The 9th U.S. Circuit Court of Appeals declined to overturn a district court order temporarily barring enforcement of key provisions of the president’s executive order on refugees late Thursday, raising the prospect of a dramatic appeal to the Supreme Court.
The 9th Circuit did not assess the constitutionality of the order. Rather, their task was to decide whether the order would remain in effect while the courts review it on the merits.
The unanimous, unsigned opinion for the three-judge panel concluded the government had failed to demonstrate that they would likely prevail on the merits and suffer irreparable harm if Robart’s order was allowed to stand, as is necessary at this stage of the litigation.
President Donald Trump promised to fight on in a defiant tweet minutes after the decision was released.
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
During oral arguments Tuesday, government lawyers argued that mass migration from areas of the world with high instances of terrorism presented a threat to the nation’s security, and that courts ought to defer to the president’s national security determinations. In one remarkable exchange, the government’s advocate claimed the president’s national security findings could not be reviewed by the courts.
The 9th Circuit rejected that argument out of hand.
“There is no precedent to support this claimed unreviewability, which runs contrary to the fundamental structure of our constitutional democracy,” the ruling reads. “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.’”
Later in the decision, the three-judge panel knocked government lawyers for failing to expound upon their national security concerns with evidence about credible threats or troubling patterns.
The court also concluded that challengers’ had raised legitimate due process arguments about the order that warrant its temporary suspension, while the courts reach a final decision. They write:
The Government has not shown that the Executive Order provides what due process requires, such as notice and a hearing prior to restricting an individual’s ability to travel. Indeed, the Government does not contend that the Executive Order provides for such process. Rather, in addition to the arguments addressed in other parts of this opinion, the Government argues that most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.
The court stopped short of concluding that certain classes of migrants enjoy due process rights, though they also concluded that no authority shows they do not.
“The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of migrants,” the decision reads.
The 9th Circuit also found that the courts may take evidence outside the factual record into consideration while evaluating the due process and equal protection claims made by the challengers. This appears to be a reference to former New York City Mayor Rudy Giuliani’s comments on Fox News, in which he claimed to have advised the president as to how he might legally implement a ban on Muslim migrants. Giuliani’s comments were discussed at some length during Tuesday’s oral arguments.
In assessing certain constitutional issues, it is not unusual for federal courts to consider relevant evidence beyond the face of a challenged law.
The judges did not reach a decision as to the Establishment Clause claims raised by the challengers. They argued Trump’s executive order privileged certain religious groups over others, in violation of the First Amendment.
The order concludes by asserting the public’s interest in uninhibited travel and freedom from discrimination should take precedence in this instance.
The decision almost guarantees an appeal to the Supreme Court, which could come at any time. Five votes are required to grant a stay on the high court. Should the justices divide along ideological lines, the 9th Circuit’s decision will be affirmed.
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