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Update: Ninth Circuit Unanimously Upholds Temporary Restraining Order on Executive Order

Update: Ninth Circuit Unanimously Upholds Temporary Restraining Order on Executive Order

On February 9, a panel of three judges from the Ninth Circuit unanimously upheld the district court decision issuing a temporary restraining order (TRO) on President Trump’s controversial Executive Order (EO) which imposes temporary restrictions on entry to the United States (U.S.) for refugees as well as individuals from seven countries. (For background on the President’s Executive Order, please refer to previous blog posts here, here, and here.) For now, the President’s Executive Order will remain blocked.

The decision addressed a couple of major issues. First, it found that the states of Washington and Minnesota had standing to sue on behalf of their public universities, which would suffer irreparable harm as a result of the travel restrictions. The court did not address whether the states had standing to sue on behalf of their citizens, which was a legal argument made by the states in the motions and hearings leading to the decision. Second, the court held that the Government had not presented sufficient evidence to justify overturning the lower court’s decision to stay the EO. In relevant part, the decision states;

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.

While the Ninth Circuit decision did not rule on the legality or constitutionality of the order, in determining the likelihood of success on the merits of the case, the Court made the following points:

  • While the courts generally defer to the President when it comes to issues of immigration policy and national security, the courts have the authority to review constitutional challenges to executive action. The executive branch does not have unfettered and unreviewable authority in this regard.
  • Certain classes of foreign nationals, which certainly include lawful permanent residents, have cognizable rights under the Constitution.
  • Constitutional rights cannot be taken away without due process of law.

The Court also seemed to suggest that aspects of the EO could be upheld if constructed in a different way. (For example, if the EO were revised to exclude lawful permanent residents from its scope.)

What’s next?

Today’s decision was limited to whether the TRO should remain in effect. The Government may still appeal the decision, and it is also possible that a new EO that is more limited in scope could be executed by the President. No court has made a decision as to the constitutionality or legality of the order, which will only happen after a full evidentiary hearing. The fight is far from over.  

What does this mean?

For now, refugees and foreign nationals from the restricted countries may continue to seek admission to the United States, but anticipate additional screening. Please remember to consult with an attorney before making international travel plans due to the potential for possible changes.