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.

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