Thoughts on the Ninth Circuit’s Ruling on Trump’s Executive Order

The Ninth Circuit issued a per curiam decision denying the federal government’s request to stay the Temporary Restraining Order, which halted enforcement of President Trump’s Executive Order. The opinion was very narrow and did not address the underlying merits. Thoughts below, full opinion here.

Unsurprisingly, the Ninth Circuit strongly rebuked the federal government’s claim that the Executive Order was unreviewable. And–quite understandably–seized the opportunity to utter statements such as this claim “runs contrary to the fundamental structure of our constitutional democracy.”

The rest of the opinion contained very narrow findings. The explanations surrounding those narrow findings contained some interesting points that could be issues as the litigation proceeds, including:

  1. Can the states bring these claims? The Ninth Circuit was careful in its wording on the standing argument; twice couching their findings with the qualifier that the States’ showing of standing was good enough at this very preliminary stage. The Court’s analysis of standing itself was a bit confusing. The Court declined to even address the States’ argument that it had standing based on their ability to advance the interests of their citizens as parens patraie. Instead, the Court simply found the harm to public universities sufficed to show standing (at this preliminary stage).  According to the Court, the Executive Order’s effects harmed the teaching and researching missions of the public universities and the third party standing doctrine allowed the schools to assert the rights  of students, scholars, and faculty affected by the Order. As the case progresses, this explanation is likely too vague to withstand exacting scrutiny. The Justices can be notorious sticklers when it comes to standing limitations and these limitations are more difficult to clear where the plaintiff is not herself the object of the government action. (See e.g., Lujan v. Defenders of Wildlife). But, the States did indicate at oral argument they intend to submit more evidence supporting standing at the preliminary injunction hearing. As the litigants have more time to flesh out their cases, standing could be clearly established for all the claims or be found wanting as to some of the claims.
  2. Which individuals affected by the Executive Order are entitled to due process? The Court found the federal government failed to establish a likelihood it would prevail against the States’ due process claims (at this stage of proceedings). In doing so, the Court made two pronouncements concerning due process. First, the Court declared the Due Process Clause protects all persons in the U.S. (whether lawful, unlawful, or temporary) and certain aliens attempting to reenter the United States after travelling abroad. The Court cited to Supreme Court language construing due process rights for lawful permanent resident aliens, but did not explicitly specify which aliens fell within this category. Second, the Court identified five categories of individuals for whom the states could have “potential claims regarding possible due process rights….” These included: (a) lawful permanent residents, (b) individuals in the United States (even if unlawfully), (c) non-immigrant visa holders who have been in the United States but temporarily departed or wish to temporarily depart, (d) refugees, and (e) applicants who have a relationship with a U.S. resident or an institution that might have rights of its own to assert. This list indicates potential trouble for the States. Individuals unlawfully in the U.S. have due process rights, but it is unclear how those rights are implicated by this Executive Order. What cognizable interest of those unlawfully in the United States is implicated by an Executive Order prohibiting entry into the United States? As to non-immigrant visa holders, the government indicates this merely permits the individual to travel to a U.S. port of entry and request permission to enter, it does not entitle the holder to entry into the U.S. (click here). It seems plausible that a court could apply a bitter-with-sweet approach, finding these individuals accepted  the benefit of a visa and must accept the restrictions on that benefit. The fifth class cited by the Court includes applicants who have a relationship with a U.S. institution who might have rights of its own. This class is somewhat bizarre. It seems rather novel that the rights of an institution could somehow bestow constitutional due process rights on non-U.S. citizens outside the United States.
  3. What impact will the Executive Order’s purpose play in the religious discrimination claims? The Court was particularly cryptic on the religious discrimination issue, noting that the States’ claims “raised serious allegations and presented significant constitutional questions.” But, the Court demurred on the substantive aspects, only indicating that evidence beyond the face of the challenged law to show the law’s purpose may be considered in evaluating  the Establishment and Equal Protection Clause claims.
  4. What impact will the President’s discretionary authority have? Apart from acknowledging that “courts owe considerable deference to the President’s policy determinations with respect to immigration and national security,” the Court did not provide much analysis on executive power. There was no mention of the statutory battle over the Immigration and Nationality Act, a provision of which authorizes the President to suspend entries into the U.S. for national interests. Also, during oral argument, Judge Clifton asked the States to differentiate between their case and the President’s ability to halt immigration from other countries, including past instances where the President has actually done so. If the States want to prevail, they will need to develop a satisfying answer as to why the President generally has the power to halt immigration, but cannot exercise it in this specific manner.
  5. Did the Ninth Circuit believe the Executive Order was constitutionally defective? On one ancillary issue, the breadth of the Temporary Restraining Order,  the Ninth Circuit levied a somewhat unfair slight to the federal government that indicates the answer is yes. The federal government had argued the TRO was overbroad and requested the terms be narrowed to only those individuals involved in the suit. The Ninth Circuit acknowledged “[t]here might be persons covered by the TRO who do not have viable due process claims,” but declined the request. The Court pronounced it was not their job to rewrite the Executive Order and provided a citation for the principle courts could decline to rewrite a statute to eliminate constitutional defects. The refusal to fashion language that would allow the Executive Order to be enforced against anyone coupled with the tone of that rejection could indicate the Court believed the Order was constitutionally deficient. It was also a bit unfair. The federal government was not asking the Executive Order be rewritten, but that the TRO-a federal judicial order under the Court’s purview-be more narrowly tailored. In the alternative, the refusal could simply be because this was a highly visible public case being heard on an emergency basis. The federal government’s requested language was not adequate and the Court did not have time to draft its own revision of the TRO.

