How the Ninth Circuit will consider the immigration ban case today
Three federal judges will hear arguments at 6 p.m. EST today that could decide the immediate fate of President Donald Trump’s executive order on immigration related to refugees and immigrants. Here’s a brief explanation of what to expect.
Attorneys from the Justice Department and Washington state will each have 30 minutes to present their cases to the three judges: Senior Judge William C. Canby Jr. (in Phoenix), Senior Judge Richard Clifton (in Honolulu) and Judge Michelle Taryn Friedland (in San Francisco).
The call will be live streamed on the Court’s website at the following link: http://www.ca9.uscourts.gov/media/view_video.php?pk_vid=0000010884
At issue is the executive order signed by President Trump on January 27 directing federal agencies to issue a 90-day suspension of entry into the United States for citizens of Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen. The order also bars entry of all refugees into the United States for 120 days, and it bars Syrian refugees indefinitely.
The executive order cited the President’s power under the Immigration and Nationality Act (or INA) to deny “immigrant and nonimmigrant entry into the United States of aliens from countries referred to in [the INA] that would be detrimental to the interests of the United States.”
Federal Judge James Robart, based in Seattle, was one of several federal judges to order a temporary stop to parts of the order from going into effect. The order halted the 90-day suspension of immigrants from seven Mideast nations with Muslim majorities; the 120-day suspension of admission of foreign nationals seeking refugee status; any action by the government that favored people who follow a religious faith that is a minority in the designated Mideast nations; case-by-case decisions about which individuals of a minority faith are to be admitted; and the indefinite delay of admission of any refugees from Syria.
Judge Robart issued the temporary restraining order (or TRO) until he could weigh further arguments, but he made it clear that he had serious doubts about the constitutionality of the executive order. This weekend, the Ninth Circuit Court of Appeals let Robart’s temporary order remain in place until it could consider detailed arguments from the administration and the states about the TRO. Those arguments have been filed with the court.
The Justice Department is expected to argue that Robart’s TRO, which it is calling an injunction, is too broad and it goes against the President’s powers, as granted to him by Congress, as “a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees.”
The Justice Department in its brief also claims that states can’t sue over the denial of entry into the United States of third-party aliens and that visa holders outside of the United States can’t sue if they are denied visas. The attorneys also say the order doesn’t target immigrants based on their religion, and if the temporary stay remains in place, it should be limited to “previously admitted aliens.”
The state of Washington in its brief believes that the executive order’s effect is unorderly. “Defendants now ask this Court to unleash chaos again by staying the district court order,” the brief claims. It cites Trump’s campaign promises to ban Muslims from the United States, the economic impact on Washington state brought by the executive order, and harm brought to the state’s system of public universities as causing the need for Judge Robart’s order.
Washington state is also arguing that Robart’s action should be considered a TRO, and not an injunction, which would send the case back to Robart’s court until an injunction hearing occurs. It also says “that courts have both the right and the duty to examine Defendants’ true motives”; that the Justice Department’s defense of the order will fail on constitutional due process, equal process and religious discrimination grounds; and that the Justice Department is incorrectly interpreting the Immigration and Nationality Act as a source of presidential power.
It is unknown how quickly the three appeals judges will act after considering the arguments. But legal experts believe that regardless of how the decision is made, it will wind up at the Supreme Court.
Justice Anthony Kennedy handles appeals from the Ninth Circuit and he would likely forward the case to the eight-Justice Supreme Court to consider. Given that the current Supreme Court is divided on ideological grounds in some cases, the winning side in the Ninth Circuit could have an advantage at the Supreme Court, since lower court decisions stand if the Court ties in a 4-4 vote.
Scott Bomboy is the editor in chief of the National Constitution Center.
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