“DAMN, DANIEL!” but directed at that stupendous three-judge panel of the 9th Circuit

HEYO. It was unanimous. Not a single one of the judges thought Trump (okay, actually Bannon-the-ghost-writer) was within his executive power to put our border on lockdown in the way that he did.

“On the one hand, the public has a powerful interest in national security and in the ability of an elected president to enact policies. And on the other, the public also has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination. We need not characterize the public interest more definitely than this… The emergency motion for a stay pending appeal is denied.”

Trump, for his part, got quite bent out of shape and had his usual Twitter tantrum (twittrum?). IN ALL CAPS THOUGH, SO YOU KNOW HE MEANS BUSINESS.

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But the Court had its reasoning (and in my novice lawyer opinion, it was darn good reasoning). Here’s a rundown of the opinion (which you can read here):

Court considered several factors:

  1. Whether the government has shown that it is likely to succeed on the merits (because you need to show that your case is probably gonna win in order to be granted a stay – the Government moved for an emergency stay of the enjoined Executive Order. Basically, everyone is just hollering “STOP” from all sides.)
  2. The degree of hardship caused by either the stay or its denial.
  3. The public interest in granting or denying the stay.

Court recognized that it didn’t have a whole lot of information to sift through at this stage (because discovery hasn’t really happened because everyone has just been scrambling around and hollering “STOP.” See above.)

Court was also mindful that its analysis of hardships and public interest involved “particularly sensitive and weighty concerns on both sides.”

Buuuutttttttt…“Nevertheless, we hold that the Government has not shown a likelihood of success on the merits of its appeal, nor has it shown that failure to enter a stay would cause irreparable injury, and we therefore deny its emergency motion for a stay.” Boom.

The legal breakdown:

Jurisdiction (the states argued that the Court didn’t have jurisdiction because a Temporary Restraining Order is not usually appealable – Court was like, “nah, we totally have jurisdiction because this situation is weird and extraordinary because it ‘possess[es] the qualities of a preliminary injunction.’” (And those are appealable.)

Standing (because, remember, the Government argued that the states couldn’t bring the case because they didn’t have enough skin in the game. Basically.) – States argued that they absolutely had enough skin in the game because their public universities were harmed by the EO (stranded students, trapped faculty, affected research, trouble recruiting, etc.). The Court was on-board and decided that the states had third-party standing and it could hear the case.

  • More specifically: “[The states’] proprietary interests [are] 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.”
  • The Court felt pretty confident that states’ issues would be solved if they obtained what they wanted: chiefly, a declaration that the EO violates the Constitution, and an injunction keeping it from being enforced.

Whether the Court had the Power to Review the Executive Order (because the Government [editorial comment: so full of shit; I’m surprised they tried it] argued that “the President has unreviewable authority to suspend the admission of any class of aliens.”)

  • Court got really offended here, actually. You can just tell. It would have been down with the principle that great deference is owed to immigration and national security policy determinations of the political branches. SO DOWN. But that’s not where the Government went.
  • INSTEAD, Government took it further and argued that all of the President’s decisions about immigration policy (especially if they had to do with national security concerns) were flat out UNREVIEWABLE. Even when those decisions were unconstitutional. Government said that “it violates the separation of powers for the judiciary to entertain a constitutional challenge to executive actions such as this one.”
  • Court was offended. Court, in a more polite and courtly way, said “Yeahhh…no….gtfo and stop making up laws, guy.” What it actually said was, “There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy. Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the ‘[r]esolution of litigation challenging the constitutional authority of one of the three branches.’ We are called upon to perform that duty in this case.” (i.e., you pulled that whole line of argument out of your ass; what were you thinking? That is LITERALLY OUR JOB and we are going to do it right now.)
  • Then the Court gives lots of examples about all the times it came in and reviewed executive actions (really hammering that Government attorney into a hole). It’s pretty clear that the 9th Circuit is making a very clear record, on the off-chance the Supreme Court takes the case, that precedent is WAY AGAINST the Government on this one.
  • The Court also calls out the Government for making the rookie mistake of NOT INCLUDING THE WHOLE QUOTE AND LEAVING OUT THE BITS THAT CONTRADICT ITS ARGUMENT. So that was cringey. Court told Government that it was just…wrong. And not only was it wrong, but the case it was wrong about didn’t actually even apply, anyway.
  • This section goes on for a very long time – I recommend reading it if you have the time – as the Court seems very keen on letting the Government know that it is the Court and it does get to review things and the Government better sit down and stop talking while it’s ahead.
  • I wouldn’t be surprised if, in retrospect, the Government is thinking that maybe it shouldn’t have made this argument. (Although, it’s honest to God so bad that it makes me wonder if someone in DOJ was trying to pull off some intentional sabotage.)
  • Seriously, this section takes up most of the opinion, I’m pretty sure. Just the Court telling the Government how wrong it is. About everything. (Schadenfreude at its very finest!)