Next up will likely be the preliminary injunction proceedings in the district court, unless the federal government appeals this denial.









Argument Preview: Trump’s Executive Order on immigration

The Ninth Circuit will hear oral argument in the motion to stay the Temporary Restraining Order pending appeal in the case involving Trump’s Executive Order on February 7 at 3pm PST. Below is a summary of the issues involved in this motion.

President Trump issued an Executive Order on January 27, 2017 that prohibited certain immigrants from entering the United States. The states of Washington and Minnesota quickly filed suit challenging this Order, asserting 10 claims. Six were statutory, based on the Immigration and Nationality Act, Foreign Affairs and Reform Act, Religious Freedom Restoration Act, and the Administrative Procedure Act. The other four were constitutional claims, including an Equal Protection and Due Process claim under the Fifth Amendment, an Establishment Clause claim under the First Amendment, and a Tenth Amendment claim.

The Washington District Court entered a Temporary Restraining Order that halted enforcement of 5 of the Executive Order’s provisions nationwide. These five provisions included: (1) the 90-day suspension of entry into the U.S. for immigrants and non-immigrants of countries Congress identified as having higher associated risks with terrorism, (2) the 120-day suspension of the U.S. Refugee Admissions program, (3) the prioritization of refugee claims on the basis of religious persecution where the religion was a minority religion in the individual’s country once the refugee program resumed, (4) the indefinite suspension of Syrian refugees until sufficient changes ensured their admission was within the national interests, and (5) the provision permitting case-by-case exemptions to the 90-day suspension to the extent it prioritizes refugee claims of certain religious minorities.

The federal government has filed a motion to the Ninth Circuit Court of appeals asking the Temporary Restraining Order be stayed pending appeal. The federal government and states have filed motions arguing this issue (states’ response and federal government’s reply), as well as many interested parties filing amicus briefs (available here).

The motion to stay involves three central issues-jurisdiction, likelihood of success on the merits, and harm from the TRO.

1. Is there jurisdiction for the Ninth Circuit to hear an appeal of the TRO?

The states argue that this is a temporary restraining order, which normally is not appealable. The federal government, however, argues that this temporary restraining order should be treated like an interlocutory appeal of a preliminary injunction, which is appealable. In support, the federal government the adversarial hearing where both sides strongly contested the issue and the TRO’s indefinite length exceeds the ordinary duration of a TRO. The states contend this construction is untenable due to the TRO explicitly contemplating deciding the preliminary injunction. The states  suggested waiting for the preliminary injunction hearing, which would allow for full briefing and evidence.

2. Does the federal government have a high likelihood of success on the merits?

Three issues are contained within this question.

First, do the states have standing to assert these claims. The states have asserted two bases for standing-harm to proprietary interests and quasi-sovereign interests. The proprietary interests arise from students and faculty of their public institutions being prevented from travelling. The federal government argues this harm is too speculative and hypothetical to be a concrete injury. But, the states assert the government’s argument relies on speculative remedies to ameliorate real harms. The prospect the Order’s waiver provisions may allow faculty and students to return does not negate evidence that they have actually been prevented from traveling. As to the quasi-sovereign interests, the states claim precedent supports their ability to sue on behalf of their citizens and because of lost tax revenue. The federal government disagrees.

Second, how to interpret the Immigration and Nationality Act. Should the law’s anti-discrimination provision be read as a limit on the President’s ability to suspend entries or should the two provisions be read as applying to discrete steps in the immigration process (issuing visas vs. controlling entries). The states argue that the Executive Order singling out nationalities and religions runs afoul of the anti-discrimination provision. The federal government rebuts this by arguing the anti-discrimination provision only applies to issuing visas and does not limit the President’s power to halt entries into the United States.

Third, is the Executive Order constitutional. The federal government argues the President used express statutory authority to temporarily suspend a class of aliens from entering the US to permit an orderly review and revision of screening procedures to ensure that adequate standards are in place to protect against terrorist attacks. Its argument heavily relies on notions of executive power, including implications that this decision is immune from judicial review, and claims that the law is facially neutral as to religions. The states argue courts can, and have, reviewed immigration and national security cases, plus this Executive Order displays a discriminatory animus towards Muslims.

