In a major blow to the Trump Administration, a panel of three federal judges on Thursday unanimously denied the federal government’s efforts to reinstate the president’s travel ban and rejected a Justice Department argument that it violates the separation of powers for judges to “entertain a constitutional challenge to executive actions such as this one.”
The 29-page order leaves in place for now an order issued last Friday by a Seattle judge that halted the president’s travel ban on people arriving from seven Muslim-majority nations. It allows the federal government to seek review of the panel’s decision by a larger panel of judges from the San Francisco-based 9th Circuit.
President Trump left no doubt that he would appeal the order, tweeting minutes after the decision was made public.
“SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!” the president wrote on his Twitter account 27 minutes after the order was filed.
The judges rejected the government’s contention that Trump’s order had to be put in place immediately to protect the nation.
“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,” they wrote. “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.”
Opponents of the travel ban exulted when the decision was made public.
California Attorney General Xavier Becerra said the court decision “means that our families and businesses and our state institutions and universities can continue forward without harmful disruption.”
“The Ninth Circuit Court of Appeals ruled on the side of justice today, acknowledging the States’ right to challenge the Trump Administration’s travel ban and keeping in place a district court order suspending that ban,” Becerra said. “As Attorneys General throughout the country have argued, the Trump Administration violated the Constitution when it blocked tens of thousands of law-abiding people—who have already been vetted and received permission to enter—from traveling to the United States.”
As it stands now, the case goes back to U.S. District Judge James L. Robart in Seattle. The federal government also could seek redress from a larger panel of the 9th Circuit, or directly from the U.S. Supreme Court.
Some legal experts suggested an appeal to the U.S. Supreme Court would be unlikely to succeed.
UC Hastings law professor Rory Little said that if the high court took the case, the administration’s appeal would likely fail on a 4-4 vote and leave the 9th Circuit’s decision intact.
Or, Little said, “Chief Justice (John) Roberts will be so angry about the insulting comments about the judges that they’ll actually lose.”
“Maybe that’s Trump’s agenda, so he can tweet to the public that the whole judiciary is terrible,” Little added.
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. 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.
Panel of judges from the 9th Circuit
The way the three-judge panel’s decision stands now, the case would go back to Judge Robart, who already has laid out a briefing schedule through the end of next week, Little said.
Legal scholars said the case has the potential to trigger a constitutional battle between the judiciary and executive branches if Washington state officials begin pursuing documents from the White House looking for evidence that the travel ban was intentionally aimed at Muslims.
The solicitor general for the state of Washington has suggested he intends to seek discovery from the administration to determine if anti-Muslim religious animosity figured into Trump’s executive order.
The Jan. 27 executive order suspended travel for 90 days from the Muslim majority nations of Syria, Iraq, Iran, Libya,Sudan, Somalia and Yemen, and also placed a 120-day hold on refugee admissions from all countries as well as an indefinite suspension of refugee admissions from Syria.
As federal immigration authorities moved to enforce the order, travel was disrupted for thousands of immigrants who had already obtained visas, and protests by thousands of demonstrators at airports across the country erupted.
In Thursday’s decision, the appeals court judges recognized the validity of some arguments from both sides, but rejected the federal government’s request that they stay the Seattle judge’s temporary restraining order and allow the travel ban to resume while the issue is fought out in court.
“Aspects of the public interest favor both sides, as evidenced by the massive attention this case has garnered at even the most preliminary stages,” the judges wrote. “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; when considered alongside the hardships discussed above, these competing public interests do not justify a stay.”
Judges Michelle T. Friedland, appointed by President Barack Obama; William C. Canby, Jr., appointed by President Jimmy Carter; and Richard R. Clifton, who was appointed by President George W. Bush, comprised the panel.
Robart, the judge in Washington state, granted the restraining order on a motion by attorneys from the states of Washington and Minnesota. They said the president’s action harmed thousands of their residents and disrupted their local economies. The judge already has set the schedule to proceed on a motion by the states for a preliminary injunction, and ordered a briefing schedule that will run through Feb. 17.
The president will refuse to testify, and he will refuse to release any documents, and he has executive privilege.
