Background
On January 27, 2017, President Trump issued Executive Order 13769, also known as “Protecting the Nation From Foreign Terrorist Entry Into the United States.” This executive order was a promise throughout President Trump’s campaign to “Make America Great Again.” Three main provisions were at issue in the case. The first is Section 3(c), a 90-day suspension of travel into the US for aliens from Iraq, Iran, Libya, Somalia, Sudan, Syria, and Yemen. This suspension serves the purpose of reducing the inflow of applications for visa, admission, or other benefit adjudication from the Department of Homeland Security and Department of State. The second provision, 5(a), is a 120-day suspension of the US Refugee Admissions Program. Those whose applications are already in the program for consideration may enter after revised procedures for review have been completed and approved. The final provisions in contention in the case is 5(c), which indefinitely suspends the entry of any refugee that is a national of Syria. Section 5(e) of the order allowed the secretary of state and the secretary of homeland Security to make exceptions if in the national interest.
On January 30, 2017, the State of Washington filed suit in district court against Section 3(c), 5 (a)-(c), and 5(e). They named the president, the secretaries of state and homeland security, and the whole of the United States government as defendants. Two days later, the state of Minnesota was added as a plaintiff.
In district court, the states of Washington and Minnesota filed for an emergency motion for a temporary restraining order (TRO). If approved this motion would temporarily stop the executive order from being enforced. Essentially, this motion would temporarily allow for people from those listed nations that are stuck abroad to return home to the US. For a TRO to be approved, the court must hold a hearing to argue the necessity of the TRO, and the next day, it argued and eventually granted the TRO. The court decided to enjoin and restrain the enforcement of 3(c) and 5(a)-(c) and enjoin 5(e) to the extent that the government does not prioritize one refugee claim over another based on religion. In response, the government appealed the decision for TRO and motioned for emergency stay, meaning that they hoped to halt the court proceedings. This decision decided if the government had sufficient cause to approve a motion for stay on the appeal of the TRO.
Jurisdiction
For a case to be heard, a court must have jurisdiction over the issue. For instance, you would not want to argue federal issues in a state court, or the court will turn you away and instruct you to go to the federal district court. The States argue that because there are usually no appeals on a TRO, a stay motion on the appealed TRO is not within the jurisdiction of the court. The circuit court decided that because of extraordinary circumstances, this TRO can be considered a preliminary injunction, which is appealable as long as the appellant (the States) can prove that the TRO was heavily argued and challenged in the district court. Also, the court needed to see that the TRO would last longer than 14 days, which the district court accomplished by failing to schedule a hearing or setting an expiration date, allowing the TRO to last indefinitely. Even though a TRO is not ordinarily appealable, the Circuit Court was comfortable considering the TRO as a preliminary injunction because of the circumstances. This preliminary injunction is within the jurisdiction of the Court and, therefore, the emergency stay motion is also within the jurisdiction of the Court.
Standing
When prosecuting parties file suit against a defending party, the prosecution must prove that they have standing to sue. Standing is proof that the prosecuting team has viable reason to sue the defense. The prosecuting party must prove that they have suffered some type of injury because of the actions of the defense and that a favorable court outcome in court will help remedy their injury.
In this case, the Government argues that the states do not have sufficient standing in the case. The States argue that they have suffered a financial injury in their public universities, an extension of the state. Because of the travel ban, people cannot travel for research and the universities cannot hire qualified faculty members from those seven listed countries. For example, the University of Washington made plans prior to February 2017 to bring three prospective employees and two medicine and science interns from those seven listed countries. The university already paid for the travel visas before the executive order, so the executive order causes them to lose that investment. The court added that schools can assert the rights of their students. Because the students’ success depends on the ability of the university to teach and the professors’ ability to do research, limiting the school’s ability to research and hire new faculty limits the success of the students.