The other question concerning constitutionality is the class of individuals impacted by the Order. The federal government claims that lawful permanent residents are not included in the order, thus drastically narrowing or eliminating the due process concerns that may otherwise be triggered. The state, however, argues that the government has taken a “dizzying” amount of positions on this point, but the claims are not moot given that the text of the Order remains the same (i.e., the government could decide to enforce it against lawful permanent residents again in the future).

3. Will the federal government suffer irreparable harm?

The government identifies four harms it will suffer if the TRO remains in place; (1) it contravenes the considered national security judgment of the President, (2) harm from barring enforcement in a manner that intrudes on separation of powers, (3) harm from thwarting the legal effect of the public’s chosen representative, and (4) clouding the legal and factual distinction between non-resident aliens’ present status as inadmissible aliens not lawfully present in the U.S. and their desired status as aliens who were lawfully admitted to this country. The states counter that the district court correctly determined separating families, stranding university student and faculty members, and barring travel represented an immediate, irreparable harm. The TRO merely maintained the status quo, preserving against a sudden disruption that is often in the interests of all.

The federal government also suggests that at most, the injunction should be limited to those previously admitted aliens who are temporarily abroad now or who wish to travel and return to the U.S. in the future.

*Oral argument will take place at 3 pm PST, a live stream is available at this link.

Hunch vs. Inference-Fifth Circuit clarifies in finding an illegal stop

In United States v. Monsivais, the Fifth Circuit found that an officer’s conclusion of criminal suspicion must be based on an impermissible intuitive sense or feeling when that conclusion does not include an articulable connection to the facts. Since there was no articulable connection between the officers’ suspicion of Mr. Monsivais and the facts, Mr. Monsivais’s seizure violated the Fourth Amendment

The Seizure

Officers spotted Mr. Monsivais walking away from a disabled truck on a Texas highway. After pulling over to perform a welfare check, the officers spoke with Mr. Monsivais for about four minutes. At that point, the officer informed Mr. Monsivais he was going to pat him down for weapons “because of his behavior” and “for officer safety reasons.” Because a reasonable person would not feel free to simply walk away when confronted with  this assertion of authority, a seizure occurred.

The Fourth Amendment Violation

Officers would be permitted to briefly detain Mr. Monsivais for investigative purposes if they could point to “specific and articulable facts” that gave rise to a reasonable suspicion that Mr. Monsivais had committed, was committing, or was about to commit a crime.

The government identified three facts to support reasonable suspicion of Mr. Monsivais. During the four minute interaction prior to the seizure, (1) after the officers had stopped and turned on the car’s flashing lights Mr. Monsivais kept walking past and away from the squad car, (2) Mr. Monsivais was confusing as to where he had been and allegedly gave an inconsistent statement about where he was heading, and (3) he kept putting his hands in his pockets and exhibited a jittery demeanor. The Fifth Circuit found none of these facts suggested criminal activities wither inherently or contextually.

The government instead attempted to put an ominous gloss over almost entirely normal behavior. Being nervous around police is an entirely normal reaction. And, although most might welcome police following a vehicle malfunction, the Constitution does not mandate enthusiastically embracing law enforcement during car troubles. As to the veracity of Mr. Monsivais’s statements, the record was unclear. Mr. Monsivais was walking in a direction opposite to where the disabled vehicle was pointing, but he could have merely been looking for gasoline in that direction or understood the officer’s inquiry  as referring to his immediate rather than ultimate destination.

Even viewed in their totality, the Court could discern no objectively logical path from the three specified facts to criminal activities. What separates a reasonable inference of criminality from a hunch of criminality is articulating how criminal behavior is linked to objective facts. The officers had no such articulation, so the Court concluded the suspicion arose from an impermissible hunch rather a reasonable inference.

Dissenting View

Circuit Judge Edith Jones dissented from this decision, believing the officers had the requisite reasonable suspicion. The dissent principally centered around a differing interpretation of the facts. According to the dissent, “it is impossible to conceive that [law-abiding or sober people whose cars are stuck on the side of a highway, far out in the country, at dusk] would flaunt their libertarian instincts to avoid contact with helpful police enforcement. The facts cry out reasonable suspicion.” The dissent criticized the majority’s analysis as incomprehensible; asking what else the officers needed to see–“smudges of white powder on his clothes?” The dissent also believed the fact the intrusion was limited to the level necessary to ensure the officers’ safety  was relevant to the inquiry, but the majority failed to give adequate deference to law enforcement

The Sentencing Project publishes a report on the declining prospects for parole on life sentences

The Sentencing Project recently released Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences. The Report’s findings came from a national survey to which 31 states and the federal government responded to with available date since 1980. (Full report available here). Some of the highlights are below:

  1. Prisoners serving a life sentence have seen marked increase over the last two decades and represent a significant portion of the incarcerated population.

