Rebuffing the Trump Administration’s sweeping claim of unchecked presidential power and insisting on the power of the federal courts to safeguard individual liberties, a federal appeals court on Thursday kept in force a temporary ban on the White House order sharply limiting immigration of people from the Mideast.
The U.S. Court of Appeals for the Ninth Circuit declared that the government has not proved that it has the authority to impose entry restrictions using procedures that do not provide fair treatment for foreign nationals seeking to enter the U.S. or those already here who seek to travel abroad and return.
That was a conclusion based upon the Constitution’s guarantee of due process. The appeals court did not rule, for the time being, on two other major constitutional challenges to the travel restrictions: a claim that it discriminates against Muslims on the basis of their religion, and that it uses a religious test for who among foreign nationals are eligible to enter or leave America.
The ruling was a sharp even if temporary defeat for President Trump and his new administration, but because it came so quickly, it set up an early opportunity for the Justice Department to ask the Supreme Court to step in and allow the government to enforce the controversial executive order issued on January 27. The order has been blocked by a temporary order issued February 3 by a federal trial judge in Seattle; the Ninth Circuit Court refused to set aside that order.
Government lawyers have the option of taking the case on to the Supreme Court as soon as they can prepare and file the legal papers. Those papers are likely to be in the form of an emergency request for the Justices to allow the Trump order to take effect immediately.
However, since the government considers its action to be vital to the nation’s safety from potential terrorists who might come into the country among immigrants, federal lawyers do have the option of asking the Supreme Court to treat its request as an appeal on the merits of the case without waiting for any more proceedings to unfold in the lower courts.
Initially, any filing will go first to Justice Anthony M. Kennedy, who has authority to act on emergency matters reaching the court from the geographic region of the Ninth Circuit Court, on the nation’s West Coast. It is up to Kennedy initially to decide whether to pass the government plea on to the full court. The court has only eight Justices because of the vacancy that has existed for the past year because of the death of Justice Antonin Scalia.
That raises the prospect that, if the full court does get involved, the Justices could split 4 to 4. Such a result would leave intact the ruling Thursday by the Circuit Court, and the case would then return to the federal trial judge in Seattle to consider the next step – that is, the pending request of the states of Washington and Minnesota for a stronger order than the temporary restraining order he issued last Friday. Technically, that request is for a preliminary injunction.
The Circuit Court’s 29-page unanimous opinion was apparently prepared jointly by the three judges on the panel, because it was issued “per curiam” – that is, “by the court.”
While the panel did not rule on the two states’ claims about religious discrimination or religious favoritism, it did decide on the two states’ other claim of unconstitutional “due process.”
The most important defeat for the Trump Administration was the Circuit Court’s rejection of the claim that the Trump executive order was immune to any review by the federal courts. While the panel conceded that the courts have long deferred to the presidency and Congress when they take action on immigration and national security, it said that “neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those areas for compliance with the Constitution.”
Beyond that, the Circuit Court also turned aside government arguments that the two challenging states had no legal right to go to court to contest the executive order, that any delay of enforcement should not apply nationwide, and that any delay should be limited to allow travel into or out of the country by people who had already been given a legal right to be in the United States.
The Circuit Court’s ruling means, in practical terms, that the Trump Administration remains barred from enforcing a 90-day suspension of entry by anyone from seven Mideast nations where Muslims are in a majority, a 120-day suspension of entry of any foreign nationals seeking entry as refugees, and an indefinite delay of entry of refugees from Syria.
(This post also appears today at Constitution Daily, the blog of the National Constitution Center in Philadelphia.)