Update: One of the ninth circuit judges (anonymously, so not necessarily one of the three judges who issued the decision) “has made a sua sponte request that a vote be taken as
to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc.” Order available here. I’ve heard that this is common in high profile cases. More info from the court on what this all means is available here.
I’ve never been prouder of the 9th Circuit.
After listening to the oral arguments, I’ll admit I was nervous. The judges pressed both sides, and I was worried there would be a divided bench- or worse, that the 9th Circuit would “punt” the whole thing over standing. Or, worst of all, that the 9th Circuit would be forced by legalese to reinstate the travel ban. I needn’t have worried.
In what appears to me to be three human beings setting aside politics to do what is right, they issued a unanimous decision (available here):
1. The 9th Circuit Has Jurisdiction
(the Temporary Restraining Order was appealable):
“In light of the unusual circumstances of this case, in which the Government has argued that emergency relief is necessary to support its efforts to prevent terrorism, we believe that this period is long enough that the TRO should be considered to have the qualities of a reviewable preliminary injunction.”
2. The States Have Standing
“We therefore conclude that the States have alleged harms to their proprietary interests traceable to the Executive Order. The necessary connection can be drawn in at most two logical steps: (1) the Executive Order prevents nationals of seven countries from entering Washington and Minnesota; (2) as a result, some of these people will not enter state universities, some will not join those universities as faculty, some will be prevented from performing research, and some will not be permitted to return if they leave. And we have no difficulty concluding that the States’ injuries would be redressed if they could obtain the relief they ask for: a declaration that the Executive Order violates the Constitution and an injunction barring its enforcement. The Government does not argue otherwise.”
3. The Executive Order is Reviewable
“Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context.”
4. They Even Gave Detailed Reasoning for their Ruling
“Our decision is guided by four questions: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.”
. . .
We conclude that the Government has failed to clear each of the first two critical steps. We also conclude that the final two factors do not militate in favor of a stay.
. . .
The Government has not shown that it is likely to succeed on appeal on its arguments about, at least, the States’ Due Process Clause claim, and we also note the serious nature of the allegations the States have raised with respect to their religious discrimination claims.”
They proceeded to detail why they ruled the way they did on the due process claim, the religious discrimination claim, and the “balance of hardships and the public interest” claim (“The Government has pointed to no evidence that any alien from any of the countries named in the Order has perpetrated a terrorist attack in the United States.” 😬 The 9th Circuit totally just called Trump out.
“For the foregoing reasons, the emergency motion for a stay pending appeal is DENIED.”
6. Our President responded… in all caps, and on Twitter
#SMH (shaking my head)
Well, at least people finally like lawyers! People are carrying signs saying to “hug a lawyer”. How cool is that?!?
You know what would be even more amazing than a unanimous 9th Circuit ruling stopping reinstatement of the travel ban? A unanimous Supreme Court ruling. Hey, a girl can dream! 🙂