Here is a quick summary of key points from last night's decision of the United States Court of Appeals for the Ninth Circuit and a few observations of my own:
- Because a of its limited and temporary nature, a temporary restraining order is not ordinarily appealable. Preliminary injunctions, on the other hand, which often follow temporary restraining orders and are generally based on more substantive proceedings and remain in effect for a much longer period of time, are appealable. The Government argued that, because the district court's order was only a TRO, the 9th Circuit had no jurisdiction to hear the appeal. The court rejected the Government's argument, holding that, because the order would not expire in the required 14 days it could be treated as a preliminary injunction, especially given the extraordinary circumstances of the case.
- The constitutional doctrine of standing exists to ensure that federal courts only hear "cases and controversies," as specified in Article III of the Constitution. The doctrine prevents courts from hearing abstract disputes; they may only hear disputes where a party has a real claim that it has been harmed in a concrete and particularized way. It preserves the limited nature of courts' jurisdiction, so they don't become mini-legislatures, and also ensures that the party bringing the claim has a real incentive to put the best arguments forward. The court relied on the States' ownership of public universities as the basis for finding that they have standing. It focused on the effects of the executive order on students and faculty who have been prevented from entering the United States, and on the universities' missions of global engagement.
- Next, the Government challenged the reviewability of the executive order. It argued that courts may not review executive orders concerning matters of immigration, especially those that implicate national security. The Ninth Circuit rejected this argument as well. It explained that, while courts must give substantial deference to such orders, they nevertheless are empowered to consider their constitutionality. This question of the relative powers of the executive and judicial branches is at the heart of the case, and will likely be the focus of the case when it ultimately reaches the Supreme Court.
- The court then addressed two traditional factors in deciding whether to issue a stay of the district court's order: whether the Government had shown a likelihood that it would eventually win on the merits, and whether the Government had shown that denial of the stay would result in irreparable harm. The court found that the Government was unlikely to defeat the States' due process arguments. The third parties whose rights the States were asserting were denied due process because they were not afforded any procedural rights, such as a hearing, when they were prevented from entering the United States. And, the court noted, the Constitution's guarantees of due process extend to certain classes of non-citizens, such as lawful permanent residents, and the aggrieved parties included members of those classes. The court also found that the Government had not shown a likelihood that it would defeat the States' claims under the Establishment Clause and the Equal Protection Clause because of evidence that the President intended the executive order to be a Muslim ban.
- Finally, the court held that the Government had not shown that the district court's TRO would cause irreparable harm because it submitted no evidence that the executive order was necessary to prevent terrorism. In contrast, the States had shown that they and others would be irreparably harmed if the executive order were remained in effect.
- A few quick observations. First, the court cited ample precedent, including Supreme Court precedent, to support each aspect of its holding. Also, the court's decision is "per curiam," meaning that no one of the three judges is singled out as the decision's author, but instead the decision is the unanimous decision of all three (a Carter appointee, a George W. Bush appointee and an Obama appointee). In addition, the court acknowledged that its decision is not the last word on the subject. It anticipates further proceedings in the district court, presumably with more evidence and legal argument, to be followed by another appeal that will have the benefit of a more complete record and more time for the parties to develop their arguments. Finally, I don't expect the Supreme Court to accept an appeal from the 9th Circuit's decision. It too will likely want further development of the record in the courts below, not to mention an opportunity to add a ninth Justice to the Court before it takes the appeal, and the Government so far has not advanced any compelling argument about why the stay of the executive order has created an emergency threatening national security.
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