A federal judge in Seattle who was criticized by President Donald Trump after slapping a hold on the refugee travel ban got some backup Thursday: a unanimous appeals court ruling against Trump's executive order.
And a constitutional law professor singled out some key language in the ruling as particularly telling.
The ruling by three judges of the 9th Circuit Court of Appeals preserves travel privileges for refugees and visa-holders from seven majority-Muslim countries. It keeps in place the temporary restraining order that U.S. District Judge James Robart granted last week.
The appellate court found the states of Washington and Minnesota do have the right to represent their universities and students adversely affected by the travel ban.
But it also takes issue with the Justice Department’s contention that a president’s national security decisions are “unreviewable” by the courts. The ruling pushes back, saying while the courts are deferential to the political branches on immigration and national security, that broad claim “runs contrary to the fundamental structure of our constitutional democracy.”
University of Washington Law Professor Kathryn Watts says that argument did not sit well with the appellate judges.
And she was struck by the fact that the unanimous opinion they issued was unsigned.
“The court is speaking with one voice, in other words," Watts said. "It’s unanimous and there’s not one particular author’s name on there so it’s the voice of the court. And I think given the high profile very politically charged nature of this case that was a really smart move.”
She says this decision may be appealed to the full 9th Circuit itself or proceed to the U.S. Supreme Court.
The president’s executive order temporarily suspended the nation’s refugee program as well as travel from seven majority-Muslim countries with terrorism concerns.
Washington Attorney General Bob Ferguson celebrated the 9th Circuit victory at a post-ruling press conference, saying, “Bottom line: This is a complete victory for the State of Washington."
Ferguson said barring appeals, he expects the case to go back before Robart. Ferguson said the temporary restraining order was not granted on the merits, but on grounds that the state is likely to prevail on those merits. In the next phase, attorneys will seek discovery and the court will determine the validity of the lawsuit’s claims.
That's unless the Department of Justice appeals to the full 9th Circuit Court or to the U.S. Supreme Court.
In the wake of Thursday’s ruling, President Trump tweeted, “See you in court, the security of our nation is at stake.”
Ferguson fired back in a news conference: “We have seen him in court twice, and we’re 2 for 2. That’s No. 1. And in my view, the future of the Constitution is at stake.”
The appellate ruling was the latest step in a breathless series of court filings that began days after the executive order on immigrants and refugees was signed January 27.
Before Robart and the 9th Circuit Court, the state of Washington (joined by Minnesota) argued that the state and its institutions, as well as state residents, are at risk of irreparable harm under the executive order.
Washington Solicitor General Noah Purcell argued that the executive order is unconstitutional because it stripped the due process rights of residents overnight and also because it discriminates against immigrants and refugees on the basis of religion.
Lawyers with the U.S. Justice Department responded that the president was well within his powers to issue an order based on national security concerns. They noted that the Obama administration also tightened travel restrictions for people coming from the seven Middle Eastern countries.
Robart granted the temporary restraining order on a nationwide basis last Friday Feb. 3.
In granting the restraining order, Robart found that the Trump's ban “adversely affects the states’ residents in areas of employment, education, business, family relations and freedom to travel.”
As a result of Robart’s order, last weekend airlines began accepting refugees and other visa holders from the seven listed countries.
Meanwhile the Justice Department appealed Robart’s decision to the 9th Circuit. Earlier this week the three-judge panel from the appeals court considered the case in a live-streamed telephone conference.
Nearly 100 technology companies signed on to an amicus brief filed with the Ninth Circuit in which they condemned the suddenness of the new policies. “The Order threatens the long-standing stability of the U.S. immigration laws,” according to their brief, “which have been marked by clear, settled standards and constrained discretion—introducing sudden changes without notice, unclear standards for implementation, and no standards for the exercise of waiver authority. That shift deprives employees and businesses of the predictability they require.”
A brief filed by conservative groups including the U.S. Justice Foundation says the President had full authority to issue the Executive Order, since Congress has historically given presidents “a wide berth to restrict foreign travel into the United States.” It cited a report issued by the Department of Homeland Security under the Obama administration that found the current refugee vetting process could be vulnerable to fraud, and noted that one of the goals of the executive order is to scrutinize the process.
The three judges hearing the case on the 9th Circuit rejected the government's arguments. Their decision found immediate harm from Trump's ban.
“The impact of the Executive Order was immediate and widespread," the ruling said. "It was reported that thousands of visas were immediately canceled, hundreds of travelers with such visas were prevented from boarding airplanes bound for the United States or denied entry on arrival, and some travelers were detained.”
The court found that the federal government was not likely to defeat Washington’s “due process” claim.
Watts said that although the 9th Circuit ruling said the court “reserves consideration” on whether the president’s order constitutes a ban on Muslims, the fact that they touched on the issue at all is significant.
“They chose to go on and talk about the First Amendment claim – the 'establishment' claim – this question of whether the order favors or disfavors a particular religion, whether it disfavors Muslims," she said. "They chose to go and and signal that they thought there were very serious First Amendment questions raised here.”