As Paul has already noted, a three-judge panel of the 9th Circuit Court of Appeals has denied the government’s motion for an emergency stay of the order entered by Judge James Robart blocking implementation of President Trump’s temporary travel ban. The decision is a bad one, I think, but it also has only limited import and won’t stand in the way of more carefully crafted orders to be issued in the future.
First of all, there is simply no doubt about the fact that the president can by order suspend immigration from any country or group of countries. Remarkably, the Ninth Circuit decision fails ever to mention the relevant portion of the Immigration and Nationality Act, 8 U.S.C. §1182(f), which provides:
(f) Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.
The 9th Circuit opinion does not in any fundamental way challenge President Trump’s power to do what he did: stop travel and immigration from certain designated countries.
What, then, did it do? The three judges found that there was a likelihood that someone’s due process rights could be violated by the order. The people in question are not citizens of the seven countries who have never been to the United States, and now want to travel or immigrate here. Those people have no rights under our Constitution, as the Supreme Court has repeatedly held. Rather, the 9th Circuit panel seized on the idea that a few people covered by the order–those who have come here legally already, and now want to return–have constitutional due process rights:
The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they “appl[y] to all ‘persons’ within the United States, including aliens,” regardless of “whether their presence here is lawful, unlawful, temporary, or permanent.” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). These rights also apply to certain aliens attempting to reenter the United States after travelling abroad. Landon v. Plasencia, 459 U.S. 21, 33-34 (1982).
So the situation, as viewed by the 9th Circuit panel, is thus: President Trump’s order is overbroad, because it affects, without providing a hearing or other due process, a small number of people who have constitutional rights, like those who are trying to reenter the U.S. after traveling abroad. The administration, on the other hand, argued that it is Judge Robart’s order that is overbroad: it blocks the entire implementation of Trump’s travel order, even though that order is unquestionably valid as to the vast majority of those affected.
The 9th Circuit panel adopted the anti-Trump view of this situation, and took the position that if there is a single person with due process rights who is affected by the order, the entire order can be blocked:
[T]he Government argues that the TRO is overbroad in two independent respects: (1) the TRO extends beyond lawful permanent residents, and covers aliens who cannot assert cognizable liberty interests in connection with travelling into and out of the United States, and (2) the TRO applies nationwide, and enjoins application of the Executive Order outside Washington and Minnesota. We decline to modify the scope of the TRO in either respect.
First, we decline to limit the scope of the TRO to lawful permanent residents and the additional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.” That limitation on its face omits aliens who are in the United States unlawfully, and those individuals have due process rights as well. Zadvydas, 533 U.S. at 693. That would also omit claims by citizens who have an interest in specific non-citizens’ ability to travel to the United States. See Din, 135 S. Ct. at 2139 (Kennedy, J., concurring in judgment); id. at 2142 (Breyer, J., dissenting) (six Justices declining to adopt a rule that would categorically bar U.S. citizens from asserting cognizable liberty interests in the receipt of visas by alien spouses). There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do.
So, the 9th Circuit reasons, Trump’s order might be valid as to 99% of those affected, but if there are 1% who have due process rights, the entire order must be voided. This strikes me as a radical approach.
The battle will go on. As Paul urges, the administration might go straight to the Supreme Court. But bear in mind that all the 9th Circuit has done is to deny a motion for an emergency stay, based on “the limited evidence put forward by both parties at this very preliminary stage.” I think the administration could pretty easily tweak Trump’s order to meet the relatively minor objections the plaintiffs have put forward, and create a record in the trial court that would make it difficult for even the 9th Circuit (this is known as “judge shopping” by the plaintiffs, by the way) to stand in the way. In the meantime, let’s confirm Justice Gorsuch, just in case the Democrats try to execute a judicial coup.
Here is the 9th Circuit opinion; read it and judge for yourself: