ability to revive the travel ban later on.
In the key section of the ruling, the judges concluded:
To rule on the Government’s motion, we must consider several factors, including whether the Government has shown that it is likely to succeed on the merits of its appeal, the degree of hardship caused by a stay or its denial, and the public interest in granting or denying a stay. We assess those factors in light of the limited evidence put forward by both parties at this very preliminary stage and are mindful that our analysis of the hardships and public interest in this case involves particularly sensitive and weighty concerns on both sides. Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.
In its discussion of the states’ due process argument, the Ninth Circuit panel categorically rejected the government’s claim that the president’s immigration and national security powers preclude intervention by the courts:
[T]he Government has taken the position that the President’s decisions about immigration policy, particularly when motivated by national security concerns, are unreviewable, even if those actions potentially contravene constitutional rights and protections. The Government indeed asserts that it violates separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.
There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.
Those are pretty strong words for a Per Curiam ruling on a procedural motion, and will probably get the attention of Donald J. Trump, who has already tweeted one of what could be many harsh comments in response:
(Somebody should probably talk to the President about the inadvisability of SHOUTING WITH ALL CAPS.)
The judges also rejected the Justice Department’s claim that the travel ban should be immediately enforced with respect to non-resident aliens who cannot assert U.S. constitutional rights, holding that some resident aliens who can get into U.S. courts would be affected, and that citizens of the two states challenging the order could be affected indirectly as well.
Finally, while the order did not entirely reject the government’s claims that the order did not violate Establishment Clause and equal protection provisions prohibiting religious discrimination, it did not accept them either, deferring the issue until it is weighed by Judge Robart, who issued the order putting the ban on hold. He will now get to proceed with his own deliberations, unless higher powers intervene.
It is likely the Justice Department will now petition the Supreme Court to grant the stay against Judge Robart’s order that the Ninth Circuit just denied. It would take five justices to grant the stay, and in the present eight-justice SCOTUS, the four liberal members are not very likely to jump in at this point. But the lawyering will continue, and at this point those affected by the travel ban can, well, travel — but with an eye on the news.