    As of 2012 one in nine people in state and federal prisoners were there for life sentences (approx. 160,000). The number of people serving life sentences has quadrupled since 1984.

  2. More frequent impositions of life sentences and reluctance to grant parole to those serving life sentences has driven the growth in this population.

  3. Sixty-four percent of lifers were convicted of homicide. But, there were more than 10,000 people serving life sentences for nonviolent offenses in 2012.

  4. An examination of lifers released in California found a recidivism rate of less than 1%

    Among a group of 860 individuals convicted of murder who were paroled between 1995 and 2011, less than 1% were sentenced to jail or prison for new felonies, and none recidivated for life-term crimes.

The Report concluded with the following recommendations:

  1. Expedite parole eligibility: Reduce the minimum number of years that lifers must serve before their first parole hearing and shorten wait times for subsequent hearings.
  2. Depoliticize and professionalize parole boards: Distance governors from paroling authorities to enable parole decisions to be based on meaningful assessments of public safety risk.
  3. Establish a presumption of release: Parole boards should assume that parole candidates are potentially suited for release at the initial, and especially subsequent, parole hearings unless an individual is deemed to pose an unreasonable public safety risk.
  4. Improve the integrity of parole hearings: Expand the procedural rights of parole applicants, enable parole applicants to review the evidence used to evaluate their eligibility for parole, and allow the public to review decision-making criteria and outcomes.

Scientific research used to support precluding consideration of bald arrest records at sentencing

The Third Circuit found plain error in a sentencing court relying on a record of past arrests (without a description of the conduct purportedly leading to arrest) in United States v. Mateo-Medina. The prohibition on using bald arrest records had been decided back in 2009. The interesting twist in Mateo-Medina is the Court’s citation to research since their decision that reinforced their earlier ruling. The research cited had found socioeconomic factors and implicit bias likely impacted arrest rates. The research citations included:

  1. The Sentencing Project, Report of The Sentencing Project to the United Nations Human Rights Committee Regarding Racial Disparities in the United States Criminal Justice System (August 2013): finding indicators that police were more likely to arrest people of color due to implicit bias, e.g., unconscious assumptions associating African Americans with violence and crime. (Report available here)
  2. Ojmarrh Mitchell & Michael S. Caudy, Examining Racial Disparities in Drug Arrests, JUSTICE QUARTERLY (Jan. 2013): An empirical study that analyzed 13 years’ worth of data on race, socioeconomic factors, drug use, and drug arrests that found discrepancies between drug arrest rates for African Americans and white individuals could not be explained with a difference in the extent of drug use between the two groups. Residing in an inner city neighborhood actually accounted for more of the disparity in arrests rather than rates of drug use or the manner of drug use. (Article available here)

The concern that arrests reflect implicit bias seems justifiable. The law should not countenance punishing individuals more harshly based on racial stereotypes. The socioeconomic factor of residing in an inner city, however, is a more novel concept. I would be curious to see if this creeps into other criminal procedure areas besides sentencing, such as probable cause determinations. If it is unreasonable for a judge to make assumptions based on arrest records, which may unfairly target inner city residents, might it not also be unreasonable for a police officer to make assumptions about criminal activity in an inner city area? And, does this research shed doubt on the concept of “high crime” areas in inner cities?


Can a Court speak ex parte with a probation officer?

The First Circuit recently ruled there was no plain error in a judge “engaging in brief, off-the-record conversations with a probation officer during the [defendant’s] sentencing.”

The opinion made two conclusions:

  1. A probation officer is an extension of the court and functions as an arm of the court, thus a probation officer fundamentally differs from a third party.
  2. An ex parte conversation may seek advice or analysis from the probation officer, but a judge cannot rely on new facts for sentencing unless and until they are disclosed to the parties and subjected to adversarial testing.

Unfortunately, the Court did not give much guidance on analysis vs. new facts. Instead, finding the contents of the ex parte conversations were unknown as a direct result of the defendant’s failure to object. Nor did the Court find anything in the record to suggest new facts were disclosed during the ex parte conversations.

The Court’s opinion does indicate possible constitutional tension between an ex parte conversation with a probation officer and a defendant’s right to a meaningful opportunity to comment on factual information on which his or her sentence is based. The First Circuit cites a previous instance where a sentence was vacated based on a probation officer revealing information to the judge without disclosing it to the defendant (Opinion here).

The problem with the Court’s analysis/advice versus new facts distinction is that it simultaneously acknowledges potential due process violations while failing to safeguard against them. Hopefully defense attorneys will start lodging objections to the practice of ex parte conversations with probation officers, so that a record will exist for the appellate courts to flesh out more detailed guidance on this practice.