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9th Circuit Stay Watch – Reinstate Immigration EO or keep it shut down?

9th Circuit Stay Watch – Reinstate Immigration EO or keep it shut down?

DOJ just filed its Reply papers. Oral argument tomorrow at 3 p.m. Pacific Time

The government’s Emergency Motion for a Stay pending appeal from the District Court Temporary Restraining Order halting Trump’s Immigration Executive Order now is fully briefed.

My view on the TRO is here, Absurd Fed Ct TRO halts enforcement of entire Executive Order on visas, refugees.

The government just filed its Reply to the Opposition filed by the State of Washington late Sunday night. As discussed earlier, the opponents of the EO are attempting to have the judiciary substitute its judgment as to security needs, even though admission of aliens to the U.S. is within the exclusive purview of the President.

The Court ordered telephone oral argument Tuesday at 3 p.m. Pacific time.

So the court is slow-walking it.

The 9th Circuit panel had been expected to rule quickly. If the stay is rejected, expect the government to go to the U.S. Supreme Court, where initially application would be made to Justice Anthony Kennedy, who covers the 9th Circuit.

Here are the key government arguments in the Reply:

The Executive Order is a lawful exercise of the President’s authority over the entry of aliens into the United States and the admission of refugees. Relying on his express statutory authority to suspend entry of any class of aliens to protect the national interest, the President has directed a temporary suspension of entries through the refugee program and from countries that have a previously identified link to an increased risk of terrorist activity, see 8 U.S.C. § 1187(a)(12). The purpose of that temporary suspension is to permit an orderly review and revision of screening procedures to ensure that adequate standards are in place to protect against terrorist attacks. As a different district court recently concluded, that objective provides a “facially legitimate and bona fide” justification that satisfies any constitutional scrutiny that applies. Louhghalam v. Trump, Civ. Action No. 17-10154-NMG,
Order 18-19 (D. Mass. Feb. 3, 2017); see id. at 10-11, 15-16.

* * *

1. As an initial matter, the State cannot challenge the denial of entry or visas to third-party liens. It is well-settled that a State lacks authority to sue “as the representative of its citizens” to protect them from the operation of federal law. Massachusetts v. Mellon, 262 U.S. 447, 485-86 (1923); South Carolina v. Katzenbach, 383 U.S. 301, 324 (1966)….

2. Even if it could establish standing and a right of judicial review, the State would be unlikely to succeed on the merits of its claims.

a. Congress has granted the President broad discretion under 8 U.S.C. § 1182(f) to suspend the entry of “any class of aliens” into the United States, and independently broad discretion over the refugee program under 8 U.S.C. § 1157. The exclusion of aliens is also “a fundamental act of sovereignty * * * inherent in the executive power to control the foreign affairs of the nation.” …

b. The State continues to argue that Section 3(c)’s temporary suspension of the entry of aliens from seven countries contravenes the restriction on nationality based distinctions in 8 U.S.C. § 1152(a)(1)(A). But that restriction applies only to “the issuance of an immigrant visa,” Id., not to the President’s restrictions on the right of entry. It also has no application at all to aliens who hold or seek nonimmigrant visas, such as student visas or work visas. And § 1152(a)(1)(B) permits, as here, a temporary suspension of entry pending completion of a review and revision of procedures for processing visa applications….

c. The State asserts that the Order violates the constitutional rights of lawful permanent residents (LPRs). Response at 10, 15 & n.3, 16. But the Order does not apply to LPRs. Exhibit D. It applies only to aliens who lack LPR status. And most of those aliens are outside the nited States and have never been admitted to this country. The Supreme Court “has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regarding his application.” Landon v. Plasencia, 459 U.S. 21, 32 (1982)…..

d. The State’s constitutional challenges lack merit.

i. The State first asserts that the Order violates the Establishment Clause and equal protection principles because it was assertedly based on animus against Muslims. That is incorrect. There are two separate aspects of the Order challenged here, and both are neutral with respect to religion. First, Section 3(c) temporarily suspends entry of aliens from seven countries previously identified under 8 U.S.C. § 1187(a)(12). Those countries were identified by Congress and the Executive Branch as being associated with a heightened risk of terrorism.


Government Reply in Support of Stay – 9th Circuit – Trump Immigration Executive Order by Legal Insurrection on Scribd


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I pray that I am wrong, but this is the 9th Circus we are talking about.

I wonder how long it will take the states to realize that this is a playbook for end running DOJ v Arizona…

AZ should try to pass a modified sb1070 now just to see what sjw’s do.

Im with Gremlin on this. The law has nothing to do with the coming ruling.

The policy should be require vetting for all visitors to the USA and extreme vetting to those that produce terrorists. No one should be allowed entry from those countries where it’s impossible to sufficiently vet visitors.

    CloseTheFed in reply to ConradCA. | February 6, 2017 at 8:13 pm

    That now includes Europe. They’re infested with terrorists, both imported and now homegrown. the kids are sometimes more radical than their parents.

assemblerhead | February 6, 2017 at 6:42 pm

Little tidbit of legal I stumbled across on another blog.

