Just in:
Full Order at bottom of post. (pdf.)
The long and the short of the 9th Circuit opinion is quite outrageous.
The 9th Circuit failed to distinguish between people even the government concedes have some due process rights and as to whom it would not apply the Executive Order (e.g., permanent residents, those lawfully in the U.S. on a visa) and strangers abroad who may not even have applied for a visa. By failing, indeed refusing, to distinguish among those very different categories, the 9th Circuit effectively extends constitutional due process protections even to people who have not yet even applied for a visa.
The Court also confuses whether it has the power to review immigration actions of the President with substituting the court’s judgment as to reasonableness of security measures. The court substituted its own judgment that there was no proof of significant risk – but that’s a judgment the court doesn’t get to second guess, even if it can review executive action to evaluate constitutional claims.
There also are interesting legal issues of “standing” and procedural issues, but the heart of the decision is extending due process rights even to persons abroad.
Here are some excerpts from the due process holding:
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….At this stage of the proceedings, it is the Government’s burden to make “a strong showing that [it] is likely to” prevail against the States’ procedural due process claims…. We are not persuaded that the Government has carried its burden for a stay pending appeal.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.” …. These rights also apply to certain aliens attempting to reenter the United States after travelling abroad…. The Government has provided no affirmative argument showing that the States’ procedural due process claims fail as to these categories of aliens. For example, the Government has failed to establish that lawful permanent residents have no due process rights when seeking to re-enter the United States…..The Government has argued that, even if lawful permanent residents have due process rights, the States’ challenge to section 3(c) based on its application to lawful permanent residents is moot because several days after the Executive Order was issued, White House counsel Donald F. McGahn II issued “[a]uthoritative [g]uidance” stating that sections 3(c) and 3(e) of the Executive Order do not apply to lawful permanent residents. At this point, however, we cannot rely upon the Government’s contention that the Executive Order no longer applies to lawful permanent residents….Even if the claims based on the due process rights of lawful permanent residents were no longer part of this case, the States would continue to have potential claims regarding possible due process rights of other persons who are in the United States, even if unlawfully ….First, we decline to limit the scope of the TRO to lawful permanent residents and the dditional category more recently suggested by the Government, in its reply memorandum, “previously admitted aliens who are temporarily abroad now or who wish to travel and return to the United States in the future.”…. There might be persons covered by the TRO who do not have viable due process claims, but the Government’s proposed revision leaves out at least some who do…..More generally, even if the TRO might be overbroad in some respects, it is not our role to try, in effect, to rewrite the Executive Order…. The political branches are far better equipped to make appropriate distinctions. For now, it is enough for us to conclude that the Government has failed to establish that it will likely succeed on its due process argument in this appeal.
The Court declined to reach the religious liberty claims:
The First Amendment prohibits any “law respecting an establishment of religion.” U.S. Const. amend. I…..The States’ claims raise serious allegations and present significant constitutional questions. In light of the sensitive interests involved, the pace of the current emergency proceedings, and our conclusion that the Government has not met its burden of showing likelihood of success on appeal on its arguments with respect to the due process claim, we reserve consideration of these claims until the merits of this appeal have been fully briefed.
The Court rejected Trump’s reliance on prior congressional and DHS risk assessments:
[footnote 7] Although the Government points to the fact that Congress and the Executive identified the seven countries named in the Executive Order as countries of concern in 2015 and 2016, the Government has not offered any evidence or even an explanation of how the national security concerns that justified those designations, which triggered visa requirements, can be extrapolated to justify an urgent need for the Executive Order to be immediately reinstated.
Some reactions:
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9th Circuit Stay Decision – Trump Immigration Executive Order by Legal Insurrection on Scribd
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