Late yesterday, in the case of Washington v. Trump, No. 17-35105 (9th Cir. Feb. 9, 2017), the U.S. Court of Appeals for the Ninth Circuit issued a “per curiam” opinion, which refused to vacate the temporary restraining order (“TRO”) issued by a federal district court in Washington State that stayed three critical provisions of President Donald J. Trump’s executive order entitled “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO”). These provisions of the EO (i) banned for 90 days the entry of foreign nationals (“FNs”) from seven restricted countries, (ii) suspended the refugee program for 120 days, and (iii) indefinitely suspended the admission of Syrian refugees.
In its opinion, the Ninth Circuit rejected the government’s claim that the plaintiffs, the states of Washington and Minnesota, lacked standing to challenge the EO, and dismissed the government’s argument that federal courts lack the power to enjoin the President’s authority to suspend the admission of any aliens or class of aliens. In this regard, the Ninth Circuit noted that “[t]here is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy.”[1]
Once the Ninth Circuit found that it had jurisdiction to hear the appeal, it addressed several legal issues to determine whether the lower court’s TRO could remain in place. First, the Ninth Circuit found that the government had failed to demonstrate that it was likely to succeed on the merits of its position after a full evidentiary hearing. As such, the Ninth Circuit held that the EO appeared to violate the constitutional right to due process by failing to provide those FNs affected by the order sufficient notice and an opportunity to contest its application to them.[2]
Second, the Ninth Circuit found that the states had raised serious claims that the EO violated the First Amendment because it discriminated against Muslims. The Ninth Circuit pointed to the numerous statements by the President about his intent to implement a “Muslim ban,” as well as evidence offered by the states that they claimed demonstrated that this EO was intended to be that ban.[3]
Finally, the Ninth Circuit noted that the government had not shown that a stay was required to avoid irreparable harm. On the other hand, the states offered “ample evidence” that, if reinstated, the EO would “substantially injure the States and multiple ‘other parties interested...