Quote From :
8 USC 1182:

(f) Suspension of entry or imposition of restrictions by President

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. Whenever the Attorney General finds that a commercial airline has failed to comply with regulations of the Attorney General relating to requirements of airlines for the detection of fraudulent documents used by passengers traveling to the United States (including the training of personnel in such detection), the Attorney General may suspend the entry of some or all aliens transported to the United States by such airline.

Interesting that this was completely ignored by the courts, yes?

    I seriously wonder, just how adequately the DOJ attorneys are fighting this, either in Washington State, or now at the Appeals Court. The entire DOJ is still in Obama-mode for sure, and Sessions hasn’t had the time to put folks anywhere or dictate new policy focus. So… crazy.

      pwaldoch in reply to RobM. | February 7, 2017 at 12:18 pm

      I’m more concerned that this won’t ever get fixed. The libs on the Surprme Court can just sit, and refuse to take the case until Gorsuch is sworn in. That’s the Lib play here. Effectively they have the 9th circus as a ultimate arbiter of laws/rules they don’t like as long as the Supreme Court is at 8. Watch the MAJOR SLOW WALK of Gorsuch and the sudden expedition of the 9th so that this would have to hit the SC, while they are still short, thus leaving the 9th Circuit Court as the final ruling. Now it might be worth the Trump Justice dept to slow walk this, damaging as it may be until the Supreme Court is back up to full numbers.

        pwaldoch in reply to pwaldoch. | February 7, 2017 at 12:25 pm

        Ok, I was off, but with a 4-4 at best split in the SCOTUS, the lower court ruling will stand. If 9th says whatever it wants, and the SCOTUS gets it with out Gorsuch, we’re screwed until Congress can pass another law to fix.

          Gremlin1974 in reply to pwaldoch. | February 7, 2017 at 4:23 pm

          Yea but the administration has a certain amount of time to file with SCOTUS. I would say accept the TRO if the 9th upholds it, then have McConnell speed up the new justices confirmation and then file with SCOTUS.

Well, having read all the briefs, I have the following comments:

First, as far as I can tell, there isn’t the slightest legal basis–none, not the slightest bit–for refusing to apply the executive order to foreigners who have not yet entered the country. Therefore, if the Court of Appeals affirms the stay in its entirety, it has acted wholly politically, in a way that is going to cause me, at least, to lose what respect I have for that court.

Indeed, it’s hard for me to see how the 9th Circuit sustains any part of this injunction. But, the Fed’s final brief does conclude by suggesting a compromise position–lifting the stay as to visa applicants/holders who have not made it into the country, while maintaining the stay for others.

Not sure I would have concluded the brief this way myself (but they only had 14 hours to write it, so its remarkable to me their brief is as good as it is). But the 9th circuit could seize on that compromise. It will be easier to defend as a plausible interpretation of the law, while still sticking it in some manner at least to Trump.

    sequester in reply to Wisewerds. | February 6, 2017 at 7:19 pm

    Good catch. The Statute is cited in paragraph 2a of the Government’s Reply Brief. Sadly, the “Law” says whatever Robarth and the Circuit Court say it says. Laws mean nothing when jurists seek to obfuscate and impose their own personal views on all of us.

    You still had any respect left for the 9th Circus?

    Come ON. I think it currently holds the title for most bench-slapped Circuit Court of Appeals in the nation. Certainly the most recently.

    The ONLY Court that might be giving it a run for the money is the Federal Circuit Court, but I haven’t seen the numbers on that Court in a while.

    txantimedia in reply to Wisewerds. | February 7, 2017 at 9:16 pm

    I listened to the hearing today. My sense is that the 9th will go with the compromise. I assume that the administration would be happy with that since they have already stated that people with existing visas can come in.

    They could then argue the case before Robards as a matter of principle, since the crux of the issue is keeping NEW people from coming in without proper vetting.

    After they win the case, they would then be free to do what they want.

    IANAL, however, so I may be completely wrong.

ugottabekiddinme | February 6, 2017 at 7:04 pm

Meanwhile, here in Washington state, our showboating AG Ferguson and our brain dead Governor Inslee had a photo op meeting with some Somali dude who was delayed getting into the US by the EO. So they’ll get their faces on all the local stations news shows, and shore up their lefty credentials before the EO is reinstated.

Trump won 27 counties in Washington state; Clinton won only 12.

But hers included the most heavily populated, so despite the overwhelming loss by county, she still got the state, where we have groaned under one-party Democrat rule for about 30 years now.

    Groan less heavily…. In California, the run-off for Governor can be between two members of the same party…. As with the USSR Communist Party, selection could be for one or another Dem… this gives more diversity within one party rule. California … were English will be a second language (already in some areas).

I’m with Laura Ingraham. They should have gone straight to SCOTUS. They knocked down a number of Obama’s overreaches by 9-0, so that might be a good place for something this basic.