Michael W. McConnell, Stanford Law School
Among other arguments, the plaintiffs have maintained that the executive order violates provisions of the U.S. Constitution that guarantee due process and prevent the favoritism of one religion over the other.
The appeals court judges wrote that the states’ claims about the ban being aimed at one religion “raise serious allegations and present significant constitutional questions.” But, they added, “we reserve consideration of these claims until the merits of this appeal have been fully briefed.”
The federal government argued that the states did not have standing to bring the case and that individuals who believed they had been harmed by the order were the appropriate plaintiffs to challenge the order.
Washington and Minnesota, as well as California and more than a dozen other states, filed declarations stating that they already had suffered harm through lost tax revenues from foreign visitors and that state universities were hurt when foreign scholars and students were prevented from coming to their schools.
Legal experts said serious legal fights loom if the case returns to Robart’s court and Washington state officials pursue evidence of anti-Muslim sentiment behind the travel ban.
Washington’s solicitor general Noah Purcell, in a brief filed with the appeals court, argued that Trump’s campaign promise to suspend Muslim immigration into the United States was “shocking evidence of intent to discriminate against Muslims.”
And, Purcell added, “We haven’t even had any discovery yet to find out what else might have been said in private.”
Judge Robart would make the call on any motion to try to find out through discovery. If he ordered the administration to turn over emails or internal correspondence, or if he compelled officials close to the president – or maybe even Trump himself – to testify at an evidentiary hearing in Seattle, presidential claims of executive privilege could follow.
“It’s theoretical, but if the 9th Circuit affirms the order on the ground that the subjective motivations of the president are legally relevant, then they’re going to need to find some way to prove what those subjective motivations were,” said professor Michael W. McConnell, the director of the Constitutional Law Center at Stanford Law School, himself a former federal appellate judge on the 10th Circuit. “The president will refuse to testify, and he will refuse to release any documents, and he has executive privilege.”
McConnell, speaking before the 9th Circuit order was issued, predicted a standoff would ensue between Trump and Robart, and that Trump “is going to be on extraordinarily strong legal ground because executive privilege is always thought to apply to national security.”
UC Irvine School of Law Dean Erwin Chemerinsky was less certain than McConnell on where the balance of power might lie between the state of Washington’s discovery requests and the Trump administration’s exertion of executive privilege.
“I think if, after the 9th Circuit opinion, it becomes clear that one of the issues is whether this is based on the animus towards a religion, there will be an effort to try and get discovery to find out what were the attitudes,” he said.
Chemerinsky also thinks the administration will fight any discovery requests on grounds of executive privilege, but that it will be a “tough call” between that and keeping the materials such as emails, records of meetings, notes of conversations out of the hands of the plaintiffs’ lawyers.
“I think it may depend on what they are seeking, and who is part of those communications, because there’s no doubt that presidents have executive privilege,” Chemerinsky said. “But executive privilege can’t be used to keep courts from having the evidence they need.”
Gabriel “Jack” Chin, a UC Davis law professor and expert on immigration law, said that Robart could preclude an evidentiary hearing by deciding whether the executive order is discriminatory on its face, one way or the other. He said the Seattle judge will be moving onto “very, very tricky terrain” if he sides with the state of Washington’s lawyers that the president’s thinking needs to be investigated.
“That is a big lift,” Chin said.
McConnell, the Stanford professor, said the “leading precedent” that might control a discovery motion against Trump would be the Watergate case in which U.S. District Judge John Sirica ordered President Richard M. Nixon to turn over the secret tapes he maintained of his Oval Office conversations. The case was taken up by the U.S. Supreme Court, which unanimously ordered Nixon to turn over the tapes. The decision ultimately led to Nixon’s resignation from the presidency.
But there are major differences between the case from 1974 and the one that is brewing on the West Coast.
“They made it clear there was no executive privilege,” McConnell said of the justices’ ruling against Nixon’s claim, “in that it didn’t have anything to do with national security and it had to do with evidence of actual criminality. This is about national security,” he said of Trump’s executive order, “and there’s no allegation that a criminal law has been broken.”