Temporary Restraining Order on Travel Ban Executive Order Upheld: Ninth Circuit

Practical Law Legal Update w-005-9418 (Approx. 8 pages)

Temporary Restraining Order on Travel Ban Executive Order Upheld: Ninth Circuit

by Practical Law Labor & Employment

The Ninth Circuit Had Appellate Jurisdiction over the Government's Stay Motion

The Ninth Circuit:

Held that it had jurisdiction over the government's stay motion.
Noted that while a TRO is not normally appealable, the court may review an order styled as a TRO if it "possesses the qualities of a preliminary injunction." The appellant must show that the TRO:
- was strongly challenged in adversarial proceedings before the district court; and
- that it has or will remain in force for longer than the 14-day period identified in Federal Rule of Civil Procedure (FRCP) 65(b).
Found that the TRO possessed the qualities of an appealable preliminary injunction. Specifically:
- the parties vigorously contested the TRO's legal basis; and
- it was apparent that the TRO would remain in effect for more than 14 days.

Washington and Minnesota Had Standing to Sue

The Ninth Circuit:

Held that the courts had subject matter jurisdiction in this matter because Washington and Minnesota had standing to sue.
Noted that:
- to establish standing under Article III of the US Constitution, the plaintiff must show that it suffered actual or imminent injury that is "traceable to the defendant, and that it is likely that a favorable decision will redress that injury" (Massachusetts v. EPA, 549 U.S. 497, 517 (2007));
- the "third party standing" doctrine allows standing when third party interests are "inextricably bound up with the activity the litigant wishes to pursue" (see Singleton v. Wulff, 428 U.S. 106, 114-16 (1976)); and
- schools have been allowed to assert rights of their students (see Runyon v. McCrary, 427 U.S. 160, 175 & n.13 (1976)).

The Ninth Circuit found that:

Under the "third party standing" doctrine, the injuries to the state universities gave the states standing to assert the rights of its students, scholars, and faculty affected by the EO.
Teaching and research missions of the universities were harmed by the EO's effect on their faculty and on students who were nationals of the seven affected countries, particularly the inability for these students and faculty to travel for research, academic collaboration, or personal reasons.
The states' injuries would be redressed if they got the relief sought: a declaration that the EO violated the Constitution and an injunction barring its enforcement.

The Government's EO was Reviewable

The government argued that the President has unreviewable authority to suspend the admission of any class of foreign nationals. The Ninth Circuit:

Held that:
- the government does not have unreviewable authority on immigration matters; and
- the federal judiciary retains authority to adjudicate constitutional challenges to executive action.
Noted that:
- the courts owe substantial deference to the immigration and national security determinations of the political branches (Cardenas v. United States, 826 F.3d 1164, 1169 (9th Cir. 2016));
- no precedent exists to support the theory that the President has unreviewable authority in his decisions and actions concerning immigration policy, and that such a claim is contrary to the fundamental structure of constitutional democracy (Boumediene v. Bush, 553 U.S. 723, 765 (2008));
- the judicial branch's role is to interpret the law, sometimes requiring it to resolve litigation "challenging the constitutional authority of one of the three branches" (Zivotofsky ex rel. Zivotofsky v. Clinton, 566 U.S. 189, 196 (2012));
- the US Supreme Court has repeatedly rejected the political branches having unreviewable authority on immigration matters (see Zadvydas v. Davis, 533 U.S. 678, 695 (2001)); and
- courts have power to review the political branches' actions regarding national security, even in times of war (Alperin v. Vatican Bank, 410 F.3d 532, 559 n.17 (9th Cir. 2005); Holder v. Humanitarian Law Project, 561 U.S. 1, 33-34 (2010)).
Found that:
- the district and circuit courts in this matter had authority to enjoin enforcement of the President's EO; and
- Kleindienst v. Mandel, raised by the government to emphasize that the courts "will not look behind" the President's discretion concerning immigration, was distinguishable from the instant matter, since Mandel's standard applied to the decision to issue or deny an individual visa, not the President's authority to institute "sweeping immigration policy" (408 U.S. 753 (1972)).

Stay of the District Court's TRO Denied

Addressing the government's motion to stay the district court's TRO pending the appeal of the order, the Ninth Circuit's decision was guided by the following:

Whether the stay applicant has made a strong showing of likely success on the merits.
Whether the applicant will be irreparably injured absent a stay.
Whether the stay's issuance will substantially injure the other parties interested in the proceeding.
Where the public interest lies.
(Lair v. Bullock, 697 F.3d 1200, 1203 (9th Cir. 2012).)

In its preliminary analysis, the Ninth Circuit held that:

The government failed to meet the first two steps.
The final two factors did not favor a stay of the TRO.

