Jason Doiy / The Recorder
SAN FRANCISCO — Per curiam. By the court. If there’s a way to respond to a president who has taken aim at the federal judiciary, it’s to speak with one voice.
With the entire country watching, the unanimous U.S. Court of Appeals for the Ninth Circuit on Thursday left in place a ruling blocking President Donald Trump’s executive order suspending immigration from seven predominantly Muslim countries.
Insisting that courts have clear authority to review the constitutionality of executive branch actions, a three-judge Ninth Circuit panel upheld a Feb. 3 ruling by U.S. District Judge James Robart of the Western District of Washington who found the states of Washington and Minnesota were likely to succeed in their constitutional challenge to the executive order.
The per curiam decision from Ninth Circuit Judges William Canby Jr., Richard Clifton and Michelle Friedland is the latest chapter in the fast-moving cross-country legal fight over the Jan. 27 executive order that suspended immigration from Iran, Iraq, Libya, Sudan, Somalia, Syria and Yemen.
The three judges wrote, “The states have offered ample evidence that if the executive order were reinstated even temporarily, it would substantially injure the states and ‘multiple other parties interested in the proceeding.’”
The panel held that the government wasn’t likely to beat back the states’ claims that the executive order had violated the due process clause of the Fifth Amendment. The states have argued that the order illegally denied re-entry and travel rights to lawful permanent residents and visa holders without notice. They also claim it runs counter to the federal statute governing how refugees seeking asylum are treated by the United States.
During a telephonic hearing before the Ninth Circuit panel Tuesday, DOJ lawyer August Flentje argued that Robart’s temporary restraining order ran counter to a ruling from a federal judge in Massachusetts who found that the executive order was a legitimate use of the president’s power to shape policy on questions of immigration and national security.
The panel, however, took issue with the government’s argument that the president’s decision was “unreviewable.”
“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,” the Ninth Circuit judges wrote.
The panel also wrote that the states “raise serious allegations and present significant constitutional questions” regarding whether the executive order was intended to disfavor Muslims, citing Trump’s campaign season statements calling for a “Muslim ban.”
Ninth Circuit scholar Arthur Hellman at the University of Pittsburgh School of Law said that the panel members didn’t confine themselves “to the four corners” of the executive order, and took the president’s public statements into account when determining the overall intent behind the order.
“In a way, you can see that as a sort of warning signal to the president that when he sounds off, it may hurt him in these legal proceedings,” Hellman said.
There was no sign of an immediate shift in the president’s communications strategy. Tweeting shortly after the decision was issued, Trump wrote, ”SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!”
In the glare of public attention, the court turned around its decision in just 48 hours.
— PBS NewsHour (@NewsHour) February 9, 2017
“Pretty amazing to write such a careful and coherent 29 page opinion in a couple of days,” UC-Irvine law professor Rick Hasen wrote in a tweet. Just before the decision came down, Hasen wrote, ”Whatever the 9th Circuit decides on the merits, let us all praise the court for its transparency, efficiency, and accessibility.”
Court watchers had speculated that the Ninth Circuit might issue a split decision, at least on some of the issues at play. During oral argument Tuesday, Clifton, a George W. Bush appointee, had questioned whether the executive order could really be considered a Muslim ban, since, according to his calculations, it only reached approximately 15 percent of the Muslim world. He also expressed concern about the scope of Robart’s order, which applies the same protection to legal permanent residents as it offers to individuals who have yet to begin the immigration process.
Still Clifton joined a decision that fully upheld Robart’s order. In a portion of the opinion that bears Clifton’s fingerprints, the panel wrote, “Even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the executive order.”
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