The Legal Standard of Review – Just the Court discussing how it analyzes a motion to stay. Significantly less thrilling than the former section.

  • 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. The first and second factors are the most critical.
  • Court’s like, “We conclude that the Government has failed to clear each of the first two critical steps.”

Likelihood of Success – Due Process (Government cannot deprive individuals of life, liberty, or property without due process of law. That’s the Fifth Amendment, folks.)

  • The Court didn’t think the Executive Order provides what due process requires (“notice and an opportunity to respond”) such as “notice and a hearing prior to restricting an individual’s ability to travel.”
  • It then points out that the Government didn’t even try to argue that the Order did such a thing but rather argued that most of all of the individuals affected by the Executive Order have no rights under the Due Process Clause.
  • Aaaand again, the Court points out just how wrong the Government is when it states, “The procedural protections provided by the Fifth Amendment’s Due Process Clause are not limited to citizens. Rather, they ‘appl[y] to all ‘persons’ within the United States, including aliens,’ regardless of ‘whether their presence here is lawful, unlawful, temporary, or permanent.’” (Guys, it’s actually really weird how wrong most of the Government’s arguments are. Like…REALLY weird. Maybe Bannon wrote them, too.)
  • The Court then gives a long list of all of the things that the Government failed to establish that it should have established in order to show that it had a likelihood of success.
  • My favorite is when the Court throws some serious shade at Trump (who, let’s be honest, probably won’t pick up on it because nuance isn’t his thing) and the White House counsel: “Nor has the Government established that the White House counsel’s interpretation of the Executive Order is binding on all executive branch officials responsible for enforcing the Executive Order. The White House counsel is not the President, and he is not known to be in the chain of command for any of the Executive Departments.” (Basically the Court is saying “why the heck are you listening to Trump? Who cares? He doesn’t know what he’s talking about.)
  • Then the Court calls out the Government for its “shifting interpretations” of the EO, which effectively undermined the Government’s ability to show that the allegedly wrongful behavior could not reasonably be expected to recur.
  • Just to cover its butt, the Court went ahead and also said that even if the due process claims of lawful residents were no longer a part of the case, the Government would still fail and that, no, the TRO was not overbroad, thankyouverymuch.

Likelihood of Success – Religious Discrimination (No law respecting an establishment of religion may be made. That’s the First Amendment, guys! Aka Establishment Clause.)

  • Any law that has a religious, not secular, purpose violates the First Amendment. This includes any sort of “preference” to a religion because that sends the message to anyone outside of that religion that they are not full members of the political community.
  • The Equal Protection Clause also prevents Government discrimination based on religion.
  • The states obviously brought in all the tweeting Trump has done over the past year in support of their argument that the EO violates the Establishment and Equal Protection Clauses, because what lawyer worth her salt WOULDN’T bring them in?!
  • They also drew the Court’s attention to the part of the Order that gave favoritism to “minority” religions. (Sections 5(b) and 5(e)).
  • The Court could consider these things because courts are allowed to consider evidence of purpose that exists outside of the text of the challenged law when dealing with Establishment and Equal Protection Clause claims.
  • Court determined that the States’ claims raised “serious allegations and present[ed] significant constitutional questions.” But it held off on saying whether the Government had a likelihood of success because it had already failed to meet its burden on the due process claim and the Court wanted more information.

Balancing Hardships and Public Interests

  • Court: “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.” (LOUDER FOR THE PEOPLE IN THE BACK. The people from the banned countries are not responsible for attacks against the US and the Government couldn’t counter that!)
  • Court again (the Court doesn’t need my help here): “Rather than present evidence to explain the need for the Executive Order, the Government has taken the position that we must not review its decision at all.” (LOLZ, Court already covered that one earlier.)
  • Basically, the Court suggests that the Government is a whiny baby and has a pathetic claim next to the public who will suffer all kinds of harms (students separated from families, students and employees stranded, etc., etc.), plus an impingement on the interest in free flow of travel, freedom from discrimination, etc. – “We need not characterize the public interest more definitely than this; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.”

“For the foregoing reasons, the emergency motion for a stay pending appeal is DENIED.”

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