Likelihood of the Applicant's Success: Due Process

The Ninth Circuit noted that:

Under the Fifth Amendment of the Constitution, the government may not deprive individuals of "life, liberty, or property, without due process of law" (U.S. Const. amend. V).
The government may not deprive someone of these protected interests without providing him the opportunity to present reasons for why the interests should not be denied (United States v. Raya-Vaca, 771 F.3d 1195, 1204 (9th Cir. 2014)).
Due Process Clause protections apply to citizens as well as foreign nationals in the US:
- regardless of whether their presence is "lawful, unlawful, temporary, or permanent" (Zadvydas, 533 U.S. at 693); and
- attempting to reenter the US after travelling abroad (Landon v. Plasencia, 459 U.S. 21, 33-34 (1982)).

The Ninth Circuit found that:

The government did not:
- meet its burden of showing that it was likely to prevail against the procedural due process claims;
- show that the President's EO provided the required due process such as notice and a hearing before restricting an individual's ability to travel;
- establish that the EO provides lawful permanent residents with constitutionally sufficient process to challenge their denial of re-entry; or
- demonstrate that the states lacked viable claims based on the due process rights of people who will suffer injury to protected interests due to the EO.
The court found it could not rely on:
- the government's contention that the EO no longer applied to lawful permanent residents; or
- the White House counsel's interpretation of the EO being binding on all executive branch officials.

Addressing the government's claims that the TRO was overbroad, the Ninth Circuit:

Because limiting the TRO's scope could limit the due process rights of individuals entitled to those rights, declined to limit the TRO's substantive scope, as suggested by the government, to:
- lawful permanent residents; and
- "previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future."
Declined to limit the TRO's geographic scope, noting that:
- the Fifth Circuit has held that a fragmented immigration policy would conflict with the requirement for uniform immigration law and policy (Texas v. United States, 809 F.3d 134, 187-88 (5th Cir. 2015), aff'd by an equally divided Court, 136 S. Ct. 2271 (2016));
- the Ninth Circuit did not need to reach a legal conclusion on the issue, but determined that the government had not established a contrary view to the Fifth Circuit's conclusion that was likely to prevail; and
- the government proposed no workable alternative to the TRO that would account for the nuances of US ports, transit systems, and states' proprietary interests while applying only within state borders.
Stated that it is not the court's job to rewrite an allegedly overbroad EO.

Likelihood of the Applicant's Success: Religious Discrimination

The states argued that the EO also violated the Establishment and Equal Protection Clauses because it was intended to discriminate against Muslims.

The Ninth Circuit:

Reserved consideration of the states' arguments that the EO violated the Establishment and Equal Protection Clauses.
Noted that:
- the First Amendment prohibits a "law respecting an establishment of religion" (U.S. Const. amend. I.); and
- it is well established that in evaluating Establishment and Equal Protection Clause claims, evidence of purpose beyond the face of the challenged law may be considered (see Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 534 (1993)).

Balancing Hardship and Public Interest

The Ninth Circuit held that:

The government did not show that a stay was necessary to avoid irreparable injury, as it failed to:
- do more than reiterate the fact that battling terrorism is an urgent objective; and
- rebut the states' argument that the TRO simply returned the US temporarily to the position it occupied for many years.
Considered alongside hardships caused by the EO, public interest favoring the EO did not justify the stay.

The Ninth Circuit found that:

The government:
- presented no evidence of an foreign national from one of the seven countries named in the EO perpetrating a terrorist attack in the US; and
- erred when arguing that it suffered irreparable institutional injury in the form of the erosion of the separation of powers. The Ninth Circuit noted that the Fifth Circuit stated that it is "the resolution of the case on the merits, not whether the injunction is stayed pending appeal, that will affect those principles" (Texas v. United States, 787 F.3d 733, 767-68 (5th Cir. 2015)).
Although the countries named in the EO were recently identified as countries of concern, the government offered no evidence as to how those concerns justified the current urgency for the immediate reinstatement of the EO.
While courts do not have the same access to classified threat information as the government, the government may present classified information to the court and did not do so.
The states offered considerable evidence that temporary reinstatement of the EO would substantially injure and irreparably harm the states and other parties interested in the proceeding.
The government provided no explanation of how the EO's discretionary waiver provisions:
- offer sufficient safety to those who unnecessarily suffer; or
- would actually function in practice.
Public interest favors both sides, as the public has significant interest in:
- national security and the president's ability to enact policy; and
- the free flow of travel, freedom from discrimination, and avoiding the separation of families.

Practical Implications

Based on the Ninth Circuit's decision, the EO's travel ban and refugee program limitations remain barred. For more information, see Legal Update, Temporary Restraining Order Halts President's Travel Ban and Refugee Program Limits, Appeal Initiated by Administration.

It is unclear how the Administration will proceed from the Ninth Circuit's decision. It may:

Appeal this decision to the US Supreme Court.
Appeal to the full Ninth Circuit for en banc review of this decision.
Seek to prevent a preliminary injunction at the district court.
Draft a new EO with requirements that may avoid constitutional challenge.
Seek an act of congress that may avoid constitutional challenge.

Practical Law will continue to provide updates on the state of this EO.

Temporary Restraining Order on Travel Ban Executive Order Upheld: Ninth Circuit | Practical Law