"On Thursday, a panel of judges for the U.S. Court of Appeals for the 9th Circuit unanimously denied the government’s request to lift a nationwide injunction that had been placed on Donald Trump’s immigration executive order by a lower court. The ruling is about as broad and thorough as opponents of Trump’s de facto Muslim ban could’ve hoped for. It is a considerable triumph for the two states challenging the ban, Washington and Minnesota, and a massive setback for the Trump administration. Given this ruling, it is difficult to see how the executive order could be lawfully reinstated in the near future.
MARK JOSEPH STERN Mark Joseph Stern is a writer for Slate. He covers the law and LGBTQ issues.
The 9th Circuit panel found that Washington and Minnesota have standing to sue, because they were harmed by the executive order. Specifically, both states’ public universities will suffer under the ban: Prospective students may be barred from entering the country and from attending these schools; faculty members will be unable to engage with the international academic community; and both students and faculty of foreign origin will be ‘prevented from performing research,’ because ‘some will not be permitted to return if they leave.’ Because public universities are organs of the state, an injury to these schools constitutes an injury to the states, conferring standing upon both Washington and Minnesota.
The court also rejected the government’s argument that the executive order is ‘unreviewable’ because it involves ‘national security concerns.’ There is ‘no precedent to support this claimed unreviewability,’ the court held, ‘which runs contrary to the fundamental structure of our constitutional democracy. Within our system, it is the role of the judiciary to interpret the law, a duty that will sometimes require the resolution of litigation challenging the constitutional authority of one of the three branches.’ The court elaborated:
Although our jurisprudence has long counseled deference to the political branches on matters of immigration and national security, neither the Supreme Court nor our court has ever held that courts lack the authority to review executive action in those arenas for compliance with the Constitution. To the contrary, the Supreme Court has repeatedly and explicitly rejected the notion that the political branches have unreviewable authority over immigration or are not subject to the Constitution when policymaking in that context. The court then explained that the government ‘has not shown that it is likely to succeed on appeal.’ It focused on two specific claims: that the executive order violates due process, as guaranteed by the 5th Amendment, and that it discriminates against Muslims, in violation of both equal protection and the 1st Amendment’s Establishment Clause.
‘The Government has not shown that the Executive Order provides what due process requires,’ the court noted, ‘such as notice and a hearing prior to restricting an individual’s ability to travel.’ Instead, the government argued that ‘most or all of the individuals affected by the Executive Order have no rights under the Due Process Clause.’ But the court found that this assertion is incorrect under established precedent, as well as under the plain language of the clause, which speaks of ‘person[s],’ not citizens. The court then held that the ban presents serious due process concerns and that ‘the Government has failed to establish that it will likely succeed on its due process argument in this appeal.’
Next, the court considered the religious discrimination claim. Critically, the court found that it could look ‘beyond the face of the challenged law … in evaluating Establishment and Equal Protection Clause claims.’ It noted that ‘the States have offered evidence of numerous statements by the President about his intent to implement a ‘Muslim ban’ as well as evidence they claim suggests that the Executive Order was intended to be that ban.’
‘The States’ claims raise serious allegations and present significant constitutional questions,’ the court concluded. But it ‘reserve[d] consideration of these claims until the merits of this appeal have been fully briefed,’ holding that the due process issue was sufficient to justify maintaining the injunction.
Citing the 5th Circuit’s affirmation of a nationwide injunction against President Obama’s deferred deportation program, the court declined to reverse the nationwide injunction issued against Trump’s executive order. ‘Such a fragmented immigration policy,’ it wrote, quoting the 5th Circuit, ‘would run afoul of the constitutional and statutory requirement for uniform immigration law and policy.’ The court then held that the balance of hardships weighed in favor of the states, which would be substantially injured if the ban were reinstated, while no clear harm will come of maintaining the injunction. The executive order, after all, does not really seem to respond to an urgent national security threat:
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. The court also held that consideration of the public interest weighed in favor of maintaining the injunction. ‘The public,’ the court wrote, ‘has an interest in free flow of travel, in avoiding separation of families, and in freedom from discrimination.’
The 9th Circuit’s decision ensures the immigration ban will not be implemented while the judiciary considers the merits of the legal challenge—that is, unless the Supreme Court lifts the injunction. Although the Justice Department is expected to appeal, the high court’s current ideological divide means it is unlikely to reverse the 9th Circuit’s determination. For now at least, it appears the legal arguments against the ban have carried the day."