Reviewability
The Government argued that the President’s powers over immigration and national security are absolute and cannot be reviewed by the judicial branch. They claim that judicial review of this executive order violates separation of powers by taking away powers customarily exercised by the President. The court decided that the role of the judicial branch is to review the law, so they have reviewability in this case. In the past, the courts have deferred matters of immigration to the political branches, but that does not make them unreviewable; the court notes that there is no immigration issue that is unreviewable. Similarly, the three-panel judge concluded that national security is not a matter that should be automatically deferred to the executive branch. The Court still needs to protect the rights delineated in the Constitution.
Legal Standard
To decide on the motion to stay, the court delineated the four questions they would use for consideration. The first question is if the applicant made a strong showing that they can succeed on the merits, or if the eventual case on the ban is likely to be decided in favor the Government. Second, the court asks if the applicant will be “irreparably injured” if the stay is denied. The third question is whether approval of the stay motion will substantially injure other parties involved in the case. Finally, the court considers where public interest lies.
Likelihood to Succeed-Due Process
The court begins by describing due process outlined in the Fifth Amendment. The government cannot deprive individuals of the right to life liberty or property without due process of law. This means that the government must provide “notice and an opportunity to respond.” The Government does not prove that the executive order provides for notice and response and argues that the individuals affected by the executive order do not have due process rights in the United States. The States argued in the District Court that the executive order is too broad as it bans travel for lawful permanent residents as well as illegal aliens, violating the Fifth Amendment Due Process right of legal residents. The court cited precedent to point out that Fifth Amendment Due Process applies to all people within the United States, whether legal or illegal. The Government has not proven that this executive order allows for the travel of lawful residents or that they have the process to challenge their entry denial. A few days after the issuance of the executive order, White House Counsel Donald McGahn released a memo stating that the sections of the order at issue do not apply to lawful residents, but the court decided not to consider that memo because the White House Counsel cannot amend or overpower an executive action of the President. Overall, because the executive order deprived people in the United States of the right to due process without notice and opportunity for response, the Government is likely to fail in court on the merits of the case.
Next, the Government argues that the TRO was too broad because it extended beyond lawful residents and allows unlawful aliens to re-enter the country. Also, the Government argues that the TRO must only apply to Washington and Minnesota, even though it would apply to the entire country. The court did not modify the TRO. The first limitation proposed by the Government ignores the due process rights that some aliens have in the United States, and the second proposal would create a fragmented immigration policy in the United States
Likelihood of Success-Religious Discrimination
The States argue that because the ban was intended to discriminate against Muslims, it is a violation of the Equal Protection Clause and the Establishment Clause. The States used President Trump’s statements throughout the campaign and section 5(b) and 5(e) of the executive order as proof that this is an attack on the Muslim people in this country.
While the court acknowledged that these claims were significant and “present significant constitutional questions,” they did not release an opinion on the likelihood of success on this issue. They were content that their opinion on the due process matter was sufficient to deny the stay motion and did not need an opinion on racial discrimination.
The Balance of Hardships and the Public Interest
The court continues to decide that the Government has not proven that they will avoid irreparable injury if the stay motion is granted. While they agree that fighting terrorism is an acceptable government interest, the Government does not prove that the Executive Order is urgent and would be significantly different or more effective in fighting terrorism than before. Similarly, the Government did not show any evidence that any aliens from the listed countries assisted or perpetrated in any terrorist attacks.
The Government does claim that they suffer the injury of the “erosion of separation of powers,” but the Court does not find that it is irreparable because it can prove its interest and succeed on the merits throughout litigation. On the other hand, the States have proved that the Executive Order would harm them through their public universities, as explained above.
Finally, the Court examined the general public interest. It acknowledged that the public has an interest in national security and for an elected official to make decisions, but also that the public wants free flow of travel and freedom from discrimination. These interests were not convincing enough to grant a motion for stay.
Conclusion
Because of the reasons listed above, the Government was not able to prove that the motion for stay was necessary and the Circuit Court denied the appeal.