Plus, they’ve done the Arizona batball crap…. would they reverse their position this quickly? Kind of doubt it.

    pwaldoch in reply to CloseTheFed. | February 7, 2017 at 12:21 pm

    Note: SCOTUS is short one member. The Libs can stall cases even reaching the SCOTUS, leaving 9ths ruling as the final arbiter, if it reaches SCOTUS while short and they ‘reject’ taking the case.

MaggotAtBroadAndWall | February 6, 2017 at 8:40 pm

One of the judges was appointed by Carter. 86 years old. He’s spent time in the Peace Corp in Ethiopia and Uganda. Pretty sure he’s a bleeding heart.

Another was appointed by Obama. Bachelors in ecology. Studied philosophy at Oxford. Got her JD from Stanford.

The other is a GWB appointment. The only thing wiki has on him is his bachelors is Princeton, JD from Yale and he had been a law prof in Hawaii before getting this gig on the 9th Circuit.

I assume Trump’s going to lose 2-1, based on who appointed them and their resumes.

At least at SCOTUS, lots of Republican justices buck the party that appointed them when it comes to the high profile cases (Earl Warren, Blackmun, Souter, Stevens, O’Connor, Kennedy, Roberts). Democrat judges almost never disappoint their party on those kinds of cases.

Even if this EO was motivated by animus against Muslims, how can Equal Protection or the Establishment Clause even apply since non-resident aliens have no constitutional rights?

    how can it apply to anyone even US citizens outside the border of the US?

    Hear something don’t know how true it is, that the judge Robard??? did/does pro bono work for Muslim immigrants.

    another question – how does one circuit court make it’s ruling nation wide when another does not??

    Sanddog in reply to randian. | February 7, 2017 at 4:45 pm

    Washington state is claiming they are the entity being harmed by the ban. Trump should have seized the narrative and demanded to know exactly how Washington state would be harmed if potential terrorists were refused entry. Turn it around, throw it right back in their face.

Really need to start impeaching “judges” that pull crap like this.

    Observer in reply to Aarradin. | February 7, 2017 at 6:57 am

    Yes, there are only two possibilities here:
    (1) that Robart did not know that he was vastly exceeding his authority as a federal district court judge and issuing a ruling that was completely inconsistent with existing federal law (which seems unlikely, given the dearth of legal precedents cited in support of his decision); or
    (2) that Robart knew he was vastly exceeding his legal authority and issuing a ruling that was completely inconsistent with existing federal law, but decided to do it anyway because he wanted to make a political statement.

    Either way, Robart has demonstrated that he is unfit to serve as a federal judge.

Isn’t harboring an illegal alien/aiding and abetting a fugitive already on the books as a federal crime?

    Gremlin1974 in reply to Carl. | February 7, 2017 at 4:17 pm

    Aiding and Abetting a fugitive is, but the illegal would have to be on the run for a crime other than entering the US illegally. Unfortunately for now illegally entering the US is considered a “civil crime” not a Criminal Crime” something that I for one think needs to be changed ASAP.

The 9th Circuit’s decision will be huge either way. The Reply Brief filed by the U.S. Govt. looks very good, and makes all the right arguments.

I am waiting however for the politicized 9th Circuit to uphold Robart’s legally-unjustified order (as in, Robart didn’t put the legal justification for his order anywhere in his decision), to establish a significant and important “State’s Rights” legal precedent for the 9th Circuit.

Evidently according to liberals it’s now O.K. for individual states to get injunctions against exercises of Executive Branch power in a constitutionally-designated area of executive branch authority, just because the states disagree with the President.

Wonderful!!!! I’ve been waiting for this for a long time!!!!

Do Minnesota and Washington States have “standing” to seek an injunction of Trump’s Order on behalf of other states like Texas without even bothering to ask whether or not Texas wants them to do that?

SoCA Conservative Mom | February 7, 2017 at 10:20 am

This is a good read on the issue. But take note of the last paragraph.

I’ve got a very bad feeling about this. I’m not just worried about a politicized 9th Circuit Court, but about Justice Kennedy. I don’t think for a second that he’d respect the separation of powers or would hesitate to substitute his judgement for that of Congress or the President’s (Trump is clearly acting on the authority given to him by statute) to arrive at his preferred policy outcome.

    Gremlin1974 in reply to Arminius. | February 7, 2017 at 4:12 pm

    I think Kennedy might surprise you on this one. I know it seems like most of his decision are made based on whether or not he liked his lunch, but while I may not agree with all of them he always has a good argument. Given his decisions in the past and the fact that he is the justice that oversee’s this court, which means his rep is on the like, he may surprise you.

Any ideas on what’s going on? I thought everyone expected a ruling pretty quickly yesterday??

Could it be the Judges are looking for ways to dig themselves out of the whole Robart put them in?


4 to 4?
With Roberts it may just end up 5 to 3 against.