In the last blog post, we outlined the past refugee vetting process and provided a digestible, bulleted list of what the current Executive Order (EO) entails. A few days after the EO was pasted, several events happened that either changed or halted the path the EO was enforcing, all of which we will explain here.
The EO’s path to the 9th Circuit
A federal judge from Seattle, Judge James Robart, ordered a temporary restraining order on the entirety of the EO, halting it on a nationwide level. Judge Robart’s decision came as a response to the legal complaints lodge by the state of Washington and Minnesota. Their legal holding stated the EO brought serious harm to their states by not allowing certain doctors, professors, and workers entry and re-entry into their districts. Additionally, they claimed the EO violated certain constitutional protections such as due process (the Fifth Amendment), equal protection under the law for all people (the Fourteenth Amendment), and the EO sought to discriminate based on a religious preference.
To clarify, the complaints stated due process was violated on a procedural level when people were detained and not offered any legal counsel or a legal hearing. The states also argued this action violated equal protection under the law since only specific individuals were detained on an arbitrary basis. Judge Robart did not make a ruling on any of these matters; instead, he called for a halt on the EO while the case was heard to reduce unrest and potential harm to the parties of interest.
On the following Monday, February 6, the 9th Circuit Court of Appeals heard legal arguments from Wash., Minn., and the White House. The fluid changes of the EO resulted in an arbitrary execution of its provisions, but only if they showed the “right” passport. They asserted detaining individuals without reasonable cause of harm violates and habeus corpus (the right to a fair and timely trial of your peers). The states also asserted they had legal standing by not allowing those doctors and other class of employees mentioned before. Finally, the states claimed showing preference to certain religions violated the 1st Amendment by creating an established religion. Though the language of the EO did not strictly state a preference towards Christianity, President Trump promised to protect Christians above other religions on the campaign trial; Rudi Giuliani said he worked with the President to construct this promise in a way that would be legally permissible.
The White House argued the states did not have standing to bring this case to court. They argued the President has sweeping authority over immigration policy, making this EO exempt from judicial review, so the courts had no place to decide if this EO was in violated anything. In an odd turn of events, the White House counsel did not provide the court with any material evidence to support why they chose the 7 countries and not other countries of interest within the Middle East. Additionally, they stated the arguments of the states involving President Trump’s intentions and previous statements were inadmissible for this case. Within a matter of days, the 9th Circuit Court of Appeals published their ruling.
The ruling and reasoning
The court held in favor with the states, allowing the restraining order against the EO to stand. Before going forward, it should be noted the White House appealed the ruling, so the burden of proof rested on their shoulders. This means they had to substantially prove their arguments under strict judicial scrutiny.
Let’s break down exactly why the three appellate judges unanimously ruled this way.
First, the judges reasoned the states had standing due to how the EO impacted businesses, schools, and other necessary functions within communities; so, they were allowed to bring forth this case.
Second, they agreed continuing to allow the EO while this case makes its way up the judicial ladder to the Supreme Court that it could continue to cause further harm in these areas. The judges also reasoned they had the power to judicially review the EO, since this is a fundamental check and balance provided through the constitution, even if the president is allowed a high degree of latitude on the matter of immigration policy. Whether a court rules in favor with a President’s immigration policy once reviewing a case, this large power then comes into consideration. It does not however, bar a court from hearing a case.
Third, they agreed this EO violated due process for permanent residents and valid visa holders detained as a result of its signing. It also stated it violated due process by not providing enough notice, since it went into affect immediately following it’s signing. When the White House argued a court couldn’t look into the intentions of immigration policy, they cited Kleindienst v. Mandel, 408 U.S. 753 (1972). The court dissented the use of this case, since it refers to denying specific visa cases, no broad policies that impact entire immigration functions. Finally, it noted the continual change of implementation shows the government itself understood the original form of the EO, which was never officially redrafted and signed by the President, was in fact in violation of other standing laws and the constitution.
One final thing needs to be pointed out. The reduction on total immigration to an annual cap of 50,000 still stands, since this was not part of the material harm brought forth by Washington and Minnesota.
What happens now?
The White House continues to remain silent on whether it will appeal this ruling. The probable next step would be the Federal Court of Appeals, but the White House could also appeal right to the Supreme Court. With each passing day this seems rather unlikely, especially with recent comments from the President. On a recent flight down to Florida, President Trump promised to work with congress on federal statutes in place of the EO as well as another EO with a more finely tuned focus. We will continue to write articles on this topic.
Stay tuned for upcoming posts and interviews, and remember to call your Representatives and Senators.
Executive Order (with helpful annotations)
Hard Copy of the Court Ruling: