Friday, February 10, 2017

Why the Ninth Circuit's Ruling on Trump's Travel Ban EO is So Important

Jonathan Hafetz

On Thursday, the U.S. Court of Appeals for the Ninth Circuit issued its per curiam ruling in Washington v. Trump denying the government's request to stay the district court's order enjoining provisions of President Trump's Executive Order temporarily suspending travel to the United States for refugees and various other noncitizens (including legal permanent residents and visa holders).   In short, the Ninth Circuit held that the states (Washington and Minnesota) had standing and met the requirements for a preliminary injunction (styled a temporary restraining order in the district court).

I've previously written about the legal challenges here and here, and there will be much more to say about the Court's legal analysis, especially since this is the first appellate ruling on the travel ban.  But, in my view, the most important aspect of the court's ruling in this highly profile case is that it was unanimous.

The underlying legal issues are undoubtedly important, raising questions about, among other things, the scope and meaning of the plenary power doctrine, the due process rights of noncitizens both at and outside U.S. borders, and the application of constitutional protections against religious and nationality discrimination to restrictions on immigration.  But President Trump, from his reckless implementation of the Executive Order to his flagrant attacks on the integrity of federal judges hearing these challenges, has transformed the case into an early--and critical--showdown over the independence of the judiciary in the United States.  The order not only cites landmark separation of powers cases-- from Milligan to Boumediene -- that reinforce the judiciary's constitutional role and reject the near-complete deference to the executive the Trump administration is demanding.  But the order also makes it more difficult for Trump to bash an individual judge, as he has repeatedly done, because it is unanimous and unsigned.  (Trump's post-ruling Tweet was, as usual, inflammatory, but lacked the kind of personalized and vitriolic intimidation that is his trademark).

During oral argument, the panel appeared divided, at least in part.  While all three judges seemed to agree that the order violated the due process rights of legal permanent residents, one judge (Judge Clifton) suggested that the scope of the district court's order extended too broadly and seemed skeptical of the state's anti-discrimination claims. (The other two judges--Canby and Friedland--appeared poised to affirm the district court's order in full).  Maybe Judge Clifton changed his mind.  But more likely he and his fellow panelists felt it sufficiently important to issue a unanimous per curiam order that would be more difficult for Trump to attack (not to mention challenge in the Supreme Court).  And, I suspect, the reason the judges felt this way is that they recognize the real and grave threat Trump poses to the foundations of the constitutional order.

There will surely be more heated battles over executive power in the days to come, both in the travel ban litigation and other cases.  But the Ninth Circuit's decision will remain an important moment in the defense of judicial independence.

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