case law update

The Ninth Circuit Denies Emergency Stay of District Court Order on President Trump’s Travel Ban

Last week, the Ninth Circuit denied the Government’s motion to stay the district court’s order enjoining the nationwide enforcement of portions of Executive Order 13769. 

On January 27, 2017, President Donald J. Trump issued Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States.” Thousands of visas were immediately canceled, hundreds of travelers with visas were prevented from boarding airplanes bound for the United States or denied entry upon arrival, and some travelers were detained.

The Executive Order made several changes to the policies and procedures allowing non-citizens to enter the United States. In particular, section 3(c) suspends for 90 days the entry of aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen; section 5(a) suspends for 120 days the United Stated Refugee Admissions Program; section 5(b) directs the Secretary of State to prioritize refugee claims based on religious persecution when his or her religion is a minority religion in the country of his or her nationality; section 5(c) suspends indefinitely the entry of all Syrian refugees; and section 5(e) allows the Secretaries of State and Homeland Security to make case-by-case exceptions when in the “national interest,” including when a person is a religious minority in his or her country of nationality facing religious persecution. 

On January 30, 2017, the State of Washington filed suit in the U.S. District Court for the Western District of Washington, challenging sections 3(c), 5(a)-(c), and 5(e) of the Executive Order. Washington named the President, Secretaries of State and Homeland Security, and the United States as defendants.

Washington alleged that the Executive Order unconstitutionally and illegally stranded its residents abroad, split their families, restricted their travel, and damaged the State’s economy and public universities in violation of the First and Fifth Amendments, the Immigration and Nationality Act, the Foreign Affairs Reform and Restructuring Act, the Religious Freedom Restoration Act, and the Administrative Procedure Act. Washington also alleged the Executive Order was intended to be a “Muslim ban.”

Washington asked the district court to declare that the challenged sections were illegal and unconstitutional and to enjoin their enforcement nationwide. Washington also filed an emergency motion for a temporary restraining order (TRO) seeking to enjoin the enforcement of the challenged sections.

Two days later, Washington amended its complaints to add the State of Minnesota as a plaintiff and to add a claim under the Tenth Amendment. The States then filed an amended motion for a TRO.

After holding a hearing on the motion, the district court entered a written order granting the TRO on February 3, 2017. The district court enjoined and restrained the nationwide enforcement of sections 3(c) and 5(a)-(c) in their entirety. It also enjoined section 5(e) to the extent that it purports to prioritize refugee claims of certain religious minorities. The district court then denied the Government’s motion to stay the TRO.

The Government filed a notice of appeal the next day and sought an emergency stay of the district court’s order in the U.S. Court of Appeals for the Ninth Circuit, including an immediate stay that would allow the Government to continue enforcing the Executive Order while its emergency stay motion was being considered. The court of appeals denied the request for an immediate stay and set deadlines for the filing of responsive and reply briefs on the emergency stay motion.

Though a TRO is not typically appealable, the court of appeals found that the TRO possessed the qualities of an appealable preliminary injunction. The order had no expiration date and no hearing had yet been scheduled. The court found it apparent that the TRO would remain in effect longer than 14 days. Because the qualities of a preliminary injunction were present, the court of appeals had jurisdiction over the Government’s stay motion.

The Government first argued that the district court lacked subject matter jurisdiction because the States had no standing. The court of appeals disagreed, finding that the States had sufficient standing because they alleged harms to their proprietary interests traceable to the Executive Order, specifically, injury to their public universities. Further, the State’s injuries would be redressed if they could obtain the relief they asked for – a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement.

The Government next contended that the district court lacked authority to enjoin the Executive Order because the President has “unreviewable authority to suspend the admission of any class of aliens.” The court of appeals held that “[t]here is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.” Though courts pay deference to the political branches on matters of immigration and national security, neither the Ninth Circuit nor the Supreme Court has ever held that courts lack the authority to review executive actions for compliance with the Constitution.

The court of appeals then considered the Government’s motion to stay the district court’s order. The court made clear that a stay is not a matter of right. In determining whether a stay was proper, the court looked at 1) whether the Government made a strong showing that it is likely to succeed on the merits, 2) whether the Government will be irreparably injured absent a stay, 3) whether issuance of the stay would substantially injure the other parties interested in the proceeding, and 4) where the public interest lies. The court of appeals noted that the first two considerations are the most critical, and the Government failed to clear these steps. As such, the court found that the Government did not show that it was likely to succeed on appeal on its arguments regarding the States’ claims.

In particular, the Court noted that the Fifth Amendment prohibits the Government from depriving individuals of their “life, liberty, or property, without due process of law.” Due process requires “notice and a hearing prior to restricting an individual’s ability to travel.” The Government contended that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause. The court of appeals disagreed, finding that the Executive Order prohibits lawful permanent residents and visaholders from exercising constitutional right to travel abroad and re-enter the United States. The court noted that the protections of the Fifth Amendment are not limited to citizens, as they apply to all persons within the United States, including unlawful aliens.

The court noted that the TRO might by overbroad in some respects, and that there might be persons covered by the TRO who did not have due process rights, but it was not the court’s role “to try, in effect, to rewrite the Executive Order.” The court therefore found that the Government failed to provide notice and hearing required by the Due Process Clause. Thus, it would not be likely to succeed on the merits of the due process claim. The court reserved consideration on the Establishment and Equal Protection Clause claims until the merits of the appeal have been fully briefed.

The court of appeals also found that the Government had not shown that a stay is necessary to avoid irreparable injury. The Government’s contention that it suffered an institutional injury by the erosion of the separation of powers was not “irreparable” given that the full course of litigation may vindicate its interests. By contrast, the States offered ample evidence that the Executive Order would substantially injure the States because the travel prohibitions harmed the States’ university employees and students, separated families, and stranded its residents abroad.

Lastly, the court of appeals evaluated the public interest in having a need for a stay. It determined that aspects of the public interest favored both sides. On one hand, the public has a powerful interest in national security and the ability of a president to enact policies. On the other hand, the public has an interest in the free flow of travel, in avoiding separation of families, and in freedom from discrimination. The court of appeals determined that these competing interests did not justify a stay when considered among the hardships suffered by the States.

Therefore, the Ninth Circuit denied the Government’s emergency motion for a stay pending appeal.

Read the full case: Washington v. Trump 


This case law update was written by Michael J. Sgarlat, associate attorney, Shaw Bransford & Roth, P.C.

For thirty years, Shaw Bransford & Roth P.C. has provided superior representation on a wide range of federal employment law issues, from representing federal employees nationwide in administrative investigations, disciplinary and performance actions, and Bivens lawsuits, to handling security clearance adjudications and employment discrimination cases.

Posted in Case Law Update

Tags: immigration, executive order, michael j sgarlat, Donald Trump, national security


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